Digital Commons Network^™

Math And Aftermath: Impacts Of Unbundling A Large Journal Package On Researcher Perceptions And Behavior, Kizer S. Walker, Adam Chandler, Caitlin Finlay, Gabriela Castro Gessner, Tobi Hines, Jesse Koennecke, Susan Kendrick, Leah Mcewen, Jacob Sayward, Henrik W.W. Spoon

Articles

This study seeks to understand the effects on researchers’ work at a large research university in the wake of the university library’s shift from a near-comprehensive journals package with a single, large publisher to a selective list of individual journal subscriptions. Analyzing historical journal usage, along with turnaway and interlibrary loan trends from the years following the changes, the authors made use of structured interviews with local researchers to bring context and meaning to the quantitative data. The interviews highlighted researchers’ strategies for gaining access to literature in their fields to which the library does not subscribe, and revealed assumptions …

Colombia, Covid-19, And The Colonial Trap: Reflections On The Politics Of Knowledge Production, Fionnuala Ní Aoláin, Bill Rolston, Claire Wright

Articles

The COVID-19 pandemic has made historical and contemporary colonial relationships between and within states more fraught. This complexity is apparent within the research process itself, adding a new dimension to debates on positionality and the politics of knowledge production. Drawing on critical approaches to International Relations, and in dialogue with an emerging literature on the implications of the pandemic for knowledge decolonization, we reflect on our experience as scholars from the UK/Ireland researching colonial legacy and Transitional Justice in Colombia. The aim of this autoethnographic article is to suggest how the COVID-19 pandemic affected inequalities between researchers based in Europe …

Cultural Cognition And The Thoughtful Judge, Jack H.L. Whiteley

Articles

That judges follow what the law is, and not what they wish it was, is a requirement of the rule of law. At the same time, scholars, lawyers, and judges often say that judges’ values influence their decisions. Connecting these two ideas has generated a conversation about the relationship between law, ideology, and politics.

Recently, part of this conversation has focused on a theory called cultural cognition. The theory offers an account of how people’s values shape how they interpret things without their noticing. People whose values tend toward hierarchy sometimes perceive facts differently than people whose values tend toward …

Standardization And Accuracy Of Race And Ethnicity Data: Equity Implications For Medical Ai, Alexandra Tsalidis, Lakshmi Bharadwaj, Francis X. Shen

Articles

The rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of best …

Revolutionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan M. Wolf, Francis X. Shen

Articles

Introduction New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial. Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns. Methods & Results We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Designer Organs: Ethical Genetic Modifications In The Era Of Machine Perfusion, Irina Filz Von Reiterdank, Susan M. Wolf, Raphaela Bento, Insoo Hyun

Articles

Gene therapy is a rapidly developing field, finally yielding clinical benefits. Genetic engineering of organs for transplantation may soon be an option, thanks to convergence with another breakthrough technology, ex vivo machine perfusion (EVMP). EVMP allows access to the functioning organ for genetic manipulation prior to transplant. EVMP has the potential to enhance genetic engineering efficiency, improve graft survival, and reduce posttransplant complications. This will enable genetic modifications with a vast variety of applications, while raising questions on the ethics and regulation of this emerging technology. This review provides an in-depth discussion of current methodologies for delivering genetic vectors to …

Fairness In Contract Law: An Impossibility Theorem?, Francesco Parisi, Brian H. Bix

Articles

Scholars have long debated whether contract law should prioritize maximizing efficiency and social welfare or, instead, prioritize justice, fairness and other deontological values. The debate is partly prescriptive (what should we try to do with contract law rules) and partly conceptual (how should we understand contract law). This article surveys central positions in this debate, distinguishing between the corrective and redistributive functions of contract law and between doing justice between the parties and more systemic effects. It highlights an impossibility theorem that underscores the self-defeating nature of redistributive policies in price-based contractual relationships, using a numerical example and two policy …

Public Perceptions Of Neurotechnologies Used To Target Mood, Memory, And Motor Symptoms, Rémy A. Furrer, Amanda R. Merner, Ian Stevens, Peter Zuk, Theresa Williamson, Francis X. Shen, Gabriel Lázaro-Muñoz

