Law Commons^™

"Cybervandalism" Or "Digital Act Of War?" America's Muddled Approach To Cyber Incidents Will Not Deter More Crises, Charles J. Dunlap Jr.

Faculty Scholarship

If experts say a "malicious [cyber] code"' has "similar effects" to a "physical bomb,"' and that code actually causes "a stunning breach of global internet stability," is it really accurate to call that event merely an instance of a "cyber attack"?

Moreover, can you really expect to deter state and non-state actors from employing such code and similarly hostile cyber methodologies if all they think that they are risking is being labeled as a cyber-vandal subject only to law enforcement measures? Or might they act differently if it were made clear to them that such activity is considered an "armed …

Brief Of Professors At Law And Business Schools As Amicus Curiae In Support Of Respondents, James D. Cox, J. Robert Brown Jr., Lyman Johnson, Lawrence W. Treece, Joan Macleod Heminway

Faculty Scholarship

This Amicus Brief was filed with the U.S. Supreme Court on behalf of nearly 50 law and business faculty in the United States and Canada who have a common interest in ensuring a proper interpretation of the statutory securities regulation framework put in place by the U.S. Congress. Specifically, all amici agree that Item 303 of the Securities and Exchange Commission's Regulation S-K creates a duty to disclose for purposes of Rule 10b-5(b) under the Securities Exchange Act of 1934.
The Court’s affirmation of a duty to disclose would have little effect on existing practice. Under the current state of …

Signing Statements And Presidentializing Legislative History, John De Figueiredo, Edward H. Stiglitz

Faculty Scholarship

Presidents often attach statements to the bills they sign into law, purporting to celebrate, construe, or object to provisions in the statute. Though long a feature of U.S. lawmaking, the President has avowedly attempted to use these signing statements as tool of strategic influence over judicial decision making since the 1980s — as a way of creating “presidential legislative history” to supplement and, at times, supplant the traditional congressional legislative history conventionally used by the courts to interpret statutes. In this Article, we examine a novel dataset of judicial opinion citations to presidential signing statements to conduct the most comprehensive …

The Fragile Promise Of Open-File Discovery, Ben Grunwald

Faculty Scholarship

Under traditional rules of criminal discovery, defendants are entitled to little prosecutorial evidence and are thus forced to negotiate plea agreements and prepare for trial in the dark. In an effort to expand defendants’ discovery rights, a number of states have recently enacted “open-file” statutes, which require the government to share the fruits of its investigation with the defense. Legal scholars have widely supported these reforms, claiming that they level the playing field and promote judicial efficiency by decreasing trials and speeding up guilty pleas. But these predictions are based largely on intuition and anecdotal data without extended theoretical analysis …

Bullying And The Laws Pertaining To It, Jennifer Levi

Faculty Scholarship

This Article describes the climate of anti-gay sentiment and fear that has made it difficult for lesbian, gay, bisexual, and transgender (LGBT) students to come out or to seek support within school communities. The 1970s Miami - Dade Gay Rights Ordinance (the so-called Save Our Children campaign) fostered a climate of silence and invisibility that eventually morphed into overt hostility toward LGBT students across most student populations in the country.

The Author cites contemporary data showing dramatically high rates of hostility, including bullying and harassment, toward LBGT students. She summarizes the steps taken by the U.S. Department of Education to …

Better Locker Rooms: It’S Not Just A Transgender Thing, George B. Cunningham, Erin E. Buzuvis

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …

Title Ix And Procedural Fairness: Why Disciplined-Student Litigation Does Not Undermine The Role Of Title Ix In Campus Sexual Assault, Erin E. Buzuvis

Faculty Scholarship

As a matter of civil rights, Title IX mandates that federally funded educational institutions address reports of sexual assault. Often disciplined-student plaintiffs argue unsuccessfully that the college or university’s decision to discipline them is tainted by “reverse” sex discrimination. This Article examines the recent spate of disciplined-student cases in an effort to harmonize Title IX compliance with the procedural rights of students accused of sexual assault. It provides a historical context for Title IX’s application to sexual assault on campuses and the requirements the law imposes on the educational institutions. Next, it describes the role Title IX plays in disciplined-student …

Coaches In Court: Legal Challenges To Sex Discrimination In College Athletics, Erin E. Buzuvis

Faculty Scholarship

Sex discrimination continues to operate in the working environment of college athletics. Female coaches experience bias both because of their sex and the intersections of gender stereotypes with stereotypes about women of color, lesbians, and aging. The law continues to be a leverage to challenge barriers to women’s leadership in college sports. This Article provides an overview of the relevant legal protections in three cases brought by coaches Beth Burns, Tracey Griesbaum, and Shannon Miller. Their cases expose discrimination and the double standard related to the value of female coaches’ success.

