Digital Commons Network^™

Unbelievable: How Narrative Can Help Vulnerable Narrators Overcome Perceived Unreliability In The Legal System, Cathren Page

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This article examines how advocates can champion vulnerable narrators’ truths. First, advocates must prime the audience by educating the audience about the ways the vulnerability manifests; this process helps to allay credibility questions. Second, advocates must reframe seemingly untrustworthy behavior by showing how the behavior is consistent with someone in the vulnerable narrator’s situation. Third, advocates must create what fiction writers call verisimilitude—a sense of reality—by including concrete details that logically fit together in the legal narrative. Finally, advocates must label the tactics commonly used to discredit vulnerable narrators so that the audience can see those tactics for what they …

An “Essential” Solution: Reworking The Essential Facilities Doctrine To Address Big Tech’S Harm To The Marketplace Of Ideas, Kaleb Byars

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Google’s mission statement is undoubtedly altruistic. The Internet overflows with information, and users could not navigate the Internet if an entity did not logically organize that information. On the other hand, should democratic societies accept the convenience that Google and the other Big Tech firms provide if that convenience impairs the marketplace of ideas? Big Tech censorship is at the forefront of current news and congressional consideration. At both ends of the political spectrum, parties agree

Big Tech censorship harms the marketplace of ideas. Republican congresspersons argue Big Tech supports liberal ideas and censors conservative voices, websites, and advertisements. Democratic …

Deregulation: Too Big For One Branch, But Maybe Not For Two, Stephen M. Johnson

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When President Trump took office in 2017, he pursued a deregulatory agenda that exceeded even that of President Reagan. Environmental rules and policies were a major target of the Administration. The President deployed a mix of traditional tools, such as executive orders, guidance documents and policies, and rulemaking to suspend or reverse longstanding regulations and policies of the Environmental Protection Agency (EPA), the Department of the Interior, and other environmental agencies. The Administration also utilized the Congressional Review Act as it had not been used before and aggressively sought abeyances in litigation challenging disfavored rules and policies to advance its …

International Digital Nomads: Immigration Law Options In The United States And Abroad, Scott Titshaw

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Remote work has become common, allowing many people to choose to work anywhere with an adequate internet connection. Some are adopting a “digital nomad” lifestyle, moving with the seasons or years from place to place, including foreign locations. Yet, such international movement raises immigration and other legal issues. Many countries have adopted specific digital nomad visas and other immigration policies to encourage and regulate this trend. The United States is not one of them. Arguing that the United States should consciously plan for digital nomads, this article compares the current U.S. approach with the innovations of other countries, identifying the …

Rulemaking 3.0: Incorporating Ai And Chatgpt Into Notice And Comment Rulemaking, Stephen M. Johnson

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Technological innovations since the turn of the century have created opportunities to increase public participation in notice and comment rulemaking, increase the efficiency of the process, and increase the quality of the rules adopted by agencies. For some rules, online rulemaking and social media have facilitated increased public participation, but have not necessarily facilitated improvements in the quality of public comments. In addition, in some cases, the transformation of the process has created new challenges for government agencies by making it easier for supporters or opponents of rules to flood agencies with duplicative and potentially false comments to which the …

Square Pegs And Round Holes: Differentiated Instruction And The Law Classroom, Karen J. Sneddon

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As the academic semester begins, law students enter the classroom with sharpened pencils and charged laptops. Law professors enter the classroom with prepared notes and tabbed casebooks. But how will law professors ensure that the learning of each individual student is supported? Students do not take one path to law school. From English majors to engineering majors, students enter law school immediately upon graduating from college or years after graduation with various professional experiences. Despite criticism that legal education is resistant to change and over-relies on the Socratic Method, law school educators know that learning is not a one-size-fits-all experience. …

The Power Of A Good Story: How Narrative Techniques Can Make Transactional Documents More Persuasive, Karen J. Sneddon

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Transactional documents are complex, multi-faceted documents reviewed by various audiences at multiple points in time. They are more than descriptive legal devices that dictate the exchange of widgets for cash. While the core of many transactional documents will be the acquisition, creation, or exchange of property or services, transactional documents do more than memorialize that understanding. At first glance, transactional documents may seem simply like expository texts that aim to create the private law between the transacting parties and educate the audience by delivering a sequence of instructions, but transactional documents do much more. They tell the stories of the …

Bostock: An Inevitable Guarantee Of Heightened Scrutiny For Sexual Orientation And Transgender Classifications, Kaleb Byars

