Legal Studies Commons^™

The Tragic Costs Of ‘Protecting’ Trans Youth, Kimberly Jade Norwood, Jaimie Hileman

Scholarship@WashULaw

In the past few decades, our nation has made substantial progress on the rights of LGBTQ+ people. The legalization of gay marriage in Obergefell v. Hodges in 2015 was transformative for our nation. Just five years later, another huge victory was scored in Bostock v. Clayton County, Georgia, when the U.S. Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protected gay and transgender people.

With every gain, backlash often follows. Three years after Bostock, a tsunami of anti-LGBTQ+ bills, and more specifically, anti-Trans bills, littered the nation. Hundreds of bills have been filed since Bostock, …

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

Scholarship@WashULaw

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

Introduction To The Symposium On Digital Evidence, Melissa (M.J.) Durkee, Tamar Megiddo

Scholarship@WashULaw

The past few decades have seen radical advances in the availability and use of digital evidence in multiple areas of international law. Witnesses snap cellphone photos of unfolding atrocities and post them online, while others share updates in real time through messaging apps. Immigration officers search cell phones. Private citizens launch open-source online investigations. Investigators scrape social media posts. Digital experts verify authenticity with satellite geolocation. These new types of evidence and digitally facilitated methods and patterns of evidence gathering and analysis are revolutionizing the everyday practice of international law, drawing in an ever-wider circle of actors who can contribute …

Book Review: Rethinking Participation In Global Governance: Voice And Influence After Stakeholder Reforms In Global Finance And Health, Melissa (M.J.) Durkee

Scholarship@WashULaw

Who is entitled to contribute to rulemaking at the international or transnational levels? "Rethinking Participation in Global Governance takes an empirical tack," confronting the important and understudied—but methodologically confounding—question of how effectively to improve the representativeness of global governance. The volume’s carefully constructed qualitative studies offer a wealth of insights but few systematic or easily generalizable answers. Nevertheless, the book has much to offer, describing models and techniques to expand participation, offering examples of how various actors in the Global South were able to make use of them, then embedding this description in the push and pull of a scholarly …

Limitations Of The “Four-Fifths Rule” And Statistical Parity Tests For Measuring Fairness, Pauline Kim, Manish Raghavan

Scholarship@WashULaw

To ensure the fairness of algorithmic decision systems, such as employment selection tools, computer scientists and practitioners often refer to the so-called “four-fifths rule” as a measure of a tool’s compliance with anti-discrimination law. This reliance is problematic because the “rule” is in fact not a legal rule for establishing discrimination, and it offers a crude test that will often be over- and under-inclusive in identifying practices that warrant further scrutiny. The “four-fifths rule” is one of a broader class of statistical tests, which we call Statistical Parity Tests (SPTs), that compare selection rates across demographic groups. While some SPTs …

Private Sector Participants In International Rulemaking: Governance Models, Melissa (M.J.) Durkee

Scholarship@WashULaw

International organizations seeking to develop a principled approach to stakeholder participation in rulemaking processes should consider for-profit stakeholders, which can be influential participants. This chapter evaluates potential governance models for their effectiveness in facilitating the benefits and restraining the harms of for-profit influence in rulemaking processes, recommending a balanced approach. A successful governance model should also acknowledge that for-profit stakeholders can use a variety of channels to communicate their input, including individual business entities, trade and industry associations, other non-governmental groups, academics and think tanks, and domestic officials. Because of these sometimes invisible links between for-profit actors and other kinds …

Against Engagement, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

In this Article, we focus on a key dimension of commercial surveillance by data-intensive digital platforms that is too often treated as a supporting cast member instead of a star of the show: the concept of engagement. Engagement is, simply put, a measure of time, attention, and other interactions with a service. The economic logic of engagement is simple: more engagement equals more ads watched equals more revenue. Engagement is a lucrative digital business model, but it is problematic in several ways that lurk beneath the happy sloganeering of a “free” internet.

Our goal in this Article is to isolate …

The Riddle Of Race-Based Redistricting, Travis Crum

Scholarship@WashULaw

The Supreme Court has adopted divergent interpretations of the Equal Protection Clause as applied to race and redistricting. Vote dilution doctrine requires mapmakers to consider race to ensure that racial minorities are not packed or cracked. Congress, moreover, has embraced vote dilution doctrine in Section 2 of the Voting Rights Act. By contrast, racial gerrymandering doctrine triggers strict scrutiny if mapmakers subordinate traditional redistricting principles to race, thereby threatening Section 2’s constitutionality.

