Digital Commons Network^™

Observers Use Gesture To Disambiguate Contrastive Expressions Of Preference, Fey Parrill, Grace Moran, Hannah Boylan, Ishita Gupta, Aisha Zamir

Faculty Scholarship

We present two studies exploring how participants respond when a speaker contrasts two ideas, then expresses an ambiguous preference towards one of them. Study 1 showed that, when reading a speaker’s preference as text, participants tended to choose whatever was said last as matching the speaker’s preference, reflecting the recent-mention bias of anaphora resolution. In Study 2, we asked whether this pattern changed for audio versions of our stimuli. We found that it did not. We then asked whether observers used gesture to disambiguate the speaker’s preference. Participants watched videos in which two statements were spoken. Co-speech gestures were produced …

The Place Of The Prosecutor In Abolitionist Praxis, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

Ethical Ai Development: Evidence From Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial Intelligence startups use training data as direct inputs in product development. These firms must balance numerous trade-offs between ethical issues and data access without substantive guidance from regulators or existing judicial precedence. We survey these startups to determine what actions they have taken to address these ethical issues and the consequences of those actions. We find that 58% of these startups have established a set of AI principles. Startups with data-sharing relationships with high-technology firms; that were impacted by privacy regulations; or with prior (non-seed) funding from institutional investors are more likely to establish ethical AI principles. Lastly, startups …

The Rise Of The Minimum Tax, Christopher H. Hanna, Michelle Hanlon, Norman Richter, Michael Schler

Faculty Scholarship

In January 1969, during the last few weeks of the Johnson Administration, Treasury Secretary Joseph Barr testified before the Congressional Joint Economic Committee that in 1967, 155 individuals had $200,000 or more of income but paid no Federal income taxes.5 In fact, twenty-one of them had income of more than $1 million and paid no Federal income taxes.6 It has been reported that Secretary Barr's testimony caused more letters of outrage from the American public to members of Congress in 1969 than the United States' involvement in the Vietnam War.7 Congress responded to Secretary Barr's testimony by enacting a minimum …

The Living Rules Of Evidence, G. Alexander Nunn

Faculty Scholarship

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.

The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal …

The Epistemology Of Second Best, Gary S. Lawson

Faculty Scholarship

Second best theory “holds that where it is not possible to satisfy all the conditions necessary for a[] . . . system to reach an overall optimum, it is not generally desirable to satisfy as many of those conditions as possible.” Adrian Vermeule, Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4, 17 (2009). In other words, if you are not moving all the way to the ideal state of affairs, it is unclear whether partial moves that seem to go in the direction of the ideal make the world “better” or “worse” – with “better” or “worse” …

Implementation Of An Antibiotic Stewardship Program In Long-Term Care Facilities Across The Us, Robin L.P. Jump

Faculty Scholarship

Importance: Antibiotic overuse in long-term care (LTC) is common, prompting calls for antibiotic stewardship programs (ASPs) designed for specific use in these settings. The optimal approach to establish robust, sustainable ASPs in LTC facilities is unknown. Objectives: To determine if the Agency for Healthcare Research and Quality (AHRQ) Safety Program for Improving Antibiotic Use, an educational initiative to establish ASPs focusing on patient safety, is associated with reductions in antibiotic use in LTC settings. Design, Setting, and Participants: This quality improvement study including 439 LTC facilities in the US assessed antibiotic therapy data following a pragmatic quality-improvement program, which was …

On The Photostability Of Cyanuric Acid And Its Candidature As A Prebiotic Nucleobase, Luis A. Ortiz-Rodríguez, Sean J. Hoehn, Carlos E. Crespo-Hernández

Faculty Scholarship

Cyanuric acid is a triazine derivative that has been identified from reactions performed under prebiotic conditions and has been proposed as a prospective precursor of ancestral RNA. For cyanuric acid to have played a key role during the prebiotic era, it would have needed to survive the harsh electromagnetic radiation conditions reaching the Earth’s surface during prebiotic times (≥200 nm). Therefore, the photostability of cyanuric acid would have been crucial for its accumulation during the prebiotic era. To evaluate the putative photostability of cyanuric acid in water, in this contribution, we employed density functional theory (DFT) and its time-dependent variant …

