Digital Commons Network^™

Accidental Brady Violations, Adam M. Gershowitz

Faculty Publications

Prosecutors are often seen as the villains of the criminal justice system. And the most villainous thing a prosecutor can do is to commit an intentional Brady violation by withholding favorable and material evidence from the defense. Not surprisingly, there is a wide literature criticizing prosecutors for flagrant misconduct.

But not all Brady violations are intentional. Prosecutors sometimes—perhaps often—commit accidental Brady violations by inadvertently failing to recognize favorable evidence. Because many prosecutors are inexperienced, overworked, and under-trained, they do not recognize exculpatory or impeachment evidence when it is in their files. Additionally, prosecutors also fail to disclose evidence that is …

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 …

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 …

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 …

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 …

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 …

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 …

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. …

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 …

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.

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 …

"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 …

Family Roots And Research Journal Unm Emeritus Professor José A. Rivera, José A. Rivera Ph.D

Faculty Publications

This article is an abbreviated life narrative of UNM Emeritus Professor of Community and Regional Planning, José A. Rivera. It begins with highlights of his family ancestry and continues with an account of his educational experiences K-12 and into a decade of university life as a student while earning a bachelor’s, two master’s and a doctorate. He taught at UNM for 35 years while also conducting research in his areas of interest, mostly in community irrigation studies, mutual aid societies, and rural development. The main body in the article focuses on positions he held at UNM and on publications that …

Reproductive Innovation And Reproductive Exceptionalism: How Private Health Insurance Coverage Of Fertility Treatment Complements Hostile Governmental Action And Expands Access To Assisted Reproduction In The United States, Myrisha S. Lewis

Faculty Publications

The use of fertility treatment and assisted reproductive technology (ART) in the United States and globally is increasing over time. As of April 2023, the World Health Organization estimates that approximately one in six individuals have faced infertility globally. Fertility treatment includes the use of drugs to stimulate egg production, in vitro fertilization (IVF), and, for some, the use of gestational surrogacy to aid in childbirth. Debates have abounded and continue to abound in federal legislatures, state legislatures, and society more broadly about the morality of abortion, contraception, and assisted reproduction, as well as whether governments, public insurers, and private …

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, …

Drop Dynamics During Condensation On Superhydrophobic Surfaces In Vapor Shear Flow, Shaur Humayun, R. Daniel Maynes, Julie Crockett, Brian D. Iverson

Faculty Publications

Accurate models for predicting drop dynamics, such as maximum drop departure sizes, are crucial for estimating heat transfer rates during condensation on superhydrophobic (SH) surfaces. Previous studies have focused on examining the heat transfer rates for SH surfaces under the influence of gravity or vapor flowing over the surface. This study investigates the impact of surface solid fraction and texture scale on drop mobility in a condensing environment with a humid air flow. Experiments recorded condensation with varying surface feature sizes from micro- to nano scale under different flow rates. Video analysis detected the drop-size distribution and maximum drop departure …

Disclosure Benchmarking By Lawyers: Evidence Fromthe Ipo Setting, Michael S. Drake, Jeff Mcmullin, Kenneth Merkley, Chase Potter, John Treu

Faculty Publications

Lawyers play an important advisory role in drafting financial reports, yet empirical evidence documenting the influence of external legal counsel on this process remains sparse. This study focuses on a specific aspect of lawyers’ drafting process: the practice of reviewing disclosures previously filed by other issuers—a practice termed “disclosure benchmarking.” Using initial public offering (IPO) disclosures as the setting, we find that disclosure benchmarking is associated with amore efficient Securities and Exchange Commission (SEC) review process. We further find that it is associated with several measures of disclosure quality, including disclosures that are less likely to be revised in subsequent …

Foreign Tax Holiday Participation And U.S. Job And Investment Loss, Zackery D. Fox, Linda Krull, Scott G. Rane

Faculty Publications

We investigate whether foreign tax holiday participation among U.S. multinational companies is associated with offshoring U.S. jobs and other domestic investment activities. We find that foreign tax holiday participation is associated with (1) an increase in offshoring U.S. jobs and (2) a decrease in domestic investment, as proxied by changes in the number of employees, capital expenditures, and R&D activity. Furthermore, we find evidence suggesting that the association between targeted, temporary tax incentives provided by foreign tax holidays and firms’ domestic activities is stronger among firms with a smaller foreign presence and is distinct from the impact of foreign statutory …

Redesigning Executive Incentives: The Rising Role Of Subjective Performance Measures, Zackery D. Fox

Faculty Publications

Despite the growing use of subjective performance incentives used in executive bonuses, empirical evidence on their effectiveness remains inconclusive. This study explores three aspects of subjective metrics in bonus plan design: their prevalence, the goals they target, and their impact on managerial behavior and firm outcomes. First, I document 53.8 percent of CEO bonus plans include at least one subjective performance measure, and among these plans, an average of 38.9 percent of total bonus weight is allocated to these measures. Using machine learning, I show subjective metrics target incentives related to employees, firm culture, and executive performance. Second, using the …

Customer Service Operations: A Gatekeeper Framework, Maqbool Dada, Brett A. Hathaway, Evgeny Kagan

Faculty Publications

Customer service has evolved beyond in-person visits and phone calls to include live chat, AI chatbots and social media, among other contact options. Service providers typically refer to these contact modalities as “channels”. Within each channel, customer service agents are tasked with managing and resolving a stream of inbound service requests. Each request involves milestones where the agent must decide whether to keep assisting the customer or to transfer them to a more skilled – and often costlier – provider. To understand how this request resolution process should be managed, we develop a model in which each channel is represented …

Business Communication And Editing Students’ Evaluations Of Written Error: An Eye-Tracking Study, Matt Baker, Grant Eck, Ana Barraza, Benjamin Duffield

Faculty Publications

Using eye-tracking and interview methods, this study investigates how business communication students and editing students attend to and evaluate writing. Participants reviewed blog posts embedded with errors and judged publication readiness. While both groups visually fixated longer on errors than non-errors, business communication students were more likely to approve error-containing texts for publication. Qualitative data revealed that business communication students prioritized content while editing students prioritized surface-level issues. These findings suggest that disciplinary background informs evaluative standards, even when error-detection behavior is similar. The results carry implications for instruction in business writing and editing, especially concerning collaborative, cross-disciplinary workplace writing.

