Digital Commons Network^™

Review Of Rene Van Woudenberg’S "The Epistemology Of Reading And Interpretation.”, Jeffrey C. Goodman

Faculty Scholarship

I here review Rene van Woudenberg’s monograph, The Epistemology of Reading and Interpretation

Increasing Compliance With International Pandemic Law: International Relations And New Global Health Agreements, Matthew M. Kavanagh, Clare Wenham, Elize Massard Da Fonseca, Laurence R. Helfer, Elvin Nyukuri, Allan Maleche, Sam F. Halabi, Adi Radhakrishnan, Attiya Waris

Faculty Scholarship

No abstract provided.

Return To Sender?: Analyzing The Senior Leader “Open Letter” On Civilian Control Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

In response to the September 2022 open letter, “To Support and Defend: Principles of Civilian Control and Best Practices of Civil-Military Relations,” by eight former secretaries of defense and five former chairmen of the Joint Chiefs of Staff, this Article adds a piece to the unsettled puzzle of civil-military relations. The Letter attempts to detail “core principles or best practices” (CP/BP) regarding civil-military relations, and in response, this Article comments on and clarifies these well-intended efforts. This Article sequentially dissects each CP/BP in today’s context of hyper-politicization, partisanship, technology, and more. Where necessary, the Article explains how the law may …

Extreme Risk Protection Orders In The Post-Bruen Age: Weighing Evidence, Scholarship, And Rights For A Promising Gun Violence Prevention Tool, Andrew Willinger, Shannon Frattaroli

Faculty Scholarship

Extreme Risk Protection Orders (ERPOs) are civil court orders that temporarily prohibit gun purchase and possession by people who are behaving dangerously and at risk of committing imminent violence. As of September 2023, ERPOs are available in 21 states and the District of Columbia. This Article presents an overview of ERPO laws, the rationale behind their development, and a review and analysis that considers emerging constitutional challenges to these laws (under both the Second Amendment and due process protections) in the post-Bruen era. This Article notes that the presence of multiple constitutional challenges in many ERPO-related cases has confused judicial …

Of Bass Notes And Base Rates: Avoiding Mistaken Inferences About Copying, Christopher Buccafusco, Rebecca Tushnet

Faculty Scholarship

To prove copyright infringement, a plaintiff must convince a jury that the defendant copied from the plaintiff’s work rather than independently creating it. To prove copying, especially cases involving music, it’s common for plaintiffs and their experts to argue that the similarities between the parties’ creative works are so great that it is simply implausible that the defendant’s work was created without copying from the plaintiff’s work. Unfortunately, in its present form, the argument is mathematically illiterate: It assumes, without any underlying evidence, that the experts know or could reasonably estimate how likely it is that a song with similarity …

Independence Reconceived, Claire Hill, Yaron Nili

Faculty Scholarship

What makes a director independent? Scholars, regulators, and investors have grappled for decades with the fleeting notion of director independence. Originally conceived as guardians of shareholder interests that could safeguard a corporate board’s ability to check management’s power, independent directors have become a marquee feature of modern corporate governance. But do the corporate actions of directors that are considered “independent” under current standards comport with what we think independence requires? In many cases, the answer would seem to be “no.” From a lack of observable financial impact to the unabated flow of corporate scandals, independent directors seem to keep failing …

Open Prosecution, Brandon L. Garrett, William E. Crozier, Kevin Dahaghi, Elizabeth J. Gifford, Catherine Grodensky, Adele Quigley-Mcbride, Jennifer Teitcher

Faculty Scholarship

Where the vast majority of criminal cases are resolved without a trial, the criminal system in the United States is a system of pleas, not trials. While a plea, its terms, and the resulting sentence entered in court are all public, how the outcome was negotiated remains almost entirely nonpublic. Prosecutors may resolve cases for reasons that are benign, thoughtful, and well-calibrated—or discriminatory, self-interested, and arbitrary—with very little oversight or sunlight. For years, academics and policymakers have called for meaningful data to fill this crucial void.

