Law Commons^™

What's Wrong With The Ncaa's New Transgender Athlete Policy?, Erin E. Buzuvis

Faculty Scholarship

This Article examines the NCAA’s 2022 transgender athlete participation policy, which replaced the 2011 uniform eligibility rule with a sport-by-sport approach deferring to external governing bodies. It assesses the ambiguities created by this deference, particularly in sports where no clear policy exists, as well as the arbitrariness of the default testosterone threshold the NCAA adopted. It analyzes the tension between the NCAA’s stated alignment with Olympic frameworks and the reality that those frameworks were not designed for the collegiate context. It also considers the legal risks posed to NCAA member institutions, including potential liability under Title IX and the Equal …

Weaponizing Fear, Lisa S. Washington

Faculty Scholarship

No abstract provided.

Survived & Coerced: Epistemic Injustice In The Family Regulation System, Lisa S. Washington

Faculty Scholarship

No abstract provided.

Reimagining Langdell's Legacy: Puncturing The Equilibrium In Law School Pedagogy, Danielle L. Tully, Rachel Gurvich, Laura Webb, Alexa Chew, Jane Cross, Joy Kanwar

Faculty Scholarship

No abstract provided.

Mypillow Lands Hard In Judge Wright’S Court, Michael K. Steenson

Faculty Scholarship

In Smartmatic USA Corp. v. Lindell, Smartmatic sued Michael Lindell and MyPillow, Inc. in Minnesota federal district court, alleging defamation and violation of Minnesota’s Deceptive Trade Practices Act based on Lindell’s claims of fraud in the 2020 presidential election, including that Smartmatic voting machines were rigged. This post focuses on Smartmatic’s defamation claim against Lindell and MyPillow.

Dual Federalism, Constitutional Openings, And The Convention On The Rights Of Persons With Disabilities, Benjamin Barsky

Faculty Scholarship

The Convention on the Rights of Persons with Disabilities (“CRPD”) represents a historic achievement for the global disability rights movement. Yet, when the U.S. Senate refused to ratify it on December 4, 2012, its influence on American law and policy seemed doomed. The Founders, after all, had conceived of a constitutional vision where the federal government acts as the ultimate arbiter of questions of international policy. Under this vision of “dual federalism”—which dominated how the legal profession understood U.S. involvement in foreign affairs for over a century—only the federal political branches have the power to make and implement international laws …

Lost In The Maze: Refugees And The Law, Moria Paz

Faculty Scholarship

No abstract provided.

Investigating Design, Mark Mckenna, Jessica Silbey

Faculty Scholarship

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.
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/="/">Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap …

Obergefell, Masterpiece Cakeshop, Fulton, And Public-Private Partnerships: Unleashing V. Harnessing "Armies Of Compassion" 2.0?, Linda C. Mcclain

Faculty Scholarship

Fulton v. City of Philadelphia presented a by-now familiar constitutional claim: recognizing civil marriage equality—the right of persons to marry regardless of gender—inevitably and sharply conflicts with the religious liberty of persons and religious institutions who sincerely believe that marriage is the union of one man and one woman. While the Supreme Court’s 9-0 unanimous judgment in favor of Catholic Social Services (CSS) surprised Court-watchers, Chief Justice Roberts’s opinion did not signal consensus on the Court over how best to resolve the evident conflicts raised by the contract between CSS and the City of Philadelphia. This article argues that it …

The Role Of Data For Ai Startup Growth, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial intelligence (“AI”)-enabled products are expected to drive economic growth. Training data are important for firms developing AI-enabled products; without training data, firms cannot develop or refine their algorithms. This is particularly the case for AI startups developing new algorithms and products. However, there is no consensus in the literature on which aspects of training data are most important. Using unique survey data of AI startups, we find that startups with access to proprietary training data are more likely to acquire venture capital funding.

Waste And The Governance Of Private And Public Property, Joseph A. Schremmer, Tara K. Righetti

Faculty Scholarship

Common law waste doctrine is often overlooked as antiquated and irrelevant. At best, waste doctrine is occasionally examined as a lens through which to evaluate evolutions in modern property theory. We argue here that waste doctrine is more than just a historical artifact. Rather, the principle embedded in waste doctrine underpins a great deal of property law generally, both common law and statutory, as well as the law governing oil and gas, water, and public trust resources. Seen for what it is, waste doctrine provides a fresh perspective on property, natural resources, and environmental law.

