Digital Commons Network^™

Facts, Policy, And Discretion, F. Andrew Hessick, Carissa Byrne Hessick

Faculty Publications

Presidents, prosecutors, and judges often announce policies on how they will make discretionary decisions. These policies have met the criticism that discretion must be the product of an assessment of the particular facts of a case. Decisionmakers cannot base discretionary decisions on policy considerations, nor can they adopt policies stating how they intend to exercise their discretion. To do so, the argument goes, does not constitute an exercise of discretion, but rather an abdication of it.

This Article argues that this criticism misunderstands discretion. Discretionary decisions must rest on reasons, and reasons necessarily appeal to principles and policies that are …

Civil Death By A Thousand Cuts, Eisha Jain

Faculty Publications

Commentators have leveled trenchant critiques of collateral consequences of criminal conviction, analogizing them to a form of “civil death.” This Essay develops the related concept of “civil death by a thousand cuts” in two senses. First, penalties such as voting bans or deportation after a conviction are often just the tip of the iceberg. Second, a system of far-flung, intertwined civil and criminal penalties portends the death of a civil society capable of recognizing and mediating excessive penalties. Recognizing how these penalties operate—and how difficult they can be to address—is a critical step toward creating a more proportionate criminal legal …

A New 17 U.S.C. § 108a: Restoring The Intellectual Property Clause's Balance In Copyright Consideration Of Digital Disruption And The Prevalence Of Onerous Licensing Practices, Caroline L. Osborne

Faculty Publications

Accessibility of knowledge and control over information is key to an informed public and democracy. The founding fathers recognized the benefits of an informed citizenry, enshrining this concept in the Intellectual Property Clause of the Constitution. Such a clause created a delicate balance between creator and consumer, incentivizing creation for the benefit of society. The beauty of the Clause is the concept of balance. Balance resting delicately on the fulcrum with the dual requirements of reward for creation and benefit to society. The evolution of the means and formats in which information is delivered to the consumer in the creation …

Government Religious Speech And The Establishment Clause, Mark Storslee, Michael Helfand

Faculty Publications

The government says religious things. From monuments and holiday displays to legislative prayers, religion saturates the government’s public voice. But how can that be permissible when the Establishment Clause, at least in theory, indicates the government should be religiously neutral?

So far, the Supreme Court’s attempts to address the puzzle have come up short. Early on, the Court suggested that seemingly all government speech must be secular, or that it refrain from “endorsing” religion. But the Court never consistently enforced those limits, struggling to reconcile them with America’s historical experience. And in recent years, the Court has rejected those approaches …

Forum Shopping, Statutes Of Limitations, And Borrowing Statutes, John F. Coyle

Faculty Publications

When a claim is stale in one state but timely in another, a rational plaintiff will always file a lawsuit in the latter jurisdiction. To discourage plaintiffs from shopping around for the longest statute of limitations, thirty-six states have enacted laws known as borrowing statutes. A borrowing statute directs the state’s courts to apply the shorter statute of limitations of another state—typically the one where the cause of action arose—to bar the plaintiff’s claim.

The conventional wisdom holds that borrowing statutes merely restrain plaintiffs from filing lawsuits in out-of-the-way jurisdictions with no connection to the lawsuit. This Article reveals that, …

The Right To Seek Joy, Tyler Rose Clemons

Faculty Publications

Within the past three years, roughly half of American states have restricted access to gender-affirming medical treatment for children. In this article, I argue that these bans violate transgender children’s right to liberty guaranteed by the Fourteenth Amendment’s Due Process Clause. I do so by excavating the Framers’ understanding of liberty as the right to seek joy. Rooted in the philosophies of John Locke and Epicurus, the Framers understood liberty as the right to make important life decisions according to one’s subjective preferences without undue interference from the government. Based on this understanding, I develop a new framework for substantive …

Abuse Of Contract: A Proposal For A New Cause Of Action, Miriam A. Cherry

Faculty Publications

With the growth of online commerce and the platform economy, many companies are including provisions in their online terms and conditions that extend far beyond what reasonable consumers would expect. Some terms and conditions purport to bind customers to separate contracts in future transactions that have little to do with the first contract. Other boilerplate purports to cover family members of the customer who created an account. Some retailers have argued that people shopping in their brick-and-mortar stores are subject to terms and conditions because those shoppers had at some point previously created an online account. For example, Disney argued …

Private Prosecution And The State, Anna Arons

Faculty Publications

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces …

Challenging Agency Deregulation, Todd S. Aagaard

Faculty Publications

The administrative state is experiencing two seismic shifts. First, in recent years, the Supreme Court has issued a series of decisions that significantly curtailed the powers of administrative agencies. Second, President Donald Trump is using administrative agencies to aggressively deregulate in his second term. The conventional wisdom is that the Supreme Court’s recent precedent will facilitate the Trump Administration’s deregulatory agenda.

