Digital Commons Network^™

Taking Scale Seriously In Technology Law, Mark P. Mckenna, Woodrow Hartzog

Faculty Scholarship

Issues of scale—the relationship between the amount of an activity and its associated costs and benefits—permeate discussions around law and technologies. Indeed, it’s not much of an exaggeration to say that scale is the reason for most technology regulation.

But it’s not always clear how lawmakers and judges conceptualize “scale” when approaching questions around automated technologies. Scale is often used intuitively, just to mean “more.” But scale is not always just about more—scale can introduce new harms and benefits along different dimensions, not simply costs or efficiencies of greater magnitude.

In this Article, we argue for a more sustained interrogation …

The Missing Constitutional Law Of Executive Conditions, Nicole Huberfeld, Matthew B. Lawrence

Faculty Scholarship

This Article contributes to development of the constitutional law of executive conditions. Courts are wrestling with the constitutionality of federal efforts to encourage what the federal government cannot mandate—speech on particular subjects, participation in cooperative federalism programs, and so on—but have failed to appreciate an important distinction. Binding statutory conditions articulated by Congress or an executive branch delegee (statutory conditions) and non-binding executive conditions articulated by executive branch actors engaged in regulation by deal (executive conditions) are different in constitutionally salient ways that can and should inform the development of workable doctrine. Yet courts, advocates, and scholars have only begun …

Five Lessons From Ken Kersch’S Conservatives And The Constitution For The Present Moment, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and …

The Punishment Paradox, Steven Arrigg Koh

Faculty Scholarship

What does criminal punishment do? Across centuries of criminal legal thought, a shared answer persists: punishment incapacitates the wrongdoer. And yet punishment sometimes yields its opposite. Paradoxically, punishment sometimes becomes a rallying point-expanding community identification and solidarity around the defendant. This Article shows this punishment paradox using the 2023-24 prosecutions of President Trump and recent and historical case examples-from Luigi Mangione to Karen Read to Rosa Parks. By arguing that criminal law can generate solidarity rather than stigma, the Article both rethinks foundational theories of punishment and reconsiders the role of criminal law in democratic politics. Such an approach transcends …

Corporate Law's Duty Of Data Loyalty, Andy Serwin, Neil Richards, Woodrow Hartzog, Ryan Durrie

Faculty Scholarship

Privacy law used to be a relatively tidy field, involving a few interesting but discrete topics like press disclosures of private facts, wiretapping, and the processing of personal data by internet companies. But as the digital revolution continues to disrupt area after area of human activity and software “is eating the world,” the core concerns of privacy law such as “when is it appropriate to process personal data?” have similarly entered field after field. Today, most fields of law, including discrimination law, antitrust, and international law, have found it necessary to reckon with the questions of informational harm and power …

Prevention Beyond Deterrence, Benjamin A. Barsky

Faculty Scholarship

This Article reconceptualizes preventive justice—the public safety paradigm that seeks to prevent harm before it occurs. Scholars have long documented how cities have advanced this paradigm through largely punitive measures, notably variants of broken windows policing, which posit that aggressive misdemeanor enforcement deters more serious crime. Yet in the aftermath of the 2020 George Floyd protests, and as underscored recently in City of Grants Pass v. Johnson, these measures have faced a legitimacy crisis—prompting calls for nonpunitive responses to nonviolent incidents.

This Article establishes a preventive justice approach that advances health and safety without emphasizing crime deterrence. It draws on …

An International Approach To Homelessness. Part I: The Case Of India., Pranit Lanjewar, Jaroslaw Richard Romaniuk

Faculty Scholarship

This paper, the first in a two-part study on homelessness in developing countries, explores the causes of homelessness in countries with significant populations living in poverty. This instalment focuses primarily on homelessness in India. The country’s diversity in terms of culture and religion is reflected in challenges when approaching issues related to homelessness. We highlight governmental initiatives to combat homelessness and provide impoverished people and families with access to essential services. A qualitative research method was used. We interviewed the recipients of government services aimed at helping their families overcome homelessness. Our findings highlight the role of education and educational …

Attitudes Driving Regional Differences In Long-Acting Injectable Antipsychotic Utilization For Schizophrenia Among Healthcare Professionals, Patients, And Caregivers (Advance): Results From A Multinational Survey Study, Martha Sajatovic

