Law Commons^™

Why Boards Should Have Rotating Contrarians, Dana Brakman Reiser, Claire A. Hill

Articles

Too often, for-profit and nonprofit boards are too passive, deferential or both. Their failures to engage their critical faculties have resulted in serious harms as diverse as Boeing planes crashing and the NRA squandering millions of dollars. This article proposes a simple mechanism to stimulate critical thinking by individual directors and improve overall board dynamics: a designated contrarian position that rotates among members of the board. During her term, the contrarian’s job would be to raise objections to the organization’s proposed actions – or inaction. After their terms, each contrarian would resume her duties as a regular board member, replaced …

Untangling Ai Openness, Parth Nobel, Alan Rozenshtein, Chinmayi Sharma

Articles

The debate over AI openness—whether to make components of an artificial intelligence system available for public inspection and modification—forces policymakers to balance innovation, democratized access, safety, and national security. By inviting startups and researchers into the fold, it enables independent oversight and inclusive collaboration. But technology giants can also use it to entrench their own power, while adversaries can use it to shortcut years and billions of dollars in building systems, like China’s DeepSeek, that rival our own. How we govern AI openness today will shape the future of AI and America’s role in it.

Policymakers and scholars grasp the …

Jay Wesley Murphey Notebook Collection, University Of Alabama School Of Law

Manuscript Collections

This collection contains notebooks used by Murphy during his time as a visiting professor at George Washington University.

More Than “Just A Misdemeanor”: Why Diversion Is Critical For Low Level Youth Offenders, Lynn Williams, Ariana M. Ellis

Akron Law Student Publications

Over the past two decades, juvenile arrests have declined sharply nationwide. Yet, during this same period, policies and penalties governing youth have grown increasingly punitive. Many lawmakers continue to advance “tough on crime” legislation that subjects all youth in the juvenile justice system to the same level of sanction, regardless of the seriousness of their offense or prior legal history. This article argues that juvenile delinquency should be addressed through individualized assessments of both risk and needs, rather than through uniform punitive measures. Unnecessary or disproportionate court involvement, particularly for low-risk youth, can produce significant short- and long-term harms, disrupt …

Between ‘Technology Futures’: How Standards Are Transforming Digital Trade, Craig Atkinson

Centre for Digital Law

Digital trade relies on technical standards. As information technologies advance, international digital standards make the technologies used in trade – or ‘tradetech’ – more interoperable, scalable, and secure.

A wide range of tradetech use cases depend on digital standards, including those for document formats, electronic signatures, digital identity, and cybersecurity. They also encompass system specifications for cross-border payments, electronic transferable records (ETRs), transportation/logistics, trade facilitation, and financial compliance.

Most digital standards are voluntary and are produced by international Standards Development Organisations (SDOs) alongside a growing number of industry-led consortia.

The Missing Constitutional Law Of Executive Conditions, Nicole Huberfeld, Matthew B. Lawrence

Faculty Articles

This Article contributes to the development of the constitutional law of executive conditions. The appropriations presidentialism of the second Trump Administration—the shift from bilateral executive/legislative cooperation and compromise in federal spending to executive unilateralism in defiance of congressional control—has forced courts into the administration of federal spending like never before. As a result, judges have been forced to confront legal questions that remained mostly dormant during the era of executive/legislative cooperation, including questions about the constitutionality of efforts to encourage through spending conditions what the federal government cannot mandate (or has not mandated) directly, like speech or silence on particular …

The Paradox Of Intellectual Property At The U.S. Supreme Court, Tonja Jacobi, Matthew Sag

Faculty Articles

The Supreme Court is dramatically more politically polarized in the Roberts Court era, and the justices have been criticized for highly ideological and partisan decision-making. Yet, we show that there is one area of law that is becoming less ideologically divided and predictable: intellectual property (IP). In an earlier study, we showed that, prior to the Roberts Court, IP case outcomes were predictable based on judicial ideology, with more conservative justices embracing IP rights, as they do for real property. In the last two decades, IP has become more influential on the economy and society, through the increasing dominance of …

Expanding Sources Of Knowledge In Legal Scholarship, Adam Davidson, Jocelyn Simonson

Public Law and Legal Theory Working Papers

No abstract provided.

