Digital Commons Network^™

The Myth Of Best Interest Of The Child, Victoria Mather

Faculty Articles

One of the basic tenets of Family Law as applied to children is consideration of "best interest of the child" in making decisions. Standards for custody, termination, adoption, and all other matters affecting children are overlaid with consideration of best interest. Unfortunately, the promise of best interest is lost in the actual mechanics of making these critical decisions involving children. This Article explores the disconnect between the ideal of using the best interest of the child as a key factor in legal decisions affecting children and the practicalities of competing interests. The Article first explores the common concern of the …

The Fearless Decision And The Future Of Race-Conscious Charities, Chenglin Liu

Faculty Articles

Historically, courts tended to differentiate between invidious discrimination against racial minorities and benign discrimination against whites in the context of affirmative action movements. With the social movements galvanized by the conservatives and the change of composition of the Supreme Courts and lower courts, the feasibility of race-conscious measures aimed at helping minorities is substantially reduced. The conservatives' win in Fearless, coupled with the Trump Administration's attacks on DEI, have produced a self-censoring effect on charitable organizations. Because of these threats, race-conscious charities will have to modify their practices to become more "inclusive" or face legal challenges from conservatives.

Rightly Dividing Jus Ad Bellum And Jus In Bello In The Israel/Hamas War, Jeffrey F. Addicott

Faculty Articles

The purpose of this paper is to: (1) review the applicable rule of law as it relates to both the initiation of warfare and the use of armed force in the execution of that warfare; and (2) apply those legal standards to the facts associated with the Israel/Hamas conflict. While this may seem an easy task – to set out unanimity in the international community – it is not. The inability to set bright lines of distinction between aggressors and those acting in self-defense is not just a failure in definition or even understanding, it is a failure to legitimize …

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 …

Including Individuals' Sense Of Self In Digital Information Privacy, Peter N. Meso, Solomon Negash, Humayun Zafar, Gurpreet Dhillon

Faculty Articles

The nature of contemporary digital ecosystems causes concerns that affect the person, the individual-self, an integral part of an individual’s information privacy calculus and hence a component of individuals’ Information Privacy Concerns (IPC). Yet, prior IPC models overlook self-focused concerns. This study articulates two constructs, termed “loss of autonomy” (i.e., autonomy) and “control over profiling” (i.e., profiling), that reflect individuals’ self-focused privacy concerns. Combining these new constructs with conventional IPC constructs that capture data-focused and device-focused concerns yields an IPC model made up of three dimensions: self-focused concerns, data-focused concerns, and device-focused concerns. The authors first develop instrument items for …

University Students Speak Out: Suggestions To Improve The Move To Emergency Remote Education, Pauline Howes, Justine E. Pettigrew

Faculty Articles

The 2020 COVID-19 crisis forced universities to make a dramatic shift to emergency remote education (ERE). While the urgency of the pandemic is gone, schools continue implementing ERE, but more often on a short-notice, short-term basis in response to various situations. This research examines students’ suggestions for improving university transitions to ERE and applies them to post-pandemic use of ERE. Qualitative thematic analysis was used to analyze responses to an open-ended survey question answered by 2,751 students at a large Southeastern U.S. university. Responses identified main concerns as Grades and Grading (38%), Better University and Instructor Preparation (23%), Improved Learning …

The History Of -Eer In English: Suffix Competition Or Symbiosis?, Zachary Dukic, Chris C. Palmer

Faculty Articles

Ecological models of competition have provided great explanatory power regarding synonymy in derivational morphology. Competition models of this type have certainly shown their utility, as they have demonstrated, among other things, the relevance of frequency measures, productivity, compositionality and analyzability when comparing the development of morphological constructions. There has been less consideration of alternative models that could be used to describe the historical co-development of suffixes that produce words with sometimes similar forms or meanings but are not inevitably or solely in competition. The symbiotic model proposed in this article may help answer larger questions in linguistics, such as how …

The Birth Of The Civil Death Penalty And The Expansion Of Forced Adoptions: Reassessing The Concept Of Termination Of Parental Rights In Light Of Its History, Purposes, And Current Efficacy, Christine Gottlieb

Faculty Articles

This Article proceeds in three Parts. Part I begins with a historical analysis that situates termination of parental rights within U.S. adoption law more broadly, identifying the legal questions raised in early adoption case law that laid the groundwork for developing stand-alone termination of parental rights proceedings, and examining how the growing demand for babies to adopt and new concerns about children languishing in foster care led to the idea of matching “demand” with “supply” by making more foster children eligible for adoption. This Part explains how the supply-and-demand analysis led to a legal mechanism for terminating parental rights outside …

Researcher Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Viljoen

Faculty Articles

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Can Litigation Analytics Tell Us What Became Of The 2015 Proportionality Amendments To The Federal Rules Of Civil Procedure?, Patricia W. Moore

