Digital Commons Network^™

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 …

Patenting The Taboo: Sex, Drugs, And Abortion, Andrew Gilden, Sarah R. Wasserman Rajec

Faculty Publications

The patent system provides a surprisingly rich archive of the interplay between social norms and technological change. Patent law requires applicants to publicly disclose the novelty and usefulness of their inventions, thereby bringing to light areas of innovation that may have previously lived in the shadows. In other words, patent law encourages public disclosure of technologies that are taboo—developed and practiced in secret, for reasons such as social approbation, illegality, or religious sanctity. To obtain a patent for a taboo technology, patentees must establish their legitimacy as innovators while navigating cultural norms that are hostile to their fields of innovation. …

What Did Gitlow Do?, James Y. Stern

Faculty Publications

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights …

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 …

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

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

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

Faculty Publications

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

The Ethics Of Military Influence On Politics, Brenner M. Fissell

Faculty Publications

Military rule is common across the world, but this form of government is incompatible with the rule of law for various reasons. To prevent this, Western democracies such as the United States impose a strong norm of civilian supremacy over military officials. The most important role of this norm of “civilian control” in America today is to police the interventions of senior military officers’ influence in politics. While the standard position is that the military should be “apolitical,” this limitation does little work in helping senior officers understand permissible conduct, as nearly every issue confronting them will implicate matters of …

Emergency Oversight, Catherine Baylin Duryea

Faculty Publications

This Article examines one of the most pressing questions in administrative law: How much judicial oversight should administrative agencies face during an emergency? This issue was particularly salient during the COVID epidemic, but it is not new. The Second World War saw a significant expansion and consolidation of the power of administrative agencies as well as experimentation with the appropriate oversight role for courts. This Article analyzes one such experiment: judicial oversight of agencies implementing wartime anti-inflationary measures, i.e., price controls and rationing. During the war, Congress created a specialized court, the Emergency Court of Appeals (ECA), to hear disputes …

Poromechanical Solution For One-Dimensional Large Strain Consolidation Of Modified Cam-Clay Soil, Sheng Li Chen, Hai Sui Yu, Younane N. Abousleiman, Christopher E. Kees

Faculty Publications

A theoretical model describing the one-dimensional large strain consolidation of the modified Cam-Clay soil is presented in this paper. The model is based on the Lagrangian formulation and is capable of featuring the variability of soil compressibility (inherently due to the direct incorporation of the specific Cam-Clay plasticity model) and permeability, as well as the impact of the overconsolidation ratio (OCR). The derivation starts from the establishment of the incremental stress–strain relations for both purely elastic and elastoplastic deformations under one-dimensional compression conditions, and thereafter the coefficients of compressibility/volume change that are essential to the consolidation analysis. The governing partial …

Assessing Government Transparency: An Analysis Of South Dakota's Open Records And Meeting Laws, Neil Fulton, Sarah Kammer, Patrick Garry

Faculty Publications

Government transparency is crucial for an effective and responsive democracy. The pursuit of such transparency underlies state open records and meetings laws. South Dakota’s open records law strives to open government records to the public. However, it also contains an array of exceptions that prevent the disclosure of certain records. When denied access to government records, the public possesses a statutory right of appeal. This article examines the workings of that appeal process. Open meetings laws also serve to give the public a role in government deliberations and to make those deliberations transparent. Those laws, including South Dakota’s law, provide …

The Lawyer's Obligation As Public Citizen, Gene R. Nichol

Faculty Publications

This essay by Gene R. Nichol examines the lawyer’s duty as a “public citizen,” drawing from the ABA Model Rules’ preamble and historical, civic, and religious touchstones to argue that legal professionals bear a unique obligation to sustain democracy, the rule of law, and public confidence in justice. Situating the discussion in contemporary struggles—particularly in North Carolina—the essay details court-documented gerrymandering, voter suppression, and politicization of the judiciary, and laments the comparative silence of the institutional legal community, including bar associations, law schools, and leading firms.

