Digital Commons Network^™

Contextualizing The Triggering Event: Colonial White Supremacy, Anti-Blackness, And Black Lives Matter In Italy And The United States, Renee Nicole Allen

Faculty Publications

In the summer of 2020, spurred by George Floyd’s murder and amid a worldwide pandemic, Black Lives Matter demonstrations peaked in the United States. The viral nature of the police violence that caused Floyd’s death was a triggering event for transnational Black Lives Matter protests. Around the world, millions took to the streets to demand justice. In Italy, a resounding demand that “Black Lives Matter” filled the streets during solidarity protests that occurred in Milan, Naples, and Rome. Less than six months later, in September 2020, the fatal civilian beating of Willy Monteiro Duarte, a Black Italian, revealed the necessity …

Outside The Margins: Journal Alternatives For Professional Skill And Identity Development, Eric W. Shannon

Faculty Publications

(Excerpt)

Every summer I hear from students who did not receive an offer to join their preferred journal—or sometimes any journal at all. Overall student interest in journal staff member positions generally outnumbers available spots in publications. Still other students opt out of participating in the writing competition entirely because of significant out-of-school responsibilities or other constraints on their time.

The appeal of journal membership is in many ways self-evident. It affords the space, time, and resources to sharpen legal research and writing skills. It can facilitate exploration of subject-matter areas of interest and help staff members decide on an …

An Empirical Evaluation Of The Trademark Modernization Act, Jeremy N. Sheff

Faculty Publications

The Trademark Modernization Act of 2020 (TMA) created two new forms of administrative proceedings designed to clear spurious trademarks from the federal register. Congress’s hope for these new proceedings was that they would “respond to concerns that registrations persist on the trademark register despite a registrant not having made proper use of the mark covered by the registration” by “allow[ing] for more efficient, and less costly and time consuming” means of removing them. This Article subjects that policy to empirical examination, disclosing and analyzing a newly constructed dataset covering the dockets of all TMA proceedings (and petitions for proceedings) to …

Current Developments In Tax Malpractice: Basics And Beyond, Jacob L. Todres

Faculty Publications

It was always assumed that “tax malpractice” referred to a situation in which an error occurred with respect to some tax provision or in a tax-related administrative or legal proceeding. However, several recent cases have expanded this thinking, introducing the possibility that tax malpractice may also occur where damages include an increase in taxes—irrespective of whether there was an error that directly involved tax law. Beginning with a discussion of the evolving definition of that term as seen in the New York cases of Serino v. Lipper and Bloostein v. Morrison Cohen LLP and whether these cases may have returned …

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva E. Subotnik

Faculty Publications

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work." It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

The Stories We (Don’T) Tell: Using Case Briefing To Explore Bias And Oppression In The Law, Ashley B. Armstrong

Faculty Publications

Traditional case briefing focuses on the text of the opinion—how courts frame and resolve legal issues. This Essay explores how to teach case briefing to investigate bias and oppression in the law. By discussing socio-historical context during class or assigning reimagined judicial opinions alongside the original opinion, teaching case briefing this way asks students to consider the stories that judges don’t tell (and why). This Essay proffers two examples that illustrate these approaches: United States v. Robinson, 414 U.S. 218 (1973) and Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (1965).

Distorted Narratives In The Treatment Program Complex, Evelyn Lia Malavé

Faculty Publications

Problem-solving courts and alternatives to incarceration have been both celebrated as successful attempts to address the factors that lead to defendants’ involvement in the criminal legal system and critiqued as ineffective reforms that worsen mass incarceration. Specifically, critiques of the “treatment program complex” have tended to focus on how it harms defendants by exposing them to higher levels of incarceration if they fail to complete court mandates. But these critiques have failed to account for another way the treatment program complex harms defendants: by suppressing their voices regarding what kind of help they need and how they are affected by …

Gender Regrets: Banning Abortion And Gender-Affirming Care, Noa Ben-Asher, Margot J. Pollans

Faculty Publications

(Excerpt)

