Digital Commons Network^™

Student Protests And “Fighting Words”: Critical Race Theory And The Evolution Of Hate Speech Codes On College Campuses, Mark C. Niles

Faculty Publications

Devastating Hamas attacks on Israeli civilians and military personnel in October 2023, and the Israeli military response to those attacks in Gaza, have given rise to protests around the world, notably on college campuses in the United States. These protests (on more than fifty campuses in all parts of the country) have in turn generated multiple allegations of antisemitic statements and conduct by protestors. Many high-profile university donors and board members, portions of the media, and some elected officials responded to these allegations by identifying perceived deficiencies in campus administrative responses to these complaints and to calls for more robust …

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 …

Restructuring Ruritania: Bankruptcy, Sovereign Debt, And The Equity Receivership, Nathan B. Oman

Faculty Publications

The traditional legal story of sovereign restructuring goes something like this: foreign governments cannot file for bankruptcy under domestic law. When faced with the need to restructure unsustainable debts, they must negotiate with each of their creditors. Since the late 1980s, private debt has been held by increasingly diverse and dispersed bondholders, making renegotiation more difficult. Defaulting debtors face two basic problems: first, they have no process analogous to the automatic stay in bankruptcy, which can pause litigation by creditors and buy time for an orderly reorganization; second, and more importantly, they have no process analogous to the cramdown provisions …

New Threats To Campus Protest, Timothy Zick

Faculty Publications

This symposium Essay focuses on how universities responded, both initially and after the fact, to campus protests concerning the Hamas-Israel War. During those protests students and others erected encampments, held demonstrations, displayed signs, vandalized university property, and occupied buildings. Some protesters communicated anti-Semitic tropes and slogans. Although a few university leaders responded to the protests by negotiating with protest leaders, most relied on law enforcement and security to clear encampments and restore order. Since the initial protests, universities have adopted a spate of new policies that threaten campus protest. These measures include cancellation of already-permitted demonstrations, content-based speech restrictions, bans …

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 …

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. …

Studying Repeat Victimization: A Consideration Of Measurement Issues, Christi Metcalfe, Robert Brame, Tara E. Martin, Angela R. Gover

Faculty Publications

Decades of research have recognized the phenomenon of repeat victimization and its policy relevance. Although there are continuing efforts to explain the theoretical underpinnings of repeat victimization, there are still measurement-related issues that limit our understanding of the topic and ability to inform interventions, including varying operational definitions, data constraints, and sampling and nonsampling error. In this article, we review theoretical advances in the literature over the past decade, propose operationalizations that can foster greater consistency across studies, comprehensively assess the data constraints around commonly used public data sources to study repeat victimization, and empirically demonstrate how one of these …

The Kincare Craze In Child Protection: Romanticism, Subterfuge, And Racial Separatism, James G. Dwyer

Faculty Publications

Among recent developments in family law, the most prevalent issue on legislative agendas has been Kincare as an alternative to non-relative foster care when maltreated children cannot remain with parents. Long an available option legally but traditionally regarded with skepticism by child protection workers, Kincare is now idealized. A steady stream of state legislative bills aims to encourage or command child protection and foster care agencies to place maltreated children in the home of relatives or friends of their parents whenever one is available, ostensibly based on an assumption that this is categorically better for children than living with unrelated …

Climate Liberalism And Decarbonization, Jonathan H. Adler

Faculty Publications

Existing climate policy goals require dramatic and rapid reductions in greenhouse gas (“GHG”) emissions. Achieving such reductions within the desired time frame is a tremendous challenge, particularly through conventional regulatory approaches. The conventional approach to environmental problems is to treat such problems as “market failures” that can be corrected by government intervention, such as through regulation. Such approaches are constrained by various sources of government failure that are exacerbated by the scale and scope of the problem. The knowledge problem, administrative transaction costs, and limits on regulatory throughput capacity all hamper the use of traditional regulatory tools to address the …

