Digital Commons Network^™

Pedagogy And Policy: A Tribute To Karen Rothenberg’S Contributions To Health Law, Michael Ulrich

Faculty Scholarship

Professor Karen Rothenberg has had a significant influence on my life, impacting my education, my career, and the way I think. Professor Rothenberg has been a pillar in the health law community, but perhaps her most lasting impact for myself was creating the health law program at the University of Maryland, Francis King Carey School of Law. This nationally recognized program grew from her passion, expertise, and recognition of the importance of health, and is the reason I chose to attend the University of Maryland. The curriculum, faculty, and experience made it one of the best decisions of my life …

Third Country Deportation, Sarah R. Sherman-Stokes

Faculty Scholarship

The large-scale deportation of noncitizens from the United States is not new. However, the speed, and secrecy, by which many of these deportations are carried out is unprecedented. Deportations are, increasingly, executed not through a legal court process, but rather, extrajudicially—in detention centers and at border crossings, outside the purview of judges or neutral adjudicators. One kind of this “shadow deportation” is what I term “third country deportation”—the removal of noncitizens to a country other than that designated by an Immigration Judge, after relief to the designated country has been granted, and after the court proceeding has concluded.

This article …

The Internet As A Speech Machine And Other Myths Confounding Section 230 Reform, Danielle K. Citron, Mary Anne Franks

Faculty Scholarship

A robust public debate is currently underway about the responsibility of online platforms. We have long called for this discussion, but only recently has it been seriously taken up by legislators and the public. The debate begins with a basic question: should platforms should be responsible for user-generated content? If so, under what circumstances? What exactly would such responsibility look like? Under consideration is Section 230 of the Communications Decency Act—a provision originally designed to encourage tech companies to clean up “offensive” online content. The public discourse around Section 230, however, is riddled with misconceptions. As an initial matter, many …

Jurisprudence—Merely Judgment: A Fallibilist Account Of The Rule Of Law, Bruce K. Miller

Faculty Scholarship

How should judges decide the cases presented to them? In our system the answer is, “according to law,” as opposed to the judges’ preferred outcomes. But for at least a century, skeptics have cast doubt on whether adjudication under law is possible. Judge Richard Posner, now retired from the U.S. Court of Appeals for the Seventh Circuit, has, for example, argued that the indeterminacy of legal argument and the influence of judges’ predispositions show that it is not. Judge Posner thus recommends that judges give up on the rule of law in contested cases and instead candidly base their decisions …

Understanding Violent-Crime Recidivism, J. J. Prescott, Benjamin David Pyle, Sonja B. Starr

Faculty Scholarship

People convicted of violent crimes constitute a majority of the imprisoned population but are generally ignored by existing policies aimed at reducing mass incarceration. Serious efforts to shrink the large footprint of the prison system will need to recognize this fact. This point is especially pressing at the time of this writing, as states and the federal system consider large-scale prison releases motivated by the COVID-19 pandemic. Those convicted of violent crimes constitute a large majority of older prisoners, who are extremely vulnerable to the spread of the virus behind bars. Excluding them from protective measures will deeply undermine those …

Is Transformative Use Eating The World?, Clark Asay, Arielle Sloan, Dean Sobczak

Faculty Scholarship

Fair use is copyright law’s most important defense to claims of copyright infringement. This defense allows courts to relax copyright law’s application when courts believe doing so will promote creativity more than harm it. As the U.S. Supreme Court has said, without the fair use defense, copyright law would often “stifle the very creativity [it] is designed to foster.” In today’s world, whether use of a copyrighted work is “transformative” has become a central question within the fair use test. The Supreme Court first endorsed the transformative use term in its 1994 Campbell v. Acuff-Rose Music, Inc. decision. Since then, …

Impoverished Ip, Stephanie Plamondon

Faculty Scholarship

Intellectual Property (IP) scholarship is generally concerned with how innovation policy impacts social welfare by providing appropriate incentives for innovation. But lately, the question of who participates in IP creation — with an eye to distributive justice as well as social welfare more broadly — has been getting more attention. Most scholars writing in this vein acknowledge IP’s shortcomings in achieving proportionate participation and representation across socioeconomic, race, and gender lines. But many argue that in spite of these flaws, IP regimes can advance distributive justice by giving the poor and other members of disadvantaged groups opportunities to accumulate wealth …

Class Action Squared: Multistate Actions And Agency Dilemmas, Elysa Dishman

Faculty Scholarship

As the Supreme Court continues to restrict the reach of private class actions, numerous commentators have championed public enforcement actions by state attorneys general (AGs) as a superior alternative to hold corporations accountable for misconduct. While AG actions fill some of the void left by the forced retreat of the private class action, few scholars have seriously considered whether the agency problems that exist in private class actions also occur in AG actions. And, until now, no scholar has recognized the unique agency problems that arise when AGs act together in multistate actions.