In the spring of 2023, the New York Times published a piece entitled “How a Few Stories of Regret Fuel the Push to Restrict Gender Transition Care.” It features Chloe Cole, who lived as a transgender boy for several years but now identifies as a cisgender woman. Cole has become a poster child for the idea that gender-affirming care (“GAC”) for minors may lead to later regret and should therefore be restricted by the state. Cole, who has been travelling the country as part of a conservative lawmaking effort to ban GAC, received a standing ovation after Florida Governor …

“The Times They Are A Changin’”: Generational Comparisons Of The Civil Rights Movement With The Current-Day Climate Movement, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

Bob Dylan’s famous song lyric, capturing the spirit of the 1960s, is just as apropos today: “The times they are a changin’” (1964). The civil rights movement changed history by securing legislation and court decisions advancing the constitutional rights of black people (Dalton 2008, 7). The movement took flight at a time when the Baby Boomer generation was politically active and seeking social change. As outlined in the introduction to this book, the generations and their birth years are as follows: Silents (1925–45); Baby Boomers (1946–64); Gen X (1965–80); Millennials (1981–95); and Gen Z (1996–2013). Baby Boomers “experienced the …

Use Of Machine Learning Approaches To Predict Transition Of Retention In Care Among People Living With Hiv In South Carolina: A Real-World Data Study, Ruilie Cai, Xueying Yang Ph.D., Yunqing Ma, Hao H. Zhang, Bankole Olatosi Ph.D., Sharon Weissman, Xiaoming Li Ph.D., Jiajia Zhang Ph.D.

Faculty Publications

Maintaining retention in care (RIC) for people living with HIV (PLWH) helps achieve viral suppression and reduce onward transmission. This study aims to identify the best machine learning model that predicts the RIC transition over time. Extracting from the enhanced HIV/AIDS reporting system, this study included 9765 PLWH from 2005 to 2020 in South Carolina. Transition of RIC was defined as the change of RIC status in each two–year time window. We applied seven classifiers, such as Random Forest, Support Vector Machine, eXtreme Gradient Boosting and Long–short–term memory, for each lagged response to predict the subsequent year's RIC transition. Classification …

Medicaid Managed Care Restrictions On Medications For The Treatment Of Opioid Use Disorder, Maureen T. Stewart, Christina M. Andrews Ph.D., Sage R. Feltus, Dominic Hodgkin, Constance M. Horgan, Cindy Parks Thomas, Thuong Nong

Faculty Publications

Objective: To examine whether Medicaid managed care plan (MCP) utilization management policies for buprenorphine–naloxone and injectable naltrexone are related to key state Medicaid program policy decisions. Data Sources and Study Setting: We abstracted data on state Medicaid regulatory and policy information from publicly available sources and publicly available insurance benefit documentation from all 241 Medicaid MCPs operating in 2021. Study Design: In this cross-sectional study, we used bivariate and multivariate analyses to examine whether Medicaid MCP prior authorization and quantity limits on receipt of buprenorphine and injectable naltrexone were associated with key state Medicaid choices to leverage federal funds to …

Human Mobility And The Infectious Disease Transmission: A Systematic Review, M. Naser Lessani, Zhenlong Li, Fengrui Jing, Shan Qiao Ph.D., Jiajia Zhang Ph.D., Bankole Olatosi Ph.D., Xiaoming Li Ph.D.

Faculty Publications

Recent decades have witnessed several infectious disease outbreaks, including the coronavirus disease (COVID-19) pandemic, which had catastrophic impacts on societies around the globe. At the same time, the twenty-first century has experienced an unprecedented era of technological development and demographic changes: exploding population growth, increased airline flights, and increased rural-to-urban migration, with an estimated 281 million international migrants worldwide in 2020, despite COVID-19 movement restrictions. In this review, we synthesized 195 research articles that examined the association between human movement and infectious disease outbreaks to understand the extent to which human mobility has increased the risk of infectious disease outbreaks. …

American Association Of Law Libraries Academic Special Interest Section White Paper On Continuing Status And Tenure Of Law Librarians, Aall Special Interest Section On Academic Law Libraries Subcommittee On Continuing Status And Tenure, Stephanie Davidson, Cindy Hirsch, Caroline Osborne, Brian Quigley, Jessica Whytock

Faculty Publications

In 2023 the ALL-SIS Continuing Status/Tenure Committee was charged with developing a white paper to provide information on the status, rights, and responsibilities of academic law librarian positions. The information provided in this paper is intended to allow law librarians to make informed career choices, increase knowledge of the rights and obligations of librarian positions, and ensure the development of necessary skills and education for future new positions. Clarity on how positions are structured, their required skills, and credentials is essential at all levels of experience for planning and development for future career growth.

This White Paper does not advocate …

Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland

Faculty Publications

Metadata, often referred to as “data about data,” plays a crucial role in the digital world. It encompasses embedded information within electronic documents that reveals details about their creation, modification, and transmission. In legal proceedings, metadata can be both helpful and controversial, as it can expose sensitive information and potentially support or refute claims of fabricated evidence. With the widespread use of smartphones and other electronic devices, individuals generate vast amounts of personal data, including metadata, that can provide detailed insights into their lives.

This Article explores the significance of metadata in various contexts, such as digital photographs, and highlights …

Data Controllers As Data Fiduciaries: Theory, Definitions & Burdens Of Proof, Noelle Wilson, Amanda Reid

Faculty Publications

No abstract provided.

Erie And Forum Selection Clauses, John F. Coyle, F. Andrew Hessick

Faculty Publications

This article argues that federal courts should apply state law to determine the enforceability of outbound forum selection clauses in diversity cases. Using a hand-collected dataset comparing hundreds of state and federal decisions, the authors show that federal courts enforce such clauses at significantly higher rates, creating incentives for forum shopping and uneven contract rights. They contend that enforceability is a substantive contract issue under Erie and that federal courts lack authority to create federal common law in this area outside §1404(a). The article concludes that applying state law uniformly would prevent inequitable administration and restore coherence to forum selection …

Major Questions' Quiet Crisis, Graham S. Steele

Faculty Publications

During the New Deal, President Franklin D. Roosevelt declared that the United States was facing a “quiet crisis.” The Supreme Court had struck down his administration’s rules governing the petroleum and poultry industries. Unlike the recent banking panic that had caused the Great Depression, there were “no lines of depositors outside closed banks.” The situation, Roosevelt said, would nonetheless be “far-reaching in its possibilities of injury to America.” The courts ultimately relented, leaving the remainder of the New Deal regulatory settlement largely intact.

Today, the United States confronts another “quiet crisis.” The U.S. banking system has experienced a decade and …

Facilitating Digitization And Reformatting Via Committee Work, Nicole Lewis, Abby Beazer, Marissa Bischoff, Michael F. Gates, Benjamin Harry, Lindsey Memory, Rebecca A. Wiederhold

Faculty Publications

The Reformatting Committee at Brigham Young University Library actively manages and facilitates the digitization of library materials, playing a pivotal role in advancing larger digitization projects. The committee comprises various stakeholders in the digitization and reformatting workflow, each with unique concerns and requirements, allowing the committee to effectively navigate the complexities of the digitization process. This exploration of the committee includes motivations for its formation, an explanation of its documentation, and the benefits gained.

The Reformatting Committee exemplifies a balanced approach to meeting various stakeholders’ expectations and building bridges between departments, thereby advancing the library’s mission in the context of …

Banking And Antitrust, Saule T. Omarova, Graham S. Steele

Faculty Publications

Money is power. Banks have the extraordinary power to create the nation’s money and credit, which they are entrusted to channel into productive economic uses. Like most other forms of economic power, this publicly granted privilege can be abused for private gain. That is why the “money monopoly” and “money trusts” were once considered one of the most dangerous forms of concentrated private wealth, an existential threat to economic freedom and American democracy. Yet, for the past half-century, the law governing banks and the law curbing monopolies have occupied doctrinally and normatively separate spaces. Today, banking law is seen predominantly …

Against Associational Standing, Michael T. Morley, F. Andrew Hessick

Faculty Publications

This Article calls for the abandonment, or at least serious modification, of associational standing. Even without associational standing, groups may still sue to enforce their own rights. And they could continue to help vindicate their members’ rights by providing legal representation for member plaintiffs in individual or class action suits (filed anonymously, if necessary), covering members’ litigation costs, and providing expert witnesses and other guidance. In short, associational standing is a largely unnecessary deviation from both Article III’s injury-in-fact requirement and the fundamental principles underlying our justice system. Eliminating associational standing would not limit public law and other important collective …

Legal Gender Recognition In Nepal And Comparative Context, Holning S. Lau, Mara Malagodi

Faculty Publications

The Supreme Court of Nepal was a groundbreaker when it ruled in Pant v. Nepal (2007) that people have the right to change their gender on identity documents based on “self-feelings” and “self-determination” rather than medical or other criteria; at the time, no other national apex court or government had so clearly prioritized self-determination for gender identity. Pant, however, centered “third gender” persons (neither male nor female), and now the Court is considering the case of a transgender woman, Ms. Kapali, who seeks to be identified as female on her documents and is challenging authorities that rejected her requests. …

The Game, The Players, And The Board, Bruce E. Boyden

Faculty Publications

Christopher Seaman and Thuan Tran’s fascinating article, Intellectual Property and Tabletop Games, raises important questions about the role of intellectual property in developing and distributing innovative products. The market for tabletop games, Seaman and Tran argue, is able to sustain a high level of creativity at a high up-front cost, all while protected by some but not all of the IP rights that other industries’ outputs receive. Is that evidence of IP’s necessity or its superfluousness? In this Response, I argue that the answer is a little bit of both. Whereas prior scholarship has shown the lack of an …

Inactive Metallopeptidase Homologs: The Secret Lives Of Pseudopeptidases, Peter Lyons

Faculty Publications

Inactive enzyme homologs, or pseudoenzymes, are proteins, found within most enzyme families, that are incapable of performing catalysis. Rather than catalysis, they are involved in protein-protein interactions, sometimes regulating the activity of their active enzyme cousins, or scaffolding protein complexes. Pseudoenzymes found within metallopeptidase families likewise perform these functions. Pseudoenzymes within the M14 carboxypeptidase family interact with collagens within the extracellular space, while pseudopeptidase members of the M12 "a disintegrin and metalloprotease" (ADAM) family either discard their pseudopeptidase domains as unnecessary for their roles in sperm maturation or utilize surface loops to enable assembly of key complexes at neuronal synapses. …

Mining The Qhapaq Ñan With Micaela De Vivero: Decolonial Cords, Joy Sperling

Faculty Publications

No abstract provided.

Enhancing The Textbook’S Cultural Content Within The University Museum: Students’ Perceptions Of Two Activities, Nausica Marcos Miguel, Megan Hancock

Faculty Publications

No abstract provided.

Africa Si(Gh)Ted In Spanish: An Introduction, Dorothy Odartey-Wellington, Dosinda Garcìa-Alvite

Faculty Publications

No abstract provided.

Puerto Rican Welfare Queens And The Semiotics Ofrespectability: The Language Of Race, Class, Andgender, Mary Beaton

Faculty Publications

No abstract provided.

Association Between Sociodemographics And Change In Alcohol Or Tobacco Use Behaviors During The Covid-19 Pandemic, Selam Habtemariam, Chloe M. Hery, Xiaochen Zhang, Mengda Yu, Darren Mays, Toyin Adeyanju, Brittany Bernardo, Electra D. Paskett

Faculty Publications

No abstract provided.

Was There An Enthusiasm Gap? Examining Support For Donald Trump Among Evangelicals And Nonevangelicals, Alondra S. Pagán Márquez, Paul Djupe, Matthew Mettler, Jeffery J. Mondak

Faculty Publications

No abstract provided.

A Randomized Controlled Trial Of The Happy, Healthy, Loved Personalized Text-Message Program For New Parent Couples: Impact On Breastfeeding Self-Efficacy And Mood, Erin J. Henshaw, Marie Cooper, Teresa Wood, Sanchita Krishna, Marie Lockhart

Faculty Publications

No abstract provided.