This Article argues the opposite. Instead of promoting agency deregulation, recent Supreme Court precedent restraining agency authority provides a potentially powerful basis for challenging agency deregulation as administrative overreach. Time and time again, the Court has taken agencies to …

Psychological Distance And Auditor Assessment Of The Severity Of An Internal Control Deficiency, Scott C. Jackson, John D. Keyser, Douglas F. Prawitt

Faculty Publications

Auditors often underestimate the severity of internal control deficiencies, particularly when associated misstatements are immaterial. We find that auditors are more likely to correctly classify a material weakness when no misstatement information is provided than when misstatement information is available, and that this finding may unconsciously arise from auditors’ construal level in judging control deficiency severity. Through a series of experiments, we manipulate misstatement information related to an internal control deficiency designed to represent a material weakness. We hold the size of potential misstatement constant and find that auditors and graduate auditing students are less likely to correctly assess the …

Who Invests In Crypto? Revealed Types And Economic Drivers Of Retail Investment, Darren Aiello, Scott R. Baker, Tetyana Balyuk, Marco Di Maggio, Mark J. Johnson, Jason Kotter

Faculty Publications

Using transaction-level data from millions of U.S. households, we provide the first comprehensive characterization of retail cryptocurrency investment. Crypto investors are distinguished not by demographics but by a latent behavioral type revealed through consumption patterns—one that also predicts higher participation in traditional equity brokerages. The economic forces driving crypto investment, including income shocks, workplace peer effects, and inflation exposure, mirror those driving traditional investment. Crucially, households whose consumption matches the crypto-investor profile are more responsive to all these drivers across both asset classes, suggesting that investor type is a more relevant distinction than asset class.

Workshop Outcomes Report: 2nd International Workshop On Seismic Resilience Of Arctic Infrastructure And Social Systems, Majid Ghayoomi, Daniela Morganti

Faculty Publications

The report provides an overview of the second international workshop on Seismic Resilience of Arctic Infrastructure and Social Systems. The report discusses agenda, workshop activities, interdisciplinary working groups, and results. It ends with several strategic questions and investigation plans that were developed as part of the workshop activities.

An Algorithm For Extracting Bathymetry From Icesat-2 Data That Employs Structure And Density Using Concentric Ellipses, Yuri Rzhanov, Kim Lowell

Faculty Publications

The ICESat-2 satellite collects LiDAR data along linear orbital tracks using a photon-counting green wavelength (532.27 nm) instrument. The utility of combining ICESat-2 data with satellite imagery for training and subsequently applying satellite-derived bathymetry models to provide estimates of shallow water depth is well-established. However, automating and improving the accuracy of the identification of ICESat-2 photon events (PEs) representing bathymetry remains a challenge. This article presents an algorithm for automated extraction of PEs reflected from the ocean floor (rather than the ocean surface or noise in the water column). The algorithm is unique in examining both the density of PEs …

Sexual And Bystander Harassment Among Part-Time Employees: Effects On Work Attitudes, Stress, And Withdrawal, Robert T. Hitlan

Faculty Publications

This study investigated the impact of sexual and bystander harassment experiences on work attitudes, stress, withdrawal, and psychological well-being of part-time employees. Participants included 314 female employees who worked part-time in their organizations. All participants completed a computer-administered workplace experience survey assessing various aspects of their work environment, including personal and bystander harassment experiences, work-related attitudes (supervisor satisfaction, coworker satisfaction, and general job stress), work behaviors (work and job withdrawal), and psychological well-being. Experiences of sexual harassment and bystander harassment were predicted to be negatively related to satisfaction and psychological health and positively related to stress and withdrawal. Both forms …

