Digital Commons Network^™

The Depravity Of The 1930s And The Modern Administrative State, Steven G. Calabresi, Gary Lawson

Faculty Scholarship

Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.

First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …

The Use Of Videoconferencing For Qualitative Interviewing: Opportunities, Challenges, And Considerations, Elliane Irani

Faculty Scholarship

No abstract provided.

Implementing Housing First With Families And Young Adults: Challenges And Progress Toward Self-Sufficiency, Rong Bai, David Crampton, Robert L. Fischer, Nina Lalich, Tsui Chan

Faculty Scholarship

The Housing First approach has shown promise in helping to combat homelessness among chronically homeless single males, but less is known about the approach when it is applied to families and young adults. This study examined data from a pilot Housing First program that served 78 families (n = 63) and single young adults (n = 15) with homeless histories and mental health and/or substance use disorders to explore program functioning and client service use patterns. Using an exploratory sequential mixed methods research design (Creswell & Plano Clark, 2011), qualitative interview data were conducted first, and quantitative administrative data and …

A Roadmap For Urban Evolutionary Ecology, Sarah E. Diamond, Ryan A. Martin

Faculty Scholarship

Urban ecosystems are rapidly expanding throughout the world, but how urban growth affects the evolutionary ecology of species living in urban areas remains largely unknown. Urban ecology has advanced our understanding of how the development of cities and towns change environmental conditions and alter ecological processes and patterns. However, despite decades of research in urban ecology, the extent to which urbanization influences evolutionary and eco-evolutionary change has received little attention. The nascent field of urban evolutionary ecology seeks to understand how urbanization affects the evolution of populations, and how those evolutionary changes in turn influence the ecological dynamics of populations, …

Constructing The First Year Experience: Improving Retention And Graduation Rates At A Hispanic-Serving Institution, Sonia M. Gipson Rankin, Tim Schroeder, Joe Suilmann, Pamela Cheek

Faculty Scholarship

In 2012, UNM teamed up with the Gardner Institute for Excellence in Undergraduate Education, to conduct a Foundations of Excellence® (FoE) First College Year Self Study addressing student success. As members of the First Year Steering Committee, we invented, coordinated, measured, and documented programs for linking students to the academic experiences and support that were best attuned to their needs.

Democratizing Interpretation, Anya Bernstein

Faculty Scholarship

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact, each funnels power right back to the judge.

These outsourcing approaches show a disconnect between the questions judges pose and the methods they use …

Understanding The Effects Of Both Cd14-Mediated Innate Immunity And Device/Tissue Mechanical Mismatch In The Neuroinflammatory Response To Intracortical Microelectrodes, Hillary W. Bedell, Sydney S. Song, Xujia Li, Emily Molinich, Shushen Lin, Andrew J. Shoffstall, Jeffrey R. Capadona

Faculty Scholarship

Intracortical microelectrodes record neuronal activity of individual neurons within the brain, which can be used to bridge communication between the biological system and computer hardware for both research and rehabilitation purposes. However, long-term consistent neural recordings are difficult to achieve, in large part due to the neuroinflammatory tissue response to the microelectrodes. Prior studies have identified many factors that may contribute to the neuroinflammatory response to intracortical microelectrodes. Unfortunately, each proposed mechanism for the prolonged neuroinflammatory response has been investigated independently, while it is clear that mechanisms can overlap and be difficult to isolate. Therefore, we aimed to determine whether …

The Demise Of Drug Design Litigation Death By Federal Preemption, Aaron Twerski

Faculty Scholarship

No abstract provided.

Expert Witness Malpractice, Michael Flynn

Faculty Scholarship

No abstract provided.

Experiential Organizing: Pursuing Relational And Bureaucratic Goals Through Symbolically And Experientially Oriented Work, Keimei Sugiyama, John Paul Stephens

Faculty Scholarship

Current scholarship on organizational practices that foster a sense of care and collaboration in work relationships has yet to fully account for the potential misalignment between the goals of a given practice and how it is actually experienced. To address this issue, we develop a theoretical framework of experiential organizing, which we define as an iterative process through which positive relational and bureaucratic goals of a practice are pursued via symbolically and experientially oriented work. We offer theory to explain how organizations move through the experiential organizing process, what different types of work are required, and how the different parts …

Infrastructural Exclusion And The Fight For The City: Power, Democracy, And The Case Of America's Water Crisis, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Externship Assessment Project: An Empirical Study Of Supervisor Evaluations Of Extern Work Performance, Jodi S. Balsam, Margaret Reuter

Faculty Scholarship

No abstract provided.

