Digital Commons Network^™

The Unconstitutional Attempt To Criminalize Naming Ice Agents, Noah C. Chauvin

Faculty Articles

Some members of Congress propose to make it a crime to publish the name of a federal official with the intent of obstructing that official’s law or immigration enforcement duties. This Essay considers whether the lawmakers’ bill, the Protecting Law Enforcement from Doxxing Act, is consistent with the First Amendment. It is not.

Sanctioning Lawyer-Criminals, John J. Lee

Faculty Articles

Until now there has been relatively little consideration given to disciplinary agencies’ sanctioning of lawyers who commit or are convicted of crimes, so called “lawyer-criminals.” This is likely because most assume that these offenders make up a tiny percentage of disciplinary cases. It also may explain why jurisdictions continue to employ disparate approaches regarding what types of criminal conduct warrant professional intervention, the appropriate sanctions to impose on lawyer-criminals, and whether lawyers convicted of certain offenses should be automatically excluded from practice.

This Article makes three primary contributions to the discourse on reforming professional lawyer regulation to protect the public …

Marital Status And Human Rights, Jessica Tueller

Faculty Articles

Although human rights law has established a clear prohibition on discrimination based on marital status, this prohibition is vastly underutilized. This Article argues that increased attention to human rights law's prohibition on marital status discrimination, accompanied by clearer, more consistent, and more robust analysis of this phenomenon, is needed to ensure that everyone whether they choose to remain unmarried or to marry, whether they file for divorce or are widowed-continues to have and enjoy the same human rights and fundamental freedoms as any other person throughout their lifetime. This Article specifically recommends a focus on harmful marital status stereotypes that …

Generative Ai And The Purpose Of Legal Scholarship, Michael L. Smith

Faculty Articles

What does generative artificial intelligence mean for the future of legal scholarship? The topic has been the talk of the town around academic watercoolers. Some legal scholars have tried their hand at producing legal scholarship using generative Al. The accompanying commentary is varied, but advocates for the technology suggest that generative Al may become a common tool for legal scholars, leaving those who refuse to adapt at a severe disadvantage.

In this article, I contemplate a world in which legal scholars routinely use generative Al to produce academic writing. I argue that an instrumental view of legal scholarship's value-a view …

Species Of State Constitutional Lockstepping, Michael L. Smith

Faculty Articles

When interpreting state constitutional provisions, state courts frequently take a "lockstep" approach by adopting the United States Supreme Court's interpretation of analogous federal constitutional provisions. Critics often portray lockstep interpretation as misguided and have identified varieties of lockstepping, including unreflective, reflective, prospective, and methodological lockstep interpretation. This Article contributes to these discussions by identifying several additional forms of lockstep interpretation that have thus far gone undiscussed: lazy, mandatory, atextual, and sticky lockstepping.

Several of these variations highlight distinct failures of state courts to independently interpret state constitutions. This includes lazy lockstepping, where state courts tend to engage in repeated, thoughtless …

Buddy, Can You Spare A Claim?" Sparing Debtors' Claims From Dismissal Under The Doctrine Of Judicial Estoppel, Post-Keathley V. Buddy Ayers Construction, Inc., Abigail B. Willie

Faculty Articles

In Keathley v. Buddy Ayers Construction, Inc., the Supreme Court considered the (decidedly) unglamorous issue of the proper standard for determining when judicial estoppel may be applied. The case (perhaps unsurprisingly) did not attract protestors on the courthouse steps (there were no hand-painted signs demanding “END ESTOPPEL NOW!”—go figure), nor did it pique the interest of talking-head cable news pundits (apparently, a semi-obscure equitable doctrine isn’t a ratings-grabbing red v. blue state issue—again, go figure). However, those of us in the bankruptcy law world knew the stakes, as evidenced by the amicus briefs filed by retired bankruptcy judges, bankruptcy scholars, …

Energy Management Of Battery Supercapacitor Hybrid Storage In Electric Vehicles With Solar Integration: Review, Islam Sayed, Yousef Mahmoud

Faculty Articles

Hybrid energy storage systems (HESS) integrating batteries and supercapacitors offer a promising solution to overcome the limitations of battery-only architectures in electric vehicles (EVs). By leveraging the high energy density of batteries and the high power density of supercapacitors, HESS can enhance power delivery, improve energy efficiency, and extend battery lifespan. The effectiveness of HESS, however, is largely determined by the energy management system (EMS) that coordinates power flow under dynamic driving conditions. Unlike existing reviews, this work addresses common gaps in the literature, including the lack of industrial energy storage component examples, limited coverage of recently developed EMS strategies, …

In-Silico Assessment Of Aortic Valve Function And Mechanics Under Hypertension, Jason A. Shar, Philippe Sucosky

Faculty Articles

Introduction: Calcific aortic valve disease (CAVD) is the most common heart valve disorder. While hypertension is a major risk factor, the mechanisms by which elevated blood pressure contributes to calcification are largely unknown. Given the established sensitivity of aortic valve (AV) tissue to mechanical cues, hypertension may subject AV leaflets to a stress state conducive to CAVD. To address this hypothesis, the objective of this study was to compare AV function and mechanics under normotensive (NTN, 120/ 80 mmHg), pre-hypertensive (preHTN, 125/80 mmHg) and hypertensive (HTN, 130/90 mmHg) conditions using fluid-structure interaction modeling.