The Double Patenting Puzzle, Michael Risch

Faculty Publications

It’s a simple rule: one patent per invention. This is easy to enforce when patent claims in two patents are identical, but what if the second patent claims something close but not quite the same? For more than 150 years, courts have held that obvious improvements over the prior art cannot be patented. But when inventors seek a small improvement in their own follow-on patents, there may not be any prior art because the law does not typically count inventors’ work against themselves. Inventors can include two similar claims in the same patent without objection, but if they split them …

Elucidating The Role Of Marine Benthic Carbon In A Changing World, Cristina Schultz, Jessica Y. Luo, Damian C. Brady, Robinson W. Fulweiler, Matthew H. Long, Colleen M. Petrik, Jeremy M. Testa, Heather M. Benway, David Burdige, Marta M. Cecchetto, Isa Elegbede, Natalya Evans, Alexandra Frenzel, Kayla Gillen, Lisa C. Herbert, Heidi K. Hirsh, Gennadi Lessin, Lisa Levin, Kanchan Maiti, Sairah Malkin, Sarah L. Mincks, Stanley Nmor, Anh Pham, James Pinckney, Christophe Rabouille, Shaily Rahman, Subhadeep Rakshit, Nicholas E. Ray, Dalton K. Sasaki, Samantha A. Siedlecki, Christopher Somes, Aron Stubbins, Olivier Sulpis

Faculty Publications

The ocean plays a major role in controlling atmospheric carbon at decadal to millennial timescales, with benthic carbon representing the only geologic-scale storage of oceanic carbon. Despite its importance, detailed benthic ocean observations are limited and representation of the benthic carbon cycle in ocean and Earth system models (ESMs) is mostly empirical with little prognostic capacity, which hinders our ability to properly understand the long-term evolution of the carbon cycle and climate change-related feedbacks. The Benthic Ecosystem and Carbon Synthesis (BECS) working group, with the support of the US Ocean Carbon & Biogeochemistry Program (OCB), identified key challenges limiting our …

Judge Platt Potter: Politics And Principle In Interbranch Conflict, Aaron-Andrew P. Bruhl

Faculty Publications

During the previous Congress, some commentators called on the Senate Judiciary Committee, then controlled by Democrats and chaired by Senator Dick Durbin of Illinois, to demand the testimony of Supreme Court Justices Clarence Thomas and Samuel Alito over allegations of ethical breaches, securing their presence by subpoena if necessary. The Committee did not subpoena the Justices, with Durbin citing the likely lack of sufficient votes and worrying that the Senate would not be able to enforce the subpoenas anyway. During the same Congress, Durbin asked Chief Justice Roberts to testify about judicial ethics, an invitation that Roberts declined.

These incidents …

Rethinking Juror Impartiality, Anna Offit

Faculty Publications

Jury impartiality in the contemporary court often justifies the perpetuation of exclusionary selection practices that make juries more—not less—biased. This Article calls for a rethinking of this important but flawed concept. Constitutional interpretations and conceptions of “impartiality” frame it as a transient orientation toward particular evidence or parties. Yet, during voir dire, the prevailing conception of jury impartiality is that it is an immutable character trait that must be discovered—if not created—by professional legal actors. What voir dire creates is not an impartial jury, but precisely the opposite: a venire shaped by the strategic biases of lawyers.

This Article offers …

The Post-Chevron Law Of Deference For Investor-State Arbitration, Won L. Kidane

Faculty Publications

In Loper Bright Enterprises v. Raimondo, the United States Supreme Court clarified the “law of deference” built “on the foundation laid in Chevron.” The American conception of the law of deference, long solidified as the Chevron doctrine, has had extraordinary resonance, having been cited in at least 18,000 cases and 22,000 publications over a period of forty years.

The Court’s overruling of the two-step Chevron analysis for the resolution of statutory ambiguity is the most obvious outcome and is likely to attract the most attention. There is, however, an obscure aspect of the Court’s overruling of Chevron: the clarification of …

Missing Children Discrimination, Itay Ravid, Tanisha Brown

Faculty Publications

The problem of missing children in America—many of whom are victims of crime—has haunted society for decades. In response, a range of laws and policies have emerged, culminating in the nationwide adoption of the AMBER Alert system in the early 2000s. While often hailed as a success, this Article reveals a sad truth: Not all children benefit equally from AMBER. In particular, missing Black children are systematically underserved by the system, which ultimately contributes to the disproportionate impact of the missing children crisis on Black communities. While this issue received limited scholarly attention, states have recently started recognizing it. In …

The Tamads2-Tatbl21 Module Enhances Wheat Resistance To Stripe Rust By Activating Tagkl-Mediated Immunity, Shijia Zhao, Hao Chu, Yanan Lu, Jiaqi Chen, Xu Wang, Guangxiang Tian, Mingjing Zhang, Pengyu Song, Yanhui Zhang, Guihua Bai, Gangming Zhan, Zhensheng Kang, Wenming Zheng, Zhengqing Fu, Na Liu

Faculty Publications

Wheat stripe rust (Puccinia striiformis f. sp. tritici, Pst) poses a catastrophic threat to global food security. While MADS-box transcription factors regulate development and abiotic stress, their roles in plant-pathogen immunity remain enigmatic. In this study, we identified TaMADS2, a Pst-induced MADS-box gene, as a positive regulator of wheat resistance. Functional analyses demonstrated that TaMADS2 overexpression significantly enhanced Pst resistance, whereas its knockdown rendered wheat more susceptible. Further investigation revealed that TaMADS2 interacts with trichome birefringence-like protein 21 (TaTBL21) to activate glycerol kinase-like (TaGKL) expression. Silencing TaGKL in wild-type or TaMADS2-overexpressing lines …

Sinkhole Microcosms: Understanding Persistence Of Place Through Variable Cultivation Strategies In Northeastern Yucatán, Mexico, Maia Dedrick, Patricia A. Mcanany, Adolfo Iván Batún Alpuche, Elizabeth A. Webb, Isaac A. Hart

Faculty Publications

Sinkholes contributed to persistent human inhabitation of the northern Yucatán peninsula of Mexico for more than two millennia. Building on previous work on the use of sinkholes central to the town of Tahcabo and elsewhere in the Maya area, this study presents pollen, soil carbon isotope, radiocarbon, and artifactual evidence from four geomorphic features. They include the perennially wet cenote situated in the town center and three dry sinkholes (rejolladas) located in the commonly held lands (ejido) of the town. These features demonstrate striking variability in multispecies engagements with and within sinkholes, especially over the past …

Constraints On Inner Core Composition From Seismicanisotropy: The Importance Of Light Elements And Nickel, Jada Bollmeyer, Daniel A. Frost, Prajna Paramita Das

Faculty Publications

The inner core is seismically anisotropic, with PKIKP waves traversing the inner core parallel to the rotation axis faster than those in the equatorial plane. This anisotropy increases with depth into the inner core and may result from alignment of iron crystals deformed during inner core growth. Using previously calculated elastic properties of iron, we seek to determine the most likely iron-light element alloy (FeC, FeO, FeS, or FeSi). For each FeX alloy, we interpolate elastic tensors across the pressure and temperature range of the inner core and model the anisotropy resulting from flow during core growth. Lastly, we compare …

Environmental, Social, And Governance (Esg) Research: A Systematic Review Of Recent Trends (2020–2024), Jiyeon Kim Ph.D., Wooyoung Yang

Faculty Publications

The 2020–2024 period marks a pivotal era in sustainable development, characterized by significant regulatory developments, including the EU Corporate Sustainability Reporting Directive (CSRD), the International Sustainability Standards Board standards, and the introduction of mandatory ESG reporting requirements worldwide. This review examines how recent policy changes have reshaped the linkages between ESG and sustainability. Following the PRISMA 2020 guidelines, we conducted a systematic review examining empirical studies of ESG–sustainability performance relationships published between 2020 and 2024. Studies examined the quantitative relationships between ESG sustainability performance and publicly traded corporations. Quality assessment employed the adapted Newcastle–Ottawa Scale with sustainability-specific criteria. From 2847 …

Sunburned Plankton: Ultraviolet Radiation Inhibition Of Phytoplankton Photosynthesis In The Community Earth System Model Version 2, Joshua Coupe, Nicole S. Lovenduski, Luise S. Gleason, Michael N. Levy, Kristen Krumhardt, Keith Lindsay, Charles Bardeen, Clay Tabor, Cheryl Harrison, Kenneth G. Macleod, Siddhartha Mitra, Julio Sepúlveda

