Law Commons^™

Courting Censorship, Philip A. Hamburger

Faculty Scholarship

Has Supreme Court doctrine invited censorship? Not deliberately, of course. Still, it must be asked whether current doctrine has courted censorship — in the same way one might speak of it courting disaster.

The Court has repeatedly declared its devotion to the freedom of speech, so the suggestion that its doctrines have failed to block censorship may seem surprising. The Court’s precedents, however, have left room for government suppression, even to the point of seeming to legitimize it.

This Article is especially critical of the state action doctrine best known from Blum v. Yaretsky. That doctrine mistakenly elevates coercion …

Contractual Landmines, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other …

"Don't Go Chasing Waterfalls": Fiduciary Duties In Venture Capital Backed Startups, Sarath Sanga, Eric L. Talley

Faculty Scholarship

We develop a model of venture capital contracting and use it to evaluate an emergent set of judicial precedents in corporate law, which we label the Trados doctrine. In our model, founders hold common stock, while venture capital investors hold convertible preferred stock. We show that preferred shareholders have inefficient incentives to liquidate low-valued firms and to continue high-valued firms, while common shareholders inefficiently favor the opposite. The extent of incentive misalignment depends on the firm’s intrinsic and outside valuations, and it is most severe around preferred shareholders’ liquidation preference and conversion point. Although legal liability rules can rectify these …

Virtual Energy, Joel B. Eisen, Felix Mormann, Heather E. Payne

Faculty Scholarship

From employment to education, many areas of our daily lives have gone virtual, including the virtual workplace and virtual classes. By comparison, the way we generate, deliver, and consume electricity is an anachronism. And the electric industry’s outdated business model and regulatory framework are failing. For the last century-and-a-half, we have relied on ever larger power plants to generate the electricity we consume, often hundreds of miles away from the point of production. But the outsized carbon footprint of these power plants and the need to transmit their output over long distances threaten the electric grid’s reliability, affordability, and long-term …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

Intentional Parenthood, Contingent Fetal Personhood, And The Right To Reproductive Self-Determination, Laura D. Hermer

Faculty Scholarship

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. This proposition is not new. This Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non-gestating gamete contributors would do …

Judicial Preferences And Aggrandizement Effects, Jason Marisam

Faculty Scholarship

Scholars increasingly portray the Supreme Court as power hungry and self-aggrandizing. This aggrandizement literature, though, lacks a robust causal theory. This essay argues that judicial aggrandizement is not the product of a power-maximizing agenda but a function of judicial preferences and legal background conditions. Aggrandizement occurs in cases where legal background conditions do not align with judicial policy preferences and the justices assert power to create their preferred policy outcomes. This theory has significant prescriptive and normative implications. For example, counterintuitively, this essay shows that more judicial aggrandizement could be a sign of a healthier institution under some conditions.

Covid-19 Pediatric Vaccine Authorization, Fda Authority, And Individual Misperception Of Risk, Joanna K. Sax, Neal Doran

Faculty Scholarship

Vaccines are one component to the public health strategies to alleviate the COVID-19 pandemic. Hesitancy regarding COVID-19 vaccines in the United States has been problematic, which is not surprising given increasing overall vaccine hesitancy in recent decades. Most vaccines are administered during childhood years. Consequently, understanding hesitancy toward administration of vaccines in this age group may provide insight into possible interventions to reduce vaccine hesitancy. The present study analyzed a subset of over 130,000 public comments posted in response to a notice of meeting of the vaccine advisory group to the Food and Drug Administration. The meeting addressed whether to …

Historical Fact, Ryan Williams

Faculty Scholarship

No abstract provided.

Ukraine, Moral Outrage, And International Law, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

The Section 1031 Exchange Requirement, Bradley T. Borden

Faculty Scholarship

No abstract provided.

The Section 1031 Qualified-Use Requirement, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Good Lawyers, Good Sports?: The Professional Identity Of Sports Lawyers Representing Not-For-Profit Entities, Bruce A. Green

Faculty Scholarship

ABA accreditation standards require law schools to develop students’ professional identity, including by encouraging “an intentional exploration of” the legal profession’s “values [and] guiding principles.” This Essay invites legal academia as well as practitioners to explore issues of legal ethics, professionalism, and, especially, professional identity in the context of a new area of legal practice: sports lawyers’ representation of “NIL collectives,” which are not-for-profit entities that college boosters establish to enable college athletes to benefit financially from their name, image and likeness (“NIL”). The work of sports lawyers advising NIL collectives offers an interesting case study for considering how professional …

Personal Jurisdiction And The Declaration Of Independence, Ryan Williams

Faculty Scholarship

No abstract provided.

Bespoke Regulation Of Artificial Intelligence, Brenda M. Simon

Faculty Scholarship

The decision to regulate artificial intelligence (AI) has far reaching consequences. Determining how to address budding applications of AI technology should depend on their effects. This article describes how regulation should be carefully tailored to avoid harm while maximizing social welfare, building on Orly Lobel's taxonomy of regulatory tools. Part I examines the foundational difficulties in governing AI, including industry influence in regulation and deficiencies in enforcement. Part II elaborates on Lobel's framework, detailing the benefits and limitations of a variety of tools, such as voluntary standards, soft law mechanisms, and public-private partnerships. It describes how bringing in diverse stakeholders …

Are ‘Friends’ Electric?, James Cooper

Faculty Scholarship

No abstract provided.

