Digital Commons Network^™

Native Nation Resistance To The Machinations Of Settler Colonial Democracy, Nazune Menka

Faculty Articles

This Essay’s publication coincides with the centennial commemoration of the Indian Citizenship Act of 1924, which offers an opportunity to revisit the historical and contemporary ways the concept of citizenship has been used to both increase Indigenous legibility and refute the project of empire. Through a review of the history of territorial incorporation, statehood, federal recognition, and citizenship, I examine the machinations of settler colonialism that seek to eliminate, contain, and assimilate Native Nations and Indigenous Peoples into the federal polity. Seeking to concretize this examination—and to respond to calls to broaden the scope of Indigeneity and the field of …

Contingent Fee Conflicts: Attorneys Opt For Quick-Kill Settlements When Their Clients Would Be Better Off Going To Trial, Chryssa Deliganis, Steve Calandrillo, Neela Brocato

Faculty Articles

Despite the checkered history of contingency fees in the practice of law,

attorneys often claim that such fee arrangements perfectly align the interests of

lawyer and client. After all, contingency fee lawyers proclaim in TV ad after TV

ad, “we don’t get paid unless you win.” That superficial logic does not withstand

economic scrutiny. Utilizing a behavioral economics lens, this Article

demonstrates that contingency fee arrangements give attorneys excessive

incentives to settle cases that their clients would be better off taking all the way

through trial. In addition to highlighting this undertheorized problem in law, we

offer normative recommendations to …

Placebo Trials: A New Tool To Discourage Wrongful Convictions Caused By Jury Error, Hayley Stillwell

Faculty Articles

Despite the foundational principle in the American criminal justice system that it is better to acquit the guilty than to convict the innocent, wrongful convictions remain a persistent issue. Wrongful convictions are sometimes caused by flawed evidence, such as eyewitness misidentifications and unreliable forensic techniques. Researchers and scholars have studied this problem of flawed evidence extensively, leading to many successful reform efforts to address this portion of the wrongful conviction problem. But there is another portion of the wrongful conviction problem that has yet to be the target of reform efforts—wrongful convictions caused by juror error. Implicit biases, forbidden assumptions, …

Affirmative Action's Asian American Problem, Huyen Pham, Joseph Thai

Faculty Articles

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten history is …

A New Approach To Attorney Regulation, Jon J. Lee

Faculty Articles

For more than half a century, jurisdictions have relied on threats of disciplinary sanctions—sticks—to try to coerce attorneys to act in an ethical manner. In doing so, they have focused their efforts on establishing minimum standards of practice and sanctioning only those attorneys who fall well short of them. By crafting general rules that apply to all attorneys, however, jurisdictions have ignored the considerable differences that attorneys face as a result of their practice settings, years of experience, or individual identities. Furthermore, jurisdictions have struggled to establish clear standards to guide attorneys regarding their obligations—precisely because the settings in which …

Green Colonialism: Sidelined While On The Front Lines, M. Alexander Pearl

Faculty Articles

No abstract provided.

Painting A Clearer Picture: Introducing New Federal Rule Of Evidence 107 Regulating Illustrative Aids, Daniel J. Capra, Liesa L. Richter

Faculty Articles

They say a picture is worth a thousand words-and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform …

Long Live The Federal Rules Of Evidence!, Daniel J. Capra, Liesa L. Richter

Faculty Articles

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a …

Aborted Confidentiality, Stacey A. Tovino

Faculty Articles

As the number of abortion-restricting laws continues to grow in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, law enforcement officers are increasingly interested in obtaining and using reproductive health information for law enforcement purposes. Although physicians and other covered entities generally are required to keep protected health information (PHI) confidential under the Health Insurance Portability and Accountability Act Privacy Rule, a number of regulatory exceptions historically have permitted covered entities to disclose PHI for civil, criminal, and administrative investigations and proceedings. On April 26, 2024, the Department of Health and Human Services …

Tele-Induction Of Buprenorphine For The Treatment Of Opioid Use Disorder: Regulatory Flux And Public Confusion, Stacey A. Tovino

