Digital Commons Network^™

Sharing The Tuna Platter: A Uniform System Of Assessment For Clinical Education, Melina Healey

Scholarly Works

Legal education’s current methods for the measurement of student achievement in clinics, and the measurement of a clinic course’s effectiveness, are often unsatisfying, unreliable, and incomplete. This article presents a methodology for uniform and integrated systems of assessment across clinical programs that can provide more reliable evaluation of student progress and achievement, and better feedback to clinical programs on their effectiveness. It also shares how Touro University Jacob D. Fuchsberg Law Center’s Clinical Program applied these strategies with both success and challenges.

Ai Characterisations And Their Legal Implications, Jerrold Tsin Howe Soh

Research Collection Yong Pung How School Of Law

This chapter examines the difficult legal characterisation problems that artificially intelligent systems raise and explores how different characterisations of artificial intelligence (AI) shape practical legal outcomes. Three reasons are offered for the legal difficulty with characterising AI. First, answers to characterisation problems are inherently subjective and perspective-driven, particularly when the subject is an intangible technological system. Second, AI technology is especially difficult to define since the field typically proceeds on inexact anthropomorphic metaphors. Third, AI characterisation problems raise difficult sub-problems, particularly in determining how autonomous an AI system is. The chapter thus argues that a range of plausible AI characterisations …

Perceptions And Treatment Decisions For A Drug Offender Based On Social Class, Cocaine Type, Personal Characteristics, And Compassionate Love: A Vignette Study, Yasmin A. Odeh

Theses and Dissertations

Problem: The shift from a focus on rehabilitation to the more punitive, “tough on crime” approach to illegal behavior in the U.S. has been enacted in no small way by policies connected to the use and abuse of drugs. The disparities between crack and powder cocaine—two chemically similar substances—have headlined this shift (Vagins and McCurdy 2006). However, research is scarce on laypeople’s approval of deterrence approaches for drug offenses, including as a function of types (e.g., powder vs. cocaine possession). This study examined people’s perceptions of prosecutorial decisions for drug offenders—whether they are punished, rehabilitated, or both—and whether people perceived …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Scholarship

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

“In Defiance Of Gifts”: The Dutch Origins Of The Foreign Emoluments Clause, Liam E. Cronan

Touro Law Review

Starting in 2017, a series of lawsuits against President Donald Trump grounded their arguments on a long-overlooked portion of the Constitution: the Foreign Emoluments Clause, which in its most basic form bans government officials from accepting gifts, or “emoluments,” from foreign entities. Until 2017, few courts or scholars had ever scrutinized this provision. But with Trump’s presidency and enduring reports of his foreign business dealings, this oft-shunned area of the law suddenly garnered the attention of courts and scholars alike. Because of a clear “lack of precedent” on this matter, federal judges soon parsed historical records to determine the Clause’s …

Unboxing The Box: A Deep Dive Into Solitary Confinement And When It May Violate The First And Eighth Amendments, Madison Scarfaro

Touro Law Review

Solitary confinement has been a practice used for those who are incarcerated in our criminal justice system for hundreds of years. Our nation, as well as our society have evolved and continue to evolve over the course of hundreds of years. However, the use of solitary confinement has not. Even with all of the research and literature surrounding the monstrosities that come about from solitary confinement, it is still used in most of our jails and prisons to this day. The Eighth Amendment to the U.S. Constitution provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel …

A Patent System For Temple Grandin, Andrew Chin

Touro Law Review

This article explores the intersection of neurodiversity and innovation through the lens of Temple Grandin’s contributions to livestock handling systems and her philosophical alignment with the U.S. patent system. Drawing on cognitive research by Simon Baron-Cohen, archaeological insights from Penny Spikins, and personal reflections, I argue that autistic cognitive styles—characterized by heightened “folk physics” aptitudes and visual thinking—have historically driven technological progress. Grandin’s patented inventions, motivated by sensory-based empathy for animals, exemplify how neurodivergent inventors seek to embed their conceptions of ethical utility into the nation’s technological infrastructure. The article critiques modern patent litigation trends, advocating instead for a system …

