Digital Commons Network^™

How Experts Have Dominated The Neuroscience Narrative In Criminal Cases For Twelve Decades: A Warning For The Future, Deborah W. Denno

Faculty Scholarship

Phineas Gage, the man who survived impalement by a rod through his head in 1848, is considered “one of the great medical curiosities of all time.” While expert accounts of Gage's post-accident personality changes are often wildly damning and distorted, recent research shows that Gage mostly thrived, despite his trauma. Studying past cases such as Gage’s helps us imagine—and prepare for—a future of law and neuroscience in which scientific debates over the brain’s functions remain fiery, and experts divisively control how we characterize brain-injured defendants.

This Article examines how experts have long dominated the neuroscience narrative in U.S. criminal cases, …

Innovation And Equality: An Approach To Constructing A Community Governed Network Commons, Rider W. Foley, Olivier Sylvain, Shelila Foster

Faculty Scholarship

Networked computing affords users distinct opportunities to communicate with each other, build relationships, transact business, and create. Yet, the digital divide perpetuates existing disparities between social groups. Interventions that rely on private ownership or philanthropy often fall short. Efforts to redress these disparities require collaboration across academic disciplines and with government and private sector organizations. This paper chronicles efforts in Harlem to address this through a collaborative approach to networked computing. We draw on two concepts--responsible innovation and co-governance--to sketch a community-based approach to networked computing. Second, the article identifies two potential systems, based in property law, through which a …

Free-Ing Criminal Justice, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Citizenship Disparities, Emily Ryo, Reed Humphrey

Faculty Scholarship

No abstract provided.

Actively Achieving Greater Racial Equity In The Law School Classroom, Catherine Bramble

Faculty Scholarship

2020 and 2021 continue to illustrate the pervasiveness of implicit and explicit racism in our society. Less well-acknowledged and recognized is the extent to which Socratic pedagogy also reflects those pervasive racist realities while simultaneously resulting in inferior learning based on a teaching method invented 150+ years ago. Despite this racist and outdated reality, the legal academy has been reluctant to alter the traditional method of teaching. Tangible, empirical evidence obtained from data-driven cognitive learning science research demonstrates that active learning not only improves learning outcomes for all students, but also mitigates the structural effects of racism in the classroom …

Homography Of Inventorship: Dabus And Valuing Inventors, Jordana Goodman

Faculty Scholarship

On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience ("DAB US") became the first computer to be recognized as a patent inventor. Due to the advocacy of DAB US's inventor, Dr. Stephen Thaler, the world's definition of "inventor" has finally fractured - dividing patent regimes between recognition of machine inventorship and lack thereof This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship.

This Article addresses the implications of international homographic inventorship - where countries have different notions and rules concerning patent inventorship - and the …

Introduction: Amr Belongs In The Pandemic Instrument, Susan Rogers Van Katwyk, Kevin Outterson

Faculty Scholarship

In the wake of COVID-19, the World Health Organization established an Intergovernmental Negotiating Body to negotiate a new instrument for pandemic prevention, preparedness, and response. This special issue of the Journal of Law, Medicine & Ethics brings together multidisciplinary scholarship to address the question of whether antimicrobial resistance should be included in this new instrument. Drawing from disciplines including law, anthropology, history, public health, public policy, economics, and veterinary medicine, this special issue explores the inclusion of AMR within the Pandemic Instrument from three perspectives: first, through the lens of global AMR governance, second, from the perspective of technical governance …

“Cancel Culture” And Criminal Justice, Steven Arrigg Koh

Faculty Scholarship

This Article explores the relationship between two normative systems in modern society: “cancel culture” and criminal justice. It argues that cancel culture—a ubiquitous phenomenon in contemporary life—may rectify deficiencies of over- and under-enforcement in the U.S. criminal justice system. However, the downsides of cancel culture’s structure—imprecise factfinding, potentially disproportionate sanctions leading to collateral consequences, a “thin” conception of the wrongdoer as beyond rehabilitation, and a broader cultural anxiety that “chills” certain human conduct—reflect problematic U.S. punitive impulses that characterize our era of mass incarceration. This Article thus argues that social media reform proposals obscure a deeper necessity: transcendence of blame …

