Digital Commons Network^™

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

Copyright And Parody: Touring The Certainties Of Intellectual Property And Restitution, Wendy J. Gordon

Faculty Scholarship

The essay that follows examines the boundary between two sets of rules. The first set arises under the law of Restitution, particularly the rule that volunteers ordinarily need not be rewarded. (Another way to state this same Restitution rule is to say that the retention of benefit voluntarily conferred is ordinarily not "unjust enrichment".) The second set of rules are those of Intellectual Property law, which creates property in a special kind of volunteer. My argument is simply that the law of Restitution leads almost directly to the law of Intellectual Property, though the two areas are premised on diametrically …

Ten Truths About Tax Havens: Inclusion And The "Liberia" Problem, Steven A. Dean, Attiya Waris

Faculty Scholarship

There has been a decades-long effort to repair an increasingly fragile international tax system. One reason it has foundered has been what we identify as the "Liberia problem." In 2000, the powerful Organization for Economic Cooperation and Development identified Liberia but not Switzerland as a tax haven and targeted it for sanctions. It did not go well. During the two decades since, everything has changed; yet seemingly from this lens of inclusion, nothing has changed at all. Awkwardly similar "blacklists" still target "Black" and "Brown" jurisdictions despite the fact that experts mean something quite different when they speak of the …

A Constitutional Moment In Cross-Border Taxation, Steven Dean

Faculty Scholarship

The complex pattern of formal and informal rules that governs the taxation of cross-border transactions tends to be thought of as rigidly path dependent. (Rixen, 2011) In truth, the Classification and Assignment Constitution has repeatedly undergone sudden changes initiated by influential actors. A failure to acknowledge the power wielded by a handful of states and organizations nurtures an evolutionary myth of cross-border taxation, but a close examination reveals traces of intelligent design, with repeated interventions altering the course of its development.

A century ago a material constitution coalesced around an elegant but flawed algorithm providing for the "classification and assignment …

Third Party Funding Of Investment Arbitration, Maya Steinitz

Faculty Scholarship

This Essay discusses Third-Party Funding in Investment Arbitration. It describes the rise of third-party funding of investment arbitration; the debate over the definition of litigation/arbitration finance; the forms arbitration finance takes; the normative debate in favor and against third-party funding of investment arbitration; the effects of arbitration funding on the arbitral process; developments in national, international, and soft law governing investment arbitration funding; and the likely effects of third-party funding on the international bar.

Global Laboratories Of Third-Party Funding Regulation, Victoria Sahani

Faculty Scholarship

Third-party funding, also known as "dispute finance," is a controversial, dynamic, and evolving arrangement whereby an outside entity ("the funder") finances the legal representation of a party involved in litigation or arbitration, whether domestically or internationally, on a non-recourse basis, meaning that the funder is not entitled to receive any money from the funded party if the case is unsuccessful.' It has been documented in more than sixty countries on six continents worldwide-including in many of the jurisdictions highlighted in this symposium that are experimenting with other aspects of international commercial dispute resolution. Indeed, funding greases the wheels of this …

Removing Carbon Dioxide Through Ocean Alkalinity Enhancement: Legal Challenges And Opportunities, Romany M. Webb, Korey Silverman-Roati, Michael B. Gerrard

Faculty Scholarship

Many scientists now agree that achieving the 2015 Paris Agreement’s goal of limiting global warming to “well below” 2°C, and ideally to 1.5°C, above pre-industrial levels will require both major reductions in greenhouse gas emissions and the removal of massive amounts of carbon dioxide from the atmosphere. Various terrestrial and ocean-based carbon dioxide removal techniques have been proposed, but further research is needed to evaluate their relative benefits and drawbacks. Initial studies suggest that terrestrial carbon dioxide removal techniques, such as bioenergy with carbon capture and storage, may require large amounts of land, which could lead to conflicts with other …

Banning The Full-Face Veil: Freedom Of Religion And Non-Discrimination In The Human Rights Committee And The European Court Of Human Rights, Sarah H. Cleveland

Faculty Scholarship

What is, or should be, the relationship between claims of violations of the right to manifest one’s religion as a result of a generally applicable law or policy, and claims of indirect discrimination on grounds of religion?

