Digital Commons Network^™

When Is Free Speech “Beyond” The Constitution?, Abner S. Greene

Faculty Scholarship

The constitution of a nation without a state action doctrine might limit private restriction or compulsion of speech just as it limits the state. In such a nation, “free speech beyond the constitution” might not be a particularly meaningful concept. In the United States, however, the First Amendment’s free speech clause limits only what the federal, state, and local governments may do. As a nonconstitutional policy matter, it might or might not be a good idea for the government to impose First Amendment- like restrictions on private actors or for private actors to voluntarily impose First Amendment-like restrictions on themselves. …

Promise And Limits Of Total Governance: A Response To Professors Gramitto Ricci And Greenwood, Atinuke O. Adediran

Faculty Scholarship

In their article, Total Governance, Professors Gramitto Ricci and Greenwood theorize about how to increase the power and influence of ordinary individual shareholders who do not have a lot of wealth. The total governance framework has some promise for increasing the influence of ordinary people in corporate governance. It also raises questions about treating corporate actors as monoliths: managers, boards of directors, shareholders, and stakeholders. This brief response, however, takes the position of a skeptic who recognizes the theoretical potential of the total governance framework while highlighting the shortcomings of the concept for corporate governance.

Under Political Pressure: How Courts And Congress Can Help Prosecutors Do Justice, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Some subordinate federal prosecutors faced a challenging professional dilemma in the early days of the second Trump Administration. It arose from the tension between their role as public officials and lawyers who owe fiduciary duties to the public and their role as Department of Justice (DOJ) employees who take direction from higher-ups. The DOJ leadership directed these subordinate prosecutors to use their considerable power in ways evidently designed to advance partisan political objectives. This was contrary to the clear understanding previously expressed by courts, the legal profession, and the DOJ itself that prosecutors have a duty to seek justice, which …

Subordinate Prosecutors’ Independence, Bruce A. Green, Jessica A. Roth

Faculty Scholarship

This essay is about subordinate prosecutors’ independence to do what they think constitutes “seeking justice” when they perceive that their boss, or their boss’s boss, wants them to do something that is unjust—not illegal, but unjust. Of course, if subordinate prosecutors want to do either what they are told to do or what they infer that a higher-up wants them to do, they can do so, as long as the conduct is legal. Subordinate prosecutors might choose to disregard their own professional judgment of what justice requires because they share their boss’s objectives, because they see conforming as a route …

Super-Dicta, Courtney M. Cox

Faculty Scholarship

A weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it’s 50/50 whether Defendant’s copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought it was 50/50 whether the copying was fair use—and the coin landed tails.

Coin-flip cases are rare, but uncertainty is not. There …

Novel Sex Work Anti-Discrimination Protections, Chi Adanna Mgbako, Christine Eldabh, Katie Falk, Emma Pennie

Faculty Scholarship

Sex workers throughout the world experience ubiquitous and acute discrimination in every facet of their lives due to deeprooted stigma. Societal fear and hatred of sex workers often lead to their exclusion from healthcare services, financial institutions, and accessible housing, as well as their marginalization by the carceral state, family law systems, media, and politicians. Between 2022 and 2024, the Australian jurisdictions of the Northern Territory, Queensland, and Victoria passed groundbreaking legislation codifying novel anti-discrimination protections for sex workers. These laws are the first in the world to explicitly protect sex workers against discrimination in accommodation, employment, government services, and …

The U.S. Forced Labor Import Ban: A Tool For Raising Labor Standards In Supply Chains?, Jennifer Gordon

Faculty Scholarship

Forced labor is rampant across global supply chains. Addressing it at individual sites of production results in a game of whack-a-mole. An effective response must target the structural drivers of the problem: the large firms at the top and middle of supply chains that pressure suppliers at the bottom to cut labor costs in order to remain competitive. In the absence of other U.S. laws that address the structural causes of forced labor, this Article argues that the forced labor import ban in section 307 of the United States Tariff Act may have the potential to be utilized by civil …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Scholarship

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Access, Welfare, And Lawsuits: Restoring Reproductive And Economic Autonomy Post-Dobbs, Jill C. Engle

Faculty Scholarship

Access to abortion and increased poverty for women and children are inversely correlated: as access to abortion decreases, feminine and child poverty increase. Women who try to access abortions are more likely to already be mothers, and more likely to be living below the poverty line. In post-Dobbs America, abortion is illegal or severely restricted in approximately half of the states. In states where abortion access is most restricted, women and children experience poverty at the highest rates in the nation. The Supreme Court majority that decided Dobbs chose to ignore the connection between abortion and poverty. In doing …

Rejecting The Racialization Of Indianness, Andrea J. Martin

Faculty Scholarship

No abstract provided.

The Time Has Come To Stop The Bloodshed In Myanmar And Restore The People's Democratically Elected Government, Ronnie R. Gipson Jr.