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …

Patent Inconsistency, Saurabh Vishnubhakat

Faculty Scholarship

Despite the promise of efficiency through the use of expert agency adjudication in U.S. patent law, administrative substitution continues to fall short. In a variety of ways, the decade-old system of Patent Office adjudication is simply an additional place to litigate rather than the robust technocratic alternative it was meant to be. These problems have arisen from important defects in the statutory design, but also from the enormous expansion and ascendancy of the Patent Office itself. Moreover, while duplicative litigation over patent validity is recognized and criticized, its scale and scope has eluded detailed empirical analysis until now. This Article …

Contributing Factors To Low Energy Availability In Female Athletes: A Narrative Review Of Energy Availability, Training Demands, Nutrition Barriers, Body Image, And Disordered Eating, Andrew R. Jagim, Jennifer Fields, Meghan K. Magee, Chad M. Kerksick, Margaret T. Jones

Faculty Scholarship

Relative Energy Deficiency in sport is experiencing remarkable popularity of late, particularly among female athletes. This condition is underpinned by low energy availability, which is a byproduct of high energy expenditure, inadequate energy intake, or a combination of the two. Several contributing factors exist that may predispose an athlete to low energy availability, and therefore a holistic and comprehensive assessment may be required to identify the root causes. The focus of the current narrative review is to discuss the primary contributing factors as well as known risk factors for low energy availability among female athletes to help practitioners increase awareness …

The Partnership Mystique: Law Firm Finance And Governance For The 21st Century American Law Firm, Maya Steinitz

Faculty Scholarship

This Article identifies and analyzes the de facto and de jure end of lawyers' exclusivity over the practice of law in the United States. This development will have profound implications for the legal profession, the careers of individual lawyers, and the justice system as a whole.

First, the Article argues that various financial products that have recently flooded the legal market are functionally equivalent to investing in and owning law firms and create all the same governance challenges as allowing nonlawyers to directly own stock in law firms.

Second, the Article analyzes Arizona's groundbreaking legalization of nonlawyer participation in law …

Threat And Emotions: Mobilizing And Attitudinal Outcomes Of A Ballistic Missile Scare, Kelly Bergstrand, Christopher Robertson

Faculty Scholarship

This study examines the false ballistic missile alert that occurred in Hawaii in 2018, which presented a unique opportunity for assessing the civic and mobilizing outcomes of a threat. In the days that followed the scare, we conducted an online experiment to investigate its effects on willingness to engage in activism and concerns about broader issues. Our results show that emotions serve as an important mechanism for channeling threat experiences into concern about specific causes. Those most emotionally affected by the missile scare in Hawaii thought it more important to engage in activities to control the spread of nuclear weapons, …

Prevalence And Amounts Of Common Ingredients Found In Energy Drinks And Shots, Andrew R. Jagim, Patrick S. Harty, Abdelrahman R. Barakat, Jacob L. Erickson, Victoria Carvalho, Chinguun Khurelbaatar, Clayton L. Camic, Chad M. Kerksick

Faculty Scholarship

Background: Energy drinks are one of the most popular packaged beverage products consumed within the United States (US). Energy drinks are considered a functional beverage, a category that also includes sports drinks and nutraceutical beverages. Purpose: The focus of the current study was to examine the nutrition fact panels of the top selling commercially available energy drink and energy shot products within the US to characterize common ingredient profiles to help establish a standard definition and ingredient profile of energy drinks and energy shots for consumers, health care practitioners, and researchers. Methods: The top 75 commercially available energy drinks and …

“Change And Become Like Children”: Eschatological Childhood As Critique And Intention Of Ecclesiological Life, Joel Young

Faculty Scholarship

No abstract provided.