The interrelationship of human rights protections is not a new question. Just as rights may conflict, rights may also overlap. The arrest of a human rights activist for expressing her views could violate both the prohibition against arbitrary detention and her freedom of expression. Excessive use of force against peaceful demonstrators could violate their rights to freedom of assembly, freedom of expression, and …

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Faculty Scholarship

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property?

The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …

Principles Of International Law And The Adoption Of A Market-Based Mechanism For Greenhouse Gas Emissions From Shipping, Hillary Aidun, Daniel J. Metzger, Michael B. Gerrard

Faculty Scholarship

Emissions from shipping are a significant driver of human-induced climate change. International action to date has not succeeded in setting those emissions on a sustainable trajectory. The International Maritime Organization has committed to implementing an effective, international approach to tackle international shipping’s contribution to climate change.

This paper considers international law principles, exploring whether and how these principles may provide a basis for the IMO to address those contributions. The polluter pays principle, which counsels that whoever produces pollution should cover the costs their pollution imposes on others, is a doctrine of international law that offers strong support for the …

Cleaning Corporate Governance, Jens Frankenreiter, Cathy Hwang, Yaron Nili, Eric L. Talley

Faculty Scholarship

Although empirical scholarship dominates the field of law and finance, much of it shares a common vulnerability: an abiding faith in the accuracy and integrity of a small, specialized collection of corporate governance data. In this paper, we unveil a novel collection of three decades’ worth of corporate charters for thousands of public companies, which shows that this faith is misplaced.

We make three principal contributions to the literature. First, we label our corpus for a variety of firm- and state-level governance features. Doing so reveals significant infirmities within the most well-known corporate governance datasets, including an error rate exceeding …

Rbg: Nonprofit Entrepreneur, David M. Schizer

Faculty Scholarship

It is exceedingly rare for one person to change the world almost single-handedly, but Justice Ruth Bader Ginsburg was one of those people. Even before her distinguished judicial career, RBG was a trailblazing advocate for women’s rights during the 1970s. She persuaded the Supreme Court that gender discrimination violates the Equal Protection Clause of the U.S. Constitution, winning five of the six cases she argued there. To lead this historic effort, RBG served as general counsel of the ACLU and as co-founder and the first director of its Women’s Rights Project from 1972 until she became a judge in 1980. …

Making America A Better Place For All: Sustainable Development Recommendations For The Biden Administration, John C. Dernbach, Scott E. Schang, Robert W. Adler, Karol Boudreaux, John Bouman, Claire Babineaux-Fontenot, Kimberly Brown, Mikhail Chester, Michael B. Gerrard, Stephen Herzenberg, Samuel Markolf, Corey Malone-Smolla, Jane Nelson, Uma Outka, Tony Pipa, Alexandra Phelan, Leroy Paddock, Jonathan D. Rosenbloom, William Snape, Anastasia Telesetsky, Gerald Torres, Elizabeth Ann Kronk Warner, Audra Wilson

Faculty Scholarship

In 2015, the United Nations Member States, including the United States, unanimously approved 17 Sustainable Development Goals (SDGs) to be achieved by 2030. The SDGs are nonbinding; each nation is to implement them based on its own priorities and circumstances. This Article argues that the SDGs are a critical normative framework the United States should use to improve human quality of life, freedom, and opportunity by integrating economic and social development with environmental protection. It collects the recommendations of 22 experts on steps that the Biden-Harris Administration should take now to advance each of the SDGs. It is part of …

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Faculty Scholarship

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they …

A Perfectly Empty Gift, Christina D. Ponsa-Kraus

Faculty Scholarship

“Almost citizens.” What does that even mean? It’s like being “kind of pregnant,” isn’t it? In other words, nonsense. Citizenship isn’t an “almost” kind of thing. It’s all or nothing. Unless, I suppose, the word “almost” is used in a simple temporal sense – as in, “Our naturalization ceremony is tomorrow. We’re almost citizens! Yay!” There, the phrase “almost citizens” makes sense. Otherwise not. Right?

