Law Commons^™

Legal Market Decartelization, Milan Markovic, Nuno Garoupa

Faculty Scholarship

American lawyers’ grip on the legal market is receding. Scholars and policymakers increasingly agree that the public has little to lose and potentially much to gain from legal market decartelization - the weakening of the lawyers’ monopoly over the legal services market. Harkening to deregulatory initiatives abroad and in Arizona and Utah, reformers contend that removing restrictions on the corporate delivery of legal services and unauthorized practice of law will slash costs and expand access to justice.

Drawing on economic theory and recent market developments, this Article offers a cautionary rejoinder. Understandable concerns about cartelization and lawyer rent-seeking have led …

Tomorrow’S Climate Law, Today, Daniel E. Walters

Faculty Scholarship

The prospects for domestic legislation or international treaties that would require governments, businesses, and individuals to stop emitting the greenhouse gases that cause global climate change are particularly bleak these days. Even as the United States has recently passed its most ambitious climate legislation to date in the Inflation Reduction Act and related “green industrial policy” legislation, these successes were ultimately a compromise with politicians who refused to consider more direct controls on emissions. Assuming they survive the second Trump Administration, the green subsidies and nudges contained in these laws, coupled with a groundswell of private environmental governance, will do …

Debt Tokens, Andrea Tosato, Diane Lourdes Dick, Christopher K. Odinet

Faculty Scholarship

The worlds of crypto and bankruptcy have collided. Once-prominent, fast-growing, and even politically influential platforms for trading cryptocurrencies have imploded spectacularly. Gone are the glossy advertisements, celebrity endorsements, and proclamations that blockchain operates as a law unto itself. Instead, insolvent crypto businesses—including the crypto exchange giant FTX—find themselves in bankruptcy court, no different from any other failed enterprise. These bankruptcies reveal a startling reality: individual investors who placed their trust in these platforms have been stripped of their digital assets. In their stead, they hold hard-to-collect claims against these defunct platforms.

Amid the chill of the crypto winter, bankruptcy has …

Capital Formation, The Sec, And Accredited Investors, Neal F. Newman, Lawrence J. Trautman, Brian Elzweig

Faculty Scholarship

Protecting the investing public, while simultaneously facilitating the efficient flow of capital needed by all new and growing businesses continues as a primary responsibility of the U.S. Securities and Exchange Commission (SEC). Enhancing the capital formation process is a necessary step in the creation of jobs and growth of any economy. Central to the SEC’s regulatory schematic is the proposition that some particularly sophisticated and wealthy investors require less protection than those with less knowledge, experience, and resources. During December 2023, for just the third time, the SEC staff issued a report examining the status of the natural person accredited …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

Faculty Scholarship

Most literature at the intersection of copyright and AI has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country's economic and technological future.

This article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentive-based. The article then discusses a third line of arguments—harmonization-based arguments—and identifies select instances …

Guide To Sec And Business Open Source Corporate Intelligence, Lawrence J. Trautman, Brian Elzweig, Neal F. Newman

Faculty Scholarship

An agency of the U.S. intelligence community observes, "The explosion of open source intelligence (OSINT) in recent years has transformed how governments and people around the world consume and process information about society and global issues." It is likely that "We all use open-source and probably don't even realize it, but we also use it for different reasons. You might use open-source information to do a credibility check and to find out more about the person selling you something on Facebook marketplace." Others "may research someone… met on a dating app or before hiring someone for a job." Every use …

Wildfire Smoke And U.S. Law, Michael B. Gerrard

Faculty Scholarship

Many of the most wicked feedback effects of climate change relate to wildfire smoke. In some places the greenhouse gases poured into the atmosphere by wildfires exceed the reductions achieved by all efforts to fight climate change. At the same time, climate change is a major reason why wildfires are becoming more frequent and intense. Climate change and wildfires feed each other. However, environmental law and climate policy have paid relatively little attention to wildfires. The smoke from these fires — a major cause of illness and death, even thousands of miles from the blazes — is mostly unregulated. Efforts …

The Limits And Promise Of Global Antitrust Law, Anu Bradford, Adam S. Chilton, Katerina Linos

Faculty Scholarship

A large body of evidence suggests that open, competitive markets are a key driver of economic development. In recognition of this fact, many of the world’s leading economies not only adopted their own antitrust laws to promote competition, but they also urged developing countries around the world to do the same. This resulted in a remarkable proliferation of global antitrust law over the last several decades. Many studies have empirically examined the effect of this development, and, consistent with the hopes of policymakers, they have largely found that adopting antitrust laws produces positive economic outcomes.