Nichol juxtaposes today’s reticence with past episodes of vocal resistance (and support) from the …

Where Torrens Failed, John V. Orth

Faculty Publications

The early days of the Torrens system in the United States looked promising. Its spread through the country was rapid — by the early 20th century, it had been adopted in almost half of America’s states. Today, however, Torrens is all but obsolete in America. This article examines what went wrong. For one thing, a workable, if cumbersome, system of title assurance — relying on recorded deeds, warranties of title, and title insurance — already existed. For title holders, the process of petitioning for Torrens registration was unfamiliar, often expensive and protracted, and invited risk from adverse claimants. Pragmatic factors …

The Renewed Assault On Sanctuary Cities, Rick Su, Rose Cuison-Villazor, Pratheepan Gulasekaram

Faculty Publications

This Essay outlines the challenges that sanctuary jurisdictions are facing under the second Trump Administration. The authors argue that this fight not only implicates immigration policies in this country, especially with respect to interior enforcement, but it also threatens to upend the basic structure of our federal system. The authors begin in Part I with an overview of the legal tensions underlying this sanctuary fight—between federal supremacy on the one hand and anti-commandeering on the other. This sets the stage for Part II, where the authors examine the various legal mechanisms—defunding, civil litigation, and criminal prosecution—that the Trump Administration has …

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 Forms Of Representation: How To Be A Kantian Realist, Willem A. Devries

Faculty Publications

Sellars argued that Kant did not make certain distinctions concerning space and time, and because of this adopted his transcendental idealism. Once these distinctions are made, the path to realism remains open. Sellars' argument is not entirely clear. This essay attempts to clarify the argument, showing why Sellars believed he could remain a scientific realist while also adopting a Kantian style epistemology.

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 …

Sffa V. Harvard: Racial Triangulation And The Invidious Myth Of Colorblindness, Philip Lee

Faculty Publications

(Excerpt)

In Students for Fair Admissions, Inc. (SFFA) v. President and Fellows of Harvard College, a case in which the Supreme Court ended the longstanding practice of race-conscious admissions in higher education, Asian Americans were used as a wedge between White people and non-Asian minorities to eradicate a mechanism that fostered greater racial diversity in student bodies in many highly selective institutions across the country. A majority of Supreme Court justices justified their decision in the name of “colorblindness.” However, the way the justices positioned Asian Americans against other people of color was not colorblind. It was consistent with …

Prosecuting Families, Anna Arons

Faculty Publications

Hundreds of thousands of parents are prosecuted in the family regulation system each year. Their cases are investigated by family regulation agencies and prosecuted by lawyers employed by the government—family regulation prosecutors. Like police and prosecutors in the criminal legal system, this family regulation prosecutorial team wields immense power, particularly over race–class subjugated communities. Yet even as scholarship on criminal prosecutors and on the family regulation system has proliferated, the role of family regulation prosecutors has gone underexamined and undertheorized.

This Article offers a critical examination of the role of these family regulation prosecutors. Drawing on a variety of primary …

Administrability Over Testamentary Freedom Of Disposition, Kevin Bennardo

Faculty Publications

This Article challenges the widely accepted view that testamentary freedom is the dominant principle of American inheritance law. It argues that administrability—the need for a predictable, efficient probate system—frequently overrides freedom of disposition. Examining executor selection, procedural constraints, contest doctrines, settlement mechanisms, and the pervasive role of judicial and statutory oversight, the Article shows that testators have far less control over the disposition of their estates than traditional rhetoric suggests. Because process shapes outcomes, limits on testators’ ability to control the probate process constitute significant limits on testamentary freedom. The Article also demonstrates how doctrines such as intestacy and settlement …

Freedom Of Expression, Collection Management, And Ethical Decision-Making: Censorship Of The Good, The Bad, The Ugly, And Our Obligations To Preserve A Culture's Story, Caroline L. Osborne

Faculty Publications

Libraries, archives, and museums are cultural memory organizations responsible for preserving and conveying a culture’s story. While they have broad editorial discretion in collection management, they also bear significant responsibility, relying on professionals with the expertise to make complex decisions. Practical constraints—such as space, finances, and biases—necessitate content-based limitations and collection policies. This article examines collection management through legal concepts like pure speech, expressive conduct, and state actor status under the First and Fourteenth Amendments, distinguishing viewpoint discrimination from content-based discrimination. It also explores ethical decisionmaking through the lenses of justice, virtue, and the common good.