In this Article, we open the “black box” of prosecutorial discretion by tasking prosecutors …

Masks, Mayhem & The Future Of Disability Rights In Schools, Claire Raj, Crystal Grant

Faculty Scholarship

Disability rights took center stage in the recent battles over universal mask mandates in public schools. Pro-mask advocates argued that universal mask policies were necessary to ensure equal access to education under two different federal disability statutes, Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. Opponents argued universal masking was an infringement on personal liberty and uncalled for by either law. Courts responded with a great deal of confusion that resulted in disparate legal outcomes for cases with essentially the same facts. This confusion, however, is not new—it is rooted in decades of doctrinally …

Plea Tracking In The Durham County District Attorney’S Office: One-Year Report, Kevin Dahaghi, Catherine Grodensky, Elizabeth Gifford, Brandon L. Garrett, William Crozier, Adele Quigley-Mcbride, Jennifer Teitcher, Lauren Clatch

Faculty Scholarship

No abstract provided.

The Meta Oversight Board's Human Rights Future, Laurence R. Helfer, Molly K. Land

Faculty Scholarship

Responses to the new Oversight Board created by Facebook (now Meta) have run the gamut from enthusiastic to overtly suspicious. Many observers are highly skeptical of the Board’s ability to hold Meta accountable or to protect the company’s users. Much of this skepticism is based on a misplaced analogy between the Board and domestic courts. We argue, in contrast, that the core challenges and opportunities that the Oversight Board faces are similar to those confronted by international human rights tribunals. Analyzing the Oversight Board as a de facto human rights tribunal sheds light on the strengths and weaknesses of its …

Finance Against Law: The Case Of China, Shitong Qiao

Faculty Scholarship

Can there be a highly developed financial market without legal protection for investors and creditors? The influential law and finance literature is built on the assumption that legal protection is essential to the development of an impersonal financial market. This Article investigates how two financial markets of trillions of dollars have developed extralegally in the past two decades despite the risk of regulatory enforcement and contract defaults. Specifically, I examine (1) how Chinese internet companies from Sina to Alibaba have designed contracts to circumvent the Chinese government’s ban on foreign capital in its internet industry and (2) how Chinese entities …

Social Cognitive Processes Explain Bias In Juror Decisions, Jaime J. Castrellon, Shabnam Hakimi, Jacob M. Parelman, Lun Yin, Jonathan R. Law, Jesse A.G. Skene, David A. Ball, Artemis Malekpour, Donald H. Beskind, Neil Vidmar, John M. Pearson, J. H. Pate Skene, R. Mckell Carter

Faculty Scholarship

Jury decisions are among the most consequential social decisions in which bias plays a notable role. While courts take measures to reduce the influence of non-evidentiary factors, jurors may still incorporate biases into their decisions. One common bias, crime-type bias, is the extent to which the perceived strength of a prosecutor’s case depends on the severity of the crime. Moral judgment, affect and social cognition have been proposed as core processes underlying this and other biases. Behavioral evidence alone has been insufficient to distinguish these explanations. To identify the mechanism underlying crime-type bias, we collected functional magnetic resonance imaging patterns …

Any, James J. Brudney, Ethan J. Leib

Faculty Scholarship

Our statute books use the word “any” ubiquitously in coverage and exclusion provisions. As any reader of the Supreme Court’s statutory interpretation docket would know, a large number of cases turn on the contested application of this so-called universal quantifier. It is hard to make sense of the jurisprudence of “any.” And any effort to offer a unified approach—knowing precisely when its scope is expansive (along the “literal-meaning” lines of “every” and “all”) or confining (having a contained domain related to properties provided by contextual cues)—is likely to fail. This Article examines legislative drafting manuals, surveys centuries of Court decisions, …

War On Covid: Warfare And Its Discontents, Catherine Powell

Faculty Scholarship

This essay analyzes the wartime framing of “fighting” a war on COVID-19—to “fight that invisible enemy,” coronavirus. How might lawmakers address social crises, such as COVID, with the urgency of an emergency without reinforcing our overly-militarized, securitized, and policed state? The problem with a securitized approach is that the notion of security combines conceptual ambiguity with heightened urgency and this indeterminacy can shape and even distort legality in exceptional moments.

