Digital Commons Network^™

Ethics, Safety, And Autonomous Vehicles, William H. Widen, Philip Koopma, Benjamin Kuipers, Marilyn Wolf

Articles

This roundtable explores the ethical and safety implications of the rapidly evolving technology of autonomous vehicles.

Workplace Dispute Resolution In Ireland At A Crossroads: Challenges And Opportunities, Brian M. Barry Dr

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The Workplace Relations Act 2015 fundamentally reformed the workplace dispute resolution system in Ireland–the centrepiece being the Workplace Relations Commission, the new body for first-instance dispute resolution. While the overall system is an improvement on its overly-complex and confusing predecessor, the Supreme Court’s decision in Zalewski v An Adjudication Officer declaring aspects of adjudication at the WRC unconstitutional, coupled with user representatives’ persistent concerns about how adjudication is conducted, present ongoing challenges.

This article describes the results of a survey undertaken in 2019 by the author of over one hundred representatives’ views on the system, and contextualises them in light …

A Strategy Model For Workplace Mediation Success, Brian M. Barry Dr

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The article proposes a three-step model to help workplace mediators decide on the optimum strategy for mediating workplace disputes. The model uses a grid – the Workplace Mediation Strategy Grid – which is based on a modified version of a grid Professor Leonard Riskin developed for categorising mediation orientations (Riskin 1994; Riskin 1996). The model asks the mediator to first consider the nature of the workplace dispute based on three facets of the dispute. This guides the mediator to plot a position on the Grid which represents two fundamental aspects of strategy for mediating that dispute: (1) how broadly the …

Problematic Interactions Between Ai And Health Privacy, W. Nicholson Price Ii

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Problematic Interactions Between AI and Health Privacy Nicholson Price, University of Michigan Law SchoolFollow Abstract The interaction of artificial intelligence (AI) and health privacy is a two-way street. Both directions are problematic. This Essay makes two main points. First, the advent of artificial intelligence weakens the legal protections for health privacy by rendering deidentification less reliable and by inferring health information from unprotected data sources. Second, the legal rules that protect health privacy nonetheless detrimentally impact the development of AI used in the health system by introducing multiple sources of bias: collection and sharing of data by a small set …

Editing And Interleaving, Patrick Barry

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This essay suggests that a powerful learning strategy called "interleaving"--which involves strategically switching between cognitive tasks--is being underused. It can do more than make study sessions more productive; it can also make editing sessions more productive.

Uncovering Agencies' Hidden Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

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No abstract provided.

Special Matters: Filtering Privileged Materials In Federal Prosecutions, Christina Frohock

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This Article reviews the U.S. Department of Justice's toolbox for handling potentially privileged materials, with close attention to the evolution from filter teams to the Special Matters Unit in fraud prosecutions. Significant case opinions from the U.S. Courts of Appeals for the Fourth, Sixth, and Eleventh Circuits reveal the judiciary's diverse views on filter teams. The recent case of United States v. Esformes in the U.S. District Court for the Southern District of Florida, now on appeal to the Eleventh Circuit, illustrates how a filter team can fall short and draw unflattering attention to the Department of Justice. In the …

Contract Schemas, Roseanna Sommers

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This review draws on the notion of “contract schemas” to characterize what ordinary people think is happening when they enter into contractual arrangements. It proposes that contracts are schematically represented as written documents filled with impenetrable text containing hidden strings, which are routinely signed without comprehension. This cognitive template, activated whenever people encounter objects with these characteristic features, confers certain default assumptions, associations, and expectancies. A review of the literature suggests that contract schemas supply (a) the assumption that terms will be enforced as written, (b) the feeling that one is obligated to perform, and (c) the sense that one …

Why Are You Here? Modeling Illicit Massage Business Location Characteristics With Machine Learning, Anna White, Seth Guikema, Bridgette Carr

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Illicit massage businesses are a venue for sex and labor trafficking in the United States. Though many of their locations are made publicly available through online advertising, little is known about why they choose to locate where they do. In this work, we use inferential modeling to better understand the spatial distribution of illicit massage businesses within the U.S. Based on addresses web-scraped weekly from online advertisements over 6 months, we modeled illicit massage business prevalence at the census tract and county levels. We used publicly available data to characterize census tracts and counties, finding that the state in which …

Financial Toxicity During Breast Cancer Treatment: A Qualitative Analysis To Inform Strategies For Mitigation, Laila A. Gharzai, Kerry A. Ryan, Lauren Szczygiel, Susan Goold, Grace Li Smith, Sarah T. Hawley, John A.E. Pottow, Reshma Jagsi