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n June 2020, the Supreme Court decided Bostock v. Clayton County. In Bostock, the Court held that discrimination on the basis of sexual orientation and transgender status per se constitutes discrimination "because of sex" for purposes of Title VIL But Bostock inspires the question of whether its holding and reasoning apply in other contexts, including the Equal Protection Clause context. While the Supreme Court has held intermediate scrutiny applies to sex classifications analyzed under the Equal Protection Clause, the Court has yet to elucidate the level of scrutiny that applies to LGBTQ classifications. Meanwhile, state and federal courts …

Inheriting Citizenship, Scott Titshaw

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Most of us become citizens at birth based either on our birthplace or our parents' citizenship status. Over thirty countries recognize birthplace citizenship, but inherited citizenship is nearly universal. Such universal legal rules are rare, and they are particularly remarkable in the context of citizenship, where state sovereignty is near its apex. This Article explores why inherited citizenship is necessary, even in nations recognizing birthplace citizenship. It surveys the history, definitions, purposes, current rules, politics, and global trends in this area and identifies three modern categories of birthright citizenship laws: primary inherited citizenship systems, dual inherited and birthplace systems, and …

Whither The Lofty Goals Of The Environmental Laws?: Can Statutory Directives Restore Purposivism When We Are All Textualists Now?, Stephen M. Johnson

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Congress set ambitious goals to protect public health and the environment when it enacted the federal environmental laws through bipartisan efforts in the 1970s. For many years, the federal courts interpreted the environmental laws to carry out those enacted purposes. Over time, however, courts greatly reduced their focus on the environmental and public health purposes of the environmental laws when interpreting those statutes due to the rise in textualism, the declining influence of the Chevron doctrine, and the increasing willingness of courts to defer to agency underenforcement of statutory responsibilities across all regulatory statutes.

In 2020, the Environmental Protection Network, …

Dead Men (And Women) Should Tell Tales: Narrative, Intent, And The Construction Of Wills, Karen J. Sneddon

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The will is one of the most personal legal documents that an individual may ever create. The will is written in first person, present tense. Yet most wills reveal little of the person, the personality, or the personal. The inclusion of the testator’s relationships with people, entities, and property does little to convey the testator’s wishes, hopes, or fears. Some may assert that as a formal legal document, the will should be impersonal and be built using standardized, formulaic phrasing. Not only does such position overstate the accuracy of standardized, formulaic phrasing, but such position also ignores the foundational principle …

Creating North Carolina Populism, 1900–1960: Part 2: The Progressive Era Legacy, 1930–1960, James L. Hunt

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Between 1900 and 1930, North Carolina’s first generation of professional historians constructed scholarly accounts of Tar Heel Populism. These pioneers offered a version of the recent past that supported white supremacy and the current Progressive Era political leadership. They agreed Populism’s destruction had been desirable. University-based historians opposed the Populist Party’s support for significant changes to tax policy, broad-based democracy, and radical forms of corporate regulation, especially of railroads, banks, and monopolies. The key figures included J. G. de Roulhac Hamilton, Simeon A. DeLapp, Florence E. Smith, and John D. Hicks. Most earned Ph.D. degrees in history from northern universities, …

To Outgrow A Mockingbird: Confronting Our History—As Well As Our Fictions—About Indigent Defense In The Deep South, Sarah Gerwig-Moore

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To Kill a Mockingbird occupies a beloved space in law school classrooms and curricula, especially in its portrayal of Atticus Finch. Frequently held up as the model or “hero-lawyer,” Atticus’s character is powerful in fiction, but problematic in practice. His work is lauded, rather than scrutinized, despite his questionable ability to represent his client in life-or-death circumstances—specifically, a racially charged sexual assault case in the Deep South. Through considering examples of historical lawyers and texts which explore similar themes without the lens of fiction, those engaged in legal education and legal practice can and should look to others to study …

Who’S Afraid Of Uber?, Jeremy Kidd

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Ride-sharing has disrupted the transportation-for-hire industry, breaking down barriers to entry that have protected entrenched incumbents for decades. The disruption has led to calls for increased regulation, along with criticisms about the effect of innovation on consumer safety, market stability, rule of law, and other areas. That disruption, however, has also led to tremendous benefits to consumers as they are freed from a regulatory regime that limited their transportation choices and forced them to pay higher prices for lower quality service. The same type of disruptive innovation is upon us in almost every area of our economy. How we deal …

Creating North Carolina Populism, 1900-1960, Part 1: The Progressive Era Project, 1900-1930, James L. Hunt

