Digital Commons Network^™

Understanding The Mechanisms Of Interpretative Change, Aaron-Andrew P. Bruhl

Faculty Publications

Interpretive methodology changes over time, and we appear to be in a period of particular ferment. In federal statutory interpretation, which is the focus of this Article, several important changes in interpretive methods have occurred in recent decades or are underway. There has been a gradual, decades-long shift away from intentionalist tools like legislative history. In addition, as the culmination of a series of smaller steps, the Supreme Court has just reshaped the doctrine governing deference to agency interpretations, a move that will require years of further clarification. And, although this shift is still taking shape, it appears that some …

Mired In Meyer'S Mischief A Century After Fabrication Of Constitutional Parents' Rights, James G. Dwyer

Faculty Publications

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …

Troubling Trends: Ada Definition-Of-Disability Cases 2019-2023, Nicole Buonocore Porter

Faculty Publications

This empirical Article continues my every-five-year tradition of examining every federal case discussing the definition of disability since the Americans with Disabilities Act (ADA) was amended, effective 2009. The results of this research from the third five-year period (2019–2023) are disappointing in both familiar and surprising ways. Similar to the 2014–2018 period, we continue to see way too many courts incorrectly applying (or not even citing to) the ADA Amendments Act. Moreover, I discovered several new troubling trends in this dataset that raise the possibility that we might be heading toward another backlash against ADA plaintiffs. This Article presents my …

Patent Law: An Open-Access Casebook, Sarah Fackrell, Sarah R. Wasserman Rajec, Andres Sawicki

Faculty Publications

No abstract provided.

Crypto And The Fiduciary Investor, Eric D. Chason

Faculty Publications

Without much aid from MPT [modern portfolio theory], how should courts approach claims of imprudent investment in cryptocurrency? Courts might take this lack of aid as itself relevant. If MPT cannot place cryptocurrency in a portfolio, then perhaps fiduciary investors should refrain from doing so. Taking this approach would, however, overextend the prudent investor rule’s reliance on MPT. While the creators of the prudent investor rule certainly relied on MPT, the prudent investor rule does expressly adopt it. Moreover, courts should be wary of fixing investment practices in place. It would be ironic if the prudent investor rule, which intended …

Climate Liberalism And Decarbonization, Jonathan H. Adler

Faculty Publications

Existing climate policy goals require dramatic and rapid reductions in greenhouse gas (“GHG”) emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. The conventional approach to environmental problems is to treat such problems as “market failures” that can be corrected by government intervention, such as through regulation. Such approaches are constrained by various sources of government failure that are exacerbated by the scale and scope of the problem. The knowledge problem, administrative transaction costs, and limits on regulatory throughput capacity all hamper the use of traditional regulatory tools to address the …

What Did Gitlow Do?, James Y. Stern

Faculty Publications

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights …

Against The Sliding Scale, Alan J. Meese

Faculty Publications

Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of …

The Kincare Craze In Child Protection: Romanticism, Subterfuge, And Racial Separatism, James G. Dwyer

Faculty Publications

Among recent developments in family law, the most prevalent issue on legislative agendas has been Kincare as an alternative to non-relative foster care when maltreated children cannot remain with parents. Long an available option legally but traditionally regarded with skepticism by child protection workers, Kincare is now idealized. A steady stream of state legislative bills aims to encourage or command child protection and foster care agencies to place maltreated children in the home of relatives or friends of their parents whenever one is available, ostensibly based on an assumption that this is categorically better for children than living with unrelated …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Carceral Bonds, Tyler E. Dougherty

Faculty Publications

Over the past 50 years, the U.S. financed a massive physical and fiscal expansion of prisons via the municipal bond market—with devastating results. This project is the first to shine a light on the role of municipal debt in state-level carceral decision making, spotlighting the ways that the municipal bond market affects states’ capacities to incarcerate.