Plutocratic Public Safety, Erin R. Collins

Law Faculty Publications

Recent political events have laid bare the ways that the United States functions like a plutocracy, in which the ultra-wealthy exert influence over core governance functions. The criminal system is not immune from this influence. Big Capital shapes the operation of the criminal system in highly visible ways through its investments in policing technology, electronic monitoring systems, and correctional and detention systems. This Article shows how the economic elite shape the operation of the criminal system in a less obvious way: through philanthropic giving. Big Philanthropy provides another—albeit seemingly benevolent—avenue through which the ultra-wealthy can advance a vision of public …

Campus Crises And The Limits Of Title Vi, Suzanne B. Goldberg, Olatunde C.A. Johnson

Faculty Scholarship

This Piece examines the deployment of Title VI of the Civil Rights Act of 1964 as a mechanism for regulating campus conflict following the 2023 to 2024 campus protests and seeks to reset the discourse in light of the statute’s history, doctrine, and role in higher education. Title VI is an important tool for addressing identity-based harassment, epithets, and violence between students, but it is neither designed nor effective as a tool for negotiating clashes between universities’ cornerstone commitments to robust debate and an optimal learning environment for all students. In converting the statute from a source of protection against …

Slaughter, The Symmetry Rule, And What The Decision Of 1789 Actually Decided, Jane Manners, Lev Menand

Faculty Scholarship

During oral argument in Slaughter last month, Solicitor General John Sauer argued that there were three textual sources for an illimitable presidential removal power: the Vesting Clause, the Take Care Clause, and the Appointments Clause. Why the Appointments Clause? Because, he explained, “the power to remove flows to the power to appoint.” According to Sauer, a run of nineteenth century cases, including Ex Parte Hennen, supports this proposition.

Sauer’s contention is not new: Chief Justice Taft in Myers v. U.S. also claimed that in the First Congress, “the express recognition of the power of appointment in [Article II] enforced this …

Mandatory Cooperation Under International Law, Evan J. Criddle, Evan Fox-Decent

Faculty Publications

Humanity in the twenty-first century faces serious global challenges and crises, including pandemics, nuclear proliferation, violent extremism, refugee migration, and climate change. None of these calamities can be averted without robust international cooperation. Yet, national leaders often assume that because their states are sovereign under international law, they are free to opt in or out of international cooperation as they see fit. This book challenges conventional wisdom by showing that international law requires states to cooperate with one another to address matters of international concern – even in the absence of treaty-based obligations. Within the past several decades, requirements to …

Dismantling The Whiteness Of Legal Education, Doron Samuel-Siegel

Law Faculty Publications

Whiteness is not merely a racial description. Whiteness operates as allegiance to structural racism. The quiet engine of racial hierarchy, whiteness pervades and shapes traditional legal education, rendering legal pedagogy a structurally racist enterprise. Legal education not only reproduces the racism embedded in the law and legal profession, but also obscures the ways legal doctrine, professional norms, and pedagogical practices normalize, protect, and make invisible the advantages that accrue to whiteness itself. In doing so, itproduces lawyers ill-equipped to dismantle structural injustice.

This Article breaks new ground in the scholarship on legal pedagogy by defining whiteness as it operates within …

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …

The Boundaries Of Corporate Politicking, Ashlee A. Paxton-Turner

Law Faculty Publications

As corporations become red brands and blue brands (whether purposely or accidentally), they are participating in the American political landscape in ways distinct from lobbying and political spending. Specifically, corporations are increasingly making statements or launching ad campaigns that appear to support one side (or the other) of a political or social debate. This Article refers to that activity as “corporate politicking.” Unlike political spending or lobbying, corporate politicking lacks a legal definition and is far less regulated—whether internally or externally.

This Article’s central contribution is an administrable framework to demarcate corporate politicking from other corporate activities and decisions. It …

Liability For Non-Disclosure In Ipos, Albert H. Choi, Kathryn E. Spier

Articles

A privately-informed entrepreneur may withhold material information from prospective investors who may sue the firm ex post for (alleged) non-disclosure. Absent liability, the entrepreneur has an excessive incentive to withhold bad news and pursue socially-wasteful projects. Liability deters inefficient non- disclosure and prevents capital misallocation. Any damage award received by investors is partially offset by a reduction in equity value. Depending on the likelihood of court error and litigation cost, the socially-optimal damage award may be either zero or the minimum necessary for full deterrence. The private incentive to waive liability may be socially excessive or insufficient. Positive and normative …

Read But Not Understood? An Empirical Analysis Of Consumer Comprehension In Homeowners Insurance, Daniel Schwarcz, Brenda J. Cude, Kyle D. Logue, German Marquez Alcala

Articles

Modern contract law assumes that consumers meaningfully assent to the standard forms that govern their daily lives. However, this assumption is widely regarded as a legal fiction for two key reasons: first, most consumers do not read standard forms, and second, even those who do often struggle to fully comprehend their terms and implications. Although the lack of consumer reading has been well documented through empirical research, consumers’ ability to comprehend standard-form contracts has received surprisingly little attention.