Articles

Public attitudes toward four neurotechnologies for treating three types of brain disorders (mood, motor, and memory) vary on a range of metrics, such as perceived risk, invasiveness, and likelihood of use. In a survey of 1,052 US participants, deep brain stimulation (DBS) was seen as the most invasive and risky among the surveyed methods, involving the greatest perceived change to the person and the least likely to be used personally. Non-surgical options like transcranial magnetic stimulation (TMS) and pills were viewed as more acceptable. Devices targeting motor symptoms were rated as more beneficial and acceptable than those for mood or …

Standardization And Accuracy Of Race And Ethnicity Data: Equity Implications For Medical Ai, Alexandra Tsalidis, Lakshmi Bharadwaj, Francis X. Shen

Articles

Abstract

The rapid integration of artificial intelligence (AI) into healthcare has raised many concerns about race bias in AI models. Yet, overlooked in this dialogue is the lack of quality control for the accuracy of patient race and ethnicity (r/e) data in electronic health records (EHR). This article critically examines the factors driving inaccurate and unrepresentative r/e datasets. These include conceptual uncertainties about how to categorize races and ethnicity, shortcomings in data collection practices, EHR standards, and the misclassification of patients’ race or ethnicity. To address these challenges, we propose a two-pronged action plan. First, we present a set of …

Revoluntionizing Brain Research Using Portable Mri In Field Settings: Public Perspectives On The Ethical And Legal Challenges, Molly K. Madzelan, Frances Lawrenz, Susan Wolf, Francis X. Shen

Articles

Introduction

New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial.

Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns.

Methods & Results

We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing …

Race, Gender, And Ordinary Peace: Assessing The Women, Peace, And Security Agenda Through A Coloniality Lens, Fionnuala Niaolain, Claire Wright

Articles

No abstract provided.

The Question Not Presented: Government And Social Media Corruption After Murthy V. Missouri, Richard Painter

Articles

The Supreme Court in Murthy v. Missouri in 2024 dismissed a suit by multiple plaintiffs alleging that the Biden Administration’s efforts to persuade social media platforms to monitor content violated the First Amendment. Although the Court did not directly decide the constitutionality of the government policy, the Court imposed a high bar for plaintiffs other than social media platforms to show standing to challenge the constitutionality of government pressure on the platforms. But the coercion problem is not the only troubling aspect of this government policy. The question not presented to the Court was the corruption problem. What happens when …

Beyond The Editorial Analogy: First Amendment Protections For Platform Content Moderation After Moddy V. Netchoice, Alan Rozenshtein, Kyle T. Langvardt

Articles

This Article examines the Supreme Court’s 2024 decision in Moody v. NetChoice and its implications for social media platform regulation. In Moody, which addressed state laws requiring platforms to host certain content, the Court issued a complex set of opinions that left the scope of platforms’ First Amendment rights uncertain. On the procedural question of how such laws may be challenged, the Court provided a clear holding: it rejected facial challenges to broad content-moderation laws, instead requiring case-by-case analysis of how specific regulations affect different platform features—a shift that undermines the tech industry’s longstanding litigation strategy. But on the …

Corporate Governance For Platform Workers, Matthew T. Bodie, Grant M. Hayden Professor

Articles

Regardless of their status under employment law, we believe that corporate law holds untapped potential in reshaping the rights and working conditions of platform workers. While the law of corporate governance remains aligned with shareholder interests, the collapse of the law-and-economics underpinnings of shareholder primacy should prompt us to develop new approaches to corporate governance. In this Essay, we briefly set out three alternative models for determining whether stakeholders should participate in corporate governance: a democratic participation model, a theory of the firm model, and an information theory model. All are fully consistent with the precepts of standard economics that …

Women And Corporate Governance: Time Horizons And Stakeholder Analysis, June R. Carbone

Articles

This Article will build on my earlier work with Naomi Cahn and Nancy Levit to use the fate of women in individual companies to shine new light on the temporal orientations underlying corporate and labor and employment law and provide a basis for a new foundation for a combined approach. This Article will first explain why the shift to shareholder primacy, and the accompanying emphasis on short-term results tied to high stakes bonus pay, disproportionately short-changes female employees, whether in management or in line positions. The Article will maintain that it is not the shift to shareholder primacy in isolation, …

Presidential Control And Administrative Capacity, Nicholas Bednar

Articles

Presidential control is the power to direct administrative capacity toward the President’s own policy objectives. Accordingly, presidential power vis-à-vis administrative policymaking has two necessary components: control and capacity. First, the President must have the ability to set the agency’s policymaking agenda and direct the day-to-day activities of its leadership and career employees. Second, the agency needs a well-managed team of policymakers with expertise and experience in both the substantive policy area and the policymaking process. Yet scholars have long assumed—without much empirical testing—that the administrative state has sufficient capacity to implement the President’s agenda. Not so.

