Digital Commons Network^™

Beyond The Marketplace Of Ideas: Bridging Theory And Doctrine To Promote Self-Governance, David S. Ardia

Faculty Publications

This article proceeds in three parts. Part I examines the longstanding debate over the First Amendment’s purpose and explains why the marketplace of ideas theory has come to dominate both judicial and public understanding of the First Amendment’s speech and press clauses. The marketplace theory’s ascendancy, however, has proven to be problematic. It rests on an overly simplified account of public discourse, treating speech as merely a commodity that can be allocated through market-style transactions, and it has come to embody an extreme version of libertarian economic thinking that is undermining the very democratic processes the First Amendment was intended …

Public Investment In Climate Resiliency: Lessons From The Law And Economics Of Natural Disasters, Donald T. Hornstein

Faculty Publications

This Article takes issue with an important claim in the public choice and climate disaster literature: that American political markets will not allow appropriate investments in disaster preparedness and prevention, even when those investments are cost-benefit bargains. The claim is significant because the costs of climate disasters in the twenty-first century are estimated to be in the trillions of dollars due to the presence of legacy greenhouse gases in the atmosphere. Thus, even assuming a sustained, successful global campaign to limit future greenhouse gases, the ingredients for decades of droughts, wildfires, storms, and floods are already locked into the atmosphere. …

Precautionary Ratemaking, Jonas J. Monast

Faculty Publications

For more than one hundred years, states have relied on ratemaking to ensure that electric utilities deliver affordable and reliable power to their customers. This process helped keep costs down, but it also produced an electricity system that is a cause of, and vulnerable to, some of the most pressing challenges now facing society: climate change, catastrophic wildfires, extreme storms, and air and water pollution.

This Article argues that risk regulation is an alternate legal foundation for interpreting bedrock principles of ratemaking, such as prudency, reasonableness, least cost, and the public interest. The traditional economic regulator view of ratemaking evaluates …

Defunding Police Agencies, Rick Su, Anthony O'Rourke, Guyora Binder

Faculty Publications

This Article contextualizes the police defunding movement and the backlash it has generated. The defunding movement emerged from the work of Black-led activists to reassert democratic control over policing and shift resources to social service agencies and other institutions serving community needs. In reaction, states have enacted anti-defunding bills checking local government reduction of law enforcement budgets. These anti-defunding measures continue a long tradition of state and federal control over local police spending, subverting local democratic control over police agencies. These limits include direct legal constraints on local police spending and indirect constraints through grants and authorization to collect fines, …

A Taxonomy Of Professional Identity Formation, Harmony Decosimo

Faculty Publications

Following the ABA’s mandate requiring law schools provide students with opportunities for “professional identity formation,” this article seeks to clarify and loosely taxonomize the field of professional identity formation as it is being advanced by scholars and employed in U.S. law schools. By organizing this varied and somewhat muddled field into three dominant types or approaches and examining the primary and sometimes hidden goals of each, this article raises for review the potential pitfalls in this project, including the possibility of coercion, impotence, or waste. Ultimately, this article aims to pave the way for more constructive, transparent, and fruitful dialogue …

Other Judges' Cases, Melissa B. Jacoby

Faculty Publications

After documenting the role of mediating judges in today’s federal courts, Part I considers both reform narratives and power narratives explaining their use. To add context and specificity, Part I presents case studies based on original research. While these examples have unusual features, they illustrate the breadth of potential mediating judge activities and offer more of a citable record than can be found for other cases. The first involves the largest municipal bankruptcy in American history. 10 The second starts with the bankruptcy of a founder of a nationwide assisted living facility enterprise, who also solicited retirees to make “can’t …

The Anti-Parent Juvenile Court, Barbara A. Fedders

Faculty Publications

This Article identifies and analyzes features of the juvenile delinquency court that harm the people on whom children most heavily depend: their parents. By negatively affecting a child’s family—creating financial stress, undermining a parent’s central role in rearing her child, and damaging the parent-child bond—these parent-harming features imperil a child’s healthy growth and development. In so doing, the Article argues, they contravene the juvenile court’s stated commitment to rehabilitation.

In juvenile court, fees and fines are assessed against parents, who also often must incur lost wages to comply with court orders. In addition, while youths of all economic backgrounds and …

Machine Learning Land Cover And Land Use Classification Of 4-Band Satellite Imagery, Lorelei Turner, Torrey J. Wagner, Paul Auclair, Brent T. Langhals

Faculty Publications

Land-cover and land-use classification generates categories of terrestrial features, such as water or trees, which can be used to track how land is used. This work applies classical, ensemble and neural network machine learning algorithms to a multispectral remote sensing dataset containing 405,000 28x28 pixel image patches in 4 electromagnetic frequency bands. For each algorithm, model metrics and prediction execution time were evaluated, resulting in two families of models; fast and precise. The prediction time for an 81,000-patch group of predictions wasmodels, and >5s for the precise models, and there was not a significant change in prediction time when a …

Double Trouble? Irs’S Attention To Financial Accounting Restatements, Zackery D. Fox, Ryan Wilson

Faculty Publications

We examine whether the Internal Revenue Service (IRS) uses public information to obtain qualitative signals regarding the quality of firms’ financial information or management integrity. Using the procurement of public information as a proxy for IRS attention, we test whether public signals of poor information quality (restatements) lead to an increase in IRS attention. To begin, we document that the IRS is both more likely and quicker to acquire public filings announcing a restatement than any other filing of the firm. Furthermore, we examine instances in which the IRS is more likely to learn of a restatement and find an …

Determinants Of Capital Structure: An Expanded Assessment, Toshinori Fukui, Todd Mitton, Robert Schonlau

Faculty Publications

Using a standardized methodology, we empirically evaluate 55 proposed determinants of capital structure in terms of statistical significance, economic significance, and identification. We find that robust and economically important determinants of debt ratios are relatively few in number. Nevertheless, because each determinant relates to one of five market imperfections—taxes, distress costs, information asymmetry, agency costs, or supply frictions—we draw conclusions from the evidence as a whole regarding the explanatory power of different capital structure theories. We find greater support for pecking order theory and supply-related theories, with less support for traditional tradeoff theory and agency theory.

Factors That Affect Native English Speakers’ Comfort Levels When Communicating With Non-Native English Speakers, Kayla Nymeyer, Dan Dewey, William Eggington, Wendy Baker-Smemoe

Faculty Publications

This study explores native English speakers’ (NESs) self reported comfort levels when speaking with non-native English speakers (NNESs) from different first language (L1) backgrounds and in six different communication situations. NESs (n=122) listened to Spanish L1 and Chinese L1 NNESs with low, mid or high levels of English proficiency and rated their comfort level interacting with them. Results indicated that higher proficiency speakers were rated significantly higher (more comfortable as interlocutors) than Mid which were in turn rated higher than Low proficiency speakers. Spanish L1 speakers were rated higher than Chinese L1 speakers except at low proficiency levels. Ratings for …

Deconstructing Narratives About Artistic Mastery In Art Education, Mark Graham

Faculty Publications

A recurring challenge for art educators is how to include Black voices within the art curriculum. This challenge seems ever more relevant as a pandemic underlined the inequalities and injustices within our culture and society. A critical question for many White visual arts educators is: How do I, as a White educator, bring important issues of race, privilege, ideology, gender, and anti-racism into the art classroom? How can I help students to understand Whiteness as a cultural text and set about destabilizing White identity? How does one make space for an antiracist pedagogy? One way to begin conversations about these …

Do Privacy Assurances Work? A Study Of Truthfulness In Healthcare History Data Collection, Tamara M. Masters, Mark Keith, Rachel Hess, Jeffrey L. Jenkins

Faculty Publications

Patients often provide untruthful information about their health to avoid embarrassment, evade treatment, or prevent financial loss. Privacy disclosures (e.g. HIPAA) intended to dissuade privacy concerns may actually increase patient lying. We used new mouse trackingbased technology to detect lies through mouse movement (distance and time to response) and patient answer adjustment in an online controlled study of 611 potential patients, randomly assigned to one of six treatments. Treatments differed in the notices patients received before health information was requested, including notices about privacy, benefits of truthful disclosure, and risks of inaccurate disclosure. Increased time or distance of device mouse …

Review: Wendy A. Bach, Prosecuting Poverty, Criminalizing Care, Anna Arons

Faculty Publications

(Excerpt)

“Lock ’em up, clean ’em up, and start over” (145). This is how a drug treatment coordinator in a court in East Tennessee sums up her approach to provisioning substance use services to poor Tennesseans. If someone needs treatment, the most expeditious route—often, the only route—is through the criminal legal system. First, the court administrator casts about for a criminal charge, hopefully a “little charge,” that the person can be arrested on. Then, once they are arrested, they can be brought to jail where they can detox, with no medical supervision and no medication to ease the detox. And …

Unincorporating Qualified Immunity, Teressa Ravenell

Faculty Publications

Scholars, judges, activists, and policymakers alike have criticized the doctrine of qualified immunity, which emerged in Pierson v. Ray to shield government actors from monetary liability in a wide range of suits filed under 42 U.S.C. § 1983, derived from the Civil Rights Act of 1871. These criticisms have ranged from the practical to the principled, but they largely ignore the question of statutory interpretation: is it valid to read § 1983, which makes no mention of any defense or immunity, as incorporating a qualified defense for government officials who acted in good faith and with probable cause? The Court …

Why Insurance Needs A Restatement: The Case Of Settlement Decision Law, Chaim Saiman

Faculty Publications

Even before its publication, the Restatement of the Law, Liability Insurance had been subjected to withering wholesale criticism that it creates aspirational and pro-policyholder insurance law. This view continues to be forcefully promoted by insurers and their advocates in the legal literature and by governors and state legislatures in the political areas.

This Article finds these wholesale criticisms unwarranted. Liability insurance law is not a field where law is simply found and restated. In fact, settlement law offers the most vivid examples of why the Restatement of the Law, Liability Insurance is possible, useful, and justified. It is possible because …

Promoting Vaccine Innovation, Mirit Eyal-Cohen, Ana Santos Rutschman

Faculty Publications

As society grows to understand the need to promote innovation, policymakers try to employ an arsenal of policy tools, from traditional intellectual property (“IP”) to newer tools such as grants, regulatory vouchers, and prizes. This Article argues that these frameworks crowd out certain types of investments in innovation projects that have a high social value. Vaccine innovation is a case in point. Despite the immense socioeconomic benefit of vaccines, existing policies have been limited in fostering investments in this space. This is because they fail to directly address the relevant bottleneck issues distinct to vaccine development.

This Article offers a …

Final Thoughts And Observations, James R. Allison, Heidi Roberts, Jerry D. Spangler

Faculty Publications

This chapter addresses three topics inspired by the discoveries made during Jackson Flat’s archaeological investigations. The first topic examines the implications of the discovery of early maize agriculture in the Far Western region. Our data suggest that the Far Western Basketmaker tradition developed on a trajectory separate from the Western Basketmaker groups associated with the White Dog Phase in the Four Corners region.

Hinterlands To Cities: The Archaeology Of Northwest Mexico And Its Vecinos, Matthew C. Pailes, Michael T. Searcy

Faculty Publications

Tis approachable book is a comprehensive synthesis of Northwest Mexico from the US border to the Mesoamerican frontier. Filling a vital gap in the regional literature, it serves as an essential reference not only for those interested in the specific history of this area of Mexico but western North America writ large. A period-by-period review of approximately14,000 years reveals the dynamic connections that knitted together societies inhabiting the Sea of Cortez coast, the Sonoran and Chihuahuan deserts, and the Sierra Madre Occidental. Networks of interaction spanned these diverse ecological, topographical, and cultural terrains in the millennia following the demise of …

Religiosity From Age 12 To 20: Stability, Change, And Bidirectional Effects Of Attendance, Prayer, And Salience, W. Justin Dyer, Sam A. Hardy, Michael Goodman

Faculty Publications

Religiosity is a protective factor for adolescents, though research has indicated religiosity declines across adolescence. However, little research has examined how various dimensions of religiosity may change across time. With yearly data from a sample of 489 participants, the current study examined rank-order and mean level changes in religiosity from early adolescence (12 years-old) into late adolescence/emerging adulthood (20 years-old). Three dimensions of religiosity were examined, public religious practices (religious service attendance), private religious practices (prayer), and religious salience. Using cross-lagged models, reciprocal relationships between these dimensions were examined. There was significant rank-order stability, though stability was highest for attendance. …

Religious Affiliation’S Association With Suicidality Across Sexual Orientations And Gender Identities, W. Justin Dyer, Michael A. Goodman

Faculty Publications

The objective was to replicate and extend earlier findings examining the intersection of sexual orientation and religious affiliation predicting suicidality. Current analyses used updated data and extended prior work by examining how affiliation relates to suicidality for transgender individuals. Data were collected in 2021 from 46,562 adolescents and were representative of Utah adolescents in grades 8, 10, and 12. In regressions, affiliation predicted suicidality and subsequent models added demographics, family functioning, drug use, feeling socially integrated, and interaction terms between sexual orientation, gender identity, and affiliation. In baseline models, affiliation was related to fewer mental health difficulties. When including drug …

How Excellent Is Thy Lovingkindness: The Gospel Principle Of Hesed, Dan Belnap, Daniel L. Belnap

Faculty Publications

The concept of hesed (pronounced khesed) ¹ is unfamiliar to most Bible readers. This is partly due to the fact that it is a Hebrew word found in the Old Testament; thus, we will never come across the word hesed anywhere in our King James Version (KJV). Moreover, the term is difficult to translate, the KJV providing no less than fifteen different terms to signify the presence of hesed in the text, the most common being mercy, kindness, and lovingkindness.² Yet the principle of hesed may be one of the most important doctrinal concepts in the Old Testament, …

Mental Illness As A Vulnerability For Sexual Assault: A Retrospective Study Of 7,455 Sexual Assault Forensic Medical Examinations, Leslie Miles, Julie L. Valentine, Linda Mabey, Nancy R. Downing

Faculty Publications

Background: Persons with severe mental illness (MI) are at a high risk of becoming victims of sexual assault (SA). Vulnerability for SA with any type of MI is unknown. This study aimed to identify the prevalence of preexisting MI and other significant factors in patients reporting preexisting MI at the time of their SA medical forensic examinations (SAMFEs).