Faculty Scholarship

Although the Myanmar coup occurred in February 2021, the world paid little attention mostly because the citizens were not white, not European, and the country did not hold huge oil reserves. Subsequent to the coup, Russia invaded Ukraine in 2022, and Israel responded to the Hamas attack on its territory by invading Gaza in 2023. Both of these events assured that the international community paid little to no attention to the plight of the people of Myanmar under the thumb of a repressive military dictatorship after having their freely elected democracy ripped away. If Ukraine is worthy of global attention, …

Birth On Mother Earth: Mitigating The Maternal Health Crisis, Jill C. Engle

Faculty Scholarship

Maternal health outcomes in the U.S. are remarkably poor, especially when compared to those in other industrialized countries. For example, our maternal death rate is more than twice that of Canada’s. Women of color in the U.S. suffer maternal morbidity and mortality at rates considerably higher than white women. Indigenous women experience the worst maternal health outcomes of all. Yet, most maternal deaths and injuries are preventable. Furthermore, rates of maternal harm, including death, are lower when midwives and similar birthing attendants are involved. This Article is the first to fully explore the unique skillset of traditional birth attendants (TBAs). …

Discord And The Pentagon's Watchdog: Countering Extremism In The U.S. Military, Amy Gaudion

Faculty Scholarship

In his 2022 book, Ward Farnsworth crafts a metaphor from the lead-pipe theory for the fall of Rome to consider how rage and misinformation traveling through today’s technology-enabled pipes are poisoning our civic engagement and threatening our governmental structures: “We have built networks for the delivery of information––the internet, and especially social media. These networks too, are a marvel. But they also carry a kind of poison with them. The mind fed from those sources learns to subsist happily on quick reactions, easy certainties, one-liners, and rage.”1 This Article carries the metaphor into a new context and considers what should …

Fútbol Profesional, Derecho De La Competencia Y 'Fair Play', Stephen Ross

Faculty Scholarship

El presente ensayo examina la relación entre el derecho de la competencia y la noción de «Fair Play» en el ámbito del fútbol profesional. El autor comienza analizando el significado lingüístico y filosófico del término «Fair Play» y valorando cómo las diferentes interpretaciones de esta noción pueden influir en la percepción de lo que se entiende por justicia en el deporte. A continuación, compara la aplicación del derecho de la competencia en EE.UU. y Europa, destacando que, aunque hay diferencias, no existe un verdadero conflicto entre la noción de «Fair Play» y la normativa en materia de competencia. Finalmente, defiende …

Promoting Financial Empowerment Via 401(K) Plan Domestic Abuse Victim Distributions, Samantha Prince

Faculty Scholarship

Domestic violence is sadly and shockingly all too prevalent in the United States. According to the U.S. Centers for Disease Control, more than one in four women and one in seven men in this country are subject to domestic abuse “affecting an estimated 10 million people every year.”

Finances and financial abuse play a significant role in 99% of domestic abuse cases. “[L]acking financial knowledge or resources is the number one indicator of whether a domestic violence victim will stay, leave, or return to an abusive relationship.”When abusers have control over financial assets, victims are monetarily paralyzed and have little …

Immigration, Due Process, And Executive Power, Shoba Sivaprasad Wadhia, Peter Margulies

Faculty Scholarship

The current Administration's approach to immigration law enforcement has augmented executive power and reduced procedural safeguards. That approach has raised questions under the Immigration and Nationality Act (INA) and the Constitution. Courts have often pushed back, although the Supreme Court has stayed judicial curbs on one area we'll discuss: Removal to a country other than the home country of the noncitizen (sometimes called third-country removal (TCR)). In other areas, such as the First Amendment rights of foreign students and the reach of the Alien Enemies Act (AEA), adjudication is moving through the courts, although the Supreme Court has imposed limits …

From Ambiguity To Accountability: The Case For A Legal Definition Of Antisemitism In Academia, Andrea Martin

Faculty Scholarship

Following the October 7, 2023, Hamas attacks on Israel, U.S. college campuses experienced a sharp rise in antisemitic incidents, driven by an antizionism movement aimed at demonizing and delegitimizing the Jewish state and its supporters. A congressional investigation found that antisemitism persisted at prominent universities because administrators repeatedly failed to denounce antizionist conduct that functions as a vehicle for harassment of Jewish students and neglected to enforce their own nondiscrimination policies. The congressional committee, as well as several university antisemitism task forces, identified antizionism as a primary driver of campus antisemitism and strongly recommended that university leaders recognize and address …

Reimagining Legal Education: Aligning Curriculum And Pedagogy With The Nextgen Bar Exam, Titichia Jackson

Faculty Scholarship

No abstract provided.

Taking From The Most Vulnerable: Legal Implications Of Seizing Federal Benefits From Foster Kids, Lucy Johnston-Walsh

Faculty Scholarship

Foster youth in some states are paying the cost of their own room and board when state and local government agencies seize a child's federal social security benefits to cover the costs of care. Other states, however, have passed laws forbidding such a practice, allowing youth to save these funds for their own financial needs. Federal social security benefits are an individual's own property and should not be taken without adequate notice, nor without an opportunity to challenge the taking. Tet too many youth who are involved in the foster care system are unaware they are even receiving benefits and …

Embracing A New Approach To Academic Success: How The Adoption Of A Growth Mindset Can Enhance Legal Education, Titichia M. Jackson

Faculty Scholarship

No abstract provided.

