Elizabeth Brundige, Clinical Professor of Law (with coauthors Tamar Ezer, Aya Fujimura-Fanselow, and Ryan Thoreson)
“Integrating Human Rights in Domestic Clinical Practice,” Duke Law School Public Law & Legal Theory Series, no. 2024- 03 (forthcoming 2024).
Given that the human rights framework contains a rich and evolving body of norms and standards, integrating human rights law into clinical teaching provides new avenues to approach problem solving. A human rights framework offers additional sources to ground moral and legal claims, as well as new strategies and advocacy targets. These alternatives work to foster creativity and lawyering skills, particularly in areas where domestic law is limited or constraining. Moreover, U.S. advocates have much to learn from global human rights struggles and advocacy efforts and can benefit from engaging in human rights discourse and practice. This article introduces readers to human rights norms and strategies as potential teaching and advocacy tools, providing practical case studies and exploring both opportunities and challenges.
Emad H. Atiq,Professor of Law & Philosophy
Chapters 2 & 3 in Contemporary Non-Positivism, Cambridge University Press (forthcoming 2024).
This text offers a consolidated defense and elaboration of the thesis that the existence of a legal system, along with the legality of specific rules within any such system, depends on facts of morality. Positivists who deny this dependency struggle to explain regular features of laws and legal systems that invite explanation. These include: (1) the traditional classification of moral principles as a form of a priori law; (2) the fact that judges often rely on moral principles in the discovery of legal rules; (3) persistent theoretical disagreement among jurists about intra-systemic, law-determining facts; (4) the fact that radically arbitrary or immoral schemes of social organization represent borderline cases of law at best; and (5) the fact that law, like other functional artifacts, is susceptible to kind-relative evaluation: it is evaluable as law. Meanwhile, traditional versions of non-positivism—natural law theory, Dworkinian interpretivism, the “one-system” view, and a broader class of contemporary theories offering dual-character and aggregative-cluster accounts of the concept of law—overstate the dependency in ways that turn out not to be justified by explanatory need. Nevertheless, one can combine insights captured by these differing accounts to formulate a moderate position that goes no further than the desiderata warrant. The starting point for this synthetic view is that law is an abstract artifact, created and sustained through collective agency, with the essential function of realizing a distinctive yet imperfectly understood normative ideal. The existence and persistence of a legal system depends, to some minimal degree, on the system’s realization of the relevant ideal. Law can thus be located within a broader network of normative or value-driven artifacts, such as artworks, a comparison that proves vital for understanding legal language, reasoning, and practice.
Sandra Babcock, Clinical Professor of Law (with coauthors Nathalie Greenfield and Kathryn Adamson)
“Gender Matters: Women on Death Row in the United States,” Cardozo Law Review (forthcoming 2024).
This article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2023 who presented as women at the time of their trials. The authors’ research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences. It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence, and prior involvement with the criminal legal system. Babcock and coauthors also explore the nature of the women’s crimes of conviction, including the role of male co-defendants and the state’s use of aggravating factors. Finally, the authors reveal for the first time the extent to which capital prosecutions are dominated by men—including judges, elected district attorneys, defense attorneys, and juror forepersons—and explain why gender matters in determining who lives and who dies.
Babcock and coauthors present their data against the backdrop of prevalent theories that seek to explain both the rarity of women’s executions and the reasons why certain women are singled out for the harshest punishment provided by law. They explain why those frameworks are inadequate to understand the role that systemic gender bias plays in women’s capital prosecutions. The authors conclude by arguing for more nuanced research that embraces the complexities in women’s capital cases and accounts for the presence of systemic and intersectional discrimination.
Yun-chien Chang, Jack G. Clarke Professor in East Asian Law (with coauthor Chang-Ching Lin)
“Learning or Networking? The Causal Effect of Judges Sitting by Designation,” Journal of Legal Studies (forthcoming 2024).
When lower court judges sit on panels with higher court judges, the former may learn from the latter, enter into personal relationships with the latter, or both. Lemley and Miller’s empirical study on U.S. federal courts has found that judges sitting by designation for a week see a subsequent reduction in their reversal rates in patent construction cases. Leveraging a unique dataset encompassing close to one million cases from Taiwan, in particular 2,591 appeals, Chang and Lin examine whether Taiwan’s transitory promotion system has led to lower reversal rates, and, if so, why. Using a difference-in-differences framework, the authors find that when a case appealed to an appellate court is assigned to a judge who was formerly a colleague of the judge who penned the district court opinion, reversal rates drop statistically significantly (demonstrating the “networking effect”). A similar effect emerges when the most senior judge on an appellate panel is a former colleague. Without a causal identification design, Chang and Lin show that the overall reversal rates are lower in the period after transitory promotions (consistent with the “learning effect”).
Michael C. Dorf, Robert S. Stevens Professor of Law
“Free Speech Versus Antidiscrimination in the Scholarship of Eugene Volokh,” Constitutional Commentary (forthcoming 2024).
Conflicts between free speech and antidiscrimination law make up a substantial subset of Eugene Volokh’s wide-ranging scholarship. That work includes: criticism of those courts that have interpreted expression that would otherwise be protected under the First Amendment as triggering liability for the creation of a hostile workplace environment under Title VII; views about the proper scope of constitutionally required exceptions to public accommodations laws for expressive businesses; disagreement with the common assumption that boycotts themselves, as distinct from any accompanying expression, are constitutionally protected free speech; and a bold position on recent clashes between free speech and Title VI on college and university campuses. Canvassing this portion of Volokh’s oeuvre, one sees libertarian instincts but also a genuine appreciation for competing egalitarian concerns. Even when one finds Volokh’s bottom line ultimately unpersuasive, one cannot gainsay his clarity of thought, originality, or fearlessness.
Lara Gelbwasser Freed, Clinical Professor of Law (Lawyering), and Rachel T. Goldberg, Clinical Professor of Law (Lawyering)
“Cultivating Teaching Assistants’ Professional Identities,” Charleston Law Review, vol. 18, no. 3, (2024).
In 2022, the American Bar Association (ABA) amended Law School Accreditation Standard 303(b) by adding an explicit requirement that law students have “substantial opportunities” for “the development of a professional identity.” In the years leading up to this change, several scholars stressed the importance of teaching professional identity—that is, of helping students begin to cultivate the personal and professional values appropriate to the practice of law. Yet one cohort of law students is surprisingly absent from the existing professional-identity literature: teaching assistants (TAs).
Law-school TAs have responsibilities—from offering reasoned advice, to editing legal-style documents, to problem-solving with supervisors—that mirror many of the tasks they will assume as new attorneys. Moreover, TAs inhabit a liminal space between student and professor, academia and legal practice. Thus, Freed and Goldberg argue in this article that TAs’ unique apprenticeship position provides an important opportunity for professors to help their TAs form strong professional identities.
In Section I of this article, the authors discuss the ABA’s professional-identity requirement. In Section II, they explain how TAs’ roles and responsibilities provide a rich site for exploring professional-identity issues. In Section III, the authors present practical guidance and suggestions for ways that law professors can help foster TAs’ professional-identity formation.
While Freed and Goldberg focus specifically on legal-writing TAs, their insights and suggestions apply to any law-school TAs who have a substantial student-facing or mentoring component.
James Grimmelmann, Tessler Family Professor of Digital and Information Law (with coauthor A. Feder Cooper)
“The Files are in the Computer: On Copyright, Memorization, and Generative AI,” Chicago-Kent Law Review, (forthcoming 2024).
The New York Times’s copyright lawsuit against OpenAI and Microsoft alleges that OpenAI’s GPT models have “memorized” Times articles. Other lawsuits make similar claims. But parties, courts, and scholars disagree on what memorization is, whether it is taking place, and what its copyright implications are. Unfortunately, these debates are clouded by deep ambiguities over the nature of “memorization,” leading participants to talk past one another.
In this essay, Grimmelmann and Cooper attempt to bring clarity to the conversation over memorization and its relationship to copyright law. Memorization is a highly active area of research in machine learning, and they draw on that literature to provide a firm technical foundation for legal discussions. The core of the essay is a precise definition of memorization for a legal audience. The authors say that a model has “memorized” a piece of training data when (1) it is possible to reconstruct from the model (2) a near-exact copy of (3) a substantial portion of (4) that specific piece of training data. They distinguish memorization from “extraction” (in which a user intentionally causes a model to generate a near-exact copy), from “regurgitation” (in which a model generates a near-exact copy, regardless of the user’s intentions), and from “reconstruction” (in which the near-exact copy can be obtained from the model by any means, not necessarily the ordinary generation process).
