Law Commons^™

Fake, Andrea M. Matwyshyn, Miranda Mowbray

Journal Articles

The Internet today is full of fake people and fake information. Trust in both technology and institutions is in a downward spiral. This Article offers a novel comprehensive framework for calibrating a legal response to technology “fakery” through the lens of information security. Introducing the problems of Internet “MIST”—manipulation, impersonation, sequestering, and toxicity—it argues that these MIST challenges threaten the future viability of the Internet through two morphed dynamics destructive to trust. First, the arrival of the Internet-enabled “long con” has combined traditional con artistry with enhanced technological capability for data collection. Second, the risk of a new “PSYOP industrial …

Composition Over Division: The Statutes Of The National Forest System, Jamison Colburn

Journal Articles

Most crises like those facing the National Forest System (NFS) have complex origins. But few of them result from as vast or as tangled a range of causes as do those facing the NFS. Appropriations to fight the wildfires now consuming our forests and choking the West have steadily grown, far outpacing inflation for a generation now. Timber and other commodity production has remained at historic lows for as long. And biodiversity conservation measures cannot gain the acquiescence of different constituencies long enough to withstand the inevitable lawsuits or turnover in administrative personnel. If Congress originally expected that judicial oversight …

Prosocial Fraud, Julia Y. Lee

Journal Articles

This Article identifies the concept of prosocial fraud--that is, fraud motivated by the desire to help others. The current incentive-based legal framework focuses on deterring rational bad actors who must be constrained from acting on their worst impulses. This overlooks a less sinister, but more endemic species of fraud that is not driven by greed or the desire to take advantage of others. Prosocial fraud is induced by prosocial motives and propagated through cooperative norms. This Article argues that prosocial fraud cannot be effectively deterred through increased sanctions because its moral ambiguity lends itself to self-deception and motivated blindness. The …

Revocation And Retribution, Jacob Schuman

Journal Articles

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

Rethinking The Supreme Court's Interstate Waters Jurisprudence, Jamison Colburn

Journal Articles

For more than a century the Supreme Court has heard a steady stream of original jurisdiction controversies “between two or more States” over interstate waters. It has for even longer heard and decided similar cases involving non-state parties from its appellate dockets. Until now, no synthesis has combined these traditions to describe and explain states’ legal interests in interstate waters as an amalgam of federal common law, Article III’s judicial federalism, and the separation of powers. This article disentangles legacy opinions, orders, and jurisdictional traditions, revealing the bundle of interests that all courts are obliged to protect. It finally offers …

Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero

Journal Articles

There is more to the U.S. Supreme Court’s recent decision in Ramos v.
Louisiana than its holding requiring unanimous state jury verdicts via the
incorporation doctrine. The underlying debate among the Justices in Ramos
about the salience of race in the law is a window into the current cultural
moment. After identifying the racial debate underlying the Justices’ views in
Ramos, this Essay shows how the same pattern emerges in our social and
legal debates around vigilante policing of Black Americans, including a
close-up look at the recent killing of Ahmaud Arbery. Social psychology
teaches us that society stereotypes …

Five Approaches To Insuring Cyber Risks, Christopher C. French

Journal Articles

Cyber risks are some of the most dangerous risks of the twenty-first century. Many types of businesses, including retail stores, healthcare entities, and financial institutions, as well as government entities, are the targets of cyber attacks. The simple reality is that no computer security system is completely safe. They all can be breached if the hackers are skilled enough and determined. Consequently, the worldwide damages caused by cyber attacks are predicted to reach $10.5 trillion by 2025. Insuring such risks is a monumental task.

The cyber insurance market currently is fragmented with hundreds of insurers selling their own cyber risk …

Peeling Apple: Antitrust Standing & Intermediary Defendants, John E. Lopatka

Journal Articles

When market intermediaries unlawfully acquire market power, vertically related market participants may sue under the antitrust laws to recover damages. Their ability to recover depends upon an intricate set of doctrines that define private standing, including the indirect-purchaser rules set down by the Supreme Court most notably in Illinois Brick. In Apple Inc. v. Pepper, the Court decided the application of the indirect-purchaser rules to a particular kind of intermediary, a platform in a two-sided market. The Article explores private antitrust standing doctrines as they apply to market intermediaries, using Apple to frame the exposition. The Court there held that …

Federal Legal And Regulatory Developments Relating To The Us Pipeline Industry, Chloe J. Marie, Ross H. Pifer

Journal Articles

The Atlantic Coast Pipeline (“ACP”) was designed as a 600-mile underground, pipeline project transporting natural gas from well sites in West Virginia to end users throughout Virginia and North Carolina. Atlantic Coast Pipeline, LLC (“Atlantic Coast”), the developer of the ACP project, began the extensive process of obtaining the necessary regulatory approvals for this project by initiating a pre-filing process with the Federal Energy Regulatory Commission (“FERC”) in October 2014. In the nearly six years that followed, the project received various permits related to water and air quality as well as other matters from state and federal agencies. At nearly …