Love In The Disabilities Paradigm: A Normal Person’S Need For Healing, Randy Lee

Touro Law Review

We function in a disabilities paradigm where people are broken in a multitude of ways and where, having recognized their brokenness, we seek in our benevolence to remake these broken people in our own image. There is, however, another paradigm in which one might live, a paradigm of love. In that paradigm, people are not divided between “normal” and “broken” but live together on a common spectrum of light. In this paradigm, people are not so much “disabled” as they are waiting to be believed in, and in this paradigm, the greatest need for healing is in the capacity to …

In Too Deep: Navigating An Unpredictable Algorithm, Anthony J. Ranieri

Touro Law Review

This note explores the intersection of deepfakes, a newfound and seemingly ubiquitous technology, and the protections granted by the Free Speech Clause under the First Amendment. At this juncture, society has failed to develop an infallible form of deepfake detection technology despite persistent and diligent efforts by individuals and entities alike. Hyper realistic deepfake technology has and will continue to be utilized by bad actors as a tool for advancing their nefarious goals, resulting in cognizable harm to individuals and society at large. This note evaluates the current state of deepfake technology and the potential obstacle that traditional First Amendment …

The False Evidence Ploy: A Coercive, Not Just Deceptive, Police Tactic, Alexa D. Sondey

Touro Law Review

Why would people confess to a crime they did not commit? It may seem hard to imagine that an innocent person would confess but as this Note will show, false confessions are a real and serious issue. One cause of false confessions is the False Evidence Ploy - a police interrogation tactic where police falsely tell a suspect they have some sort of incriminating evidence against them. This Note argues that the Ploy is psychological coercion, as it may cause innocent suspects to believe they actually committed the crime and then confess. N.Y. Bill S324A presented a solution, banning the …

Tort Law As A Remedy For Terrorism, Boaz Segal

Touro Law Review

This article examines two basic questions. First, can tort law suits against operatives in various circles of the world of terrorism be added to the toolkit of deterrence? Second, assuming that the answer to the first question is in the affirmative, how can tort law be structured to effectively deter terror operatives? With respect to the first question, despite the intuitive assumption that the relevant branches of the law in such cases are criminal, international, and counter-terrorism law rather than the various branches of private law, this article argues that tort law is capable of serving as a significant deterrent …

America’S Turning Point: Religious & Free Speech Rights Transcend The Authority Public School Districts Think They Possess, Robert L. Coleman

Touro Law Review

What is the first thing that comes to mind when thinking about the First Amendment? I would argue that most people either say “Religion” or “Free Speech.” Arguably two of the most important and humane values inherent in a functioning democratic society are safeguarded by the First Amendment. But are they? Imagine this situation. You and your spouse have a child and send him to the local public school. One day, he comes home and says that his fourth grade teacher instructed the class that each student must refer to classmates by the pronouns of that student’s choice. Your child …

The Forgotten Victims: A Case For Children’S Compensation Amidst Parental Wrongful Incarceration, Mackenzie Crabbe

Touro Law Review

Wrongful incarceration is a tragedy that occurs far more often than most would care to admit. However, it is not only the wrongfully convicted person who suffers from this phenomenon. Most innocent people who are incarcerated have a family who is then affected and suffers immensely. Many wrongfully incarcerated individuals have children who then grow up without their parents, or with a significant barrier hindering their relationship with their parents. Typically, incarceration, and the separation of families that comes along with it, is justified by the need to regulate crime and keep communities safe. How[1]ever, when innocent people are serving …

Mind The Gap(S): Mitigating Harassment In A Post-#Metoo Workplace, Jamillah Bowman Williams, Elizabeth C. Tippett, Anu Ramdin