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …

Tpp, Rcep And The Future Of Copyright Norm-Setting In The Asian Pacific, Peter K. Yu

Faculty Scholarship

The past decade has seen two mega-regional intellectual property norm-setting exercises focusing on countries in the Asian Pacific region: the Trans-Pacific Partnership (TPP) and the Regional Comprehensive Economic Partnership (RCEP). Taken together, these two mega-regional norm-setting exercises will have unlimited potential to shape future copyright norms in the Asian Pacific region.

For countries involved in either the TPP or RCEP negotiations, legal obligations concerning new protection and enforcement standards will have to be incorporated into domestic law once the applicable agreement enters into force. These standards can be quite burdensome, as they often exceed what is currently required by the …

Centering Women In Prisoners' Rights Litigation, Amber Baylor

Faculty Scholarship

This Article consciously employs both a dignity rights-based framing and methodology. Dignity rights are those rights that are based on the Kantian assertion of “inalienable human worth.”29 This framework for defining rights spans across a number of disciplines, including medicine and human rights law.30 Disciplinary sanctions like solitary confinement or forced medication might be described as anathema to human dignity because of their degrading effect on an individual’s emotional and social well-being.

This Article relies on first-person oral histories where possible. Bioethics scholar Claire Hooker argues that including narratives in work on dignity rights “is both a moral and an …

Enough Said: A Proposal For Shortening Supreme Court Opinions, Meg Penrose

Faculty Scholarship

The role of the judiciary, Chief Justice Marshall famously advised, is “to say what the law is.” Yet, how often do the justices issue a written opinion that ordinary Americans can understand? The Supreme Court increasingly issues lengthy and complex opinions, often containing multiple concurring and dissenting opinions. These opinions can be as confusing as they are verbose.

“To Say What the Law Is Succinctly: A Brief Proposal,” analyzes the justices’ legal writing. Are the justices effective in saying what the law is? Insufficient attention has been devoted to evaluating the justices’ writing and their efficacy at communicating the law. …

Preventing Sexual Harassment And Misconduct In Higher Education: How Lawyers Should Assist Universities In Fortifying Ethical Infrastructure, Susan Saab Fortney

Faculty Scholarship

The shocking reports of sexual misconduct involving Larry Nassar, the former physician at Michigan State University, captured attention worldwide. More than 300 women sued alleging that the university ignored or dismissed complaints. In Congressional testimony the former president of Michigan State apologized and noted that an independent review of the university's policies revealed that they were among the most robust that the consultants had seen. This raises the question as to how sexual misconduct could have gone unaddressed for many years. The answer to this question may be found in a 2018 Consensus Report of the National Academies of Sciences, …

Supreme Verbosity: The Roberts Court's Expanding Legacy, Mary Margaret Penrose

Faculty Scholarship

The link between courts and the public is the written word. With rare exceptions, it is through judicial opinions that courts communicate with litigants, lawyers, other courts, and the community. Whatever the court’s statutory and constitutional status, the written word, in the end, is the source and the measure of the court’s authority.

It is therefore not enough that a decision be correct—it must also be fair and reasonable and readily understood. The burden of the judicial opinion is to explain and to persuade and to satisfy the world that the decision is principled and sound. What the court says, …

Avatars, Acting, And Imagination: Bringing New Techniques Into The Legal Classroom, Joy Kanwar

Faculty Scholarship

No abstract provided.