Co-Parents With Benefits, Jessica Feinberg

Faculty Publications

The relationshipbetween individuals who share a common child merits significant legal and societal attention. An increasingly high percentageofchildren are being raisedby parents who are not married to each other, and modern social science research demonstrates that the quality of the relationship between co-parents has serious implications for children's well-being. When co-parentage is unaccompanied by marriage, however, the law historically has attachedfew, if any, rights and obligations to the relationship. This historical disregard for the relationship between non-marital co- parents fails to promote children's best interests. Children whose parents are not marriedto each other should not be excludedfrom the benefits that …

Partial Additionality: The Blunt Metric Distorting Carbon Market, Anthony L. Moffa, Joseph Newlen

Faculty Publications

The widespread recognition that climate change presents an existential threat to humanity has spurred the development of numerous technologies, regulatory structures, and voluntary actions aimed to mitigate the pending disaster.

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 …

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 …

Public Protest And Civil Unrest, Timothy Zick

Faculty Publications

Governments and officials must respond to protest-related civil unrest. How they do so is both an index of official respect for dissent and a measure of how committed governments are to democratic accountability. This Article examines official responses to civil unrest in connection with several recent high-profile demonstrations. In general, it concludes that governments and officials have relied on aggressive and increasingly draconian measures to quell protest-related civil unrest. Among other things, they have invoked emergency powers and used aggressive protest policing methods; dispatched federal agency personnel and threatened to deploy military forces to police demonstrations; enacted successive waves of …

"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 …

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

Fairness Writ Large Or Small In International Criminal Justice, Nancy Amoury Combs

Faculty Publications

For this symposium, I was not assigned to talk about Megan [Fairlie]’s work per se, and so I initially planned to discuss something completely different. In the end, however, I came back to Megan’s work because I believe her scholarship provides a new way of thinking about the entrenched challenges currently facing our collective field of study: international criminal law and procedure.

As we all know, Megan was an accomplished comparativist, and her area of expertise was criminal procedure. Even more particularly, Megan specialized in the criminal procedure of the still relatively new international criminal courts and tribunals. She focused …

Mired In Meyer'S Mischief A Century After Fabrication Of Constitutional Parents' Rights, James G. Dwyer

Faculty Publications

The seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to …

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.

Categorical Perception Of The Index Finger As An American Sign Language Phonological Construct, Lareina Hingson, Jeffrey Jack Green, Brooklyn Lorenc

Faculty Publications

In American Sign Language, specific handshapes found in the manual alphabet and/or numbering system (such as the pointed index finger—the number “1”—and its bent counterpart—the letter “x”) are assumed to be phonologically distinct under the rationale that bentness of the finger(s) constitutes a phonemic distinctive feature. This study investigates this notion, building on previous behavioral studies of American Sign Language categorical perception of bentness of the index finger. We examined varying levels of bentness between 180◦ and 90◦ using a scale ranging from the signs BLACK and SUMMER in the standard dialect. Experiment 1 found that when presented with all …

Is Increased Mutation Driving Genetic Diversity In Dogs Within The Chornobyl Exclusion Zone?, Megan N. Dillon, Allison N. Dickey, Reade B. Roberts, Jennifer A. Betz, Timothy Mousseau, Norman J. Kleiman, Matthew Breen

Faculty Publications

Environmental contamination can have lasting impacts on surrounding communities, though the long-term impacts can be difficult to ascertain. The disaster at the Chornobyl Nuclear Power Plant in 1986 and subsequent remediation efforts resulted in contamination of the local environment with radioactive material, heavy metals, and additional environmental toxicants. Many of these are mutagenic in nature, and the full effect of these exposures on local flora and fauna has yet to be understood. Several hundred free-roaming dogs occupy the contaminated area surrounding the Chornobyl Nuclear Power Plant, and previous studies have highlighted a striking level of genetic differentiation between two geographically …

Is Increased Mutation Driving Genetic Diversity In Dogs Within The Chornobyl Exclusion Zone?, Megan N. Dillon, Allison N. Dickey, Reade B. Roberts, Jennifer A. Betz, Timothy Mousseau, Norman J. Kleiman, Matthew Breen

Faculty Publications

Environmental contamination can have lasting impacts on surrounding communities, though the long-term impacts can be difficult to ascertain. The disaster at the Chornobyl Nuclear Power Plant in 1986 and subsequent remediation efforts resulted in contamination of the local environment with radioactive material, heavy metals, and additional environmental toxicants. Many of these are mutagenic in nature, and the full effect of these exposures on local flora and fauna has yet to be understood. Several hundred free-roaming dogs occupy the contaminated area surrounding the Chornobyl Nuclear Power Plant, and previous studies have highlighted a striking level of genetic differentiation between two geographically …

Organic Alkalinity Distributions, Characteristics, And Application To Carbonate System Calculations In Estuarine And Coastal Systems, Christopher W. Hunt, Joseph Salisbury, Xuewu Liu, Robert H. Byrne

Faculty Publications

The capacity of aquatic systems to buffer acidification depends on the sum contributions of various chemical species to total alkalinity (TA). Major TA contributors are inorganic, with carbonate and bicarbonate considered the most important. However, growing evidence shows that many rivers, estuaries, and coastal waters contain dissolved organic molecules with charge sites that create organic alkalinity (OrgAlk). This study describes the first comparison of (1) OrgAlk distributions and (2) acid–base properties in contrasting estuary-plume systems: the Pleasant (Maine, USA) and the St. John (New Brunswick, CA). The substantial concentrations of OrgAlk in each estuary were sometimes not conservative with salinity …

The Boris Experience: Evaluating Omnichannel Returns And Repurchase Intention, Jianliang Hao, Robert G. Richey Jr., Tyler R. Morgan, Ian M. Slazinik

Faculty Publications

Researchers have examined the influence of the factors on reducing return rates in retailing over the years. However, the returns experience is often an overlooked way to drive customer engagement and repeat sales in the now ubiquitous omnichannel setting. The focus on returns prevention in existing research overshadows management’s need to understand better the comprehensive mechanics linking the customer in-store return experience with their repurchase actions. Recognizing the need to bridge different stages of the returns management process, this research aims to explore the facilitators and barriers of in-store return activities.

Progerin Can Induce Dna Damage In The Absence Of Global Changes In Replication Or Cell Proliferation, Liza A. Joudeh, P. Logan Schuck, Nina M. Van, Alannah J. Dicintio, Jason A. Stewart, Alan S. Waldman

Faculty Publications

Hutchinson-Gilford Progeria Syndrome (HGPS) is a rare genetic condition characterized by features of accelerated aging, and individuals with HGPS seldom live beyond their mid-teens. The syndrome is commonly caused by a point mutation in the LMNA gene which codes for lamin A and its splice variant lamin C, components of the nuclear lamina. The mutation causing HGPS leads to production of a truncated, farnesylated form of lamin A referred to as "progerin." Progerin is also expressed at low levels in healthy individuals and appears to play a role in normal aging. HGPS is associated with an accumulation of genomic DNA …

Utilizing Extractive Transportation Infrastructures For Subsistence Livelihoods: Experience Of Evenki Communities In Eastern Siberia, Vera Kuklina, Viktoriya Filippova, Natalia Krasnoshtanova, Antonina Savvinova, Viktor Bogdanov, Mariia Kuklina

Faculty Publications

The availability of natural resources drives the exploration and transformation of remote regions in the Arctic and beyond. Extractive infrastructure is one of the major sources of industrial development and environmental impact on landscapes. For Indigenous people, these landscapes are homely environments full of sentient beings, and for other local communities, they provide a wide variety of subsistence and hunting resources. While extractive infrastructure violence is the evident issue for many Indigenous communities, there are more complicated situations where extractive infrastructure is adopted and utilized for the subsistence and support of other human and more-than-human relations in local and Indigenous …