Georgetown Law Faculty Publications and Other Works

In a post-#MeToo workplace, harassment remains pervasive, and harassment law still fails to provide protection for the harms experienced by many workers—particularly those in the most vulnerable jobs. Even when reform efforts are introduced through legislation, courts, and agency guidance, it often does not provide greater power, autonomy, and dignity to women in ways that would more meaningfully protect them from workplace abuse. We are the first to create a database of state legislation, including over three thousand bills, that allows us to empirically analyze the extent to which lawmakers comprehensively address harassment following the rise of the #MeToo movement. …

Pozen And The Puzzle Of Counterfactuals, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The Constitution and the War on Drugs, David Pozen’s carefully researched and brilliantly argued book, is both illuminating and disturbing: illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window, and disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world. In this review, the author argues that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions …

Promoting Public Health And Public Safety By Ending The Exclusion Of Incarcerated Children From Access To Medicaid, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

This essay is a response to Professor Den Houter's article entitled Children are Not Inmates in which she effectively calls eliminating the exclusion of indigent incarcerated children from Medicaid coverage pursuant to the Medicaid Inmate Exclusion Policy (MIEP). This essay affirms and builds upon Professor Den Houter's recommendation. Part I of this response provides additional support for why ensuring system-involved youth receive timely, uninterrupted, high-quality behavioral health services is critical to improving both public health and public safety. Part II analyzes the benefits and risks attendant to excluding indigent incarcerated children from the MIEP. Part III proposes the implementation of …

De/Reconstructing Delinquency, Eduardo R. Ferrer

Georgetown Law Faculty Publications and Other Works

Hundreds of thousands of children are brought under the jurisdiction of delinquency courts every year in the United States. Despite the reality that most children engage in delinquent behavior during their adolescence, poor children, children of color, children with disabilities, and children who identify as LGBTQIA+ comprise a disproportionate number of those who become delinquency system-involved. These disparities exist by design. Their origins can be traced back to the flawed first principles upon which the juvenile court was built and, specifically, to the unduly expansive legal definition of delinquency that has undergirded the jurisdiction and power of the juvenile court …

I Hate Self-Care: A Criminal Defense Lawyer’S Lament, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Don’t get me wrong—I think people should take care of themselves. They should eat well, exercise regularly, and get a good night’s sleep. They should spend time with friends and family. They should have hobbies and interests. With any luck, they should find true love. But in the past decade or two, and especially since the COVID pandemic, there has been a disturbing turn inward. I’m talking about the “self-care” craze, which has become its own pandemic, or at least epidemic.

…

In this Essay, I share my concerns about what I regard to be an excessive focus on self-care …

Byte By Byte: Breaking Down The Third-Party Doctrine And Reproductive Health Apps After Dobbs, Travis Handler

Oklahoma Law Review

No abstract provided.

If Memory Serves: Navigating Cognitive Impairment Within Congress, Gracemary R. Zizzo

Oklahoma Law Review

No abstract provided.

Exposed! Students’ Personal Reproductive Healthcare Information, Janet Koven Levit

Oklahoma Law Review

No abstract provided.

Religious Liberty, Public Accommodations, And Non-Discrimination: A Rapidly Emerging Injustice, Gordon Babst

Political Science Faculty Books and Book Chapters

The decision in Burwell v. Hobby Lobby Stores, Inc., suggested to many that the scope of religious liberty was in a principled, logical way expanded to include free expression rights of corporate entities. It is concerning that many champion the decision as a basis for expanding religious exemptions to non-discrimination law as regards public accommodations, especially since the same reasoning that is being used with respect to the contemporary target of discrimination based in religious belief—American citizens who happen to be in a sexual minority—would apply by analogy, as it once did explicitly, to racial minorities. Unfortunately, given the …