Several important consequences follow from these definitions. First, not all learning is memorization: much of what generative-AI models do involves generalizing from large amounts of training data, not just memorizing individual pieces of it. Second, memorization occurs when a model is trained; it is not something that happens when a model generates a regurgitated output. Regurgitation is a symptom of memorization in the model, not its cause. Third, when a model has memorized training data, the model is a “copy” of that training data in the sense used by copyright law. Fourth, a model is not like a VCR or other general-purpose copying technology; it is better at generating some types of outputs (possibly including regurgitated ones) than others. Fifth, memorization is not just a phenomenon that is caused by “adversarial” users bent on extraction; it is a capability that is latent in the model itself. Sixth, the amount of training data that a model memorizes is a consequence of choices made in the training process; different decisions about what data to train on and how to train on it can affect what the model memorizes. Seventh, system design choices also matter at generation time. Whether or not a model that has memorized training data actually regurgitates that data depends on the design of the overall system: developers can use other guardrails to prevent extraction and regurgitation. In a very real sense, memorized training data is in the model—to quote Zoolander, the files are in the computer.
Saule Omarova, Beth and Marc Goldberg Professor of Law
“Public Banking as an Institutional Design Project,” Yale Journal on Regulation, vol. 41, no. 3 (2024).
This article offers a conceptual framework for analyzing public banking as an institutional form of finance. It examines the key elements of design of a public bank as a financial institution—its core functions, sources of funding, asset structure, and governance framework—and highlights the opportunities and challenges presented by various choices along these dimensions. By isolating a series of pivotal decision points, the article constructs a basic roadmap for designing a public entity capable of delivering the desired set of public benefits. To maximize these benefits on a system-wide level, the article calls for a new approach to institutional design that would expand policymakers’ focus to the larger project of creating an ecosystem of public interest-oriented finance.
Frank Pasquale, Professor of Law (with coauthor Michael L. Cederblom)
“The New Antitrust,” Southern California Interdisciplinary Law Journal, vol. 33, no. 2 (April 2024).
President Biden’s 2021 Executive Order on Competition marked a sea change in United States antitrust policy. Years of political activism against excessively concentrated corporate power have culminated in a “New Antitrust” based on robust initiatives to open markets. Critics of the New Antitrust dismiss it as mere populism, calling it an improper politicization of expert agency work. This article meets their challenges, demonstrating that the New Antitrust’s intellectual foundations in the methodology of law and political economy (“LPE”) are just as strong as its political appeal.
LPE is based on a wide range of social sciences and the humanities, including sociology, political science, and history. LPE broadens the methodological lens beyond the narrow focus on economics that has dominated antitrust policy and case law over the past several decades. This article demonstrates the critical importance of complementing economic analysis of corporate concentration with interdisciplinary insights into questions of power (via political science), race and social dynamics (via history and sociology), and values (via philosophy). All have a place in understanding and effectively curbing contemporary threats to competition.
The intellectual pluralism of the New Antitrust is already having positive results. Pluralist LPE methods have both sustained and reflected two foundations of the new approaches to antitrust now emerging under the Biden Administration: (1) a neo-Brandeisian emphasis (named after the former Supreme Court Justice Louis Brandeis) on breaking up large firms or preventing suspect mergers and (2) a regulatory emphasis on limiting the power of large firms generally. As a result, competition policymakers are addressing the concerns of vulnerable populations with renewed vigor. This article demonstrates that the New Antitrust has deep intellectual foundations. Its openness to a wider range of academic expertise, beyond that of economists and quantitative analysts, has led to both epistemic and ethical advances in competition policy. The New Antitrust should be an important part of competition law for decades to come.
Nelson Tebbe, Jane M.G. Foster Professor of Law (with coauthors Richard Schragger and Micah Schwartzman)
“Reestablishing Religion,” University of Chicago Law Review, vol. 91 (forthcoming 2024).
In the last few years, the Supreme Court has upended its doctrine of religious freedom under the First Amendment. The Court has explicitly rejected separationism, which limited government support of religion, and it has adopted interpretations of disestablishment and free exercise that provide special solicitude for religion. Now, the government must treat religion equally with respect to providing public benefits. But it must also grant special exemptions from regulations that burden religion. This pattern of equal treatment for benefits and special exemptions from burdens yields a doctrinal structure that gives preference to religion. We refer to this regime as structural preferentialism.
What explains this shift? This article offers an external, political account of changes in Free Exercise and Establishment Clause jurisprudence by analyzing them as if they were the result of political conflicts between competing interest groups. Focusing on the role of religion in political polarization, rapid disaffiliation from denominations, and shifting strategies to fund religious schools, this political perspective has explanatory and predictive power that extends beyond conventional legal arguments about text, history, and precedent. Applying this approach, the authors predict that structural preferentialism will transform First Amendment doctrine and provide material grounds for its own entrenchment. But the political history of the Religion Clauses also shows that legal paradigms can become unstable and threatened by long-term changes in political demographics, suggesting both outer limits and possible sources of resistance to the Court’s emerging model of religious freedom.