Faculty Articles

In 2015, the Federal Rules of Civil Procedure pertaining to discovery were amended for the seventh time in 40 years–part of a cyclic effort to address the so-called “cost and delay” of litigation. The centerpiece of the amendments was the reconfigured requirement that requested discovery be “proportional to the needs of the case,” in addition to being relevant and nonprivileged. The concept of “proportionality” crystallized the 2015 amendments in a single mantra. The proposed amendments inspired passionate and polarized public reactions. Plaintiffs’ attorneys opposed them as an impediment to obtaining the discovery they needed to prove their case, particularly in …

A Haven For Traffickers: How The United States Provides A Legal Safe Haven For Businesses That Rely On Forced Labor In The International Supply Chain, Ramona L. Lampley

Faculty Articles

Congress enacted the Trafficking Victims Protection Act ("TVPRA" or "Act") in 2000, which, through its amendments, gives victims of human trafficking, including forced labor or slave labor, a private right of action against those who knowingly benefit from the abusive labor practices perpetrated on them. Even though slave labor, particularly child labor, is a perceived evil in the foreign supply chains of many domestic companies, courts appear uncomfortable with the some of the civil-liability provisions of the TVPRA. This Article examines recent cases brought under the TVPRA, and how, in some cases, courts have eviscerated the private right of action …

Moral Panic And The First Amendment, Michael L. Smith

Faculty Articles

Debates over free speech in the United States frequently see advocates of strong, broad protections at odds with those who argue that unfettered free speech tends to harm society's most vulnerable. Free speech advocates invoke the marketplace of ideas and argue that the antidote to false or harmful speech is more speech. In response, critics contend that speech itself causes harm and chills counter-speech effectively excluding marginalized groups, including women and LGBTQ people, from discourse altogether. These critics support limitations on robust free speech doctrine targeting speech that harms marginalized communities.

This Article identifies a significant wrinkle in this narrative: …

Oil & Gas And Corpus Linguistics, Chad J. Pomeroy

Faculty Articles

Oil and gas law focuses on the subsurface mineral estate, which is just what it sounds like: the estate that entitles one to the subsurface, to the stuff that is underground. That, of course, includes the minerals under a given piece of property, and the value associated with that is enormous. So, it is a big deal to have the right to minerals, and, if I convey to you "the mineral estate" of Blackacre or "the minerals under Blackacre" or something similar, then I have given you something very significant, indeed. As such, it is critical to know just what …

The Evolution Of Race-Based Admissions In American Higher Education, Chenglin Liu

Faculty Articles

This Article examines the Supreme Court’s evolving position on race-based admissions policies over the past 127 years. Between Plessy and Brown, universities used race-based policies to exclude black applicants from white universities. Brown shifted admissions policies from blocking black students to accepting them. As affirmative action gained momentum, universities escalated from merely accepting minority candidates to proactive recruitment by using quotas and lowering their admissions standards. The Court in Bakke set the ground rules for race-based admissions during that period. In 2003, Grutter upheld the university’s pursuit for a “critical mass” of minority students in its entering class. Two …

Indianness As Property, Carla Pratt

Faculty Articles

This Article expands upon the seminal work by Cheryl Harris entitled Whiteness as Property by exploring the intersection of race and property through Indianness. Indianness has been constructed as a form of property conferring rights and privileges to its holders which this Article examines through the inertial relationship between race and legal status. Tracing the historical evolution of Indianness from the slavery era to the modern era demonstrates the complex relationship between tribal sovereignty, citizenship and Indian identity. This legal history contextualizes contemporary disputes over who can enjoy tribal citizenship and be Indian. This Article advocates for a reevaluation of …

The Senate’S Shadow Doctrine, Jonathan S. Gould

Faculty Articles

When Congress is highly polarized and closely divided between the two parties, the majority party will often lack the votes to overcome a Senate filibuster on controversial matters. Majorities have tried to circumvent the filibuster by using the budget reconciliation process—which allows a simple-majority to close debate and move to a final vote—to make major policy on topics ranging from immigration to labor to climate. These efforts sometimes fail on account of the Byrd rule, a rule of legislative procedure that serves as a gatekeeper for the reconciliation process. The most important part of the rule is brief and somewhat …

Why Equity Follows The Law, Adam J. Macleod

Faculty Articles

Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a …

Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco

Faculty Articles

Part I of this article discusses the history and background of the United States' acquisition of Puerto Rico and how Puerto Rico became the commonwealth territory that it is today. The problematic history between the United States and Puerto Rico has been scrutinized in many works; however, this article provides a more recent overview of Puerto Rican contributions to the United States, both in terms of military service and monetary revenue. A current and accurate image of Puerto Rico and its entwinement with the United States is necessary to examine the depth of hypocrisy that its current legal status creates. …

