Digital Commons Network^™

Retrenchment By Division: The New Law And Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Faculty Publications

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

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 …

The Nuances Of Prosecutorial Nonenforcement, Meighan R. Parsh, Carissa Byrne Hessick

Faculty Publications

The academic literature on prosecutors is divided: Some commentors believe that prosecutors should more aggressively use their ability to decline to bring charges, decreasing the overall number of criminal cases and helping to address the problem of mass incarceration. Others believe that broad prosecutorial nonenforcement poses significant risks to our constitutional order and public safety. While the visibility of this debate has increased—spilling over from the pages of law reviews into political campaigns and headlines—the terms of this debate are at times unclear. Prosecutorial nonenforcement is a multifaceted phenomenon, and discussions about its costs and benefits can obscure necessary tradeoffs …

Beyond Punitive Policy: Deadlines As Ethics-Based Professional Identity Development Opportunities, Eric Shannon

Faculty Publications

(Excerpt)

Is the practice of imposing fixed deadlines for legal writing assignments a relic of the past?

This is the type of question I consider while trying to fall asleep at a reasonable hour on a Tuesday. I can’t help it: I spent thousands of hours working in law student affairs before transitioning to full-time faculty. I’ve seen the myriad struggles that students face while in law school—too many to count. I would regularly force myself to consider: Am I enforcing a policy that prioritizes student well-being and professional development? Or am I perpetuating a relic?

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 …

Dividing Trademark Use, Jeremy N. Sheff

Faculty Publications

The trademark law of the United States places special emphasis on whether and how a trademark is used in commerce. But over the long history of the Lanham Act—including some less-than-careful drafting by Congress and some aggressive acts of interpretation by the federal courts—the concept of “use” has become complicated and in many ways confused. Two recent Supreme Court cases—Jack Daniel’s Properties, Inc. v. VIP Products LLC and Abitron Austria GmbH v. Hetronic International, Inc.—reflect and in some ways exacerbate that confusion. But the opinions in these cases also expose an interesting property of “use” in trademark law …

Status, Conduct, Belief, And Message: The Wedding Vendor Cases, Mark L. Movsesian

Faculty Publications

(Excerpt)

I’d like to speak today about one of the more neuralgic episodes in the United States’s ongoing culture wars: the wedding vendor cases. These are cases in which small business owners decline, from religious conviction, to provide services for same-sex weddings. A baker declines to bake a wedding cake for a gay couple because, as a Christian, he opposes same-sex marriage and doesn’t want to participate in sinful behavior. A Christian web designer declines to create websites for same-sex weddings, since doing so would express her support for such weddings, which she doesn’t want to do. Other examples involve …

Ban Cookie Banners: A Case Study In Tech Regulation, Kate Klonick

Faculty Publications

Few experiences on the modern internet are as universally reviled as the cookie banner. They clutter websites with pop-ups, interrupt user flow, make information harder to access, and demand repetitive, meaningless clicks. What was once heralded as a tool to advance individual autonomy and privacy has, in practice, become a daily annoyance that breeds cynicism with the very concept of consent itself. Cookie banners do not empower; they weary. They do not inform; they obscure. They do not prevent surveillance; they normalize it.

The tragedy of the cookie banner is that it embodies the best intentions but worst solutionism of …

The Whiteness Of Wealth & Black Student Loan Debt, Renee Nicole Allen

Faculty Publications

On June 30, 2023, to the dismay of many anxious borrowers, the Supreme Court held that the Secretary of Education did not have the authority to cancel roughly $430 billion in federal student loan balances, thus blocking President Biden’s plan for student loan forgiveness. Despite authority delegated to the Secretary to waive or modify provisions of the Education Act to ensure low-to-middle income borrowers were not placed in a worse financial position because of the COVID-19 national emergency, the Court rejected the forgiveness plan and borrowers resumed payments in October 2023. Anti-Black racism in federal law and policy have contributed …

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 …

Securities Arbitration Case Law Update 2024–2025 (July 2025), Elissa Germaine, Anthony Rivera

Faculty Publications

(Excerpt)

This article summarizes recent cases regarding the constitutionality of FINRA and leading arbitration cases that are of particular relevance to securities arbitration practitioners.

Appendix: Selected Quotes From Prosecutors' Interview Responses, Anna Arons

Faculty Publications

No abstract provided.

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 …

The Criminal System Under Racial Capitalism, Sandeep Singh Dhaliwal

Faculty Publications

In 2021, major segments of the business lobby converged around a consensus for criminal system reform. As the United States experienced historic levels of labor market tightness, business groups argued for removing “barriers” to employment that system-involved people face. Just a few months later, the orientation of business to the criminal system was decidedly more mixed. By March 2022, the U.S. Chamber of Commerce, the country’s most powerful business lobby, had stepped to the forefront of the national moral panic around retail theft, launching a vigorous campaign to defend and even strengthen criminal punishment across the country.