This Article argues that …

The Rhetoric And Reality Of Shareholder Profit Maximization, Claire A. Hill

Articles

There is presently a heated debate as to what a corporation’s purpose should be. The debate is between proponents of shareholder profit maximization (SPM), the idea that companies should be run exclusively in the financial interests of their shareholders, and proponents of stakeholderism, the idea that in addition to shareholder financial interests, companies should be run to further interests of other stakeholders. At least some of these other stakeholders are quite sympathetic and their interests, or more precisely, the respects in which their interests are purportedly being harmed (or at least insufficiently attended to), are quite salient. While SPM and …

Anticipating A New Modern Skidmore Standard, Kristin E. Hickman

Articles

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference but blessed giving agency interpretations of statutes “respect” or “weight” under the Skidmore standard during judicial review. Yet, the Court in Loper Bright offered only a few limited references regarding Skidmore as a doctrine, with little guidance regarding what judicial review under Skidmore ought to look like. The Court might not have felt the need to elaborate, as courts have been applying Skidmore for eighty years. As applied, however, Skidmore is a more complicated doctrine than many people realize. An extensive Skidmore jurisprudence exists, with nuances that at …

Legal Scholarship Through The Lens Of Generative Ai, Darkly, Andrew Martineau, Loren Turner

Articles

Unlike traditional search engines limited to connecting users to original source content, generative AI systems produce new, ad-hoc sources of information derived primarily from patterns in their training data and information fed into the system as context. As such, generative AI systems can play a mediating role between users and information sources, especially when these systems are integrated into databases and web search engines. This article examines how GPT-4 (ChatGPT) interacts with law review articles, revealing its unreliability in summarizing them independently but notable accuracy when provided with full-text input. Retrieval augmented generation (RAG) offers a potential solution for improving …

Scientific And Technical Expertise After Loper Bright, Sapna Kumar

Articles

Courts once trusted federal agencies for their expertise in administering complex statutory schemes, particularly regarding science and technology. Unlike judges, agency officials can narrowly focus on a specific area of law and have access to experts to inform their decision making. In Chevron U.S.A., Inc. v. Natural Resources Defense Council, the Supreme Court created a presumption that, absent language to the contrary, Congress intends for agencies to interpret statutory ambiguities. Chevron allowed agencies to utilize their varied forms of expertise while ensuring oversight from generalist judges. This court–agency partnership abruptly ended, however, in Loper Bright Enterprises v. Raimondo. The Court …

Hiding In Plain Sight: Erisa’S Cure For The $1.4 Trillion Health Benefits Market, Amy B. Monahan, Barak D. Richman

Articles

Since 1974, the Employee Retirement Income Security Act (ERISA) has imposed fiduciary duties on those who manage and administer employee benefit plans. But for the largest employee benefits—retirement benefits and health plans, which together constitute 13% of total national compensation—ERISA’s fiduciary duties have played very different roles. For retirement benefits, ERISA scrutinizes plan managers and requires employers to select plan investments with care. For health plans, there is a regulatory vacuum, as ERISA imposes few federal requirements yet preempts state efforts to ensure quality plan offerings. In short, ERISA has advanced protections for retirement plans but mostly curtailed protections for …

Phyllis Schlafly And How Forgetting Women's Struggles For Equality Perpetuates Inequality, Jill Elaine Hasday

Articles

In a nation whose Constitution purports to speak for “We the People,” too many of the stories that powerful Americans tell about law and society include only We the Men. A long line of judges, politicians, and other influential voices have ignored women’s struggles for equality or distorted them beyond recognition by wildly exaggerating American progress. Even as sexism continues to warp constitutional law, political decisionmaking, and everyday life, prominent Americans have spent more than a century proclaiming that the United States has already left sex discrimination behind.

