Digital Commons Network^™

#Worstplaintiffever: Popular Public Shaming And Pseudonymous Plaintiffs, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

Bitproperty And Commercial Credit, Christopher K. Odinet

Faculty Scholarship

In the past several years, the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets, ranging from Twitter and Facebook to YouTube and virtual world accounts, is nearly absolute. Indeed, by one account, Americans check social media over seventeen times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six- and seven-figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Faculty Scholarship

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Do You Believe In Magic?: Self-Determination And Procedural Justice Meet Inequality In Court-Connected Mediation, Nancy A. Welsh

Faculty Scholarship

Proponents of the “contemporary mediation movement” promised that parties would be able to exercise self-determination as they participated in mediation. When courts began to mandate the use of mediation, commentators raised doubts about the vitality of self-determination. Though these commentators also suggested a wide variety of reforms, few of their proposals have gained widespread adoption in the courts.

Ensuring the procedural justice of mediation represents another means to ensure self-determination. If mediation provides parties with the opportunity to exercise voice, helps them demonstrate that they have considered what each other had to say, and treats them in an even-handed and …

Britten’S Slippery Semitone And Motivic Intertextuality In The Poet’S Echo, Op. 76, And Serenade, Op. 31, Clare Sher Ling Eng

Faculty Scholarship

Britten wrote a number of vocal works that compose bouquets of poems around a central theme.  In these themed song cycles, he often uses motives to forge connections between different poems, suggesting intertextual relationships that transcend the original meaning of the poems, but render the song cycle more cohesive by underscoring its thematic unity.  This chapter focuses on the motif of the semitone, which I nickname Britten’s Slippery Semitone.  This motif is not unique to Britten, but he masterfully manipulates it in his music.  I show that the Slippery Semitone underlies some of the most characteristic features of Britten’s music, …

Reconceptualizing The Whistleblower's Dilemma, Miriam Baer

Faculty Scholarship

No abstract provided.

Toward A Critical Race Theory Of Evidence, Jasmine Gonzales Rose

Faculty Scholarship

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of …

Brief Amici Curiae On Behalf Of International And Constitutional Law Experts In Support Of Petition For Certiorari, Al Bahlul V. United States , 840 F.3d 757 (D.C. Cir. 2016) (En Banc), Robert D. Sloane, Foley Hoag Llp

Faculty Scholarship

Amici curiae, legal experts in international and constitutional law, believe that a majority of the en banc panel in Bahlul v. United States, 840 F.3d 757 (D.C. Cir. 2016) (en banc), mistakenly affirmed Ali Hamza Ahmad Suliman al Bahlul’s conviction by a military commission for a non-international war crime. The main concurring opinion in that case misconceived how international law defines the jurisdiction of law-of-war military commissions. As amici argue below, it is the Constitution—not international law—that limits the jurisdiction of lawof-war military commissions.

Initiating Research On Igniting Fires In The Blue Ridge Mountains During The Autumn 2016 Conflagration, Cynthia Twyford Fowler

Faculty Scholarship

An unprecedented moment in the fire ecology of the Blue Ridge Mountains occurred in Autumn 2016 when severe drought, frequent anthropogenic ignitions, and seasonality in disturbed deciduous forests fueled widespread burning. As the wildfires burned, wildland firefighters from around the U.S. temporarily moved into the region to assist local land managers. As wildfire risks increased and air quality decreased, local residents became increasingly interested in fire ecology. The community shifted continuously as wildfires were extinguished, wildland firefighters returned home, and local residents disengaged. In conducting research during the conflagration, obtaining consent from community members varied depending on whether or not …

When Antitrust Becomes Pro-Trust: The Digital Deformation Of U.S. Competition Policy, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Resurrecting Miranda's Right To Counsel, David Rossman

Faculty Scholarship

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they …

Reciprocal Legitimation In The Federal Courts System, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and other …

Did Justice Scalia Have A Theory Of Interpretation?, Gary S. Lawson

Faculty Scholarship

It seems beyond bizarre to ask whether Justice Scalia had a theory of textual interpretation. If he did not have such a theory, what were he and his critics talking about for the past three decades? The answer is that they were talking about part of a theory of textual interpretation but not an actual, complete theory. A complete theory of textual interpretation must prescribe principles of admissibility (what counts towards meaning), significance (how much does the admissible evidence count), standards of proof (how much evidence do you need for a justified conclusion), burdens of proof (does inertia lie with …