Anchoring its analysis …

Queers, Closets, And Corporate Governance, Darren Rosenblum

Faculty Publications

The past few years have seen several corporate diversity initiatives that include Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) people. In 2020, Nasdaq, the world’s second-largest stock exchange, and California, the largest state, both adopted rules to encourage board diversity for underrepresented groups, including LGBTQ+ people. Since that time, the Los Angeles Superior Court struck down California’s law, the Fifth Circuit invalidated Nasdaq’s rule, and the Trump administration initiated a slew of anti-Diversity Equity and Inclusion (DEI) and anti-LGBTQ+ measures. In the context of this sharp ideological turn, this Article attempts to step back and tackle a larger question: how can …

The Model Minority Victim, Elaine M. Chiu

Faculty Publications

The rise in xenophobia, hate and violence against AAPI Americans inspired by the COVID-19 pandemic was an opportunity to assess the effectiveness of the criminal legal system as a tool of anti-racism. This Article traces the legal aftermath when Asian New Yorkers reported 276 possible hate crimes to the police in 2021. The analysis takes an empirical approach and a narrative approach. It relies on a unique database that followed what happened to civilian complaints of anti-Asian crimes from beginning to end. Using metrics such as arrest rates and conviction rates, the Article draws initial conclusions about the systemic legal …

Legal Academia's White Gaze, Renee Nicole Allen

Faculty Publications

For Black law faculty, Blackness, the Black experience, and Black legal and social identity are not trends. Yet, there are inflection points where legal scholarship about race, particularly Blackness, is in vogue. The most recent rise in such legal scholarship came in the aftermath of George Floyd’s murder and the worldwide Black Lives Matter protests in 2020. When antiracist sentiment is high, the regard for scholarship central to the personhood of Black legal scholars is high. Even then, there is an expectation that Black authors write in ways that conform to the White norms of legal scholarship. Though central to …

What’S Left Of The New Deal State?, Sandeep Singh Dhaliwal

Faculty Publications

(Excerpt)

A vast body of scholarship situates itself in the New Deal era. Another extensive collection explores the history of criminal justice in the United States. To date, however, there has been little effort to bring these conversations together. New Deal Law and Order, written by legal historian Anthony Gregory, fills this conspicuous gap. Gregory remarkably narrates the New Deal era through the lens of President Franklin Roosevelt’s “war on crime” (p. 1), challenging how we think about both the New Deal’s legacy and the foundations of the modern security state.

In recent years, scholars have called on their …

Family Regulation's Consent Problem, Anna Arons

Faculty Publications

The home is the most protected space in constitutional law. But family regulation investigators conduct millions of home searches a year. Under pressure, parents nearly always consent to these state agents’ entry into the most private areas of their lives.

This Article identifies the coercive forces—not least the threat of family separation—that drive parents to consent to home searches. Drawing on primary sources and case law examining consent in criminal cases, it shows that common family regulation investigation tactics render consent involuntary and the ensuing searches unconstitutional. And yet, it argues, the Constitution is not enough. Though constitutional litigation could …

Getting The Reader To Say “Yes”: Applying Negotiation Principles From The Books Getting To Yes And Getting Past No To Achieve Effective And Persuasive Legal Writing, Patricia G. Montana

Faculty Publications

This Article explores the relationship between the strategies of principled negotiation and effective persuasive legal writing as articulated in the best-selling books, Getting to Yes and Getting Past No. Though there is substantial scholarship advocating adding a negotiation component to legal writing instruction, there is little scholarship addressing how to apply the concepts of principled negotiation to persuasive writing itself. In this Article, the Author explains the foundational concepts of principled negotiation and then shows how they relate and apply to drafting an effective piece of persuasive legal writing. Looking at written advocacy through a negotiation lens reinforces good …

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 …

Modeling Inflation Expectations In Forward-Looking Interest Rate And Money Growth Rules, Zhengyang Chen, Victor J. Valcarcel

Faculty Publications

We propose a novel approach that directly embeds rational expectations (RE) into a low-dimensional structural vector autoregression (SVAR) without the need for any mapping to a dynamic stochastic general equilibrium (DSGE) model. Beginning from a fully specified “consensus” structural model, we establish an instrumental variable procedure internal to the SVAR to obtain RE-consistent structural responses to identified monetary policy shocks. Our RE-SVAR framework facilitates a comparison across two alternative monetary policy indicators that accommodate long horizons in the formation of inflation expectations in the policy rule. We construct clouds of responses of inflation and economic activity to monetary …

