Digital Commons Network^™

Technology-Facilitated Labor Trafficking Power And Control Wheel, Julie A. Dahlstrom

Faculty Scholarship

This wheel is based on the Article, "Digital Servitude", forthcoming in the Boston College Law Review.

The Historic Superfund Listing Of The Lukachukai Mountains Mining District, Nadine Padilla

Faculty Scholarship

President Biden’s 2021 Bipartisan Infrastructure Law included, among its many provisions, a historic investment of $3.5 billion to be allocated toward cleanups under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund. This investment will help in addressing the problem of legacy pollution that impacts communities across the country. Approximately $1 billion will go towards clearing the backlog of 49 previously unfunded Superfund sites and will accelerate cleanup at over 85 current Superfund sites. Remaining funds will go towards launching cleanup efforts at 25 new Superfund sites. In a development that aligns with these broader cleanup …

Do Prosecutorial Declination Trends Provide Hope For Reducing Mass Incarceration?, Shima Baradaran Baughman

Faculty Scholarship

This Article examines prosecutorial declination—the decision not to bring charges despite sufficient evidence—and its potential role in addressing mass incarceration. Although prosecutors possess broad discretion and are frequently identified as key actors capable of reducing incarceration rates, little empirical evidence exists regarding how prosecutors actually make charging decisions. Drawing on the largest national field experiment involving prosecutors, this study analyzes how prosecutors respond when given discretion in borderline cases without evidentiary or resource constraints. The findings indicate that prosecutors overwhelmingly choose to charge rather than decline, even when factors suggest restraint may be appropriate. These results challenge claims that prosecutorial …

History And Tradition As Heightened Scrutiny, Andrew Willinger

Faculty Scholarship

The Supreme Court is turning to methodologies privileging text, history, and tradition, or THT, to interpret and implement various constitutional provisions. The Court has recently endorsed historically-focused approaches to determine how the Second Amendment protects the right to keep and carry a firearm, how the First Amendment protects the rights to free speech and freedom of religion, and whether the Due Process Clause protects reproductive autonomy, among other questions.

Much scholarship and popular commentary surrounding THT portrays the methodology as sui generis: presenting unique analytical challenges and impervious to direct comparison to existing doctrinal approaches. However, the jurist most …

A Critique Of Findings On Gun Ownership, Use, And Imagined Use From The 2021 National Firearms Survey: Response To William English, Deborah Azraek, Joseph Blocher, Philip J. Cook, David Hemenway, Matthew Miller

Faculty Scholarship

For a paper that has not yet been through peer review or even been formally published, William English’s “2021 National Firearms Survey” has been remarkably prominent in gun rights advocacy and scholarship. As of December 2024, it has been cited in roughly sixty-five briefs, invoked at oral argument in the Supreme Court and multiple courts of appeals, and regularly cited in public writings and published academic work.

This response is offered in the spirit of a peer review. Our focus is on methodological issues, questionable statistical results, and problematic conclusions. Because of serious methodological issues, English’s draft fails to provide …

Interlocking Directorates In The United States, Yaron Nili

Faculty Scholarship

In corporate America, directors wield increasing influence across multiple companies, often within the same industry (“horizontal directors”), which creates tension between antitrust laws and corporate governance. Horizontal directors are well-positioned to bring industry expertise and potentially increase higher profits, benefiting shareholders but also possibly enabling potential collusion. This chapter provides an overview of the prevalence of horizontal directors, the regulatory grey space in which they exist and the connection to some recently debated issues, including that of common ownership by institutional investors. To inform this debate, this chapter provides a thorough overview of horizontal directors from corporate and antitrust perspectives …

The Savings Mirage, Sara Sternberg Greene

Faculty Scholarship

In the past, we did not worry much about elderly poverty because retirement was short for most Americans – a brief jaunt of post-work life was soon met with death. But with the 100-year life becoming a reality for more Americans, an elderly poverty crisis looms. The American dream of abundant retirement savings remains elusive for many, particularly low-wage workers. While government initiatives emphasize individual responsibility and financial education as a way toward retirement success, the reality is that governmental policies are barriers, including asset limitations that prevent those who receive public benefits from saving. This chapter urges reform in …

Rethinking Human Rights Treaty Withdrawals: A Process-Based Approach, Laurence R. Helfer, Başak Çalı

Faculty Scholarship

This article presents the case for reconsidering the rules governing withdrawals from human rights treaties that permit unilateral exit. Once a rarity, such withdrawals have been on the rise across the globe. We propose a process-based approach to address this trend. The heart of our proposal focuses on sequenced domestic and international processes to publicise and scrutinise the nearly unfettered authority of executive branch officials to exit from such human rights treaties. This approach requires that national executives explain and justify a decision to withdraw, which can then be evaluated by a wide range of domestic and international actors. Drawing …

