Digital Commons Network^™

The Mystery Of The Missing Choice-Of-Law Clause, John F. Coyle

Faculty Publications

There is widespread agreement among experienced contract drafters that every commercial contract should contain a choice-of-law clause. Among their many virtues, choice-of-law clauses facilitate settlement and reduce litigation costs. While most modern contracts contain these provisions, some do not. In many instances, the absence of these clauses may be attributed to outdated forms, careless drafting, inattentive lawyers, or some combination of the three. In a few instances, however, it appears that sophisticated contract drafters purposely omit choice-of-law clauses from their agreements. If these clauses add value to a contract — and there is nearuniversal agreement that they do — then …

Constraining Criminal Laws, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the …

Not Child’S Play: A Constitutional Game Of Pass The Story In Dobbs, Shurtleff, And Kennedy, John V. Orth, Paul T. Babie

Faculty Publications

This Article suggests that in the effort to find fixed standards for rights, working with vague, indeterminate, silent text, the Supreme Court engages in a constitutional game of pass the story. No one outcome concludes the story; it merely adds another chapter, to which the next set of judges will add their own installment. The quest for standards never ends. The Court’s decisions in Dobbs v. Jackson Women’s Health Organization, Shurtleff v. City of Boston, and Kennedy v. Bremerton School District are merely the latest installments in stories that began with the founding. And as with any such story, …

A Silver Lining To Russia’S Sanctions-Busting Clause, Michael Bradley, Irving De Lira Salvatierra, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 2018, Russia began inserting an unusual clause into euro and dollar sovereign bonds, seemingly designed to circumvent future Western sanctions. The clause worked by letting the government pay in roubles if sanctions cut off access to dollar and euro payment systems. The clause received little scrutiny at the time, perhaps because Russia used a state-owned bank, rather than a global investment bank, as underwriter. But with the invasion of Ukraine and the ensuing sanctions imposed by the United States and other governments, the relevance of the clause has become clear. This Essay examines how the market reacted to the …

A Debt Of Dishonor, Kim Oosterlinck, Ugo Panizza, W. Mark C. Weidemaier, Mitu Gulati

Faculty Publications

In 1825, France conditioned its grant of recognition to the new nation of Haiti on the payment of 150 million francs plus trade benefits. The payments were, at least in part, compensation for the losses that French plantation owners suffered, a key part of which was the loss of enslaved Haitians, who took their freedom via revolution. France has officially apologized and acknowledged a “moral debt” that it owes the Haitian people. But is there a legal debt that Haiti, one of the poorest nations in the world, could claim today from France, one of the richest?

Using Open-Source Software For Business, Urban, And Other Applications Of Deep Neural Networks, Machine Learning, And Data Analytics Tools, Richard S. Segall, Vidhya Sankarasubbu

Faculty Publications

This article provides an overview with examples of what Neural Networks (NN), Machine Learning (ML), and Artificial Intelligence (AI) and Data Analytics are, and with their applications in business, urban and biomedical situations. The characteristics of 29 types of neural networks are provided including their distinctive graphical illustrations. A survey of current open-source software (OSS) for neural networks, neural network software available for free trial download for limited time use, open-source software (OSS) for Machine Learning (ML), and open-source software (OSS) for Data Analytics tools are provided. Characteristics of Artificial Intelligence (AI) technologies for Machine Learning available as open-source are …

Melatonin As An Antimicrobial Adjuvant And Anti-Inflammatory For The Management Of Recurrent Clostridioides Difficile Infection, S. Scott Sutton, Joseph Magagnoli Ph.D., Ms, Tammy H. Cummings, James W. Hardin

Faculty Publications

Clostridioides difficile (C. difficile) infection (CDI) is strongly associated with inflammation and has the potential to cause recurrent infections. Pre-clinical data suggest that melatonin has beneficial effects in the gastrointestinal tract due to its anti-inflammatory and antibacterial properties. This analysis examines the association between melatonin and the risk of recurrent CDI. Methods: A retrospective cohort study was conducted among patients with an inpatient diagnosis of CDI along with a positive C. difficile polymerase chain reaction (PCR) or enzyme immunoassay (EIA) test result. Patients were followed until the first study end point (death) or the first instance of recurrent …

State-Level Policy Environments, Discrimination, And Victimization Among Sexual And Gender Minority People, Kristen D. Clark, Mitchell R. Lunn, Eliot M. Lev, Michael A. Trujillo, Micah E. Lubensky, Matthew R. Capriotti, Thomas J. Hoffmann, Juno Obedin-Maliver, Annesa Flentje

Faculty Publications

Legislation has been passed in some states to reduce discrimination and victimization toward sexual and gender minority people (SGM; people who are not solely heterosexual and/or whose gender identity is not equal to what is socially associated with sex assigned at birth). The purpose of these analyses is to test whether state-level policy environments are associated with past-year discrimination and victimization among SGM people. Cross-sectional data from The Population Research in Identity and Disparities for Equality (PRIDE) Study annual questionnaire (collected 2018–2019), a national study of the health of SGM adults in the USA, were used for these analyses. Measures …

Disparities In Demand For Covid-19 Hospital Care In The United States: Insights From A Longitudinal Hierarchical Study, Wolfgang Messner

Faculty Publications

Background and aims

This study examined disparities in hospitalization for COVID-19 within the U.S. by racial and ethnic groups, health insurance status, and social support structure.

Methods

Using publicly available ecological case and contextual data from July 2020 to April 2021, a longitudinal hierarchical model for the 51 U.S. states was constructed.

Results

Racial/ethnic disparities were observed, such as that hospitalization rates were higher in states with a higher percentage of Black (β = .002, P = .009) and American Indian or Alaska Native persons (β = .003, P = .03). Conversely, lack of health insurance was related …

“Usefulness Without Use," Or, The Power Of The Virtual: Lu Xun On The Vital Efficacy Of Literature, Wenjin Cui

Faculty Publications

This article explores Lu Xun’s distinct view of the vital efficacy of literature, as

captured in his well-known conception of literature’s “usefulness without use.”

Starting with the highly idealistic vision of his youthful years, which posits an

unmediated flow of power from the free play of poetry to the direct action of politics,

I follow Lu Xun on the strenuous and crisis-ridden path he took in coming to terms

with the uselessness of literature vis-à-vis the power of politics, until he finally

reaffirmed the vital power of literature by pitching the self-transcending virtual

impetus of literature against the conservative actual …

Protective Orders And Limited Guardianships: Legal Tools For Sidelining Plenary Guardianship, David M. English, Nina Kohn

Faculty Publications

By encouraging use of limited guardianships and protective orders instead of full guardianships, states can reduce the likelihood of unnecessarily stripping adults of their civil rights. Yet, although such less restrictive alternatives have long been available to most courts, in practice, their use remains limited and sporadic. This article argues that this lack of use suggests that it is not sufficient for the law to state a preference for these less restrictive alternatives, it must actually create systems that incentivize their use and actively discourage the use of full guardianships. This article then shows, using the Uniform Guardianship, Conservatorship, and …

Trust In Science: The Crisis Of Expertise As An Ideological, And Not Only A Scientific Controversy, David S. Caudill

Faculty Publications

Within the so-called "culture wars" dividing our nation politically, there is a law-related division over the trustworthiness of consensus science-the so-called "crisis of expertise." When the science concerning climate change, mask-wearing, or vaccinations becomes politicized, it loses its mooring in scientific evidence and impacts the effectiveness of regulatory law. Perhaps counter-intuitively, however, the solution is likely not to wear "Because Science" t-shirts while insisting on "cold, hard facts" and diagnosing as stupid those who believe the scientific theories of marginalized, minority-view scientists. Indeed, a certain level of modesty-regarding the uncertainties and tentativeness of even the best science-is necessary for the …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Faculty Publications

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Countering The Big Lie: The Role Of The Courts In The Post Truth World, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This Essay analyzes the role of the courts in handling Trump’s election lie. It argues that the courts were certainly correct in giving short shrift to Trump’s lawsuits, but further that the courts should have done more than simply dismiss Trump’s claims. Had the courts aggressively utilized existing tools to identify and punish prosecution of baseless claims, including Rule 11 of the Federal Rules of Civil Procedure and the courts’ inherent powers to control proceedings before them, the Trump election lie might well have been put to rest immediately before it could take root among die-hard Trump supporters. This …

The Unstoppable Spread Of English In The Global University, Rosemary C. Salomone

Faculty Publications

As English has spread across higher education worldwide, it has generated ongoing debate and a wealth of scholarship raising academic and national concerns, but with little, if any, pause or retreat on policies and practices. This article examines that puzzling disconnect within the broader framework of the rise of English as the dominant lingua franca, its historical grounding, its social and economic implications, and its diverse course within Europe and postcolonial countries.

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

Small Teaching, Big Impact, Ashley B. Armstrong

Faculty Publications

(Excerpt)

James M. Lang’s thesis in Small Teaching is simple: There are small things that educators can do to improve learning outcomes in their classrooms. Lang asserts that these “small but powerful modifications to our course design and teaching practices” are easy for teachers to incorporate and supported by research on learning. Lang is well steeped in pedagogical best practices—he is the former director of the Center for Teaching Excellence at Assumption College in Worcester, MA, and he regularly writes for the Chronicle of Higher Education.

A Contact Stress Capacity Model For Cylindrical Wormsets, Edward E. Osakue, Lucky Anetor

Faculty Publications

A contact stress capacity expression is derived for cylindrical worm sets by considering the worm as a helical rack mating with a helical gear. The concept of the equivalent spur gear for a helical gear defined by the instantaneous radius of curvature in the virtual plane of the helical gear is utilized in the contact stress capacity model formulation. All the basic design parameters of worm and gear are incorporated in the expression which explicitly shows the influence of the base and nominal helix angles on the contact stress. By considering the geometry of the worm and gear in engagement, …

You Can't Get There From Here: The Influence Of An Audit Partner's Prior Non-Public Accounting Experience On Audit Outcomes*, Ling Lei Lisic, Jeffrey Pittman, Timothy Seidel, Aleksandra "Ally" B. Zimmerman

Faculty Publications

We examine the importance of audit partners' prior non-public accounting experience (hereafter, “industry experience”) to audit outcomes. We conducted 20 (nine) semi-structured interviews of audit partners with (without) industry experience. These interviews shed light on industry-experienced partners’ career path choices, perceptions of the challenges and benefits stemming from industry experience, and perceptions of how this experience influences their current audit work. Grounded in theory and the results of these interviews, we empirically examine using a unique hand-collected dataset whether audit partners with industry experience conduct higher quality and more efficient audits. Our evidence implies that industry experience is associated with …

Social Justice As Desistance: Rethinking Approaches To Gender Violence, Deborah M. Weissman

Faculty Publications

Part I of this Article describes most domestic violence intervention programs (DVIPs) as they currently function with regard to gender violence. It critiques the structure of these programs, their close partnership with criminal legal system actors, perceived deficiencies, and it identifies missed opportunities to provide meaningful intervention strategies with those who have harmed. It demonstrates the ways that laws, regulations, and policies governing DVIPs constrain most programs from moving beyond established practices informed by punitive approaches to address the structural conditions that situate gender violence within a political economic framework.

Part II begins with a brief overview of the research …

The Problems, And Positives, Of Passives: Exploring Why Controlling Passive Voice And Nominalizations Is About More Than Preference And Style, Jacob M. Carpenter

Faculty Publications

As professional writers, attorneys should understand and have command of two of “the worst writing weaknesses”—passive voice and nominalizations. Studies show that compared to active voice, passive voice and nominalizations can make writing slower to read, harder to read, harder to comprehend, harder to remember, less concise, less familiar feeling, and less engaging. However, passive voice isn’t always bad. Expert writers can use passive voice to create cohesion, shift emphasis, imply objectivity, and make readers feel more distant and less emotional about an event. The problem is that attorneys commonly use passive voice indiscriminately, unknowingly, and excessively, amplifying its negative …

Cynthia Lucy Stephens, The Borges Enigma: Mirrors, Doubles, And Intimate Puzzles, David Laraway

Faculty Publications

In one of his most celebrated texts, ‘Borges y yo’, Borges describes wandering the streets of Buenos Aires, pausing to take in an unanticipated architectural detail or anything else that happens to catch his attention. That spirit of flâneurie captures something of the experience of reading Cynthia Lucy Stephens’ The Borges Enigma. It is the work of a devoted reader of Borges who accompanies us on a tour of Borges’ texts, pointing out an abundance of unexpected details even as her path seems to be marked less by any strict agenda than by the simple pleasures of exploration. Whether it …

Benedict, Nora C. Borges And The Literary Marketplace: How Editorial Practices Shaped Cosmopolitan Reading, David Laraway

Faculty Publications

Borges is so frequently regarded as a theorist and thinker of the book in an abstract sense that it is easy to forget that so much of his own creative energy was spent not just writing but producing and disseminating texts in a material form. During some of the years we associate with his peak productivity as a writer he was also fully engaged with every step of the book-production process, from the design of graphic material, to page layout, to working with printers. But the decidedly unglamorous business of the production of material literary artifacts played a key role …

The Other Legacy Of Qasim Amin: The View From 1908, Hoda Yousef

Faculty Publications

No abstract provided.

Divine Attribution? The Interaction Of Religious And Secular Beliefs On Climate Change Attitudes, Paul Djupe, Ryan P. Burge

Faculty Publications

No abstract provided.

Both Consumptive And Non-Consumptive Effects Of Predators Impact Mosquito Populations And Have Implications For Disease Transmission, Marie C. Russell, Catherine M. Herzog, Zachary Gajewski, Chloe Ramsay, Andy Mccall

Faculty Publications

No abstract provided.

"Trading Western Suits For Monastic Robes" : Remaking Tibetan Buddhism In The Chinese Religious Revival, Jue Liang

Faculty Publications

No abstract provided.

I, Jill Alexander, American Girl Revolutionary, Taraneh M. Haghanikar

Faculty Publications

Analyzing the insider-outsider continuum in Remembrance of the Sun (1986, 2011) by Kate Gilmore, the purpose of this paper is to reveal different levels of being a female outsider protagonist moving along the insider-outsider continuum, maintaining an outsider voice, and at the same time developing an insider perspective. Remembrance of the Sun is a historical fiction authored by an outsider and set in 1978, one year before the Islamic revolution in Iran. After moving from New England to Tehran, Jill, a seventeen-year-old American girl, struggles to adjust to an unfamiliar lifestyle. However, her experience becomes a story of love and …

Shifting Preservice Teachers’ Sources Of Mathematics Teaching Efficacy Through Scaffolded Reflection: Fostering Commitment To Reform-Based Mathematics, Brooke Krejci, Elana Joram, Anthony J. Gabriele

Faculty Publications

Efforts to promote reform-based mathematics instruction in schools are pervasive, yet many teachers continue to use more traditional, procedural methods (Paolucci, 2015). In this chapter, the authors suggest that to achieve sustained adoption of reform-based instruction in mathematics, it is essential for professional development programs to draw teachers’ attention to sources of mathematics teaching efficacy afforded by reform-based teaching, such as enhanced student thinking. Educator preparation programs are ideal settings in which to begin this process, and the authors describe how scaffolded reflection activities within a mathematics methods course were used to focus preservice teachers’ attention on sources of mathematics …

Maximizing Learning Of L2 Adult Learners In Higher Education, Gabriela Olivares-Cuhat

Faculty Publications

In the fall of 2019, the age of 33.5% of students enrolled in US institutions of higher education was 25 and above. However, research in the fields of adult learning, developmental, cognitive, and socio-cognitive theories suggests that this group of students presents L2 instructors with a set of strengths and challenges. One specific concern is that empirical studies have indicated a steady decline in L2 success along with the age of the adult learners (Hakuta et al., 2003). The aim of this article is to examine how teaching practices may be derived from research findings, with a view to better …