Digital Commons Network^™

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn't Such An Outlier On Free Speech, Evelyn Aswad

Faculty Articles

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Democracy On A Shoestring, Joshua Sellers, Roger Michalski

Faculty Articles

Democracy requires money. Voters must be registered, voting rolls updated, election dates advertised, voting technology purchased and tested, poll workers trained, ballots designed, votes counted and verified, and on and on. Despite the importance of election expenditures, we have a shamefully inadequate amount of information about how much our elections cost. This Article, based on a novel and painstakingly hand-coded dataset, provides much needed information on election expenditures across multiple years from four states: California, Arizona, Texas, and Florida. These states, given their unique characteristics, provide a compelling sample set. In what we believe to be a completely novel approach …

Women Of Color In Immigration Enforcement, Kit Johnson

Faculty Articles

Immigration enforcement agencies are among the most racially diverse in federal law enforcement. More than half of all women holding law enforcement positions within immigration agencies are minorities, though the overall number of female agents is relatively small. This Essay focuses on women of color in immigration enforcement. It begins with a necessary primer on immigration enforcement. Next, it traces key developments that led to the diversification of immigration enforcement, including analysis of never before published data about the racial and gender diversity of immigration agents. Then, it considers the unique benefits of hiring women of color as enforcement agents …

Catching Unfitness, Jon J. Lee

Faculty Articles

Bias and prejudice are pervasive in the legal profession. Yet only relatively recently has there been a recognition among those in the profession that it is imperative to sanction attorneys who manifest bias and prejudice through harassment and discriminatory acts. Even then, it took decades for the ABA to adopt Model Rule 8.4(g) to proscribe such misconduct, and its reception by states has been lukewarm at best to antagonistic at worst. This recent controversy leads to an even more fundamental question: How can the legal profession effectively regulate the multitude of ways in which an attorney may commit misconduct, given …

"The" Rule: Modernizing The Potent, But Overlooked, Rule Of Witness Sequestration, Daniel J. Capra, Liesa L. Richter

Faculty Articles

Starting with its illustration in the Apocrypha and continuing into the modern day both in courtrooms and in ubiquitous criminal procedurals, one evidence rule has proven so powerful that it has become known as "THE" Rule of Evidence. The rule of witness sequestrationdemands that multiple witnesses to the same events be examined separately from one another to prevent them from, consciously or subconsciously, tailoring their testimony to ensure that it remains consistent. Witness sequestration is conceptually simplistic and famously mighty. Yet, this bedrock protection against inaccurate trial testimony is imperiled by conflicting interpretations of Federal Rule of Evidence 615, the …

May The Odds Be Ever In Your Favor: How The Tax Cuts And Jobs Act Fortified The Great Wealth Divide, Phyllis C. Taite

Faculty Articles

No abstract provided.

Reckoning: Dialogue About Racism, Antiracists, And Business & Human Rights, Erika George, Jena Martin, Tara Van Ho

Faculty Articles

Video of George Floyd's death sparked global demonstrations and prompted individuals, communities and institutions to grapple with their own roles in embedding and perpetuating racist structures. The raison d'tre of Business and Human Rights (BHR) is to tackle structural corporate impediments to the universal realization of human rights. Yet, racism, one of the most obvious of such barriers, has been a blind spot for BHR. While the field has contended with gender inequality, there have only been tokenistic nods to intersectional harms caused by business activities. The failure to address racism seriously undermines both the promise of BHR generally and …

Taking Charge Of Court-Martial Charges: The Important Role Of The Commander In The American Military Justice System, David A. Schlueter, Lisa M. Schenck

Faculty Articles

No abstract provided.

Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria

Faculty Articles

On June 29, 2020, the Supreme Court denied certiorari in Lech v. Jackson, a Tenth Circuit inverse condemnation case, which held that governmental entities are categorically exempt from paying just compensation when they destroy private property pursuant to their police powers. This denial of certiorari cements a highly controversial circuit court holding into our takings jurisprudence the effects of which will be serious and far reaching. This article dissects the Tenth Circuit's opinion in Lech and explains how and why this holding should be revisited. If it is not, we risk losing the protection that the Fifth Amendment's Just Compensation …

The World Health Organization: A Weak Defender Against Pandemics, Chenglin Liu

Faculty Articles

Why did the World Health Organization (WHO) not act in a timely fashion to declare the coronavirus outbreak a Public Health Emergency of International Concern (PHEIC)? If it had done so, could the United States have heeded the warning and controlled the spread of the virus? Is the WHO's delay a factual cause of the calamities that the United States has suffered? This article addresses these questions. Part I examines the development of the WHO and its governance mechanism, major powers and limits, and past achievements and failures. It also explores how the WHO responded to the COVID-19 pandemic and …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Police Use Of Force Laws In Texas, Gerald S. Reamey