A Patent System For Temple Grandin, Andrew Chin

Faculty Publications

This article explores the intersection of neurodiversity and innovation through the lens of Temple Grandin’s contributions to livestock handling systems and her philosophical alignment with the U.S. patent system. Drawing on cognitive research by Simon Baron-Cohen, archaeological insights from Penny Spikins, and personal reflections, I argue that autistic cognitive styles—characterized by heightened “folk physics” aptitudes and visual thinking—have historically driven technological progress. Grandin’s patented inventions, motivated by sensory-based empathy for animals, exemplify how neurodivergent inventors seek to embed their conceptions of ethical utility into the nation’s technological infrastructure. The article critiques modern patent litigation trends, advocating instead for a system …

Scrutinizing Transgender Healthcare Bans Through Intersex Exceptions, Holning Lau, Barbara A. Fedders

Faculty Publications

Major professional medical organizations—for example, the American Academy of Pediatrics, American Medical Association, and Endocrine Society—consider gender-affirming care to be safe and, at times, essential for vulnerable transgender youth. Despite these benefits, 26 states have banned gender-affirming care for minors. Proponents of these bans raise concerns about potential medical harms, the irreversibility of treatments, and the adequacy of informed consent.

Every state ban includes an exception for so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary. The procedures are rarely medically necessary, but proponents of the surgeries contend …

Tax And The Myth Of The Family Farm, Kathleen Delaney Thomas

Faculty Publications

With income and wealth inequality at historically high levels, policymakers have looked to the tax system as a potential road to reform. Specifically, new taxes on wealth or inheritances could raise much-needed revenue and reduce intergenerational wealth disparities. Yet looming behind recent proposals to strengthen the progressivity of the tax system is the specter of taxing family farms out of existence.

In the minds of voters, the family farmer is a sympathetic taxpayer who is cash poor but holds valuable property. Federal taxes that are based upon property values (like a wealth tax or an estate tax), rather than on …

Generative Identity Theft: Criminalizing Deepfakes Using The Right Of Publicity, Dustin Marlan

Faculty Publications

The right of publicity grants individuals control over the commercial use of their identity, particularly name, image, and likeness. Currently, publicity laws are a fragmented patchwork of state statutes and case law, leading to frequent calls for reform, including the establishment of a federal right of publicity. This issue has gained renewed urgency amid the rise of generative artificial intelligence and deepfake technologies. In response, Congress has introduced multiple bipartisan proposals—most prominently, the Senate’s No FAKES Act and the House’s No AI FRAUD Act—that seek to create federal protections against unauthorized digital replicas of likeness, voice, and other aspects of …

Trauma-Informed Courts? How Judges May Influence Kids’ Experiences Of Court, Eva Mckinsey, Amelia Ashton Thorn, Minjee Kristin Kim, Catherine Gorey

Faculty Scholarship

No abstract provided.

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Interplanetary Risk Regulation, Jonathan B. Wiener, Charles (Chase) Hamilton

Faculty Scholarship

Space exploration promises new opportunities but also new risks. After centuries of national settlements and international conflicts on Earth, and the Cold War era of two great power states racing to the Moon, today we see a rapidly proliferating arena of actors, both governmental and non-governmental, undertaking bold new ventures off-Earth while posing an array of new risks. These multiple activities, actors, and risks raise the prospects of regulatory gaps, costs, conflicts, and complexities that warrant reconsideration and renovation of legacy legal regimes such as the international space law agreements. New approaches are needed, beyond current national and international law, …

New Insights On Expert Opinion About Eyewitness Memory Research, Travis M. Seale-Carlisle, Adele Quigley-Mcbride, Jennifer E. F. Teitcher, William E. Crozier, Chad S. Dodson, Brandon L. Garrett

Faculty Scholarship

Experimental psychologists investigating eyewitness memory have periodically gathered their thoughts on a variety of eyewitness memory phenomena. Courts and other stakeholders of eyewitness research rely on the expert opinions reflected in these surveys to make informed decisions. However, the last survey of this sort was published more than 20 years ago, and the science of eyewitness memory has developed since that time. Stakeholders need a current database of expert opinions to make informed decisions. In this article, we provide that update. We surveyed 76 scientists for their opinions on eyewitness memory phenomena. We compared these current expert opinions to expert …