This Article addresses the latter issue by empirically examining whether providing excerpts from the dominant standard-form homeowners insurance policy improves consumer understanding …

States As Gatekeepers In Global Governance, Kristina Daugirdas

Articles

Over the last several decades, private actors—corporations, philanthropic foundations, and non-governmental organizations—have increasingly contributed to the development and implementation of public international law. In some cases, private actors are developing standards that serve as substitutes for public regulation. In other cases, private actors have been “invited in” to public international organizations as funders, accredited observers and consultants, and even representatives of member states. According to one estimate, 56 percent of international organizations offered some form of access to private actors in 1990; two decades later, more than 90 percent did.

What we are witnessing, in other words, is the growing …

Covid And The Great Retrenchment, Samuel R. Bagenstos

Articles

The past six years have seen two dramatic shifts in federal health and benefits policy. First, during the COVID pandemic, the government dramatically expanded public benefits. These expansions had incredibly positive effects, and recipients were largely satisfied with them. But after a relatively short time, Congress rolled back nearly all of the expansion. Worse, the immediate pullback set the stage for even more significant retrenchments in the second Trump Administration. Where in 2023 the United States came closest to universal health care in its history—with a record low uninsured rate of 7.7%—the Trump Administration’s Medicaid cuts and failure to extend …

Can – And Should – The Un Charter Be Saved?, Steven Ratner

Articles

World leaders from Canada’s Mark Carney to Germany’s Friedrich Merz have announced the demise of the international rules that provided some degree of order to international relations since the Second World War.2 The immediate cause is clear to them and others – a seeming abandonment of international law, and the UN Charter in particular, by the United States government, its chief architect and advocate. The U.S. actions and rhetoric over Venezuela and Iran – wars the United States has started – as well as Greenland and Ukraine seem to have confirmed the worst about the future of international law.

Interpretive Facts: Textualism, Empiricism, And The Law-Fact Divide, Hannah Walser

Articles

This Article offers the first systematic examination of where empirical linguistic evidence should fit in the federal court system's division of labor based on law and fact. I begin by identifying interpretive facts : generalized empirical evidence about how a particular word or phrase has been used by a population of speakers, understood by a population of listeners, or both. Thanks to technological advances in corpus linguistics permitting the quantitative analysis of large numbers of texts, as well as methodological shifts that frame ordinary meaning as an empirical question, such facts are increasingly prominent in statutory and constitutional interpretation cases. …

The Judicial Voice On The Courts Of Appeals, Allison Orr Larsen, Neal Devins

Faculty Publications

The judicial voice on an appellate court typically speaks in the collective, so when a judge chooses to go solo—either in a dissent or a concurrence—that act deserves a close look. Separate opinions on the U.S. Supreme Court are common because the Justices have strong incentives to articulate a distinctive personal jurisprudence. But lower court judges have always been more reluctant to write separately, and for good reason. The institutional design and longstanding practices of the U.S. courts of appeals are very different from the Supreme Court: Lower appellate court judges are bound by precedent in a different way, rarely …

Developer Perspectives On Licensing And Copyright Issues Arising From Generative Ai For Software Development, Trevor Stalnaker, Nathan Wintersgill, Oscar Chaparro, Laura A. Heymann, Massimiliano Di Penta, Daniel M. German, Denys Poshyvanyk

Faculty Publications

Despite the utility that Generative AI (GenAI) tools provide for tasks such as writing code, the use of these tools raises important legal questions and potential risks, particularly those associated with copyright law. As lawmakers and regulators respond to these questions, the views of users can offer relevant perspectives. In this article, we provide: (1) a survey of 574 developers on the licensing and copyright aspects of GenAI for coding, as well as follow-up interviews; (2) a snapshot of developers’ views at a time when GenAI and perceptions of it were rapidly evolving; and (3) an analysis of developers’ perspectives, …

