Digital Commons Network^™

Algorithmic Governance And Nondiscrimination Rights In The Workplace, Pauline Kim

Scholarship@WashULaw

This chapter analyzes existing legal responses to the problem of discriminatory algorithms in the workplace. As firms increasingly rely on algorithms or automated decision systems, a type of artificial intelligence, to manage their workforces, concerns have grown that these tools can systematically exclude historically disadvantaged groups. One response is to rely on traditional anti-discrimination law. These laws clearly prohibit certain forms of algorithmic discrimination; however, the complex, opaque nature of algorithms makes identifying and proving discriminatory harms challenging. Another response looks to broader frameworks of data protection and algorithmic regulation to protect against workplace discrimination. These initiatives are promising, but …

Venturing Into Health, Rachel Sachs

Scholarship@WashULaw

In recent years, the landscape of venture capital (VC) investment in healthcare technologies has been altered by the introduction of new types of VC firms: those that have emerged from hospital systems and health insurers. However, the legal literature has not yet analyzed these new VC firms, the role they may play in healthcare innovation, and how innovation law and policy ought to consider their involvement. Hospital system and health insurer VC firms operate very differently than do traditional VC firms, even those that have historically developed healthcare specializations. Instead of simply investing capital into start-up firms, hospital system and …

A New Framework For Drug Pricing Law And Policy, Rachel Sachs

Scholarship@WashULaw

Scholars and policymakers have expressed concern about the impact of high prescription drug costs on patients and healthcare budgets. This Article presents a new theoretical framework for evaluating both the problem to be addressed by drug pricing reforms as well as the efficacy of potential solutions. In seeking to solve “the drug pricing problem,” our legal system has given primacy to competition rather than regulation to drive down drug prices. This Article disaggregates the broader concept of “the drug pricing problem” into four steps, each of which must be addressed and each of which elevates different institutional actors to key …

The Other Delaware Effect, Jens Frankenreiter

Scholarship@WashULaw

This paper examines the effects of Delaware’s 2015 ban on fee-shifting provisions in corporate charters and bylaws, a significant legislative intervention in corporate law aimed at curbing managerial powers. The Delaware Supreme Court had approved these provisions just one year earlier as part of a series of measures aimed at curbing shareholder litigation. Because of their perceived substantial potential to reduce wasteful litigation, the Delaware legislature’s ban led many to predict an exodus of corporations from Delaware and the continued spread of fee-shifting provisions in other states.

Contrary to these predictions, this study finds that the ban did not trigger …

Disentangling Safety And Accountability In Criminal Justice Policy, Benjamin Levin

Scholarship@WashULaw

In this Article, I argue that the U.S. criminal system and debates about criminal justice reform reflect an elision of two largely distinct social functions: ensuring public safety and imposing accountability for harmful conduct. Despite deep disagreement about the specifics, most commentators seem to accept that these are both important social functions. Abolitionists claim that the criminal system doesn’t keep people safe and provide accountability. Instead, it harms—and perhaps is meant to harm—people from marginalized communities and protects the interest of socially dominant groups. Reformers contend that the criminal system can and should serve the safety and/or accountability interests, but …

Abolish What?, Benjamin Levin

Scholarship@WashULaw

From leading academic journals to popular press outlets, abolitionist activism and scholarship have earned airtime in national debates about criminal justice reform. But what is "abolition?" When scholars, lawyers, and activists talk about abolition, they seem to mean very different, even conflicting, things. In this Essay, I focus on a core question that might divide different abolitionists-and different critics of abolition: what is to be abolished? Abolitionists argue that it's critically important to abolish something, while critics of abolition insist that something is necessary to a well-functioning society. Yet, it's not always clear what that something is-both for abolitionists and …

Crimes Against Humanity And Customary International Law, Leila Nadya Sadat

Scholarship@WashULaw

A draft text of a treaty on the prevention and punishment of crimes against humanity was finally sent to negotiations by the U.N. General Assembly on December 4, 2024, after six long years of advocacy by States and civil society. Questions remain, however, with regard to how crimes against humanity will be defined in the new treaty. On the one hand, some States have embraced a definition of crimes against humanity that tracks Article 7 of the Rome Statute of the International Criminal Court (“ICC”). Other States have rejected Article 7 as the basis for the new treaty, but theirs …

Measuring Income And Income Inequality, Conor Clarke, Wojciech Kopczuk

Scholarship@WashULaw

Income inequality is important, but attempts to measure it arrive at strikingly different conclusions. Why? We use recent disputes over measuring United States income inequality to return to first principles about both the income concept and inequality measurement. We emphasize two broad points. First, no measure of the income distribution is truly comprehensive, or could attempt to be comprehensive without making controversial choices. We document the practical and conceptual problems that the standard ideal—comprehensive Haig-Simons income—raises. Second, much of the controversy in this area turns on the many tradeoffs between starting with individual tax data versus more expansive income concepts. …