Faculty Articles

Consider an individual named Taylor who has opioid use disorder (OUD). Taylor would like to try buprenorphine, a medication approved by the Food and Drug Administration (FDA) for maintenance and withdrawal management treatment (hereinafter treatment) of OUD. Assume Taylor lives in a rural community located a considerable distance from the closest practitioner who provides in-person treatment to individuals with OUD. Further assume that Taylor does not own a car and that public transportation is nonexistent in their rural area. Taylor does have a smart phone with audio as well as video capabilities, however. This article examines current developments in federal …

More Than Friends: A New Theory For The Third-Party Doctrine, Eang Ngov

Faculty Articles

When a person gives information or something tangible to someone or a business, the Fourth Amendment’s third-party doctrine allows the government to obtain that evidence without a warrant or probable cause. The third-party doctrine is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others, that we assume the risk that the third party would share the information, and that we must deal with the consequences of that misplaced trust. The doctrine originated from a series of cases where law enforcement obtained information revealed by criminals through their mistaken trust of …

A Wolf In Sheep’S Attire: How Consent Enfeebles Our Fourth Amendment, Stephen E. Henderson, Guha Krishnamurthi

Faculty Articles

The Fourth Amendment is a mirage. On paper—in the rules studied by law students, analyzed by scholars, and proclaimed by jurists—its limitations are many and, oftentimes, significant. Yet the experience of large numbers of Americans is entirely to the contrary, thanks to the rights-annihilating, under-theorized exception of “consent.” Under its guise, law enforcement officers routinely conduct what would otherwise be constitutionally-restrained searches and seizures, and they do so without meaningful explanation or assent. Fortunately, change—whether legislative or (ideally) constitutional—could be straightforward. Thanks to other sufficient triggers, consent could be replaced by a narrow, rights-protective doctrine under which law enforcement could …

The Potential For Conflicts Between Ccs Projects And Mineral Extraction, Joseph Schremmer

Faculty Articles

This article classifies the types of conflicts likely to occur between carbon dioxide sequestration and mineral extraction operations occurring simultaneously on the same tract of land. It then sets up framework for thinking through the legal disputes that may result. These are modest goals, and the central problem—concurrent carbon dioxide sequestration and mineral development—is more complex than can be fully analyzed here. I expect that much more work will need to be done on other important questions, hopefully building on this framework. Three further questions worthy of attention are (i) how these principles guide resolutions of specific kinds of disputes, …

Public Accommodations Laws, Free Speech Challenges, And Limiting Principles In The Wake Of 303 Creative, Michael L. Smith

Faculty Articles

In 303 Creative LLC v. Elenis, the United States Supreme Court ruled that Colorado's Anti-Discrimination Act's prohibition of discrimination on the basis of sexual orientation violated the First Amendment rights of Lorie Smith, a website designer who refused to make wedding websites for same-sex couples. This Article argues that the Court's ruling rested on a vision of state control over speech that was divorced from the law before it. Using this framing of the law to conjure up inapplicable hypothetical scenarios of state-mandated expression, the Court found in Smith's favor. And yet, in responding to the dissent's concerns that the …

Breaking Bias: A Singular Chapter Solution For Racial Equity In Consumer Bankruptcy, Jerron R. Wheeler

Faculty Articles

This article explores the aftermath of the Covid-19 pandemic, revealing a looming medical debt crisis among Black families, while examining the intersection of racial bias, attorney practices, and the existing two-chapter consumer bankruptcy system. Proposing a solution, the article advocates for the consolidation of Chapters 7 and 13 into a single chapter, citing the Consumer Bankruptcy Reform Act of 2020 (CBRA) as a potential remedy. Further, this article argues that a single chapter would simplify the bankruptcy process, reducing the influence of attorney bias and promoting uniform eligibility criteria. This approach aims to make debt relief more accessible, especially for …

The Consequences Of Mythology: Supreme Court Decisionmaking In Indian Country, M. Alexander Pearl

Faculty Articles

Ilanoli isht unowa. We tell our own stories. A single historical event has many stories. Although this nation's official chronicle expected and even hoped for Indigenous peoples to fade away, we are still here. Our histories are marked by resistance, survival, sovereignty, and renaissance. Only now, in the later stages of the American experiment, do our histories have the chance to matter in new forms and spaces. How much these stories matter within contemporary contexts depends upon where they are spoken and more importantly, who is listening. On the pages of a U.S. Supreme Court opinion, what stories are told …