I examine the use of the security framework in the context of war-related legal authority to address the pandemic and steps necessary for building a post-pandemic recovery. Importantly, this project …

Gender Diversity Cultural Responsiveness Education In Speech-Language Pathology Graduate Programs: A Pilot Survey, Tara Dickinson, Molly Normandin, Rachel W. Mulheren

Faculty Scholarship

Purpose: Gender-affirming voice therapy aims to align a person’s voice and communication with their gender identity. Historically, transgender and gender-nonconforming (TGNC) individuals have been marginalized and continue to face significant healthcare disparities. The goal of this research was to examine the self-perceived preparedness of recent speech-language pathology (SLP) graduates for working with TGNC clients. A survey was developed to include both multiple choice and open-ended questions. Topics included graduate-level training on working with TGNC individuals, perceived preparedness to work with this client population, educational resources sought by respondents, and suggested improvements for SLP graduate programs. Thirty recent (since 2016) SLP …

Prediction Of Kinase-Substrate Associations Using The Functional Landscape Of Kinases And Phosphorylation Sites, Serhan Yilmaz, Filipa Blasco Tavares Pereira Lopes, Mark R. Chance, Mehmet Koyutürk

Faculty Scholarship

Protein phosphorylation is a key post-translational modification that plays a central role in many cellular processes. With recent advances in biotechnology, thousands of phosphorylated sites can be identified and quantified in a given sample, enabling proteome-wide screening of cellular signaling. However, for most (> 90%) of the phosphorylation sites that are identified in these experiments, the kinase(s) that target these sites are unknown. To broadly utilize available structural, functional, evolutionary, and contextual information in predicting kinase-substrate associations (KSAs), we develop a network-based machine learning framework. Our framework integrates a multitude of data sources to characterize the landscape of functional relationships …

The Phantasm Of Principle, Wilfred Codrington Iii

Faculty Scholarship

No abstract provided.

Functional Tort Principles For Internet Platforms: Duty, Relationship, And Control, Edward Janger, Aaron Twerski

Faculty Scholarship

No abstract provided.

Racial Time, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Disrupting Carceral Logic In Family Policing, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Taming Online Public Health Misinformation, Tomer Kenneth

Faculty Scholarship

No abstract provided.

Rational Contract Design, Naveen Thomas

Faculty Scholarship

No abstract provided.

Policing The Unhoused, Ernesto A. Longa

Faculty Scholarship

[A]n Albuquerque police officer ordered Joleen Nez, a 37- year-old, unhoused, American Indian woman, “to pick up her litter [from the street] and of the consequences if she did not.” Joleen refused, stating, “It’s not my trash.” The consequences were that Joleen was summoned to appear in court for littering, booked into the Bernalillo County Metropolitan Detention Center (“MDC”) when she failed to appear and declared an in-custody death the next day.These stories and others like them prompted a series of questions. Why are non-violent petty criminal offenders being murdered by police and dying in county jails? What does the …

Keeping All The Lights On: A Roadmap To Affordable, Universal Electricity Service In The Clean Energy Transition, Gabriel Pacyniak

Faculty Scholarship

The COVID-19 pandemic, the ongoing reckoning with structural racism, and an emerging focus on justice in the clean energy transition have combined to spotlight utility disconnections and the related issues of energy access, affordability, and security. Recent empirical scholarship has demonstrated that electricity disconnections of lower-income people are relatively common, disproportionately affect people of color, and cause significant harm. This Article describes how a number of U.S. states are fashioning an emerging policy model that makes significant progress toward truly affordable and accessible electricity service for all. It also describes how these state actions are consistent with U.S. utility law …

Gonzalez V. Google: The Case For Protecting “Targeted Recommendations, Tomer Kenneth

Faculty Scholarship

No abstract provided.

