Law Commons^™

Questions Of Intellectual Property And Fundamental Values In The Digital Age, Jessica Silbey

Faculty Scholarship

Today's intellectual property debates, in both law and the larger society, are a bellwether of changing justice needs in the twenty-first century. As the digital age democratizes technological opportunities, it brings intellectual property law into mainstream everyday culture. This generates debates about the relationship between the constitutional interest in "the progress of science and useful arts" and other fundamental values, such as equality, privacy, and distributive justice. These values, which were not explicitly part of intellectual property regimes in prior eras, are especially challenged in today's internet world.

The article (which was presented as the annual Nies Lecture in April …

Climate Choice Architecture, Felix Mormann

Faculty Scholarship

Personal choices drive global warming nearly as much as institutional decisions. Yet, policymakers overwhelmingly target large-scale industrial facilities for reductions in carbon emissions, with individual and household emissions a mere afterthought. Recent advances in behavioral economics, cognitive psychology, and related fields have produced a veritable behavior change revolution. Subtle changes to the choice environment, or nudges, have improved stake-holder decision-making in a wide range of contexts, from healthier food choices to better retirement planning. But the vast potential of choice architecture remains largely untapped for purposes of climate policy and action. This Article explores that untapped potential and makes the …

Opening The Virtual Window: How On-Line Processes Could Increase Access To Justice In The Criminal Legal System, Cynthia Alkon, Amy Schmitz

Faculty Scholarship

This article explores the potential of technology to improve access to justice (A2J) in criminal courts, specifically for nonviolent misdemeanor cases. Despite a push for innovation in courts, criminal courts have been slow to embrace change and technological innovation due to factors like constitutional constraints and funding limitations. This article argues that criminal courts need "virtual windows" alongside traditional "brick and mortar doors" to enhance A2J. It proposes a problem-solving approach focusing on misdemeanor cases, a high-volume category where technology can have a significant impact. The paper highlights the importance of ensuring defendants make "knowing and intelligent" pleas despite the …

The Environmental Democracy That Was, Then Wasn't, But Could Be Again, Daniel E. Walters

Faculty Scholarship

Over the 50 years since former EPA Administrator William D. Ruckelshaus wrote The Citizen and the Environmental Regulatory Process, much has changed. On the one hand, participation in environmental regulatory decisionmaking has flourished, but on the other, Ruckelshaus's prediction of growing consensus around the environmental movement has proven illusory. In this short essay reflecting on participation in environmental regulatory decisionmaking, I highlight what Ruckelshaus was right about and, just as importantly, where his vision of environmental participatory governance might need some updating. Looking back at the dawn of environmental democracy in the regulatory process and comparing it to the …

Would You Make It To The Future? Teaching Race In An Assisted Reproductive Technologies And The Law Classroom, Sonia Gipson Rankin

Faculty Scholarship

Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race? In …

Essential Property, Timothy M. Mulvaney, Joseph William Singer

Faculty Scholarship

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws.

The …

Achieving Law Reform Sometimes Requires A Strong Defense, William H. Henning

Faculty Scholarship

In 2019, a joint drafting committee authorized by the Uniform Law Commission and the American Law Institute began work on a sweeping set of amendments to the official text of the Uniform Commercial Code (UCC) that address issues arising from emerging technologies. The amendments were approved by the sponsoring organizations at their 2022 annual meetings, and efforts are already underway to gain uniform nationwide enactment by state legislatures. The most significant changes to the UCC consist of a new Article 12 dealing with digital assets and amendments to Article 9 that facilitate the leveraging of these assets. Also in 2019, …

The Private Law Of Stablecoins, Kara J. Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Stablecoins are one of the cornerstones of the crypto world. They’ve attracted significant attention over the past few years, ranging from Wall Street to kitchen table investors, and even the White House. As a less volatile alternative to crypto-assets like bitcoin, stablecoins have the potential to change the way we make payments, unlock the groundwork needed for more blockchain-based applications, and even reorient the economy toward private money. But how stable are these stablecoins, really? Can they be relied upon in the way their many proponents claim? And how much of the popular beliefs about stablecoins match their realities? That’s …

Why Money Is Well Spent On Time, Michael Ulrich

Faculty Scholarship

There are a few reasons why incentivizing clinicians to spend more time with patients can improve health outcomes. Doing so affords clinicians time to assess social determinants’ influences on their patients’ health experiences; offers opportunities to identify and respond to patients’ loneliness; and helps motivate patients’ trust in health care, strengthen patient-clinician relationships, and bolster patients’ adherence to clinicians’ recommendations.

An Empirical Study Of Copyright's Substantial Similarity Test, Clark D. Asay

Faculty Scholarship

The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.

