Digital Commons Network^™

Beyond Transparency And Accountability: Three Additional Features Algorithm Designers Should Build Into Intelligent Platforms, Peter K. Yu

Faculty Scholarship

In the age of artificial intelligence, innovative businesses are eager to deploy intelligent platforms to detect and recognize patterns, predict customer choices and shape user preferences. Yet such deployment has brought along the widely documented problems of automated systems, including coding errors, corrupt data, algorithmic biases, accountability deficits and dehumanizing tendencies. In response to these problems, policymakers, commentators and consumer advocates have increasingly called on businesses seeking to ride the artificial intelligence wave to build transparency and accountability into algorithmic designs.

While acknowledging these calls for action and appreciating the benefits and urgency of building transparency and accountability into algorithmic …

Precedent As Rational Persuasion, Brian N. Larson

Faculty Scholarship

The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding law and the society it shapes. An inquiry that explores the very foundations of all legal reasoning leads to a broad, important question: How do lawyers and judges use cited cases in their legal arguments? It turns out there is practically no empirical research to suggest the answer. As the first step in a comprehensive empirical effort to answer this question, this article performs a …

On Cooperationism: An End To The Economic Plague, Bernard E. Harcourt

Faculty Scholarship

Over thirty million Americans just filed first-time unemployment claims as a result of the economic devastation caused by the coronavirus pandemic, pushing unemployment to its highest levels since the Great Depression. Despite that, the US stock markets recorded in April their best month since 1987; after an initial shock, the markets rallied steadily, rising over 30 percent since their lows in late March. Most economists sounded puzzled and offered fanciful daily explanations. Even Paul Krugman had little to say, suggesting that "Investors are buying stocks in part because they have nowhere else to go."

But it’s no wonder the markets …

The Social Science Approach To International Law, Daniel Abebe, Adam S. Chilton, Tom Ginsburg

Faculty Scholarship

For over a hundred years, scholars have argued that international law should be studied using a “scientific” approach. Throughout the twentieth century, however, the most prominent methods used to study international law primarily consisted of different theoretical and analytical claims about how international law should be developed, interpreted, and critiqued. It is only in the first two decades of the twenty-first century that the conventional social science approach to research — identifying a specific question, developing hypotheses, using a research design to test those hypotheses based on some form of qualitative or quantitative data, and presenting conclusions, all while acknowledging …

Principals And Principles In Immigration Law, Jessica Bulman-Pozen

Faculty Scholarship

Adam Cox and Cristina Rodríguez have written a brilliant book — one of big arguments, grand scale, and historical sweep, yet also institutional detail, political acuity, and legal nuance; a book that has as much to teach us about Biden’s nascent administration as about the tenure of his immediate and more distant predecessors. As I add my voice to the chorus of praise, I want to suggest two extensions of the project.

The Separation Of Voting And Control: The Role Of Contract In Corporate Governance, Gabriel Rauterberg

Faculty Scholarship

The default rules of corporate law make shareholders’ control rights a function of their voting power. Whether a director is elected or a merger is approved depends on how shareholders vote. Yet, in private corporations shareholders routinely alter their rights by contract. This phenomenon of shareholder agreements — contracts among the owners of a firm — has received far less attention than it deserves, mainly because detailed data about the actual contents of shareholder agreements has been lacking. Private companies disclose little, and shareholder agreements are thought to play a trivial or nonexistent role in public companies.

I show that …

Privacy Asymmetries: Access To Data In Criminal Defense Investigations, Rebecca Wexler

Faculty Scholarship

This Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement but not when requested by criminal defense counsel. In the U.S. adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, statutes that selectively suppress defense investigations selectively suppress evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and …

Privacy As Privilege: The Stored Communications Act And Internet Evidence, Rebecca Wexler

Faculty Scholarship

This Article exposes a profound and growing injustice that major technology companies have propagated through every level of the judiciary under the guise of protecting data privacy. The Supreme Court has repeatedly proclaimed: “In our judicial system, the public has a right to every [person’s] evidence.” Yet, for over a decade, Facebook, GitHub, Google, Instagram, Microsoft, and Twitter have leveraged the Stored Communications Act (SCA) — a key data privacy law for the internet — to bar criminal defendants from subpoenaing the contents of another’s online communications, even when those communications could exonerate the wrongfully accused. Every appellate court to …

The Practice And Pedagogy Of Carceral Abolition In A Criminal Defense Clinic, Nicole Smith Futrell