Multistate actions are made up of two …

Autonomy And Precautions In The Law Of Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

Already a controversial topic, legal debate and broader discussions concerning the amount of human control required in the employment of autonomous weapons—including autonomous cyber capabilities—continues. These discussions, particularly those taking place among States that are Parties to the 1980 Certain Conventional Weapons Convention, reveal a complete lack of consensus on the requirement of human control and serve to distract from the more important question with respect to autonomy in armed conflict: under what conditions could autonomous weapons “select” and “attack” targets in a manner that complies with the law of armed conflict (LOAC).

This article analyzes the specific LOAC rules …

A No-Contest Discharge For Uncollectible Student Loans, Matthew Bruckner, Brook Emerald Gotberg, Dalié Jiménez, Chrystin Ondersma

Faculty Scholarship

Over forty-four million Americans owe more than $1.6 trillion in student loan debt. This debt is nearly impossible to discharge in bankruptcy. Attempting to do so may require costly and contentious litigation with the Department of Education. And because the Department typically fights every case, even initial success can be followed by years of appeals. As a result, few student loan borrowers attempt to discharge their student loan debt in bankruptcy.

In this Article, we call on the Department of Education to develop a set of ten easily ascertainable and verifiable circumstances in which it will not contest a debtor’s …

Multilayered Criminal (F)Laws, Michael T. Cahill

Faculty Scholarship

No abstract provided.

Investment Misconceived: The Investment-Commerce Distinction In International Investment Law, Stratos Pahis

Faculty Scholarship

No abstract provided.

Three Conceptions Of Corporate Crime (And One Avenue For Reform), Miriam H. Baer

Faculty Scholarship

No abstract provided.

Blasting Reproach And All-Pervading Light: Frederick Douglass’S Aspirational American Exceptionalism, Lucy Williams

Faculty Scholarship

Some scholars critique American exceptionalism as a proud, uncritical orientation. In this article, however, I argue that Frederick Douglass, an outspoken social critic, qualifies as an American exceptionalist thinker. I first identify and theorize two modes of exceptionalist rhetoric: accomplished exceptionalism, which is self-celebratory and largely uncritical, and aspirational exceptionalism, which is self-critical and reflective. I then provide a close reading of “What to the Slave Is the Fourth of July” to show how Douglass employs aspirational rhetorical techniques. Finally, I discuss the benefits of reading Douglass as an exceptionalist thinker and suggest that his aspirational rhetoric activates reflective and …

Braided Agreements And The New Frontiers Of Relational Contract Theory, Matthew Jennejohn

Faculty Scholarship

This Article, written for a symposium at Wharton celebrating Ron Gilson's scholarship, assesses Gilson, Sabel & Scott's "braided contracting" thesis, presented in their 2010 article, Braiding: The Interaction of Formal and Informal Contracting in Theory, Practice, and Doctrine. Focusing particularly on the application of the braiding thesis to preliminary agreements, this Article presents new evidence of a preliminary negotiation process called "alpha contracting," used from time to time by the Department of Defense in sole-source situations, that exhibits many of the key characteristics of braided contracting's logic. The piece then turns to the limits of the braiding thesis, identifying a …

Transformation Cost Engineering, Matthew Jennejohn

Faculty Scholarship

Transactions in the market for corporate control are not fully standardized but rather exhibit a material amount of variation. This paper explores a possible structural explanation: That the complexity of merger and acquisition (M&A) agreements makes them susceptible to multiple sources of path dependency, which introduce tensions that unsettle incentives toward uniform standardization. Using natural language processing techniques and standard regression analysis, the article presents preliminary evidence indicating that the level of standardization of various M&A agreement provisions correlates differently with multiple sources of path dependency, lending support to the hypothesis that endogenous structural factors limit the standardization of M&A …

Big Brother, Othello, And Dogs That Don't Bark: The Use Of Literary Allusion In Federal Appellate Opinions, Kristin B. Gerdy

Faculty Scholarship

Unlike a fish, in the words of Justice Elena Kagan, a literary5 allusion is not “a discrete thing that possesses physical form”6 distinguishable from other expressive devices. Instead, literary allusions can take many forms, be used for many purposes, and have various effects on the reading audience. If the most basic form of a fish is the common goldfish in a bowl, then the most basic judicial literary allusion is a reference to a well-known story in a judicial opinion that is used to make a comparison in a reader’s mind. But just as there are many types of fish …

World Peace And Gender Equality: Addressing Un Security Council Resolution 1325’S Weaknesses, Eric Talbot Jensen, Elizabeth Griffiths, Sara Jarman

Faculty Scholarship

The year 2020 marks the twentieth anniversary of the passage of United Nations Security Council Resolution (“UNSCR”) 1325, the most important moment in the United Nations’ efforts to achieve world peace through gender equality. Over the past several decades, the international community has strengthened its focus on gender, including the relationship between gender and international peace and security. National governments and the United Nations have taken historic steps to elevate the role of women in governance and peacebuilding. The passage of UNSCR 1325 in 2000 foreshadowed what many hoped would be a transformational shift in international law and politics.