Bureaucracy As The Border: Administrative Law And The Citizen Family, Kristin Collins

Faculty Scholarship

This contribution to the symposium on administrative law and practices of inclusion and exclusion examines the complex role of administrators in the development of family-based citizenship and immigration laws. Official decisions regarding the entry of noncitizens into the United States are often characterized as occurring outside of the normal constitutional and administrative rules that regulate government action. There is some truth to that description. But the historical sources examined in this Article demonstrate that in at least one important respect, citizenship and immigration have long been similar to other fields of law that are primarily implemented by agencies: officials operating …

Originalist Methodology, Lawrence B. Solum

Faculty Scholarship

This essay sketches an originalist methodology using ideas from legal theory and theoretical linguistics, including the distinctions between interpretation and construction and between semantics and pragmatics. The Essay aims to dispel a number of misconceptions about the methods used by originalists. Among these is the notion that originalists rely on dictionary definitions to determine the communicative content of the constitutional text. Although dictionaries may play some role, the better approach emphasizes primary evidence such as that provided by corpus linguistics. Another misconception is that originalists do not consider context; to the contrary, the investigation of context plays a central role …

Characterization Of Mesophotic Coral/Sponge Habitats And Fish Assemblages In The Regions Of Pulley Ridge And Tortugas From Rov Dives During R/V Walton Smith Cruises Of 2012 To 2015., John K. Reed, Stephanie Farrington, Andrew David, Stacey Harter, Heather Moe, Lance Horn, Glenn Taylor, Jason White, Joshua Voss, Dennis M. Hanisak, Maria Cristina Diaz, Shirley A. Pomponi

Faculty Scholarship

This report summarizes the remotely operated vehicle (ROV) surveys during four cruises from 2012 to 2015 which characterizes the mesophotic coral reef ecosystems at Pulley Ridge and Tortugas. This research is part of a grant funded by the NOAA National Centers for Coastal Ocean Science award NA11NOS4780045: “Connectivity of the Pulley Ridge - South Florida Coral Reef Ecosystem”. The University of Miami ship R/V Walton Smith was used along with the University of North Carolina at Wilmington (UNCW) Super Phantom ROV and the National Marine Sanctuary Foundation (NMSF) Mohawk ROV. The cruises were a collaboration of the University of Miami, …

Fighting Fines & Fees: Borrowing From Consumer Law To Combat Criminal Justice Debt Abuses, Neil L. Sobol

Faculty Scholarship

Although media and academic sources often describe mass incarceration as the primary challenge facing the American criminal justice system, the imposition of criminal justice debt may be a more pervasive problem. On March 14, 2016, the Department of Justice (DOJ) requested that state chief justices forward a letter to all judges in their jurisdictions describing the constitutional violations associated with the illegal assessment and enforcement of fines and fees. The DOJ’s concerns include the incarceration of indigent individuals without determining whether the failure to pay is willful and the use of bail practices that result in impoverished defendants remaining in …

Challenges And Strategies For Prevention Of Multidrug-Resistant Organism Transmission In Nursing Homes, Christopher J. Crnich, Robin L.P. Jump

Faculty Scholarship

Purpose of Review: Nursing home residents are at high risk for colonization and infection with bacterial pathogens that are multidrug-resistant organisms (MDROs). We discuss challenges and potential solutions to support implementing effective infection prevention and control practices in nursing homes. Recent Findings: Challenges include a paucity of evidence that addresses MDRO transmission during the care of nursing home residents, limited staff resources in nursing homes, insufficient infection prevention education in nursing homes, and perceptions by nursing home staff that isolation and contact precautions negatively influence the well being of their residents. Summary: A small number of studies provide evidence that …

Gender As A Variable In Natural-Language Processing: Ethical Considerations, Brian N. Larson

Faculty Scholarship

Researchers and practitioners in naturallanguage processing (NLP) and related fields should attend to ethical principles in study design, ascription of categories/variables to study participants, and reporting of findings or results. This paper discusses theoretical and ethical frameworks for using gender as a variable in NLP studies and proposes four guidelines for researchers and practitioners. The principles outlined here should guide practitioners, researchers, and peer reviewers, and they may be applicable to other social categories, such as race, applied to human beings connected to NLP research.

Breaking Bad Briefs, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Regulating The Packaged Water Industry In Africa: Challenges And Recommendations, Jessica Vapnek, Ashley R. Williams

Faculty Scholarship

No abstract provided.