The Executive's Takeover Of Independent Agencies: How Institutional Design Gave Way To Political Will, Neal Devins

Faculty Publications

The anticipated demise of the independent agency is a saga that implicates Congress as much as it does the President or the Supreme Court. By capitulating to presidential initiatives and failing to defend their institutional prerogatives, Congress has facilitated presidential control of the administrative state. Indeed, irrespective of whether the Court formally repudiates Humphrey’s Executor, Congress has largely acquiesced to a regime whereby presidents essentially control independent agencies. By highlighting the competing incentives of Congress and the White House, this Essay explains the rise of presidential unilateralism vis-à-vis independent agencies. This Essay also casts light on a critically important but …

Firearms And Fora: Constructing Public Carry Doctrine, Timothy Zick

Faculty Publications

Where can a person lawfully carry firearms in public? Under what conditions can they do so? Now that the Supreme Court has formally recognized a Second Amendment right to public carry, these are among the most important unresolved questions regarding the right to bear arms. The Second Amendment’s public carry doctrine is in its infancy. How the doctrine develops will have a profound impact on the exercise of Second Amendment rights in public places and on the public square. Integrating a new constitutional right into the public square is not a novel problem. After the Supreme Court recognized First Amendment …

(Reverse) Piercing The Trust Veil, Eric Kades

Faculty Publications

Emergent doctrine deems trusts legal entities distinct from their trustees and beneficiaries. Venerable doctrine empowers creditors to "pierce the veil" separating entities' and their owners' property to avoid inequitable treatment. This article weaves together the new and old to craft a legal roadmap for reversing the ongoing race to the bottom among the states authorizing indefensible self-settled asset protection trusts (SSAPTs) designed solely for the purpose of swindling creditors. As a matter of both policy and doctrine, piercing (more precisely, reverse piercing) an entity's veil is ideally suited to empower the creditor of a SSAPT beneficiary to get paid from …

The Trial Of Socrates, Jonathan Van Patten

Faculty Publications

In many important ways, the trial of Socrates was not just the trial of the century, nor even the trial of the millennium. It predated the trial of Jesus, which is important for many other reasons, but Socrates’ contribution to how we think about justice and the rule of law is without equal. This Article explores the ways that this fifth-century B.C. trial, located geographically on the margin of what came to be known as the West, is at the center of what makes us a civilization. It is not simply about the drama, nor the politics of free inquiry, …

Practicing Law From Home During The Pandemic: Findings From The University Of Michigan Law School Alumni Survey, David L. Chambers

Bibliography of Research Using UMLS Alumni Survey Data

The University of Michigan Law School, through its Alumni Survey Project, conducts annual surveys of its graduates regarding their current work and their careers as a whole.  In the surveys conducted in 2022, 2023, and 2024, the Project included questions about the impacts of the coronavirus pandemic on various aspects of graduates’ work – their productivity, their co-worker relationships, their client relationships, the balance of their work and family life, and their income – as well as on their work experience overall. 819 graduates who had practiced law fulltime during the pandemic responded to the questions and more than half …

Adding Family Complications To Birthright Citizenship, Scott Titshaw

Articles

On the first day of his second administration, President Trump issued an executive order purporting to restrict citizenship of U.S.-born children based on their parents’ citizenship or immigration status. In the process, it discriminates between mothers and fathers and adopts genetic definitions of “mother” and “father” to exclude any parent, who is not the child’s “immediate … biological progenitor.”

Courts and scholars have condemned this attempt to restrict birthplace citizenship as a violation of both the Fourteenth Amendment and the Immigration and Nationality Act. Yet there has been little, if any, discussion of the new family-based conditions in the order. …

Critical Lawyering Pedagogy: Transformational Legal Education, Carolyn Grose

Faculty Scholarship

In an era marked by democratic backsliding, systemic inequality, and widespread disillusionment with legal institutions, traditional legal education has proven not merely inadequate, but actively complicit in reproducing the institutional norms, professional identities, and hierarchies that have enabled democratic erosion and the misuse of law as a tool of exclusion and domination.

This Article describes a comprehensive, justice-oriented framework that reimagines the structure, content, and outcomes of legal education to better meet those needs. Critical Lawyering Pedagogy (CLP) draws from Critical Pedagogy, Narrative Theory, and Critical Lawyering and challenges the entrenched hierarchies and exclusionary norms that dominate most law schools …