Faculty Scholarship

Background: Long-acting injectable (LAI) antipsychotics improve adherence and reduce schizophrenia relapse rates vs oral antipsychotics (OAs) but remain underused. The ADVANCE study explored country-level differences in LAI use among healthcare professionals (HCPs), patients, and caregivers, to identify drivers of LAI use. Study Design: ADVANCE included participants from Australia, Canada, China, Germany, Israel, South Korea, Spain, and the United States. Eligible HCPs spent ≥25% of their time in direct patient care, managed an adult population of whom ≥10% have schizophrenia, and treated patients prescribed LAIs. Patients aged ≥18 years and caregivers of adults living with schizophrenia who had tried/been offered an …

Opening Brief For Plaintiff-Appellant Emery Barron, Steven Mitchell, Carolyn Sacco, Shaina Sikka, Madeline H. Meth

Faculty Scholarship

By the time Emery Barron sued Pennsylvania Department of Corrections officials in 2021, they had kept him caged for almost six years in solitary confinement without providing a pathway for him to reenter general population. Department of Correction policy calls for officials to review the ongoing need for solitary confinement after an initial ninety-day stint in disciplinary confinement. However, procedural carve outs allow officials to leave people like Barron in solitary indefinitely without an opportunity to be heard by a decisionmaker and without requiring officials to assert any legitimate penological interest behind the confinement.

Under this scheme, which violated both …

Jmu Libraries Magazine: Volume 3, Jenne M. Klotz, Emily D. Blake, Kristen S. Shuyler

Faculty Scholarship

Volume 3 of the biennial JMU Libraries magazine, highlighting services, events, awards of the JMU Libraries.

Experiences And Perceptions Of Patients, Caregivers, And Healthcare Professionals With Long-Acting Injectable Antipsychotics For The Treatment Of Schizophrenia: Qualitative Results From The Multinational Advance Study, Martha Sajatovic

Faculty Scholarship

Introduction: Schizophrenia imposes a substantial burden on individuals and society. Long-acting injectable antipsychotics (LAIs) improve adherence and reduce relapse and hospitalization rates compared with oral treatments for schizophrenia, yet LAI use varies globally. The qualitative interview portion of the global Attitudes DriVing regional differences in long-acting injectable ANtipsychotic utilization for schizophrenia among healthcare professionals (HCPs), patients, and CaregivErs (ADVANCE) study explored the patient journey from schizophrenia diagnosis to treatment, treatment goals, and experiences and perspectives on LAIs that may influence their use. Methods: ADVANCE included HCPs, patients, and caregivers from Australia, Canada, China, Germany, Israel, Spain, South Korea, and the …

Neuroadaptive Return On Investment In Education: A Critical Review Of Eeg And Eye-Tracking For Decision Optimization, Piper Hutson, James Hutson

Faculty Scholarship

This article advances a critical synthesis of a proposed neuroadaptive return on investment framework that integrates electroencephalography and eye-tracking into educational decision systems. The analysis situates neuroadaptive ROI within scholarship on neurodiversity, engagement, and adaptive learning, arguing that process-level indicators of attention, cognitive load, and persistence merit inclusion alongside conventional outcome metrics in investment models. Methodological scrutiny examines construct validity for neural and gaze indices, requirements for multimodal fusion, calibration across heterogeneous learner profiles, and threats to internal and external validity in classroom contexts. Evidence from pilot implementations suggests feasibility for real-time pacing, friction-point detection, and targeted resource triage, although …

Large Language Models As Machines Of Beauty: Cognitive Averaging, Latent Space Geometry, And The Entropic Foundations Of Aesthetic Preference, Daniel Plate, James Hutson

Faculty Scholarship

This study advances the position that large language models (LLMs) and human perceptual systems are governed by a shared computational drive toward prototypicality, entropy reduction, and aesthetic coherence. Drawing on developmental evidence that infants exhibit early preferences for facial symmetry and averageness, the analysis situates aesthetic preference within broader research on processing fluency and predictive coding, emphasizing that biological perception rewards stimuli that reduce uncertainty and support efficient information compression. This foundation is used to examine how LLMs, through cross-entropy optimization, perplexity minimization, and latent space clustering, converge on high-density representational regions that operate as statistical prototypes of linguistic and …