Investigating Design, Mark Mckenna, Jessica Silbey

Faculty Scholarship

Design is ascendant. Steve Jobs’s legendary obsession with design was widely regarded as Apple’s comparative advantage, and that lesson has not been lost on its competitors. Design thinking is a growth industry, in business and at universities, and design professionals continue to take on increasingly significant roles within firms. The increasing economic significance of design has been reflected in an explosion of design patent applications and increasing amount of design litigation.
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/="/">Despite design’s growing economic and legal importance, relatively little is known by legal scholars and policymakers about designers or the design process. This paper addresses that gap …

The Influence Of White Exceptionalism On Drug War Discourse, Jennifer D. Oliva, Taleed El-Sabawi

Faculty Scholarship

No abstract provided.

Egg-Freezing, Uterine Transplants, And In Vitro Gametogenesis: Disruptive Or Normalizing Reproductive Technologies?, Radhika Rao

Faculty Scholarship

In the last year, headlines have heralded the introduction of several radical new technologies that promise to revolutionize procreation and transform our understanding of reproduction. In March 2021, for example, scientists revealed that mouse embryos had been grown in" artificial wombs" for 11 days, roughly half the animal's natural gestation period. According to Jacob Hanna, the biologist at the Weizmann Institute of Science in Israel who led the research team: "This sets the stage for other species. I hope that it will allow scientists to grow human embryos until week five." At the same time, two groups of researchers reported …

Supervision For Advocacy: Supporting Self-Care, Kathleen J. Farkas, Jaroslaw Richard Romaniuk

Faculty Scholarship

The objective is to examine the intersection of advocacy for social change, the individual’s emotional costs of advocacy, and the use of trauma informed care in supervisory practice to encourage and support advocates and their work. Supervision models exist, but none address the needs of advocates who might become targets for scorn and persecution. The literature on trauma informed care provides a direction to improve the support and supervision of advocates, especially those who use their personal experiences as examples in their work. We reviewed data bases and relevant literature regarding supervision and the principles of trauma informed care. Periodical …

The Pocketbook Next Time: From Civil Rights To Market Power In The Latinx Community, Rachel F. Moran

Faculty Scholarship

The United States is undergoing a demographic transformation. Nearly one in five Americans already is Latinx, and the United States Census Bureau projects that by 2060, nearly one in three will be. Latinx will substantially outnumber every other historically underrepresented racial and ethnic minority group, and non-Hispanic whites no longer will be a majority. Those changes have unsettled traditional approaches to full inclusion.

Civil rights activists have suffered numerous setbacks, and the burgeoning Latinx population is searching for other paths to belonging. Some leaders have turned to growing Latinx market power to demand recognition and equal opportunity. These efforts rely …

Legal Corpus Linguistics And The Half-Empirical Attitude, Anya Bernstein

Faculty Scholarship

Legal writers have recently turned to corpus linguistics to interpret legal texts. Corpus linguistics, a social-science methodology, provides a sophisticated way to analyze large data sets of language use. Legal proponents have touted it as giving empirical grounding to claims about ordinary language, which pervade legal interpretation. But legal corpus linguistics cannot deliver on that promise because it ignores the crucial contexts in which legal language is produced, interpreted, and deployed.