Zoning The Subsurface, Hannah Jacobs Wiseman, Anne Menefee, Seth Blumsack, Michael Helbing

Faculty Scholarship

The vast rock formations underlying the United States stand at an important Demsetzian turning point, at which the externalities of inadequately defined property rights justify the costs of solidifying formal property rights for this resource. This need arises from the growing scarcity of pore space (tiny openings) in subsurface rocks—property that is critical to address climate change. Efforts to mitigate and adapt to climate impacts require large-scale underground storage of carbon dioxide, water, and energy within the pore space of subsurface reservoirs. The subsurface will also continue to house millions of miles of pipelines, hundreds of thousands of waste disposal …

Fumbling Antitrust: Fallacies In The Nfl Sunday Ticket Litigation, Jodi Balsam

Faculty Scholarship

No abstract provided.

Agency Problems In Contract Design, Naveen Thomas

Faculty Scholarship

No abstract provided.

Critical Constitutional Law And The Alito Palimpsest, William J. Aceves

Faculty Scholarship

This article uses an innovative metaphor—the palimpsest—and a provocative philosophical tradition—genealogy—to generate a new theory of critical constitutional law. It is a theory born from this unique moment in time.

Originalism is now ascendant at the Supreme Court. Its search for essential origins in history as a method for grounding extant constitutional values was used in Dobbs v. Jackson Women’s Health Organization to end recognition of the fundamental right to abortion. The Court’s conservative majority has made clear that Dobbs is only the beginning.

Critical constitutional law uses the metaphor of the palimpsest to study law and the search for …

Generative Contracts, Spencer Williams

Faculty Scholarship

This Article examines how consumers can use generative artificial intelligence to write their own contracts. Popularized by “chatbots” such as OpenAI’s ChatGPT, generative AI is a form of artificial intelligence that uses statistical models trained on massive amounts of data to generate human-like content such as text, images, music, and more. Generative AI is already being integrated into the practice of law and the legal profession. In the context of contracting and transactional law, most generative AI tools are focused on reviewing and managing large volumes of business contracts. Thus far, little attention has been given to using generative AI …

Artificial Intelligence And The Self-Represented Inventor, Brenda M. Simon

Faculty Scholarship

Lack of access to competent legal representation is pervasive throughout the justice system. Unfortunately, the patent system is no exception. Self-represented inventors are far less likely to obtain patents than those with legal representation. Increasing access to artificial intelligence (AI) can mitigate some of the disadvantages of self-representation, but the use of AI will also raise new challenges. To the extent that AI systems can help self-represented inventors, they can begin to address one of the underlying causes of the patent gap—lack of access to high quality legal services. Women and people of color hold fewer patents, in part, because …

(Non)Police Brutality, Shawn E. Fields

Faculty Scholarship

Local governments increasingly rely on unarmed, nonpolice experts to provide public safety services. In response to demands to reduce police violence, many municipalities have empowered paramedics, mental health counselors, social workers, and homeless outreach personnel, to triage health and safety issues without police involvement. Pilot programs reallocating police funds to these alternate responders appear to reduce arrest rates and rates of police violence. But they have not eliminated acts of violence committed by these nonpolice actors themselves. Shocking stories of paramedics chemically sedating motionless patients to death, social workers assaulting clients, and homelessness response units brutally dispersing unhoused persons after …

Ending The Paper Chase At The U.S. Supreme Court, William J. Aceves

Faculty Scholarship

This Article offers the first systematic analysis of the administrative impact and practical consequences of the U.S. Supreme Court's filing requirements. The lack of meaningful research on this subject reveals how Justices, clerks, and lawyers have become inured to these requirements and their attendant costs.

Every year, the Supreme Court receives approximately five thousand petitions for certiorari. With some exceptions, the Court compels litigants to file multiple paper copies of their submissions. When combined, these submissions exceed two hundred thousand documents, which include over five million separate pieces of paper. If stacked, these documents would reach beyond the height of …

Lone Stars Lessons, Amy F. Kimpel

Faculty Scholarship

This Article provides the first comprehensive empirical account of Operation Lone Star (OLS), Texas Governor Abbott’s immigration enforcement initiative at the southern border. Though OLS consists of several components, including border wall construction and the busing of migrants to “blue” states, the machinery of OLS is primarily designed to apprehend recent migrants and prosecute them for violations of Texas state criminal law. The most common OLS prosecutions are for misdemeanor criminal trespass after migrants are arrested on private ranch lands near the border. As many criminal justice reforms aim to shrink the scale and scope of the criminal legal system, …

Layered Alignment, Spencer Williams

Faculty Scholarship

Most artificial intelligence (AI) researchers now believe that AI represents an existential threat to humanity. The most dangerous threat posed by AI is an issue known as the alignment problem: the risk that a sufficiently intelligent and capable AI system could become misaligned with the goals and values of its human creators and instead pursue its own objectives to the detriment of humanity, including the possibility of extinction. The tension at the heart of the alignment problem is familiar to scholars of agency, contracts, and corporate law, though it goes by a different name: the principal-agent problem. In the traditional …