Digital Commons Network^™

Pepperdine University School Of Law Legal Summaries, Jessica Linton

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Who Will Be Liable For Medical Malpractice In The Future? How The Use Of Artificial Intelligence In Medicine Will Shape Medical Tort Law, Scott J. Schwelkart

Minnesota Journal of Law, Science & Technology

No abstract provided.

Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk

BYU Law Review

No abstract provided.

Constitutional Validity Of The Kentucky Unmined Coal Tax: Gillis V. Yount, Robin L. Fields

Journal of Natural Resources & Environmental Law

No abstract provided.

Resolving The Sustainable Finance Conundrum: Activist Policies And Financial Technology, Emilios Avgouleas

Law and Contemporary Problems

No abstract provided.

Emily Hunsaker, Plaintiff/ Appellant V. American Healthcare Capital, Defendant/ Appellee. : Brief Of Appellee, Utah Court Of Appeals

Utah Court of Appeals Briefs (2020 –)

AN APPEAL FROM A FINAL JUDGMENT ENTERED I THE FOURTH DISTRICT COURT IN AND FOR UTAH COUNTY, STATE OF UTAH

Justin D. Heideman, Justin R. Elswick,

JERE RENEER (7967), Attorney for Appellee

Subsidence Regulation Under The Surface Mining Control And Reclamation Act Of 1977, Dean K. Hunt, David E. Jones

Journal of Natural Resources & Environmental Law

No abstract provided.

“Traditional Principles Of Equity?” How Seventh Circuit False Advertising Precedent Minimizes The Burden On Plaintiffs Who Move For Preliminary Injunctions, Joseph P. Trunk

Seventh Circuit Review

Companies advertise to gain a competitive edge, but sometimes these advertisements can be deceiving and harm consumers. Under the Lanham Act, plaintiffs can move for preliminary injunctions to stop or modify advertisements before a full trial on the merits of their false or deceptive advertising claims. Seventh Circuit Lanham Act precedent minimizes the burden on plaintiffs who move for preliminary injunctions. If the Seventh Circuit reversed this precedent, the burden on plaintiffs at this stage of the litigation would align both with equitable and economic principles.

The Seventh Circuit recently upheld a preliminary injunction in Eli Lilly & Co. v. …

The Opioid Crisis Or Climate Change: Which Is More Likely To Succeed Under The Tobacco Litigation Model?, Elizabeth W. De Leon

Texas A&M Law Review

Societal problems can occasionally have legal solutions, and several tools exist to implement change, including litigation and regulation. However, what elements make a societal problem more suitable for litigation or regulation? This Article examines four different societal issues (tobacco use, obesity, opioid addiction, and climate change) to determine whether litigation or regulation is the more appropriate route for success. The tobacco litigation serves as a successful example, while the fast food litigation serves as an unsuccessful example. Six signs of success are derived from the tobacco litigation: a large settlement agreement, evidence of corporate wrongdoing, change in public opinion, the …

Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray

University of Arkansas at Little Rock Law Review

No abstract provided.

Distinguishing Plea Discounts And Trial Penalties, Ben Grunwald

Georgia State University Law Review

We know that criminal defendants who plead guilty receive lower sentences than those convicted at trial, but there’s widespread disagreement about why. One camp of scholars believes this plea-trial differential represents a deeply troubling and coercive penalty; a second believes it’s merely a freedom-enhancing discount; and a third denies any meaningful distinction between the two at all. One reason for this disagreement is theoretical—it’s not at all clear what these concepts mean. Another is empirical—in the absence of precise conceptual definitions, we lack relevant data because scholars don’t know what to look for when searching for evidence of penalties and …

Charter Schools, Emos, And Sovereign Immunity, Andrew M. Benton

North Carolina Law Review

No abstract provided.

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

Articles

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 …

It Is Time To End Ability Grouping And "The Soft Bigotry Of Low Expectations" It Imposes On Minority Students, Holly Fudge

University of Dayton Law Review

No abstract provided.