In this Article, we excavate …

No “Box To Be Checked”: Environmental Justice In Modern Legal Practice, Clifford J. Villa

Faculty Scholarship

For nearly thirty years, environmental justice has been part of our civic conversation and included in the mission of federal agencies. But while public attention to environmental justice has waxed and waned over time, environmental justice principles have endured and developed into rules of law. This development may be expected to continue and accelerate with recent events such as the nationwide outcry after the police killing of George Floyd in 2020, the disparate impacts of COVID-19 on people of color, and the express priorities of the Biden administration. This paper seeks to help legal practitioners and other interested parties comprehend …

Adapting To A 4°C World, Clifford Villa

Faculty Scholarship

The Paris Agreement’s goal to hold warming to 1.5°-2°C above pre-industrial levels now appears unrealistic. Profs. Robin Kundis Craig and J.B. Ruhl have recently argued that because a 4°C world may be likely, we must recognize the disruptive consequences of such a world and respond by reimagining governance structures to meet the challenges of adapting to it. In this latest in a biannual series of essays, they and other members of the Environmental Law Collaborative explore what 4°C might mean for a variety of current legal doctrines, planning policies, governance structures, and institutions.

A Contentious Mission: Water Supply And Corps Of Engineers Reservoirs, Reed D. Benson

Faculty Scholarship

The U.S. Army Corps of Engineers operates hundreds of multi-purpose reservoirs nationwide, many of which provide water for municipal and industrial purposes. Demands for water from Corps reservoirs are sure to grow, and Congress has ordered the Corps to report on whether water supply should become a primary mission of the agency. The Corps has experienced controversy over water supply decisions, including disputes involving its Missouri River reservoirs and Lake Lanier in Georgia. When the Corps proposed a national Water Supply Rule in 2016 it drew significant opposition, forcing the agency to withdraw the rule and reassess its policies. This …

A Unifying Doctrine Of Subsurface Property Rights, Joseph A. Schremmer

Faculty Scholarship

This Article advances the “fair opportunity doctrine,” a theory of subsurface property rights that systematizes the case law in this confused area using formal legal reasoning. This theory offers a jurisprudential approach to analyzing private law that can then be applied to the field of subsurface property. This approach emphasizes the law’s role in providing ex ante guidance to members of a community in ordering their affairs and interactions with others and the importance of coherence in that function. On this basis, the “fair opportunity doctrine” improves substantially on the current state of subsurface property law and demonstrates the potential …

When Desperate Patients Go To Court For Unproven Treatments - The Battle For Hospital Independence, Christopher Robertson, Margaret Houtz

Faculty Scholarship

As the Covid-19 pandemic wears on, patients have asked courts to compel hospitals to administer unproven therapies, with mixed legal results. Although talk radio hosts, politicians, and social media users have promoted various treatment approaches, they have given particular attention to ivermectin. The Food and Drug Administration (FDA) has approved ivermectin for use in humans for treating onchocerciasis (river blindness), intestinal strongyloidiasis, certain other parasitic worms, head lice, and skin conditions such as rosacea. Although this approval facilitates legal offlabel use for prophylaxis against or treatment of other conditions, both the FDA and the Centers for Disease Control and Prevention …

Of Afrofuturism, Of Algorithms, Ngozi Okidegbe

Faculty Scholarship

Algorithms are proliferating in criminal legal structures. The predictions produced by these algorithms inform life-altering decisions around surveillance and incarceration. Their continued use poses a challenge to ongoing racial justice efforts. Contesting how algorithms of today maintain the racial status quo requires a fundamental rethinking of the algorithm project. This essay explores how Afrofuturism can facilitate such a rethinking. It imagines how applying an Afrofuturist paradigm to the adoption, construction, implementation, and oversight of algorithms could radically change the kind of algorithms developed and the purposes for which they are developed. Tapping into this potential offers the chance for members …

Legislating Data Loyalty, Woodrow Hartzog, Neil Richards

Faculty Scholarship

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

Why Judges Can't Save Democracy, Robert L. Tsai

Faculty Scholarship

In The Specter of Dictatorship,¹ David Driesen has written a learned, lively book about the dangers of autocracy, weaving together incisive observations about democratic backsliding in other countries with a piercing critique of American teetering on the brink of executive authoritarianism at home. Driesen draws deeply and faithfully on the extant literature on comparative constitutionalism and democracy studies. He also builds on the work of scholars of the American political system who have documented the largely one-way transfer of power over foreign affairs to the executive branch. Driesen's thesis has a slight originalist cast, holding that "the Founders aimed …

Empathic Solidarity On The Frontline, Julie A. Dahlstrom

Faculty Scholarship

Jacqueline Bhabha's important article, The Imperative of Sustaining (Rather Than Destroying) Frontline Empathic Solidarity for Distress Migrants, highlights the pivotal role that "frontline communities" now play in international migration. Bhabha explores how frontline communities frequently lack the infrastructure, political will, and resources to respond adequately to "distress migrants." Yet, she unearths the potential of "empathic solidarity" to counteract bias and, more optimistically, provide a "welcoming and humanizing experience" to migrants. Indeed, in this hopeful, ambitious article, Bhabha posits that empathic solidarity can play a significant generative role for migrants' rights.

