Digital Commons Network^™

Covid-19, Telehealth, And Substance Use Disorders, Stacey A. Tovino

Faculty Articles

No abstract provided.

In A World Of "Fake News," What's A Social Media Platform To Do?, Evelyn Aswad

Faculty Articles

While the circulation of disinformation and misinformation online can pose a variety of risks to societies around the world, it should also be of concern that overreacting to such false information can undermine human rights, including freedom of expression. The business operations of global social media platforms frequently intersect with this latter concern because of a spike in the adoption of national laws that ban “fake news” as well as their own platform policies to tackle false information. This Essay assesses the corporate responsibility standards afforded by the United Nations’ Guiding Principles on Business & Human Rights as well as …

To Protect Freedom Of Expression, Why Not Steal Victory From The Jaws Of Defeat?, Evelyn Aswad

Faculty Articles

Global social media platforms are grappling with whether to align their corporate speech codes with international human rights law. Facebook’s June 2019 report that summarized worldwide feedback about its proposed independent oversight board for content moderation noted a split in stakeholder opinions on this topic. The UN’s top expert on freedom of expression as well as many civil society members recommended that Facebook anchor its content moderation in the international human rights law regime. Others expressed concern that this legal regime would not be sufficiently protective of speech and contained inconsistencies that create problems for content moderation. Those concerns were …

Getting Past Possession: Subsurface Property Disputes As Nuisances, Joseph Schremmer

Faculty Articles

Property rights in the subsurface of land are adapting to accommodate modern activities like massive hydraulic fracturing (fracing). Property rights will need to continue adapting if they are to accommodate other developing activities like large-scale carbon capture and storage (CCS). Courts and commentators rarely approach the nature of subsurface property directly. They tend instead to discuss appropriate standards for tort liability when disputes arise — for example when artificial fissures from a frac treatment extend into and drain oil or gas from a neighbor’s land. The case law and literature generally approach unauthorized subterranean invasions as trespasses. Because the tort …

Legal Lessons From A Very Fast Problem: Covid-19, Eric E. Johnson, Theodore Bailey

Faculty Articles

The course of a pandemic is as much a function of social structures as protein structures. Law is among the most important of these social structures, and it is among those most capable of the kind of rapid adaptation that is needed against an exponentially replicating virus. Thus, there is an urgent need to scrutinize the role of the law in impeding or supporting timely and effective measures to combat the great pandemic caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) and its associated malady, coronavirus disease 2019, better known as COVID-19. This Essay offers a look back on …

Hands Off The Wheel: The Role Of Law In The Coming Extinction Of Human-Driven Cars, Tracy Hresko Pearl

Faculty Articles

Law and technology scholars have been writing about the coming release of fully autonomous vehicles for quite some time, and yet there is a significant gap in that literature. The United States has experienced a technology-driven upheaval in transportation once already, and it did so almost exactly 100 years ago when society transitioned (surprisingly rapidly) from horses to automobiles. No legal scholar has, as of yet, explored that transition at any length and asked what it can teach us about the role law and lawmaking should play in the coming transition between human-driven and fully autonomous vehicles. This is a …

Wills Speak, Katheleen Guzman

Faculty Articles

No abstract provided.

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

Rising Up Without Pushing Down: Lessons Learned From The Suffragettes' Anti-Immigrant Rhetoric, Kit Johnson

Faculty Articles

American suffragist Elizabeth Cady Stanton famously wrote: “We hold these truths to be self-evident; that all men and women are created equal.” Yet when suffragettes spoke of “all” men and women, they were clear about exceptions. Immigrants did not qualify. Indeed, in her own address at the First Women’s Rights Convention, held in Seneca Falls, New York, in July 1848, Stanton said that “to have . . . ignorant foreigners . . . fully recognized, while we ourselves are thrust out from all the rights that belong to citizens, it is too grossly insulting to the dignity of woman to …

Is Barrios The Death Knell Of Bosh Claims? The Sovereign Immunity Battle Between The Oklahoma Supreme Court And Legislature Over Constitutional Torts, Hayley Stillwell

Faculty Articles

The State of Oklahoma has explicitly adopted sovereign immunity for a broad array of tort claims, including constitutional torts—legal wrongs by government actors in violation of duties imposed by the Oklahoma Constitution. In the years before and after this explicit invocation of sovereign immunity for constitutional torts, however, the question in Oklahoma was whether the Oklahoma Legislature had the authority to do this. Even though the Oklahoma Legislature enacted a statute that invoked sovereign immunity as to certain torts, utilizing a seemingly all-encompassing definition of “tort,” the Oklahoma Supreme Court nevertheless found that private rights of action—commonly referred to as …