Truth In Advertising For Environmental Sustainability, Robin M. Rotman, Aidan David-Pennington

Faculty Publications

“Sustainability” is in—but what does that term mean, when applied to products, services or brands? This article explores existing Federal Trade Commission (“FTC”) oversight of “sustainable” claims in marketing, centering on the FTC’s Guidelines for the Use of Environmental Marketing Claims (often referred to as the “Green Guides”). It analyzes thousands of public comments filed in a recent FTC quasi-rulemaking docket to inform proposed revisions to the Green Guides. The article suggests that the FTC include guidance on “sustainable” claims in its next revision to the Green Guides, and further recommends that the FTC formally extend the Green Guides to …

Epitaxial Films And Devices Of Transparent Conducting Oxides: La:Basno3, Prosper Ngabonziza, Arnaud P. Nono Tchiomo

Faculty Publications

This paper reviews recent developments in materials science and device physics of high-quality epitaxial films of the transparent perovskite La-doped barium stannate, La:BaSnO3. It presents current efforts in the synthesis science of epitaxial La:BaSnO3 films for achieving reduced defect densities and high electron mobility at room temperature. We discuss the scattering mechanisms and the route toward engineering defect-free epitaxial La:BaSnO3 heterostructures. By combining chemical surface characterization and electronic transport studies, special emphasis is laid on the proper correlation between the transport properties and the electronic band structure of La:BaSnO3 films and heterostructures. For application purposes, interesting optical properties of La:BaSnO3 …

Identification And Expression Analysis Of Phosphate Transporter 1 (Pht1) Genes In The Highly Phosphorus-Use-Efficient Hakea Prostrata (Proteaceae), Benjamin J. Nestor, Toby Bird, Anita A. Severn-Ellis, Philipp E. Bayer, Kosala Ranathunge, M. Asaduzzaman Prodhan, Maheshi Dassanayake, Jacqueline Batley, David Edwards, Hans Lambers, Patrick M. Finnegan

Faculty Publications

Heavy and costly use of phosphorus (P) fertiliser is often needed to achieve high crop yields, but only a small amount of applied P fertiliser is available to most crop plants. Hakea prostrata (Proteaceae) is endemic to the P-impoverished landscape of southwest Australia and has several P-saving traits. We identified 16 members of the Phosphate Transporter 1 (PHT1) gene family (HpPHT1;1-HpPHT1;12d) in a long-read genome assembly of H. prostrata. Based on phylogenetics, sequence structure and expression patterns, we classified HpPHT1;1 as potentially involved in Pi uptake from soil and HpPHT1;8 and HpPHT1;9 as potentially involved in Pi uptake and root-to-shoot …

The Crystal Structure Of Acinetobacter Baumannii Bacterioferritin Reveals A Heteropolymer Of Bacterioferritin And Ferritin Subunits, Huili Yao, Suliat Alli, Lijun Liu, Anabel Soldano, Anne Cooper, Leo Fontenot, Dristen Verdin, Kevin P. Battaile, Scott Lovell, Mario Rivera

Faculty Publications

Iron storage proteins, e.g., vertebrate ferritin, and the ferritin-like bacterioferritin (Bfr) and bacterial ferritin (Ftn), are spherical, hollow proteins that catalyze the oxidation of Fe²⁺ at binuclear iron ferroxidase centers (FOC) and store the Fe³⁺ in their interior, thus protecting cells from unwanted Fe³⁺/Fe²⁺ redox cycling and storing iron at concentrations far above the solubility of Fe³⁺. Vertebrate ferritins are heteropolymers of H and L subunits with only the H subunits having FOC. Bfr and Ftn were thought to coexist in bacteria as homopolymers, but recent evidence indicates these molecules are heteropolymers assembled …