In this Article, we reassess …

Against Monetary Primacy, Yair Listokin, Rory Van Loo

Faculty Scholarship

To reduce inflation, the Federal Reserve (Fed) raises interest rates. But every month with high interest rates increases the risk of a devastating recession. Recessions impose not only short-term pain in the form of widespread unemployment but also lifelong harm for many, as vulnerable workers and those who start their careers during a downturn never fully recover. Yet hiking interest rates is the centerpiece of U.S. inflation-fighting policy. When inflation is high, the Fed raises interest rates until inflation is tamed, regardless of the consequent sacrifices. We call this inflation-fighting paradigm “monetary primacy.” Despite its great risks, monetary primacy has …

Promises, Promises: Understanding Claims Made In Social Robot Consumer Experiences, Johanna Gunawan, Sarah Elizabeth Gillespie, David Choffnes, Woodrow Hartzog, Christo Wilson

Faculty Scholarship

Social robots are a class of emerging smart consumer electronics devices that promise sophisticated experiences featuring emotive capabilities, artificial intelligence, conversational interaction, and more. With unique risk factors like emotional attachment, little is known on how social robots communicate these promises to consumers and whether they adequately deliver upon them within their overall product experiences prior to and during user interaction.

Animated by a consumer protection lens, this paper systematically investigates manufacturer claims made for four commercially available social robots, evaluating these claims against the provided user experience and consumer reviews. We find that social robots vary widely in the …

U.S. Territories And The Criminal Law Curriculum, Emmanuel Hiram Arnaud

Faculty Scholarship

In this Article, I make a case for why issues concerning the territories should be taught in law school courses and suggest a few ways in which federal criminal adjudication in the territories can and should be incorporated into the criminal law and procedure curriculum.¹⁰ As I advance elsewhere,¹¹ criminal adjudication in the territories functions differently than in the mainland United States.¹² Using the framework of what I call the “territorial criminal legal system,” I have begun mapping the contours of the unique prosecutorial ecosystem produced by the territorial condition.¹³ Chief among the characteristics is the …

The Lost English Roots Of Notice-And-Comment Rulemaking, Rephael G. Stern

Faculty Scholarship

Notice-and-comment rulemaking is arguably the most important procedure in the modern administrative state. Influential accounts even frame it as the 1946 Administrative Procedure Act’s “most important idea.” But its historical origins are obscure. Scholars have variously suggested that it grew out of the constitutionally sanctioned practice of congressional petitioning, organically developed from the practices of nineteenth-century agencies, or was influenced by German conceptions of administrative rulemaking. These histories, however, are incomplete. Using original archival research, this Article demonstrates that notice-and-comment rulemaking was the product of a series of American transplantations of English rulemaking procedures that developed in the late nineteenth …

On The Meaning Of Discrimination: Anti-Racism Versus Color-Blind Policy, Keith N. Hylton

Faculty Scholarship

Chief Justice Roberts of the United States Supreme Court has said that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”1 In this Article, I examine what it means to discriminate on the basis of race—or what it means to stop discriminating on the basis of race. I consider interventions designed to enhance social welfare in an economy with racially discriminatory games operating at its base. One set of interventions is color-blind, in the sense that it treats all actors alike regardless of race. The other set of interventions is …

Sexual And Reproductive Health & Rights: Advances And Setbacks, Aziza Ahmed, Alicia Ely Yamin, Sofia Gruskin

Faculty Scholarship

This article first describes shifts in human rights law that have led to improvements in the realization of sexual and reproductive health and rights (SRHR) over the last decade. The article does so, however, with careful attention to the structural factors beyond formal legal mechanisms that may undermine the ability of governments, even with the best of intentions, to fully develop the necessary robust health and justice systems. Second, this article considers two additional factors: the political economy factors that enable or limit the ability of States to realize SRHR, as well as the growing evidence base that supports positive …

The Misuse Of Ratification-Era Sources By Unitary Executive Theorists, Jed Handelsman Shugerman

Faculty Scholarship

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for …

Innovative Mechanisms For Marketing Health Insurance: An Experimental Field Test (Results From Colorado), Wendy Netter Epstein, Christopher Robertson, David Yokum, Hansoo Ko, Kevin Wilson

Faculty Scholarship

We hypothesize that marketing messages using a generosity framing have the potential to draw healthy persons into the insurance pool, thereby improving access and health outcomes and lowering premiums, but without removing choice or requiring substantial government action. The dependent variable for our field experiment is whether or not recipients of the marketing campaigns enroll in health insurance via the participating exchanges or in Medicaid.