Method: A retrospective SAMFE chart review of patients ( N = 7,455) from 2010 to 2020 was conducted. Sexual assault nurse examiners completed SAMFEs. Inclusion criteria included (a) aged 14 years and older, (b) completed SAMFE with SA kit evidence collection, and …

Passages From The Book Of Micah In The Book Of Mormon, Dana M. Pike

Faculty Publications

No abstract provided.

Do People With Apraxia Of Speech And Aphasia Improve Or Worsen Across Repeated Sequential Word Trials?, Tyson G. Harmon, Adam Jacks, Katarina L. Haley, Jessica D. Richardson, Elizabeth H. Lacey, Peter Turkeltaub

Faculty Publications

Purpose:

During motor speech examinations for suspected apraxia of speech (AOS), clients are routinely asked to repeat words several times sequentially. The purpose of this study was to understand the task in terms of the relationship among consecutive attempts. We asked to what extent phonemic accuracy changes across trials and whether the change is predicted by AOS diagnosis and sound production severity.

Method:

One hundred thirty-three participants were assigned to four diagnostic groups based on quantitative metrics (aphasia plus AOS, aphasia-only, and aphasia with two borderline speech profiles). Each participant produced four multisyllabic words 5 times consecutively. These productions were …

Mazes In Spanish-English Dual Language Learners After Language Enrichment: A Case Study, Casey L. Taliancich-Klinger, Connie Summers, Kai J. Greene

Faculty Publications

ABSTRACTThe number of Spanish-English dual language learners (DLLs) in the United States continues toincrease every year. In the absence of developmental language norms for DLLs it is importantto learn more about typical language production characteristics to distinguish typical fromatypical language characteristics. An area of language production with conflicting results inthe literature is the production of mazes. Mazes are interruptions in the forward flow oflanguage in the form of interjections, repairs or revisions of words and phrases. At elevatedrates, mazes may interrupt the communication process. A common practice in classroomsettings is to provide support for DLLs through small group activities such …

A Framework For Phronetic Ldt Theory, Jason K. Mcdonald

Faculty Publications

My purpose in this chapter is to offer a reimagined view of theory in the field of learning design and technology (LDT). Instead of viewing theory as an external storehouse of knowledge, or a rule-like system for professionals to apply, in this framework theory is viewed as an orienting aid that supports practitioners as they refine their personal capacities for perception, discrimination, and judgment. Theory plays this orienting role as it offers insights into LDT-relevant practical knowledge, productive heuristics, points professionals towards opportunities to act, or identifies significant patterns and forms of excellence to which they can pay attention as …

Increase Student Engagement In Online Writing Environments, Jonathan Balzotti, Jason K. Mcdonald, Kevin Haws, Amy Allen Rogers, Matthew J. Baker

Faculty Publications

This case study explores a type of educational simulation, an alternative reality game we call a playable case study (PCS), and how its use influenced student engagement in an online writing classroom. The goal of the simulation was to help students create professional communication artifacts and experience real-world professional communication situations. This article reports the effectiveness of the playable case study as a tool specifically for online writing instruction (OWI). The context of our research was a PCS called Microcore. Acting as interns for a company, students are asked to investigate a serious problem that occurs and present a solution …

"The Working World Is A Minefield": Counterstories Of Job Loss, Rachel Collier Murdock, Matt Baker, Stacy Tye-Williams

Faculty Publications

This study examines narratives told by employees who experienced involuntary job loss. Results expand on previous narrative research investigating the American Dream master narrative and job loss as related to the neoliberal claim that those who work hard will be successful. The study investigated the master narrative’s implications for job loss that if someone loses their job, they must be either flawed or a bad worker. Contributions include a new redeemed-resolved identity construction by individuals who narrated job loss as an opportunity to correct some flaw in either their character or work life and to emerge a better, changed worker. …

Preparer Opposition And Strategic Implementation Of Governmental Accounting Standards: Evidence From Public Pension Accounting Reform, Abigail Allen, Reining C. Petacchi

Faculty Publications

Widely acknowledged as one of the most controversial standards in governmental accounting, GASB 67/68 radically altered both the recognition and measurement for defined benefit public pensions. The standards require the recognition of previously only disclosed unfunded pension liabilities and increase the magnitude of reported pension liabilities by requiring the partial incorporation of a market-based discount rate. While the recognition proposal was unaltered from its initial conception to the final standards, the discount rate proposal was significantly attenuated after the initial proposal met with unanimous preparer opposition. Accordingly, we examine what incentives drive preparer lobbying positions, whether such lobbying is aligned …