Digital Commons Network^™

Advances In Patent Rights Acquisition In International Patent Law, Sarah R. Wasserman Rajec

Faculty Publications

At this centennial event, we have been asked to reflect on the most consequential developments in international intellectual property law of the last 100 years, with an eye towards important future developments as well. This is no small task, given the proliferation of intellectual property-related treaties and the profound changes in business structures, manufacturing, and trade that the last century has seen. The rise of the multinational corporation has been fueled in part by changes to trade laws, and the inclusion of intellectual property in trade-related treaties has facilitated cross-border research and development, manufacturing, and distribution of goods subject to …

Comparing & Contrasting Economic And Natural Law Approaches To Policymaking, Eric Kades

Faculty Publications

Eric Claeys’s monograph, Natural Property Rights, offers a comprehensive and thoughtful articulation of a general theory of property rights rooted in the natural law tradition. This detailed review compares Claeys’s work with the consequentialist law and economics perspective on property. After contrasting their objectives, assumptions, and methodologies this article concludes that, unlike more absolutist approaches, Claeys’s flavor of natural property rights places a modicum of weight on the welfare effects central to economic analysis. This restrained nod in the direction of practicality, however, does not eliminate some of the long-known weaknesses of natural law. Perhaps the most glaring gap …

Religious Convictions, Anna Offit

Faculty Publications

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. …

Climate Entrenchment In Unstable Legal Regimes, Martin Lockman

Faculty Publications

American climate law is the subject of serious and ongoing debate, and policy change is part of the ordinary process of democratic governance. However, in recent years some policymakers have deliberately undermined climate action by injecting legal instability into American climate law. This Essay addresses a simple question: how can Americans build necessary climate infrastructure in the face of an unstable political and legal regime?

Some readers may be shocked by this question. Indeed, this framing is intentionally provocative. However, this Essay recognizes a simple fact: not all American polities, and not all American policymakers, are trustworthy and predictable partners …

The Tesla Meets The Fourth Amendment, Adam M. Gershowitz

Faculty Publications

Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open for warrantless searches under other exceptions to the warrant requirement. This is the first article to argue that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, the police can warrantlessly …

Jurisdiction And The Moral Impact Theory Of Law, Michael S. Green

Faculty Publications

Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community’s law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense …

Technology Integration In Higher Education And Student Privacy Beyond Learning Environments -- A Comparison Of The Uk And Us Perspective, Iria Giuffrida, Alex Hall

Faculty Publications

Technology integration in higher education (HE) has brought immense innovation. While research is investigating the benefits of leveraging, through learning analytics, the data created by the greater presence of technology in HE, it is also analysing the privacy implications of vast universes of data now at the fingertips of HE administrators. This paper argues that student privacy challenges linked to technology integration occur not only within but also beyond learning environments, namely at the enterprise level. By analysing the UK and US legal frameworks surrounding how HE institutions respond to parents demanding disclosure of their adult children's personal data in …

Political Default. The Implications Of Weaponizing Global Financial Infrastructure, Lev E. Breydo

Faculty Publications

In response to Russia’s unlawful invasion of Ukraine, the U.S. has led a broad-based global coalition to punish the aggressor with an “unprecedented” sanction regime. Those measures have targeted “the Russian government’s basic tools to manage its macroeconomy,” with a particular emphasis on its sovereign debt. That concerted focus, as this Article empirically demonstrates through analysis of bond and credit default swap data, ultimately resulted in Russia’s first foreign currency debt default in over a century — despite the nation’s ability and seeming willingness to pay.

Notwithstanding aptly-deserved “just deserts” considerations, a forced — or “political” — Russian sovereign debt …

Subordination Through Schedules, Nicole Buonocore Porter

Faculty Publications

Our jobs are not only about the work we do—they are also about when and where we do that work. For a variety of reasons, employees with disabilities often seek modifications of their employers’ policies regarding when and where work is performed. These accommodations are often necessary for the employee to remain employed. The Americans with Disabilities Act (“ADA”) requires employers to provide reasonable accommodations to employees with disabilities, and these accommodations can include schedule changes. But research demonstrates that when responding to accommodation requests under the ADA, employers are often reluctant to grant requests to modify the rules regarding …

An Angry Face And A Guilty Conscience: The Intrapersonal Effects Of Fake Anger In Negotiation, David Hunsaker, Teng Zhang, Mckenzie Rees