However, …

Cyber Pillage, Christopher Greulich, Eric Talbot Jensen

Faculty Scholarship

Despite its historically narrow application under International law, in today’s digital age, usage of the term “pillage” has expanded to include the theft of intellectual property carried out by cyber means. The modern usage notwithstanding, it appears the law of armed conflict still limits liability for pillage to the non-consensual takings of public or private property by members of armed forces and affiliated non-state actors during armed conflict for private or personal use. This article applies the historical perspective to modern cyber activities, including those on and off the battlefield, and clarifies that while many activities do not rise to …

The (Erroneous) Requirement For Human Judgment (And Error) In The Law Of Armed Conflict, Eric Talbot Jensen

Faculty Scholarship

One of the most intriguing and important discussions in international law today is the potential impact of emerging technologies on the law of armed conflict (LOAC), including weapons that incorporate machine learning and/or artificial intelligence. Because one of the likely characteristics of these advanced weapons would be the ability to make decisions implicating life and death on the battlefield, these discussions have highlighted a fundamental question concerning the LOAC: does the law regulating armed conflict require human input in selecting and engaging targets or can that decision be made without human input? This article analyzes views expressed by scholars and …

A Future For Paris? Federalism, The Law Of Nations, And U.S. Courts, Jamison E. Colburn

Faculty Scholarship

The 'We Are Still In' movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of "dormant" preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid …

Schrodinger's Corporation: The Paradox Of Religious Sincerity In Heterogeneous Corporations, Catherine A. Hardee

Faculty Scholarship

Consider a corporation where one group of shareholders holds sincere religious beliefs and another group of shareholders does not share those beliefs but, for a price, will allow the religious shareholders to request a religious exemption to a neutrally applicable law on behalf of the corporation. The corporation is potentially both religiously sincere and insincere at the same time. A claim by the corporation for a religious accommodation requires the court to solve the paradox created by this duality and to declare the corporation, as a whole, either sincere or insincere in its beliefs. Although the Supreme Court and scholars …

Women Law Deans, Gender Sidelining, And Presumptions Of Incompetence, Laura M. Padilla

Faculty Scholarship

Discussions of presumptions of incompetence and gender sidelining all address challenges that women, especially women of color, face in leadership roles. This Article explores these topics in the context of law deans.

This Article starts with updated data on the number of women law deans, including women of color, and demonstrates increased numbers of both women and women of color in deanships. It then shifts to plausible explanations for this growth: some optimistic and some more skeptical. It may be no coincidence that as the job became less desirable, women were appointed in greater numbers.

Next, this Article provides narrative …

Disgorging Harvey Weinstein's Salary, Jessica K. Fink

Faculty Scholarship

Harvey Weinstein dramatically altered the way that people view sexual harassment in the workplace. While workplace sexual harassment is far from a new phenomenon – with many perpetrators of such harassment (including Weinstein himself) having gotten away with this misbehavior for decades – the exposure of Weinstein’s misdeeds opened the floodgates, leading countless women from a variety of work environments to share their own experiences with sexual harassment at work. As the #MeToo movement has continued to occupy the headlines, workplace harassment has begun to seem as ubiquitous as it is distressing.

This intensified spotlight on sexual harassment has exposed …

Abortion Regulation As Compelled Speech, Laura Portuondo

Faculty Scholarship

No abstract provided.

Ethical Blind Spots In Adoption Lawyering, Malinda L. Seymore

Faculty Scholarship

Lawyers engaged in adoption work often call it “happy law,” and consider adoption – finding a child for yearning parents, finding parents for a needy child – an unmitigated good. That attitude can mask the fact that all adoption begins with loss. One family loses a child so that another family can gain one. A lawyer’s assurance that she is engaged in positive work can lead to ethical blind spots that ignore the complexities of adoption practice. And while the touchstone of adoption is the best interests of the child, the primacy in legal ethics of the interests of the …

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo J. Garcia Sanchez

Faculty Scholarship

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection violation.

African-American …

In Times Of Chaos: Creating Blueprints For Law School Responses To Natural Disasters, Jeffrey R. Baker, Christine E. Cerniglia, Davida Finger, Luz E. Herrera, Jonel Newman

Faculty Scholarship

A recent onslaught of domestic natural disasters created acute, critical needs for legal services for people displaced and harmed by storms and fires. In 2017, Hurricanes Harvey, Irma, Maria and Michael struck much of Texas, Florida, and Puerto Rico, displacing millions from their homes. Wildfires burned throughout California and tested the capacity of pro bono and legal aid systems across the state. In 2018, Hurricane Florence flooded North Carolina, and Hurricane Michael devastated the Florida Panhandle. California again suffered wildfires, the largest and most devastating in recorded history. Natural disasters are both more common and more destructive, the “new abnormal.” …

Why Protect Unauthorized Workers? Imperfect Proxies, Unaccountable Employers, And Antidiscrimination Law's Failures, Angela D. Morrison

Faculty Scholarship

This article explores a gap in the scholarship regarding the unauthorized workplace. It describes and names the two main justifications on which advocates and courts have relied to extend federal antidiscrimination protections to unauthorized workers. First, the proxy justification insists that workplace protections must include unauthorized workers because their protection is necessary to protect U.S. citizen and authorized workers. Second, the deterrence/accountability justification states that workplace protections must include unauthorized workers because it will deter employers from future violations of antidiscrimination laws and hold them accountable for violations of immigration law. While these justifications have led to some protection for …