Lawyers' Client-Inclusive Negotiations: The "New Mediation"?, Nancy A. Welsh, Donna Shestowsky

Faculty Scholarship

When proponents initially urged the courts to institutionalize mediation for the resolution of general civil cases, they argued that the procedure would be superior to trial—and also to lawyers’ settlement negotiations—in terms of parties’ exercise of self-determination, satisfaction with outcomes, and opportunity for voice. These claims, however, rested on certain assumptions, particularly regarding the implementation of mediation and lawyers’ settlement negotiations. In mediation, the parties were to take center stage, with the mediator assisting them by facilitating their communication and negotiation so that they could reach a customized resolution. Lawyers’ settlement negotiations in general civil litigation, meanwhile, were assumed to …

Defending Form Contract Consent, Wayne R. Barnes

Faculty Scholarship

The issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing standard forms replete with boilerplate fine print, companies have created a regime whereby it is most likely irrational for consumers to bother reading the terms before consenting to the transaction. The existing “duty to read” doctrine is that consumers fully consent to all terms when they …

General Rulemaking Grants And The Federal Trade Commission, Tamar Katz, Alex Lloyd George, Lev Menand, Tim Wu

Faculty Scholarship

The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC’s opponents, already adopted by …

Purpose And Nonprofit Enterprise, Cathy Hwang, Dorothy S. Lund

Faculty Scholarship

Nonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success is all the more surprising.

This Essay offers a novel “purposeful enterprise” theory to explain the puzzling success of nonprofit enterprises. Drawing on research in behavioral economics and organizational science, it argues that organizational purpose …

Social Media Participation And Scholarly Success In Law, Julian Nyarko, David E. Pozen

Faculty Scholarship

Using a novel dataset on Twitter activity as well as a novel corpus of law journal publications, this paper examines the impact of social media activity on the scholarly success of U.S. law professors. We find that joining Twitter increases citation counts by an average of 22% per year and improves article placements by up to 10 ranks for law professors, relative to a synthetic control group. These positive returns apply across nearly all classes of scholars and are magnified for those who post frequently about their own work. The identified citation boost would be even larger than 22% if …

United States V. Skrmetti: L’Identité De Genre Dans Le Droit Et La Politique De L’Égale Protection, Olatunde C.A. Johnson

Faculty Scholarship

French Abstract: L’article analyse l’arrêt United States v. Skrmetti, dans lequel la Cour suprême américaine juge que l’interdiction, par le Tennessee, des bloqueurs de puberté pour les mineurs trans ne viole pas la clause constitutionnelle d’égalité, dite clause « d’égale protection ». Refusant de considérer qu’il s’agit d’une discrimination fondée sur le sexe, la Cour applique le contrôle le plus déférent (base rationnelle) et accepte l’argument de l’État selon lequel il protège les mineur·es de risques médicaux incertains. L’auteure montre ici que cette approche s’inscrit dans un contexte plus large de lois et de décrets fédéraux visant les personnes …

Semaglutide For Metabolic Dysfunction–Associated Steatohepatitis (Mash): Estimating Eligibility From The 2021–2023 National Health And Nutrition Examination Survey (Nhanes), Jennifer B. Levin, Martha Sajatovic, Seth N. Sclair

Faculty Scholarship

There has been considerable interest in the potential of GLP-1 agonists for treating chronic liver disease.1 Following the positive results of the Phase 3 ESSENCE trial,2 on August 15, 2025, the FDA-approved Wegovy (semaglutide) for the treatment of metabolic dysfunction–associated steatohepatitis (MASH).3 Recently, the eligibility for semaglutide across all current indications in the United States, including diabetes management, weight management, and secondary prevention of cardiovascular disease (CVD), was estimated to be nearly 137 million individuals based on the National Health and Nutrition Examination Survey (NHANES, 2015–2020).4 Although weight management subsumed all eligibility for secondary prevention of CVD, as well as …

The Nature Of Scientific Justification, Haixin Dang

Faculty Scholarship

Mikkel Gerken’s book Scientific Testimony is a welcome step in reconnecting contemporary analytic epistemology with the philosophy of science. The central topic of the book—as it says in the title—is testimony, which has been a major area of research for epistemologists for the last couple of decades. Testimony refers to the process by which we can acquire knowledge or justified belief from what others have told us. Roughly speaking, epistemologists agree that testimony is an important source of knowledge but disagree over the exact conditions under which testimony can lead to knowledge. But for philosophers of science, learning from one …

Enhanced Sensory Perception And Myoelectric Control With High Channel Count Implanted Sensorimotor Systems, Sedona R. Cady, Joris Lambrecht, Dustin J. Tyler

Faculty Scholarship

Objective. Implanted electrodes for nerve stimulation and myoelectric recording facilitate bidirectional sensory feedback and control for neuromuscular conditions such as limb loss. While increasing implanted electrode channel count offers potential benefits, it also presents engineering and implementation challenges. This case study examines how increasing implanted electrode channel count affects sensory perception and myoelectric controller performance, thereby supporting the value of these advancements. Approach. One participant with upper extremity transradial limb loss received a percutaneous implanted system with two 8-channel extraneural cuff electrodes on the median and ulnar nerves, totaling 16 stimulating channels. The individual later received a wirelessly connected implanted …

Real Topological Hochschild Homology Via The Norm And Real Witt Vectors, Gabriel Angelini-Knoll

Faculty Scholarship

We prove that Real topological Hochschild homology can be characterized as the norm from the cyclic group of order 2 to the orthogonal group O(2). From this perspective, we then prove a multiplicative double coset formula for the restriction of this norm to dihedral groups of order 2m. This informs our new definition of Real Hochschild homology of rings with anti-involution, which we show is the algebraic analogue of Real topological Hochschild homology. Using extra structure on Real Hochschild homology, we define a new theory of p-typical Witt vectors of rings with anti-involution. We end with an explicit computation of …

Signaling Through National Security Lawmaking, Weijia Rao

Faculty Scholarship

An often-overlooked element of the ongoing TikTok saga is China’s export control law, which prohibits the sale of TikTok’s core content recommendation algorithm without prior approval from the Chinese government. This law is just one example of the extensive national security lawmaking China has undertaken in recent years. Closely paralleling similar institutions in the U.S., China has established a comprehensive national security legal framework that authorizes the government to restrict exports, sanction foreign entities, screen foreign investments, and block transactions involving cyber infrastructure.

Why turn towards legality when China has the ability to employ these actions without a formal legal …

Genocidal Accusation, Steven Arrigg Koh

Faculty Scholarship

To accuse of genocide — what does it mean? Genocidal accusation is ubiquitous today, evident more in the public square than in any courtroom. At first glance, such accusation seemingly relies on a central assumption: genocidal accusation is critical to preventing atrocity. This Article argues that this widespread assumption is incomplete, obscuring genocidal accusation’s dual nature. In fact, genocidal accusation encompasses not only laudable atrocity prevention (for example, the Rwandan genocide), but also problematic punitive, carceral discourse that brands the “other” as morally polluted (such as President Putin’s Ukraine invasion). It is thus challenging to evaluate such accusation in the …

Antidepressant Use In Older Age Bipolar Disorder (Oabd): Results From The Gage-Bd International Consortium, P. J. Chen, Lisa T. Eyler