Reclaiming Personal Privacy Rights Through The Freedom Of Intimate Association, Nancy C. Marcus

Faculty Scholarship

The United States has entered a new constitutional era where substantive due process, under attack by the Supreme Court itself, can no longer be viewed as a solid foundation for the securing of personal privacy rights. In a post-Dobbs v. Jackson Women’s Health Organization world, the right to personal privacy, long understood to be protected under the Fifth and Fourteenth Amendments’ Due Process Clauses, is in need of a new doctrinal home. The evisceration of modern substantive due process in the context of abortion rights implicates and endangers LGBTQ+ rights and other personal privacy rights as well. As such, …

A Framework For Applying Copyright Law To The Training Of Textual Generative Artificial Intelligence, Art Neill, James Thomas, Erika Lee

Faculty Scholarship

The rise in the popularity of consumer-facing generative artificial intelligence (GenAI) has created considerable confusion and consternation among some copyright owners. The ability to automate the generation of original works based on user input is considered by some copyright holders to have been made possible by large-scale direct infringement by OpenAI, Microsoft, and other major GenAI developers. This article explores the application of copyright law to the training of OpenAI’s ChatGPT, specifically focusing on the legal issues surrounding the unauthorized use of copyrighted textual works in the GenAI training process.

The large language models (LLMs) that drive ChatGPT and similar …

Arrests: Legal And Illegal, Daniel Yeager

Faculty Scholarship

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot. Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …

Everybody Wants To Rule The World: Central Bank Digital Currencies In The Era Of Decoupling The World’S Two Largest Economies, James M. Cooper

Faculty Scholarship

Some 130 central banks around the world are experimenting with various levels of a central bank digital currency (“CBDC”), a digitized form of a sovereign-backed, national currency that is a liability of that country’s central bank. Unlike fiat currency, CBDCs are trackable and potentially subject to interference and even freezing by government authorities. CBDCs will affect citizens’ control over commerce, payments, and savings, and impact their privacy rights. The Chinese government has piloted, refined, and rolled out its own CBDC called the Digital Currency/Electronic Payment initiative (“DC/EP”), also known as the digital yuan or e-CNY. The Chinese government is far …

Reproducing Inequality: Racial Capitalism And The Cost Of Public Education, Thalia Gonzalez, Paige Joki

Faculty Scholarship

American democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, …

Access To Care And Outcomes With The Affordable Care Act For Persons With Criminal Legal Involvement: A Scoping Review, James René Jolin, Benjamin A. Barsky, Carrie G. Wade, Meredith B. Rosenthal

Faculty Scholarship

IMPORTANCE By expanding health insurance to millions of people in the US, the Patient Protection and Affordable Care Act (ACA) may have important health, economic, and social welfare implications for people with criminal legal involvement—a population with disproportionately high morbidity and mortality rates.

OBJECTIVE To scope the literature for studies assessing the association of any provision of the ACA with 5 types of outcomes, including insurance coverage rates, access to care, health outcomes, costs of care, and social welfare outcomes among people with criminal legal involvement.

EVIDENCE REVIEW The literature search included results from PubMed, CINAHL Complete, APA Psycinfo, Embase, …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, John E. Lopatka, Jeffrey H. Kahn

Faculty Scholarship

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 100th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions.

Proponents of a rule that awards should reflect taxation and …

Academically Productive Talk In The Classroom Through Fishbowl Discussions, Mandee Baumer

Faculty Scholarship

No abstract provided.

Governing Generative Ai, Daryl Lim

Faculty Scholarship

This Article paper explores the evolving landscape of copyright law in the age of generative artificial intelligence, dissecting the multifaceted challenges and opportunities it presents for creators, legal practitioners, and policymakers. Part I, “Governing Authorship,” delves into the existential questions AI poses to traditional notions of creativity and authorship, illustrating the tension between innovation and the preservation of human creators’ rights within existing legal frameworks. Part II, “Governing Infringement,” examines the intricate issues of copyright infringement in the digital era, especially the unauthorized use of copyrighted content by AI for training purposes and the exploration of private ordering mechanisms as …

Would Jackie Robinson Play Baseball Today? How Baseball Owners Conspire To Restrain Trade And Foster Unequal Opportunities For Player Development, Stephen Ross

Faculty Scholarship

No abstract provided.

Comment On Part 4 Essays: Goodwin And Dailey And Rosenbury, Elizabeth S. Scott

Faculty Scholarship

Professors Michelle Goodwin and Anne Dailey and President Laura Rosenbury have written two compelling essays on Part 4 of the Restatement of Children and the Law, dealing with Children in Society. Goodwin’s essay, She’s So Exceptional: Rape and Incest Exceptions Post-Dobbs, focuses on § 19.02 of the Restatement, dealing with the right of minors to reproductive health treatments. This Section was approved by the American Law Institute before the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade. In her essay, Goodwin explores the harms that will follow if minors’ right of access …

Manipulating Citadel: Profiting At The Expense Of Retail Stock Traders' Market Makers, Merritt B. Fox, Lawrence R. Glosten, Sue S. Guan

Faculty Scholarship

This Article considers whether securities market strategies designed to profit at the expense of so-called “internalizers” should properly be considered illegal manipulation. An internalizer acquires from a brokerage firm the right to be the market maker for the broker’s full order flow from its retail customers, promising in return to execute each order at a price slightly better than the best price available on any exchange (“price improvement”) as well as to pay the broker a fee for each executed order (“payment for order flow”). Almost all retail trading — about 29% of the country’s total share volume — is …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Faculty Scholarship

At the 2000 General Assembly, the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address intellectual property issues relating to genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). Although the IGC initially focused its work on studying these issues, it obtained a new mandate to accelerate its work in October 2009 and began text-based negotiations on an international instrument, or international instruments, a few months later. These negotiations paved the way for WIPO to convene a diplomatic conference to conclude an International Legal Instrument Relating …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.