Faculty Publications

Ultraviolet (UV) radiation can damage DNA and kill cells. We use laboratory and observational studies of the harmful effect of UV radiation on marine photosynthesizers to inform the implementation of a UV radiation damage function for phytoplankton photosynthesis in a modified version of the Community Earth System Model version 2 (CESM2-UVphyto). CESM2-UVphyto is capable of simulating UV inhibition of photosynthesis among modeled phytoplankton and ocean column penetration of UV-A, UV-B, and UV-C radiation. We conduct a series of simulations with CESM2-UVphyto using the Marine Biogeochemistry Library (MARBL) ecosystem model to understand the sensitivity of phytoplankton productivity to UV radiation. Results …

A Fragility Framework For Surface Erosion With Application To Earthen Dam Breaching, Ege C. Kurter, Ayman Mokhtar Nemnem, M. Hanif Chaudhry, Jasim Imran

Faculty Publications

Overtopping failures of earthen dams are a growing concern under intensifying extreme rainfall. This study introduces a probabilistic fragility framework that combines hydrologic modeling, hydraulic analysis, and soil erodibility to assess erosion risk under uncertain load and resistance. Fragility curves derived from Monte Carlo simulations quantify erosion initiation and severity as functions of rainfall depth and excess shear stress. Application to multiple dams affected during the 2015 South Carolina floods reproduces observed outcomes ranging from complete breach to no damage. The framework also captures cascading effects, where failure of an upstream structure increases downstream loading and erosion potential. Compared with …

Variation In Cycling Exercise Mechanical Efficiency In The Heritage Family Study, Angelo Tremblay, Claude Bouchard, Mark A. Sarzynski Facsm, James S. Skinner, Élisa Marin-Couture, Patrick Schrauwen, Guy Thibault, Marie-Eve Mathieu, Louis Pérusse

Faculty Publications

The objectives of the study were to assess the effects of cycling endurance exercise training and sex on cycling exercise mechanical efficiency (ME) and to explore its associations with body composition, glycemic profile, and skeletal muscle characteristics. Subjects were males (n = 371) and females (n = 465) of European (ED) and African descent (AD) of the HERITAGE Family Study. The measurements were repeated after a 20-week controlled endurance exercise program. A substudy involving 78 participants from 19 ED families was used to evaluate associations between skeletal muscle traits and variations in ME. An increase in ME of …

A Fragility Framework For Surface Erosion With Application To Earthen Dam Breaching, Ege C. Kurter, Ayman Mokhtar Nemnem, M. Hanif Chaudhry, Jasim Imran

Faculty Publications

Overtopping failures of earthen dams are a growing concern under intensifying extreme rainfall. This study introduces a probabilistic fragility framework that combines hydrologic modeling, hydraulic analysis, and soil erodibility to assess erosion risk under uncertain load and resistance. Fragility curves derived from Monte Carlo simulations quantify erosion initiation and severity as functions of rainfall depth and excess shear stress. Application to multiple dams affected during the 2015 South Carolina floods reproduces observed outcomes ranging from complete breach to no damage. The framework also captures cascading effects, where failure of an upstream structure increases downstream loading and erosion potential. Compared with …

Textualism Wins?: The Supreme Court’S 2024 Labor & Employment Law Cases, Nicole B. Porter

Faculty Publications

The Supreme Court decided five primary labor and employment law cases in 2024—two discrimination cases, two arbitration cases, and one labor law case. This article also discusses a sixth case, Loper Bright Enterprises v. Raimondo, because it will undoubtedly affect labor and employment law despite the facts and underlying issue having nothing to do with the workplace.

I was initially underwhelmed with this year’s cases. None of them addresses any major substantive labor and employment law issue. However, upon further consideration, the cases are noteworthy for three reasons. First, three of them are pro-plaintiff with outcomes that benefit workers— …

Under-Marketing Women’S Sport: The Gendered Labor Of Value Co-Creation In U.S. Women’S Soccer, Tarlan Chahardovali Ph.D., Joshua I. Newman Ph.D.

Faculty Publications

Research Question: This study explores how professional women soccer players in the U.S. perceived the role of institutional actors in value co-creation during a pivotal period in the sport’s development. It examines the marketing responsibilities players were expected to undertake and how this labor shaped their experiences and self-perceptions. Research Methods: Guided by value co-creation and value realization frameworks, this study draws on semi-structured interviews with 22 current and former professional women soccer players. Data were analyzed in two stages: first cycle coding, followed by pattern coding to consolidate labor themes into constructs reflecting athletes’ experiences of institutional support, promotional …