Taking Revolution Seriously, Zohra Ahmed

Faculty Scholarship

Every so often, a prison strike will make national news, as it did in 2014, 2016, and 2018. ¹ The media will focus on the atrocious conditions of confinement; the unchecked violence; the wages numerated in pennies; and the state’s indifference to the strikers’ modest demands for food, medical care, and human contact.

Orisanmi Burton’s² book, Tip of the Spear: Black Radicalism, Prison Repression, and the Long Attica Revolt, urges us to process such reporting with a healthy dose of skepticism. What if prison rebellions were telling us something else, something even more important? What if they were …

Response To Petition For Rehearing En Banc, Felicia M. Sonmez V. Wp Company Llc Et Al, Madeline H. Meth, Brian Wolfman, Becca Steinberg, Regina Wong, Elizabeth Brownstein, Nathaniel Allen Deacon

Faculty Scholarship

Felicia Sonmez alleges that the Washington Post violated the D.C. Human Rights Act by banning her from covering certain stories because she is a woman and a sexual-assault survivor. Op. 2-3. After finding Sonmez’s detailed allegations plausible, a panel of this Court rejected as premature the Post’s First Amendment defense that its decision was driven not by discrimination but by a desire to maintain an appearance of objectivity. Op. 4. Because “what actually motivated the Post editors to impose the bans on Sonmez is a factual question,” the panel held, the Post’s First Amendment defense could not be resolved on …

Property And Prejudice, Fatma E. Marouf, Vanessa Casado Pérez

Faculty Scholarship

“Alien land laws”—laws restricting noncitizens from owning real property—are back. A dozen states have enacted such laws during the past year, and over thirty states have considered such bills. These new bills are rooted in xenophobia, much like their predecessors, but they also have unique characteristics. They single out governments, citizens, and corporations of specific countries perceived to pose a threat; they impose ownership restrictions based on arbitrary distances to U.S. military bases and critical infrastructure; they inflict particularly harsh penalties; and they try to ferret out foreign control in complex corporate structures. The purported justifications are national defense, food …

Micro-Costs, Kiel Brennan-Marquez, Brendan S. Maher

Faculty Scholarship

The modern world is filled with tiny attentional impositions (cognitiveasks) that inflict small mental burdens (micro-costs) on virtually everyone, everywhere, all the time. Micro-costs make life worse, and everybody knows it. They sap collective energy; they lead to worse decisions; they exacerbate inequality; and they contribute to an overall sense of "mismanagement" in the world, a sentiment that readily pairs with destructive political impulses.

Yet the law has essentially ignored micro-costs-until now. In what follows, we construct a theory of micro-costs that gives the phenomenon analytic shape and charts a path forward for reform. Drawing on the insights of philosophy, …

Working With Statutes, Anya Bernstein, Cristina Rodriguez

Faculty Scholarship

In its decision overruling the Chevron doctrine—which directed judges to accept an agency’s reasonable interpretation of ambiguous statutory language—the Supreme Court declares: “[A]gencies have no special competence in resolving statutory ambiguities. Courts do.” This Article shows why this statement exhibits a profoundly blinkered judicial hubris. Our interview-based empirical study, involving dozens of agency officials across the administrative state, shows agencies’ special, indeed unique, competence in working with statutes to make democratic enactments real.