The Lesser Of Two Evils: Lowering The Constitutional Amendment Bar To Avoid An Unadaptable Constitution, Encouraged Judicial Activism, And Disrupted Federalism, Hayley Stillwell

Faculty Articles

The Constitution has not been amended for nearly three decades. During this time, the line in the sand between political parties has morphed into an impenetrable wall that neither side can or is willing to breach. This begs the question whether the constitutional amendment process in Article V is presently functional. If Article V is no longer functional, then the constitutional amendment process itself needs to be amended. Drastic as this sounds, it is the lesser of two evils. The alternative—accepting that Article V is dead and the Constitution cannot be amended—will lead to a distorted world in which the …

Police Funding, Stephen Rushin, Roger Michalski

Faculty Articles

A number of civil rights activists have called for the defunding or abolition of American police departments. These activists claim that the United States overinvests in police, leaving fewer scarce resources to support other government services. Activists also claim that overinvestment in policing contributes to higher rates of police misconduct and unnecessary criminalization, particularly in communities of color. This Article considers these calls for the defunding of police. It ultimately cautions against widespread defunding of police and offers an alternative proposal. Part I brings together multiple national databases on local government expenditures to evaluate empirically how states and municipalities fund …

Politicians As Fiduciaries: Public Law V. Private Law When Altering The Date Of An Election, Steven Cleveland

Faculty Articles

In the 2019 decision Rucho v. Common Cause, the U.S. Supreme Court concluded that federal challenges to partisan gerrymandering-a practice yielding election results that "reasonably seem unjust"-were non-justiciable. If partisan gerrymandering claims are not federally justiciable, and if that conclusion emboldens politicians, how else might incumbents manipulate election mechanics to preserve their political advantage? This Article explores one possibility that was briefly mentioned by the Rucho majority: the strategic advancement or delay of the date of a federal election. The strategic shift of election day is not simply a theoretical problem. Foreign politicians have strategically altered their election days for …

Expedited Trial Programs In Federal Court: Why Won't Attorneys Get On The Fast Track?, Steven S. Gensler, Jason Cantone

Faculty Articles

No abstract provided.

Rev. J. B. Hawthorne, The New Woman, And The Lost Cause, David B. Parker

Faculty Articles

Rev. J. B. Hawthorne, minster at Atlanta’s First Baptist Church from 1884 to 1896, said that women should not speak in church, and he expanded that to include women speaking in public on issues such as suffrage and temperance. This article examine Hawthorne’s take on women in the context of both Baptist theology and the rise of the New Woman in the South.

Machine Learning And The New Civil Procedure, Zoe Niesel

Faculty Articles

There is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored-As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas-service of process and personal jurisdiction.

The Article …

Speech Inequality After Janus V. Afscme, Charlotte Garden

Faculty Articles

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the decision’s …

Avoidance Creep, Charlotte Garden

Faculty Articles

At first glance, constitutional avoidance—the principle that courts construe statutes so as to avoid conflict with the Constitution whenever possible—appears both unremarkable and benign. But when courts engage in constitutional avoidance, they frequently construe statutory language in a manner contrary to both its plain meaning and to the underlying congressional intent. Then, successive decisions often magnify the problems of avoidance—a phenomenon I call “avoidance creep.” When a court distorts a statute in service of constitutional avoidance, a later court may amplify the distortion, incrementally changing both statutory and constitutional doctrine in ways that are unsupported by any existing rationale for …

Antitrust And Two-Sided Platforms: The Failure Of American Express, John B. Kirkwood

Faculty Articles

Two-sided platforms serve two sets of customers and enable them to interact with each other. The five most valuable corporations in America – Amazon, Apple, Facebook, Google, and Microsoft – all operate two-sided platforms. But despite their growing power, the Supreme Court's American Express decision has made it harder to stop them from stifling competition. This Article systematically exposes the flaws in the Court's reasoning and identifies the principles that should govern future cases. The Court’s most fundamental error was to require plaintiffs in rule of reason cases to make an initial showing of consumer harm that weighs the effects …

“Make My Day!” The Relevance Of Pre-Seizure Conduct In Excessive Force Cases, Leonard J. Feldman

Faculty Articles

No abstract provided.

