Digital Commons Network^™

Support New Business To Solve Old Problems With Kentucky’S Keystone Waste From Bourbon & Brewing, Samuel C. Kessler

Commonwealth Policy Papers

Provided here is a policy solution from the backside of Kentucky bourbon and brewing to upcycle Kentucky’s “keystone” wastes and grow businesses in the process. Potential effects range from removing the bottleneck on bourbon production and producing GHG-friendly biogas to lowering the price of milk.This full whitepaper brief provides an incentive model for keystone wastes which have a provider and a use. It is equally applicable for policymakers or advocates wishing to place a policy incentive behind waste-to-product upcycling, businesses involved with methane sequestration & renewable biogas energy, and shifting regulatory and penalizing models of pollution into incentive model for …

Symposium: Sexual Orientation, Gender Identity & The Constitution: American Constitutions And Artificial Insemination Births, Jeffrey A. Parness

ConLawNOW

Childcare parentage issues arising from assisted reproduction births are subject to constitutional guidance, including due process, equal protection, and privacy dictates. Constitutional rights, however, sometimes go unrecognized in assisted reproduction laws, particularly for same sex couples, wed and unwed, as well as for single women. Upon a brief review of contemporary American state assisted reproduction laws, current and future constitutional precedents are explored. This analysis shows that constitutional, as well as public policy, reforms are particularly needed for same-sex female couples and single women employing assisted reproduction as intended parents.

Class Of 22 Spotlight: Charles Westerhaus, Jd, James Owsley Boyd

Keep Up With the Latest News from the Law School (blog)

No abstract provided.

Demystifying Mindreading For The Law, Teneille R. Brown

Utah Law Faculty Scholarship

To lawyers, mindreading conjures up flamboyant images of crystal balls or charlatans. However, it is a deeply serious endeavor for the law. The primary role of fact-finders in civil, criminal, and administrative trials in the United States is to serve as highly-regulated mind readers—to listen to the testimony and decide whether the witnesses are credible and telling the truth. Because it can be so easily biased, we must directly acknowledge how jurors and judges (in addition to voters and employers) automatically and imperfectly read minds. We must remove the “mystique of mindreading,” and see how ordinary assessments of mental states …

Personality Disorders In Relation To Crime, Ann Difrank

D.U.Quark

Personality disorders, including borderline and antisocial, are mental disorders that influence the thoughts and behaviors of affected individuals. There is currently a lack of studies in the relationship between these individuals and crime rates, though it is often found criminal offenders have said disorders. These disorders can be traced down to neurological and biochemical dimensions, including disruptions in brain function and chemical levels. These disorders can also be developed from childhood abuse or other disruptions in adolescent development. Though all personality disorders are developed similarly, the differences in presentation affect the type of crime committed and specific crime scene behaviors. …

Protecting The Pandemic Essential Worker, Mechele Dickerson

Law and Contemporary Problems

No abstract provided.

The Clean Energy Dilemma: How The Push For Clean Energy Could Threaten Indigenous Communities And An Exploration Of Potential Alternatives, Laura Berglan, Blaine Miller-Mcfeeley, Andrea Folds, Earthjustice

Colorado Environmental Law Journal

No abstract provided.

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Notre Dame Law Review

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …

Beefing Up Skinny Labels: Induced Infringement As A Question Of Law, Garrett T. Potter

Notre Dame Law Review

This Note proposes a novel argument for improving the application of induced infringement by splitting its elements into separate questions of fact and law, incorporating the relevant perception and reasoning of both judge and jury. Part I provides a primer of the Hatch-Waxman Act and interactions (and lack thereof) between the USPTO and FDA in regulating pharmaceutical compositions. Part II assesses the historical landscape that led to the codification of induced infringement. Part III concludes by proposing an alternate approach by treating an element of induced infringement as a question of law, rather than a question of fact, and sets …

Up In Smoke: Why Regulating Social Media Like Big Tobacco Won’T Work (Yet!), Ian Mckay

Notre Dame Law Review

Lawmakers, pundits, and tech executives’ assertion that social media should be regulated like tobacco in order to protect American teenagers is oversimplistic. While the comparison makes for a good sound bite for the press, the argument disregards the inherent differences between regulating a physical product that has no constitutional protection and a virtual product that can implicate both users’ and social media companies’ First Amendment rights. This paper will identify and analyze some of the main pillars of the tobacco regulatory scheme and apply them to social media products. In Part I, I will define social media and provide a …

Worth A Shot: Encouraging Vaccine Uptake Through “Empathy”, Dr. Jody Lyneé Madeira

Vanderbilt Journal of Entertainment & Technology Law

Pro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.