Oligopoly Pricing And Richard Posner, Keith N. Hylton

Faculty Scholarship

Over a span of nearly 50 years Richard Posner’s voice has loomed large over the subject of oligopoly pricingand antitrust. The span begins in 1969 with Posner’s publication of “Oligopoly and the Antitrust Laws: A Suggested Approach,” which argues for more aggressive enforcement of Section 1 in cases involving circumstantial evidence of conspiracy. The span ends with Posner’s opinion in In re Text Messaging Antitrust Litigation, in 2015. The two writings, the first an academic article published early in Posner’s career and the second a judicial opinion published near the end of his time on the bench, suggest very different …

If You Would Not Criminalize Poverty, Do Not Medicalize It, William M. Sage, Jennifer E. Laurin

Faculty Scholarship

American society tends to medicalize or criminalize social problems. Criminal justice reformers have made arguments for a positive role in the relief of poverty that are similar to those aired in healthcare today. The consequences of criminalizing poverty caution against its continued medicalization.

The Fine Print Of The Mexican Energy Reform, Guillermo J. Garcia Sanchez

Faculty Scholarship

Five years ago, when Mexico transformed its energy sector, most commentators were worried about the government’s capacity to implement the reform. What would the upstream contracts look like? Would the auctions be transparent? How would international companies react? After two successful auction rounds, 107 signed contracts, and the creation of viable regulatory agencies to manage and monitor the reform agenda, the questions have changed. Today, Mexico’s capacity to implement energy reforms and attract foreign investment is no longer in doubt. Today, the most pressing questions about the reform concern its long-term sustainability. Can it survive the Mexican electoral cycles? Will …

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne Barnes

Faculty Scholarship

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

Access To Justice, Rationality, And Personal Jurisdiction, Adam N. Steinman

Faculty Scholarship

After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court’s recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court’s new case law has unquestionably made it harder to establish general jurisdiction—that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic …

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

Faculty Scholarship

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the …

Jedi Training: Developing Habits Of Perception In Our Disciplines, Gillian Parrish

Faculty Scholarship

As longtime practitioners in our disciplines, we develop implicit skills that can be the source of some of the deepest learning for our students. In his book Experience and Education, John Dewey describes habit as “the formation of attitudes, attitudes that are emotional and intellectual…our basic sensitivities and ways of responding to all the conditions we meet in living” (35). Experiencing implies the sensing body, embodied learning, and Dewey does not shy away from the emotional dimensions of learning—both of which are often where the deepest learning happens, where students’ passion for a discipline ignites, and where experts’ best …

Infections In Older Adults: A Case-Based Discussion Series Emphasizing Antibiotic Stewardship, Alyson Michener, Robin L.P. Jump

Faculty Scholarship

Introduction: Compared with younger populations, adults 65 years and older are more likely to suffer infection-related morbidity and mortality, experience antibiotic-related adverse events, and acquire multidrug-resistant organisms. We developed a series of case-based discussions that stressed antibiotic stewardship while addressing management of common infections in older adults. Methods: Five 1-hour case-based discussions address recognition, diagnosis, and management of infections common in older adults, including those living in long-term care settings: urinary tract infections, upper respiratory tract infections, lower respiratory tract infections, skin and soft tissue infections, and Clostridium difficile infection. The education was implemented at the skilled nursing centers at …

Getting It Right: Title Ix's Role In Adjudicating Sexual Assault Claims, Meg Penrose

Faculty Scholarship

Article Extract:

I want to start with a very important point: sexual assault is a crime. We have a serious issue in the United States with sexual assault and sexual harassment. We are seeing this play out right now, and I think the “Me Too” campaign has brought important attention to this issue. An issue that impacts not only our college residence halls, but, as we have seen, the halls of Congress. Serious people are not debating whether sexual assault and sexual harassment pose a societal problem. Rather, serious people are debating how to adequately address these issues without compromising …

Bridging Rhetoric And Pragmatics With Relevance Theory, Brian N. Larson

Faculty Scholarship

In this chapter, I bridge rhetoric and pragmatics, both of which concern themselves with language-in-use and meaning-making beyond formal syntax and semantics. Previous efforts to link these fields have failed, but Sperber and Wilson’s relevance theory (RT), an approach to experimental pragmatics grounded in cognitive science, offers the bridge. I begin by reviewing Gricean pragmatics and its incompatibility with rhetoric and cognitive science. I then sketch RT, but importantly, I identify revisions to RT that make it a powerful tool for rhetorical analysis, a cognitive pragmatic rhetorical (CPR) theory. CPR theory strengthens RT by clarifying what it means to be …

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …