Digital Commons Network^™

Debt, Work, And The State, Kate Sablosky Elengold

Faculty Publications

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.

This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the …

Text, Fairness, And Efficiency: The Case Against The Plausibility Standard For Affirmative Defenses, Jessica Marks, Marcus A. Gadson

Faculty Publications

Lower federal courts have struggled to answer the following question without any guidance from the U.S. Supreme Court: Does the Iqbal and Twombly plausibility standard apply to affirmative defenses? In this essay, we explain why the answer is no. We aim to provide practical guidance to the countless judges deciding whether to strike an affirmative defense. First, we argue that Rule 8’s text makes using the plausibility standard to evaluate affirmative defenses improper. Judges should pay especially careful attention to our textual analysis because the Supreme Court has placed great weight on the text’s plain meaning in recent civil procedure …

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 …

Government Lawyers, Ethical Dilemmas: The Case Of Herbert Wechsler And Japanese American Incarceration, Eric L. Muller

Faculty Publications

This essay examines ethical dilemmas facing government agency lawyers through two episodes from Herbert Wechsler’s wartime service as head of the DOJ War Division: overseeing the Supreme Court brief in Korematsu v. United States and administering the Renunciation Act of 1944 amid turmoil at the Tule Lake Segregation Center. In the Korematsu matter, Wechsler managed a brief that skirted the Army’s problematic “Final Report” claims (including shore-to-ship signaling), privileging institutional role fidelity over disclosure, and helping sustain a framework that justified mass removal of Japanese Americans. In the renunciation program, he chose to accept any “voluntary” citizenship renunciation regardless of …

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 …

Existing Personal Leadership Prototypes Versus Organizational Leadership Prototypes: How Individuals Manage Tensions Between Leading With Authenticity And Conformity During Their Socialization As Leaders In Organizations, Benjamin M. Galvin, Jeffrey S. Bednar, Archie Bates

Faculty Publications

Based on qualitative data collected at the United States Military Academy (West Point), this research enhances our understanding of how individuals manage tensions between leading with authenticity and organizational pressures for conformity, resulting from a lack of alignment between their existing personal leadership prototypes and organizational prototypes of leadership. Our theoretical model moves beyond existing research on leader identity construction− which largely treats individuals as blank slates as they construct who they will be as leaders in organizations− by highlighting how individuals learn to enact a leadership approach during socialization that fits within their personal zone of acceptable authenticity and …

Creating And Implementing An Inclusive Metadata Policy, Nicole Lewis, Jeremy Myntti

Faculty Publications

The BYU Library developed an Inclusive Metadata Policy for metadata creators to use when creating and remediating descriptions to be more inclusive. Accompanying the policy is a companion document with recommendations and examples, including links to many external resources. In addition to working with stakeholders in the library to develop the policy, we consulted with the University’s Office of Belonging. This presentation will describe the process we used to create the library policy and recommendations document and share information about how the policy has been implemented.

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 …

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.

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 …

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.

Data Literacy Competencies In Context: Employee Perspectives From The Workplace, Patricia Condon, Wendy G. Pothier

Faculty Publications

Data literacy is essential in today’s workplace, and professionals across roles and experience levels recognize its value. This article reports on findings from interviews with 16 supply chain and logistics professionals. The study examines how seven proposed data literacy competencies align with workplace needs, how employees address the data literacy gap, and how librarians can support workforce readiness. Findings highlight opportunities for libraries to bridge the data literacy gap through instruction and resources development that integrate technical and non-technical data skills with information literacy.

Approaching A Companion Document For Business: Applications Of The Framework In Business Information Literacy, Lumarie Guth, Ilana Stonebraker, G. Arave, Patricia Condon, Grace Liu, Wendy G. Pothier

Faculty Publications

Business librarians have yet to create a companion document to the ACRL Framework for Information Literacy for Higher Education but instead have developed a rich resource bank of instructional materials with examples of how the Framework can be practically applied in business librarianship.1 With the absence of a formal companion document, the authors of this chapter took a wide view to better understand how the Framework has been used by business librarians since its inception. In addition to the Framework, business librarians have sought to align their work with discipline-specific documents including the Association to Advance Collegiate Schools of Business …

Cultivating Plain Language Skills For Engineering Students, Catherine Wong, Cynthia Carlson

Faculty Publications

While engineers are learning the vocabulary of the profession, understandably, they want to practice, and perhaps show their professors that they are proficient. This leads to student writing that is overly complicated and full of jargon. This is not the type of document that would be clear to the public, or even to a professional outside of the narrowly focused field of the particular engineer. After graduation, engineers’ writing becomes exponentially more important. Often approval of projects relies on residents’ or clients’ understanding of engineers’ work. For example, an engineering firm completing an investigation of an important health concern such …

Research Report: Cold-Hardy Hydrangeas For Landscape And Cut Flowers, Rebecca G. Sideman, Kaitlyn Orde, Ella Lukacz, Cathy Neal

Faculty Publications

This research report describes the performance of several cold-hard “panicle” (H. paniculata), “smooth” (H. arborescens), and “oakleaf” (H. quercifolia) hydrangea as landscape plants and for cut flower production in Durham, NH. We established a replicated planting of sixteen newer hydrangea cultivars at Woodman Farm in summer 2020. Preliminary data from these young shrubs indicates that there are wide differences in flower production, stem quality, flowering time and duration, and postharvest floral quality – among other traits.

"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 …

Redesigning Executive Incentives: The Rising Role Of Subjective Performance Measures, Zackery D. Fox

Faculty Publications

Despite the growing use of subjective performance incentives used in executive bonuses, empirical evidence on their effectiveness remains inconclusive. This study explores three aspects of subjective metrics in bonus plan design: their prevalence, the goals they target, and their impact on managerial behavior and firm outcomes. First, I document 53.8 percent of CEO bonus plans include at least one subjective performance measure, and among these plans, an average of 38.9 percent of total bonus weight is allocated to these measures. Using machine learning, I show subjective metrics target incentives related to employees, firm culture, and executive performance. Second, using the …

The Influence Of Financial Data Subscriptions On Analyst Research, Braiden Coleman, Travis Dyer, Mark Lang

Faculty Publications

We use disclosed “source” data from analyst reports to infer brokerage financial data subscriptions (FDS) and investigate their effects on analyst research. When brokerages add FDS, their analysts’ forecast accuracy increases. Effect sizes are at least as large as those for analyst experience, busyness, and brokerage size. Benefits are largest for less experienced and busier analysts with less private access to management forecasting over longer horizons. Although adding new FDS benefits individual analysts, there is substantial overlap in FDS across brokerages, leading to homogenized market views. Specifically, when brokerages have overlapping FDS, their analysts’ forecasts, timing, boldness, recommendations, report content, …

The Future Performance Implications Of Non-Gaap Motivated Investment, Minkwan Ahn, Theodore E. Christensen, Ryan G. Johnson, Melissa F. Lewis-Western

Faculty Publications

We investigate whether consistent non-GAAP reporting is associated with investment efficiency. Prior research finds a positive association between non-GAAP reporting and investment levels, concluding that it represents overinvestment. We corroborate this positive association, but additional tests are not consistent with the conclusion of inefficient overinvestment. Specifically, we explore the relation between investment and future cash flows as a proxy for the realization of investments in positive net present value projects. We find that the investments of firms that consistently report non-GAAP metrics are associated with similar or higher future cash flows than the investments of firms reporting only GAAP earnings, …

Internally Stowed, Radially Deployed Radiator Panels For Passive Cubesat Thermal Control, Josh R. Cannon, Kyle N. Havey, Noah S. Housley, Rydge B. Mulford, Brian D. Iverson

Faculty Publications

CubeSats experience significant thermal loads due to solar irradiation and the dissipation from electrical components. The high heat dissipation per unit volume can lead to mission failure if not properly managed. Deployable radiators that are externally stowed and passively actuated in response to changes in CubeSat temperature have been explored as a viable solution. This work describes a radially deployed fin array that is stowed within the CubeSat body when the required heat dissipation is low and passively deploys when the required heat dissipation is high. Internal stowage improves thermal transport to the deployable fins and minimizes heat loss when …

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control. …

From Myriad To Moderna: The Modern (Bio)Pharmaceutical Company, Ana Santos Rutschman

Faculty Publications

This Article examines the emergence of two modern pharmaceutical companies: Myriad and Moderna. After providing a brief background on each company, this Article contrasts them across the following areas: the technologies they have brought to market; their location; their start-up stages and the role that venture capital played in catalyzing their evolution from start-ups to large corporate structures; their relationships with other entities in the private sector, in academia and in the public sector; and their intellectual property and licensing strategies.

Scrutinizing Transgender Healthcare Bans Through Intersex Exceptions, Holning Lau, Barbara A. Fedders

Faculty Publications

Major professional medical organizations—for example, the American Academy of Pediatrics, American Medical Association, and Endocrine Society—consider gender-affirming care to be safe and, at times, essential for vulnerable transgender youth. Despite these benefits, 26 states have banned gender-affirming care for minors. Proponents of these bans raise concerns about potential medical harms, the irreversibility of treatments, and the adequacy of informed consent.

Every state ban includes an exception for so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary. The procedures are rarely medically necessary, but proponents of the surgeries contend …

Retrenchment By Division: The New Law And Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Faculty Publications

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Plastics, Carbon, Politics, And Experimentation In Environmental Governance, Donald T. Hornstein

Faculty Publications

This Article analyzes two major international environmental negotiations that concluded in late 2024 and uses them to explore emerging directions in plastics policy, carbon markets, and experimental forms of environmental governance. It examines the redesign of global carbon offset markets following the adoption of Article 6 mechanisms at COP 29, highlighting how new international standards and domestic U.S. initiatives seek to address longstanding concerns about offset quality while insulating climate policy from drastic federal political swings. The Article then evaluates the failed Busan negotiations toward a global plastics treaty, explaining how disagreements over production caps, consensus procedures, and the complexity …

Reflections On The Ferguson Report, Eisha Jain

Faculty Publications

This Essay reflects on the significance of the Investigation of the Ferguson Police Department by the Civil Rights Division of the Department of Justice (“Ferguson Report”). The Ferguson Report is a valuable teaching tool for criminal procedure because it documents detailed cases of police misconduct. But it also reveals how many deeply intrusive and over-reaching policing practices are not, in fact, unconstitutional. Reading the Report offers a window into how the law can enable misconduct, and it reveals how little opportunity the community affected had to create change.

Winning By Losing: The Strategy Of Adverse Private Letter Rulings, Noah Hertz Marks

Faculty Publications

Every year, the Internal Revenue Service (IRS) issues hundreds of Private Letter Rulings (PLRs) responding to formal taxpayer inquiries about how tax law will apply to their proposed situations and transactions, which functionally bind the IRS with respect to the taxpayer. Although the Internal Revenue Code formally forbids relying on PLRs as precedent, taxpayers and practitioners closely monitor and structure their operations and advice around PLRs. Taxpayers can withdraw a PLR request at any time for any—or no—reason, and they generally know in advance whether the PLR will be favorable or adverse. Conventional wisdom assumes adverse PLRs should be extremely …