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.

Debt, Work, And The State, Kate Sablosky Elengold

Faculty Publications

In every state and the District of Columbia, an individual who owes a debt to the state can lose their license to work. Without the ability to make a living, it is much harder to pay off debt. Although using occupational license restrictions as a debt collection tool appears nonsensical, it has never before been the subject of scholarly debate. This Article thus begins an important conversation about debt, work, and the state.

This Article identifies the pervasive authority that state and local governments have to revoke an individual’s occupational license solely because that person owes a debt to the …

Text, Fairness, And Efficiency: The Case Against The Plausibility Standard For Affirmative Defenses, Jessica Marks, Marcus A. Gadson

Faculty Publications

Lower federal courts have struggled to answer the following question without any guidance from the U.S. Supreme Court: Does the Iqbal and Twombly plausibility standard apply to affirmative defenses? In this essay, we explain why the answer is no. We aim to provide practical guidance to the countless judges deciding whether to strike an affirmative defense. First, we argue that Rule 8’s text makes using the plausibility standard to evaluate affirmative defenses improper. Judges should pay especially careful attention to our textual analysis because the Supreme Court has placed great weight on the text’s plain meaning in recent civil procedure …

Flooding The Zone: The State Of Federal Flood Insurance At The Beginning Of Trump 2.0, Maggie Caudle, Jacob Dowler, Donald T. Hornstein

Faculty Publications

The risks of flooding in the United States have never been more apparent, making all the more significant the state of flood insurance and the legal and political volatility of the National Flood Insurance Program. In this Article we discuss the details of “Risk Rating 2.0,” the most significant change to federal flood insurance in half a century, and its legal and political future in the new world of Trump 2.0. And, in addition to describing the details of this new change to federal flood insurance, we describe its advantages and disadvantages in both the newfound political environment in which …

Government Lawyers, Ethical Dilemmas: The Case Of Herbert Wechsler And Japanese American Incarceration, Eric L. Muller

Faculty Publications

This essay examines ethical dilemmas facing government agency lawyers through two episodes from Herbert Wechsler’s wartime service as head of the DOJ War Division: overseeing the Supreme Court brief in Korematsu v. United States and administering the Renunciation Act of 1944 amid turmoil at the Tule Lake Segregation Center. In the Korematsu matter, Wechsler managed a brief that skirted the Army’s problematic “Final Report” claims (including shore-to-ship signaling), privileging institutional role fidelity over disclosure, and helping sustain a framework that justified mass removal of Japanese Americans. In the renunciation program, he chose to accept any “voluntary” citizenship renunciation regardless of …

Arrest Unbound, Eisha Jain

Faculty Publications

Arrest has long been legally defined as a seizure, or temporary restraint on liberty, under the Fourth Amendment. But when the government arrests someone today, it imposes far more than a seizure. The government also marks individuals with arrest records, which enable wide-ranging penalties, such as deportation, civil detention, loss of a professional license, and disruption of custody. One consequence is that this regulatory structure unravels arrest from the key institutional checks that would permit the public or key actors to examine whether the government-imposed consequences stemming from arrest are fair and justified. Proportionality depends on the public at large …

Developing Lawyering Skills In The Age Of Artificial Intelligence: A Framework For Legal Education, Julie Kimbrough

Faculty Publications

This Article explores the emergence of generative artificial intelligence technology in legal education and law practice. It first offers historical perspective by examining the development of online legal research systems and other existing law practice technology tools that leverage artificial intelligence. This Article then proposes a framework for legal education based on twenty-first-century competencies that advance human interaction with legal technology tools. Next, this Article recommends that law schools incorporate these competencies into learning outcomes along with a holistic approach to teaching technology-driven lawyering skills as a strategy to narrow the learning gap between legal education and law practice. It …

The Right To A Jury And The Rise Of Guilty Pleas Across Common Law Countries, Carissa Byrne Hessick

Faculty Publications

Juries have long been considered a key common law institution, yet their use has become quite uncommon in common law systems over time. Rather than trials by juries, most criminal cases are instead resolved by way of guilty pleas. The prevalence of guilty pleas is not merely a matter of defendants’ independent choices to accept responsibility and give up the right to a trial. Common law countries have adopted various legal structures over the past half century that incentivize guilty pleas and discourage trials.

This Essay will document the decline of jury trials and the rise of guilty pleas in …

More Information Or More Frequent Information? A Proposal For Quarterly 1099s, Kathleen Delaney Thomas

Faculty Publications

Third-party information reporting enhances tax compliance. When substantial information reporting is present, the compliance rate reaches 94 percent, compared to just 45 percent when there is little or no information reporting. Accordingly, policymakers have expanded information reporting requirements over the past several decades to enhance revenue collection. More recently, Congress has expanded information reporting requirements for third-party settlement organizations (“TPSOs”) by significantly lowering the reporting threshold from $20,000 to $600 as well as eliminating the requirement for 200 or more transactions. While such a shift will subject more taxpayers to information reporting, it will also create additional burden on the …