Digital Commons Network^™

Automated Legal Guidance At Federal Agencies, Joshua D. Blank, Leigh Z. Osofsky

Faculty Publications

When individuals have questions about Federal benefits, services, and legal rules, they are increasingly seeking help from government chatbots, virtual assistants, and other automated tools. Current forms of automated legal guidance platforms include the U.S. Citizenship and Immigration Services’s “Emma,” the U.S. Department of Education’s “Aidan,” and the Internal Revenue Service’s “Interactive Tax Assistant.” Most scholars who have studied artificial intelligence and Federal government agencies have not focused on the government’s use of technology to offer guidance to the public. The absence of scholarly attention to automation as a means of communicating government guidance is an important gap in the …

Implicit Legislative Bias: The Case Of The Mortgage Interest Deduction, Kathleen Delaney Thomas, Leigh Z. Osofsky

Faculty Publications

The home mortgage interest deduction is over 100 years old. The deduction has been subject to increasing and, at times, withering criticism from commentators. Scholars have argued that the mortgage interest deduction may be a particularly ineffective and regressive way to subsidize homeownership. Other scholars have made the important point that the mortgage interest deduction has a disparate racial impact: homeowners are disproportionately white, so the deduction disproportionately benefits white people at the expense of people of color. Yet, the mortgage interest deduction has retained remarkable and costly staying power despite all the critiques.

How has the mortgage interest deduction …

Does U.S. Federal Employment Law Now Cover Caste Discrimination Based On Untouchability?: If All Else Fails, There Is The Possible Application Of Bostock V. Clayton County, Kevin Brown, Lalit Khandare, Annapurna Waughray, Kenneth Dau-Schmidt, Theodore M. Shaw

Faculty Publications

This article discusses the issue of whether a victim of caste discrimination based on untouchability can assert a claim of intentional employment discrimination under Title VII or Section 1981. This article contends that there are legitimate arguments that this form of discrimination is a form of religious discrimination under Title VII. The question of whether caste discrimination is a form of race or national origin discrimination under Title VII or Section 1981 depends upon how the courts apply these definitions to caste discrimination based on untouchability. There are legitimate arguments that this form of discrimination is recognized within the concept …

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 …

Covid-19 And The Perils Of Free-Market Parenting, Maxine Eichner

Faculty Publications

U.S. public policy has for decades rested on the expectation that parents will privately provide the cash and conditions their children need. This expectation is exceptional: most other wealthy countries’ public policies support children through a mix of public and private funds. The COVID-19 pandemic, however, radically changed U.S. policy. The severe economic dislocation that resulted led Congress to pass a series of measures that funneled trillions of public dollars to families and parents. Whether these measures should represent a temporary deviation from the nation’s free-market expectations during an unprecedented emergency or the first step in a long-term shift toward …

How Impeachment Works, Michael J. Gerhardt

Faculty Publications

This Article rejects the common view of the two Trump impeachments as a constitutional debacle. It asserts, instead, that the federal impeachment process retains significant vitality as a mechanism for holding presidents accountable for misconduct in office. If we take a step back from the tiny set of presidential impeachment trials in American history and adopt a more panoramic view of their effects and connections to other disciplinary mechanisms for presidential misconduct, it is easier to see that presidential impeachments still have bite. In fact, they can and do cripple legacies and reputations, create permanent evidentiary records of presidential misconduct, …

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. …

White Injury And Innocence: On The Legal Future Of Antiracism Education, Osamudia James

Faculty Publications

In the wake of the “racial reckoning” of 2020, antiracism education attracted intense attention and prompted renewed educator commitments to teach more explicitly about the function, operation, and harm of racism in the United States. The increased visibility of antiracism education engendered sustained critique and opposition, resulting in executive orders prohibiting its adoption in the federal government, the introduction or adoption of over sixty state-level bills attempting to control how race is taught in schools, and a round of lawsuits challenging antiracism education as racially discriminatory. Because antiracism so directly runs afoul of norms underlying American antidiscrimination law, including anticlassification, …

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, …

Systemically Important Platforms, Caleb N. Griffin

Faculty Publications

Regulating Big Tech is now a matter of intense public debate. We ask how well Big Tech companies fulfill their role as gatekeepers of the public square. We ponder whether their dominant market positions merit an antitrust response. We assess their culpability and complicity in spreading online misinformation and hate. However, in the many normative debates over how Big Tech should use its power, the source of that power remains largely unexamined.

Big Tech, like Big Tobacco before it, is an industry founded on addiction. Although typically “free” to use, the world’s largest digital platforms exploit users’ dopamine pathways to …

Saying What The Law Should Be, F. Andrew Hessick

Faculty Publications

Recent years have seen a resurgence of the view that the role of the federal courts is to declare what the law is, not what the law should be. Scholars and judges, including a majority of the current U.S. Supreme Court justices, have expressed this view that the law is fixed at its creation and the function of courts is to declare its meaning. But this view is inaccurate. Descriptively, federal courts often say what the law should be. Judges fashion common law, inject their views into interpretations, and issue opinions that do not merely describe the law but have …

Eviction Courts, Kathryn A. Sabbeth

Faculty Publications

This Article examines the legal mechanics of the courts that issue eviction orders. It analyzes these courts in the context of the COVID-19 pandemic and the federal eviction moratoria. The eviction phenomenon preceded the pandemic, but the pandemic exaggerated many of its features. How the eviction courts responded to the eviction moratoria reveals a great deal about how these fora have been functioning all along. While the eviction moratoria were important, the design of eviction courts limited their impact.

The Article identifies ten groups of laws that structure critical design features of eviction courts: (1) filing fee statutes that make …

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 …

Restoring Faith In Military Justice, Eleanor T. Morales, John W. Brooker

Faculty Publications

The military justice system was designed to maintain good order and discipline, strengthen national security, and achieve justice. After military leaders failed to effectively address the sexual assault crisis within the armed forces, Congress lost faith in this system. In response, Congress enacted sweeping legislative reform, transferring prosecutorial discretion for the most serious offenses from commanders to military lawyers. Unlike civilian prosecutions, most decisions within the military justice system have overwhelmingly favored one consideration: maintaining good order and discipline in the unit. While Congress’s reforms change who makes the decisions in many cases, they will have little effect unless military …

“Contractually Valid” Forum Selection Clauses, John F. Coyle

Faculty Publications

In Atlantic Marine Construction Company v. United States District Court, the Supreme Court held that a “contractually valid” forum selection clause should be enforced by federal courts absent extraordinary circumstances. Unfortunately, the Court provided no guidance on how to assess whether a clause is “contractually valid.” This Article fills the gap. It argues that the answer to this question turns on three separate inquiries. First, a court should determine whether the forum selection clause is valid. Second, the court should interpret the forum selection clause to determine whether it is exclusive and applies to the claims asserted. Third, the …

The Gender Gap In Academic Patenting, W. Michael Schuster, Miriam Marcowitz-Bitton, Deborah R. Gerhardt

Faculty Publications

The gender gap in academia has long been the focus of public discourse regarding the role of universities in promoting social values. In this study, we consider women’s participation in transferring knowledge from the academy to industry. A prominent model for such transfer is reflected in patent registration for inventions developed through scholarly research. And while academic patenting is a significant component of the professional activities of many faculty members, the extent to which women’s scientific discoveries are patented and commercialized has received relatively little attention.

The U.S. academy is a leader in science and a pioneer of technology transfer. …

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 …

Preemption Of Police Reform: A Roadblock To Racial Justice, Rick Su, Marissa Roy, Nestor Davidson

Faculty Publications

In 2020, nearly half of the largest U.S. cities reoriented municipal spending priorities by directing money from their police budgets to social services; for many cities, these budgetary changes reversed decades of increases. Cities began implementing additional police reforms as well: New York City became the first municipality to end qualified immunity for police officers while San Francisco shifted to deploying crisis response teams, rather than police officers, to respond to mental health calls.

Instead of supporting these critical reforms, some states targeted cities that prioritized racial justice by preempting those cities’ ability to engage in meaningful change. In the …

Centering Educational Resilience On Mission Through Research, Professional Development, And Collaborative Teaching, Anneris Coria-Navia Phd, Glynis M. Bradfield

Faculty Publications

External triggers such as the global pandemic have inevitably caused paradigm thinking shifts. These challenging times present opportunities to reimagine the possibilities of Seventh-day Adventist Education in the areas of research, professional development, crisis management, differentiating instruction, collaborative learning, and holistic student service in person and online. Supported by action research, this presentation reviews effective teaching frameworks and best practices that education in varied contexts can leverage to transform the challenges into opportunities for philosophical realignment spurring renewal of mission and improvement of practice. Through the study and reflection of our own educational experience through crisis, we present lessons learned …

The Online Criminal Trial As A Public Trial, Stephen Smith

Faculty Publications

There are two ways of favorably conceiving online trials in Sixth Amendment terms. One is that an online trial is a public trial, by its terms. The other is that an online trial may not be public, for Sixth Amendment purposes, but may nonetheless satisfy applicable constitutional demands for trials considered “closed.” This Essay proposes both: that an online trial is fundamentally “public” for Sixth Amendment purposes and, if it is not, it may still be a constitutional accommodation of the Sixth Amendment’s public trial guarantee, in appropriate circumstances.

The constitutionality of an online trial may be largely an idle …

A Global Ocean Oxygen Database And Atlas For Assessing And Predicting Deoxygenation And Ocean Health In The Open And Coastal Ocean, Marilaure Grégoire, Véronique Garçon, Hernan Garcia, Denise Breitburg, Kirsten Isensee, Andreas Oschlies, Maciej Telszewski, Alexander Barth, Henry C. Bittig, Jacob Carstensen, Thierry Carval, Fei Chai, Francisco Chavez, Daniel Conley, Laurent Coppola, Sean Crowe, Kim Currie, Minhan Dai, Bruno Deflandre, Boris Dewitte, Robert Diaz, Emilio Garcia-Robledo, Denis Gilbert, Alessandra Giorgetti, Ronnie Glud, Dimitri Gutierrez, Shigeki Hosoda, Masao Ishii, Gil Jacinto, Chris Langdon, Siv K. Lauvset, Lisa A. Levin, Karin E. Limburg

Faculty Publications

In this paper, we outline the need for a coordinated international effort toward the building of an open-access Global Ocean Oxygen Database and ATlas (GO2DAT) complying with the FAIR principles (Findable, Accessible, Interoperable, and Reusable). GO2DAT will combine data from the coastal and open ocean, as measured by the chemical Winkler titration method or by sensors (e.g., optodes, electrodes) from Eulerian and Lagrangian platforms (e.g., ships, moorings, profiling floats, gliders, ships of opportunities, marine mammals, cabled observatories). GO2DAT will further adopt a community-agreed, fully documented metadata format and a consistent quality control (QC) procedure and quality flagging (QF) system. GO2DAT …

First Class: An Andrews Alumnus Remembers The Beginnings, Scott Moncrieff

Faculty Publications

No abstract provided.

Valuing The Familiar, Andrea Luxton

Faculty Publications

No abstract provided.

Variedades. Second Edition. Intermediate/ Advanced Spanish Conversation, Carmela V. Mattza

Faculty Publications

VARIEDADES. Second Edition. Intermediate/ Advanced Spanish Conversation is a textbook for the student at the intermediate / advanced intermediate level. Through audiovisual activities, the student is expected to put their previous knowledge into practice and improve their ability to understand, write, listen, and speak in Spanish. VARIEDADES offers communicative activities that can be easily adapted into courses of different levels. In addition, it offers an appendix of activities with films and a Spanish grammar section that by subject directs the student to electronic databases that are freely accessible or are part of the Open Access platform.

Mutations In A Barley Cytochrome P450 Gene Enhances Pathogen Induced Programmed Cell Death And Cutin Layer Instability, Gazala Ameen, Shyam Solanki, Lauren Sager-Bittara, Jonathan Richards, Prabin Tamang, Timothy L. Friesen, Robert S. Brueggeman

Faculty Publications

Disease lesion mimic mutants (DLMMs) are characterized by the spontaneous development of necrotic spots with various phenotypes designated as necrotic (nec) mutants in barley. The nec mutants were traditionally considered to have aberrant regulation of programmed cell death (PCD) pathways, which have roles in plant immunity and development. Most barley nec3 mutants express cream to orange necrotic lesions contrasting them from typical spontaneous DLMMs that develop dark pigmented lesions indicative of serotonin/phenolics deposition. Barley nec3 mutants grown under sterile conditions did not exhibit necrotic phenotypes until inoculated with adapted pathogens, suggesting that they are not typical DLMMs. The F2 progeny …

A New Criterion For Fluoroquinolone-Associated Disability Diagnosis: Functional Gastrointestinal Disorders, Deanna N. Cannizzaro, Lydia F. Naughton, Maya Z. Freeman, Linda Martin, Charles L. Bennett M.D., Ph.D., Cecilia Bove

Faculty Publications

Background and Objectives: Fluoroquinolones (FQs) are a broad-spectrum class of antibiotics routinely prescribed for common bacterial infections despite recent recommendations to use them only for life-threatening cases. In addition to their antimicrobial properties, FQs act in the central nervous system as GABAA receptor inhibitors, which could potentially affect functionality of the vagus nerve at the forefront of gastrointestinal (GI) tract function. Alterations in neural control of digestion have been shown to be linked to Functional Gastrointestinal Disorders (FGIDs), which are usually diagnosed based on self-reported symptoms. The aim of this study was to assess the incidence of FGIDs following FQ …

Salt Marshes As Groundwater Buffers For Development: A Survey Of South Carolina Salt Marsh Basins, Alicia M. Wilson, Meghan Shanahan, Erik M. Smith

Faculty Publications

Salt marshes serve as zones of intense groundwater mixing and reaction between freshwater uplands and estuaries. This raises the question of whether the impacts of upland development on nutrient and carbon species can be transmitted through salt marshes via groundwater, or whether salt marshes can buffer estuarine waters from coastal development. We sampled groundwater from fifteen tidal creek basins in South Carolina to test for compositional differences associated with development and marsh width. Groundwater samples from near creekbanks and below freshwater uplands were analyzed for salinity, total dissolved nitrogen and phosphorus, and dissolved organic carbon. Analyses revealed significantly higher TDN …

Moby-Dick As Corporate Catastrophe: Law, Ethics, And Redemption, David Yosifon

Faculty Publications

Herman Melville’s Moby-Dick serves here as a vehicle through which to interrogate core features of American corporate law and excavate some of the deeper lessons about the human soul that lurk behind the pasteboard mask of the law’s black letter. The inquiry yields an illuminating vantage on the ethical consequences of corporate capital structure, the law of corporate purpose, the meaning of voluntarism, the ethical stakes of corporate fiduciary obligations, and the role of lawyers in preventing or facilitating corporate catastrophe. No prior familiarity with the novel or corporate law is required.

Extending The Quality Of Secure Service Model To Multi-Hop Networks, Paul M. Simon, Scott R. Graham

Faculty Publications

Rarely are communications networks point-to-point. In most cases, transceiver relay stations exist between transmitter and receiver end-points. These relay stations, while essential for controlling cost and adding flexibility to network architectures, reduce the overall security of the respective network. In an effort to quantify that reduction, we extend the Quality of Secure Service (QoSS) model to these complex networks, specifically multi-hop networks. In this approach, the quantification of security is based upon probabilities that adversarial listeners and disruptors gain access to or manipulate transmitted data on one or more of these multi-hop channels. Message fragmentation and duplication across available channels …