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

Multi-Risk Governance Of Solar Radiation Modification, Jonathan B. Wiener, Tyler Felgenhauer, Mark E. Borsuk

Faculty Scholarship

Solar radiation modification (SRM) presents important challenges to risk regulation and governance, arising from the array of multiple risks that SRM may influence. SRM would not simply reverse climate change, but could pose further ancillary impacts, depending on the method of SRM, such as stratospheric aerosol injection (SAI), marine cloud brightening (MCB), or a space-based planetary sunshade system (PSS). We identify multiple risks that SRM may influence, both biophysical and sociopolitical, to be compared to the multiple risks that may be affected by greenhouse gas (GHG) mitigation and climate adaptation. This multi-risk framework helps analysts and decision makers identify, evaluate, …

Trade Secrecy's Information Paradox, Christopher Buccafusco, Jonathan S. Masur, Deepa Varadarajan

Faculty Scholarship

Trade secret law is meant to encourage socially beneficial behaviors by permitting firms to protect their investments in the creation of valuable information. In theory, the ability to protect valuable information will make firms more likely to create that information in the first instance. But the law can also be used to shield socially harmful behaviors from public oversight. Firms can assert trade secret protection to prevent journalists, watchdogs, and criminal defendants from learning whether they are engaged in dangerous, wrongful, or biased activity. Ideally, trade secret law should sort socially beneficial uses from socially harmful ones, permitting only the …

The Rise Of Global Fcpa Settlements, Rachel Brewster

Faculty Scholarship

For the last two decades, the United States has been the dominant enforcer of anti-bribery norms worldwide. Using the broad extraterritorial jurisdiction granted by the Foreign Corrupt Practices Act (FCPA), the Department of Justice (DOJ) and the Securities and Exchange Commission (SEC) have prosecuted domestic and foreign corporations for bribing foreign government officials. This transnational enforcement system has been described as a negative comity regime: foreign governments defer to American prosecutions even if the case involves their nationals. This system has created a robust enforcement environment but often faces foreign resistance to the perceived “American dominance” of the regime. This …

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

Information Retrieval In The Age Of Generative Ai: A Mismatch That Matters, Alex Zhang

Faculty Scholarship

This short piece explores a widespread and yet underexamined or even overlooked misconception, that is, large language models (LLMs) function like traditional legal research databases. They do not. As a matter of fact, information retrieval from databases functions very differently from LLMs in terms of inputs, retrieval processes, and outputs. These differences have significant implications for transparency, traceability, and overall effectiveness in AI-driven legal research. Without intentional oversight and adaption, these changes could profoundly affect how we develop research skills and a cumulative knowledge base, both of which are essential skills for lifelong learning in the legal field.

This article …

As They Think Best: A History Of The "One Crowded Hour" Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

New Insights On Expert Opinion About Eyewitness Memory Research, Travis M. Seale-Carlisle, Adele Quigley-Mcbride, Jennifer E. F. Teitcher, William E. Crozier, Chad S. Dodson, Brandon L. Garrett

Faculty Scholarship

Experimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert …

Recent Changes In Discretionary Denials Of Drug Patent Challenges, S. Sean Tu, Arti K. Rai, Aaron S. Kesselheim

Faculty Scholarship

Recent policy shifts at the U.S. Patent and Trademark Office (USPTO) have sharply limited the use of two administrative pathways for patent reviews, inter partes review (IPR) and post-grant review (PGR). Congress created these administrative pathways to provide a faster and less costly way to challenge weak patents. Recently, the USPTO has expanded the use of “discretionary denials,” invoking a new “settled expectations” rationale that blocks IPR petitions for patents more than about six years old. From May to September 2025, 60% of 506 requests for discretionary denial were granted, triple historical levels, including one-third involving drug patents. These changes …

Die Wirkliche Gefahr Liegt In Der Erosion Der Autonomie: Ein E-Mail-Interview Über Kognitive Freiheit Und Die Problematische Nutzung Neuronaler Daten, Nita Farahany, James Kennaway, Bernd Bösel

Faculty Scholarship

In this interview, James Kennaway and Bernd Bösel talk to Nita Farahany about significant themes related to the idea of mind control, as discussed in her book "The Battle for Your Brain" (2023). The book outlines the risks that neurotechnology poses to "cognitive freedom". EEG and EMG data are increasingly used in consumer products, raising concerns about potential misuse. Companies and governments could exploit cognitive biometric data for manipulation or control. Farahany calls for clear legal protections and highlights differences between U.S. and European regulations. She warns of neurotechnological warfare and advocates for global bans. While full mind control remains …

