Digital Commons Network^™

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Variation exists in how death examinations take place in the United States. In some counties and states decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner. In other counties and states, an appointed medical professional performs the death examination. We provide preliminary tests of the difference in performance between death examination offices run by appointed medical professionals compared with elected coroners. We find that death examiner offices in elected coroner states are less likely to …

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Faculty Scholarship

No abstract provided.

Family Reunification And The Security State, Kerry Abrams

Faculty Scholarship

No abstract provided.

The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett

Faculty Scholarship

"Scientific evidence really nails this man to the wall," the Harris County, Texas prosecutor told the jurors in closing statements. At trial, George Rodriguez claimed he was innocent and that he had been working a factory the day of the crime. The prosecutor emphasized, however, that the blood type of swabs taken from the victim showed that Rodriguez did commit the crime and that a hair from the crime scene matched him. But seventeen years later, the same hair was tested again, this time using DNA analysis, and the evidence cleared Rodriguez and ultimately led to the crime crime lab …

The American Death Penalty Decline, Brandon L. Garrett, Alexander Jakubow, Ankur Desai

Faculty Scholarship

American death sentences have both declined and become concentrated in a small group of counties. In his dissenting opinion in Glossip v. Gross in 2014, Justice Stephen Breyer highlighted how from 2004 to 2006, "just 29 counties (fewer than 1% of counties in the country) accounted for approximately half of all death sentences imposed nationwide." That decline has become more dramatic. In 2015, fifty-one defendants were sentenced to death in thirty-eight counties. In 2016, thirty-one defendants were sentenced to death in twenty-eight counties. In the mid-1990s, by way of contrast, over 300 people were sentenced to death in as many …

The Decline Of The Virginia (And American) Death Penalty, Brandon L. Garrett

Faculty Scholarship

The American death penalty is disappearing. Death sentences and executions have reached the lowest levels seen in three decades. Even the states formerly most aggressive in pursuit of death sentences have seen death sentences steadily decline. Take Virginia, which has the highest rate of executions of any death penalty state, and which has executed the third highest number of prisoners since the 1970s. How times have changed. There has not been a new death sentence in Virginia since 2011. Only seven counties have imposed death sentences in the past decade in Virginia. There are now two or fewer trials a …

The Public Interest In Corporate Settlements, Brandon L. Garrett

Faculty Scholarship

Corporate settlements are proliferating in form and function. They include consent decrees, corporate integrity agreements, deferred prosecution agreements, non-prosecution agreements, leniency agreements, and plea bargains. Enforcers at the federal and state level enter an array of administrative, civil, and criminal resolutions of enforcement actions against companies. The reach of these settlements is global, and corporate fines have reached new records, with penalties in the hundreds of billions of dollars affecting entire industries and economies. These settlements have not been studied together as a subject, perhaps because they span very different fields, from antitrust to banking, environmental law, health law, and …

A Tactical Fourth Amendment, Brandon L. Garrett, Seth Stoughton

Faculty Scholarship

What rules regulate when police can kill? As ongoing public controversy over high-profile police killings drives home, the civil, criminal, and administrative rules governing police use of force all remain deeply contested. Members of the public may assume that police rules and procedures provide detailed direction for when officers can use deadly force. However, many agencies train officers to respond to threats according to a force "continuum" that does not provide hardedged rules for when or how police can use force or deadly force. Nor, as recent cases have illustrated, does a criminal prosecution under state law readily lend itself …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Heuristic Interventions In The Study Of Intellectual Property, Jessica Silbey

Faculty Scholarship

In this Essay, I review and elaborate on Dan's Burk's On the Sociology of Patenting with three "heuristic interventions" for the study of intellectual property law. These interventions derive from sociology and anthropology, and to some extent also from critical literary theory. Unoriginal in the social sciences, these heuristic interventions remain largely original to the study of law within law schools and traditional legal scholarship (as opposed to the study of law from within the social sciences and humanities). Burk joins a small but growing group of legal scholars, reaching beyond legal doctrinal analysis and the economic analysis of law …

Income Taxation And Asset Valuation (Ii) The Value Of Preferential Taxation, Theodore S. Sims

Faculty Scholarship

The predecessor to this Article explored the properties of an income tax that uses economic depreciation in measuring capital income. This Article investigates some fundamental properties of an income tax that does not. The predecessor illuminated the equivalence between economic depreciation and accrual taxation, and highlighted the insight, due to Paul Samuelson, that either produces asset values that are independent of their holders' marginal rates, even in a system with graduated rates (and even if those rates vary over time). The current Article explores in qualitative terms the value of "preferential" departures from valuation-neutral taxation.