The President's Private Dictionary: How Secret Definitions Undermine Domestic And Transnational Efforts At Executive Branch Accountability, Sudha Setty

Faculty Scholarship

The 2016 EU-U.S. Privacy Shield is an agreement allowing companies to move customer data between the European Union and the United States without running afoul of heightened privacy protections in the European Union. It was developed in response to EU concerns that the privacy rights of its citizens have been systematically abrogated by the U.S. government in the name of national security, and contains a variety of assurances that the United States will respect and protect the privacy rights of EU citizens.

How trustworthy are the U.S. assurances under the Privacy Shield? Both the Bush and Obama administrations secretly interpreted …

Challenging Gender In Single-Sex Spaces: Lessons From A Feminist Softball League, Erin E. Buzuvis

Faculty Scholarship

This Article explores transgender inclusion within adult recreational women’s leagues by using the example of the Mary Vazquez Women’s Softball League (MVWSL), in Northampton, Massachusetts. A MVWSL policy addressing transgender inclusion became necessary due to a noticeable increase in gender-identity diversity. The resultant policy respects the league’s core lesbian constituency by providing individuals with the freedom to acknowledge openly a gender identity that has or is evolving from lesbian to something else, and reflects the league’s founding feminist principles by refusing to define for others the suitability of a women’s community.

The Author demonstrates the successful creation of a policy …

Blatt V. Cabela's Retail, Inc. And A New Path For Transgender Rights, Kevin M. Barry, Jennifer L. Levi

Faculty Scholarship

Since the Supreme Court recognized marriage equality in Obergefell v. Hodges, civil rights advocates have increasingly set their sights on transgender rights as the next legal frontier. Sex discrimination law, though an essential statutory tool, is not the only potential avenue for securing rights for transgender individuals. Another important federal source of protection for transgender people is disability rights law—in particular, the Americans with Disabilities Act (ADA). Disability rights law, unlike sex discrimination law, applies to public accommodations and government services, and also mandates reasonable accommodations. A transgender litigant successfully invoked the protections of the ADA for the first time …

Blurred Lines—Intersexuality And The Law: An Annotated Bibliography, Pat Newcombe

Faculty Scholarship

This Bibliography gathers, organizes, and annotates relevant law review articles (and one monograph) dealing with legal issues concerning intersexuality. Articles are included to introduce researchers to the intricacies involved in the discussion of intersexuality, to examine issues of medical interventions, and to explore possibilities of judicial relief within the existing framework.

Review Of David Cole. Engines Of Liberty: The Power Of Citizen Activists To Make Constitutional Law., Pat Newcombe

Faculty Scholarship

In Engines of Liberty: The Power of Citizen Activists to Make Constitutional Law, David Cole presents a fascinating perspective on constitutional law by recounting three engaging stories of enormous constitutional change and of the organizations and individuals, whose efforts achieved such change. Cole’s accounts are well supported with citations to documents and personal interviews, all written in an accessible, engaging, and clear style. The Author highly recommends this first-rate work to law, general academic, and public libraries.

Original Foreign Affairs Federalism, Gary S. Lawson

Faculty Scholarship

Two of the most doctrinally bewildering topics in American constitutional law are federalism and foreign affairs. Put the two together and it requires the patience of Job and the wisdom of Solomon to navigate, never mind make sense of, the judicial and political accommodations that have arisen over the course of more than two centuries concerning the relative roles of the national, state, and local governments in matters that implicate American involvement with foreign countries and citizens. I will not go so far as to say that Mike Glennon and Rob Sloane’s new book, Foreign Affairs Federalism: The Myth of …

Teaching The Law Of American Health Care, Nicole Huberfeld, Kevin Outterson

Faculty Scholarship

In writing our casebook, The Law of American Health Care, we started from scratch, rethinking the topics to include and themes around which to organize them. Like many health law professors, we were schooled in and continued to propound the traditional themes of cost, quality, access, and choice. While those concerns certainly pervade many areas of health care law, our casebook's overarching themes emphasize different issues, namely: federalism, individual rights, fiduciary relationships, the modem administrative state, and market regulation. These new themes, we believe, better capture the range of issues and topics essential forthe new generation of health lawyers. When …