Altered Stakes: Reimagining The Amount-In-Controversy Requirement, Steven Gensler, Roger Michalski

Faculty Articles

Which state-law cases should Congress allow into federal court? Congress's answer has always been "only the big ones." This article revisits the choice to limit diversity jurisdiction to higher-value cases and critically examines how Congress has approached setting the amount threshold. It surveys alternate ways Congress could use case value to sort which cases make it into the diversity docket. We explore lotteries, auctioning access to the highest bidder, setting an amount in controversy maximum rather than the current minimum, pegging the jurisdictional amount to the minimum wage or the cost of a hamburger, employing relative measures that use multiples …

Lest We Be Lemmings, Claire Wright

Faculty Articles

Lest We Be Lemmings concerns global warming, which is the most grave threat facing humanity today. In this article, I first: (1) discuss how the U.S. Congress and the U.S. Executive Branch, for decades, have been aware of the existence of global warming and its main cause – the burning of fossil fuels and emission of CO₂ - but have consistently failed to regulate the fossil fuel industry, reduce the lucrative subsidies that they provide to the fossil fuel industry, and hold the fossil fuel industry responsible for global warming; (2) explain how the fossil fuel industry, for decades, …

Beyond Social Media Analogues, Gregory M. Dickinson

Faculty Articles

The steady flow of social-media cases toward the Supreme Court shows a nation reworking its fundamental relationship with technology. The cases raise a host of questions ranging from difficult to impossible: how to nurture a vibrant public square when a few tech giants dominate the flow of information, how social media can be at the same time free from conformist groupthink and also protected against harmful disinformation campaigns, and how government and industry can cooperate on such problems without devolving toward censorship.

To such profound questions, this Essay offers a comparatively modest contribution—what not to do. Always the lawyer’s instinct …

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Faculty Articles

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

Model For Understanding Cedaw's Impact On Implementing Gender Equality Reforms: Lessons From Canada And India, Amanda L. Stephens

Faculty Articles

This Article provides a model for examining the impact of the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW") on implementing gender equality reforms using Canada and India, two CEDAW State Parties, as case studies. It also explores the influence of heteropatriarchy, deeply rooted cultural norms perpetuating gender inequality, on hindering CEDAW's ratification in the United States, as well as CEDAW's effectiveness in implementing reforms in Canada and India. The analysis showcases how non-governmental organizations ("NGOs") in these countries have nevertheless achieved limited successes through their mobilization of CEDAW to address specific gender injustices, such as …

Consumer Privacy And The Dobbs Disruption, Mason R. Clark

Faculty Articles

The right to reproductive privacy is under attack in the United States, and it is losing ground. Dobbs v. Jackson Women's Health Organization, the Supreme Court's 2022 decision that overruled Roe v. Wade's constitutional protection of abortion and jeopardized privacy rights by proxy, reflects this losing posture. Scholarship in reproductive privacy varyingly critiques federal privacy initiatives, evaluates regulatory interventions, and proposes civil rights frameworks in response to Dobbs. This Article, however, pinpoints how Dobbs created a gaping hole in state consumer privacy laws even as they propagated across the United States. Currently, there are no state consumer privacy laws that …

Counting Is Hard! A Theory Of Doctrinal Expansion, Kip Hustace

Faculty Articles

We conventionally see pleading as liberalized, with leeway for inconsistent claims and expansive choice among theories of relief, or counts. Yet procedure scholars have shown how heightened pleading post-Twiqbal constricts liberality, turning us back toward 19th Century fact-intensive code pleading. This Article theorizes a further constriction: proliferating and ossifying counts. While affording pleading latitude, doctrinal expansion forces hard strategy decisions and represents an inversion of the maxim that procedure shapes substance. Expansion increases system complexity, making localized strategy and discretion more impactful and amplifying opportunities for juridical manipulation. The result: doctrines complexifying toward a tipping point, beyond which we make …

Effects Of Two Exercise Programs On Neck Proprioception In Patients With Chronic Neck Pain: A Preliminary Randomized Clinical Trial, Leila Rahnama, Mark Daniel Geil

