Digital Commons Network^™

The Donkey Trail: A Difficult New Migrant Pathway To The U.S. Border, Andrew M. Gardner, Deeipendra Giri

All Faculty Scholarship

In this article, we convey a migration synopsis -- a summary of a single migrant's experience and journey from India to the United States. While comprising only a single example, it illuminates some of the significant challenged that migrants encounter on these new and circuitous pathways into the United States. We offer this somewhat raw form of "ethnographic data" simply as a singular reference point for public conversations about the changing nature of transnational migration and global mobility.

Student Ethnographic Research Experiences At The University Of Puget Sound, Andrew M. Gardner

All Faculty Scholarship

This brief essay describes programming at the University

of Puget Sound that allows undergraduate students to pursue

independent ethnographic research projects. This programming

undergirds all three of the subsequent student essays included in this

issue. The mission of this programming is to encourage “experiential

learning”—an objective that is aligned (and perhaps derivative)

of the methodological toolkit long deployed by anthropological

ethnographers. The essay describes the pedagogic goals that I

have been able to integrate into the supervision of this experiential

programming, and also discusses how we have sought to balance

independently-derived student research interests with the broader

research agendas codified …

Playful Mouth-To-Mouth Interactions Of Belugas (Delphinapterus Leucas) In Managed Care, Jackson R. Ham, Malin K. Lilley, Riley J. Winchenski, Jesus Miranda, Ángel G. Velarde Dediós, Katie Kolodziej, Sergio M. Pellis, Heather M. Manitzas Hill

All Faculty Scholarship

Belugas (Delphinapterus leucas) engage in many forms of play (e.g., object, water, locomotor), but no play is quite as curious as the unusual form of cooperative social play involving mouth-to-mouth interactions. These playful interactions are characterized by two belugas approaching each other head-to-head and interlocking their jaws, clasping one another, as if they were shaking hands. Observed in belugas both in the wild and in managed care, it is seemingly an important type of social play that offers a unique way of socializing with conspecifics. To describe this unusual behavior, a group of belugas in managed care was …

Dreams And Dream Work Of Older Adults In Transition: A Review Of The Literature, Tamara J. Hinojosa

All Faculty Scholarship

Older adults face unique life transitions related to retirement from paid work, relocation of residence to higher levels of care, and bereavement/end-of-life. Research exploring dream content and dream work for older adults can facilitate understanding about their unconscious experiences and emotions, can promote greater understanding about their mental health needs, and support dream work methods that enhance well-being for older adults in transition. Although studies in this area are minimal, there is more research about the transitions of bereavement and death for older adults as compared to research in the areas of retirement and relocation of residence for older adults. …

Demonstrating Law Library Value Through Mission-Centered Assessment, Amanda Watson, Amanda Karel, Amanda Runyon, Leslie Street

All Faculty Scholarship

This paper presents a history of evaluation in U.S. academic law libraries, shares survey results about our collective professional mindset, and offer practical steps for law libraries that are ready to abandon a pervasive culture of evaluation.

Big Parcels: Modernist Planning In Washington State History, Andrew M. Gardner, Becca C. Murphy

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In anthropology’s spatial turn, cultural anthropologists directed portions of their attention to the spaces in which human habitation takes shape. This article concerns the large planned spaces configured in the Modernist era of the twentieth century. Utilizing a fieldwork-based methodology that draws on the ethnographic toolkit, analysis compares and contrasts three large planned spaces located in Washington State: the former site of the Northern State Mental Hospital in Sedro-Woolley, the location in central Spokane at which Expo 74 was hosted, and the rural location of the never-completed Satsop Nuclear Facility near Elma, Washington. Our analysis suggests the singular use for …

Worker Welfare And Antitrust, Herbert J. Hovenkamp

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The important field of antitrust and labor has gone through a profound change in orientation. For the great bulk of its history labor has been viewed as a competitive threat, and the debate over antitrust and labor was framed around whether there should be a labor “immunity” from the antitrust laws. In just the last decade, however, the orientation has flipped. Most new writing views labor as a target of anticompetitive restraints imposed by employers. Antitrust is increasingly concerned with protecting labor rather than challenging its conduct.

Antitrust interest in labor markets is properly focused on two things. The smaller …

Savages, Deplorables, And The Promise Of Anthropological Ethnography, Andrew M. Gardner

All Faculty Scholarship

This short essay describes a longitudinal ethnographic project on which I am embarking with successive coteries of students here at the University of Puget Sound. The essay starts with a discussion of the latent power of ethnography to cross thresholds of difference on a mission of empathy and understanding. I tie this mission to the legacy and definition of anthropological ethnography. In the second section of the essay, I discuss the fractious nature of the American polity, and the caricatures of rural Americans that I've encountered in the urban and academic environs of the west coast. In the final …

Cosmopolitanism And Urban Space In Doha, Qatar, Andrew M. Gardner

All Faculty Scholarship

This essay commences with an ethnographic sojourn through the Industrial Area, a peripheral zone of the urban landscape in Doha, Qatar that is densely inhabited by low wage migrant laborers. In this segregated urban enclave, I ascertain the openness to alterity and the interactions with difference that connect their experiences to the conceptual legacy of cosmopolitanism. Via a discussion of the segregated experiences of transnational migrants in Doha’s urban landscape, I then stake out a speculative argument for the connection between that segregation and the resulting cosmopolitan conditions. Together, these two assertions explore manifestations of cosmopolitan urbanism in non-Western and …

The Psychology Of Science Denialism And Lessons For Public Health Authorities, Brenna Moreno, Molly J. Walker Wilson

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As it wreaked tragedy on the world, the outbreak of COVID-19 helped expose a pandemic of a different kind, one steeped in distrust and contrarianism. This movement, termed science denialism, has been lurking and undermining public health efforts for decades. Specifically, it is “the employment of rhetorical arguments to give the appearance of legitimate debate where there is none, an approach that has the ultimate goal of rejecting a proposition on which a scientific consensus exists.” Unlike skepticism, which is “doubt as to the truth of something” and works to progress both science and society, denialism is characterized by individuals’ …

Evading A Race-Conscious Constitution, Cara Mcclellan

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The idea of a “colorblind” Constitution is front and center in cases before the Supreme Court this term, including Students for Fair Admissions v. President & Fellows of Harvard College, and Students for Fair Admissions v. University of North Carolina (UNC). In these cases, the same plaintiff organization, Students for Fair Admissions (SFFA), has asked the Supreme Court to rule that the Equal Protection Clause and Title VI of the Civil Rights Act of 1964 prohibit universities from considering race as one of many factors in admissions to pursue the educational benefits that flow from diversity. In support …

Border Orientation In A Globalizing World, Beth A. Simmons, Michael R. Kenwick

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Border politics are a salient component of high international politics. States are increasingly building infrastructure to ‘secure’ their borders. We introduce the concept of border orientation to describe the extent to which the State is committed to the spatial display of capacities to control the terms of penetration of its national borders. Border orientation provides a lens through which to analyze resistance to globalization, growing populism, and the consequences of intensified border politics. We measure border orientation using novel, geo-spatial data on the built environment along the world’s borders and theorize that real and perceived pressures of globalization have resulted …

Selling Antitrust, Herbert J. Hovenkamp

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Antitrust enforcers and its other defenders have never done a good job of selling their field to the public. That is not entirely their fault. Antitrust is inherently technical, and a less engaging discipline to most people than, say, civil rights or criminal law. The more serious problem is that when the general press does talk about antitrust policy it naturally gravitates toward the fringes, both the far right and the far left. Extreme rhetoric makes for better press than the day-to-day operations of a technical enterprise. The extremes are often stated in overdramatized black-and-white terms that avoid the real …

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

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In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

Municipal Fiber In The United States: A Financial Assessment, Christopher S. Yoo, Jesse Lambert, Timothy P. Pfenninger

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Despite growing interest in broadband provided by municipally owned and operated fiber-to-the-home networks, the academic literature has yet to undertake a systematic assessment of these projects’ financial performance. To fill this gap, we utilize municipalities’ official reports to offer an empirical evaluation of the financial performance of every municipal fiber project in the U.S. operating in 2010 through 2019. An analysis of the actual performance of the resulting fifteen-project panel dataset reveals that none of the projects generated sufficient nominal cash flow in the short run to maintain solvency without infusions of additional cash from outside sources or debt relief. …

Police Frisks, David S. Abrams, Hanming Fang, Priyanka Goonetilleke

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The standard economic model of police stops implies that the contraband hit rate should rise when the number of stops falls, ceteris paribus. We provide empirical corroboration of such optimizing models of police behavior by examining changes in stops and frisks around two extraordinary events of 2020 - the pandemic onset and the nationwide protests following the killing of George Floyd. We find that hit rates from pedestrian and vehicle stops generally rose as stops and frisks fell dramatically. Using detailed data, we are able to rule out a number of alternative explanations, including changes in street population, crime, police …

The Political Dynamics Of Legislative Reform: Potential Drivers Of The Next Communications Statute, Christopher S. Yoo, Tiffany Keung

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Although most studies of major communications reform legislation focus on the merits of their substantive provisions, analyzing the political dynamics that led to the enactment of such legislation can yield important insights. An examination of the tradeoffs that led the major industry segments to support the Telecommunications Act of 1996 provides a useful illustration of the political bargain that it embodies. Application of a similar analysis to the current context identifies seven components that could form the basis for the next communications statute: universal service, pole attachments, privacy, intermediary immunity, net neutrality, spectrum policy, and antitrust reform. Determining how these …

Moving Toward Personalized Law, Cary Coglianese

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Rules operate as a tool of governance by making generalizations, thereby cutting down on government officials’ need to make individual determinations. But because they are generalizations, rules can result in inefficient or perverse outcomes due to their over- and under-inclusiveness. With the aid of advances in machine-learning algorithms, however, it is becoming increasingly possible to imagine governments shifting away from a predominant reliance on general rules and instead moving toward increased reliance on precise individual determinations—or on “personalized law,” to use the term Omri Ben-Shahar and Ariel Porat use in the title of their 2021 book. Among the various technological, …

A Reader’S Guide To Legal Orientalism, Teemu Ruskola

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My book Legal Orientalism: China, the United States, and Modern Law (Harvard University Press 2013) was published in translation in China in 2016. This essay analyzes the Chinese reception of this book. Originally addressed to a North American readership, Legal Orientalism examines critically the asymmetric relationship in which Euro-American law and Chinese law stand to one another, the former regarding itself as an embodiment of universal values while viewing the latter’s as culturally particular ones. The essay explores what happens when a “Western” work of self-criticism is transmitted to an “Eastern” audience. In this context, it analyzes the politics of …

Remodeling Criminal Insanity: Exploring Philosophical, Legal, And Medical Premises Of The Medical Model Used In Norwegian Law, Linda Gröning, Unn K. Haukvik, Stephen J. Morse, Susanna Radovic

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This paper clarifies the conceptual space of discussion of legal insanity by considering the virtues of the ‘medical model’ model that has been used in Norway for almost a century. The medical model identifies insanity exclusively with mental disorder, and especially with psychosis, without any requirement that the disorder causally influenced the commission of the crime. We explore the medical model from a transdisciplinary perspective and show how it can be utilised to systematise and reconsider the central philosophical, legal and medical premises involved in the insanity debate. A key concern is how recent transdiagnostic and dimensional approaches to psychosis …

Internal And External Challenges To Culpability, Stephen J. Morse

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This article was presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at Arizona State University’s Sandra Day O’Connor College of Law. It is forthcoming in Arizona State Law Journal Volume 53, Issue 2.

The thesis of this article is simple: As long as we maintain the current folk psychological conception of ourselves as intentional and potentially rational creatures, as people and not simply as machines, mental states will inevitably remain central to ascriptions of culpability and responsibility more generally. It is also desirable. Nonetheless, we are in a condition of unprecedented internal challenges to …

Third Party Moral Hazard And The Problem Of Insurance Externalities, Gideon Parchomovsky, Peter Siegelman

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Insurance can lead to loss or claim-creation not just by insureds themselves, but also by uninsured third parties. These externalities—which we term “third party moral hazard”—arise because insurance creates opportunities both to extract rents and to recover for otherwise unrecoverable losses. Using examples from health, automobile, kidnap, and liability insurance, we demonstrate that the phenomenon is widespread and important, and that the downsides of insurance are greater than previously believed. We explain the economic, social and psychological reasons for this phenomenon, and propose policy responses. Contract-based methods that are traditionally used to control first-party moral hazard can be welfare-reducing in …

Algorithm Vs. Algorithm, Cary Coglianese, Alicia Lai

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Critics raise alarm bells about governmental use of digital algorithms, charging that they are too complex, inscrutable, and prone to bias. A realistic assessment of digital algorithms, though, must acknowledge that government is already driven by algorithms of arguably greater complexity and potential for abuse: the algorithms implicit in human decision-making. The human brain operates algorithmically through complex neural networks. And when humans make collective decisions, they operate via algorithms too—those reflected in legislative, judicial, and administrative processes. Yet these human algorithms undeniably fail and are far from transparent. On an individual level, human decision-making suffers from memory limitations, fatigue, …

Virtually Incredible: Rethinking Deference To Demeanor When Assessing Credibility In Asylum Cases Conducted By Video Teleconference, Liz Bradley, Hillary Farber

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The COVID-19 pandemic forced courthouses around the country to shutter their doors to in-person hearings and embrace video teleconferencing (VTC), launching a technology proliferation within the U.S. legal system. Immigration courts have long been authorized to use VTC, but the pandemic prompted the Executive Office for Immigration Review (EOIR) to expand video capabilities and encourage the use of video “to the maximum extent practicable.” In this technology pivot, we must consider how VTC affects cases for international humanitarian protections, where an immigration judge’s ability to accurately gauge an applicant’s demeanor can have life-or-death consequences.

This Article takes a deep dive …

Presidential Accountability And The Rule Of Law: Can The President Claim Immunity If He Shoots Someone On Fifth Avenue?, Claire Oakes Finkelstein, Richard Painter

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Can a sitting President be indicted while in office? This critical constitutional question has never been directly answered by any court or legislative body. The prevailing wisdom, however, is that, though he may be investigated, a sitting President is immune from actual prosecution. The concept of presidential immunity, however, has hastened the erosion of checks and balances in the federal government and weakened our ability to rein in renegade Presidents. It has enabled sitting Presidents to impede the enforcement of subpoenas and other tools of investigation by prosecutors, both federal and state, as well as to claim imperviousness to civil …

From Negative To Positive Algorithm Rights, Cary Coglianese, Kat Hefter

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Artificial intelligence, or “AI,” is raising alarm bells. Advocates and scholars propose policies to constrain or even prohibit certain AI uses by governmental entities. These efforts to establish a negative right to be free from AI stem from an understandable motivation to protect the public from arbitrary, biased, or unjust applications of algorithms. This movement to enshrine protective rights follows a familiar pattern of suspicion that has accompanied the introduction of other technologies into governmental processes. Sometimes this initial suspicion of a new technology later transforms into widespread acceptance and even a demand for its use. In this paper, we …

The Criminogenic Effects Of Damaging Criminal Law’S Moral Credibility, Paul H. Robinson, Lindsay Holcomb

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The criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms. In the context of criminal law, the empirical studies suggest that ordinary people expect the criminal justice system to do justice and avoid injustice, as they perceive it – what has been called “empirical desert” to distinguish it from the “deontological desert” of moral philosophers. The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby …

Duty And Diversity, Chris Brummer, Leo E. Strine Jr.

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In the wake of the brutal deaths of George Floyd and Breonna Taylor, a slew of reforms from Wall Street to the West Coast have been introduced, all aimed at increasing Diversity, Equity, and Inclusion (“DEI”) in corporations. Yet the reforms face difficulties ranging from possible constitutional challenges to critical limitations in their scale, scope and degree of legal obligation and practical effects. In this Article, we provide an old answer to the new questions facing DEI policy, and offer the first close examination of how corporate law duties impel and facilitate corporate attention to diversity. Specifically, we show that …

Secured Transactions Law Reform In Japan: Japan Business Credit Project Assessment Of Interviews And Tentative Policy Proposals, Megumi Hara, Kumiko Koens, Charles W. Mooney Jr.

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This article summarizes key findings from the Japan Business Credit Project (JBCP), which involved more than 30 semi-structured interviews conducted in Japan from 2016 through 2018. It was inspired by important and previously unexplored questions concerning secured financing of movables (business equipment and inventory) and claims (receivables)—“asset-based lending” or “ABL.” Why is the use of ABL in Japan so limited? What are the principal obstacles and disincentives to the use of ABL in Japan? The interviews were primarily with staff of banks, but also included those of government officials and regulators, academics, and law practitioners. The article proposes reforms of …

Antitrust By Algorithm, Cary Coglianese, Alicia Lai

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Technological innovation is changing private markets around the world. New advances in digital technology have created new opportunities for subtle and evasive forms of anticompetitive behavior by private firms. But some of these same technological advances could also help antitrust regulators improve their performance in detecting and responding to unlawful private conduct. We foresee that the growing digital complexity of the marketplace will necessitate that antitrust authorities increasingly rely on machine-learning algorithms to oversee market behavior. In making this transition, authorities will need to meet several key institutional challenges—building organizational capacity, avoiding legal pitfalls, and establishing public trust—to ensure successful …