Chevron Is A Rorschach Test Ink Blot, Jack M. Beermann

Faculty Scholarship

I agree with Alan Morrison that, in some circumstances, courts should defer to legal determinations made by administrative agencies. I disagree, however, with Alan’s view that Chevron provides a suitable framework for such deference. It really boils down to my disagreement with the first sentence of Alan’s article: “In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them.”1 In fact, the Supreme Court adopted nothing in Chevron related to …

Patent Pacifism, Clark D. Asay

Faculty Scholarship

Over the last decade, much of the patent law literature has focused on the problem of “patent trolls,” or patent owners who don’t make products, but sue others that do. The basic complaint against these types of entities is that they impose a tax on innovation without providing offsetting societal benefits. Furthermore, their patent assertions have been on the rise, with a significant percentage of patent suits now attributable to them. In short, the troll phenomenon suggests a problem of excessive patent assertions.

But despite the importance of the troll phenomenon, the fact remains that most patents are never asserted, …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Patenting Elasticities, Clark D. Asay

Faculty Scholarship

Over the last decade, a growing consensus has emerged: there are too many patents, and they are causing a host of problems. These problems include patent “trolling,” patent “wars,” and other wasteful societal costs. In explaining this patent overabundance, some scholars have pinpointed the United States Patent Office, the governmental body responsible for issuing patents, as the main culprit. Others have blamed patent holders themselves, identifying a number of incentives these parties have to pursue patents even in cases where doing so makes little economic sense. Overall, these analyses thus typically assume a high and relatively uniform demand for patents …

Review Of Bind Us Apart: How Enlightened Americans Invented Racial Segregation By Nicholas Guyatt, Robert L. Tsai

Faculty Scholarship

Legal historian Nicholas Guyatt argues in "Bind Us Apart: How Enlightened Americans Invented Racial Segregation" (Basic 2016), that racial segregation was created not by enemies of equality but rather by friends of equality in order to establish practical limits on their disruptive ideas. Drawing on rich sources, he says liberals pursued separationist policies not only to manage the social experience of slaves and former slaves, but also native peoples. Here I make the following points: (1) Guyatt doesn't distinguish between temporary, strategic resort to segregation from deeper philosophical commitments to segregation; (2) juxtaposing the plight of African slaves in America …

Fidelity To Our Imperfect Constitution: A Response To Five Views, James E. Fleming

Faculty Scholarship

In my recent book, Fidelity to Our Imperfect Constitution, I put forward a sustained critique of originalism in all its forms and defend what Ronald Dworkin called a "moral reading" of the U. S. Constitution and what Sotirios A. Barber and I have called a "philosophic approach" to constitutional interpretation. In this essay for the UNAM symposium on the book, I reply to five thoughtful commentaries. First, as against Barber's commentary, I justify responding to the "persistent resurgence of originalism" and attempting to "save the new originalists from themselves" by showing the extent to which many of them acknowledge …

A Research Agenda For The History Of Property Law In Europe, Inspired By And Dedicated To Marc Poirier, Anna Di Robilant

Faculty Scholarship

Proposes the following research agenda: (a) understanding the relation between property and long-term economic change by focusing on the relation between property law and what historians call "social property" relations; (b) understanding property concepts and ideas in the context of the larger ideological and philosophical ideas that shaped the immediate world of jurists and property lawyers; (c) looking beyond the single, contingent episodes of the history of property law and identifying longterm patterns and regularities in the way jurists conceptualized property; and (d) understanding European property culture in its many entanglements with the non-European world.

Trusting Big Data Research, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

Although it might puzzle or even infuriate data scientists, suspicion about big data is understandable. The concept doesn’t seem promising to most people. It seems scary. This is partly because big data research is shrouded in mystery. People are unsure about organizations’ motives and methods. What do companies think they know about us? Are they keeping their insights safe from hackers? Are they selling their insights to unscrupulous parties? Most importantly, do organizations use our personal information against us? Big data research will only overcome its suspicious reputation when people can trust it.

Some scholars and commentators have proposed review …

Abortion In A Post-Truth Moment: A Response To Erwin Chemerinsky And Michele Goodwin, Aziza Ahmed

Faculty Scholarship

In Abortion: A Woman’s Private Choice, Erwin Chemerinsky and Michele Goodwin respond to the crisis of abortion rights in our current political moment. While preserving the right to abortion is an ongoing challenge for reproductive-justice advocates and lawyers, the arrival of a new Republican administration led by Donald Trump and a Republican majority in the House and Senate heightens these concerns. In the face of ongoing and new threats to abortion access, Chemerinsky and Goodwin argue that abortion should be treated as a woman’s private choice. I agree with Chemerinsky and Goodwin, as all supporters of abortion rights should. …

