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Volume 106 - Issue 3

Understanding Chilling Effects

By Jonathon W. Penney. Full Text. With digital surveillance and censorship on the rise, the amount of data available unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence and facial recognition technology for surveillance and data analytics, concerns about “chilling effects,” that is, the capacity for these activities to “chill” or…

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Patent Law’s Deference Paradox

By Paul R. Gugliuzza. Full Text.  Courts frequently defer to the decisions of administrative agencies, particularly when the decision is thoroughly deliberated and within the agency’s realm of technical and legal expertise. Conversely, when an agency gives little thought to a matter or brings no special knowledge to bear, the agency gets little or no…

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Lifting Labor’s Voice: A Principled Path Toward Greater Worker Voice and Power Within American Corporate Governance

By Leo E. Strine, Jr., Aneil Kovvali & Oluwatomi O. Williams. Full Text. In view of the decline in gainsharing by corporations with American workers over the last forty years, advocates for American workers have expressed growing interest in allowing workers to elect representatives to corporate boards. Board level representation rights have gained appeal because…

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Contractual Depth

By Cathy Hwang & Matthew Jennejohn. Full Text. Who is the intended audience of a contract? A court, who may be called upon to resolve a dispute, is one audience. Another is commercial communities, who punish breach with reputational sanctions, per the longstanding literature on informal enforcement. This Article shows how modern contracts have more…

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The Input Fallacy

By Talia B. Gillis. Full Text. Algorithmic credit pricing threatens to discriminate against protected groups. Traditionally, fair lending law has addressed such threats by scrutinizing inputs. But input scrutiny has become a fallacy in the world of algorithms. Using a rich dataset of mortgages, I simulate algorithmic credit pricing and demonstrate that input scrutiny fails…

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Proving Discrimination by the Text

By Deborah A. Widiss. Full Text. The Civil Rights Act of 1964 and other employment discrimination laws make the “simple but momentous” declaration that it is illegal to deny employment on the basis of race, sex, religion, or other key aspects of identity. But when employees who have been treated unfairly turn to the courts…

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Judicial Populism

By Anya Bernstein & Glen Staszewski. Full Text. Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement…

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4°C

By J.B. Ruhl & Robin Kundis Craig. Full Text. Conventional climate change wisdom tells governments to plan for a 2°C increase in global average temperature. However, increasingly robust science indicates that the planet is well on its way to at least 4°C of warming, possibly by the end of the 21st century or shortly thereafter.…

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The APA and the Assault on Deference

By Ronald M. Levin. Full Text. Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act (APA) prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved…

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Stealing (Identity) From the Poor

By Sara S. Greene. Full Text. The law of data breaches is new, dynamic, and evolving. The number and complexity of breaches increases each year and legal scholars, courts, and policymakers scramble to respond. In 2019, 14.4 million consumers became victims of identity theft, the most problematic consequence of data breaches for consumers. Indeed, one-third…

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