Faculty Articles

Background: The purpose of this study was to compare the effects of specific neck muscle training and general neck-shoulder exercises on neck proprioception, pain, and disability in patients with chronic non-specific neck pain. Methods: Twenty-five patients with chronic non-specific neck pain were recruited into this preliminary single-blinded randomized clinical trial. They were randomly assigned to either a specific neck exercise (n = 13, mean aged 24 years) or a general neck exercise group (n = 12, mean aged 25 years). Specific neck exercises included eye-head coordination and isometric deep neck muscle exercises. General neck exercises included neck and shoulder free …

Use Of Immigration Status For Coercive Control In Domestic Violence Protection Orders, Deirdre M. Bowen

Faculty Articles

In the context of domestic violence (DV), immigration-related circumstances can be exploited by an abuser to coerce and manipulate their partner. Using an intersectional structural framework, we examine how social structures overlaid with immigration-specific experiences operate to further enhance opportunities for abuse against immigrant women. We conducted a textual analysis to identify how socially constructed systems interact with a victim-survivor’s immigration status to introduce more tools for abusers to engage in coercive control and/or acts of violence in a random sample of petitioners (i.e., victim-survivors) who were granted a Domestic Violence Protection Order (DVPO) in King County, WA (n = …

Racial Justice And Marijuana, Steven Bender

Faculty Articles

Current legalization approaches for recreational marijuana fall short of performing and delivering racial justice as measured by materiality and outcomes rather than promises of formal legal equality. As a small first step for unwinding the War on Drugs, this Article considers how legalizing recreational marijuana can help move law and society toward true racial justice, measured by material and actual outcomes for systemically subordinated groups. In the same way that criminalization of marijuana was one of the tools for racial control, legalization of marijuana can be a revenue-based tool toward an anti-subordination future of material equality. While recognizing the shortcomings …

Long Covid & Antidepressants, Rafael Rivas-Vázquez, Enrique J. Carrazana, Mark A. Blais, Gustavo J. Rey, Emma Rivas-Vázquez, Alan Quintana

Faculty Articles

Three years into this historic pandemic, the scientific and healthcare communities continue to learn a great deal regarding COVID-19, the disease that is produced by the severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2). The most urgent and immediate focus has been on vaccine development for disease prevention/mitigation and on identification of effective therapeutic interventions for acute phase of illness. However, attention is increasingly being placed on formulating treatment strategies for individuals who are post-COVID-19 and experiencing a syndrome of persistent cognitive, somatic and behavioral symptoms that is being referred to as long COVID. In addition to identifying novel compounds that …

What Drives Opposition To Suicide? Two Exploratory Studies Of Normative Judgments, Justin F. Landy, Pritika Shah

Faculty Articles

The act of suicide is commonly viewed as wrong in some sense, but it is not clear why this is. Based on past empirical research and philosophical theorizing, we test ten different explanations for why suicide is opposed on normative grounds. Using a within-subjects design, Study 1 showed that seven out of ten manipulations had significant effects on normative judgments of suicide: time left to live, lack of close social relationships, a history of prior immoral behavior, the manner in which the suicide is committed, painful, incurable medical issues, impulsive decision-making, and the actor’s own moral-religious background. However, in all …

Dynamic Tort Law: Review Of Kenneth S. Abraham & G. Edward White, Tort Law And The Construction Of Change: Studies In The Inevitability Of History, Catherine M. Sharkey

Faculty Articles

Rarely does a book — let alone one on torts — come along with true staying power. Tort Law and the Construction of Change is such a book. It stopped me in my tracks when I first read it, and it has been a book to which I have returned again and again while teaching torts and probing new research projects. With Tort Law and the Construction of Change, Professors Kenneth Abraham and G. Edward White, who have inspired generations of torts students and scholars, have truly energized and inspired this nearly twenty-year veteran in the field. Abraham and White …

Losing Levarage: Employee Replaceability And Labor Market Power, Cynthia Estlund

Faculty Articles

Workers’ labor market power matters enormously to their lives at work and beyond. And most workers have too little of it. This Essay highlights one underappreciated set of factors in the decline of workers’ labor market power and explores policy levers that might help to rebalance the bargaining field. This Essay begins with the fairly self-evident observation that workers’ labor market power is a product in part of the ease with which employers can replace employees. That points to the importance of several trends in the organization and technology of work—including both fissuring and automation—that make it easier for private …