Digital Commons Network^™

Transfer Learning For Thickener Control, Samuel Arce Munoz, John Hedengren

Faculty Publications

Thickener control is a key area of focus in the minerals processing industry, particularly due to its crucial role in water recovery, which is essential for sustainable resource management. The highly nonlinear nature of thickener dynamics presents significant challenges in modeling and optimization, making it a strong candidate for advanced surrogate modeling techniques. However, traditional data-driven approaches often require extensive datasets, which are frequently unavailable, especially in new plants or unexplored operational domains. Developing data-driven models without enough data representative of the dynamics of the system could result in incorrect predictions and consequently, unstable response of the controller. This paper …

Public Trials And Plain Error, Stephen Smith

Faculty Publications

Courts are divided on the question of how Sixth Amendment public trial violations should be evaluated on appeal when a criminal defendant fails to object at trial to a courtroom closure. Typically, failing to object triggers plain error review on appeal, which demands a higher threshold of harm to obtain reversal compared to when an objection has been made at trial. Should this type of review also apply in its usual form to public trial errors? The article concludes that it should, despite the fact that public trial violations are considered “structural,” and, when properly preserved, do not require a …

Between Pedagogical Content Knowledge And Confidence: A Case Study Of Pronunciation Training And Teacher Preparation, Lena Barrantes-Elizondo, Joshua Gordon

Faculty Publications

While many teachers do not feel confident teaching pronunciation because of limited preparation in different areas, research has demonstrated positive effects of training in pronunciation pedagogy, as teachers who receive such training develop cognitions (i.e., knowledge, beliefs, thoughts, actions) that align with current tenets of pronunciation pedagogy. Drawing on this assertion, this paper reports the results of a qualitative case study with five pre-service teaching-English-to-speakers-of-other-languages (TESOL) teachers enrolled in a pedagogical pronunciation course as part of their teacher training program. The study’s main purpose was to understand the role of training in developing content knowledge (CK) and pedagogical content knowledge …

“The Centrality Of ‘Life’ For Johannine Ethics”, Craig R. Koester

Faculty Publications

Jan van der Watt has described ethics as rational and systematic reflection on actions that are deemed positive or negative. Basic questions involve the point of departure and the aim of ethical action. He rightly identifies God as the authoritative center for Johannine ethics and makes two observations that warrant further development. First, as the point of departure, “God is the living God (6:57), the God who is life and gives life,” and Jesus too “is and brings life.” Second, in “line with the task of Jesus, the aim of believers is to give, sustain, and promote life.” “Promoting life …

Injunctive Restraint, Cassandra Burke Robertson

Faculty Publications

Preliminary injunctions against government action have evolved from extraordinary remedies into routine instruments of political contestation, with both Republican and Democratic administrations finding their initiatives halted by nationwide judicial orders. These injunctions serve vital functions in our constitutional system—preventing irreparable harm to fundamental rights and providing necessary checks on executive power in an era of congressional gridlock. Yet their increasing use has generated legitimate institutional concerns, particularly when a single district judge, often selected through strategic forum shopping, can unilaterally suspend national policies of significant importance. This Article examines this tension between the necessary role of nationwide injunctions in protecting …

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 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 significant implications …

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 …

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 …

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 …

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, …

An House For The Lord: Solomon's Temple And Temple Worship In Ancient Israel, Dan Belnap

Faculty Publications

It would not be exaggeration to say that at the center of Old Testament history and theology is covenantal worship and the temple. From the Garden of Eden to the altars constructed by Abraham and the patriarchs, and the portable tabernacle of Moses, the concept of sacred space plays a fundamental role throughout biblical history and in the life of ancient Israel. But during the period of the monarchy, it became possible to construct a permanent house for the Lord. Thus, the construction and dedication of the temple are the primary subject within Solomon’s narrative arc. This chapter explores the …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Preserving The Future Of Juries And Jury Trials, Paula Hannaford-Agor

Faculty Publications

Amid rapid technological and social change, a new initiative explores how judges, court staff, trial lawyers, and other justice system stakeholders can preserve juries and jury trials, strengthen public trust, and remain a pillar of democracy.

In 2024, the National Center for State Courts (NCSC) launched Preserving the Future of Juries and Jury Trials, a project that built on Just Horizons’ methodological foundation of strategic foresight and its premise that data-driven public services and sociopolitical discord have the greatest potential impact on court operations. For this project, NCSC imagined how these trends would affect juries and jury trials in each …

Carceral Bonds, Tyler E. Dougherty

Faculty Publications

Over the past 50 years, the U.S. financed a massive physical and fiscal expansion of prisons via the municipal bond market—with devastating results. This project is the first to shine a light on the role of municipal debt in state-level carceral decision making, spotlighting the ways that the municipal bond market affects states’ capacities to incarcerate.

This Article argues that the two primary controls of states’ use of the carceral bond market—(1) market discipline and (2) states’ fiscal constitutions—are particularly ineffective at limiting states’ spending on prisons. This failure to restrain states’ spending through the carceral bond market enables private …

In Through The Side Door: Anti-Asian Nativism, U.S. Immigration, And Foreign Policy—A Legal History And Case Study, Deenesh Sohoni, Vivian E. Hamilton, Chinua Thelwell

Faculty Publications

The 19th- and early 20th-centuries were marked by pervasive anti-Asian sentiment, and antipathy towards people of color more generally. Giving legal effect to the anti-Asian nativism prevalent at the time, U.S. policies prohibited most Asian immigration and naturalization. In particular, immigration laws sought to exclude Asian laborers and working-class immigrants from entry. During the same period, however, the federal government determined that other Asian visitors—especially Chinese government officials, merchants, religious leaders, and students—could be useful in advancing U.S. political and economic interests abroad. Thus, in marked contrast to its inhospitable treatment of their working-class counterparts, U.S. policy facilitated the entry …

The Case For Specific Performance Of Personal Service Contracts, Kimberly D. Krawiec, Nathan B. Oman

Faculty Publications

The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will …

Against The Sliding Scale, Alan J. Meese

Faculty Publications

Gavil and Salop claim that the Chicago School’s “conservative critique of antitrust law” has peddled numerous pro-defendant economic assumptions, misleading courts in their assessment of alleged exclusionary conduct. The resulting legal standards, they say, require plaintiffs to adduce too much evidence to establish a prima facie case, for instance, producing false negatives and thus allowing restraints that injure purchasers to avoid condemnation. Drawing on decision theory, they propose reforms to the rule of reason analysis applied to exclusionary agreements to extirpate the Chicago School’s baneful influence. In suggesting these reforms, they hope sometimes to alter the parties’ respective burdens of …