On Questioning Automation, Woodrow Hartzog

Faculty Scholarship

Given the rapid pace of innovation and adoption, it can be hard to make sense of automated technologies. New products that leverage algorithms and artificial intelligence seem to be both promising and frightening. Law and policymakers, as well as the general public, are grappling with when to be excited and when to be concerned. If you're confused, you're not alone

Financing The Benefit Corporation, Dana Brakman Reiser, Steven A. Dean

Faculty Scholarship

The hybrid organizational forms designed with social enterprises in mind have proven to be hothouse flowers. Flourishing in state legislatures, even those with the most distinguished pedigrees-such as Delaware's public benefit corporation'-have so far failed to thrive in the marketplace. Fortunately, hybrid financial instruments offer a source of strength and stability that can help social enterprise to take root.

This Article examines the valuable role that financial instruments can play in providing social enterprises with the capital they need to grow. Debt with equity features and equity with debt characteristics constitute the lion's share of such financial tools. More exotic …

Paying For Attendance: Using Incentives To Combat Chronic Absenteeism, Madeline H. Meth

Faculty Scholarship

Students with poor attendance miss opportunities to learn social and academic skills.' They perform worse on achievement tests. ² They are also less likely to graduate.³ A student who misses school in as early as the first grade is significantly more likely to eventually drop out of high school.⁴ Individuals who drop out see a significant loss in earnings and are more likely to be jobless; women who drop out make about 60% of what female high-school graduates earn, and men who do not graduate lose approximately $9,564 in annual wages. Because high-school dropouts earn less than those …

Agency Imprimatur & Health Reform Preemption, Elizabeth Mccuskey

Faculty Scholarship

At this moment, there exists nearly unanimous agreement that the American health care system requires reform, but also vehement disagreements over what form regulation should take and who should be in charge of regulating—state or federal authorities. Preemption doctrine typically referees disputes between federal and state regulatory efforts, but it also exacerbates them. There exists nearly as unanimous opinion that preemption doctrine in health law is a mess. This Article identifies an inventive structure that may help defuse some preemption problems in health reform.

The Affordable Care Act’s (ACA) individual and employer mandates, health insurance exchanges, and insurance coverage standards …

Amicus Curaie, Submitted Susan Akram, Susan M. Akram

Faculty Scholarship

Summary of Argument

Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world. As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees.

Three main reasons …

Imagining Equity And Inclusion: South Africa's International Economic Politics And Reflections On The Writings Of Justice Dikgang Moseneke, Erika George

Faculty Scholarship

In honour of Justice Dikgang Moseneke, this essay takes up his invitation to imagine an ethos consistent with South African Constitutionalism, one which could promote economic justice. This essay explores how the tools of international economic law as utilised by South Africa could serve as a means of transformation to advance the end of a more inclusive economic globalisation. South Africa's trade policies and participation in international business and human rights policy initiatives are offered as illustrations of a shift towards asserting interests aligned with the country's constitutional economic justice commitments. First, emphasising Justice Moseneke's writings outside of his rulings …

A License To Kill: State Sponsored Death In The Oldest Colony In The World, Emmanuel Hiram Arnaud

Faculty Scholarship

The article discusses the death penalty in Puerto Rico as a means of state violence by the United States over Puerto Rico. In light of this, the author recounts the Puerto Rican colonial experience through a legal lens, beginning with the first organic law of Puerto Rico and the Insular Cases. Afterwards, the author examines the imposition of the death penalty on Puerto Rico and the challenges it has faced based on the due process of the fourteenth amendment. The article concludes with the stating how the death penalty is as another expression of the U.S. Congress plenary powers over …

The Future Of Law As A Profession, Nancy J. Moore

Faculty Scholarship

For far too many years, lawyers and commentators have debated whether law is a profession or merely a business. The so-called business-profession dichotomy is somewhat of a misnomer. For many, maybe most lawyers, law is clearly a business in the sense that these lawyers seek to maximize their individual wealth as much (or as little) as other business persons. More importantly perhaps, lawyers in private practice widely acknowledge that adopting improved business practices is critical to providing competent legal services. The question remains however, whether, unlike some other commercial occupations, law is also a profession and if so, what is …

Review Of Punishment In Popular Culture By Charles Ogletree Jr. & Austin Sarat, Eds., Jessica Silbey

Faculty Scholarship

The editors of Punishment in Popular Culture remind us that "through practices of punishment ... cultural boundaries are drawn, that solidarity is created through acts of marking difference between self and other, that these processes proceed through disidentification as much as imagined connection." (p. 2) This is no doubt true about the organization, justification and reception of various forms of punishment in society. It is no less true about the creation and cultivation of popular cultural forms of entertainment such as television and film. To be sure, punishment acts directly on bodies. And cultural forms-visual or texual stories about punishment …