Methods: AV flow and leaflet dynamics were …

Studying The Difference Between Mapping Accuracy Of Non-Rtk Ultra-Lightweight And Rtk-Enabled Survey-Grade Drones, Mostafa Arastounia

Faculty Articles

This study compares the mapping accuracy of a non-RTK ultra-lightweight drone (DJI Mini2) with two survey-grade RTK-enabled drones (DJI Mavic3E and Phantom4) in three different sites. Flight parameters and weather conditions were the same on each site. The outputs were orthomosaics and digital surface models, whose accuracies were inspected by descriptive statistics and variance analysis tools. The data of the ultralight drone on the first site could not be processed due to strong wind, but its results for the second site (11 hectares) were comparable to those of survey-grade drones, i.e., the range and average of checkpoint errors for Mini2 …

Law Enforcement, Reproductive Health Information, And The Hipaa Privacy Rule, Stacey A. Tovino

Faculty Articles

On April 26, 2024, the federal Department of Health and Human Services (HHS) promulgated a final rule (Final Rule) amending the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. The Final Rule prohibits HIPAA covered entities and business associates from using and disclosing protected health information (PHI) to conduct criminal, civil, or administrative investigations into an individual for the mere act of seeking, obtaining, providing, or facilitating lawful reproductive health care. The Final Rule also prohibits HIPAA covered entities and business associates from using and disclosing PHI to impose criminal, civil, and administrative liability on any individual, or to …

Restorationland: The Lost And Found Objects Of Atlanta's Doll's Head Trail, Thomas Fish

Faculty Articles

The Doll’s Head Trail is a grassroots, low-art installation nestled within a Southeast Atlanta wildlife preserve. Constructed by volunteers and visitors from decades of environmental debris, the trail converts waste into folk art-inspired “junk” displays. The creative upcycling ranges from a miniscule shrine to “Toxic Masculinity” to a stark shoe pile commemorating child gun violence. This article details how queer theory’s “temporal turn” provides insights into material performance as collaborative regeneration. The curious vignettes playfully invert hierarchies, revealing the merits of small-time memorialization. Through these defiantly unofficial grassroot performances, the Doll’s Head Trail both remembers and restores community ruins, demonstrating …

Agricultural Biotechnology In The Courts: Judicial Opinions And Commentary, Drew L. Kershen

Faculty Articles

Seven jurisdictions from around the world have issued judicial opinions that address fundamental issues about the governance and regulatory systems of agricultural biotechnology. This article summarizes these legal proceedings and describes their impact upon agricultural biotechnology. The article then provides a commentary and critique of the legal proceedings and resulting judicial opinions.

Unpacking Digital Transformation – Constructing A Framework Based On Industry Use Cases, Khawaja Asjad Saeed, Andrew William Green, Alison Brooke Hedrick

Faculty Articles

Based on industry use cases, we identify six distinct types of digital transformation (DT), each grounded in a specific concept or enabling technology. These DT types can be implemented individually or combined to drive transformation initiatives. While deploying a single DT type often focuses on improving operational efficiency or streamlining existing workflows, initiatives that combine multiple DT types tend to pursue more ambitious goals, such as the creation of new products, services, or business models. However, the complexity increases significantly with the integration of multiple DT types, as organizations must not only address behavioral changes but also overcome technical challenges …

Do People Judge Sexual Harassment Differently Based On The Type Of Job A Victim Has?, Carolyne Georgiana Halfon, Destiny Mccray, Danica Kulibert

Faculty Articles

Victims of sexual harassment report facing barriers and retaliation for reporting their sexual harassment. The current study assessed one potential reason for these issues: perceptions of sexual harassment events. Participants (N = 427) read about different sexual harassment events and were told that the woman in the event worked with a masculine (e.g., EMT, school police officer, plumber) or feminine job (e.g., nurse, teacher, cleaning staff). Across three different sexual harassment claims (e.g., unwanted romantic attention, physical groping, being shown sexually explicit images), participants reported that women in masculine jobs were less prototypical women than women in feminine jobs. Furthermore, …

Within-Day Diversity Change, Neighborhood Social Cohesion And Fear Of Crime, Chris Hess, Youngmin Yi, Gregory Sharp, Matt Hall