The Lost Promise Of Disability Rights, Claire Raj

Faculty Publications

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

The Lost Promise Of Disability Rights, Claire Raj

Michigan Law Review

Children with disabilities are among the most vulnerable students in public schools. They are the most likely to be bullied, harassed, restrained, or segregated. For these and other reasons, they also have the poorest academic outcomes. Overcoming these challenges requires full use of the laws enacted to protect these students’ affirmative right to equal access and an environment free from discrimination. Yet, courts routinely deny their access to two such laws—the Americans with Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973 (section 504).

Courts too often overlook the affirmative obligations contained in these two disability rights …

Autonomous Business Reality, Carla L. Reyes

Nevada Law Journal

Society tends to expect technology to do more than it can actually achieve, at a faster pace than it can actually move. The resulting hype cycle infects all forms of discourse around technology. Unfortunately, the discourse on law and technology is no exception to this rule. The resulting discussion is often characterized by two or more positions at opposite ends of the spectrum, such that participants in the discussion speak past each other, rather than to each other. The rich context that sits in the middle ground goes disregarded altogether. This dynamic most recently surfaced in the legal literature regarding …

Artificial Intelligence And Access To The Patent System, W. Keith Robinson

Nevada Law Journal

How likely is it that the average American will become an inventor? With a novel idea and hard work, it should be a possibility for all Americans. However, the data suggests otherwise. Most patents are obtained by inventors that work for large corporations. Small businesses, solo inventors, women, and minorities lag behind their counterparts in patenting. A common explanation for this phenomenon is that it is a “pipeline” issue. However, the patent system is not accessible to underrepresented innovators for more problematic reasons.

At the same time as information about the disparity in patenting activity has garnered attention, the U.S. …

Continuous Burdens Of Proof, Emily Spottswood

Nevada Law Journal

The burden of proof is an essential mechanism to ensure that cases are decided fairly. Our existing proof burdens, unfortunately, have a number of surprising downsides. Conventional burdens of proof are mathematically discontinuous. This means that a tiny shift in a jury’s confidence in guilt can lead to a dramatic change in consequences for the parties in a case.

This Article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, and concludes that adopting the right kind of continuous burden would help make our justice system fairer, more equitable, and more effective …

Antitrust Policy Toward Patent Licensing: Why Negotiation Matters, Daniel F. Spulber

Minnesota Journal of Law, Science & Technology

No abstract provided.

“Twixt Devil And Deep Sea”:William Empson As Poet-Critic, Essam Fattouh

BAU Journal - Society, Culture and Human Behavior

This paper attempts to offer a fresh examination of the relationship between Empson’s early career as a poet and his later erudite, largely influential, critical output. The theme of waste, which dominates his Collected Poems, partly accounts for his decision to abandon poetry, and invest his interest in complexity and ambiguity in a modernist/postmodernist procedure, way ahead of contemporary literary theory at the time. The theme of waste is further highlighted through readings of crucial key poems, as several critics of his time, such as Leavis and Alvarez, accurately signaled. The Empson canon is, thus, enriched, inviting the application of …

Comments To The National Strategy For Expanding American Innovation, Colleen Chien, Ernest Fok

Faculty Publications

The United States Patent and Trademark Office (USPTO) sought input for its National Strategy for Expanding American Innovation to build a more demographically, geographically, and economically inclusive innovation ecosystem. Students in Professor Colleen Chien’s Patent Law course submitted 13 comments on how to make innovation more representative of the United States. This document contains 13 comments that draw heavily from personal and professional experience, and highlights the diversity in Santa Clara Law’s patent course. Here are excerpts:

• Erik Perez and Grant Wanderscheid, drawing from their own undergraduate and graduate experiences in science and engineering, recommend a “shift towards achievement …

Too Little, Too Late: Congress's Attempt To Regulate Forever Chemicals Through Military Appropriations, Michael Heard Snow

William & Mary Environmental Law and Policy Review

Per- and polyfluoroalkyl substances, shortened to “PFAS,” are a broad class of approximately 4,000 to 6,000 industrial chemicals characterized by a carbon chain saturated with fluorine molecules. This structure, dominated by carbon-fluorine bonds, is one of the most stable known chemical structures—and it is this stability that lies at the core of both the usefulness and the greatest issues surrounding PFAS. They are generally non-reactive except at tailored “active sites” and they never break down naturally—leading to the nickname “forever chemicals.” The persistence of their structures creates a plethora of desirable characteristics: PFAS are grease-resistant, waterproof, fireproof, stain-proof, and chemically …