To help provide a clearer empirical assessment of the test, this study …

"Keep To The Code”: A Global Code Of Conduct For Third-Party Funders, Victoria Sahani

Faculty Scholarship

Global commercial third-party funding has given rise to wide-ranging regulatory approaches worldwide. Consequently, funders can engage in cross-border regulatory arbitrage by exploiting regulatory gaps within and among nations. This Article argues that the global community of nations should articulate a universal approach to the behavioral expectations of third-party funders operating transnationally, independent of local laws regarding the technical business of funding. It asserts that the key to fostering the ethical development of the third-party funding industry is to develop a globally applicable but locally enforced code of conduct or professional responsibility for the industry. Moreover, a successful regime for funder …

Contracts Scholarship Beyond Materialisierung, Daniela Caruso

Faculty Scholarship

This comment aims to show how Klaus Eller's paper on ‘The Political Economy of Tenancy Contract Law raises the stakes of private law scholarship and contributes to the larger project of remodeling legal institutions in a progressive direction. The comment starts by contextualising the rapid spread of the Law and Political Economy (LPE) movement; illustrates through examples the generative impact of LPE on contemporary contracts scholarship; and highlights two strands of Eller’s original contribution to such literature: a welcome reflection on the value and limits of Materialisierung, and a radical widening of the private law inquiry to include institutional …

Designing For Justice: Pandemic Lessons For Criminal Courts, Cynthia Alkon

Faculty Scholarship

March 2020 brought an unprecedented crisis to the United States: COVID-19. In a two-week period, criminal courts across the country closed. But, that is where the uniformity ended. Criminal courts did not have a clear process to decide how to conduct necessary business. As a result, criminal courts across the country took different approaches to deciding how to continue necessary operations and in doing so many did not consider the impact on justice of the operational changes that were made to manage the COVID-19 crisis. One key problem was that many courts did not use inclusive processes and include all …

Optimizing Disaster Preparedness Planning For Minority Older Adults: One Size Does Not Fit All, Omolola E. Adepoju, Luz E. Herrera, Minji Chae, Daikwon Han

Faculty Scholarship

By 2050, one in five Americans will be 65 years and older. The growing proportion of older adults in the U.S. population has implications for many aspects of health including disaster preparedness. This study assessed correlates of disaster preparedness among community-dwelling minority older adults and explored unique differences for African American and Hispanic older adults. An electronic survey was disseminated to older minority adults 55+, between November 2020 and January 2021 (n = 522). An empirical framework was used to contextualize 12 disaster-related activities into survival and planning actions. Multivariate logistic regression models were stratified by race/ethnicity to examine the …

Comments Of The Cordell Institute For Policy In Medicine & Law At Washington University In St. Louis, Neil Richards, Woodrow Hartzog, Jordan Francis

Faculty Scholarship

The Federal Trade Commission—with its broad, independent grant of authority and statutory mandate to identify and prevent unfair and deceptive trade practices—is uniquely situated to prevent and remedy unfair and deceptive data privacy and data security practices. In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all …

Contractual Complexity, Spencer Williams

Faculty Scholarship

Lawyers, judges, scholars, and clients all agree on one thing about contracts: they are complex. But what does this actually mean? What is contractual complexity and where does it come from? Despite widespread agreement that contracts are complex, the literature on contracts has yet to effectively define contractual complexity. Furthermore, the literature lacks a general theory of complexity that connects it to the broader body of contracts scholarship. This Article aims to fill these gaps. Drawing on complexity theory, the Article argues that contractual complexity is the degree of interactivity between a contract’s terms. Building on this definition, the Article …

Centering Black Women In Patent History, Jessica Silbey

Faculty Scholarship

Professor Kara Swanson’s latest article is a remarkable example of legal historical scholarship that excavates stories from the past to illuminate the present. It is chock full of archival evidence and historical analysis that explains gaps and silences in the United States patent registry as evidence of marginalized inventors–particularly Black women–who should be named inventors but are not.

The article is arresting reading for anyone interested in antebellum history, intellectual property, and the intersection of racism and sexism in law. Mostly, I am grateful to Professor Swanson for doing the obviously very hard work of digging through archives, reading microfiche, …

Responsibility, Lawyering, Justice, David Mcgowan

Faculty Scholarship

Between 1942 and 1946, approximately 112,000 persons of Japanese ancestry were ordered to leave their homes and were transported to internment camps where they were held under armed guard. Four cases litigated before the United States Supreme Court dealt with orders related to this policy: Hirabayishi v. United States, Yasui v. United States, Korematsu v. United States, and ex parte Endo. Property deprivation related to internment was at issue in Oyama v. California. This note discusses whether the Solicitor General of the United States violated a duty of candor in Hirabayashi and Yasui or in Korematsu. That question requires analysis …

Using Artificial Intelligence In The Law Review Submissions Process, Brenda M. Simon

Faculty Scholarship

The use of artificial intelligence to help editors examine law review submissions may provide a way to improve an overburdened system. This Article is the first to explore the promise and pitfalls of using artificial intelligence in the law review submissions process. Technology-assisted review of submissions offers many possible benefits. It can simplify preemption checks, prevent plagiarism, detect failure to comply with formatting requirements, and identify missing citations. These efficiencies may allow editors to address serious flaws in the current selection process, including the use of heuristics that may result in discriminatory outcomes and dependence on lower-ranked journals to conduct …

Discredited Data, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data.
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/="/">This Article contends that biased data is not the sole cause of algorithmic discrimination. Another reason pretrial algorithms produce biased results is that they are exclusively built and trained with data from carceral knowledge sources – the …

Characterizing Legal Implications For The Use Of Transboundary Aquifers, Gabriel Eckstein

Faculty Scholarship

Groundwater resources that traverse political boundaries are becoming increasingly important sources of freshwater in international and intranational arenas worldwide. This is a direct extension of the growing need for new sources of freshwater, as well as the impact that excessive extraction, pollution, climate change, and other anthropogenic activities have had on surface waters. It is also a function of the growing realization that groundwater respects no political boundaries, and that aquifers traverse jurisdictional lines at all levels of political geography.

