Digital Commons Network^™

A Comment On Justice Thomas’S Commas, Erik M. Jensen

Faculty Publications

For some reason, Justice Thomas has taken to inserting commas in places they don’t belong. In particular, he writes one clause of a compound sentence, followed by a comma before any conjunction, and, then he throws in a comma after the conjunction as well (as I just did—incorrectly—for illustrative purposes). Or, he begins a sentence with a conjunction and then he routinely drops a comma after the conjunction (again, as I did incorrectly). This article explains the grammatical problem—with copious citations to texts on writing—and then ponders why the Justice is doing this. One hypothetical: as a good originalist, he …

Patient Autonomy, Public Safety, And Drivers With Cognitive Decline, Sharona Hoffman, Cassandra Burke Robertson

Faculty Publications

With a growing elderly population, cognitive decline in drivers has become a significant public safety concern. Currently, over thirty-two million individuals who are seventy or older have driver’s licenses, and that number is growing quickly. In addition, almost ten percent of U.S. seniors (those sixty-five and older) have dementia, and an additional twenty-two percent have mild cognitive impairment. Between a quarter and a half of individuals with mild to moderate dementia still drive. As cognitive abilities such as memory, attention, and decision-making skills deteriorate, a driver's ability to operate a vehicle safely can be compromised. This not only puts the …

Flood Risk And Mitigation Calculator Tool To Support Decision-Making For Enhancing Community Resilience: A Case Study Of The U.S.A. Gulf Coastal Region, Rubayet Bin Mostafiz, Ayat Al Assi, Arash Taghinezhad, Carol J. Friedland, Robert V. Rohli, Md Adilur Rahim, Christopher T. Emrich, Melanie Gall, Eric Johnson

Faculty Publications

Real-estate websites make it easy to find and access information about a home. Information on property value, square footage, number of rooms, quality of schools, crime rates, and more is readily available. Some of these platforms have begun integrating climate-related risks in generic ways. However, this information provides limited if any actionable value and is unlikely to guide people’s decision-making on buying or renting a home, deciding where to vacation, or investing in a property. Making residents aware of the natural hazard risks to which their homes may be exposed is an important component of making communities more resilient. Both …

The Excessive Fines Clause In The Federal Courts: A Quarter-Century Of Narrowing, Michael M. O'Hear

Faculty Publications

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined …

Housing Sexual Harassment: A Department Of Justice Case Study, Rigel C. Oliveri

Faculty Publications

Sexual harassment in housing-when tenants or prospective tenants are sexually harassed by their landlords, housing providers, or other people associated with their housing-is a clear national problem. In 2019 the Department of Justice (DOJ) and the Department of Housing and Urban Development (HUD) announced an initiative to bring attention to this issue, as well as a shared commitment to increased enforcement against harassers.

This enforcement push provides an opportunity for study. In particular, there are now a significant number of complaints and other litigation documents posted to the DOJ's website that provide a convenient and robust sample for analysis. The …

A Silence After Slaughter-House: Nineteenth-Century State Constitutional Substantive Rights, Liberties, And Privileges, Charles W. "Rocky" Rhodes

Faculty Publications

In rejecting federal constitutional challenges to the Louisiana legislature’s exclusive butchering grant in the Slaughter-House Cases, the United States Supreme Court opined that it was the states’ obligation to protect fundamental privileges, such as rights to acquire and possess property, engage in trade and commerce, and pursue happiness, subject only to those restraints necessary for the public good. But the states met this charge with silence. State courts across the nation consistently parroted Slaughter-House’s reasoning, even while occasionally acknowledging the decision did not bind their interpretation of state constitutional provisions guaranteeing fundamental rights, liberties, privileges, and immunities. Although two states …

Comparative Lessons For Enhancing Representation In The U.S. Judiciary - And Countering Democratic Decline, Shruti Rana

Faculty Publications

At this precarious moment for democratic institutions and the rule of law in the United States, this Essay draws upon efforts to build more representative judiciaries in other countries and in international fora to identify promising strategies for enhancing representation in the U.S. judiciary, particularly with respect to gender and parity. 23 It argues that efforts to enhance judicial representation and parity in the United States could benefit from incorporating and building upon international legal principles and the practices of international courts, institutions, and organizations with respect to parity and representation. Crucially, at the same time, efforts to ensure greater …

303 Creative, Exclusive Private Enforcement, And Blue-State Revenge, Charles W. "Rocky" Rhodes, Howard W. Wasserman

Faculty Publications

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this precludes federal rights-holders from vindicating their rights through pre-enforcement offensive litigation in federal court against the government or government officials responsible for enforcing the law. This threatens rights-holders with defending a state-court wave of costly and burdensome litigation to adjudicate the law’s constitutional validity.