Democratizing Education Rights, Joshua E. Weishart

William & Mary Bill of Rights Journal

If the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy-- not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic's existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate …

How A Low-Cost Method For Cumulative Water-Sampling Shows Need For Improvement Of Legal Public-Contact Standards In The United States, Samuel C. Kessler

Grawemeyer Colloquium Papers

Across the world, it is estimated that 4.5 billion people live near water sources “impaired” for use or contact. Standards for human-interaction are established by international organizations such as the WHO, and legislative bodies from national to local levels with jurisdiction over the quality of our waterways to ensure public & environmental health. Standards are often assessed from “grab-samples” taken from a waterbody at a certain time, with a minimum number analyzed. Water-quality standards in the United States are enforced under the Clean Water Act (CWA) via the Environmental Protection Agency (EPA), applying to “waters of the United States” (WOTUS). …

Treatment Of Section 232 Duties In Commerce Antidumping Proceedings, Elizabeth J. Drake

University of Miami International and Comparative Law Review

The goal of antidumping methodologies is to achieve a fair comparison between the price of a product in the United States (“U.S. price”) and the price at which it is sold in the exporters’ home market (or other normal value) in order to quantify and remedy the amount of dumping that has occurred. Thus, the law requires U.S. import duties to be deducted from U.S. price in order to permit an apples-to-apples comparison between U.S. prices and home market prices that do not bear any U.S. import duties. The U.S. Department of Commerce (“Commerce”) has created an exception to this …

Identification Of Lsb Image Steganography Using Cover Image Comparisons, Michael Pelosi, Chuck Easttom

Journal of Digital Forensics, Security and Law

Steganography has long been used to counter forensic investigation. This use of steganography as an anti-forensics technique is becoming more widespread. This requires forensic examiners to have additional tools to more effectively detect steganography. In this paper we introduce a new software concept specifically designed to allow the digital forensics professional to clearly identify and attribute instances of LSB image steganography by using the original cover image in side-by-side comparison with a suspected steganographic payload image. This technique is embodied in a software implementation named CounterSteg. The CounterSteg software allows detailed analysis and comparison of both the original cover …

Backup And Recovery Mechanisms Of Cassandra Database: A Review, Karina Bohora, Amol Bothe, Damini Sheth, Rupali Chopade, V. K. Pachghare

Journal of Digital Forensics, Security and Law

Cassandra is a NoSQL database having a peer-to-peer, ring-type architecture. Cassandra offers fault-tolerance, data replication for higher availability as well as ensures no single point of failure. Given that Cassandra is a NoSQL database, it is evident that it lacks the amount of research that has gone into comparatively older and more widely and broadly used SQL databases. Cassandra’s growing popularity in recent times gives rise to the need of addressing any security-related or recovery-related concerns associated with its usage. This review paper discusses the existing deletion mechanism in Cassandra and presents some identified issues related to backup and recovery …

Social Media User Relationship Framework (Smurf), Anne David, Sarah Morris, Gareth Appleby-Thomas

Journal of Digital Forensics, Security and Law

The use of social media has spread through many aspects of society, allowing millions of individuals, corporate as well as government entities to leverage the opportunities it affords. These opportunities often end up being exploited by a small percentage of the user community who use it for objectionable or unlawful activities; for example, trolling, cyber bullying, grooming, luring. In some cases, these unlawful activities result in investigations where swift retrieval of critical evidence required in order to save a life.

This paper presents a proof of concept (PoC) framework for social media user attribution. The framework aims to provide digital …

Comparing Ignorance: Imagined Immigration And The Exclusion Of Migrantsin The U.S. And Western Europe, Daniel Herda Phd

Societies Without Borders

There exists a well-documented tendency among citizens to perceive immigrant populations as much larger than indicated by official statistics. This misperception has been linked to desires to halt the flow off immigration or restrict immigrants’ rights, raising concern about the consequences of pervasive faulty information. However, ignorance extends beyond questions of population size. There are also many qualitative misperceptions upon which individuals base their opinions about foreigners. In particular, citizens are likely to hold incorrect perceptions about the legal status of the typical immigrant (i.e. documented vs undocumented). The current study takes a unique approach by simultaneously examining both quantitative …