Language Models, Plagiarism, And Legal Writing, Michael L. Smith

Faculty Articles

Language models like ChatGPT are the talk of the town in legal circles. Despite some high-profile stories of fake ChatGPT-generated citations, many practitioners argue that language models are the way of the future. These models, they argue, promise an efficient source of first drafts and stock language. Others make similar claims about legal writing education, with a number of professors urging the acknowledgment of language models. Others go further and argue that students ought to learn to use these models to improve their writing and prepare for practice. I argue that those urging the incorporation of language models into legal …

Constitutional Crimes, Michael L. Smith

Faculty Articles

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

Abolish The Mpre, Michael Ariens

Faculty Articles

In nearly every jurisdiction, applicants to the bar must pass the Multistate Professional Responsibility Examination (MPRE). Its purpose, according to its owner, the National Conference of Bar Examiners (NCBE), is "to measure candidates' knowledge and understanding of established standards related to the professional conduct of lawyers." It does test whether an examinee has kept in short-term memory the rules and exceptions that make up part of the understanding of what it means to serve as a lawyer. However, success (or initial failure) on the MPRE has not been correlated with ethical conduct or misconduct. For example, the Texas Board of …

The Difference A Da Makes, Victoria M. Smiegocki, Shem Vinton, Pamela R. Metzger

Faculty Articles

During his 2018 campaign to become Dallas County District Attorney, John Creuzot promised to decline prosecution of low-level marijuana misdemeanors. After his election, District Attorney Creuzot (DA Creuzot) honored this campaign promise, issuing policies designed to radically reduce misdemeanor marijuana prosecutions. Analyzing qualitative and quantitative data, the authors describe police enforcement changes associated with the Dallas County District Attorney's Office's (DAO) marijuana prosecution policies. The authors also explore how the

DAO's Intake Unit successfully implemented and enforced these marijuana prosecution policies.

The authors show that DA Creuzot's policies were associated with a significant decrease in marijuana misdemeanor arrests and an …

Is The Women's Treaty A Paper Tiger? Indian Courts' Application Of The United Nations Treaty, Amanda L. Stephens

Faculty Articles

This Article examines whether the United Nations ("U.N.") Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW'), is a "paper tiger"-a law that seems powerful but is in fact weak and ineffectual. While some scholars question the Treaty's effectiveness based on statistical studies, others point to legal reforms in state parties as evidence of its success. Neither provides a nuanced middle ground by examining the CEDAW at a micro rather than a macro level. This Article fills this gap by conducting a qualitative analysis of 10 Indian judicial opinions. Specifically, the Article explores how the …

Corporate Takeover: A New Clash In The Old Struggle Between Corporate Rights And Public Health, John J. Locurto, Rachel Radke, Xyruz Villariz, Jasmine Ann Castillejos

Faculty Articles

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a …

Artificial Intelligence (Ai) In Patent Practice: No Patent Attorneys Were Harmed In The Making Of This Ai Revolution (Book), Roberto Rosas, Juan Vasquez, Dianisa Erica Sosa, Francisco Javier Hernandez-Rodriguez, Daniel Kovach

Faculty Articles

This book provides a comprehensive examination of the rapidly evolving role of artificial intelligence (AI) in the patent law profession. Rather than a traditional legal text, this work offers an in-depth exploration of the profound impacts AI will have on patent attorneys' workflows and practices.

The central inquiry posies whether AI will ultimately replace patent attorneys or serve as a powerful complementary technology. This study contends that AI is poised to become an indispensable tool that augments and enhances the patent attorney's capabilities rather than renders them obsolete. Through detailed analysis of a patent attorney's typical workweek utilizing AI assistance, …

Conflicts And Confluences Between Surface And Mineral Estates With Ccus, Joseph Schremmer

Faculty Articles

Carbon capture, utilization, and storage (CCUS) presents a new way of using an old resource: the subterranean rock structures and their interstitial “pore” space that make up the subsurface of the earth. Injecting carbon into these structures also raises a number of new legal questions about their ownership and the relations between the owners of the structures and the owners of other subsurface resources contained within them, like oil and gas, coal, coalbed methane, and geologically native carbon dioxide. This Article explores these new legal questions and the conceptual difficulties they present with the aim of guiding participants in CCUS …

Civil Procedure For The Anthropocene, Roger Michalski, Emily S. Taylor Poppe

Faculty Articles

Climate considerations must become an element of procedural analysis. Scholars, rule makers, legislators, and judges have historically prioritized procedural values including cost, speed, and accuracy. More recent waves of scholarship—including critical perspectives—have emphasized participation as a further procedural goal. Yet this list has grown stale. Current environmental realities force all areas of law, including civil procedure, to reckon with climate change. In the future, proceduralists will be forced to integrate climate-aware thinking into their analyses, proposals, and discussions. Predictably, minds will disagree on how to accomplish this and the kinds of trade-offs that are warranted. Yet the fundamental point of …

A Republic Of Spending, Jonathan S. Gould

Faculty Articles

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain. Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro

Faculty Articles

For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …