Digital Commons Network^™

"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher

Faculty Scholarship

No abstract provided.

The Failed Transparency Regime For Executive Agreements: An Empirical And Normative Analysis, Oona A. Hathaway, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

The Constitution specifies only one process for making international agreements. Article II states that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” The treaty process has long been on a path to obsolescence, however, with fewer and fewer treaties being made in each presidential administration. Nevertheless, the United States has not stopped making international agreements. Even as Article II treaties have come to a near halt, the United States has concluded hundreds of binding international agreements each year. These agreements, known as …

Empty Chairs, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Genetic Race? Dna Ancestry Tests, Racial Identity, And The Law, Trina Jones, Jessica L. Roberts

Faculty Scholarship

Can genetic tests determine race? Americans are fascinated with DNA ancestry testing services like 23andMe and AncestryDNA. Indeed, in recent years, some people have changed their racial identity based upon DNA ancestry tests and have sought to use test results in lawsuits and for other strategic purposes. Courts may be similarly tempted to use genetic ancestry in determining race. In this Essay, we examine the ways in which DNA ancestry tests may affect contemporary understandings of racial identity. We argue that these tests are poor proxies for race because they fail to reflect the social, cultural, relational, and experiential norms …

Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah Britton-Purdy

Faculty Scholarship

We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …

How Conceptual Art Challenges Copyright's Notions Of Authorial Control And Creativity, Christopher Buccafusco

Faculty Scholarship

No abstract provided.

Assessing The Experiential (R)Evolution, Allison Korn, Laila L. Hlass

Faculty Scholarship

For more than a century, law schools have resisted substantial reforms relating to experiential education. Yet, in 2014, the ABA mandated a six-credit experiential course graduation requirement for law schools, alongside a packet of experiential curriculum amendments. Proponents of experiential education had hoped for a fifteen-credit mandate, aligning law schools with other professional schools that require one-quarter to one-third skills training. Still, six credits is significant, potentially marking a striking shift in the direction of legal education. To date, no one—including the ABA—has broadly evaluated the post-mandate legal education experiential landscape. It is particularly urgent to consider recent shifts in …

Avoiding Judicial Discipline, Veronica Root Martinez

Faculty Scholarship

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …

Complex Compliance Investigations, Veronica Root Martinez

Faculty Scholarship

Whether it is a financial institution like Wells Fargo, an automotive company like General Motors, a transportation company like Uber, or a religious organization like the Catholic Church, failing to properly prevent, detect, investigate, and remediate misconduct within an organization’s ranks can have devastating results. The importance of the compliance function is accepted within corporations, but the reality is that all types of organizations—private or public—must ensure their members com­ply with legal and regulatory mandates, industry standards, and internal norms and expectations. They must police thousands of members’ compli­ance with hundreds of laws. And when compliance failures occur at these …

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …

Fossil Fortunes: Regulating Commercial Paleontology & Incentivizing Fossil Discovery, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

Competing For Votes, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Shareholder voting matters. It can directly shape a corporation’s governance, operational and social policies. But voting by shareholders serves another important function—it produces a marketplace for votes where management and dissidents compete for the votes of the shareholder base. The competition over shareholder votes generates ex ante incentives for management to perform better, to disclose information to shareholders in advance, and to engage with large institutional investors.

Traditional corporate law has looked to a variety of “market forces” as a means of curbing the agency costs of public corporations. Yet, for various reasons, these market forces are, at best, an …

Changing The Law To Change Policing: First Steps, Barry Friedman, Brandon L. Garrett, Rachel Harmon, Christy E. Lopez, Tracey L. Meares, Maria Ponomarenko, Christopher Slobogin, Tom R. Tyler

Faculty Scholarship

Recent events have brought to the fore longstanding concerns about the nature of policing in the United States and how it undermines racial equity. As an institution, policing needs significant reconsideration. It is time to rethink the structure and governance of policing. It is also time to engage in a deeper conversation about the meaning of public safety. In the meantime, however, the following is a list of urgently-needed reforms, compiled by a small group of law school faculty, each of whom runs or is associated with an academic center devoted to policing and the criminal justice system. The reforms …

Policing The Schoolhouse, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Judging Eyewitness Evidence, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Justice In Forensic Algorithms, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Virtual Criminal Courts, Deniz Ariturk, William E. Crozier, Brandon L. Garrett

Faculty Scholarship

Criminal courtrooms are among many workplaces to shut down and adopt virtual operations in response to the coronavirus pandemic. As criminal courts around the United States suspended in-person proceedings, virtual hearings, where parties appear through videoconference or teleconference technology, have allowed courts to remain in session while reducing the danger to public health. Courts at all levels, from small municipal courts to the U.S. Supreme Court, have been hearing arguments remotely. In 38 states, as well as the District of Columbia and Puerto Rico, courts have either mandated or encouraged the use of virtual hearings when appropriate. Federal courts …

Undeliverable: Suspended Driver's Licenses And The Problem Of Notice, Brandon L. Garrett, Karima Modjadidi, William Crozier

Faculty Scholarship

In North Carolina, one in seven adult drivers currently has a suspended license for nondriving related reasons. As in many other states, in North Carolina, driver’s licenses are commonly suspended, for reasons unrelated to safety, when a person fails to appear in court in response to notice of a traffic court date or fails to pay traffic fines. Notices of traffic court dates are sent by mail, typically to the address on record at the Department of Motor Vehicles, as are subsequent notices that the consequence for nonappearance will be a driver’s license suspension. To better understand the effects of …

Congress Must Provide Real Aid To People In The Next Stimulus Package, Pamela Foohey, Sara Sternberg Greene

Faculty Scholarship

No abstract provided.

What Explains Taxation By Resource-Rich Rebels? Evidence From The Islamic State In Syria, Mara R. Revkin

Faculty Scholarship

Greed-based theories of civil war predict that rebel groups will only engage in taxation and other state-building activities in areas where they lack exploitable resources. However, this prediction is contradicted by the Islamic State’s pattern of taxation across time and space. A new data set mapping seven types of revenue-extracting policies imposed by the Islamic State, a jihadist rebel group, in the 19 Syrian districts that it governed between 2013 and 2017 indicates that these policies were just as prevalent in resource-rich as in resource-poor districts. I propose a new theory that better explains this pattern—a rebel group’s pattern of …

Interbranch Information Sharing: Examining The Statutory Opinion Transmission Project, Marin K. Levy, Tejas N. Narechania

Faculty Scholarship

No abstract provided.

Digging Into Algorithms: Legal Ethics And Legal Access, Carla L. Reyes, Jeff Ward

Faculty Scholarship

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions …

Indenture Trustee Duties: The Pre-Default Puzzle, Steven L. Schwarcz

Faculty Scholarship

This Article addresses a topic at the intersection of finance, agency, contract, and trust law: the pre-default duties of an indenture trustee for bondholders. The existing scholarship on indenture trustee duties focuses on the post-default scenario, when the indenture trustee is required to act as a prudent person in like circumstances on behalf of the bondholders. No prior scholarship addresses an indenture trustee’s predefault duties. It is critical to try to define those duties because activist investors in the $42-trillion-plus bond market increasingly are making pre-default demands on indenture trustees, requiring them to know how to respond.

Soft Law As Governing Law, Steven L. Schwarcz

Faculty Scholarship

International business transactions increasingly are being conducted under “soft law”—a term referring to non-state rules that may be aspirational or reflect best practices but are not yet legally enforceable. In part, this shift reflects a decline in cross-border treaty-making, which needs widespread consensus and is subject to lengthy negotiations. Soft law’s lack of enforceability, however, is creating uncertainty and undermining predictability. To increase predictability, this Article argues for an innovative use of soft law: as a set of rules to choose as the governing “law” of business contracts. This use of soft law would be transformational, making the soft law …

Shareholder-Driven Stakeholderism, Cathy Hwang, Yaron Nili

Faculty Scholarship

For last two decades, scholars, judges, and corporations have embraced the idea that corporations should maximize benefit for shareholders. But on a lazy summer day in August of 2019, that changed. The CEOs of nearly 200 major U.S. companies released a statement embracing stakeholder theory—the idea that corporations should look after the needs of not only shareholders, but also those of employees, suppliers, community members, and others. Many applauded this as a progressive step: a way for corporations to take control back from the outsized, greedy influence of profit-driven shareholders. This Essay takes a different view, arguing that shareholders have …

The Importance Of Qualitative Research Approaches To Gig Economy Taxation, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

As the United States tax system continues to grapple with how to tax workers in the gig economy, it confronts a number of questions about the nature and composition of the sector as well as the tax issues confronted by its participants. Many of these questions have proven difficult to answer due to a lack of adequate information. But the answers are important and will shape how tax and other areas of law (such as employment law, labor law, and antitrust) respond to the gig economy. Thus, the question of how to obtain the data and information necessary to formulate …

Comment On Griffith’S Deal Insurance: The Continuing Scramble Among Professionals, Abraham Cable

Faculty Scholarship

In his recent article, Professor Sean Griffith observes a substantial market. Increasingly, buyers and sellers replace traditional deal terms with an insurance product—representation and warranty insurance (“RWI”). This essay considers how this new product and the insurance professionals who sell and underwrite it affect the traditional role of M&A lawyers. It concludes that RWI, in its present form, does not substantially encroach on the traditional role of M&A lawyers. But it also notes that representations and warranties are ripe for technological innovation and that insurance professionals may be better positioned then lawyers to seize the opportunity.

Neurotic: Neuroscience Tool For Interactive Characterization, Hillel J. Chiel

Faculty Scholarship

A software tool for synchronization of video with signals would be of broad general use to behavioral neuro-scientists. A new program, called neurotic (NEUROscience Tool for Interactive Characterization), allows users to review and annotate signal data synchronized with video, performs simple initial analyses including signal filtering and spike detection, is easy to use, and supports a variety of file formats. The program also facilitates collaborations by using a portable specification for loading and processing data and retrieving data files from online sources. Two examples are shown in which the software is used to explore experimental datasets with extracellular nerve or …

The U.S. Posture On Global Access To Medication & The Case For Change, Michael Palmedo, Srividhya Ragavan

Faculty Scholarship

The year 2020 marks the 25th anniversary of including intellectual property rights within the larger agenda of trade. While the marriage between trade and intellectual property was always uncomfortable, COVID-19 exposed the flaws, failures and the inadequacy of the trade agenda to harmonise intellectual property rights, particularly for patents in pharmaceuticals. Typically, the United States through its questionable United States Trade Representative (USTR) process exposed the vulnerabilities of the intellectual property systems of the rest of the world. COVID-19 exposed the manner in which the so-called ‘superior’ intellectual property regime of the US left the country with a weak health-care …

Commentary On Meritor Savings Bank, Fsb V. Vinson, Trina Jones

Faculty Scholarship

No abstract provided.