This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies …

Brains Without Money: Poverty As Disabling, Emily R.D. Murphy

Connecticut Law Review

The United States has long treated poverty and disability as separate legal and social categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals generally are not thought to be morally responsible for their disadvantage, whereas in the case of poverty, individuals are assumed to be at fault for their disadvantage and are therefore less deserving of aid. This Article argues that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that …

Evaluating The Constitutionality Of Marital Status Classifications In The Regulation Of Posthumous Reproduction And Postmortem Sperm Retrieval, Alison Jane Walker

Connecticut Law Review

In Eisenstadt v. Baird, the Supreme Court held that a state law prohibiting the provision of contraceptives to unmarried persons violated the Fourteenth Amendment’s rational basis test because of the disparate treatment it afforded to married and unmarried individuals. Eisenstadt stands for an individual’s right to make their own procreative decisions, free from governmental intrusions which impose arbitrary classifications on privacy and freedom. This Note focuses on posthumous reproduction and, more specifically, postmortem sperm retrieval: the process of using a deceased male’s frozen sperm after his death to produce his biological children at the request of his spouse or intimate …

Police Education And Its Influence On Traffic Enforcement Performance, Shatavia Monique Kennedy

Masters Theses

In demanding occupations, the preference for formal education is presumptive when improving competency and workmanship. This study assesses the correlation between college education and traffic enforcement performance within a local police department in Aberdeen, North Carolina. In this study, performance strictly refers to issued traffic citations and traffic enforcement. The research consisted of a secondary analysis (public records) using qualitative data. Data were collected to determine which officers issued the most traffic citations from the highway patrol unit from January to June 2021. Second, qualitative data were collected via an interview with one of the department officers to obtain demographic …

Parenting While Black, R. A. Lenhardt

Fordham Law Review

Changes in law and policy—not to mention developments such as the COVID-19 pandemic and its devastating effects on families—raise important questions about how to define parental rights and how to best support parents and children during these challenging times. The Symposium also presented important questions about issues of race, gender, sexuality, and class in our modern context. Even more salient in this space are issues of race. Here, as in other contexts, Black families, like my grandmother’s and so many others, are the “canaries in the mine.” Their experiences provide us with important insight into the signs of danger facing …

Parentage Agreements Are Not Contracts, Gregg Strauss

Fordham Law Review

Parentage agreements are proliferating. In a fertility clinic, an egg donor, sperm donor, and gestational surrogate may agree to waive their parental rights, and the intended parents may agree to share parenthood. In a maternity ward, a birth mother may agree to acknowledge a partner as a parent. In an adoption agency, birth and adoptive parents may agree to an open adoption with ongoing visitation. In a home, a parent may agree to share parentage with a cohabitant, enabling the cohabitant to become a legal parent later after raising the child and developing parental bonds. Good reasons underlie this drift …

Power To The People: Distributing The Benefits Of A Clean Energy Transition Through Equitable Policy, Legislation, And Energy Justice Initiatives, Alexandria E. Dolezal

Minnesota Law Review Vols. 106:2 onward (2021-present)

The transition to renewable energy may be accelerating, but the path to a clean energy future is still littered with potential inequities. This reality has become increasingly evident in the early 2020s as the COVID-19 pandemic has exacerbated injustices within the existing energy system, leaving many low-income and minority communities struggling to pay for essential utilities. Moreover, marginalized communities are disproportionately impacted by the negative externalities of the energy sector, such as air pollution and climate- change-induced natural disasters. Recent events, like the Texas power crisis and unprecedented heatwaves in 2021, have brought these issues into sharper focus, while equally …

Psychological Parenthood, Anne L. Alstott, Anne C. Dailey, Douglas Nejaime

Minnesota Law Review Vols. 106:2 onward (2021-present)

Family law in the United States is governed by an assortment of familiar legal doctrines and policies that often undermine, and sometimes sever, the relationships between children and the adults with whom children are most closely bonded. For example, the “best interests of the child” standard, which has long governed a host of legal determinations such as custody, offers only a vague and indeterminate guideline for decision-making, an approach that risks undervaluing the importance of children’s relationships to close caregivers. Similarly, courts and commentators commonly assert that the federal Constitution provides special protection to biological parent-child relationships, despite the fact …

Irrationalities In Legal Parentage: Gender Identity And Beyond, Jeffrey A. Parness

University of Baltimore Law Review

No abstract provided.

Ovarian Tissue Cryopreservation: A Window Into The Reproductive Justice Concerns Underlying Assisted Reproductive Technologies, Caitlyn Pesavento

Connecticut Law Review

More regulatory framework is needed for assisted reproductive technologies. Taken together, the high costs of fertility treatment, lack of widespread insurance coverage, and social perceptions of motherhood make it nearly impossible for women from traditionally marginalized backgrounds to collectively overcome barriers of access to fertility treatments. Viewing the ovarian tissue cryopreservation procedure through a reproductive justice framework illustrates an inherent dichotomy between increasing availability and increasing access to assisted reproductive technologies. This Comment explores the current regulation—or lack thereof—of assisted reproductive technologies; advocates for the regulation of ovarian tissue cryopreservation by the U.S. Food and Drug Administration; scrutinizes the failings …

Incorporating Climate Change In Nepa Reviews: Recommendations For Reform, Michael Burger, Romany M. Webb, Jessica A. Wentz

Sabin Center for Climate Change Law

The National Environmental Policy Act (“NEPA”) requires federal agencies to conduct an environmental review prior to moving ahead with any major federal project, plan, or program that could significantly affect the environment. As part of the environmental review, agencies must share information with, and solicit feedback from, the public. The goal is to improve federal decision-making by ensuring that agencies take a hard look at the environmental effects of their actions and fully inform the public about those effects.