First, legal corpus linguistics neglects the relevant legal context—the conditions that give legal language authority. Because of this, legal corpus studies’ evidence about language use perversely obscures and misstates …

Bigotry, Prophecy, Religion, And The Race Analogy In Marriage And Civil Rights Battles: Responding To Commentaries On Who's The Bigot?, Linda C. Mcclain

Faculty Scholarship

One of the most rewarding parts of writing a book is that it opens the door for constructive conversation with thoughtful and perceptive readers like the scholars who generously contributed to this book symposium. Their various essays touch on and offer powerful insights about the core concerns that I had when I wrote Who’s the Bigot? Learning from Conicts over Marriage and Civil Rights Law. They offer thoughtful empirical and normative observations and surface useful questions about important future investigations. Were I able to write a next chapter—or a sequel—all these commentaries would shape its content. As it is, I …

Unacceptable Agency Part I Of The Problem Of An Unloving World, Jeremy Bendik-Keymer

Faculty Scholarship

The Earth System Governance Project is the largest scholarly body in the world devoted to articulating governance of the Earth’s systems. It recently published a “Harvesting Initiative” looking back on the first iteration of its Scientific Plan. This paper contributes to the decolonial and constructive critique of the theory of agency in that Initiative and argues that it displays “fragmentary coloniality” especially around problematic authority relations in governance. By turning to work on “worlding,” the paper argues for radicalizing questions of authority, leading us to focus not on agency but on moral relationships—work for a sequel to this paper.

Reducing Stroke Burden Through A Targeted Self-Management Intervention For Reducing Stroke Risk Factors In High-Risk Ugandans: A Protocol For A Randomized Controlled Trial, Shirley Moore, Carol Blixen, Martha Sajatovic

Faculty Scholarship

Introduction: Stroke burden is rapidly increasing globally. Modifiable risk factors offer an opportunity to intervene, and targeting hypertension is a key actionable target for stroke risk reduction in sub-Saharan Africa. This 3-site planned randomized controlled trial builds on promising preliminary data. Methods: A total of 246 Ugandan adults will be recruited randomized to experimental intervention vs. enhanced treatment control. Intervention participants will receive six weekly group-format stroke risk reduction self-management training sessions, and the controls will receive information on cardiovascular risk. The primary study outcome is systolic B.P. measured at baseline, 13-week, 24 weeks (6 months). Secondary outcomes include other …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Scholarship

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Fire Otherwise: Lifeways Enhancing Fire Management In A Changing World, Cynthia Twyford Fowler, Cynthia Fowler

Faculty Scholarship

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Fire Otherwise: Lifeways Enhancing Fire Management In A Changing World, Cynthia Twyford Fowler, Cynthia Fowler

Faculty Scholarship

Fire is a daunting human ecological challenge and a major subject in science and policy debates about global trends in land conversion, climate change, and human health. Persistent environmental orthodoxies reduce complex burning traditions to overly simplistic representations of environmental destruction, degradation, and loss while reinforcing existing social inequities involving smallholders. What would a more inclusive and pluralistic fire ecology look like? How and why might we embrace diverse anthropogenic fire regimes and broader understandings of the ways humans interact with fire? Fire otherwise is the support of proactive local and regional efforts to adapt amidst continually changing social and …

When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa

Faculty Scholarship

Indigenous Guatemalan weavers are fighting for intellectual property laws that better protect their designs and other cultural expressions. The exploitation and appropriation by local and international companies has negatively affected the weavers’ livelihoods and resulted in culturally inappropriate uses of spiritual and traditional symbols. Adhering to Western ideals of individual creativity and utility, intellectual property laws in most of the world (including Guatemala) are not suited to protect indigenous creations. To address this legal gap, some countries have adopted sui generis legal regimes that align with communal notions of creation, ownership and stewardship found in indigenous knowledge systems. Based on …

Reckoning: A Dialogue About Racism, Antiracists, And Business & Human Rights, Erika George, Jena Martin, Tara Van Ho

Faculty Scholarship

Video of George Floyd's death sparked global demonstrations and prompted individuals, communities and institutions to grapple with their own roles in embedding and perpetuating racist structures. The raison d'être of Business and Human Rights (BHR) is to tackle structural corporate impediments to the universal realization of human rights. Yet, racism, one of the most obvious of such barriers, has been a blind spot for BHR. While the field has contended with gender inequality, there have only been tokenistic nods to intersectional harms caused by business activities. The failure to address racism seriously undermines both the promise of BHR generally and …