To resolve this doctrinal riddle, this Essay examines whether, as originally understood, the Fourteenth or Fifteenth Amendment governed the use of race during redistricting. The Equal Protection Clause …

Measuring Compliance With The California Consumer Privacy Act Over Space And Time, Jens Frankenreiter, Van Tran, Aarushi Mehrotra, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

The widespread sharing of consumers personal information with third parties raises significant privacy concerns. The California Consumer Privacy Act (CCPA) mandates that online businesses offer consumers the option to opt out of the sale and sharing of personal information. Our study automatically tracks the presence of the opt-out link longitudinally across multiple states after the California Privacy Rights Act (CPRA) went into effect. We categorize websites based on whether they are subject to CCPA and investigate cases of potential non-compliance. We find a number of websites that implement the opt-out link early and across all examined states but also find …

Sticky Charters? The Surprisingly Tepid Embrace Of Officer-Protecting Waivers In Delaware, Jens Frankenreiter, Eric L. Talley

Scholarship@WashULaw

This article investigates the reaction to a much-heralded 2022 legal reform in Delaware that permitted a corporation’s charter to exculpate its officers from monetary exposure for breaching their fiduciary duty of care. To isolate reactions to this statutory reform, we make extensive use of generative AI tools to identify and interpret charter amendments that introduce officer-facing waivers. We find a surprisingly tepid rate of uptake among Delaware corporations through the end of the first post-reform year, notwithstanding widespread predictions that corporate entities would quickly storm the exculpation exits once permitted to do so.

Our study makes two contributions to the …

The Debt Limit, Conor Clarke

Scholarship@WashULaw

Every couple of years, it seems, the debt limit shows up to wreak havoc in American law and public finance. By capping the face value of government securities that can be “outstanding at one time,” the statutory limit regularly threatens the Treasury’s ability to raise the revenue needed to fund required government spending. Brinksmanship over the limit has shut down the government, cost the country billions of dollars, and mired financial markets in uncertainty. And yet, despite its obvious and longstanding importance, the limit remains poorly understood. Commentators attribute its beginnings to 1917 and 1941, before which it is assumed …

Whither Coursework And Nextgen Bar Exam Success?, Robert R. Kuehn

Scholarship@WashULaw

The NextGen bar exam will focus on an expanded range of essential lawyering skills and a reduced set of legal topics. Moving toward less reliance on knowledge of the black letter law concepts of past exams, it seeks to build on the successes of clinical legal education, alternative dispute resolution, and legal writing and analysis programs. With outcomes from the first NextGen exam still two years away, this commentary examines what existing research suggests about law school coursework and likely success on NextGen that might guide students and law schools in preparing for the new exam.

Provisioning Digital Tools And Systems For Government Use, Brenda Dvoskin, Julie E. Cohen, Paul Ohm, Meg Leta Jones, Smitha Krishna Prasad, Nina-Simone Edwards

Scholarship@WashULaw

This document is part of a larger project aimed at reinventing the administrative state for effective governance of the digital, information-driven economy. It explores how the administrative state can more effectively equip itself with digital tools and systems that align with and improve government’s ability to serve public values. Established approaches to digital provisioning fail in many important respects. Among others, they introduce thorny coordination problems while doing little to ensure design for broader public values; they cause obsolete and/or poorly conceived requirements to cascade through the development process for new tools and systems; they magnify the potential for technology-driven …

Speaking Back To Sexual Privacy Invasions, Brenda Dvoskin

Scholarship@WashULaw

Many big players in the internet ecosystem do not like hosting sexual expression. They often justify these bans as a protection of sexual privacy. For example, Meta states that it removes sexual imagery to prevent the nonconsensual distribution of sexual images. In response, this Article argues that banning digital sexual expression is counterproductive if the aim is to alleviate the harms inflicted by sexual privacy losses.

Contemporary sexual privacy theory, however, lacks analytical tools to explain why nudity bans harm the interests they intend to protect. This Article aims at building those tools. The main contribution is an invitation to …

Do Patents Drive Investment In Software?, James Hicks

Scholarship@WashULaw

In the wake of a quartet of Supreme Court decisions which disrupted decades of settled law, the doctrine of patentable subject matter is in turmoil. Scholars, commentators, and jurists continue to disagree sharply over which kinds of invention should be patentable. In this debate, no technology has been more controversial than software. Advocates of software patents contend that denying protection would stymie innovation in a vital industry; skeptics argue that patents are a poor fit for software, and that the social costs of patents outweigh any plausible benefits. At the core of this disagreement is a basic problem: the debate …

Criminal Law Minimalisms, Benjamin Levin

Scholarship@WashULaw

What is criminal law minimalism? At first blush, it appears to be the sober and sensible cousin of abolition. Where the language of abolition is radical and absolute, the language of minimalism speaks to moderation, pragmatism, and nuance. While I appreciate calls for nuance, I’m not sure that minimalism offers the clarity it promises or answers the hard questions about how to address the ills of the U.S. criminal system.

As a theory or label, minimalism raises two major questions: (1) a question of scope; and (2) a question of scale. On the question of scope, what exactly should be …

The Major Questions Doctrine: Unfounded, Unbounded, And Confounded, Ronald M. Levin

Scholarship@WashULaw

As explicated by the Supreme Court in West Virginia v. EPA in 2022, and reaffirmed in Biden v. Nebraska in 2023, the “major questions doctrine” provides that an administrative agency’s rule in a “major” case must rest on “clear congressional authorization.” Many commentators have deplored the major questions doctrine on the basis of its policy consequences. This Article offers a critique of the doctrine from a different angle. It primarily contends that the reasons the Court has given for enforcing the doctrine do not withstand scrutiny, even on their own terms.

In West Virginia and Nebraska, the Court relied heavily …

The Pedagogical Value Of Clinical Amicus Advocacy, Steven J. Alagna

Scholarship@WashULaw

This Essay makes a case for why clinical appellate amicus advocacy is particularly well suited to foster valuable experiential learning in the public interest. First, the Essay explores amicus advocacy in general, including its purposes and effectiveness. The Essay then turns to a survey of the educational benefits of amicus opportunities. Importantly, the process of identifying and pursuing amicus-eligible cases is rife with pedagogical benefits, including maximizing student engagement by broadening the kinds of cases to which students can engage (especially incorporating an element of choice that empowers students to engage with legal questions that carry a personal valence), teaching …

Subjective Costs Of Tax Compliance, Jonathan H. Choi, Ariel Jurow Kleiman

Scholarship@WashULaw

This Article introduces and estimates the “subjective costs” of tax compliance, which are costs of tax compliance that people experience directly and individually. To measure these costs, we conducted a survey experiment assessing how much taxpayers would pay to reduce the unpleasantness associated with filing a tax return. The experiment revealed that taxpayers are more concerned about inadvertent mistakes in their tax filings than the time spent on compliance. Respondents also only ascribed meaningful value to eliminating all tax compliance work; they ascribed essentially no value to marginal time savings. Additionally, taxpayers were indifferent between simplification services offered by a …

Independence Through Judicialization: The Politics Surrounding Administrative Adjudicators 1929-1949, Lawrence J. Liu

Scholarship@WashULaw

One front in today’s battle to define the scope of the administrative state concerns the authority, status, and future of its 10,000-plus administrative adjudicators. Decisions by federal courts and the executive branch to increase the dependence of administrative adjudicators on the executive have sparked strong reactions from observers, with many advocating for measures to increase adjudicator “independence.” But who should administrative adjudicators be independent of, which ought to be independent, and why? Calls for administrative adjudicator independence are not new. This Article draws on primary documents produced by private actors, congressional decisionmakers, and federal executive agents to present a political …

Voting Under The Federal Constitution, Travis Crum

Scholarship@WashULaw

There is no explicit, affirmative right to vote in the federal Constitution. At the Founding, States had total discretion to choose their electorate. Although that electorate was the most democratic in history, the franchise was largely limited to property-owning White men. Over the course of two centuries, the United States democratized, albeit in fits and starts. The right to vote was often expanded in response to wartime service and mobilization.

A series of constitutional amendments prohibited discrimination in voting on account of race (Fifteenth), sex (Nineteenth), inability to pay a poll tax (Twenty-Fourth), and age (Twenty-Sixth). These amendments were worded …

Contract-Wrapped Property, Danielle D'Onfro

Scholarship@WashULaw

For nearly two centuries, the law has allowed servitudes that “run with” real property while consistently refusing to permit servitudes attached to personal property. That is, owners of land can establish new, specific requirements for the property that bind all future owners—but owners of chattels cannot. In recent decades, however, firms have increasingly begun relying on contract provisions that purport to bind future owners of chattels. These developments began in the context of software licensing, but they have started to migrate to chattels not encumbered by software. Courts encountering these provisions have mostly missed their significance, focusing instead on questions …

Measuring The Impacts Of Experiential Legal Education, Robert R. Kuehn, Peter A. Joy

Scholarship@WashULaw

Experiential legal education has become an essential component of the law school curriculum, emphasizing "learning by doing" through practical experiences in law clinics, externships, and simulation courses. This pedagogical approach offers law students the critical skills and professional values required for effective and ethical practice. Despite its recognized importance and parallels with other professional disciplines, legal education still requires minimal experiential education compared to other professions. This reluctance likely stems from lingering skepticism by some legal educators about its value, even though many stakeholders, including other educators, students, recent graduates, and other legal professionals, acknowledge its significance.