This Article argues that the two primary controls of states’ use of the carceral bond market—(1) market discipline and (2) states’ fiscal constitutions—are particularly ineffective at limiting states’ spending on prisons. This failure to restrain states’ spending through the carceral bond market enables private …

Flooding The Zone: The State Of Federal Flood Insurance At The Beginning Of Trump 2.0, Maggie Caudle, Jacob Dowler, Donald T. Hornstein

Faculty Publications

The risks of flooding in the United States have never been more apparent, making all the more significant the state of flood insurance and the legal and political volatility of the National Flood Insurance Program. In this Article we discuss the details of “Risk Rating 2.0,” the most significant change to federal flood insurance in half a century, and its legal and political future in the new world of Trump 2.0. And, in addition to describing the details of this new change to federal flood insurance, we describe its advantages and disadvantages in both the newfound political environment in which …

Arrest Unbound, Eisha Jain

Faculty Publications

Arrest has long been legally defined as a seizure, or temporary restraint on liberty, under the Fourth Amendment. But when the government arrests someone today, it imposes far more than a seizure. The government also marks individuals with arrest records, which enable wide-ranging penalties, such as deportation, civil detention, loss of a professional license, and disruption of custody. One consequence is that this regulatory structure unravels arrest from the key institutional checks that would permit the public or key actors to examine whether the government-imposed consequences stemming from arrest are fair and justified. Proportionality depends on the public at large …

Developing Lawyering Skills In The Age Of Artificial Intelligence: A Framework For Legal Education, Julie Kimbrough

Faculty Publications

This Article explores the emergence of generative artificial intelligence technology in legal education and law practice. It first offers historical perspective by examining the development of online legal research systems and other existing law practice technology tools that leverage artificial intelligence. This Article then proposes a framework for legal education based on twenty-first-century competencies that advance human interaction with legal technology tools. Next, this Article recommends that law schools incorporate these competencies into learning outcomes along with a holistic approach to teaching technology-driven lawyering skills as a strategy to narrow the learning gap between legal education and law practice. It …

Suspending The Truancy Paradigm, Barbara A. Fedders, Lucy Carlson, Max Parker

Faculty Publications

In the aftermath of the COVID-19 pandemic, school absences have skyrocketed. While racially minoritized, disabled, and low-income students have historically been, and remain, most likely to experience absence, white and affluent students’ rates of attendance have also declined. To respond to this new universality of student absenteeism, some policymakers have begun to seek alternatives to what we term “the truancy paradigm.”

We define the truancy paradigm as the range of coercive and often punitive interventions deployed by states and school districts to enforce compulsory attendance statutes. This paradigm, we argue, wrongly assumes (a) that strict enforcement of compulsory attendance laws …

Categorical Perception Of The Index Finger As An American Sign Language Phonological Construct, Lareina Hingson, Jeffrey Jack Green, Brooklyn Lorenc

Faculty Publications

In American Sign Language, specific handshapes found in the manual alphabet and/or numbering system (such as the pointed index finger—the number “1”—and its bent counterpart—the letter “x”) are assumed to be phonologically distinct under the rationale that bentness of the finger(s) constitutes a phonemic distinctive feature. This study investigates this notion, building on previous behavioral studies of American Sign Language categorical perception of bentness of the index finger. We examined varying levels of bentness between 180◦ and 90◦ using a scale ranging from the signs BLACK and SUMMER in the standard dialect. Experiment 1 found that when presented with all …

Reproductive Innovation And Reproductive Exceptionalism: How Private Health Insurance Coverage Of Fertility Treatment Complements Hostile Governmental Action And Expands Access To Assisted Reproduction In The United States, Myrisha S. Lewis

Faculty Publications

The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time. As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally. Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth. Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private …

Customer Service Operations: A Gatekeeper Framework, Maqbool Dada, Brett A. Hathaway, Evgeny Kagan

Faculty Publications

Customer service has evolved beyond in-person visits and phone calls to include live chat, AI chatbots and social media, among other contact options. Service providers typically refer to these contact modalities as “channels”. Within each channel, customer service agents are tasked with managing and resolving a stream of inbound service requests. Each request involves milestones where the agent must decide whether to keep assisting the customer or to transfer them to a more skilled – and often costlier – provider. To understand how this request resolution process should be managed, we develop a model in which each channel is represented …

Business Communication And Editing Students’ Evaluations Of Written Error: An Eye-Tracking Study, Matt Baker, Grant Eck, Ana Barraza, Benjamin Duffield

Faculty Publications

Using eye-tracking and interview methods, this study investigates how business communication students and editing students attend to and evaluate writing. Participants reviewed blog posts embedded with errors and judged publication readiness. While both groups visually fixated longer on errors than non-errors, business communication students were more likely to approve error-containing texts for publication. Qualitative data revealed that business communication students prioritized content while editing students prioritized surface-level issues. These findings suggest that disciplinary background informs evaluative standards, even when error-detection behavior is similar. The results carry implications for instruction in business writing and editing, especially concerning collaborative, cross-disciplinary workplace writing.