In guidance issued in 2016, the Council on Environmental Quality (“CEQ”)—the federal body charged with implementing NEPA—identified climate change as a …

Can Bioethics Guide Governance In Public Health Emergencies? Lessons From The Pandemic, John Conley, Arlene Davis

North Carolina Journal of Law & Technology

No abstract provided.

Designing An Americans With Abilities Act: Consciousness, Capabilities, And Civil Rights, Laura C. Hoffman, Zachary E. Shapiro, Allison Rabkin Golden, Gregory E. Antill, Katherine Fang, Chaarushena Deb, Elizabeth Clarke, Alexis Kallen, Hanya M. Qureshi, Kai Shulman, Caroline V. Lawrence, Megan S. Wright, Joseph J. Fins

Law Faculty Articles and Essays

The Americans with Disabilities Act (ADA) is a seminal piece of legislation aimed at protecting those with disabilities from discrimination. The ADA, however, has not been consistently able to integrate people with disabilities successfully into society. With a specific focus on individuals with serious brain injuries, this Article aims to provide insight into the shortcomings of the ADA, specifically focusing on lackluster enforcement of the legislation and its failure to incorporate promising new technologies. These limitations of the ADA are made even more clear in light of the evolution occurring in the understanding of rights and capabilities. As such, the …

Narrative Capacity, James Toomey

Elisabeth Haub School of Law Faculty Publications

The doctrine of capacity is a fundamental threshold to the protections of private law. The law only recognizes private decision-making—from exercising the right to transfer or bequeath property and entering into a contract to getting married or divorced—made with the level of cognitive functioning that the capacity doctrine demands. When the doctrine goes wrong, it denies individuals, particularly older adults, access to basic private-law rights on the one hand and ratifies decision-making that may tear apart families and tarnish legacies on the other.

The capacity doctrine in private law is built on a fundamental philosophical mismatch. It is grounded in …

"Beef -- It's Not What's For Dinner": The Implications Of France's Newest Law For The Future Of Labeling Cultured Meat In The European Union, Nick Verderame

North Carolina Journal of International Law

No abstract provided.

The "Law To Use The Mark The Delpaís," Act 195-2016: Case Study Of A Puerto Rican Certification Mark With Potential Of Becoming A Geographic Indication For Economic Development, Paola Gabriela Zaragoza Cardenales

Maurer Theses and Dissertations

In 2016, the Puerto Rican Congress codified the “Law for the use of the DelPaís Mark” (the DelPaís Law), creating a composite certification mark called Productos DelPaís de Puerto Rico (the DelPaís Mark) for raw fruits, milk, honey, meats, egg, fish, ornamental plants, spices, vegetables, starches, and value-added products. The Puerto Rican Department of Agriculture intended the DelPaís Mark to function as a certification mark and Geographical Indication (GI) to differentiate local from imported products to promote purchasing of locally produced items and eventually export internationally. A GI is a source identifier identifying that a place makes a particular product …

Punishing Maternal Ambivalence, Elizabeth Kukura

Fordham Law Review

There are certain landmarks on the road to parenthood that together comprise a cultural narrative about becoming a parent, a narrative that many aspire to emulate and that some achieve: celebrating a (heterosexual) marriage with a big wedding; a positive pregnancy test leading to overjoyed reactions; first ultrasound pictures hung on the fridge (and shared on social media); a healthy pregnancy with baby showers and nesting to prepare for the new arrival; maternity photo shoots and babymoons to celebrate the final moments before life changes; and finally, an uncomplicated labor and delivery that, in an instant, transform the couple into …

Equal Protection And Scarce Therapies: The Role Of Race, Sex, And Other Protected Classifications, Govind Persad

SMU Law Review Forum

The allocation of scarce medical treatments, such as antivirals and antibody therapies for COVID-19 patients, has important legal dimensions. This Essay examines a currently debated issue: how will courts view the consideration of characteristics shielded by equal protection law, such as race, sex, age, health, and even vaccination status, in allocation? Part II explains the application of strict scrutiny to allocation criteria that consider individual race, which have been recently debated, and concludes that such criteria are unlikely to succeed under present Supreme Court precedent. Part III analyzes the use of sex-based therapy allocation criteria, which are also in current …

Narrative Capacity, James Toomey

North Carolina Law Review

No abstract provided.

Tribal Identity And The Rise Of The American Indian/Alaskan Native Population, Angel M. Stevens

Political Science Theses and Capstones

Today, most tribal nations in the United States identify by federal recognition, yet on the American Community Survey, American Indian/Alaskan Native respondents can self-identify as a member of a specific tribal nation. Most researchers argues that this tribal identification fortifies the reflection of the American Indian/Alaskan Native identity. There are 574 federally recognized tribes in the United States today. Between 2000-2020, the US Census Bureau and the American Community Survey noted a significant surge in the American Indian/Alaskan Native population. This population growth went from a mere 2 million to almost 10 million in a 20-year time span. In this …