Articles

Financial toxicity from cancer treatment is a growing concern. Its impact on patients requires refining our understanding of this phenomenon. We sought to characterize patients' experiences of financial toxicity in the context of an established framework to identify knowledge gaps and strategies for mitigation. Semistructured interviews with patients with breast cancer who received financial aid from a philanthropic organization during treatment were conducted from February to May 2020. Interviews were transcribed and coded until thematic saturation was reached, and findings were contextualized within an existing financial toxicity framework. Thirty-two patients were interviewed, of whom 58% were non-Hispanic White. The mean …

The Promise And Limits Of Lawfulness: Inequality, Law, And The Techlash, Salomé Viljoen

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In response to widespread skepticism about the recent rise of “tech ethics”, many critics have called for legal reform instead. In contrast with the “ethics response”, critics consider the “lawfulness response” more capable of disciplining the excesses of the technology industry. In fact, both are simultaneously vulnerable to industry capture and capable of advancing a more democratic egalitarian agenda for the information economy. Both ethics and law offer a terrain of contestation, rather than a predetermined set of commitments by which to achieve more democratic and egalitarian technological production. In advancing this argument, the essay focuses on two misunderstandings common …

Voices From A Prison Pandemic: Lives Lost From Covid-19 At Lakeland Correctional, Kimberly Thomas

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Coronavirus tore through jails and prisons like wildfire. In some states, more than half of the people incarcerated there tested positive for COVID-19; nearly 400,000 people in prison across the United States have tested positive. For people in prison, COVID-19 brought the loss of close friends, solitary confinement, loss of connection with family and programming, lack of information, and fear of contracting the virus. It has also reminded those who are incarcerated of the one-dimensional way in which people in prison are perceived. As stated by one collaborator, Cory Souders, "[s]o many men and women who come to prison are …

The Growth & Regulatory Challenges Of Decentralized Finance, Aaron J. Wright

Articles

Proceedings of the 2021 Spring Conference: The Impact of Blockchain on the Practice of Law Panel 1: The Growth & Regulatory Challenges of Decentralized Finance

The Rise Of Decentralized Autonomous Organizations: Opportunities And Challenges, Aaron J. Wright

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The Author explores the nature of DAOs and highlights several areas where states and regulators can adapt existing legal regimes to potentially accommodate DAOs. Part of the Blockchain & Procedural Law seminars (Max Planck Institute Luxembourg for Procedural Law).

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

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This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

The Problem With Assumptions: Revisiting “The Dark Figure Of Sexual Recidivism”, Tamara Rice Lave, Jj Prescott, Grady Bridges

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What is the actual rate of sexual recidivism given the well‐ known fact that many crimes go unreported? This is a difficult and important problem, and in “The dark figure of sexual recidivism,” Nicholas Scurich and Richard S. John (2019) attempt to make progress on it by “estimat[ing] actual recidivism rates . . . given observed rates of reoffending” (p. 171). In this article, we show that the math in their probabilistic model is flawed, but more importantly, we demonstrate that their conclusions follow ineluctably from their empirical assumptions and the unrepresentative empirical research they cite to benchmark their calculations. …

Has Tax Competition Been Curbed? Reaction To L.Ahrens, L. Hakelberg & T. Rixen, Reuven Avi-Yonah

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This excellent article shows that contrary to the dire predictions of many observers, tax cooperation is still possible among OECD member countries and that such cooperation can overcome the trilemma of maintaining democracy, sustaining globalization and accepting some tax competition. Specifically, the authors show that in the realm of individual tax evasion, the advent of Automatic Exchange of Information (AEol) after the financial crisis of 2008-9 has enabled OECD countries to maintain a higher level of tax on capital than was possible before the crisis. This, in turn, enabled such countries to reduce inequality and maintain the social safety net …

Rural Social Safety Nets For Migrant Farmworkers In Michigan, 1942–1971, Emily A. Prifogle

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In the 1960s, farmers pressed trespass charges against aid workers providing assistance to agricultural laborers living on the farmers’ private property. Some of the first court decisions to address these types of trespass, such as the well-known and frequently taught State v. Shack (1971), limited the property rights of farmers and enabled aid workers to enter camps where migrants lived. Yet there was a world before Shack, a world in which farmers welcomed onto their land rural religious groups, staffed largely by women from the local community, who provided services to migrant workers. From the 1940s through the 1960s, federal, …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