Faculty Publications

Research on anger in negotiation suggests that expressing anger can have detrimental effects on the relationship between the parties but may also improve the expresser’s economic outcomes, resulting in the use of fake anger (i.e., anger that is expressed but not felt) as a negotiation strategy. Based on research on moral emotions, we argue that fake anger in negotiation will lead to expressers’ guilt, which in turn negatively impacts their self-perception and their overall subjective experience of the negotiation. Across three studies (two online and one face-to-face), we consistently demonstrate that fake anger lowers negotiators’ feelings about themselves as well …

Are We Essential, Or Sacrificial? The Effects Of Felt Public Gratitude On Essential Worker Recovery Activities During Covid-19, Hee Young Kim, Sijun Kim, Taeya M. Howell, Sarah P. Doyle, Nathan C. Pettit, Michael Bizzarro

Faculty Publications

COVID-19 has been characterized by unprecedented levels of public gratitude to some, but not all, essential workers. In this research, we integrate insights from the stigmatized occupations and gratitude literature to build theory on the positive and negative relationships between such displays of public gratitude and essential workers’ recovery activities. We argue that felt public gratitude positively relates to adaptive recovery activities (e.g., exercise) and negatively relates to maladaptive recovery activities (e.g., overdrinking). We further explain how felt public gratitude impacts (mal)adaptive recovery activities through (a) felt invisibility and (b) negative/positive affect. We find support for our predictions in a …

The Gender Of Gideon, Kathryn A. Sabbeth, Jessica Steinberg

Faculty Publications

This Article makes a simple claim that has been overlooked for decades and yet has enormous theoretical and practical significance: the constitutional guarantee of counsel adopted by the U.S. Supreme Court in Gideon v. Wainwright accrues largely to the benefit of men. In this Article, we present original data analysis demonstrating that millions of women face compulsory and highly punitive encounters with the justice system but do so largely in the civil courts, where no right to counsel attaches. The demographic picture that emerges is one in which the right to counsel skews heavily against women’s interests. As this Article …

Fake News And The Tax Law, Kathleen Delaney Thomas, Erin Scharff

Faculty Publications

The public misunderstands many aspects of the tax system. For example, people frequently misunderstand how marginal tax rates work, misperceive their own average tax rates, and believe they benefit from tax deductions for which they are ineligible. Such confusion is understandable given the complexity of our tax laws. Unfortunately, research suggests these misconceptions shape voter preferences about tax policy which, in turn, impact the policies themselves.

That people are easily confused by taxes is nothing new. With the rise of social media platforms, however, the speed at which misinformation campaigns can now move to shape public opinion is far faster. …

Ai, Taxation, And Valuation, Jay A. Soled, Kathleen Delaney Thomas

Faculty Publications

Virtually every tax system relies upon accurate asset valuations. In some cases, this is an easy identification exercise, and the exact fair market value of an asset is readily ascertainable. Often, however, the reverse is true, and ascertaining an asset’s fair market value yields, at best, a numerical range of possible outcomes. Taxpayers commonly capitalize upon this uncertainty in their reporting practices, such that tax compliance lags and the IRS has a difficult time fulfilling its oversight responsibilities. As a by-product of this dynamic, the Treasury suffers.

This Article explores how tax systems, utilizing artificial intelligence, can strategically address asset-valuation …

A License To Play: Regulating Location-Based Augmented Reality Gameplay On Public Property, Kate Johnson, Evan Ringel, Amanda Reid

Faculty Publications

This novel research sits at the intersection of augmented reality gameplay and government licenses for use of public property. Governments have long used licensing schema to assure public safety and order. Augmented reality gameplay on public lands presents a new, contested use of public property. Under our proposed licensing scheme, those wishing to engage in location-based augmented reality (LoBAR) gameplay on public lands would need a license. This proposal is akin to how governments—federal, state, and municipal—have authorized permit schema for use of public property, including rock climbing, geocaching, street performing, and film photography. Our Article offers sample legislation for …

What Ever Happened To The Africa In African Human Rights, Thomas Kelley

Faculty Publications

In the late 1970s, the Organization of African Unity (“OAU”) committed to drafting and adopting a human rights instrument that would uphold African values and traditions—those aspects of African culture that were unique and praiseworthy and, in the opinion of many African leaders, superior to those of Europe. The resulting document, the African Charter on Human and Peoples’ Rights (“the African Charter” or “the Charter”), included numerous provisions intended to do just that. However, in the decades following the African Charter’s adoption, African lawyers, judges, and tribunals produced little jurisprudence applying and further defining those uniquely African values and traditions. …