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

Faculty Publications

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

Servicing Trade Dress: Demystifying The Tertium Quid, Dustin Marlan

Faculty Publications

Trademarks are often brand names or logos. Yet other marks involve the overall appearance of a product or business — a concept called “trade dress.” Courts and scholars have long struggled with how to determine whether trade dress is distinctive enough to function as a legally protectable trademark. In attempting to clarify this murky area, Justice Scalia articulated three types of trade dress in Wal-Mart Stores, Inc. v. Samara Brothers, Inc. These include (i) product packaging (e.g., a candy wrapper) and (ii) product design (e.g., an iPhone’s unique shape). The trouble lies in understanding the third category — what …

Reflections On The Ferguson Report, Eisha Jain

Faculty Publications

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

Suspending The Truancy Paradigm, Barbara A. Fedders, Lucy Carlson, Max Parker

Faculty Publications

In the aftermath of the COVID-19 pandemic, school absences have skyrocketed. While racially minoritized, disabled, and low-income students have historically been, and remain, most likely to experience absence, white and affluent students’ rates of attendance have also declined. To respond to this new universality of student absenteeism, some policymakers have begun to seek alternatives to what we term “the truancy paradigm.”

We define the truancy paradigm as the range of coercive and often punitive interventions deployed by states and school districts to enforce compulsory attendance statutes. This paradigm, we argue, wrongly assumes (a) that strict enforcement of compulsory attendance laws …

Pierce, Don't Say Gay Laws, And The Rise Of Illiberal Authoritarianism, Maxine Eichner

Faculty Publications

In the last four years, legislators and policymakers in red states have passed a wave of measures directed at reforming public schools’ policies and curricula. Some of these measures deal with issues of sexual orientation and gender identity. Others restrict educators’ ability to teach issues of race. Still other initiatives seek to insert Christianity into the schools. While a number of these reforms have been passed under the label of “parental-rights laws,” these measures actually do little to foster the autonomy of parents to direct their children’s upbringing. Instead, they are muscular attempts by state governments, themselves, to impose their …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Patent Law: An Open-Access Casebook, Sarah Fackrell, Sarah R. Wasserman Rajec, Andres Sawicki

Faculty Publications

No abstract provided.

Education And Eschatology: Why Theological Education Is Necessary, Jiri Moskala

Faculty Publications

No abstract provided.

Fiddler Crabs (Crustacea: Decapoda: Ocypodidae) From Coastal Ecuador And The Galápagos Islands: Species Descriptions And Dna Barcodes, Carl L. Thurman, John C. Mcnamara, Hsi-Te Shih, Mariana V. Capparelli

Faculty Publications

Neotropical regions near the equator are recognized as speciation “hot spots” reflecting their abundant biodiversity. In western South America, the coasts of Panama, Colombia, Ecuador, the Galápagos Archipelago, and northern Peru form the Tropical Eastern Pacific biome. This area has the greatest heterogeneity of sympatric fiddler crab species of any portion of the planet. Since the coastal fauna has not been assessed for almost 50 years, we studied fiddler crab species diversity in Ecuador and on the Galápagos Archipelago. Preserved collecting records for various species were examined at the U.S. National Museum of Natural History, Washington, DC, the American Museum …

Cfl Learners’ Real-Time Processing Of Chinese Radicals: An Eye-Tracking Study, Yihsuan Wood, Jeffrey Jack Green, Ellen Knell, Yu Liu

Faculty Publications

This study used eye-tracking to investigate the real-time processing of phonetic and semantic radicals (components of Chinese characters that give clues to their pronunciation and meaning) by intermediate-level university Chinese foreign language (CFL) learners. Additionally, the study examined how knowledge and awareness of radicals affect real time character processing. Real-time radical processing involves identifying radicals and understanding their phonetic or semantic roles, while real-time character processing includes recognizing radicals and instantly comprehending entire characters’ meanings and pronunciations. This study’s first task focuses on radical processing, where CFL learners use radical knowledge to interpret multiple characters simultaneously. The second task extends …