This symposium essay draws on my book, We the Men, to …

Narrowing The Frame: Consumer Insurance Policies And The Limits Of The Restatement Of Consumer Contracts, Daniel Benjamin Schwarcz

Articles

No abstract provided.

Avoision: When Government Lawyers Turn The Sovereign Against Itself, Richard Painter

Articles

Lawyers sometimes use legally permissible but ethically dubious strategies to avoid the law and at other times they cross the line into illegal law evasion. Between the two is a gray area of conduct highly likely, but not certain, to be illegal known as law “avoision.” Lawyering at the outer limits of the law is controversial in the private sector when lawyers represent clients against the government or against other private parties. The better interpretation of the law may stand on the other side, and the lawyer must decide how far to go in an arguably illegal direction on behalf …

Obamacare For Homeowners Insurance: Fixing America's Broken Insurance Markets In A Time Of Climate Change, Daniel Benjamin Schwarcz

Articles

Over the last decade, homeowners insurance markets nationwide have experienced unprecedented instability due to climate change. These disruptions, which are likely to accelerate in the coming years, risk destabilizing real estate markets, triggering financial instability, and undermining the nation’s resilience to climate change. Despite these massive stakes, federal and state reforms to date have largely failed to result in more accessible and affordable homeowners insurance coverage that promotes climate change resilience. This Article offers a new way forward, arguing that today’s troubled homeowners insurance markets resemble the broken, state health insurance markets that pre-dated the 2010 passage of the Affordable …

Applying The Regulatory Report Card To Tax Regulations, Kristin E. Hickman, Bridget C.E. Dooling

Articles

An invited contribution to an issue of the Journal of Benefit–Cost Analysis honoring the work of the late Dr. Jerry Ellig, this essay recognizes and draws upon the Regulatory Report Card methodology developed by Ellig and Dr. Patrick McLaughlin to evaluate the quality of regulatory impact analysis published by federal government agencies in conjunction with notice-and-comment rulemaking. The essay anticipates a forthcoming study of changes to tax regulatory practices as a result of a 2018 Memorandum of Agreement between the Treasury Department and the Office of Information and Regulatory Affairs – a study the authors discussed and hoped to conduct …

Ai Assistance In Legal Analysis: An Empirical Study, Jonathan H. Choi, Daniel Benjamin Schwarcz

Articles

No abstract provided.

Liability, Property, And Inalienability Rules In Employee Data Regulation, Matthew T. Bodie

Articles

Legal protections for workers’ data have usually taken the form of privacy protections designed to deter data processing that is excessive or invasive. Such protections generally fall into the category of liability rules, under which rights can be infringed as long as compensation is provided for the violation. As Guido Calabresi and A. Douglas Melamed have described in “Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,” liability rules are contrasted with either property rules that prevent the involuntary transfer of rights or inalienability rules that prohibit rights transfers altogether. This article explores how property rules and inalienability …

Free Speech And Incorporation: A Reassessment, Ilan Wurman

Articles

Many of the Supreme Court’s most controversial free speech decisions involve state laws. In Gitlow v. New York, the Court assumed that the First Amendment’s guarantee of freedom of speech applied directly against the states via the Fourteenth Amendment, a doctrine today referred to as incorporation. Yet there is reason to doubt incorporation is correct as a matter of the original meaning of the Fourteenth Amendment. Indeed, much of the historical evidence involves debates over the freedom of speech, but none of the historical actors seemed to think the First Amendment applied against the states. This short essay evaluates the …

Annual Survey Of Georgia Law: Legal Ethics, Patrick Longan

Articles

This Survey covers the period from June 1, 2024–May 31, 2025.1 The Article discusses developments with respect to lawyer discipline, bar admission and reinstatement, malpractice, ineffective assistance of counsel, disqualification of counsel, judicial misconduct and recusal, attorney’s fees and liens, contempt and other sanctions, unauthorized practice of law, attorney-client privilege, prosecutorial misconduct, amendments to the Georgia Rules of Professional Conduct, advisory opinions, one miscellaneous matter, and potential reforms to the delivery of legal services.