Digital Commons Network^™

Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu

Faculty Scholarship

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his …

Letting Offenders Choose Their Punishment?, Gilles Grolleau, Murat C. Mungan, Naoufel Mzoughi

Faculty Scholarship

Punishment menus allow offenders to choose the punishment to which they will be subjected from a set of options. We present several behaviorally informed rationales for why punishment menus may serve as effective deterrents, notably by causing people to refrain from entering a calculative mindset; reducing their psychological reactance; causing them to reconsider the reputational impacts of punishment; and reducing suspicions about whether the act is enforced for rent-seeking purposes. We argue that punishment menus can outperform the traditional single punishment if these effects can be harnessed properly. Our observations thus constitute a challenge, based on behavioral arguments, to the …

Discredited Data, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly employing pretrial algorithms as a solution to the racial and socioeconomic inequities in the bail system. But in practice, pretrial algorithms have reproduced the very inequities they were intended to correct. Scholars have diagnosed this problem as the biased data problem: pretrial algorithms generate racially and socioeconomically biased predictions, because they are constructed and trained with biased data.
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/="/">This Article contends that biased data is not the sole cause of algorithmic discrimination. Another reason pretrial algorithms produce biased results is that they are exclusively built and trained with data from carceral knowledge sources – the …

Balancing Rights And Responsibilities: The Role Of Government And Citizens In Combatting Gun Violence, Michael Ulrich

Faculty Scholarship

Congress passed the first federal legislation on firearms safety in decades at nearly the same moment that the Supreme Court issued its first major Second Amendment decision since 2008. It will take time to assess the effects of these actions on both gun safety and Second Amendment rights, but, with gun violence skyrocketing across the country, it is clear that finding a balance between rights and safety is desperately needed. The public is ill-equipped to protect itself against the broad harms of gun violence, so the government has a central role to play in addressing those harms and the racial …

Reproductive Biology Of Gazella Arabica: Predictors Of Offspring Weight And Short- And Long-Term Offspring Survival, Ryan A. Martin

Faculty Scholarship

Reproductive traits are central to organismal fitness, and so the factors influencing patterns of reproduction and offspring survival are at the heart of biology. Making use of breeding data collected over 16 years at the King Khalid Wildlife Research Centre in Saudi Arabia, we investigated the reproductive biology of Arabian gazelles Gazella arabica. Offspring survival was mainly a function of birth weight, with heavier offspring having higher survival rates than lighter offspring. However, while sons were heavier than daughters, daughters had higher survival rates. We could not find evidence that giving birth to sons negatively impacts offspring weight in the …

Public Carry Versus Public Health — The Harms To Come From The Supreme Court’S Decision In Bruen, Michael Ulrich

Faculty Scholarship

In June, the U.S. Supreme Court ruled in New York State Rifle & Pistol Association v. Bruen that the Second Amendment provides a constitutionally protected right to carry firearms in public. The decision is already creating turmoil in the form of political and public backlash and a scramble by policymakers to find new ways to combat the growing gun-violence epidemic in the United States. The majority opinion in Bruen, written by Justice Clarence Thomas, will have a devastating impact on efforts to mitigate gun violence and address racial disparities, but the reasoning used in the decision could cause even …

Are Rules Effective Before Publication? Reflections On The D.C. Circuit’S Decision In Humane Society V. Usda, Jack M. Beermann

Faculty Scholarship

Since at least 1980, there has been a documented increase in regulatory activity at the end of presidential terms, especially in the post-election period when the outgoing President’s successor is from the other party. This phenomenon has come to be known as “midnight regulation,” and the products of end-of-term legislative rulemaking are referred to as “midnight rules.” While a study I conducted for the Administrative Conference of the United States revealed that most midnight rules are routine,[1] some are not and are designed to project the agenda of the outgoing administration into the future and force the incoming administration …

The Role Of Law And Myth In Creating A Workplace That 'Looks Like America', Susan Bisom-Rapp

Faculty Scholarship

Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection.

This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law …

The Environmental, Social, Governance (Esg) Debate Emerges From The Soil Of Climate Denial, Lawrence J. Trautman, Neal Newman

Faculty Scholarship

It has been almost six decades since Rachel Carson’s ominous warning of pending environmental disaster. During 2019 the United Nations requested urgent action from world leaders, given that “just over a decade is all that remains to stop irreversible damage from climate change.” With every passing year, damage resulting from destructive climate change causes increased pain, suffering, death and massive property loss. During 2020 and 2021 alone, severe weather events have included: destructive fires in California; record breaking freeze, power outage, and threat to the electrical grid in Texas; continuation of disruptive drought in U.S. Western states; and record-breaking high …

Beyond Bristol-Myers : Personal Jurisdiction Over Class Actions, Adam N. Steinman