The Prosecutor Lobby, Carissa Byrne Hessick, Ronald F. Wright, Jessica Pishko

Faculty Publications

Prosecutors shape the use of the criminal law at many points during criminal proceedings but there is an earlier point in the process where prosecutors have influence: during the legislative process. The conventional wisdom in legal scholarship is that prosecutors are powerful and successful lobbyists who routinely support laws that make the criminal law more punitive and oppose criminal justice reform. In this Article, we test that narrative with an empirical assessment of prosecutor lobbying in America. Using an original dataset of four years of legislative activity from all fifty states, we analyze how frequently prosecutors lobbied, the issues on …

Andy Warhol Foundation For The Visual Arts, Inc. V. Goldsmith, A Narrow Ruling Or A Transformational Decision? An Essay, Caroline L. Osborne, Stephen Wolfson

Faculty Publications

The 2023 United States Supreme Court decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith is the first copyright decision in decades to visit the concept of fair use and transformative use. In a fiery majority decision with an even fiercer dissent, the court restricts the concept of fair use creating a lasting impact on derivative works, licensing, and appropriation art. Arguably restoring balance to factor one, purpose and character of the use, it questionably conflates the analysis of factor four, market effect, in favor of affirming factor one’s analysis as the justification premise as originally posed …

The Nightmare Of Dream Advertising, Dustin Marlan

Faculty Publications

Advertisers are attempting to market to us while we dream. This is not science fiction, but rather a troubling new reality. Using a technique dubbed “targeted dream incubation” (TDI), companies have begun inserting commercial messages into people’s dreams. Roughly, TDI works by: (1) creating an association during waking life using sensory cues (for example, a pairing of sounds, visuals, or scents); and (2) as the subject is drifting off to sleep, the association is again introduced with the goal of triggering related dreams with related subject matter. Based on a 2021 American Marketing Association survey, 77 percent of 400 companies …

Consideration Of The Beneficiary Inducement Statute On Access To Health Care Systems' Population Genetic Screening Programs, Aurora M. Washington, Kimberly Foss, Joan H. Krause, Arlene M. Davis, Kristine J. Kuczynski, Laura V. Milko, Jonathan S. Berg, Megan C. Roberts

Faculty Publications

This article examines how the federal Beneficiary Inducement Statute (BIS) and related anti-kickback laws shape access to population genetic screening (PGS) programs, particularly for Medicare and Medicaid beneficiaries, during a critical early-adoption phase in public health genomics. While PGS for Tier 1 conditions—such as hereditary breast and ovarian cancer, Lynch syndrome, and familial hypercholesterolemia—offers significant opportunities for early detection and prevention, large-scale implementation remains limited by cost barriers, uneven insurance coverage, and statutory restrictions that can unintentionally hinder equitable participation. The authors explain how BIS constraints complicate efforts by health systems to offer low- or no‑cost genomic screening, survey legally …

Repugnant Precedents And The Court Of History, Daniel B. Rice

Faculty Publications

Aged Supreme Court precedents continue to tolerate many practices that would shock modern sensibilities. Yet the Court lacks standard tools for phasing out decisions that offend our national character. The very cultural shifts that have reoriented our normative universe have also insulated most repugnant precedents from direct attack. And the familiar stare decisis factors cannot genuinely explain what ails societally outmoded decisions. Even for justices inclined to condemn these embarrassments in less clinical terms, it is unclear what qualifies courts to make universalist claims about contemporary American values.

The Court recently sidestepped these difficulties by insisting that one of its …

Judicial Moral Prophecy, Daniel B. Rice

Faculty Publications

American judges decry past moral lapses as intolerable. They paint their predecessors’ worst mistakes as tragedies that must never be allowed to happen again. When given the chance to avoid new injustices, however, judges increasingly flaunt their moral indifference. They insist that legal fidelity requires them to ignore whether their own rulings will be remembered as monstrous. But this cavalier outlook—for all its devotion to the past—is remarkably ahistorical. Feats of legal craft have never survived cultural repudiation. When precedents become morally shameful, the quality of their reasoning ceases to matter. The opinions’ authors are remembered not for the technical …

Sample Size Matters In Calculating Pillai Scores, Joseph A. Stanley, Betsy Sneller

Faculty Publications

Since their introduction to sociolinguistics by Hay, Warren, and Drager [(2006). J. Phon. (Modell. Sociophon. Var.) 34(4), 458–484], Pillai scores have become a standard metric for quantifying vowel overlap. However, there is no established threshold value for determining whether two vowels are merged, leading to conflicting ad hoc measures. Furthermore, as a parametric measure, Pillai scores are sensitive to sample size. In this paper, we use generated data from a simulated pair of underlyingly merged vowels to demonstrate (1) larger sample sizes yield reliably more accurate Pillai scores, (2) unequal group sizes across the two vowel classes are irrelevant in …