Faculty Scholarship

Background Antidepressants are still commonly prescribed in bipolar disorders, despite ongoing controversy of the potential risk of inducing hypomania/mania. There is limited knowledge about the characteristics of antidepressant use in older age bipolar disorder (OABD; age ≥50) in the current literature. Aim To describe antidepressant use, sociodemographic and clinical correlates of a global sample of OABD individuals. Methods The Global Aging and Geriatric Experiments in Bipolar Disorder (GAGE-BD) consortium provided cross-sectional international data on OABD individuals ( n = 746) and younger-age bipolar disorder (YABD, age <50 years; n = 692) regarding antidepressant use. Multivariate logistic regression was employed to assess the association between AD use with demographic and clinical variables. Results Of 1252 participants, 33.1 % of OABD individuals and 38.1 % of YABD individuals were using antidepressants. In multivariable models among OABD, antidepressant use was associated with BD type II (OR = 1.61, 95 % CI: 1.09–2.38), higher depression severity (mild-to-moderate: OR = 1.86, 95 % CI: 1.13–3.06; severe: OR = 4.23, 95 % CI: 2.38–7.50), lower YMRS scores (OR = 0.93, 95 % CI: 0.89–0.97), female sex (OR = 1.37, 95 % CI: 1.00–1.89), lower education (OR = 0.61, 95 % CI: 0.43–0.86), and being unemployed (OR = 0.69, 95 % CI: 0.50–0.96). Antidepressant monotherapy was reported in 18 % of OABD users ( n = 46) and 19 % of YABD users ( n = 51). These findings suggest that both clinical severity and sociodemographic characteristics influence antidepressant prescribing in OABD. Conclusion Antidepressant use was less prevalent in OABD compared to YABD, and associated with female sex, lower education, lack of occupation, type II BD, higher depression severity and lower mania scores. In OABD, antidepressants appear to be used more commonly in contexts where they may be clinically more indicated, such as increased depression severity.

State Of Ohio Adversity And Resilience (Soar) Study Protocol: A Comprehensive, Multimodal, Family-Based, Longitudinal Observational Investigation Of Risk And Resilience In Mental Health And Substance Use Disorders, Chris Flask, Martha Sajatovic

Faculty Scholarship

Introduction Deaths related to drug overdose and suicide in the USA have increased 500% and 35%, respectively, over the last two decades. The human and economic costs to society associated with these - €- deaths of despair' are immense. Great efforts and substantial investments have been made in treatment and prevention, yet these efforts have not abated these increasing trajectories of deaths over time. The COVID-19 pandemic has exacerbated and highlighted these problems. Notably, some geographical areas (eg, Appalachia, farmland) and some communities (eg, low-income persons, - €- essential workers', minoritised populations) have been disproportionately affected. Risk factors have been …

Presidents, Opinions, And Independent Officers, Jed Handelsman Shugerman

Faculty Scholarship

The Opinions in Writing Clause is a persistent textual problem for the claim that Article II implies an indefeasible removal power: If the Framers believed they had given the president an unconditional removal power, why would they also specify a lesser power merely to ask for opinions? New historical research confirms this textual problem was also contextual: early state constitutions, the Ratification debates, and the First Congress indicate that the Opinions Clause’s original public meaning signaled independence of department heads, or at least the possibility of congressional requirements like good cause.

Legal scholars have already shown that the texts of …

Association Between Adherence Barriers, Self-Reported Adherence, And Psychiatric Symptoms Among Adults With Bipolar Disorder, Martha Sajatovic, Jennifer B. Levin, Clara Adeniyi, Jessica Black, Celeste Weise, Nicole Fiorelli, Erika Kelley

Faculty Scholarship

Aims: While suboptimal medication adherence is a widely recognized problem for people with bipolar disorder (BD), it is less clear how individual characteristics are associated with varying levels of adherence and how specific adherence barriers impact behaviors. This interim analysis from an ongoing randomized controlled trial (RCT) examined associations between patient-reported adherence, adherence barriers, and mood symptoms among poorly adherent individuals with BD. Methods: RCT participants were adults age ≥ 18 years old with BD Type 1 or 2, difficulties with medication adherence, and actively symptomatic as measured by Brief Psychiatric Rating Scale (BPRS) score ≥ 36, Young Mania Rating …

Beyond Phonics: Neuroaesthetic And Symbolic Divergence In Culturally Responsive Dyslexia Screening, Piper Hutson, James Hutson

Faculty Scholarship

Recent advances in neuroscience and educational technology have challenged the traditional phonological-deficit model of dyslexia, revealing the profound influence of visual-symbolic processing, neuroaesthetic resonance, and cultural context in the reading brain. This article interrogates prevailing assessment paradigms by synthesizing research on the Visual Word Form Area (VWFA), cross-linguistic literacy systems, and emerging neurodiversity frameworks. The study addresses the urgent need to reconceptualize dyslexia as a heterogeneous divergence in symbolic processing—rooted as much in neuroaesthetic and visuospatial alignment as in phonemic awareness. Existing screeners, predominantly optimized for English and other Latin-based scripts, systematically neglect the cognitive realities of learners in multilingual …