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 …

Tip Of The Iceberg Ii: How The Intended-Uses Principle Produces Medical Knowledge And Protects Liberty, Christopher Robertson

Faculty Scholarship

In recent years, the Food and Drug Administration’s pre-market approval process has come under increasing scrutiny as an infringement on liberty and a regulation of speech. In the first part of this symposium contribution, we offer a case study of Seroquel XR, showing how the FDA’s premarket approval process – and the restrictions on “off-label” promotion in particular – caused the drug company to produce and disseminate knowledge about safety and efficacy for new uses. The law successfully resolved the collective action problem of producing knowledge, even while the law protected the liberty of individual doctors and patients to use …

The Tip Of The Iceberg: A First Amendment Right To Promote Drugs Off-Label, Christopher Robertson

Faculty Scholarship

Scholars, advocates, and courts have begun to recognize a First Amendment right for the makers of drugs and medical devices to promote their products “off-label,” without proving safety and efficacy of new intended uses. Yet, so far, this debate has occurred in a vacuum of peculiar cases, where convoluted commercial speech doctrine underdetermines the outcome. Juxtaposing these cases against other routine prosecutions of those who peddle unapproved drugs reveals the common legal regime at issue. Review of the seven arguments deployed in the off-label domain finds that, if they were valid, they would undermine the FDA’s entire premarket approval regime. …

Guardianship And Clinical Research Participation: The Case Of Wards With Disorders Of Consciousness, Michael Ulrich

Faculty Scholarship

We review relevant federal law about research on human subjects and state laws on guardian authority to determine whether guardians can consent on behalf of their wards to participation in research. The Common Rule is silent on the issue as are most state guardianship laws. Our analysis shows significant variation in guardians’ decision-making authority in the states that do regulate wards’ participation in research. We consider how the appointment of guardians for patients with disorders of consciousness (DOC) impacts such patients’ access to research. We assert that it is important that such persons be permitted to participate in research, so …

Decreasing Smoking But Increasing Stigma? Anti-Tobacco Campaigns, Public Health, And Cancer Care, Michael Ulrich

Faculty Scholarship

Public health researchers, mental health clinicians, philosophers, and medical ethicists have questioned whether the public health benefits of large-scale anti-tobacco campaigns are justified in light of the potential for exacerbating stigma toward patients diagnosed with lung cancer. Although there is strong evidence for the public health benefits of antitobacco campaigns, there is a growing appreciation for the need to better attend to the unintended consequence of lung cancer stigma. We argue that there is an ethical burden for creators of public health campaigns to consider lung cancer stigma in the development and dissemination of hard-hitting anti-tobacco campaigns. We also contend …

Privacy's Trust Gap, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

It can be easy to get depressed about the state of privacy these days. In an age of networked digital information, many of us feel disempowered by the various governments, companies, and criminals trying to peer into our lives to collect our digital data trails. When so much is in flux, the way we think about an issue matters a great deal. Yet while new technologies abound, our ideas and thinking — as well as our laws — have lagged in grappling with the new problems raised by the digital revolution. In their important new book, Obfuscation: A User’s Guide …

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

Patenting Frankenstein's Monster: Exploring The Patentability Of Artificial Organ Systems And Methodologies, Jordana Goodman

Faculty Scholarship

The conception of Frankenstein’s monster bridges the ever-narrowing divide between man and machine. Long before Congress codified Section 33(a) of the America Invents Act (“AIA”), Mary Shelley’s vague description of the monster’s creation has left people wondering: what defines a human organism? Through an analysis of patent law and scientific progress in the development of artificial organ systems, this paper explores the boundaries of patentable subject matter in the United States and attempts to clarify Congress’s determination that “no patent may issue on a claim directed to or encompassing a human organism.” Though patent law should incentivize development of artificial …

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Faculty Scholarship

For the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We …

Financing The Benefit Corporation, Dana Brakman Reiser, Steven 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 …

Legal Language: Expansion, Consolidation, Resistance, Robert L. Tsai

Faculty Scholarship

Legal language in America, a species of the political discourse of popular sovereignty, underwent significant changes during the nineteenth century. Beyond dramatic changes in the technologies of language, two major sociolegal dynamics of political development drove linguistic innovation during the nineteenth century: expansion and consolidation. Religious revivals and political reform movements, including a number of utopian projects, spread the language of liberty and popular consent as groups migrated west. The sensational 1829 pamphlet known as Walker's Appeal turned America's language of political liberty against the slave trade. David Walker, a former slave, directed his words primarily to the colored people …

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 …