This Article is …

Key Un Committee Clears Path For Crimes Against Humanity Treaty Negotiations, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

On Friday, Nov. 22, 2024, the United Nations Sixth (Legal) Committee took a pivotal decision to advance toward negotiations on a global treaty regarding the prevention and punishment of crimes against humanity. The move is the latest in a series of discussions that has taken place over the past six years and brings States one step closer to finally closing the nearly 80-year-old gap in international law to comprehensively address these grave crimes.

We have been tracking this process together since 2021 in a Just Security series on the potential draft treaty, and in a recent article we chronicled the …

Justice Delayed Is Justice Denied: Moving Forward With A New Crimes Against Humanity Treaty, Leila Nadya Sadat, Akila Radhakrishnan

Scholarship@WashULaw

Eleven years after the International Law Commission (ILC) began considering the topic of crimes against humanity, and nearly 80 years after the London Charter was negotiated in the ashes of World War II, will States finally begin negotiating a new crimes against humanity treaty next year? The answer is not yet clear, although an overwhelming majority of the States expressing themselves last week said “yes.” This essay is a snapshot of the current state of play and is based on our firsthand observation of the plenary debate as well as discussions with State delegates and members of civil society. Negotiations …

A Draft Treaty On Crimes Against Humanity Draws More Engagement From States, Leila Nadya Sadat

Scholarship@WashULaw

The world’s first treaty on crimes against humanity inched closer to reality as the U.N. General Assembly’s Sixth (Legal) Committee recently wrapped up the last of a series of “resumed sessions” before States decide this October whether to proceed to formal negotiations on the document. Significantly more States and regional groups intervened during the most recent session, held last month, than in 2023, and the number that support the draft increased. Representatives of civil society also were present in much higher numbers, issuing a “Joint Statement in Support of Progress toward a Crimes Against Humanity Treaty” from more than 400 …

A Regime Of Statutes: Building A Modern President In Gilded Age America (1873-1921), Andrea Scoseria Katz

Scholarship@WashULaw

At a time when the Supreme Court is turning its sights on the administrative state and enhancing the profile and powers of the president, it is worth recalling that behind our national complex of agencies lies a constitutional settlement that has structured government for approximately one hundred and thirty years. Its roots lie in the period from 1873-1921, and its defining values are interbranch cooperation, delegated problem-solving authority, and administrative expertise. This Article proposes to tell its story.

A century and a half ago, America was just healing from its Civil War wounds when a host of new problems descended: …

Profit, Mission, And Protest At Work, Marion Crain

Scholarship@WashULaw

The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke capitalism” signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers’ values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while …

Fragmented Futures: Publication Choices And The Evolution Of International Legal Scholarship, Melissa (M.J.) Durkee

Scholarship@WashULaw

How we produce and disseminate international legal scholarship affects can affect how international law itself develops. Fragmentation and siloing of international legal scholarship can diminish the coherence of international law as a shared social practice across national borders. It can also diminish the perceived salience of international law within the United States, contributing to U.S. propensities toward exceptionalism and isolationism. Non-traditional publication formats have equalizing and connecting functions, but there is still room for growth when it comes to aggregating scholarship across regional, linguistic, and disciplinary divides. Finding ways to do that will help international lawyers better accomplish the field’s …

Less Discriminatory Algorithms, Pauline Kim, Emily Black, John Logan Koepke, Solon Barocas, Mingwei Hsu

Scholarship@WashULaw

Entities that use algorithmic systems in traditional civil rights domains like housing, employment, and credit should have a duty to search for and implement less discriminatory algorithms (LDAs). Why? Work in computer science has established that, contrary to conventional wisdom, for a given prediction problem there are almost always multiple possible models with equivalent performance—a phenomenon termed model multiplicity. Critically for our purposes, different models of equivalent performance can produce different predictions for the same individual, and, in aggregate, exhibit different levels of impacts across demographic groups. As a result, when an algorithmic system displays a disparate impact, model multiplicity …