Faculty Articles

At the heart of calls for police reform lie use of force laws. While policing agencies adopt and enforce their own policies regarding when and how force may be used by officers of those agencies, state laws rarely define the uniform limits under which officers operate. Policing in the United States is highly fractured; of the hundreds of law enforcement agencies operating, most are autonomous, and they determine the policies under which they operate, including those for use of force. They also decide whether and how to investigate violations of internal policies, as well as the punishment that will be …

“Rule Of Inclusion" Confusion, Dora Klein

Faculty Articles

Some rules of evidence are complex. The federal rules governing the admissibility of hearsay statements,' for example, include at least forty different provisions. Numerous judges and scholars have commented on the complexity of the hearsay rules. Not all rules of evidence are complex, however. For example, the federal rules governing the admissibility of character evidence are relatively straightforward: evidence that is offered for the purpose of proving character is inadmissible, subject to a few well-defined exceptions. Despite this relative straightforwardness, many of the federal circuit courts of appeals have overlaid the rules regarding character evidence particularly Rule 404(b)--with unnecessary interpretive …

The Proposed Rules On Advertising And Solicitation, Vincent R. Johnson

Faculty Articles

This article addresses the rule proposal appearing as ballot item E for the State Bar of Texas rules vote February 2 to March 4, 2021. The proposed rules dealing with lawyer advertising and solicitation seek to clarify, simplify, and modernize this area of the law, while nevertheless continuing to endorse principles and practices that have proved to be sound.

If You Don't Care, Who Will?, Chad J. Pomeroy

Faculty Articles

As a property law professor, I have lately found myself thinking a lot about privacy rights. Initially, the two topics (property and privacy) perhaps do not seem closely related, but I think they are—or, at least, I think the tie between the two is becoming much more pronounced and important, as modern life becomes ever more techno-centric. specifically, I think that privacy rights are, at this point, essentially an outgrowth of property rights. That is, one's right to privacy is dependent on what we traditionally view as one's property rights. At least, I think this is the current state of …

Professor, Please Help Me Pass The Bar Exam: #Nextgenbar2026, Melissa Bezanson Shultz

Faculty Articles

Beginning in 2026, law school graduates will be sitting for a bar exam-the so-called NexGen bar exam-that is both substantively and structurally different from the one administered across the country since most attorneys can remember-the so-called "existing bar exam" – and since the founding of the National Conference of Bar Examiner (NCBE), in 1931.

Unfortunately, the legal academy is not known as agile; to the contrary, it is often viewed as an institution steeped in tradition, rites of passage, and deliberation. While its reliability and measured approach have certainly contributed to its success and stability since the founding of the …

Defining The Relationships: "Cause, Contribute, And Directly Linked To" In The Un Guiding Principles On Business And Human Rights, Tara Van Ho

Faculty Articles

According to the United Nations Guiding Principles on Business and Human Rights, businesses owe remediation when they "cause" or "contribute to" a human rights impact, but not when they are only "directly linked to" it. These terms determine when a victim is entitled to seek remediation from a business, but they have largely been ignored in existing scholarship. This article investigates the meaning of "cause, contribute, and directly linked to", revealing confusion and uncertainty before proposing a new system, built on existing authoritative guidance, for interpreting the terms and determining when businesses owe remediation for their human rights impacts.

Afterword: Collective Knowledge Production Toward Transformative Social Change: A Community-Grounded Model, Steven Bender

Faculty Articles

No abstract provided.

The 14th Amendment And Me: How I Learned Not To Give Up On The 14th Amendment, Robert Chang

Faculty Articles

No abstract provided.

Opposition From Within – Israeli Soldiers Resist The Occupation, Maia Hallward, Lina Tuschling

Faculty Articles

Protests in response to Israeli military action in the Occupied Territories have a long history in Israel. While such opposition movements in many countries are comprised of civil society activists, the dynamics of protest differ in Israel because of the country’s mandatory military service. From the 1980s to present day, former and current Israeli soldiers have used a wide range of methods, tactics, and strategies to challenge Israeli military actions. Using insights from nonviolent resistance theories, we examine how the approaches and goals of military opposition groups in Israel have changed over the past decades. Specifically, we develop a typology …

Understanding Type 2 Diabetes Mellitus Among Haitian American Women: A Cultural Perspective, Balkys L. Bivins, Indra R Hershorin, Lonar M. Umadhay