Collaborative Divorce: What Louis Brandeis Might Say About The Promise And Problems?, Susan Saab Fortney

Faculty Scholarship

If you ask legal ethics scholars what they remember about Louis D. Brandeis's judicial confirmation hearings, most would point to the manner in which he responded to questions about his representation of persons with perceived conflicts of interest. Louis Brandeis responded to challenges by stating that he was "counsel for the situation. Some use this comment when examining problems associated with a single lawyer representing multiple clients in the same transaction. Others believe that Brandeis may have been referring to a type of intermediary role in which lawyers attempt to adjust the rights and interests of multiple clients with potentially …

Too Vast To Succeed, Miriam Baer

Faculty Scholarship

No abstract provided.

Gorsuch Versus Scalia: How Will Antitrust Change?, Keith N. Hylton

Faculty Scholarship

Before writing this review of Judge Neil Gorsuch's antitrust opinions I took a quick look at what others have written on the topic. It was not hard to find several reviews of Gorsuch's antitrust opinions. Why should I write a review of his opinions, I wondered, if others have already done so? Why not simply refer the reader to one or more of the published reviews?

Searching Places Unknown: Law Enforcement Jurisdiction On The Dark Web, Ahmed Ghappour

Faculty Scholarship

The use of hacking tools by law enforcement to pursue criminal suspects who have anonymized their communications on the dark web presents a looming flashpoint between criminal procedure and international law. Criminal actors who use the dark web (for instance, to commit crimes or to evade authorities) obscure digital footprints left behind with third parties, rendering existing surveillance methods obsolete. In response, law enforcement has implemented hacking techniques that deploy surveillance software over the Internet to directly access and control criminals’ devices. The practical reality of the underlying technologies makes it inevitable that foreign-located computers will be subject to remote …

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

Arrested Development: Rethinking The Contract Age Of Majority For The Twenty-First Century Adolescent, Wayne Barnes

Faculty Scholarship

The contract age of majority is currently age 18. Contracts entered into by minors under this age are generally voidable at the minor’s option. This contract doctrine of capacity is based on the policy of protecting minors from their own poor financial decisions and lack of adultlike judgment. Conversely, the age of 18 is currently set as the arbitrary age at which one will be bound to her contract, since this is the current benchmark for becoming an “adult.” However, this article questions the accuracy of age 18 for this benchmark. Until comparatively recently, the age of contract majority had …

Merging Ahead, Increase Speed: A Pilot Of Funder-Driven Nonprofit Restructuring, Robert L. Fischer, Claudia J. Coulton

Faculty Scholarship

Nonprofit agencies face increasing competition for scarce funding resources. Many agencies are considering ways to restructure themselves, often via mergers and acquisitions, as a way to become more effective and competitive. This case study examines a pilot initiative in Cleveland, Ohio, in which philanthropic funders invited and supported nonprofits in the pursuit of significant restructuring efforts. Health and human service nonprofits were recruited into a three-phase facilitated pilot that assisted the agency executive directors and boards in determining what type of restructuring was feasible and desirable. Overall, 75 nonprofits participated in some part of the pilot, 17 of which formally …

Payroll Tax Compliance And Blockchain, Richard Thompson Ainsworth, Ville Viitasaari

Faculty Scholarship

Bitcoin is an application that runs on blockchain technology. Blockchain is a foundational technology that is bringing in the second era of the Internet – the era where value can be transferred, rather than just information.

Blockchain is developing along a four-stage path similar to that which TCP/IP took. Both are foundational technologies. TCP/IP brought the Internet, and eventually brought significant (transformational) technological changes in business like Amazon.com and Skype. These are changes that could not have been forecast at the beginning of the Internet age.

Blockchain is an immutable distributed ledger. It replaces the inefficient use of multiple centralized …

We've Got Letters, Maryam Ahranjani

Faculty Scholarship

Three curriculum guides supporting Washington Post Newspaper in Education (NIE) Program.

From Me to You

This guide focuses on the places from which news is reported — by the letters. Activities and illustrations urge writing the first thank you notes and other letters of appreciation. “Ageless love letters” give an example of how media can use letters on special dates and holidays. This article and the Dodson letter can also be used to discuss how historians and social scientists can use letters to understand the social mores, illnesses and associations of time periods.

Letters Take Many Forms

We begin this …