The 1876 Election: A Fictionalized Account, Jack M. Beermann

Faculty Scholarship

After the 1985 death of Robert Todd Lincoln Beckwith extinguished the Lincoln line a lengthy manuscript, containing this episode, was found among his papers. The manuscript was inscribed with these words: “This is a history of what might have been. Real places and names have been used but many of the details, including widely-known events and personalities, have been fictionalized. My hope is that someday, many years from now, historians might discover this manuscript and become confused.” The identity of the author is not revealed.

This is a fictionalized version of the Electoral Commission’s proceedings and the proceedings in Congress …

Hidden Agendas In Shareholder Voting, Scott Hirst, Adriana Z. Robertson

Faculty Scholarship

Nothing in either corporate or securities law requires companies to notify investors what they will be voting on before the record date for a shareholder meeting. We show that, overwhelmingly, they do not. The result is “hidden agendas”: for 88% of shareholder votes, investors cannot find out what they will be voting on before the record date. This poses an especially serious problem for investors who engage in securities lending: they must decide whether the expected benefit of voting exceeds the expected benefit of continuing to lend their shares (or making them available for lending) without knowing what they will …

Privacy Pretexts, Rory Van Loo

Faculty Scholarship

Data privacy’s ethos lies in protecting the individual from institutions. Increasingly, however, institutions are deploying privacy arguments in ways that harm individuals. Platforms like Amazon, Facebook, and Google wall off information from competitors in the name of privacy. Financial institutions under investigation justify withholding files from the Consumer Financial Protection Bureau by saying they must protect sensitive customer data. In these and other ways, the private sector is exploiting privacy to avoid competition and accountability. This Article highlights the breadth of privacy pretexts and uncovers their moral structure. Like most pretexts, there is an element of truth to the claims. …

Civil Rights Catch 22s, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as a vital path to social change. In many ways, it is. But in key respects that remain underexplored in legal scholarship, even successful litigation can hinder remedial projects. This perverse effect stems from civil rights doctrines that incentivize litigants (or their attorneys) to foreground community plight—such as academic underachievement or overincarceration. Rational plaintiffs, responding in kind, deploy legal narratives that tend to track racial stereotypes and regressive theories of inequality. When this occurs, even successful lawsuits can harden the structural and behavioral forces that produce and perpetuate racial inequality.

I refer to …

The Surprising Virtues Of Data Loyalty, Woodrow Hartzog, Neil M. Richards

Faculty Scholarship

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

Of Reservation Boundary Lines And Judicial Battle Lines, Part 1 - Reservation Diminishment/Disestablishment Cases From 1962 To 1975: The Indian Law Justice Files, Episode 1, John P. Lavelle

Faculty Scholarship

This Article is the first of a two-part investigation into the Indian law doctrine of reservation diminishment/disestablishment, examining Supreme Court decisions in this area in light of insights gathered from the collected papers of individual Justices archived at the Library of Congress and various university libraries. The Article first addresses Seymour v. Superintendent (1962) and Mattz v. Arnett (1973), observing that these first two diminishment/disestablishment cases are modern applications of basic, longstanding principles of Indian law which are highly protective of Indigenous people’s rights and tribal sovereignty. The Article then examines in detail DeCoteau v. District County Court, the anomalous …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …

Punitive Surveillance, Kate Weisburd

Faculty Scholarship

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people …

Trailblazing And Living A Purposeful Life In The Law: A Dakota Woman's Reflections As A Law Professor, Angelique Eaglewoman

Faculty Scholarship

This Essay is a reflection from my perspective as a Dakota woman law professor on my fifth law school faculty. In the illuminating work of Meera Deo, light is shone on the experience of women of color legal academics. Unequal Profession: Race and Gender in Legal Academia is a book that should be required reading at every law school. As women of color are faculty members in every law school in the United States, the research, analysis, and recommendations tailored to the experience of women of color law faculty should be a priority topic in those same law schools. As …

The Direct-Derivative Distinction, The Special Litigation Committee, And The Uniform Act: A Response To Professor Weidner, Daniel S. Kleinberger

Faculty Scholarship

The Unfortunate Role of Special Litigation Committees in LLCs has a deeply pejorative view of the Uniform Law Commission “second generation” limited liability company act, and that view extends far deeper than the target suggested by the article’s title. The article’s fundamental attack is on the distinction between direct and derivative claims; the criticisms of ULLCA’s provisions on special litigation committees depend on that attack. In support of its wide-ranging attack, The Unfortunate Role seeks to marshal history, policy, logic, and a research study pertaining to the outcome of derivative claims. Unfortunately, however, the article (i) misapprehends the drafting history …