Law Commons^™

Uncovering Elon's Data Empire, Carliss Chatman, Carla L. Reyes

Faculty Journal Articles and Book Chapters

In 2022, Elon Musk publicly announced that he would purchase Twitter after acquiring a five percent stake in the company. His failure to report this acquisition—and the company’s failure to notice—allowed Musk to continue purchasing stock at a deflated price, costing the company more than $156 million. After the signing of a merger agreement, the details of the transaction caused wild fluctuations in Tesla’s stock price. Musk’s complaints about the management of Twitter and the existence of bots on the platform led Twitter’s stock to also drop in value, as did Musk’s attempts to withdraw from the transaction. Even after …

One Year Post-Bruen: An Empirical Assessment, Eric Ruben, Rosanna Smart, Ali Rowhani-Rahbar

Faculty Journal Articles and Book Chapters

In the year after New York State Rifle & Pistol Association v. Bruen, a steady stream of highly publicized opinions struck down a wide range of previously upheld gun restrictions. Courts declared unconstitutional policies ranging from assault weapon bans to domestic abuser prohibitions to various limits on publicly carrying handguns. Those opinions can frequently be paired with others reaching the opposite conclusion. The extent to which Bruen shook up the Second Amendment landscape and has caused widespread confusion in the courts is starting to come into focus.

This Essay measures Bruen’s aftereffects by statistically analyzing a year’s worth …

Emerging Technology's Unfamiliarity With Commercial Law, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Over the course of a three-year, collaborative process that was open to the public, the Uniform Law Commission (ULC) and the American Law Institute (ALI) undertook a project to revise the Uniform Commercial Code (UCC) to account for the impact of emerging technologies on commercial transactions. The amendments, approved jointly by the ULC and ALI in July 2022, touch on aspects of the entire UCC, but one change has inspired ire and attracted national media attention: a proposed revision to the definition of “money.” The 2022 UCC Amendments alter the definition of “money” to account for the introduction of central …

Returning Individual Research Results From Digital Phenotyping In Psychiatry, Francis X. Shen, Matthew L. Baum, Nicole Martinez-Martin, Adam S. Miner, Melissa Abraham, Catherine A. Brownstein, Nathan Cortez, Barbara J. Evans, Laura T. Germine, David C. Glahn, Christine Grady, Ingrid A. Holm, Elisa A. Hurley, Sara Kimble, Gabriel Lázaro-Muñoz, Kimberlyn Leary, Mason Marks, Patrick J. Monette, Jukka-Pekka Onnela, P. Pearl O'Rourke, Scott L. Rauch, Carmel Shachar, Srijan Sen, Ipsit Vahia, Jason L. Vassy, Justin T. Baker, Barbara E. Bierer, Benjamin C. Silverman

Faculty Journal Articles and Book Chapters

Psychiatry is rapidly adopting digital phenotyping and artificial intelligence/machine learning tools to study mental illness based on tracking participants’ locations, online activity, phone and text message usage, heart rate, sleep, physical activity, and more. Existing ethical frameworks for return of individual research results (IRRs) are inadequate to guide researchers for when, if, and how to return this unprecedented number of potentially sensitive results about each participant’s real-world behavior. To address this gap, we convened an interdisciplinary expert working group, supported by a National Institute of Mental Health grant. Building on established guidelines and the emerging norm of returning results in …

Racial Myopia In [Family] Law, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

Racial Myopia in [Family] Law presents a critique of Family Law for the One-Hundred-Year Life, an Article that claims that age myopia within family law fails older adults and prevents them from creating legal bonds with other adults outside the traditional marital model. This Response posits that racial myopia is a common yet complex phenomenon in almost every area of law, and it presents most often by centering whiteness as the default standard while failing to account for race and its impact on the law. Race—as well as the scholarship that incorporates race into normative family structure and identity—must be …

Emerging Technology’S Language Wars: Ai And Criminal Justice, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of Artificial Intelligence systems (AI systems) and criminal justice suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, researchers, lawmakers, software developers, engineers, judges, and the public all talk past each other, using the same words but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal inherent value conflicts embedded in definitional differences and debates. Doing so offers a tool for reconciling specific linguistic ambiguities before they are embedded in …