Faculty Scholarship

The Supreme Court's 2017 decision in Bristol-Myers Squibb Co. v. Superior Court threatens a sea change in the relationship between personal jurisdiction and aggregate litigation. The most crucial concern has been what the decision means for class actions. Must a court subject the claims of every unnamed class member to separate jurisdictional scrutiny? If so, it could be impossible for a plaintiff who sues in her home state to represent class members outside that state; instead, the Constitution would permit multi-state or nationwide class actions only in states where the defendant is subject to general jurisdiction. For claims against a …

The Trouble With Court-Packing, Neil S. Siegel

Faculty Scholarship

Wide-ranging public discussion of U.S. Supreme Court reform implicates fundamental questions of constitutional policy, norms, and law. This Article focuses on the reform proposal that poses the greatest threat to judicial legitimacy and independence: Court-packing. This Article contends that there has likely been a constitutional convention against Court-packing for a long time now, although it is uncertain whether the convention continues to exist given Senate conduct since 2016. This Article also maintains that Court-packing is not as free from constitutional difficulty as the conventional wisdom holds, even if the arguments for its constitutionality are stronger on balance. Most importantly, this …

Colorblind Capture, Jonathan Feingold

Faculty Scholarship

We are facing two converging waves of racial retrenchment. The first, which arose following the Civil Rights Movement, is nearing a legal milestone. This term or the next, the Supreme Court will prohibit affirmative action in higher education. When it does, the Court will cement decades of conservative jurisprudence that has systematically eroded the right to remedy racial inequality.

The second wave is more recent but no less significant. Following 2020’s global uprising for racial justice, rightwing forces launched a coordinated assault on antiracism itself. The campaign has enjoyed early success. As one measure, GOP officials have passed, proposed or …

Equivocal Originalism, Gary S. Lawson

Faculty Scholarship

"Originalism" is a term shrouded in ambiguity and ripe for equivocation. A recent article by Stephen Sachs in the Harvard Law Review tries to clarify the discussion by distinguishing between originalism as a decision standard, or a set of criteria for ascertaining the truth conditions for propositions, and a decision procedure, or a mechanism for ascertaining whether those truth conditions are satisfied in any given context. That is a helpful distinction, but it still leaves much room for multiple and confusing uses of the term originalism. Jumping off from comments on Professor Sachs's article by Mitchell Berman and Judge Andrew …

Comments On Preliminary Draft 8 [Black Letter And Comments], Jane C. Ginsburg

Faculty Scholarship

PD8 represents a great deal of labor, for which the Reporters deserve recognition. As detailed below, however, PD8’s occasional departures from or omissions of statutory text may not only be misleading or confusing, but – as has been the case with prior drafts – often have the result, if not the purpose, of whittling down the scope of copyright protection. In addition to identifying those instances and explaining their consequences, the following comments will suggest clarifications to some of the Comments and Illustrations.

A Blind Benchmark Of Analysis Tools To Infer Kinetic Rate Constants From Single-Molecule Fret Trajectories, Dorothy A. Erie, Lydia Kisley, Dushani Dunukara

Faculty Scholarship

Single-molecule FRET (smFRET) is a versatile technique to study the dynamics and function of biomolecules since it makes nanoscale movements detectable as fluorescence signals. The powerful ability to infer quantitative kinetic information from smFRET data is, however, complicated by experimental limitations. Diverse analysis tools have been developed to overcome these hurdles but a systematic comparison is lacking. Here, we report the results of a blind benchmark study assessing eleven analysis tools used to infer kinetic rate constants from smFRET trajectories. We test them against simulated and experimental data containing the most prominent difficulties encountered in analyzing smFRET experiments: different noise …

Big Three Power, And Why It Matters, Lucian Bebchuk, Scott Hirst

Faculty Scholarship

This Article focuses on the power and corporate governance significance of the three largest index fund managers commonly referred to collectively as the “Big Three.” We present current evidence on the substantial voting power of the Big Three and explain why it is likely to persist and, indeed, further grow. We show that, due to their voting power, the Big Three have considerable influence on corporate outcomes through both what they do and what they fail to do. We also discuss the Big Three’s undesirable incentives both to underinvest in stewardship and to be excessively deferential to corporate managers.