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In his preface to Origins of the New South, 1877–1913 (1951), C. Vann Woodward quoted historian Arnold J. Toynbee’s boyish celebration of the British Empire. On the occasion of Queen Victoria’s Diamond Jubilee, Toynbee thought, “Well, we are top of the world, and we have arrived at this peak to stay there—forever! There is, of course, a thing called history, but history is something unpleasant that happens to other people.” As for American history, Toynbee thought a New Yorker would have felt the same way. But “if I had been a small boy in 1897 in the Southern part of …

Killing Wotus 2015: Why Three Rulemakings May Not Be Enough, Stephen M. Johnson

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This Article will discuss the procedural and substantive flaws in the three rulemaking efforts by the agencies. One or more of the rules (or the 2015 rule) will likely be litigated for the next several years and, ultimately, it is likely that the question of the scope of the federal government’s jurisdiction over “waters of the United States” will return to the Supreme Court. However, since challenges to those rules must originate in Federal district courts, it could take some time before the question returns to the Court.

Part II of this Article discusses the 2015 rule, including the motivation …

An Unusual Suspect? Unreliable Narrators In Fiction And Law, Cathren Page

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This article discusses the common traits of unreliable narrators and provides solutions for those seeking to defeat unreliable narrators in legal battles. Since the unreliable narrator concept first developed and evolved in literary analysis, the article explores and compares unreliable narrators in both fiction and law.

When the audience cannot depend on the accuracy or reliable character of a narrator’s account, literary criticism deems these storytellers “unreliable narrators.” Unreliable narrators exhibit certain “tells,” which disclose to savvy or intuitive audience members that some aspect of the narrators’ tale is dubious. These unreliable narrators can be divided into two broad categories, …

Teaching With Feminist Judgments: A Global Conversation, Pamela A. Wilkins

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The very idea of re-imagining and rewriting judicial opinions from a feminist perspective arises from the sense that the original judicial opinions did not "do justice" in either process or outcome. Nearly a dozen feminist judgments projects around the world have addressed this sense of injustice by demonstrating how a judgment's reasoning or result (or both) would have been different if the decision makers had applied feminist perspectives, theories,and methods. Using the resulting re-imagined feminist judgments in the classroom can help students in a myriad of ways, but especially in developing their own roles in addressing what they perceive to …

How The Boogeyman Saved Brett Kavanaugh, Cathren Page

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We love to hate these boogeymen. When the societal narrative creates these invisible boogeymen, people can pour their rage against sexual abuse into these faceless antagonists. At the same time, the enraged survivors and protectors avoid conflicts with family, neighbors, colleagues, and social acquaintances who might actually commit or enable sexual abuse. We can dodge sticky questions regarding how a churchgoer, a judge, or an Ivy Leaguer could have committed a heinous act. The survivors can avoid all the victim-blaming backlash, threats of violence, and invalidation that accompanies reporting a sexual offense. Moreover, having less power on their own, survivors …

An“Astonishingly Excellent” Solution To Super-Fake Narratives, Cathren Page

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Persuasion studies indicate that facts and logic have likely never persuaded people. Rather, people typically hold “deep frame” beliefs, and story persuades them. People then use facts and logic to justify their beliefs.

While this potentially persuasive “fake news” itself is old, the widespread dissemination of fake news via bots is new. Donald Trump’s campaign benefitted from these bots and from an electoral college map more favorable to Republicans. But these super-powers were not his only strengths, the Trump campaign wielded the power of superhero storytelling techniques.

So, faced with an army of bots, a superhero story, and an unfavorably …

From Clause A To Clause Z: The Transactional Reader And Narrative Transportation, Karen J. Sneddon

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You know the phrase “lost in a good book.” The book’s story is so compelling that you are absorbed by the characters, setting, actions, and plot. The book pulls you into the narrative such that you must continue to read—even if that means staying up all night to finish the book. Because many associate that immersive experience with reading a novel, the phrase “lost in a good book” is most often connected to reading for pleasure. But the experience of being transported by the words of a narrative can occur when reading a variety of texts, including legal texts. That …

Voice, Strength, And No-Contest Clauses, Karen J. Sneddon

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The will is a unilateral written disposition of probate property to be effective upon the will-maker's death. To have any legal effect, however, the will-maker's family, beneficiaries, and personal representatives, along with the probate court, need to implement the will provisions. To buttress the strength of the will, the language of the will is definitive, certain, and strong. But when the will relies upon standardized language, the voice of the will-maker is flattened or even non-existent. The absence of the willmaker's voice may jeopardize the legal effect of the will.