Sociophonetics And Dialectology, Dominic Watt, Margaret E. L. Renwick, Joseph A. Stanley

Faculty Publications

In this chapter we explore how the investigation of phonetic detail in speech seen through a sociolinguistic lens can inform and enhance our understanding of dialectal variation in languages. We begin by examining how sociophonetics can be considered an offshoot of dialectology, later to mature into a free- standing discipline during the late twentieth century. We next discuss the reconvergence of sociophonetics and dialectology as it became clearer that the two approaches to the study of language variation are, in combination, greater than the sum of their parts, even if their agendas may place different emphases on what should be …

Does Text Entry Method Make A Difference On Chinese Writing Test Scores?, Dana Scott Bourgerie, Troy L. Cox, Steven L. Riep

Faculty Publications

Should the writing construct be assessed through handwriting or keyboarding? As the only major language entirely without a syllabary or alphabet, the Chinese writing system is unique among modern languages, thus the question of writing proficiency is complicated by character recall. Most of the testing research comparing text entry methods has been conducted in English and has found that keyboarding and handwriting can be used interchangeably. This paper reports the outcome of a study comparing the results of handwritten and typed versions of the Chinese ACTFL Writing Proficiency Test (WPT). L2 Chinese students (n=25) with Intermediate to Superior speaking skills …

Luther On Sabbath & Eschatology, Trevor O'Reggio

Faculty Publications

No abstract provided.

Building Educational Leaders’ Capacity In A Community Of Practice, Théophile Muhayimana, Denise Schares, Megan Ruxton

Faculty Publications

This qualitative study examined rural educational leaders’ perceptions of the outcomes of the 2019 Leadership Camps (LCs). This capacity-building opportunity helped educational leaders meet as a community of practice (CoP) where participants’ interactions contributed to learning with and from one another, reducing perceived isolation and increasing self-efficacy. We analyzed data collected from 242 participants’ responses using an open, axial, and selective coding process. With this sample, 52.5% of participants were rural educational leaders. Overall, educational leaders most often appreciated interacting, networking, and collaborating with peers. Additionally, educational leaders highlighted the importance of the in-depth understanding and application of the Leadership …

National And Regional Dress, Jennifer Van Haaften, Annette Lynch

Faculty Publications

The purpose of this chapter is to place the rise and use of national and ethnic dress into a historical context. Using an extensive review of journal articles and book chapters focused on national and ethnic dress, historical nationalistic and colonizing trends were examined in the use of clothing and dress. National dress was introduced through the continued rise of nationalism and colonialism in European and Western countries. Western imperialism at first erased identities of indigenous groups, but later had the unintended consequence of creating an appetite for subjugated people to establish a new national identity to reassert their sovereignty, …

Investigating Faculty Perceptions Of Information Literacy And Instructional Collaboration, Angie Cox, Amandajean Nolte, Angela L. Pratesi

Faculty Publications

This exploratory mixed-methods study investigates faculty perceptions of information literacy (IL), its instruction, and librarian collaboration teaching IL since the adoption of the ACRL Framework for Information Literacy for Higher Education at the authors’ institution. Many previous studies examining these questions were completed when the ACRL Information Literacy Competency Standards for Higher Education was the guiding document for the profession. Like earlier studies, findings from this study clearly demonstrate that faculty value IL and that collaborations occur in differing and inconsistent forms. However, at the authors’ institution, there is a misalignment between faculty and librarians in what IL is and …

The Association Of Childhood Maltreatment With Internet Addiction: The Serial Mediating Effects Of Cognitive Emotion Regulation Strategies And Depression, Yuan-Yuan Guo, Jing-Jing Gu, James Gaskin, Xue-Qin Yin, Yu-Han Zhang, Jin-Liang Wang

Faculty Publications

Objectives: Childhood maltreatment, cognitive emotion regulation strategies (CERSs), and depression can be important in adolescents’ Internet addiction. The current study aims to investigate the direct effect of childhood maltreatment on Internet addiction and its indirect effects via CERSs and depression.

Participants and setting: 4091 adolescents (age M = 13.64, SD = 1.59; 48.9 % males) were recruited from a public school in China.

Methods: In a cross-sectional design, participants completed the Childhood Trauma Questionnaire-Short Form (CTQ-SF), the Cognitive Emotion Regulation Questionnaire-Short version (CERQ-Short), the Self-Rating Depression Scale (SDS), and the Internet Addiction Test (IAT). A latent structural equation model was …