#Sowhitemale: Federal Procedural Rulemaking Committees, Brooke D. Coleman

Faculty Articles

Of the 630 members of a specialized set of committees responsible for drafting the federal rules for civil and criminal litigation, 591 of them have been white. That is 94 percent of the committee membership. Of that same group, 513—or 81 percent—have been white men. Decisionmaking bodies do better work when their members are diverse; these rulemaking committees are no exception. The Federal Rules of Practice and Procedure are not mere technical instructions, nor are they created by a neutral set of experts. To the contrary, the Rules embody normative judgments about what values trump others, and the rulemakers—while experts—are …

The Location Of Holographic Wills, Mark Glover, Kevin Bennardo

Faculty Articles

North Carolina should abolish its location requirement for making a holographic will Under the North Carolina holographic wills statute a handwritten document must be found in an approved location after its author's death in order to be regarded as a holographic will No other state has mandated a location requirement for holographic wills since 1941brbrThe location requirement furthers neither of the core functions of will execution formalities it makes probate courts' decisions less efficient but no more accurate And because holographic wills in North Carolina are not technically executed until they are found postmortem confounding doctrinal issues arise when testators …

Confronting The Twenty-First-Century Marian Examination, Lauren Mclane

Faculty Articles

Today forensic evidence has increasingly become a key and powerful witness against the accused in criminal trials In the Sixth Amendment Confrontation Clause our Framers meant to create a safeguard that would forever test the reliability of evidence introduced against a defendant As Justice Scalia reminded us in Crawford v Washington ÔÇ£To be sure the Clause's ultimate goal is to ensure reliability of evidence but it is a procedural rather than a substantive guarantee It commands not that evidence be reliable but that reliability be assessed in a particular manner by testing in the crucible of crossexaminationÔÇØ Nonetheless courts across …

Identification And Characterization Of Preferred Dna-Binding Sites For The Thermus Thermophilus Hb8 Transcriptional Regulator Ttha0973, James Shell Cox, Kristi Moncja, Mykala Mckinnes, Michael W. Van Dyke

Faculty Articles

Advances in genomic sequencing have allowed the identification of a multitude of genes encoding putative transcriptional regulatory proteins. Lacking, often, is a fuller understanding of the biological roles played by these proteins, the genes they regulate or regulon. Conventionally this is achieved through a genetic approach involving putative transcription factor gene manipulation and observations of changes in an organism’s transcriptome. However, such an approach is not always feasible or can yield misleading findings. Here, we describe a biochemistry-centric approach, involving identification of preferred DNA-binding sequences for the Thermus thermophilus HB8 transcriptional repressor TTHA0973 using the selection method Restriction Endonuclease Protection, …

The Word That Cannot Be Spoken: Notes From The Jurisprudential Underground, Stephen Matthew Feldman

Faculty Articles

American Law Journals have banished a word postmodern In rendering this word taboo legal scholars delegitimize a useful interpretive tool and in failing to address useful criticism undermine their own arguments This article examines postmodernism in interpretive contexts the endurance of postmodernist thought in all but name and some reasons why postmodernism has become taboo

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

#Notme: A Commonwealth For Mankind, Deirdre M. Bowen

Faculty Articles

No abstract provided.

Broken Platforms, Broken Communities? Free Speech On Campus, Stephen Matthew Feldman

Faculty Articles

Free speech disputes have broken out on numerous college and university campuses In several incidents protesters have attempted to block the presentations of wellknown and controversial speakers who threaten the communal status of societal outsiders These events have sparked not only widespread media coverage but also the publication of multiple scholarly books and articles None of this scholarship however has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters This Article takes on that challenge Specifically this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus …

The Politics Of The Law-Politics Dichotomy, Stephen Matthew Feldman

Faculty Articles

Throughout American history judges and legal scholars have articulated and maintained a sharp separation between law and politics This essay asks the question Why do so many judges and scholars devote so much time and energy to bolstering this lawpolitics dichotomy Using William Baude and Stephen E Sachss recent article The Law of Interpretation as a Springboard this essay explores the history and political valence of the dichotomy From Baude and Sachs perspective politics is like a disease if it infects legal interpretation then it threatens the health of the judicial process But the history of the lawpolitics dichotomy reveals …

Having Your Cake And Eating It Too? Religious Freedom And Lgbtq Rights, Stephen Matthew Feldman

Faculty Articles

In Obergefell v Hodges Justice Anthony Kennedy wrote for a majority holding that samesex couples enjoy a constitutional right to marry as part of substantive due process Yet in Masterpiece Cakeshop Ltd v Colorado Civil Rights Commission his majority opinion held that the Free exercise Clause invalidated government sanctioning of a baker who had refused to bake a cake for a samesex couples wedding reception In both cases the Court reasoned that the government must maintain neutrality when confronted with competing viewpoints The Masteriece Cakeshop Court concluded the state Civil Rights Commission had violated this requirement by impugning the bakers …