Binding Hercules: A Proposal For Bench Trials, Maggie Wittlin

Faculty Scholarship

Should the Federal Rules of Evidence apply at bench trials? By their own terms, they apply, but courts have been reluctant to enforce them on themselves with the same rigor that they enforce them on juries. Scholarship on the issue has been mixed. Although McCormick deemed the rules of evidence "absurdly inappropriate" outside of the jury context, more recently, scholars have suggested that many reasons for imposing exclusionary rules on jurors also apply to judges. Yet practical problems persist. For one, once judge evaluate the admissibility of evidence, they can’t “unring the bell” and ignore evidence they've decided to exclude. …

Minding Rights: Mapping Ethical And Legal Foundations Of ‘Neurorights’, Sjors Ligthart, Marcello Ienca, Gerben Meynen, Fruzsina Molnar-Gabor, Roberto Andorno, Christoph Bublitz, Paul Catley, Lisa Claydon, Thomas Douglas, Nita A. Farahany, Joseph J. Fins, Sara Goering, Pim Haselager, Fabrice Jotterand, Andrea Lavazza, Allan Mccay, Abel Wajnerman Paz, Stephen Rainey, Jesper Ryberg, Philipp Kellmeyer

Faculty Scholarship

The rise of neurotechnologies, especially in combination with artificial intelligence (AI)-based methods for brain data analytics, has given rise to concerns around the protection of mental privacy, mental integrity and cognitive liberty – often framed as “neurorights” in ethical, legal, and policy discussions. Several states are now looking at including neurorights into their constitutional legal frameworks, and international institutions and organizations, such as UNESCO and the Council of Europe, are taking an active interest in developing international policy and governance guidelines on this issue. However, in many discussions of neurorights the philosophical assumptions, ethical frames of reference and legal interpretation …

Can Machines Commit Crimes Under Us Antitrust Laws?, Aslihan Asil, Thomas Wollmann

Faculty Scholarship

Generative artificial intelligence is being rapidly deployed for corporate tasks including pricing. Suppose one of these machines communicates with the pricing manager of a competing firm, proposes to collude, receives assent, and raises price. Is this a crime under U.S. antitrust laws, and, if so, who is liable? Based on the observed behavior of the most widely adopted large language model, we argue that this conduct is imminent, satisfies the requirements for agreement and intent under Section 1 of the Sherman Act, and could confer criminal liability to both firms as well as the pricing manager of the competing firm.

Guided By History: Protecting The Public Sphere From Weapons Threats Under Bruen, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Since the Founding era, governments have banned guns in places where weapons threaten activities of public life. The Supreme Court reaffirmed this tradition of “sensitive places” regulation in District of Columbia v. Heller, and locational restrictions on weapons have become a central Second Amendment battleground in the aftermath of New York State Rifle & Pistol Association v. Bruen. Liberals have criticized Bruen for requiring public safety laws to mimic founding practice, while conservatives have criticized it for licensing regulatory change not within the original understanding. In this Article we argue that Bruen’s analogical method looks to the past to guide …

Public Reporting Of Monitorship Outcomes, Veronica Root Martinez

Faculty Scholarship

When a corporation engages in misconduct that is widespread or pervasive, courts, regulators, or prosecutors often insist that the firm obtain assistance from an independent third party — a monitor — to oversee the firm’s remediation effort. The largest firms in the world — from Deutsche Bank, to Volkswagen, to Carnival Cruise Lines — have found themselves having to retain a monitor for corporate misconduct, despite attempts to avoid a monitorship entirely. Traditionally, monitors, or their special master forebearers, were utilized by courts to assist in overseeing compliance with court orders, and their work was both accessible and transparent. As …