Faculty Articles

Research on neighborhood social organization and crime typically conceptualizes neighborhood change on the order of decades, even though the local social contexts that individuals experience change daily through mobility for work, errands and recreation. In this study, the authors analyze data from the Seattle Neighborhoods and Crime Survey linked to the Census Transportation Planning Products to investigate whether within-day changes in neighborhood diversity are associated with an individual’s social cohesion and fear of crime. The authors find that individuals living in neighborhoods where diversity increases during the daytime tend to report more social cohesion and relatively less fear of crime. …

Workarounds In American Public Law, Daniel A. Farber, Jonathan S. Gould, Matthew C. Stephenson

Faculty Articles

A workaround is a maneuver that seems, on its face, consistent with the formal rules, but that employs those rules in an unanticipated way to circumvent a legal obstacle. Though some workarounds are tolerated or even celebrated, workarounds (and proposed workarounds) often provoke instinctive skepticism or hostility. When, if ever, is such skepticism justified? Do workarounds raise distinctive legal or public policy concerns? This Article seeks to provide a systematic normative assessment of workarounds in American public law. We argue, first, that from a general public interest perspective, the desirability of a workaround depends primarily on the desirability of the …

The Small Business Dilemma, Rachel G. Ngo Ntomp

Faculty Articles

Small businesses face a unique and challenging dilemma in today’s business landscape. On the one hand, they are typically and rightfully considered the more powerful party in their contractual relations with consumers, thus prompting a need to protect consumers against unfair contractual terms. On the other hand, when engaging with larger businesses, small businesses typically find themselves in the position of the weaker, more vulnerable party, possibly in need of greater protection themselves from unfair terms. This Article addresses the inherent dilemma faced by small businesses and argues that the prevailing perception of businesses as sophisticated and experienced, based exclusively …

Understanding Free Speech Values At The Supreme Court, Noah C. Chauvin

Faculty Articles

This essay is a book review of The Supreme Court and the Philosopher: How John Stuart Mill Shaped US Free Speech Protections, by Professors Eric Kasper and Troy Kozma. The book argues that John Stuart Mill had an indelible impact on the Supreme Court's free speech jurisprudence, and that through the power of precedent, we have come to have a "Millian "First Amendment. As I explain in the review, Kasper and Kozma have made a compelling case. However, because Mill offered an expansive defense of freedom of expression, it is not enough to say that the Court's free speech jurisprudence …

Do Bankruptcy Judges Belong In Chambers? Rethinking Inherent Civil Contempt Power In Bankruptcy, Abigail B. Willie

Faculty Articles

The bankruptcy court is the face of the federal judiciary to much of the American public. Almost as many cases are filed in bankruptcy courts every year as are filed in the federal district courts and circuit courts combined. And in each bankruptcy case, there are often dozens or more affected parties. As such, it is critical that the public has confidence in the role of the bankruptcy court and its judges. Yet, since the creation of the Bankruptcy Code in 1978, the non-Article III bankruptcy system has faced seemingly never-ending challenges to subject matter jurisdiction in the bankruptcy context …

A Workable Common Law Baseline For Regulatory Takings, Adam J. Macleod

Faculty Articles

Rights to use property are property rights. The Takings Clause of the Fifth Amendment requires governments to provide just compensation when they take property. In our constitutional republic, legislatures are competent to change the law, and legal changes sometimes alter private rights, including use rights. The Takings Clause does not forbid such legal changes. It only requires compensation for property rights taken as a result.

To give use rights the constitutional protection that the Takings Clause requires, courts need a baseline of rightful property use to show when a change in the law that adversely affects use rights amounts to …

The Uniform Code Of Military Justice At 75: Reflections On The Transformation Of The American Military Justice System, David A. Schlueter

Faculty Articles

The Eighteenth George S. Prugh Lecture in Military Legal History by Professor David A. Schlueter: The Uniform Code of Military Justice at 75: Reflections on the Transformation of the American Military Justice System

The Warrant Exception That Isn't: Fisa Section 702, "Defensive" Searches, And The Fourth Amendment, Noah C. Chauvin

Faculty Articles

Section 702 of the Foreign Intelligence Surveillance Act allows the government to conduct warrantless electronic surveillance of non-Americans who are located overseas. Although the surveillance targets foreigners, Americans' communications are "incidentally" collected, too. Once the government has acquired Americans' communications, court-approved rules allow it to conduct warrantless searches for and through them in its Section 702 databases. Intelligence agencies have used these rules to turn this foreign intelligence program into a domestic spying tool, conducting tens of thousands of warrantless "backdoor" searches for Americans' private communications obtained under Section 702 every year.

Section 702 periodically sunsets; Congress most recently reauthorized …

Profiteers Of Death, Match Dawson

Faculty Articles

Brazenly operating within the illicit world of stranger-owned life insurance (“STOLI”), unscrupulous investors and colluding life insurance agents unapologetically engage in a calculated dance of fraud and deceit. With the skill of seasoned con artists, these “Profiteers of Death” prey upon the unsuspecting elderly community, strategically targeting senior assisted living facilities by dangling the golden carrot of easy money in exchange for unwittingly selling away their insurability for little more than copper pennies. Standing idle like salivating vultures, the Profiteers of Death make a mockery of legislative attempts to curb the illegitimate secondary market, perfectly exploiting regulatory deficiencies as they …

Everything New Is Old Again: The Coming Metaverse, Platforms As Premises, And Addressing Harms That Occur Behind The Veil Of Scale, Lara Putnam, Jena Martin

Faculty Articles

Increasingly, social media companies have engaged in the creation, development, and deployment of "worlds" within a virtual reality setting, leading to significant interactions among users within these engineered spaces. However, this expansion has also been accompanied by harms. While some harms are unique to immersive reality technology, many mirror harms that occur in the analog environment, including fraud, theft, verbal abuse, and child sexual exploitation. Others replicate harms that have already exploded in non-immersive online spaces, including image-based sexual exploitation, cyberstalking, and invasion of privacy. Unfortunately, the architecture and infrastructure of these spaces has created what we coin here to …

How To Let A Democracy Die: “First,…Let’S Kill All The Lawyers” And Other Lessons From The Bard, Jena Martin

Faculty Articles

This article serves to provide a much-needed perspective on how international legal mechanisms (or the lack thereof) impact democratic in institutions.

Fiscal Citizenship And Taxpayer Privacy, Alex Zhang

Faculty Articles

Should individual tax data be public or confidential? Within the United States, secrecy has been the rule since the Tax Reform Act of 1976. But at three critical junctures—the Civil War, the 1920s, and the 1930s—Congress made individual tax records open for public inspection, and newspapers published the incomes of the billionaires of the time. Today, Finland, Norway, and Sweden all mandate significant transparency for individual tax information.

This Essay intervenes in the tax-confidentiality debate by building a new analytical framework of fiscal citizenship. Until now, scholars have focused on compliance—whether disclosure incentivizes honest reporting of income, and if it …

Recusal Reform: Treating A Justice's Disqualification As A Legal Issue, Michael J. Broyde, Hayden H. Hall

Faculty Articles

This article addresses the pressing issue of recusal in the U.S. Supreme Court. It critiques the current practice of Supreme Court Justices deciding individually whether to recuse themselves from cases, highlighting the flaws and potential biases inherent in this practice. The authors advocate for a reform where initial recusal decisions are made by individual Justices but then are subject to review by the Supreme Court as a whole.

The article offers several arguments to support this proposal. First, the authors explore the evolution of recusal laws, focusing on the significant amendments to 28 U.S.C. § 455 in 1948 and 1974. …

Genetic Property Rhetoric And The Public Domain, David Fagundes

Faculty Articles

Among the many themes that illuminate Jorge Contreras’s The Genome Defense, this Essay focuses on property. It considers the rhetorical role played by property in convincing both courts and the public that patenting genetic data was legally and ethically objectionable. This Essay begins by locating property—and public property—as a major theme in the dialogue surrounding the Myriad litigation. It then situates this rhetorical move in the context of property-talk generally, highlighting the distinctiveness of leveraging public rather than private ownership as a means of accessing moral intuitions. Finally, this Essay reflects on what the use of public property rhetoric …

Legislatures And Localized Resentencing, Ronald F. Wright, Kay L. Levine

Faculty Articles

Recent legislation, exemplified in statutes from California and Washington, creates new methods for resentencing defendants in old cases. These laws place controlling authority for resentencing in the hands of local officials, especially local prosecutors, and invite variation at the county level.

While some new procedural channels for reducing the sentences of people convicted of past crimes are mandatory, in that they entitle certain defendants to resentencing if they were convicted of certain crimes or were subject to certain penalty enhancements that are no longer valid, other statutes create discretionary resentencing channels. In the discretionary channels, the chief local prosecutor has …

Federalism, State Action, And Workers’ Medical Privacy, Ani B. Satz

Faculty Articles

Injured workers entering state workers’ compensation systems effectively forego their medical privacy. This is due to widespread judicial misinterpretation of the HIPAA Privacy Rule (HPR) as excluding injured workers from federal medical privacy protections. As a result, medical privacy for workers’ compensation claims is effectively governed by state law. This Article argues that states have failed to protect the medical privacy of injured workers adequately and that there is a pressing need for legislative reform. The Article presents the first comprehensive survey in the legal literature of state action protecting the medical privacy of injured workers. Part I describes the …