Timing Is Everything: Congruence, Controllability, And Performance Measure Weighting, Hayden T. Gunnell, Gary Hecht, William B. Tayler, Kristy L. Towry

Faculty Publications

We investigate whether the weights managers place on performance measures for performancebased compensation depend on whether weights are determined at the beginning or end of the performance period. We propose that managers frame the weighting decision differently depending on timing. Specifically, prior to employee effort, managers frame the decision as intended to align employee effort to firm objectives, whereas after employees have exerted effort, managers frame the weighting decision as intended to evaluate employee effort. Thus, we expect, and find, that managers weight measures that are more congruent with firm objectives more heavily when weightings are determined ex ante (before …

The Signaling Value Of Input Information: Performance Effects Of Task Difficulty And Effort Sensitivity, Steven D. Smith, William B. Tayler, Tyler F. Thomas, Todd A. Thornock

Faculty Publications

We investigate how the reporting of input information to managers affects employee performance, and how the signaling value of inputs for impression management moderates this effect. We develop theory to predict that the information content of input information (incremental to output measures), and thus its potential for impression management, will depend separately on both the difficulty of the task and the sensitivity of performance to effort. Across three experiments, we predict and find the reporting of input information significantly increases employee effort and performance in difficult relative to easy tasks and in low relative to high effort sensitivity tasks. Our …

Actuator Disk Model For Aeropropulsive Coupling Effects In Vortex Particle Method, Eduardo Alvarez, Vineet Ahuja, Vinod Lakshminarayan, Aaron Perry, Ryan Anderson, Andrew Ning

Faculty Publications

Blown lift and distributed electric propulsion aircraft pose strong aeropropulsive coupling effects that cannot be ignored during the early stages of design. In this study, we develop an advanced actuator disk model (ADM) for aeropropulsive coupling effects of ducted fans with the vortex particle method (VPM). The advanced ADM consists of (1) an actuator disk at the rotor plane, (2) a surface vortex sheet modeling the mixing and convection of blade tip vorticity along walls, and (3) a powered wake at the exhaust. With these three components, a propulsion jet with an arbitrary velocity profile is formed and interactions with …

Comparing The Sensitivity And Specificity Of Novel Motor Assessments For Traumatic Brain Injury, Paula K. Johnson, Ariana M. Hedges-Muncy, Erin D. Bigler, Lorie Richards, Steven Knight Charles

Faculty Publications

Background: Portable technology that records movements with high accuracy provides potential for sensitive clinical movement tests for individuals who experienced a traumatic brain injury (TBI). Objective: (1)To present impairments assessed using markerless motion capture (MMC) and (2) to compare the sensitivity and specificity of the MMCmediated tests to each other and to common clinical tests. Design: Screening study, using as criterion standard the ability to classify participant with TBI versus control participant. Setting: Research laboratory. Participants: The study included 30 individuals with TBI and 101 control participants. Entry criteria included most recent head injury < 5 years old, no history of movement issues prior to injury, no movement-affecting medications, and sufficient cognitive ability to follow instructions. Interventions: Not applicable. Main Outcome Measures: Performance on MMC-mediated tests and existing clinical analogs. MMC-mediated tests included finger oscillation, simple reaction time, and visually guided movement tasks. For comparison, participants also completed the following clinical tests: Halstead–Reitan finger tapping, simple reaction time test, and Beery Visuomotor Integration test. Impairments were identified as test scores of participants with TBI that fell outside of the 95% interval of control participants’ test scores. Random forest analysis was used to calculate the sensitivity and specificity of MMC and clinical tests according to their ability to correctly classify participants with TBI and control participants. Results: MMC-mediated tests revealed impairments in more participants with TBI than clinical tests in all three TBI groups (mild, repeated, and moderate to severe). Similarly, MMC-mediated tests revealed a higher percentage of scores as impairments than clinical tests in all three groups with TBI. Furthermore, MMC-mediated tests proved more sensitive and more specific than clinical tests (70% versus 50% and 98% versus 93%, respectively). Conclusion: MMC-mediated tests are sensitive and specific (compared to traditional clinical tests) and have potential to fill a gap in clinical care of TBI.