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At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Dead Men (And Women) Should Tell Tales: Narrative, Intent, And The Construction Of Wills, Karen J. Sneddon

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The will is one of the most personal legal documents that an individual may ever create. The will is written in first person, present tense. Yet most wills reveal little of the person, the personality, or the personal. The inclusion of the testator’s relationships with people, entities, and property does little to convey the testator’s wishes, hopes, or fears. Some may assert that as a formal legal document, the will should be impersonal and be built using standardized, formulaic phrasing. Not only does such position overstate the accuracy of standardized, formulaic phrasing, but such position also ignores the foundational principle …

Hegemonic Marriage: The Collision Of 'Transformative' Same-Sex Marriage With Reactionary Tax Law, Anthony C. Infanti

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Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better.

This Article looks back …

The Mdl Revolution And Consumer Legal Funding, Ronen Avraham, Lynn A. Baker, Anthony J. Sebok

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Third-party consumer legal funding, where financial companies advance money on a nonrecourse basis to assist individual plaintiffs with living expenses, is an increasingly popular and controversial part of American litigation. And consumers with mass tort claims pending in Multi-District Litigations (MDLs) constitute the fastest growing sector of those seeking assistance from this billion-dollar funding industry. Policy makers, mass tort plaintiffs' lawyers, and scholars have increasingly raised concerns about exorbitant interest rates and have called for regulations to protect vulnerable consumers from “predatory lending.” To date, however, the policy debate has largely relied on anecdotes and speculation because flinders have not …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

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In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Using Random Assignment To Measure Court Accessibility For Low-Income Divorce Seekers, James D. Greiner, Ellen L. Degnan, Thomas Ferriss, Roseanna Sommers

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We conducted a field experiment in which 311 low-income individuals seeking a divorce were randomly assigned to receive access to a pro bono lawyer (versus minimal help) to assist with filing for divorce. Examining court records, we found that assignment to an attorney made a large difference in whether participants filed for and obtained a divorce. Three years after randomization, 46% of the treated group had terminated their marriages in the proper legal venue, compared to 9% of the control group. Among “compliers”—participants who obtained representation only if assigned to receive it—those with lawyers were far more likely to file …

Suicide Prevention And Mood Disorders: Self-Exclusion Agreements For Firearms As A Suicide Prevention Strategy, Melvin G. Mcinnis, Stephen B. Thompson, Sofia D. Merajver, Carl E. Schneider

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Suicide involves a complex set of behaviors and emotions that lead up to actions that may be based on planning and forethought or the result of impulse. While there are a host of antecedent circumstances the presence of a mood disorder, primarily depression, is the most common factor in suicide. While management of depression is recognized as important prevention strategy in depression, the means by which suicide occurs must be a critical element of prevention. Policies that lower access to the means for suicide will decrease the fatality. Guns are associated with half of suicides and the case fatality rate …

Acknowledgements As A Window Into Legal Academia, Jonathan Tietz, W. Nicholson Price Ii

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Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law review articles to probe the nature of legal knowledge co-production and de facto peer review in the legal literature. Using a survey and a textual analysis of about thirty thousand law review articles from 2008 to 2017, we examined the nature of knowledge …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

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This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

Noncompete Agreements In The U.S. Labor Force, Evan P. Starr, J.J. Prescott, Norman D. Bishara

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Using nationally representative survey data on 11,505 labor force participants, we examine the use and implementation of noncompete agreements and the employee outcomes associated with these provisions. Approximately 18 percent of labor force participants are bound by noncompetes, with 38 percent having agreed to at least one in the past. Noncompetes are more likely to be found in high-skill, high-paying jobs, but they are also common in low-skill, low-paying jobs and in states where noncompetes are unenforceable. Only 10 percent of employees negotiate over their noncompetes, and about one-third of employees are presented with noncompetes after having already accepted job …

Chevronizing Around Cost-Benefit Analysis, Jonathan Masur, Eric Posner

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No abstract provided.

Statebuilding In The Peace Agreements Of Sudan And South Sudan, Gene Carolan

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This article presents a retrospective analysis of the principal peace agreements to emanate from the North–South conflict in Sudan and the civil war in South Sudan. In doing so, it argues that statebuilding practices dating back to the inception of the Sudanese state continue to inform and undermine contemporary efforts to resolve the conflicts in both countries. The article makes a unique contribution by linking the legacy of peace agreements in Sudan and South Sudan to the crises of governance that plague both countries today. In doing so, it seeks to further the discussion on statebuilding as part of a …