Faculty Scholarship

Current social and racial justice movements have helped to advance deeper interest in the long-standing work of carceral abolitionists. Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively perpetuate, the underlying problems that produce violence and harmful behavior in our communities. Abolition focuses on dismantling our current carceral systems and finding completely new, restorative, and collaborative ways of addressing harmful social behaviors. While abolitionist thought has long existed in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal …

Disaggregating Chevron, Lawrence B. Solum

Faculty Scholarship

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. is widely regarded as the most important administrative law decision in the history of the United States. The scholarly literature is vast and defies summary or cataloging. Moreover, Chevron is contested and criticized, defended and derided, lauded and lamented—the source of “angst and rancor” in the words of Professor Kristin E. Hickman and R. David Hahn in their article, Categorizing Chevron. One might think that when it comes to Chevron, there is “no new thing under the sun,” but in fact, Chevron is still full of surprises. When we turn …

Appellate Courts And Civil Juries, Adam N. Steinman

Faculty Scholarship

In federal civil litigation, decision-making power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation—which is now before the Supreme Court—exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review over a jury’s verdict …

Takings Localism, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

Conflicts over “sanctuary” cities, minimum wage laws, and genderneutral bathrooms have brought the problematic landscape of contemporary state preemption of local governance to national attention. This Article contends that more covert, although equally robust, state interference can be found in property, with significant consequences for our understanding of takings law.

Takings jurisprudence looks to the states to mediate most tensions between individual property rights and community needs, as the takings federalism literature recognizes. Takings challenges, however, often involve local governments. If the doctrine privileges the democratic process to resolve most takings claims, then, that critical process is a largely local …

Menstrual Dignity And The Bar Exam, Marcy L. Karin, Margaret E. Johnson, Elizabeth B. Cooper

Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Selecting Representative And Qualified Candidates For President: Proposals To Reform Presidential Primaries, Daisy De Wolff, Ben Kremnitzer, Samara Perlman, Gabriella Weick

Faculty Scholarship

The presidential primary processes used by the two major parties misses opportunities to engage voters and incorporate their input in selecting nominees. This report advances several reforms to make the primaries more inclusive, including reordering the primary calendar to give voters in more states a meaningful voice, eliminating caucuses, and opening primaries to independent voters. Additionally, the political parties should make primary debates more informative and limit party leaders’ opportunities to have disproportionate input in selecting presidential candidates

Private Equity & Industries In Transition: Debt, Discharge & Sam Gerdano, Edward J. Janger

Faculty Scholarship

No abstract provided.

Nature’S Personhood And Property’S Virtues, Laura Spitz, Eduardo M. Peñalver

Faculty Scholarship

This Article evaluates the strategy of claiming personhood for natural objects as a way to advance environmental goals in the United States. Using the Colorado River Ecosystem v. Colorado litigation as the focus, we explore the normative foundation of the claim—elements of nature are legal persons—and the work personhood is being asked to do by the plaintiff and other environmental activists. We identify three possibilities: procedural work, substantive work, and rhetorical work. Of those, we suggest the plaintiff’s strongest case is rhetorical. We say this not only because it will likely be difficult to convince a judge to extend standing …

Bad Apples Or A Rotten Tree: Ameliorating The Double Pandemic Of Covid-19 And Racial Economic Inequality, Nathalie Martin

Faculty Scholarship

Black Lives Matter signs pepper our rural, middle class neighborhood. The lawn signs raise a fundamental question: if Black Lives Matter, what will it take to reverse the longstanding trend that has left many dead and so many others, perhaps all others, suffering? What will it take to create some semblance of equality and equity across racial lines in America?

Part I of this essay discusses race and Covid 19. It reviews and updates statistics on Covid deaths and race, and discusses some of the reasons for the racial disparities in Covid deaths. Part II briefly reviews the stratification of …

Racial Triangulation, Interest-Convergence, And The Double-Consciousness Of Asian Americans, Vinay Harpalani

Faculty Scholarship

This Essay integrates Professor Claire Jean Kim’s racial triangulation framework, Professor Derrick Bell’s interest-convergence theory, and W.E.B. Du Bois’s notion of double-consciousness, all to examine the racial positioning of Asian Americans and the dilemmas we face as a result. To do so, this Essay considers the history of Asian immigration to the United States, the model minority and perpetual foreigner stereotypes, Asian Americans’ positioning in the affirmative action debate, COVID-19-related hate and bias incidents, and Andrew Yang’s 2020 Democratic presidential candidacy. The Essay examines how racial stereotypes of Asian Americans have emerged through historical cycles of valorization and ostracism, as …

The Right To Strike As Customary International Law, James J. Brudney

Faculty Scholarship

No abstract provided.