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 …

A Textbook Equity Student Advisory Board, Karlee Colby, Anne Marie H. Gruber

Faculty Publications

Engaging college students in advocacy related to open educational resources (OER) is an important way to raise awareness and encourage OER adoption on campuses in higher education. The student perspective is vital to encouraging instructors and administrators to be responsive to student needs, concerns, and preferences related to course materials access, and to consider affordability and usage rights. This case study describes the library-facilitated Textbook Equity Student Advisory Board at the University of Northern Iowa, a medium-sized regional comprehensive university. The board serves as a two-way communication outlet between textbook equity campus leaders and students, including student government. This article …

The Fifth (202-195 Bce) And The Sixth (170-168 Bce) Syrian Wars In The Dead Sea Scrolls: Implications For Understanding The Origin Of The Maccabean Revolt, Kenneth Atkinson

Faculty Publications

The rulers of the Seleucid and the Ptolemaic Empires fought six wars for control of the region known as Coele-Syria during the third and the second centuries BCE. These conflicts weakened both powers, allowing them to be conquered by the Roman Republic. For the Jews of Judea, the Fifth Syrian War witnessed increased conflicts in the country among its high priests regarding the nature of Hellenistic reforms and how to deal with the Seleucid Empire. These difficulties continued and led to the Maccabean Revolt at the conclusion of the Sixth Syrian War, which would eventually culminate in Judean independence from …

Intensive Longitudinal Models, Robert E. Ployhart, Paul D. Bliese, Sam D. Strizver

Faculty Publications

Intensive longitudinal models (ILMs) allow researchers to analyze nested data collected through frequent measurements—typically 20 or more repeated occasions—over densely spaced durations. Rather than being a single statistical approach, ILMs encompass various models unified by their capability to handle densely collected longitudinal data. We briefly summarize the nature of intensive longitudinal designs and why such designs require the use of ILMs. We then provide a classification typology to help readers understand the features of an ILM they should adopt. This classification typology provides the structure for a narrative review of existing ILM research. We conclude with specific recommendations for using …

Ready Or Not, The Deadline Is Coming! Getting Onboard With Accessible Course Content, Karen Edwards, Lena Pinkston

Faculty Publications

People with disabilities often have less engagement with and access to online resources (Lissitsa & Madar, 2018). Accordingly, the Department of Justice’s (DOJ) Final Rule (89 FR 31320, 2024) for Title II of the Americans with Disabilities Act of 1990 (ADA) requires many public educational institutions and others to comply with the Web Content Accessibility (WCAG) Guidelines Version 2.1 AA by April 24, 2026. Compliance officers and technology specialists across the country have been working to make sure institutional websites and apps meet the Guidelines. Despite spirited debate during the rulemaking process, the updated rule also requires instructional content within …

How Overcoming Linguistic Discrimination Benefits The World, Joseph A. Stanley, Lisa Morgan Johnson, Eve Okura Koller, Vashti Wai Yu Lee, Hallie Davidson, Valeria Prieto Hurtado, Sam Keddington, Hazel Mattson, Abigail Mueller, Sydney Jo Pederson, Maryn Perschon, Reese Rugg, Eliza Whiting

Faculty Publications

What is linguistic discrimination?

• Restricting access or opportunities based on speech (e.g., accent, pronunciation, grammatical system, tone or pitch)
• One of the last socially acceptable discriminatory practices in the international community
• A source of injustice that impacts many of God’s children every day

Linguistic discrimination is real! Here’s what it looks like…

In Healthcare:

• More questions about insurance coverage; later appointments (Wisniewski and Walker 2020)
• Lower access to mental health services (Kugelmass 2016)
• More referrals for speech therapy (Charity Hudley et. al. 2018)

In Education:

• Students receiving negative judgments from teachers (Bowie & Bond 1994; Cecil 1988; Wheeler 2019)
• Teachers …

The Serendipity Of Discovery: Life Of A Geochemist, Willard S. Moore

Faculty Publications

My strategy for writing this autobiography is to use examples of how working on seemingly different projects can often lead to outcomes more important than originally envisioned. Serendipity is a "happy accident"; specifically, the accident of discovering something useful without directly looking for it. This often occurs when two research projects converge unexpectedly. The main text contains examples of how serendipity has led me to important discoveries including: (a) finding surprisingly high ²²⁸Ra activities in the ocean, (b) developing a means of rapidly and quantitatively extracting radium from seawater, (c) devising a rapid, sensitive method of measuring ²²⁴Ra …