Blue states and liberal scholars and advocates have sought a progressive counterpart targeting …

Abuse Of Contract: Boilerplate Erasure Of Consumer Counterparty Rights, Andrea Boyack

Faculty Publications

Contract law and the new Restatement of the Law of Consumer Contracts generally treats the entirety of a company’s boilerplate as presumptively binding. Entrusting the content of consumer contracts to companies creates a fertile legal habitat for abuse through boilerplate design.

There is no consensus on how widespread or severe abuse of contract is. Some consumer law scholars have warned of dangers inherent in granting companies unrestrained power to sneak waivers into their online terms, but others contend that market forces adequately constrain potential abuse. On the other hand, in the absence of adequate consumer knowledge and power, market competition …

Exploring Rubrics And Ai, Beth Bailey

Faculty Publications

In the evolving landscape of educational assessment, rubrics have long been considered essential tools that bridge the gap between subjective evaluation and objective measurement of student performance (Bean, 2011). As educational institutions increasingly embrace digital learning environments, the integration of artificial intelligence (AI) tools in rubric development can represent a significant advancement in assessment methodology. This paper explores the fundamental principles of rubric design, examines various types of rubrics, and investigates how AI tools can enhance the creation and implementation of effective assessment instruments.

The importance of clear, consistent, and fair assessment cannot be overstated in educational contexts. Rubrics serve …

Discriminating Alignment In The Innovation Sphere, Juliet P. Kostritsky

Faculty Publications

Contracts play an important role in innovation. As a result, some. scholars have proposed theories highlighting contract provisions as devices that can serve to informally enforce agreements and build trust between parties. Others emphasize the hierarchical provisions between firms to promote efficiency. Yet another group views these agreements as a mechanism to institutionalize learning and protect property interests. This Article offers a new theory. To understand a firm’s contractual choices and governance, we must look at how the same provisions in different contracts may have distinct meanings or operate differently in different contexts. So, scholars must give context to these …

Causation's Due Process Dimensions, Cassandra Burke Robertson, Charles W. "Rocky" Rhodes

Faculty Publications

For decades, courts have grappled with the tension between compensating victims of mass harms and maintaining fairness to defendants when causation is difficult to prove. This Article argues that the Supreme Court’s due process jurisprudence provides a relevant framework for navigating this tension. We contend that the Court over the last three decades has established a consistent Fourteenth Amendment due process approach in punitive damages and personal jurisdiction cases, which is rooted in antecedents tracing to the nineteenth century and relies on a nexus of interests that balances individual rights, state interests, and federalism concerns. This framework, we argue, has …

Money Moves: Taxing The Wealthy At The State Level, David Gamage, Brian D. Galle, Darien Shanske

Faculty Publications

It's widely understood today that inequality is a major social problem that in turn contributes to other crises. By most accounts, tax systems are supposed to be our engines of equality. Yet in today’s United States, state and local tax systems mostly do the opposite: they take a greater percentage of the resources of the poor and middle class than of the rich.

Perhaps surprisingly, the traditional view among fiscal policy experts has been that this state of affairs is correct. In this standard account, only national governments should impose progressive or redistributive taxes. While acknowledging that there would be …

The Gift Of Exit Financing, Robert W. Miller

Faculty Publications

Aggressive liability management exercises have spilled over into bankruptcy court and exit financing is often the prize in the center of the arena. Debtors no longer rely upon gifting, the traditional strategy for buying plan support. Instead, they can replicate gifting's benefits in a more defensible package by funneling discounted subscription rights to chosen constituencies as part of exit financing.

Recognizing exit financing's distortive power, courts responded by evaluating the quality of negotiations and reviewing precedent transactions. Meanwhile, commentators suggest heightened monitoring and informal guardrails. All of these approaches ignore the shortcomings of judicial valuation. Market testing is the only …

Reflections On The Importance Of Critical Theory To Teaching Environmental Law, Sean Kammer

Faculty Publications

The freedom of students to learn about critical approaches to understanding their world is under sustained political attack. In this time of increasing environmental peril and political dysfunction, Professor Sean M. Kammer reflects upon the importance of critical theory (including Critical Race Theory) to understanding—and ultimately redressing—the related problems of resource scarcity and environmental degradation. While these problems can surely be described in terms of “economic inefficiencies” or “ecological disturbances,” as they most often are, they must also be understood (and taught) as problems of colonial exploitation and violence. For example, one cannot understand Justice John Marshall’s discovery doctrine or …

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.

Finite Element Simulation Of Interstitial–Lymphatic Fluid Flow And Nanodrug Transport In A Solid Tumor: An Intratumoral Injection Approach, Gobinda Debnath, Buddakkagari Vasu, Rama Subba Reddy Gorla

Faculty Publications

Objective: This study presents a mathematical model and finite element simulations to investigate interstitial fluid flow and nanodrug transport in a solid tumor, incorporating transvascular exchange, convection–diffusion–reaction dynamics, and intratumoral injection mechanisms. Impact Statement: Optimizing nanodrug distribution remains a critical challenge in cancer therapy. The proposed model advances nanomedicine by enhancing the mechanistic understanding of nanodrug transport in a solid tumor. Introduction: Cancer, a global threat, often manifests as solid tumors driven by uncontrolled cell growth. The heterogeneous microenvironment, lymphatic drainage, nano-bio interactions, and elevated interstitial fluid pressure (IFP) hinder effective nanodrug delivery. Nanoparticle (NP)-based drug delivery systems offer a …

The Identity Factor, Jessica Feinberg

Faculty Publications

Identity development is one of the most important processes that occur during childhood. For certain populations of children, such as those who are LGBTQ+ or multiracial, the path to healthy identity development is substantially more complicated. These children must navigate the development of their identities while existing in a world in which they will frequently encounter a lack of societal understanding and acceptance. Children within these populations face elevated risks of short- and long-term harms, including suicidal ideation, depression, substance abuse, and low self-esteem. As a result, it is critically important that LGBTQ+ and multiracial youth receive support in developing …

Electing The Supreme Court, Dmitry Bam

Faculty Publications

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

International Law And The Rise Of Populism, Shruti Rana, Peter G. Danchin, Jeremy Farrall, Jolyon Ford, Imogen Saunders

Faculty Publications

Contemporary legal scholarship seeks to diagnose populist antagonism towards national and international law and warn about the challenges it poses to the cooperation needed to respond to global threats. What this scholarship overlooks, however, is the role that major shifts in international legal normativity and conceptions of global governance have themselves played in incubating the conditions far the rise of populism. Against the prevailing literature, this Article argues that the key to unlocking this puzzle is recognition that populism, rather than constituting an external social pathology, is a mode of politics arising internal to the intellectual history and practice of …

When Is Discrimination Harmful?, Sandra F. Sperino

Faculty Publications

In Muldrow v. City of St. Louis, the Supreme Court held that Title VII does not require a plaintiff to establish material harm to prove employment discrimination. Instead, any action that is negative and affects a term, condition or privilege of employment is sufficient, if the employer took the action because of a protected trait.

At first glance, Muldrow appears to be a middling case focused on a technical aspect of discrimination law. This Article argues that Muldrow has the potential to be one of the most important modern discrimination cases. If taken to its natural conclusion it will …

Legal And Policy Responses To Sexual Harassment In Housing, Rigel C. Oliveri

Faculty Publications

The sexual harassment of low-income women by their housing providers is a clear national problem that has only recently become the focus of coordinated nationwide enforcement efforts by federal agencies, including the Department of Justice. While these developments are welcome, the problem requires proactive responses as well. This Essay examines data from a study of all of DOJ's sexual harassment in housing cases and uses this information to identify the most problematic types of housing providers and the most common forms of harassment. Specifically, harassment appears to occur most frequently in private rental housing and is perpetuated by managers (usually …

Historical Practice At The Founding, Ryan Snyder

Faculty Publications

In recent years, the Supreme Court has increasingly relied on historical practice—actions other than judicial decisions that implement the law after its adoption. That creates tension with the Court’s professed adherence to originalism—the view that a law’s meaning is fixed at the time of its adoption. To resolve this tension, the Court and many scholars have embraced theories such as “liquidation,” which argue that the Founders themselves used practice to update or change the law’s meaning over time. But until now, no one has systematically examined whether the Founders accepted those theories.