Agencies, we show, act as a statute’s custodians, managing the statutory regime over a life cycle that exceeds any single governing coalition. Borrowing ideas from private law, …

Understanding Processes That Produce Racial Disparities In California Death Sentences: A Review Of The Literature, Catherine M. Grosso, Michael Laurence, Jeffrey A. Fagan

Faculty Scholarship

A robust and extensive body of empirical research, and a rich historical record, documents a recurring and pervasive influence of race in the application of California’s death penalty. This article reviews the legal and social science research to document multiple paths through which institutions and processes produce these racial disparities over many decisions in many cases across four decades. The article reviews relevant literature by decision, institution, or actor and presents key findings. This includes documenting the history of the broad statutory design of the California capital punishment statue. The review also considers research on policing, including the influence of …

Sex & Startups, Jens Frankenreiter, Talia B. Gillis, Eric L. Talley

Faculty Scholarship

Private law offers a unique solution to the problem of long-term fiscal commitment. When Congress enacts a spending program that will take many years to reach fruition, there is a risk of a subsequent Congress or President cutting off funding in the interim. There is no escape from the problem within appropriations law itself. One solution, however, is to entrust private sector allies as vessels of long-term commitment. As a matter of political economy, that solution draws on policy-feedback theory. As a matter of law, the solution rests on a mechanism that Congress already uses but has not recognized its …

Time For States To Flex Their Legal Muscles, Michael B. Gerrard

Faculty Scholarship

In these dark several years ahead, with all three branches of the federal government moving backwards on environmental protection, the states can do much to stem the retreat.

Humanist Copyright, Jane C. Ginsburg

Faculty Scholarship

This exploration of the role of authorship in copyright law proceeds in three parts: historical, doctrinal, and predictive. First, I will review the development of author-focused property rights in the pre-copyright regimes of printing privileges and in early Anglo-American copyright law through the 1909 U.S. Copyright Act. Second, I will analyze the extent to which the present U.S. copyright law does (and does not) honor human authorship. Finally, I will consider the potential responses of copyright law to the claims of proprietary rights in AI-generated outputs. I will explain why the humanist orientation of U.S. copyright law validates the position …

"Price Discrimination" Discrimination, Talia B. Gillis

Faculty Scholarship

Credit price personalization, where lenders set prices based on individual borrower and loan characteristics, is a common practice across many loan types, with conventional accounts of its harms focusing on the ways in which risk-based pricing, or setting prices based on borrowers’ credit risk, can lead to disparities for protected groups like racial minorities and women. This Article examines an often-overlooked yet potentially harmful form of price personalization — charging borrowers different rates based on their willingness-to-pay, known as price discrimination — and argues that this practice can exploit vulnerable borrowers, including protected groups like racial minorities and women, by …

Can Section 11 Be Saved?: "Tracing" A Path To Its Survival, John C. Coffee Jr., Joshua Mitts

Faculty Scholarship

Last term, a unanimous Supreme Court held in Slack Techs. v Pirani that purchasers of securities must “trace” their shares to the registration statement that contains the alleged misstatement or omission in order to be able to assert a claim under Section 11 of the Securities Act of 1933. Lawyers and law firms on both sides of the case agreed (with differing emotions) that the decision eclipsed Section 11, which had been the federal securities laws’ strongest litigation remedy for investors. We disagree with this conclusion that Section 11 is doomed, but we recognize the danger. Both in an amicus …

The End Of The U.S.-Backed International Order And The Future Of International Law, Monica Hakimi, Jacob Katz Cogan

Faculty Scholarship

The international order that the United States has for decades led and maintained is undergoing dramatic change. In this Essay, we explain that international law during this period was constituted with, and dependent on, U.S. power; that the two became (in odd-couple fashion) entwined together; and that, as the international order changes, the international legal system, its content and its architecture, will also inevitably change.

Law And Historical Materialism, Jeremy K. Kessler

Faculty Scholarship

Since the financial crisis of 2008, left-leaning legal thought has experienced a renaissance within the American academy. From law and political economy to critical race theory to feminist legal studies to Marxist legal theory, new perspectives have flourished, and marginalized traditions have been revived and revised. These new perspectives and revisionist projects all share an intellectual debt to the critical legal studies (“CLS”) movement of the late 1970s and 1980s. That movement’s critique was focused on functional accounts of law: accounts that understood legal change as primarily responsive to the demands of extralegal social and economic forces. Some of those …

Disqualification, Immunity, And The Presidency, Gillian E. Metzger

Faculty Scholarship

Trump v. Anderson and Trump v. United States were two momentous decisions in a momentous Supreme Court term. Sharing then former — and now current — President Trump as a party, the decisions hold important implications for presidential power and accountability.

Anderson arose from a suit brought by Colorado voters to challenge Trump’s inclusion on the Republican primary ballot in that state. They argued that Trump organized and incited the mob that attacked the Capitol on January 6, 2021, and disrupted the Electoral College vote count and certification. In their view, this disqualified him from serving as President under section …