Wrong. “Almost citizens,” in a sense as ambiguous as it sounds, is what Almost Citizens: Puerto Rico, the U S Constitution, and Empire is about. “Almost citizens” describes what Puerto Ricans were from 1898, when …

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

Judges And The Deregulation Of The Lawyer's Monopoly, Jessica K. Steinberg, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark

Faculty Scholarship

In a revolutionary moment for the legal profession, the deregulation of legal services is taking hold in many parts of the country. Utah and Arizona, for instance, are experimenting with new regulations that permit nonlawyer advocates to play an active role in assisting citizens who may not otherwise have access to legal services. In addition, amendments to the Rules of Professional Conduct in both states, as well as those being contemplated in California, now allow nonlawyers to have a partnership stake in law firms, which may dramatically change the way capital for the delivery of legal services is raised as …

Competitive Governance And Displacement Decisions Under Rebel Rule: Evidence From The Islamic State In Iraq, Mara Redlich Revkin

Faculty Scholarship

When rebel groups with state-building ambitions capture territory, who stays and why? Through semi-structured interviews and an original household survey in the Iraqi city of Mosul, which was controlled by the Islamic State for more than three years, I conduct a multi-method descriptive comparison of the characteristics of “stayers” against “leavers.” I test and find some quantitative and qualitative support for a theory of competitive governance: Civilians who perceived improvements in the quality of governance under IS rule—relative to the Iraqi state—were more likely to stay under IS rule than those who perceived no change or a deterioration, but displacement …

How Many Latours Is Too Many? Measuring Brand Name Congestion In Bordeaux Wine, Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen

Faculty Scholarship

Firms rely on brand names to market goods to consumers, and consumers rely on brand names to locate goods that satisfy their preferences. If multiple firms are using the same or similar names, consumers may be confused about which product to buy, and firms may not obtain the benefits of their investments in quality. Recently, both firms and scholars in a number of industries have expressed concern about brand name congestion—too many firms clustering around too few terms. This paper applies computational linguistic analysis to chateau names in the Bordeaux wine region to study the degree of brand congestion within …

How To Treat The Wto's Problem With Precedent, Timothy Meyer

Faculty Scholarship

This Article argues that the World Trade Organization’s Appellate Body (AB), or a successor body, must become more transparent in justifying its decision to rely (or not) on prior decisions. The AB’s practice of precedent—which the United States cited as a cause of its decision to paralyze the AB by blocking new appointments—is similar to how it has approached “likeness” in nondiscrimination cases. It placed a lot of weight on whether two cases (or products) are sufficiently similar to be compared, and it spent relatively less time substantively justifying its treatment of prior cases. Because the WTO does not have …

Macromedical Regulation, Barak D. Richman, Steven L. Schwarcz

Faculty Scholarship

The COVID-19 pandemic has dramatically shown that a localized disease can be transmitted to the broader population, nationally and worldwide. This Article analyzes how to design regulation to help control that transmission. To that end, we first observe that existing healthcare regulation focuses almost exclusively on regulating individual components of the medical and healthcare industry, while lacking a capacity to address how those components work together as a system -a system that pandemics can destabilize. Indeed, one factor that contributed to COVID-19's spread was the inability of U.S. healthcare regulation to operate on a societal level, to protect certain components …

Examining Indenture Trustee Duties, Steven L. Schwarcz

Faculty Scholarship

This Chapter examines the duties of indenture trustees appointed under bond indentures. Although their post-default duties generally are subject to a prudent-person standard, indenture trustees have relatively little legal guidance concerning pre-default duties. The rise of activist investors, however, is making it increasingly critical to identify and understand how to perform those duties. This Chapter seeks to provide that understanding.