Ethical Challenges In The Middle Tier Of Covid-19 Vaccine Allocation: Guidance For Organizational Decision-Making, Nancy Berlinger, Matthew Wynia, Tia Powell, Aimee Milliken, Parinda Khatri, Fatma Marouf, Keisha Ray, Johanna Crane

Faculty Scholarship

This supplement to The Hastings Center’s “Ethical Framework” aims to help structure time-sensitive discussion of significant, foreseeable ethical concerns in responding to Covid-19 and to support collaboration across institutions throughout pandemic response and recovery. It is designed for use by county health systems and by hospitals, community health centers, and other health care organizations responsible for patient care or preventive health, including vaccine education, vaccine distribution, and vaccination. This document aims to support formal and informal convening and policy work within the same geographic region, such as a municipality, county, metropolitan area, state, or multistate area, led by public health …

Strengthened Bonds: Abolishing The Child Welfare System And Re-Envisioning Child Well-Being, Nancy D. Polikoff, Jane M. Spinak

Faculty Scholarship

The 2001 book, Shattered Bonds: The Color of Child Welfare, by Dorothy Roberts, called out the racism of the child welfare system and the harms that system perpetrates on families and communities. Twenty years later, despite numerous reform efforts, the racism and profound harms endure. It is time for transformative change. In this foreword to the symposium Strengthened Bonds: Abolishing the Child Welfare System and Re-Envisioning Child Well-Being, honoring the 20th anniversary of Shattered Bonds, we highlight Professor Roberts’ articulation of her development as a family policing abolitionist and summarize the articles and comments contributed from scholars …

Dumping: On Law Reviews, James Boyle

Faculty Scholarship

No abstract provided.

The International Governance Of Refugee Work: Reflections On The Jordan Compact, Jennifer Gordon

Faculty Scholarship

For the past seventy years, separate international regimes have governed the economic lives of refugees and labor migrants. The United Nations High Commissioner for Refugees (UNHCR) oversees all aspects of refugee resettlement, including livelihoods, while the International Labor Organization (ILO) is charged with addressing the labor rights of migrants. This division has become increasingly problematic as international actors have sought to move refugees into employment arenas from which they have been largely excluded since the end of WWII. This article uses a case study of the 2016 EU-Jordan Compact to illustrate the risks inherent in positioning refugees as workers in …

Cryptocurrency And The State: An Unholy Alliance, Lee Reiners

Faculty Scholarship

This article contextualizes the rise of cryptocurrency within the historical relationship between money and the state. It begins by asking two simple yet critical questions: What is money and where did it come from? Armed with the answers, the article proceeds by taking a fresh look at cryptocurrency through the lens of the credit theory of money. It finds that cryptocurrency, by using new technologies and incentive-based design, attempts to overcome the previous geographic limitations that hindered broad adoption of private currencies. Even with these innovations, cryptocurrency appeared unlikely to challenge the supremacy of sovereign money until Facebook announced the …

Christian Dignity And The Overlapping Consensus, Frederick Mark Gedicks

Faculty Scholarship

This Article rejects arguments by Christian leaders, scholars, and others who lament the secularization of the West and urge Christian dignity as the foundation of universal human rights. It argues instead that only a secular conception of dignity free of Christian metaphysics can create an overlapping consensus in support of human rights.

Part I describes the roots of Christian dignity in medieval theology and status. Part II briefly recounts how the Renaissance and Enlightenment re-centered the end of dignity from knowing God to knowing oneself, while the Reformation’s extension of original sin to the intellect left Catholicism as the primary …

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

Intellectual Property And Ethnography: A Qualitative Research Approach, Jessica Silbey

Faculty Scholarship

This chapter describes the processes of and justifications for qualitative empirical research in intellectual property (IP) as compared to other research methods, such as quantitative empirical approaches and theoretical economic analyses of law. It provides examples of these research methods, explains the reasons for pursuing a qualitative approach, and details a qualitative research agenda in the context of intellectual property law, as well as a step-by-step method of data collection and data analysis.