In …

Update On The Management Of Vitamins And Minerals In Cystic Fibrosis, Senthilkumar Sankararaman

Faculty Scholarship

Advancements in respiratory and nutrition management have significantly improved the survival of patients with cystic fibrosis (CF). With the availability of several nutrition interventions such as oral/enteral nutrition supplements, enteric-coated pancreatic enzymes, and water-miscible CF-specific vitamin supplements, frank vitamin deficiencies—with the exception of vitamin D—are rarely encountered in current clinical practice. Whereas they were previously considered as micronutrients, our current understanding of fat-soluble vitamins and minerals as antioxidants, immunomodulators, and disease biomarkers has been evolving. The impact of highly effective modulators on the micronutrient status of patients with CF remains elusive. This narrative review focuses on the updates on the …

Accountability: Construct Definition And Measurement Of A Virtue Vital To Flourishing, Charlotte Witvliet, Sung Joon Jang, Byron R. Johnson, C. Stephen Evans, Jack W. Berry, Joseph Leman, Robert C. Roberts, John Peteet, Andrew B. Torrance, Ashley N. Hayden

Faculty Scholarship

Embracing accountability to others for one’s responsibilities within relationships is important for flourishing, yet underexamined. An interdisciplinary team defined the construct of accountability and developed an 11-item single-factor Accountability Scale. In national samples with US census demographic representation (total N = 1257), we conducted psychometric analyses using methods from classical test theory (exploratory and confirmatory factor analyses) and item response theory. The Accountability Scale demonstrated internal consistency, construct validity, test-retest reliability, and incremental validity. Accountability correlated positively with relational variables (agreeableness, empathy) responsibility-oriented variables (conscientiousness, self-regulation), virtues (gratitude, forgiveness, limitations-owning humility), relational repair, perceived meaning presence, and flourishing, inversely with …

Augmented Creativity: Leveraging Natural Language Processing For Creative Writing, Daniel Plate, James Hutson

Faculty Scholarship

Recent advances have moved natural language processing (NLP) capabilities with artificial intelligence beyond mere grammar and spell-checking functionality. One such new use that has arisen is the ability to suggest new content to writers to inspire new ideas by using “machine-in-the-loop” strategies in creative writing. In order to explore the possibilities of such a strategy, this study provides a model to be adopted in creative writing courses in higher education. An NLP application was created using Python and spaCy and deployed via Streamlit. The AI allowed students to see if their grammar aligned with those principles and techniques taught in …

Resolving Ultrafast Photoinitiated Dynamics Of The Hachimoji 5-Aza-7-Deazaguanine Nucleobase: Impact Of Synthetically Expanding The Genetic Alphabet, Sarah E. Krul, Sean J. Hoehn, Carlos E. Crespo-Hernández

Faculty Scholarship

The guanine derivative, 5-aza-7-deazaguanine (^5N7CG) has recently been proposed as one of four unnatural bases, termed Hachimoji (8-letter) to expand the genetic code. We apply steady-state and time-resolved spectroscopy to investigate its electronic relaxation mechanism and probe the effect of atom substitution on the relaxation mechanism in polar protic and polar aprotic solvents. Mapping of the excited state potential energy surfaces is performed, from which the critical points are optimized by using the state-of-art extended multi-state complete active space second-order perturbation theory. It is demonstrated that excitation to the lowest energy ¹ππ* state of ^5N7CG results …

Temporal And Sex-Linked Protein Expression Dynamics In A Familial Model Of Alzheimer's Disease, Filipa Blasco Tavares Pereira Lopes, Daniela M. Schlatzer, Rihua Wang, Xiaolin Li, Emily Feng, Mehmet Koyutürk, Xin Qi, Mark R. Chance

Faculty Scholarship

Mouse models of Alzheimer's disease (AD) show progression through stages reflective of human pathology. Proteomics identification of temporal and sex-linked factors driving AD-related pathways can be used to dissect initiating and propagating events of AD stages to develop biomarkers or design interventions. In the present study, we conducted label-free proteome measurements of mouse hippocampus tissue with variables of time (3, 6, and 9 months), genetic background (5XFAD versus WT), and sex (equal males and females). These time points are associated with well-defined phenotypes with respect to the following: Aβ42 plaque deposition, memory deficits, and neuronal loss, allowing correlation of proteome-based …

Galactic Mass-To-Light Ratios With Superfluid Dark Matter, Tobias Mistele, Stacy S. Mcgaugh

Faculty Scholarship

Context. We make rotation curve fits to test the superfluid dark matter model. Aims. In addition to verifying that the resulting fits match the rotation curve data reasonably well, we aim to evaluate how satisfactory they are with respect to two criteria, namely, how reasonable the resulting stellar mass-to-light ratios are and whether the fits end up in the regime of superfluid dark matter where the model resembles modified Newtonian dynamics (MOND). Methods. We fitted the superfluid dark matter model to the rotation curves of 169 galaxies in the SPARC sample. Results. We found that the mass-to-light ratios obtained with …

Pathways From Exposure To Community Violence To Bullying Victimization Among African American Adolescents In Chicago’S Southside, Dexter R. Voisin

Faculty Scholarship

The present study proposes and examines the pathways from exposure to community violence to bullying victimization through the influences of depression, exposure to peer delinquency, and drug use among 638 African American adolescents (aged 12–22) from low-resourced neighborhoods in Chicago’s Southside. The study found that African American adolescents who were exposed to community violence were likely at risk of bullying victimization, depression, exposure to peer delinquency, and drug use. Depression can heighten the risk of bullying victimization. These findings have implications for future research.