How New Lawyers Value Law School Experiential Training, Robert R. Kuehn

Scholarship@WashULaw

While the legal academy continues to debate the appropriate role of experiential training in preparing graduates for practice, one group consistently embraces its value: newly-licensed lawyers. In repeated surveys over the past twenty years, early career lawyers, as well as experienced attorneys, report that law clinic, externship, and simulation courses play an important role in legal education. The research summarized herein demonstrates that newly-licensed lawyers highly value their law school experiential courses, deem them important in their transition to practice, and believe their legal education did not sufficiently prepare them for practice.

Incitement, Enthusiasm, And The Dangers Of Negligent Protest, John D. Inazu

Scholarship@WashULaw

This Article explores the murky line between protected speech and assembly on the one hand, and harmful incitement on the other. On the occasion of the 100th anniversary of Oliver Wendell Holmes’s dissent in Gitlow v. New York, it explores Holmes’s famous dictum that “every idea is an incitement” as a conceptual starting point. By analyzing the relational and temporal dynamics between speaker and listener, the Article highlights how meaning and effect are often shaped by the listener’s agency and other circumstances beyond the control of the speaker. Two contemporary cases illustrate these dynamics. The first is the Fifth Circuit …

Ten Years And Ten Miles: Reflecting On "Ferguson", Benjamin Levin

Scholarship@WashULaw

This Essay serves as the introduction to a symposium on the ten-year anniversary of Michael Brown's death in Ferguson, Missouri and the subsequent protests and uprisings across the country. The authors look back on the past decade—their own experiences and our experiences as a nation—to consider the impacts of the Ferguson uprisings and the landscape of criminal justice and racial justice advocacy, scholarship, and teaching today. In this Essay, I provide a brief introduction to the Volume and essays that follow. In Part I, I situate the Ferguson uprisings in the broader context of activism responsive to racial injustice in …

Ai Ethics, Law, And Policy, Pauline Kim, Ryan Durrie

Scholarship@WashULaw

AI technologies promise many benefits, but they can also have significant negative impacts on human health, safety, well-being, and fundamental rights. This chapter explores the different governance tools that have been considered for guiding developments in AI in socially beneficial ways, examining the relevance of ethics, law, and policy. Each of these approaches offer tools to address these concerns; however, each has limitations, and none provides a complete solution in itself. Statements of ethical principles can articulate high-level values and goals to guide behavior but are usually quite vague and difficult to operationalize. They also lack any enforcement mechanism. In …

It’S Not Too Late For States Parties To Fulfill The Promise Of The International Criminal Court: Three Actions They Should Take Now, Leila Nadya Sadat

Scholarship@WashULaw

What to do about a world in which atrocity crimes appear to be occurring with increasing and alarming frequency? Wars are prosecuted using scorched earth tactics that involve the commission of war crimes and crimes against humanity, credible allegations of genocide have been leveled at States in several corners of the globe, and acts and wars of aggression, which will be the subject of discussion at the upcoming International Criminal Court (ICC) Review in July, are on the rise.

The United Nations and other international institutions seem powerless to prevent or contain the violence, and the ICC, which was created …

The Click-And-Commit World Order, Melissa (M.J.) Durkee

Scholarship@WashULaw

This essay explores the rise of a new model of global governance: the “click-and-commit world order,” characterized by digitally mediated pledging platforms through which a wide array of actors—states, corporations, cities, NGOs, and individuals—publicly commit to addressing global problems through non-binding promises. In contrast to traditional treaty-making, these pledging platforms offer a decentralized, voluntary framework for international cooperation that relies on public declarations rather than negotiated obligations.

Within the U.N. system, this mode of governance developed within the United Nations Global Compact and the Paris Climate Agreement, where bottom-up pledges were institutionalized within formal and informal international structures. The internet …

The Original Function Of Tax Apportionment, Conor Clarke, Peter J. Wiedenbeck

Scholarship@WashULaw

The Constitution’s requirement that direct taxes be apportioned by state population is both confounding and important. At best, tax apportionment is regarded as reflecting the unique federalism concerns of the Founding; at worst, it is viewed as a tainted product of the constitutional compromise over slavery. And, in light of the Supreme Court’s decision in Moore v. United States (2024)—which refused to rule out that apportionment might be required for taxes on unrealized gains—tax apportionment is the subject of renewed legal and scholarly interest.