"We Can't Allow Iot Vendors To Pass Off All Such Liability To The Consumer": Investigating The U.S. Legal Perspectives On Liability For Iot Product Security, Prianka Mandal, Amit Seal Ami, Iria Giuffrida, Daniel Shin, Ella Sullivan, Adwait Nadkarni

Faculty Publications

As the regulatory landscape for the Internet of Things (IoT) evolves, vendors are moving towards certifying their products for security. Thus, we need to understand who is liable when certification failures result in harm, i.e., when certified products have vulnerabilities that are exploited to cause harm to users. This paper addresses the fundamental and timely question that has significant implications for vulnerability detection in certified products: who is liable for harm resulting from vulnerabilities in certified products, and who should be so liable? Through a qualitative analysis of contractual documents from 20 IoT vendors, this paper investigates how liability is …

Psychological Reactance Theory And Tax Evasion Intentions, Diana Falsetta, Brian C. Spilker

Faculty Publications

This study experimentally examines how tax administration service inefficiencies in the form of tax return processing delays from paper-filed tax returns indirectly affect taxpayer tax evasion intentions through taxpayers’ psychological reactance to the delay. We further consider whether this indirect effect is different when the taxpayer willingly chooses to paper file their tax return versus when the taxpayer is forced to do so. Consistent with Psychological Reactance Theory (PRT), we find that when taxpayers receive delayed refunds, they experience psychological reactance (e.g., anger and frustration with the tax administration) that increases their tax evasion intentions. Further, we find that the …

Foreign Tax Holiday Participation And U.S. Job And Investment Loss, Zackery D. Fox, Linda Krull, Scott G. Rane

Faculty Publications

We investigate whether foreign tax holiday participation among U.S. multinational companies is associated with offshoring U.S. jobs and other domestic investment activities. We find that foreign tax holiday participation is associated with (1) an increase in offshoring U.S. jobs and (2) a decrease in domestic investment, as proxied by changes in the number of employees, capital expenditures, and R&D activity. Furthermore, we find evidence suggesting that the association between targeted, temporary tax incentives provided by foreign tax holidays and firms’ domestic activities is stronger among firms with a smaller foreign presence and is distinct from the impact of foreign statutory …

Instructional Designer Perspectives On The Pursuit Of Quality In Online Course Design, Jason K. Mcdonald, Stephen C. Yanchar

Faculty Publications

In this qualitative study we investigated the experiences of instructional designers as they sought to build quality into online courses. Through semi-structured interviews, we explored what enabled and hindered their pursuit of quality, how they experienced their efforts in this regard, what mattered to them, and complexities that accompanied this pursuit. Our analysis of participant experiences suggested four themes: (1) connections between quality and designers’ ability to act autonomously; (2) connections between quality and collaborative, team-based relationships; (3) ambivalence due to tensions between autonomy and collaboration; and (4) ways of coping with limits on autonomy and collaboration. We conclude our …

Disclosure Benchmarking By Lawyers: Evidence Fromthe Ipo Setting, Michael S. Drake, Jeff Mcmullin, Kenneth Merkley, Chase Potter, John Treu

Faculty Publications

Lawyers play an important advisory role in drafting financial reports, yet empirical evidence documenting the influence of external legal counsel on this process remains sparse. This study focuses on a specific aspect of lawyers’ drafting process: the practice of reviewing disclosures previously filed by other issuers—a practice termed “disclosure benchmarking.” Using initial public offering (IPO) disclosures as the setting, we find that disclosure benchmarking is associated with amore efficient Securities and Exchange Commission (SEC) review process. We further find that it is associated with several measures of disclosure quality, including disclosures that are less likely to be revised in subsequent …

Education And Eschatology: Why Theological Education Is Necessary, Jiri Moskala

Faculty Publications

No abstract provided.