This Article provides the first comprehensive analysis of …

Moore Questions, Some Answers: Fixing The Personal Tax System Despite Constitutional Constraints, David Gamage, John R. Brooks, Edward J. Mccaffery

Faculty Publications

Moore v United States was expected to rule on the constitutional necessity of the tax-law realization requirement originating from Eisner v Macomber, a potential impediment to progressive tax reform efforts aimed at shutting down the planning techniques of Buy Borrow Die. The various opinions in Moore, however, provided no definitive answer to this core question, instead leaving many more questions. Amid the lingering uncertainty, we argue that various responses to the problem of wealthy Americans’ not needing to pay any taxes remain possible after Moore. An incremental, “mix-and-match” approach to progressive tax reform may best suit the …

Church Autonomy, Textualism, And Originalism: Scotus's Use Of History To Give Definition To Church Autonomy Doctrine, Carl H. Esbeck

Faculty Publications

Church autonomy is a First Amendment doctrine altogether distinct from the more familiar causes of action brought under the Establishment Clause and the Free Exercise Clause. The principle of church autonomy was first recognized by the Supreme Court of the United States in the post-Civil War case Watson v. Jones, holding that civil courts must not be drawn into resolving religious questions or settling disputes over church polity. And early this century, in the unanimous decision Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the theory of church autonomy took on its most fully developed form as a constitutional immunity …

Is Verbal Rehearsal Strategic? An Investigation Into Overt Rehearsal Of Nameable Pictures In 5- To 10-Year-Old Children, Candice C. Morey, Angela M. Aubuchon, Meg Attwood, Thomas Castelain, Nelson Cowan, Davide Crepaldi, Emilie Fjerdingstad, Eivor Fredriksen, Chris Jarrold, Chris Koch, Jaroslaw R. Lelonkiewicz, Gary Lupyan, Whitney Mendenhall, David Moreau, Christina Schonberg, Christian K. Tamnes, Haley Vlach, Emily M. Elliott

Faculty Publications

Though verbal rehearsal is a frequently endorsed strategy for remembering short lists among adults, there is ambiguity around when children deploy it, and what circumstantial factors encourage them to rehearse. We recoded data from a recent multilab replication of a serial picture memory task in which children were observed for evidence of task-related speech or lip movements to extract finer-grained detail about how children spoke during the task. With these data, we aimed to better understand the manner in which children rehearse and the task scenarios which elicit overt rehearsal. Children in several countries from 5 to 10 years old …

Book Challenges And Censorship Attempts In Louisiana: A Case Study, Jennifer E. Steele

Faculty Publications

Book challenges and censorship have long played a significant role in the cultural and educational landscapes of the United States. In recent years, Louisiana has become a focal point in national conversations about intellectual freedom, public and school library governance, parental rights, and the political pressures surrounding children and young adult literature. This dynamic environment has led to significant debates about what materials should be accessible to young people, how libraries should be managed, and what role the state and local governments should play in determining the availability of information. The rise in book challenges across Louisiana reflects national trends …

Playing Politics With Traffic Fines: Sheriff Elections And Political Cycles In Traffic Fines Revenue, Min Su, Christian Buerger

Faculty Publications

The political budget cycle theory has extensively documented how politicians manipulate policies during election years to gain an electoral advantage. This paper focuses on county sheriffs, crucial but often neglected local officials, and investigates their opportunistic political behavior during elections. Using a panel data set covering 57 California county governments over four election cycles, we find compelling evidence of traffic enforcement policy manipulation by county sheriffs during election years. Specifically, a county's per capita traffic fines revenue is 9% lower in the election than in nonelection years. The magnitude of the political cycle intensifies when an election is competitive. Our …

Do Major Customers Affect Firms' Environmental, Social And Governance Activities?, Feng Dong, John A. Doukas, Stephanie Walton, Rongyao Gloria Zhang, Yiyang Zhang

Faculty Publications

We examine the role of major customers in shaping firms' environmental, social and governance (ESG) practices. We find that firms with major customer relationships undertake fewer ESG activities compared to those without such ties. The association is attenuated when institutional ownership is high, firms are less diversified, customers exhibit greater bankruptcy risk and lower switching costs and during periods of elevated equity market sentiment. Taken together, our findings highlight that reliance on a concentrated customer base can weaken firms’ incentives to engage in ESG practices, with important implications for supply chain sustainability.

The Work Of An Hour: A Case Study Of Propaganda, Michael F. Russo

Faculty Publications

This research paper discusses the messaging of United States President George W. Bush and his administration regarding the U.S. led invasion of Iraq. Transcripts of presidential communications, national news programs, and public opinion polls from 2001-03 were analyzed to identify patterns in these communications. This review demonstrated techniques similar to those used in historical propaganda campaigns to sway public opinion. The introduction and repetition of key terminology from the government was followed by magnification by television news programs. These messages were broadcast despite lack of evidence of Iraq’s involvement with the 9/11 attacks or their possession of weapons of mass …