Law Commons^™

Discursive Footnotes, Daniel Yeager

Faculty Scholarship

This essay offers a comprehensive account of the past forty years of scholarship on footnotes within law. Not just any old footnotes, but footnotes that are discursive in form, that is, those with an expressive rather than bibliographic function. After contrasting the function of discursive footnotes in judicial opinions with those in academic legal literature, this essay identifies and decodes a comparatively hidden avant garde footnotes literature. Borrowing from techniques of literary criticism, that literature, properly understood, provides a foundation for our making more subtle judgments about both the relation of primary to secondary texts and the allocation of responsibilities …

Hardwiring Hercules?, Courtney M. Cox

Faculty Scholarship

It is time to reorient the debate over the right to a human decision. Within that debate, the strongest arguments in favor of human decisionmakers are Arguments from Explanation: AI technology is increasingly and necessarily opaque, and so machines should not replace human decisionmakers because machines cannot give the required explanations. Or so the humanist argument goes. Meanwhile, machinists argue that most humanist principles have been deflated by the Better Decision Argument, which reframes such principles as grounding not a right to a human decision, but merely to a “better” decision— whether by human or machine.

This Article turns that …

Incarceration As Sexualized Violence, Leigh S. Goodmark

Faculty Scholarship

Sexual violence—rape, sexual assault, strip and body cavity searches, surveillance, and reproductive abuse—is a regular occurrence in women’s prisons. Some of that violence is clearly illegal; some occupies a legally gray middle ground; and some is considered essential to the operation of the prison system. All of it, however, could violate the law if the victims were not incarcerated. Sexual violence is so pervasive within women’s prisons that incarceration can only be understood as a form of sexualized violence. Given the certainty that people incarcerated in women’s prisons will experience some form of sexual abuse, continued incarceration can only be …

Obituary For The Birth Certificate, Malinda L. Seymore

Faculty Scholarship

Have birth certificates outlived their usefulness? Birth certificates establish an individual’s name, identity, age, race, sex and gender, parental authority, and citizenship. In addition, the information collected at the time of birth and reflected on a long-form birth certificate provides data for public health policy, population statistics, internal migration, government planning, and resource allocation. Birth certificates are also the all-access pass to American life, necessary for many functions of modern life: registering a child in school, signing a child up for soccer, getting a driver’s license and passport, enlisting in the military, and applying for government benefits. All of this, …

Looking Forward, Reflecting Back: The Promise Of Dispute Resolution To Reform The Criminal Legal System, Cynthia Alkon

Faculty Scholarship

The criminal legal system in the United States is plagued by serious and systemic problems. There have been countless efforts at reform over the last many decades that have included changes in what is a crime, how crimes are punished, how prosecutors do their job, and changes in policing. Yet, despite these efforts, problems such as mass incarceration remain deeply embedded. It is easy to be swept up in pessimism when discussing the criminal legal system. Change is hard, at best incremental, and we seem to be in the beginning of an era of backlash against recent reforms. This is …

Comparison Of Groundwater Ownership Regimes In Ten Jurisdictions Across Five Continents, Gabriel Eckstein, Theo Buchler, Caleb Cook, Heping Dang, Robyn Stein, Stefano Burchi, Gabriela Cuadrado Quesada, Juan Pablo Galeano, Eric Garner, Amy Hardberger, Imad Antoine Ibrahim, Oudi Kgomongwe

Faculty Scholarship

The regulation of groundwater remains underdeveloped globally and often lags behind the domestic governance of surface water. As a result, groundwater is often subject to unfettered extraction, uses, and contamination. A clear understanding of ownership is central to the success of domestic regulations. However, the types of ownership regime in place in nations around the world are poorly documented in the academic literature. This study addresses that gap through a comparative analysis of domestic groundwater ownership regimes across ten jurisdictions in nine countries spanning five continents. It identifies three dominant models of groundwater ownership: private ownership, public ownership, and non-ownership …

Symmetry, Presumptions, And The Judges Design, Murat C. Mungan

Faculty Scholarship

An instrumental variables approach called ‘the judges design’ used frequently in social sciences relies on an assumption called ‘average monotonicity’. This assumption pertains to how different judges’ (or other classifiers’) decision making processes relate to each other. Violations of it are hard to detect, which raises the importance of it being supported by a plausible theory. Decisions of judges who solve Bayesian decision problems violate average monotonicity as long as the signals they process are symmetric and they do not possess strong presumptions. This result is extended to cases where judge presumptions are symmetrically distributed and may include strong presumptions. …

Information Law Pluralism, Hannah Bloch-Wehba

Faculty Scholarship

Information-intensive activities are reshaping political, social, and economic institutions. As they respond to these shifts, legislators and regulators are embracing information as a regulatory device for tech. Far from limiting themselves to public disclosure, consumer notice, and other traditional mechanisms of fostering transparency and information flows, however, legislators are using other, more nuanced tools to incentivize regulated entities to obtain, generate, and share information.

This Article maps the landscape of the emerging information-based regimes for regulating tech and assesses their conceptual and practical implications. It canvasses an extensive set of recently enacted laws regulating the information economy and shows that, …

Moral Progress In Legal Doctrine, Philip Petrov

Faculty Scholarship

This article integrates the concept of moral progress – here, moral improvement in the thinking and behavior of individuals over time – into the study of legal doctrine. The article first presents a naturalistic account of what moral progress is and describes three of its most historically and analytically important forms: (1) moral circle expansion, (2) moral domain expansion, and (3) increasing sensitivity to proportionality. The article then analyzes three historical developments in U.S. tort law that qualify as instances of moral progress: (1) the partial demise of the “suicide rule” beginning around the 1980s (according to …

Equal Justice & Generative Ai, Milan R. Markovic

Faculty Scholarship

The United States has long suffered from unequal access to justice, with countless low-and middle-income Americans forced to navigate the legal system alone. Recently, prominent judges, lawyers, and scholars have seized on generative AI as a potential corrective. These techno-optimists maintain that ChatGPT and other large language models can demystify the law and address unmet legal needs. Chief Justice John Roberts has proclaimed that AI-based tools "have the welcome potential to smooth out any mismatch between available resources and urgent needs in our court system."

Although AI will be an increasingly important source of legal assistance for underserved populations, the …

50 State Survey On “Harmful To Minors” Laws And Library Exemptions/Defenses, Rebecca A. Mattson, Shay Elbaum, Amanda Mccormick, Dan Sawall, Victoria Tokar, Eric Yap

Faculty Scholarship

No abstract provided.

Weaponizing Religion Against The Human Emotion Of Empathy: A Call To Fight Coercive Settlement Attempts On The Merits, Jeffrey Dodge

Faculty Scholarship

In March 2023, America First Legal filed a lawsuit against West Shore School District in Camp Hill, Pennsylvania. In the complaint, the plaintiffs argued that empathy related instruction from the district’s social emotional learning curriculum violated their parental and religious rights. Nearly every headline about the lawsuit included a quote from a plaintiff parent asserting that “Not every human is deserving of my child’s empathy.” At the time of filing, America First Legal and counsel, Wally Zimolong, argued that students in this school district were illegally being subjected to a radical and invasive curriculum.

School officials denied wrongdoing in receiving …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Are Private Equity Funds Liable For Anticompetitive Acquisitions?, Aslihan Asil, Paulo Henrique Alcantara Ramos, Amanda Starc, Thomas Wollmann

Faculty Scholarship

Private equity acquisitions grew tenfold over the past two decades. Over the same period, their focus shifted from financial engineering to industry consolidation, raising antitrust concerns. Heightening these concerns, privately backed acquisitions of competitors historically escaped detection by federal antitrust authorities in their incipiency because they fell below the reporting thresholds of the Premerger Notification Program. However, academic studies and agency investigations are now unearthing these transactions. Most salient is a recent complaint filed by the Federal Trade Commission challenging a series of acquisitions stretching back ten years.

In the wave of litigation that is likely to follow this “groundbreaking” …

Purpose-Driven Compliance, Veronica Root Martinez

Faculty Scholarship

Whether it is a small brokerage firm in Ann Arbor, Michigan, a private university in Cambridge, Massachusetts, or a multinational conglomerate head-quartered in New York City, organizations understand that they are required to fulfill a range of compliance obligations. Compliance programs today tend to have two important characteristics in common. First, the notion that perfect compliance is an impossible goal is a key component of the understandings and expectations of many firms’ compliance programs. Second, organizations have almost uniformly adopted compliance programs in areas where enforcement activity has been significant—like in the areas of antibribery and anticorruption, anti-money laundering, antitrust, …

The Foreign Commerce Power, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between …

The Effect Of Provider Diversity On Racial Health Disparities: Evidence From The Military, Michael Frakes, Jonathan Gruber

Faculty Scholarship

We assess the relationship between the racial diversity of medical providers and racial health disparities in the use of preventive care and in patient outcomes. We use unique data from the Military Health System, where we observe providers as patients so that we can identify their race, and where moves across bases change exposure to provider race in a plausibly exogenous fashion. We consider patients with four chronic, deadly, but manageable illnesses, where the relationship with the provider may have the most direct impact on health. We find striking evidence that provider racial diversity leads to reduced disparities in maintenance …

The Eighth Amendment And Prison Staff-To-Sentenced Prisoner Sexual Violence, Matthew Lyskawa

Faculty Scholarship

In this Article, I provide the first comprehensive account of lower federal courts’ Eighth Amendment prison conditions jurisprudence regarding prison staff-to-sentenced prisoner sexual violence. I show that lower federal courts are systematically misunderstanding and misapplying Supreme Court case law in this context. The result is that sexually victimized prisoners must meet extremely burdensome doctrinal standards unique to sexual violence claims. Lower federal courts would faithfully follow Supreme Court precedent if they applied the excessive force standard to sexual assault claims and the conditions of confinement standard to sexual harassment claims. However, a faithful application of Supreme Court case law does …

Llm-Assisted Legal Propositions Identification From Party Arguments In The U.S. Supreme Court Briefs, Heng Zheng, Alex Zhang

Faculty Scholarship

Merits briefs are central to U.S. litigation, serving as the primary means for parties to present arguments and persuade judges. Legal propositions in these merits briefs are the atomic units of arguments, whose relationships evolve throughout litigation and inform court decisions and precedent. Large language models (LLMs) have been applied to legal document review, but there is limited evidence on their ability to identify legal propositions in merits briefs. Given the labor-intensive nature of the task, we evaluate a human-AI collaborative approach to identifying legal propositions in the U.S. Supreme Court merits briefs, in which legal annotators review and revise …

Cumulative Burdens On Second Amendment Rights, Joseph Blocher, Hayley Lawrence

Faculty Scholarship

No abstract provided.

Mahmoud V. Taylor: Cause Or Effect Of Disruptions In Public Schools?, Richard B. Katskee, Ira C. Lupu

Faculty Scholarship

Mahmoud v. Taylor represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools. In Mahmoud, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder.

Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against …

Applying History As Law: The Role Of Historical Facts In Implementing Constitutional Doctrine, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory …

Living Constitutionalism, Originalism, And The Sixteenth Amendment, Donald B. Tobin, Alex Tobin

Faculty Scholarship

No abstract provided.

A Public Trust Theory Of Government Information, Sharon Sandeen

Faculty Scholarship

In the sixth century, the Roman Emperor Justinian declared that certain resources should be for the benefit of all of mankind, thereby planting the seeds of what is referred to as the public trust doctrine. Two core ideas behind the doctrine, which have evolved and expanded over time, are: (1) there are certain critical resources that should be available for all to use; and (2) governments that own or control those resources should preserve and manage them for the public good.

As insightful as Justinian was, his vision was naturally constrained by the times in which he lived, which was …

Export Controls As Intellectual Property Regulation, Doni Bloomfield

Faculty Scholarship

Export-control laws have long regulated information created outside of the U.S. government. Legal scholars have paid little attention to these national-security laws, and have not recognized that the government uses them specifically to assert a right to suppress information held in patent applications and trade secrets. In this Article, I present a new history of the relationship between export controls and intellectual property to show how the government regulates IP transfers, and how the state uses IP laws to national-security ends. Export-control laws regulate IP by controlling how people in the United States and beyond can share or use inventive …

Gamification: The Viability Of Using Genai To Create Games To Teach Legal Concepts, Nicole Belbin

Faculty Scholarship

This Essay examines whether generative artificial intelligence (GenAI) can lower the technical, time, and cost barriers that have limited the use of game-based learning (GBL) in legal education. It first considers the science of learning, focusing on spaced practice, retrieval practice, and concrete examples, and explains how GBL can incorporate these strategies. It then evaluates four general-purpose GenAI tools—Perplexity, Gemini, ChatGPT, and Claude—by testing their ability to state legal rules accurately and create games that teach personal jurisdiction.

The results demonstrate both GenAI’s promise and its limitations. Although all four tools incorporated core concepts of general jurisdiction, each omitted at …

Cold Comfort: Japan’S “Comfort Women” Litigation Under Transnational Law, Timothy Webster

Faculty Scholarship

Transnational human rights litigation has emerged as a powerful tool to remediate state and corporate abuses. Courts, however, rarely evince the same enthusiasm for these lawsuits as practitioners, scholars, and activists. For the past thirty-five years, “comfort women,” or survivors of wartime sexual exploitation, have used transnational litigation to seek redress from the Japanese government. Yet they have lost nearly all their cases. This Article uses ten “comfort women” lawsuits from Japan to test the limits of transnational human rights litigation. While judges rarely found for the comfort women, their verdicts nonetheless advanced the redress issue by showing the illegality …

Peeking Inside The Black Box: Discovery In Fair Housing Act Cases Arising From Ai Decision Making, Jessica Mahon Scoles

Faculty Scholarship

In today’s real estate market, more housing decisions are being automated. If artificial intelligence renders a biased decision, will the person impacted have any legal recourse? Commentators have expressed concern that the proprietary nature of AI will allow defendants in discrimination lawsuits to avoid discovery, effectively shielding their decision making from judicial scrutiny. This article examines whether AI and algorithm-related information is the discovery black box that some fear it to be.

Addressing the issue in the context of Fair Housing Act (FHA) litigation, the article argues that concerns about access to AI and algorithm-related discovery are overstated. In real …

2026 Supplement To The Corporations Curriculum - Caremark: The Board's Duty Of Oversight Regarding Work Force Safety And Sexual Misconduct, Sarah Haan

Faculty Scholarship

No abstract provided.

Searches And Seizures Of The Unhoused, Shawn E. Fields

Faculty Scholarship

The United States recorded its largest ever unhoused population in 2024. Acute affordable housing shortages and climate-fueled natural disasters have exacerbated a decades-long unaddressed humanitarian crisis, straining resources in cities and rural areas alike. In response, state and local governments have pivoted to a more punitive approach to houselessness. Draconian "anti-camping" ordinances subject houseless people to fines or arrests while police destroy their property in encampment "sweeps," disconnecting the unhoused from critical social structures. Quality-of-life laws criminalize basic biological functions in public. New York, California, and other states have expanded the reach of involuntary civil commitment procedures, forcibly hospitalizing and …