Faculty Articles

The prevalence of type 2 diabetes mellitus (T2DM) is 19.7% in Haiti (DeGennaro et al., 2018). Haitian American women (HAW) experience difficulties with adherence to T2DM treatment and management (Bivins, 2016; Magny-Normilus et al., 2019; Vimalananda et al., 2011; Huffman et al., 2013); however, no previous study was found that focused exclusively on Haitian American women with T2DM. Van Manen's six research activities guided this phenomenological qualitative inquiry. Recruitment included 25 Haitian American women (N = 25) with T2DM from three South Florida counties. Data were collected using a vignette and audio-recorded semi-structured interviews with open-ended questions. Recordings were then …

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

Thirdspace Investigations: Geography, Dehumanization And Seeking Spatial Justice In Kinesiology, Brian Culp

Faculty Articles

The 39th Annual Dudley A. Sargent Lecturer challenges the kinesiology professions to be intentional in addressing issues related to spatiality. Beginning with an outline of how such a focus has viability for the profession, the author overviews: (a) spatial justice and mobility through the lens of Gordon Parks; (b) surfing, localism and cityhood efforts; (c) notions of space and dehumanization as defined by Herbert Kelman; and (d) the need for a renewal of kinesthetic consciousness in the face of unrestricted technocracy in physical education. The second part of the lecture presents an interpretation of Edward Soja’s theory of Thirdspace in …

Contract Lore As Heuristic Starting Points, Colin P. Marks

Faculty Articles

What Professor Hillman labels as lore are better thought of as a series of heuristic starting points. I do not label them heuristics in and of themselves as they do not represent shortcuts to the ultimate answer. But, as I explain, all of the areas that Professor Hillman identifies as lore are actually quite nuanced, sometimes filled with exceptions; other times, they simply represent the first step in a long inquiry. Heuristics as a teaching device has been recognized in law and other disciplines as an effective tool in not only conveying information, but also prodding the student to conduct …

A Comparative Study Of Trademarks: Usmca (U.S.-Mexico-Canada Agreement) And Nafta (North American Free Trade Agreement), Roberto Rosas

Faculty Articles

The definition of a trademark has expanded under the U.S. -Mexico-Canada Agreement ("USMCA "'), which provides more protection for rights holders. Currently, these three countries are bound by the North American Free Trade Agreement ("NAFTA"'), which has a narrow definition for trademarks. The North American Free Trade Agreement ("NAFTA"'), which came into effect on January 1, 1994, was a significant agreement between some of the largest, strongest, and well-developed economies in the world: United States and Canada. It also helped to invigorate Mexico's future economic development. NAFTA's broad purpose was to regulate the exchange of capital, goods, and services across …

Pirates On The High Seas: An Institutional Response To Expanding U.S. Jurisdiction In Troubled Waters, Marshall B. Lloyd, Robert Summers

Faculty Articles

Collective efforts among governments and regional organizations is a vital part of the fight against piracy that represents a security threat to all nation states with respect to freedom to navigate the high seas. This paper provides a concise overview of piracy, contemporary maritime drug laws, and cases among the circuit courts to illustrate the procedural concerns that affect fundamental constitutional principles of jurisdiction. A possible solution to existing substantive and procedural due process issues is establishment of a regional judicial institution with broad powers to preside over criminal prosecutions that include maritime crimes. The suggestion may be a viable …

Thinking In Circles: Using Ooda To Sharpen Legal Analysis, Kenneth D. Chestek

Faculty Articles

One thing many law students ' and practicing lawyers ' often struggle with is critically thinking about the entirety of the case they are working on Shallow analysis of the full range of possible legal issues presented by a situation can lead an advocate to be unprepared when new issues arise unexpectedly in a case My article proposes OODA ' Observe Orient Decide Act ' as a useful way to approach litigation planning and strategy formationbrbrOODA was conceived by military strategist Col John Boyd as a way to outthink and outmaneuver an enemy But it turns out that OODA is …

Self-Talk: Mentoring And Empowering Faculty To Contribute To Organizational Change, Brian Culp

Faculty Articles

We can effectively mentor if in possession of qualities to empower mentees, which include: effective communication skills, knowledge of the professional realm, enthusiasm, passion and the ability to create an equitable and supportive organizational environment with the mentee. The authors of this article propose that self-talk (ST) or inner speech is a helpful means of inspiring mentors, colleagues, teachers, and friends in navigating communication challenges with themselves and others. A three-step approach to implementing ST for the purpose of mentoring involves: (1) awareness of the ST they are currently using; (2) follow-up with the mentee’s active reflection of and recording …

Covid-19 Pandemic: Policy And Legal Issues, Jeffrey F. Addicott

Faculty Articles

Most Americans are unfamiliar with governmental powers during a pandemic, which makes it useful to examine applicable legalities, powers and authorities. Importantly, that power can mandate quarantine, isolation, vaccination, decontamination, destruction of infected property, eviction, closing businesses, social distancing, sheltering in place, specimen testing, and mandating health information disclosure and health care responses.