Industrial Policy And Local Content Rules In Us Energy Policy, Zachary Sturman, Timothy Meyer

Faculty Scholarship

The United States (US) has a long history of using local content requirements (LCRs) – laws, regulations, or governmental measures that condition a benefit, often financial support, on the use of a certain percentage of inputs from the local jurisdiction – to promote the development of favored domestic industries. The energy sector, as well as related infrastructure industries, have been no exception. Historically, the US has used LCRs and similar measures to promote the development of fossil fuel industries. More recent interest by policymakers in the US have spurred the use of local content rules tied to pipeline construction, as …

Clinicians Reflect On Covid-19: Lessons Learned And Looking Beyond, Deborah Archer, Caitlin Barry, Priya Baskaran, Lisa Bliss, Jennifer Fernandez, Crystal Grant, Anju Gupta, Gautam Hans, Julia Hernandez, Vida Johnson, Carolyn Kaas, Alexis Karteron, Shobha Mahadev, Lynnise Pantin, Kele Stewart, Erika Wilson

Faculty Scholarship

As a result of the unprecedented COVID-19 pandemic, clinical faculty had to abruptly adapt their clinical teaching and case supervision practices to adjust to the myriad restrictions brought on by the pandemic. This brought specialized challenges for clinicians who uniquely serve as both legal practitioners and law teachers in the law school setting. With little support and guidance, clinicians tackled never before seen difficulties in the uncharted waters of running a clinical law practice during a pandemic.

In this report, we review the responses of 220 clinicians to survey questions relating to how law clinics and clinicians were treated by …

State-Local Litigation Conflicts, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

Cryptocurrency And The State: An Unholy Alliance, Lee Reiners

Faculty Scholarship

This article contextualizes the rise of cryptocurrency within the historical relationship between money and the state. It begins by asking two simple yet critical questions: What is money and where did it come from? Armed with the answers, the article proceeds by taking a fresh look at cryptocurrency through the lens of the credit theory of money. It finds that cryptocurrency, by using new technologies and incentive-based design, attempts to overcome the previous geographic limitations that hindered broad adoption of private currencies. Even with these innovations, cryptocurrency appeared unlikely to challenge the supremacy of sovereign money until Facebook announced the …

Adolescent Medical Decisionmaking Rights: Reconciling Medicine And Law, Doriane Lambelet Coleman, Philip M. Rosoff

Faculty Scholarship

Dennis Lindberg came into his aunt’s care when he was in the 4th grade because his parents struggled with drug addiction and could not provide for him. At thirteen, he was baptized in his aunt’s faith as a Jehovah’s Witness. Just days after he turned fourteen, on November 6, he was diagnosed with acute lymphoblastic leukemia.

The prognosis was that Dennis had a 75% chance of cure with standard oncology treatment. Consistent with the requirements of his new faith, however, Dennis told his doctors, “I do not want to be treated if the requirement is that I would have to …

The Role Of Norms In Modern-Day Government Ethics, Veronica Root Martinez

Faculty Scholarship

Many scholars, policymakers, advocacy groups, members of the media, and citizens-at-large are lamenting the perceived decrease in adherence to norms and ethics by certain government officials over the past few years. Informal mechanisms—whether they be norms, ethics, customs, or a “gentleman’s word”—have long been relied upon to ensure certain standards of behavior within all aspects of society. The American government is no exception. From America’s founding, the rule of law created the backstop for its governmental processes, but the virtue of its leaders remained a constant component of its success. To be fair, the country has seen more than its …

Fair Innings? The Utilitarian And Prioritarian Value Of Risk Reduction Over A Whole Lifetime, Matthew D. Adler, Maddalena Ferranna, James K. Hammitt, Nicolas Treich

Faculty Scholarship

The social value of risk reduction (SVRR) is the marginal social value of reducing an individual’s fatality risk, as measured by some social welfare function (SWF). This Article investigates SVRR, using a lifetime utility model in which individuals are differentiated by age, lifetime income profile, and lifetime risk profile. We consider both the utilitarian SWF and a “prioritarian” SWF, which applies a strictly increasing and strictly concave transformation to individual utility.

We show that the prioritarian SVRR provides a rigorous basis in economic theory for the “fair innings” concept, proposed in the public health literature: as between an older individual …