Religious Convictions, Anna Offit

Faculty Journal Articles and Book Chapters

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

The Federal Circuit And The Patent Trial And Appeal Board, David O. Taylor

Faculty Journal Articles and Book Chapters

The U.S. Court of Appeals for the Federal Circuit holds a unique and powerful position in the patent system. It exercises exclusive jurisdiction over appeals in patent cases, which, short of Supreme Court intervention, empowers the court to set national patent law. But since passage of the America Invents Act, at least with respect to resolving often multimillion dollar disputes over patent validity, there is another, more powerful government institution: the Patent Trial and Appeal Board. Given its significant new power over disputes regarding patent validity, the Patent Trial and Appeal Board has been the subject of numerous disputes resolved …

The Incongruence Principle Of Evidence, Hillel Bavli

Faculty Journal Articles and Book Chapters

Evidence law assumes that the meaning and value of information at trial is equal to the meaning and value of the same information in the real world. This premise underlies evidence policy, judicial applications of evidence law, and instructions to jurors for evaluating evidence. However, it is incorrect, and the law’s failure to recognize this hinders its aims of accuracy and equality.

In this article, I draw on fields outside of law - including Bayesian inference and cognitive psychology - to develop a model of evidence that describes how jurors combine new evidence with prior beliefs (or “priors”) to make …

Character Evidence As A Conduit For Implicit Bias, Hillel J. Bavli

Faculty Journal Articles and Book Chapters

The Federal Rules of Evidence purport to prohibit character evidence, or evidence regarding a defendant’s past bad acts or propensities offered to suggest that the defendant acted in accordance with a certain character trait on the occasion in question. However, courts regularly admit character evidence through an expanding set of legislative and judicial exceptions that have all but swallowed the rule. In the usual narrative, character evidence is problematic because jurors place excessive weight on it or punish the defendant for past behavior. Lawmakers rely on this narrative when they create exceptions. However, this account arguably misses a highly troublesome …

Emerging Technology’S Language Wars: Cryptocurrency, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Work at the intersection of blockchain technology and law suffers from a distinct linguistic disadvantage. As a highly interdisciplinary area of inquiry, legal researchers, lawmakers, researchers in the technical sciences, and the public all talk past each other, using the same words, but as different terms of art. Evidence of these language wars largely derives from anecdote. To better assess the nature and scope of the problem, this Article uses corpus linguistics to reveal the inherent value conflicts embedded in definitional differences and debates related to developing regulation in one specific area of the blockchain technology ecosystem: cryptocurrency. Using cryptocurrency …

The Dead End Of Animus Doctrine, Dale Carpenter

Faculty Journal Articles and Book Chapters

Hatred is as old as our civilization. So is the moral principle that one should not hate others and should not act on such hatred. Concerns that an angry or fearful majority might nevertheless treat people maliciously were present both at the beginning of our constitutional Republic and in its most divided epoch. The very structure of our government—dividing and separating powers—and our most hallowed egalitarian principle—Equal Protection of the Laws—were seen as safeguards against decisions driven by a “bare . . . desire to harm.” Such decisions are blasphemy in our legal heritage. Half a century ago, the Supreme …

Self-Defense Exceptionalism And The Immunization Of Private Violence, Eric Ruben

Faculty Journal Articles and Book Chapters

After the high-profile trial of Kyle Rittenhouse, the parameters of lawful self-defense are a subject of intense public and scholarly attention. In recent years, most commentary about self-defense has focused on “Stand Your Ground” policies that remove the duty to retreat before using lethal force. But the reaction to Rittenhouse’s case reflects a different, more extreme way that the law governing defensive force is changing. In particular, advocates and legislators say that private citizens like Rittenhouse who exercise self-defense should be entitled to immunity—an exemption from prosecution—giving them an extraordinary procedural benefit not attaching to other defenses that are adjudicated …

Sentencing In An Era Of Plea Bargains, Jeffrey Bellin, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The literature offers inconsistent answers to a question that is foundational to criminal law: Who imposes sentences? Traditional narratives place sentencing responsibility in the hands of the judge. Yet, in a country where 95 percent of criminal convictions come from guilty pleas (not trials), modern American scholars center prosecutors – who control plea terms – as the decider of punishment. This Article highlights and seeks to resolve the tension between these conflicting narratives by charting the pathways by which sentences are determined in a system dominated by plea bargains.