Arbitral Courts, Pamela K. Bookman

Faculty Scholarship

In recent years, states from Delaware to Dubai have been establishing something in between courts and arbitration, what this Article calls “arbitral courts.” Arbitral courts mimic arbitration’s traditional features. They hire internationally well-regarded judges who may also work as arbitrators. They claim the neutrality, expertise, and sometimes the privacy and confidentiality of international arbitration. Unlike arbitration, however, they bind third parties, develop law, and wield the power of the state.

This Article identifies, theorizes, and explores the significance of these new arbitral courts. Arbitral courts unsettle traditional distinctions between public and private adjudication. Their appearance has significant consequences not only …

Covid-19 And Comparative Corporate Governance, Martin Gelter, Julia M. Puaschunder

Faculty Scholarship

With the pandemic caused by the novel coronavirus SARS-CoV-2 raging around the world, many countries’ economies are at a crucial juncture. The COVID-19 external shock to the economy has the potential to affect corporate governance profoundly. This Article explores its possible impact on comparative corporate governance. For an economy to operate successfully, a society must first find a politically sustainable social equilibrium. In many countries, historical crises—such as the Great Depression and World War II—have resulted in a reconfiguration of corporate governance institutions that set the course for generations. While it is not yet clear whether COVID-19 will have a …

What's Law Got To Do With It? Dignity And Menstruation, Elizabeth B. Cooper

Faculty Scholarship

No abstract provided.

Local Constitutions, Nestor M. Davidson

Faculty Scholarship

Municipal charters are the forgotten constitutions of our federal system. Scholars generally understand our democracy to be governed by federal and state constitutions, but there is a third, almost entirely ignored realm of constitutional law and practice that lives at the local-government level, embodied in the charters that govern cities, counties, and towns. Engaging these foundational documents is critical. In an era of political gridlock and national polarization, with cities and other local governments increasingly grappling with policy concerns once considered state, federal, or even international responsibilities, the legal institutions that govern local democracy merit newfound scrutiny.

Although municipal charters …

Would Reasonable People Endorse A ‘Content-Neutral’ Law Of Contract?, Aditi Bagchi

Faculty Scholarship

This essay raises two challenges to Peter Benson’s compelling new account of contract law. First, I argue that Benson’s use of the concept of reasonableness goes beyond the Rawlsian account to require that we impute to others a capacity to transcend their contingent circumstances in the context of contractual choice. In fact, our choices in contract are driven by external contingencies and it is only reasonable to take those constrains on other people’s choices into account. Second, I contest Benson’s related claim that contract law should be, and largely is, content-neutral. I argue to the contrary that the justice of …

Fiduciary Law And The Law Of Public Office, Ethan J. Leib, Andrew Kent

Faculty Scholarship

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law—defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations—imposed core duties on holders of public executive offices: officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Officeholding came to be viewed as conditional, with officers removable for misdeeds. These substantive duties …

"And They Took My Milk!", I. Bennett Capers

Faculty Scholarship

No abstract provided.

Skimmed Milk: Reflections On Race, Health, And What Families Tell Us About Structural Racism, Robin A. Lenhardt, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

Lessons For Bivens And Qualified Immunity Debates From Nineteenth-Century Damages Litigation Against Federal Officers, Andrew Kent

Faculty Scholarship

This Essay was written for a symposium marking the fiftieth anniversary of the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. As the current Court has turned against Bivens—seemingly confining it to three specific contexts created by Bivens and two follow-on decisions in 1979 and 1980—scholars and litigants have developed a set of claims to respond to the Court’s critique. The Court now views the judicially created Bivens cause of action and remedy as a separation-of-powers foul; Congress is said to be the institution which should weigh the costs and benefits of allowing …

Historical Antecedents Of The 2020 Presidential Election, Thomas H. Lee

Faculty Scholarship

Antecedenti storici dell’elezione presidenziale del 2020 – Starting from former President Trump’s speech that propelled the storm of Capitol Hill on January 6th, the article provides an historical account of the transition of powers between administrations in the past decades and centuries. The analysis, on the one hand, highlights the traditionally peaceful nature of such transitions, while, on the other, it points to the instances when disputes concerning the electoral outcome occurred.

Mala Prohibita And Proportionality, Youngjae Lee

Faculty Scholarship

What is the proportionate punishment for conduct that is neither harmful nor wrongful? A likely response to that is that one ought not to be punished at all for such conduct. It is, however, common for the state to punish harmless conduct the wrongfulness of which is not always apparent. Take, for example, the requirement that those who give investment advice for compensation do so only after registering as an investment advisor. Advising a person on how to invest his or her funds and accepting a fee for the advice without registering with the government does not seem harmful or …