Narrowly Person-Affecting Axiology: A Reconsideration, Matthew D. Adler

Faculty Scholarship

A narrowly person-affecting (NPA) axiology is an account of the moral ranking of outcomes such that the comparison of any two outcomes depends on the magnitude and weight of individuals’ well-being gains and losses between the two. This article systematically explores NPA axiology. It argues that NPA axiology yields an outcome ranking that satisfies three fundamental axioms: Pareto, Anonymity and, plausibly, Pigou-Dalton. The axiology is neutral to non-well-being considerations (desert); and (assuming well-being measurability) leads to the Repugnant Conclusion (RC). In short, NPA axiology provides a grounding for Paretian, equity-regarding welfarism, albeit one that includes the RC.

Measuring The Value Of Trademark Distinctiveness: Evidence From The Market For Bordeaux Wine, Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen

Faculty Scholarship

The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there …

Reconstructing The Meaning Of "Forty Acres And A Mule", Cynthia Nicoletti

Faculty Scholarship

This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and …

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Determinants Of Success On The Bar Exam: One Law School’S Experience 2010–2023, Morris Ratner, Stephen N. Goggin, Stefano Moscato, Margaret Greer, Elizabeth Mcgriff

Faculty Scholarship

No abstract provided.

Incremental Innovation, George Horvath

Faculty Scholarship

Transformative innovations—the ones that use new technologies to disrupt the world—command our attention. But most new products are the result of a more mundane process of incremental iterative innovation, evolving through a long series of small modifications of existing technologies. Although both kinds of innovation can result in improved safety and utility, both can also create new dangers. We tend to be more aware of this in transformative innovations (as current worries over artificial intelligence show); by contrast, dangers created by incremental iterative innovation often go unrecognized, because the process itself is easy to overlook. Policymakers and regulators need to …

Navigating The Growing Prospects And Growing Pains Of Managed Aquifer Recharge, Dave Owen, Helen Dahlke, Andrew Fisher, Ellen Bruno, Michael Kiparsky

Faculty Scholarship

Increasing water demands and declining groundwater levels have led to rising interest in managed aquifer recharge. That interest is growing in the United States—the focus of this article—and elsewhere. Increasing interest makes sense; managed aquifer recharge can reduce water-supply challenges and provide environmental benefits, sometimes with lower costs than alternative water-management approaches. But managed aquifer recharge also faces growing pains, which will make it difficult for projects to scale up and may limit the benefits provided by those projects that do go forward. Some of the problems arise from the challenges of finding physically suitable locations for managed aquifer recharge; …

Citizenship And Civic Engagement Among New Americans: Arab, Asian, And Latino Americans During A Shifting Political Landscape, Ming Hsu Chen

Faculty Scholarship

This policy paper examines civic engagement among new Americans, focusing on factors that influence the sense of belonging and political participation, particularly among recently naturalized Asian Americans, Latinos, and Arab Americans. The study, conducted by the Center for Race, Immigration, Citizenship, and Equality (RICE) at University of California College of the Law, San Francisco (UC Law SF) in collaboration with the New Americans Campaign (NAC) at Immigrant Legal Resource Center.

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Bankruptcy Appeal Barriers, Jonathan M. Seymour

Faculty Scholarship

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan …

Collective Management Of Copyrights And Human Rights In An Age Of Technological Automation, Laurence R. Helfer, Giulia Priora

Faculty Scholarship

Collective management organizations (CMOs) across the world have remained key to the exercise and enforcement of copyrights and neighbouring rights of individual creators notwithstanding the rapid development of digital technologies and their decentralizing potential. This chapter provides an up-to-date legal analysis on the role and activities carried out by CMOs vis-à-vis the protection of creators’ rights as international human rights. By scrutinizing key treaty provisions and interpretative documents, the analysis reveals how a human rights framework supports numerous functions performed by CMOs. However, significant conflicts may arise from certain practices and policies of CMOs concerning, for example, mandatory membership, promotion …

Opening The Channels And Speeding The Game: A Short History Of Transactional Forms, Laura M. Scott

Faculty Scholarship

Citators, digests, annotated codes. These standard legal research tools, developed by generations of lawyers and now adapted for the online era, tend to be the province of litigators. Transactional lawyers may also occasionally use these tools, but for the practitioner making and documenting commercial, corporate, real estate, or securities deals, legal forms are often a more useful tool. Used judiciously, these sample documents make drafting more efficient, guide junior business lawyers through unfamiliar transactions, and help identify legal issues to be researched.

For today’s dealmakers, online transactional forms are essential research and drafting tools in their own right, but examining …