After reviewing the empirical literature on sentence variation, state and federal …

Harnessing The Collective Power Of Retail Investors, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Journal Articles and Book Chapters

This book chapter, forthcoming in A Research Agenda for Corporate Law (Christopher M. Bruner & Marc Moore, eds.) (Edward Elgar Publishing), suggests a path forward to harness the collective power of new generations of retail investors. Since 2020, new retail investors have been flooding the securities markets, opening a record-breaking number of new brokerage accounts. The overwhelming majority of these new retail investors are Millennials and GenZ’ers. Due to their increasing fiscal power as well as their generational characteristics and affinities, these new generations of retail investors can shift paradigms in corporate governance and in the relation between business corporations …

Russia, Ukraine, And The Challenge Of Wartime Accountability, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

There has been a notable shift in the emerging Russian perspective on international law and international organizations, a trend that began nearly a decade prior to Russia's invasion of Ukraine. Over this period, Russia has made substantial alterations to its laws, constitution, and international commitments, effectively withdrawing from previously accepted legal obligations. Furthermore, Russia has increasingly rejected fundamental international legal norms and principles with growing fervor.

In the keynote remarks delivered during the Texas Tech Law Review 2023 Criminal Law Symposium, the author delves into this significant shift, providing illustrative examples.

The Disembodied First Amendment, Nathan Cortez, William M. Sage

Faculty Journal Articles and Book Chapters

First Amendment doctrine is becoming disembodied—increasingly detached from human speakers and listeners. Corporations claim that their speech rights limit government regulation of everything from product labeling to marketing to ordinary business licensing. Courts extend protections to commercial speech that ordinarily extended only to core political and religious speech. And now, we are told, automated information generated for cryptocurrencies, robocalling, and social media bots are also protected speech under the Constitution. Where does it end? It begins, no doubt, with corporate and commercial speech. We show, however, that heightened protection for corporate and commercial speech is built on several “artifices” - …

Charging Time, Pamela R. Metzger, Janet C. Hoeffel

Faculty Journal Articles and Book Chapters

On the verge of his 1,000th day in an El Paso, Texas jail, Robert Antonio Castillo was still waiting for a prosecutor to formally charge him with a crime. Mr. Castillo is one of thousands of people across the country who are arrested and jailed for weeks, months, and even years without charges. In one year in New Orleans, 275 people each spent an average of 115 days in jail only to have the prosecution decline all charges against them. Together, these men and women spent 31,625 days in one of the nation’s most dangerous jails, with no compensation for …

Wireless Investors & Apathy Obsolescence, Sergio Alberto Gramitto Ricci, Christina M. Sautter

Faculty Journal Articles and Book Chapters

This Article discusses how a subgenre of retail investors makes investors’ apathy obsolete. In prior work, we dub this genre of retail investors “wireless investors” for their reliance on technology and online communications. By applying game theory, this Article discusses how wireless investors’ global-scale online communications allow them to circulate information and coordinate, obliterating collective action problems.

An Era Of Rights Retractions: Dobbs As A Case In Point, Seema Mohapatra

Faculty Journal Articles and Book Chapters

No abstract provided.

Hortatory Mandates, Nathan Cortez, Lindsay F. Wiley

Faculty Journal Articles and Book Chapters

This Article is the first to describe "hortatory mandates" and articulate principles for judicial review. Hortatory mandates are laws whose form and function collide. Either they speak in mandatory terms but lack penalties or enforcement mechanisms, or they speak in hortatory, precatory terms that belie the legal obligations they create. Our analysis of important examples-the

Affordable Care Act, the Clean Air Act, federal dietary guidelines, and COVID-19 mitigation orders-indicates that policymakers regularly deploy hortatory mandates for instrumental reasons rather than purely symbolic or precatory reasons. In matters of public health, environmental protection, and beyond, so-called "soft law" is now a …

Privacy In Modern American Law And Society, Joanna L. Grossman, Lawrence M. Friedman

Faculty Journal Articles and Book Chapters

No abstract provided.

Originalism-By-Analogy And Second Amendment Adjudication, Joseph Blocher, Eric Ruben

Faculty Journal Articles and Book Chapters

In New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court held that the constitutionality of modern gun laws must be evaluated by direct analogy to history, unmediated by familiar doctrinal tests. Bruen’s novel approach to historical decision-making purported to constrain judicial discretion but instead enabled judicial subjectivity, obfuscation, and unpredictability. Those problems are painfully evident in courts’ faltering efforts to apply Bruen to laws regulating 3D-printed guns, assault weapons, large-capacity magazines, obliterated serial numbers, and the possession of guns on subways or by people subject to domestic-violence restraining orders. The Court’s recent grant of certiorari in United …

Patriarchy’S Link To Intimate Partner Violence: Applications To Survivors’ Asylum Claims, Daniel G. Saunders, Tina Jiwatram-Negrón, Natalie Nanasi, Iris Cardenas

Faculty Journal Articles and Book Chapters

Eligibility for asylum for survivors of intimate partner violence (IPV) has recently been contested. We summarize social science evidence to show how such survivors generally meet asylum criteria. Studies consistently show a relationship between patriarchal factors and IPV, thereby establishing a key asylum criterion that women are being persecuted because of their status as women. Empirical support is also provided for other asylum criteria, specifically: patriarchal norms contribute to state actors’ unwillingness to protect survivors, and survivors’ political opinions are linked to an escalation of perpetrators’ violence. The findings have implications for policy reform and supporting individual asylum-seekers.

The Character Of Jury Exclusion, Anna Offit

Faculty Journal Articles and Book Chapters

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury …

North American Energy In The Crossfire, Guillermo J. Garcia Sanchez, James W. Coleman

Faculty Journal Articles and Book Chapters

North America is the beating heart of global energy markets undergoing a terrible energy crisis that threatens to upend both the economy and global security. The clearest path out of this global crisis is increasing energy supplies from North America, which can restore energy security and drive a transition to cleaner energy sources. The U.S., Mexico, and Canada have abundant and varied resources to surmount this challenge but are in dire need of stronger cooperation across borders, and between private and public actors to achieve this goal. This Article shows how energy law changes in the U.S. and Mexico present …

"Second-Class" Rhetoric, Ideology, And Doctrinal Change, Eric M. Ruben, Joseph Blocher

Faculty Journal Articles and Book Chapters

A common refrain in current constitutional discourse is that lawmakers and judges are systematically disfavoring certain rights. This allegation has been made about the rights to free speech and free exercise of religion, but it is most prominent in debates about the right to keep and bear arms. Such “second-class” treatment, the argument goes, signals that the Supreme Court must intervene aggressively to police the disrespected rights. Past empirical work casts doubt on the descriptive claim that judges and policymakers are disrespecting the Second Amendment, but that simply highlights how little we know about how the second-class argument functions as …

Paying For Energy Peaks: Learning From Texas' February 2021 Power Crisis, Colleen M. Baker, James W. Coleman

Faculty Journal Articles and Book Chapters

From February 14–19, 2021, winter storm Uri blanketed Texas with extreme cold. Tragically, the severe temperatures overwhelmed the state’s power system. Texas’ power grid ended up more than 20 Gigawatts short of the electricity Texans needed 2 – more power than all of California produces on an average day. Over two-hundred lives were lost3 and an estimated $295 billion in damage resulted.4 Yet many had long regarded Texas’ electric power system, and its regulation, as a model for others. What happened? That question is the focus of this article. This article first provides an overview of the severe power outages …

A Critical Race Theory Approach To Children’S Rights, Jessica Dixon Weaver

Faculty Journal Articles and Book Chapters

This Article uses critical race theory to analyze the impact of corporal punishment and physical child abuse on African American children’s rights in the United States. From an international perspective, the banning of corporal punishment is consistent with multidisciplinary research about the negative effects of physical discipline on children. However, throughout United States history, African American parenting oftentimes utilizes physical discipline to teach children strict compliance with authority in order to prevent deadly violence from being inflicted upon them by white people. Using critical race theory concepts, this Article illustrates how state endorsement of corporal punishment within the family and …

New Approaches To Disarming Domestic Abusers, Natalie Nanasi

Faculty Journal Articles and Book Chapters

Laws prohibiting perpetrators of intimate partner violence from possessing firearms have long been on the books. But the failure to enforce them, thus allowing abusers to keep their weapons, has led to deadly consequences. While the criminal justice system has in recent years increased efforts to disarm domestic abusers, they have yielded minimal success.

It should be unsurprising that threatening criminal consequences for illegally possessing firearms has not been an effective strategy. Perpetrators knew they were breaking the law when they assaulted their partners, but did so anyway. And the calculated risk they take by not relinquishing guns often pays …