We consider one historical dimension of tax apportionment that has not been developed elsewhere: its original …

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Scholarship@WashULaw

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts. Bringing together two lines of case-law-on …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

Scholarship@WashULaw

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

International Space Law Under The Trump Administration: Commerce And Security, Melissa (M.J.) Durkee

Scholarship@WashULaw

Early themes of the second Trump administration's orientation toward international space law include military assertiveness, privatization, and nominal diplomatic engagement. These themes carry significant implications for international space law. They pressure longstanding international legal ambiguities, widen existing geopolitical divisions, and raise questions about how public-private interdependence will shape state responsibility and the development of norms in space. This essay was prepared for a special issue of the American Journal of International Law that offers an introduction and overview of the U.S. government's actions across a wide range of international legal issues in the first six months of President Trump's second …

Rational Gridlock, Scott Baker, Michael D. Gilbert

Scholarship@WashULaw

We examine the design of lawmaking institutions when advocates have agenda setting power and there is randomness in the status quo laws eligible for reform. The institutional designer maximizes voter welfare. We find that the optimal arrangement consists of two lawmaking institutions that must agree to enact any reforms. The institutions do not share preferences with one another or with the median voter. As a result, gridlock arises: the institutions reject some reforms that the median voter favors. However, when reform succeeds, it tends to be modest in scope and to more closely track what the median voter prefers. The …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Reflections On Translating Law And Economic Models For Lawyers And Law Professors, Scott Baker

Scholarship@WashULaw

Written as part of a keynote address for the 20th Annual Asian Law and Economics Conference, these remarks reflect on the way lawyers, judges, and law professors without economic training view and use law and economic models. After revisiting notably successes of classic results from the tort model – results that have penetrated the legal profession – it turns to the translation of more recent models of lawyer argumentation and precedent. Throughout, the point is to demonstrate how model insights can be used to help argue cases and distinguish precedent.

Viability As Abortion-Rights Orthodoxy, Susan Frelich Appleton

Scholarship@WashULaw

Borrowing a quotation from Justice Jackson’s influential opinion in West Virginia Board of Education v. Barnette, Professors Linda McClain and James Fleming have named their ambitious and illuminating new book “What Shall Be Orthodox” in Polarized Times. As Justice Jackson wrote in applying the First Amendment to protect school children with familial objections to a required flag salute: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act …

A Liberty-Balancing Approach To Crime, Sheldon Evans

Scholarship@WashULaw

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads …

Grading Machines: Can Ai Exam-Grading Replace Law Professors?, Jens Frankenreiter, Kevin L. Cope, Scott Hirst, Eric A. Posner, Daniel Schwarcz, Dane Thorley

Scholarship@WashULaw

In the past few years, large language models (LLMs) have achieved significant technical advances, such that legal-advocacy organizations are increasingly adopting them as complements to—or substitutes for—lawyers and other human experts. Several studies have examined LLMs' performance in taking law school exams, finding mixed results. Yet there have been no published studies systematically analyzing LLMs' competence at one of law professors' chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically administered in law school exams. The underlying data come from …

The Practice Of Executive Constitutionalism, Conor Clarke, Daniel Epps

Scholarship@WashULaw

The Executive Branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the Executive’s constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the Executive Branch interprets the Constitution and translates those interpretations into concrete decisions? What is their history? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvased the most central tools by which the Executive Branch shapes and implements constitutional law, or considered what makes them …

Dark Patterns In The Opt-Out Process And Compliance With The California Consumer Privacy Act (Ccpa), Jens Frankenreiter, Van Hong Tran, Aarushi Mehrotra, Ranya Sharma, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

To protect consumer privacy, the California Consumer Privacy Act (CCPA) mandates that businesses provide consumers with a straightforward way to opt out of the sale and sharing of their personal information. However, the control that businesses enjoy over the opt-out process allows them to impose hurdles on consumers aiming to opt out, including by employing dark patterns. Motivated by the enactment of the California Privacy Rights Act (CPRA), which strengthens the CCPA and explicitly forbids certain dark patterns in the opt-out process, we investigate how dark patterns are used in opt-out processes and assess their compliance with CCPA regulations. Our …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Scholarship@WashULaw

Prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925.

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in …

When Hard Cases Make Bad Law: A Theory Of How Case Facts Affect Judge-Made Law, Sepehr Shahshahani

Scholarship@WashULaw

“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth of the aphorism, but the debate has suffered from an imprecise conceptualization of what makes a case “hard.” This lack of precision limits our ability to disentangle and work through the important questions the aphorism raises about how the facts of a particular case affect …