Regional Immigration Enforcement, Fatma Marouf

Faculty Scholarship

Regional disparities in immigration enforcement have existed for decades, yet they remain largely overlooked in immigration law scholarship. This Article theorizes that bottom-up pressure from states and localities, combined with top-down pressures and policies established by the President, produce these regional disparities. The Article then provides an empirical analysis demonstrating enormous variations in how Immigration and Customs Enforcement’s twenty-four field offices engage in federal enforcement around the United States. By analyzing data related to detainers, arrests, removals, and detention across these field offices, the Article demonstrates substantial differences between field offices located in sanctuary and anti-sanctuary regions, as well as …

Deregulation And The Lawyers' Cartel, Nuno Garoupa, Milan Markovic

Faculty Scholarship

At one time, the legal profession largely regulated itself. However, based on the economic notion that increased competition would benefit consumers, jurisdictions have deregulated their legal markets by easing rules relating to attorney advertising, fees, and, most recently, nonlawyer ownership of law firms. Yet, despite reformers’ high expectations, legal markets today resemble those of previous decades, and most legal services continue to be delivered by traditional law firms. How to account for this seeming inertia?

We argue that the competition paradigm is theoretically flawed because it fails to fully account for market failures relating to asymmetric information, imperfect information, and …

Criminal Court System Failures During Covid-19: An Empirical Study, Cynthia Alkon

Faculty Scholarship

How did the criminal legal system respond to the early months of pandemic in 2020? This article reports the results of a unique national survey of judges, defense lawyers, and prosecutors that gives a snapshot of how the criminal legal system responded to the COVID-19 in the first five chaotic months. Criminal courts in the United States rely on in-person proceedings and formal and informal in-person communications to manage caseloads. The survey results detail, in ways not previously fully understood, how crucial these in-person communications are and how ill-prepared the criminal courts and legal professionals were to deal with the …

Unaccommodated: How The Ada Fails Parents, Sarah H. Lorr

Faculty Scholarship

No abstract provided.

Brief Of Legal Scholars Defending Race-Conscious Admissions As Amici Curiae In Support Of Respondents, Sffa V. Harvard (20-1199) And Sffa V. University Of North Carolina At Chapel Hill (21-707), Jonathan Feingold, Vinay Harpalani

Faculty Scholarship

Legal Scholars Defending Race-Conscious Admissions uplift two underappreciated dynamics in the subject litigation challenging race-conscious admissions at Harvard and UNC:

1) Petitioner Students for Fair Admissions (“SFFA”) conflates two discrete claims against Harvard: (a) an intentional discrimination (or “negative action”) claim alleging that anti-Asian bias benefits white applicants and (b) a standard affirmative action challenge. SFFA blurs these claims to scapegoat and stigmatize affirmative action as a practice that pits Asian Americans against other students of color. Yet, SFFA belies its own narrative. According to SFFA’s own expert, anti-Asian bias—to the extent it exists—is caused by "colorblind" components of the …

Can Moral Framing Drive Insurance Enrollment In The Us?, Wendy Netter Epstein, Christopher Robertson, David Yokum, Hansoo Ko, Kevin Wilson, Monica Ramos, Katherine Kettering, Margaret Houtz

Faculty Scholarship

To encourage health insurance uptake, marketers and policymakers have focused on consumers' economic self-interest, attempting to show that insurance is a good deal or to sweeten the deal, with subsidies or penalties. Still, some consumers see insurance as a bad deal, either because they rationally exploit private risk information (“adverse selection”), or irrationally misperceive the value due to cognitive biases (e.g., optimism). As a result, about 30 million Americans remain uninsured, including many who could afford it. At the same time, polling suggests that Americans view health insurance through a moral lens, seeking to protect those with pre-existing conditions especially. …

Neuroinflammatory Gene Expression Analysis Reveals Pathways Of Interest As Potential Targets To Improve The Recording Performance Of Intracortical Microelectrodes, Sydney S. Song, Evon S. Ereifej, E. Ricky Chan, Jeffrey R. Capadona

Faculty Scholarship

Intracortical microelectrodes are a critical component of brain-machine interface (BMI) systems. The recording performance of intracortical microelectrodes used for both basic neuroscience research and clinical applications of BMIs decreases over time, limiting the utility of the devices. The neuroinflammatory response to the microelectrode has been identified as a significant contributing factor to its performance. Traditionally, pathological assessment has been limited to a dozen or so known neuroinflammatory proteins, and only a few groups have begun to explore changes in gene expression following microelectrode implantation. Our initial characterization of gene expression profiles of the neuroinflammatory response to mice implanted with non-functional …