Due to this growing awareness, questions pertaining to responsibility and liability are now being raised in relation to the use, …

Do Not Put All Your Eggs In One Basket: Social Perspectives On Desalination And Water Recycling In Israel, Gretchen Sneegas, Lucas Seghezzo, Christian Brannstrom, Wendy Jepson, Gabriel Eckstein

Faculty Scholarship

Israel has set ambitious goals in terms of the widespread adoption of desalination and water recycling technologies. Policymakers in Israel consider these technologies as the key to improve urban water security but knowledge of stakeholder views on this policy approach is not well established. We deployed the Q-methodology, a qualitative–quantitative approach, to empirically determine social perspectives on desalination and water recycling across a wide range of stakeholders in the Israeli water sector. We identified the following four distinctive social perspectives: (1) desalination should be the option of last resort; (2) desalination is moving us to an infinite resource; (3) equating …

Running On Empty: Ford V. Montana And The Folly Of Minimum Contacts, James P. George

Faculty Scholarship

Jurisdictional contests are in disarray. Criticisms date back to the issuance of International Shoe Co. v. Washington but the breakdown may be best illustrated in two recent Supreme Court opinions, the first rejecting California’s “sliding scale” that mixes general and specific contacts, the second using the discredited sliding scale to hold Ford amenable in states where accidents occurred.

California’s sliding scale is one variety of the contacts-relatedness tests, used in lower courts to have general contacts bolster weaker specific contacts. Some states—Montana and Minnesota for example—use the opposite extreme requiring a causal connection in defendant’s forum contacts, often using foreseeability …

Letting Offenders Choose Their Punishment?, Gilles Grolleau, Murat C. Mungan, Naoufel Mzoughi

Faculty Scholarship

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the …

In The Name Of Energy Sovereignty, Guillermo J. Garcia Sanchez

Faculty Scholarship

Throughout history, the phrase "In the name of the King" justified actions that trumped the rights of citizens in order to safeguard the interests of the Crown. Today, in the name of energy sovereignty, states deploy the government apparatus to access oil and gas in other parts of the world, build pipelines on private lands, subsidize renewable energy, and nationalize their oil and power industries. States justify each of these actions by noting that they create a sense of energy independence, ensure security, or achieve other social and economic goals. Energy, however, cannot be trapped in one "realm." Its nature …

Aggregation And Abuse: Mass Torts In Bankruptcy, Edward J. Janger

Faculty Scholarship

No abstract provided.

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

Faculty Scholarship

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …

The Role Of Departments In The Design Of The Federal Government, Jack M. Beermann

Faculty Scholarship

Reviewing Blake Emerson,The Departmental Structure of Executive Power: Subordinate Checks from Madison to Mueller, 38 Yale J. Reg. 90 (2021)

Adherents to the unitary executive theory, which posits that the Constitution grants the President complete and absolute control over the execution of the law, claim that their view is required by the text of the Constitution, especially Article II’s vesting clause which proclaims that the “Executive Power shall be vested in a President of the United States of America.” As Justice Scalia put it, “this does not mean some of the executive power, but all of the …

Balancing Rights And Responsibilities: The Role Of Government And Citizens In Combatting Gun Violence, Michael Ulrich

Faculty Scholarship

Congress passed the first federal legislation on firearms safety in decades at nearly the same moment that the Supreme Court issued its first major Second Amendment decision since 2008. It will take time to assess the effects of these actions on both gun safety and Second Amendment rights, but, with gun violence skyrocketing across the country, it is clear that finding a balance between rights and safety is desperately needed. The public is ill-equipped to protect itself against the broad harms of gun violence, so the government has a central role to play in addressing those harms and the racial …

Bridging The Computer Science – Law Divide, Azer Bestavros, Stacey Dogan, Paul Ohm, Andrew Sellars

Faculty Scholarship

Many pressing societal questions can be answered only by bringing experts from different disciplines together. Questions around misinformation and disinformation, platform power, surveillance capitalism, information privacy, and algorithmic bias, among many others, reside at the intersection of computer science and law. We need to develop institutions that bring together computer scientists and legal scholars to work together on issues like these, and to train new innovators, thought leaders, counselors, and policymakers with hybrid training in both disciplines. In Universities, the disciplines of Computer Science (CS) and Law are separated by many wide chasms. Differences in standards, language, methods, and culture …