This Article argues that the over-reliance on "time-tested" formulaic language …

Ethics Of Using Artificial Intelligence To Augment Drafting Legal Documents, David Hricik

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Skynet is not and may never be self-aware, but machines are al-ready doing legal research, drafting legal documents, negotiating disputes such as traffic tickets and divorce schedules, and even drafting patent applications. Machines learn from us, and each other, to augment the ability of lawyers to represent clients—and even to replace lawyers completely. While it also threatens lawyers’ jobs, the exponential increase in the capacity of machines to transmit, store, and process data presents the opportunity for lawyers to use these services to provide better, cheaper, or faster legal representation to clients. By way of familiar example, instead of determining …

Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson

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Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.

While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation …

Fintech: Antidote To Rent-Seeking?, Jeremy Kidd

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Fintech is a reality of our modern society, and will likely become even more so in the future. Peer-to-peer lending, cybercurrencies, smart contracts, algorithmic lending, and more, have required adaptation by consumers and producers of financial services. Our modes of doing business will continue to be challenged and changed by these and other Fintech innovations, almost certainly expanding beyond merely “promot[ing] financial inclusion, expand[ing] access to capital for individuals and small businesses, and more broadly reshap[ing] how society interacts with financial services.” By reducing transaction costs, advancing technology opens the doors to innovations the likes of which we might not …

Stranger Than Fiction: How Lawyers Can Accurately And Realistically Tell A True Story By Using Fiction Writers’ Techniques That Make Fiction Seem More Realistic Than Reality, Cathren Page

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This Article differs from other articles on related topics in that it focuses broadly on including specific details to establish an overall sense of reality. In contrast, in his article, This is Not the Whole Truth, Professor Steve Johansen discusses those details that can ethically be omitted; this Article, however, is about which select details to include rather than to omit. Although some articles have focused on details regarding specific objects, such as an obtuse object or an endowed object, this Article covers a wider category of details that applies throughout the narrative as opposed to details that surface only …

On Competence: (Re)Considering Appropriate Legal Standards For Examining Sixth Amendment Claims Related To Criminal Defendants’ Mental Illness And Disability, Sarah Gerwig-Moore

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This Article addresses the questions of attorney error and client competency and examines the following issues: the origin and development of the legal tests for intellectual competency to stand trial or enter a plea and the tests for evaluating Sixth Amendment effective assistance of counsel claims; the range of state and federal approaches to circumstances when those two situations converge; and whether and how our legal tests should be shaped to best assess attorney error when the client likely has an intellectual disability or incompetence. When consideration of a defendant's mental illness or mental disability forms the basis of a …

Will Patenting Make As Much Sense In The New Regime Of Weakened Patent Rights And Shorter Product Life Cycles?, David Hricik

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After its founding in 1982, the US Court of Appeals for the Federal Circuit strengthened patent protection. During that time, businesses—which acquire 90 percent of all patents—increasingly applied for and enforced patents. Clearly, the benefit of having a patent outweighed the cost of doing so.

This Article shows that a central benefit of applying for a patent is that it permits its owner to exclude others from making the patented invention. A patent owner can use the coercive power of a patent to exclude others from making the invention, or to permit others to make the patented invention, but only …

Tales From A Form Book: Stock Stories And Transactional Documents, Karen J. Sneddon

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Legal transactions are stories. They are the stories of marriages, business partnerships, acquisitions, births, and deaths. These stories are built around the hopes, fears, wishes, and concerns of the particular parties to the transaction. But at their core, these stories are not just about the individual circumstances of those parties. At the core of each of these individual stories is a stock story. Virtually every transactional document starts with a form. And stock stories are embedded within each form document. The forms feature ing´enues, tricksters, misers, and sages who undertake journeys, confront mutinies, and at times achieve glory.

This article …

Consideration Of Genetic Connections In Child Custody Disputes Between Same-Sex Parents: Fair Or Foul?, Jessica Feinberg

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Historically, in child custody disputes involving same-sex couples who conceived their children through assisted reproductive technology, the law only recognized the relationship between the child and the member of the same-sex couple who was the child’s genetic parent. Consequently, non-genetic parents in these situations were frequently denied standing to seek custody or visitation following the dissolution of their relationship with the child’s genetic parent. Due to recent legal advancements, however, it is becoming far more common for both members of a same-sex couple to be legally recognized as the parents of a child conceived through assisted reproductive technology. Unfortunately, despite …