A History Of The West Nutshells, Robert M. Jarvis

Faculty Scholarship

No single source provides a detailed history of the West Nutshell Series. This is rather surprising, given that the books are routinely relied on by both law students and lawyers and have been cited in multiple court opinions. Accordingly, this article provides the first detailed look at the series’ birth, evolution, and present status.

Judging Without A J.D., Sara Sternberg Greene, Kristen M. Renberg

Faculty Scholarship

One of the most basic assumptions of our legal system is that when two parties face off in court, the case will be adjudicated before a judge who is trained in the law. This Essay begins by showing that, empirically, the assumption that most judges have legal training does not hold true for many low-level state courts. Using data we compiled from all fifty states and the District of Columbia, we find that thirty-two states allow at least some low-level state court judges to adjudicate without a law degree, and seventeen states do not require judges who adjudicate eviction cases …

The Diversity Risk Paradox, Veronica Root Martinez

Faculty Scholarship

There is a growing body of literature discussing the proper role of diversity, equity, and inclusion efforts by and within public firms. A combination of forces brought renewed energy to this topic over the past few years. The #MeToo movement demonstrated a whole host of inequities faced by women within workplaces. Business Roundtable’s 2019 Statement on the Purpose of a Corporation rejected the view that the purpose of the corporation was solely to be focused on the maximization of shareholder wealth. And, in 2020, the murder of George Floyd ignited a racial reckoning within the United States, which prompted many …

Constitutional Gun Litigation Beyond The Second Amendment, Joseph Blocher, Noah Levine

Faculty Scholarship

No abstract provided.

Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas …

Post-Grant Adjudication Of Drug Patents: Agency And/Or Court?, Arti K. Rai, Saurabh Vishnubhakat, Jorge Lemus, Erik Hovenkamp

Faculty Scholarship

The America Invents Act of 2011 (AIA) created a robust administrative system—the Patent Trial and Appeal Board (PTAB)—that provides a route for challenging the validity of granted patents outside of district courts. Congress determined that administrative adjudication of the validity of initial patent grants could be cheaper and more scientifically accurate than district court adjudication of such validity.

For private economic value per patent, few areas of technology can match the biopharmaceutical industry. This is particularly true for small-molecule drugs. A billion-dollar drug monopoly may be protected from competition by a relatively small number of patents. Accordingly, the social cost …

Keeping Our Republic, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

Rogue Brokers And The Limits Of Agency Law, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Theory Of Prioritarianism, Matthew D. Adler

Faculty Scholarship

This chapter provides theoretical foundations for the Prioritarianism in Practice volume, by clarifying the features of prioritarian social welfare functions (SWFs). A prioritarian SWF sums up individuals’ well-being numbers plugged into a strictly increasing and strictly increasing transformation function. Prioritarian SWFs, like the utilitarian SWF, fall within the “generalized-utilitarian” class of SWFs.Generalized-utilitarian SWFs are additive and, hence, especially tractable for purposes of policy analysis. The chapter reviews the axiomatic properties of generalized-utilitarian SWFs and, specifically, of prioritarian SWFs. Prioritarianism satisfies the Pigou-Dalton axiom (a pure, gap-diminishing transfer of well-being from a better-off to a worse-off person is an ethical improvement), …

The Law And Science Of Eyewitness Evidence, Thomas D. Albright, Brandon L. Garrett

Faculty Scholarship

Eyewitness evidence crucially depends on visual perception and memory, which are quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated in cases of wrongful conviction. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. Eyewitness evidence, where identification procedures themselves involve experiments, lends itself to scientific research as do few other areas in law. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors—state and federal courts, state lawmakers, …

Protecting Women's Voices: Preventing Retaliatory Defamation Claims In The #Metoo Context, Nicole Ligon

Faculty Scholarship

No abstract provided.

Viral Injustice, Brandon L. Garrett, Lee Kovarsky

Faculty Scholarship

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect. Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs. They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards. Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes a comprehensive look at the decisional law growing out of COVID-19 detainee litigation and situates the judicial response as part of a comprehensive institutional …

Dismantling The Wall, Charles Shane Ellison, Anjum Gupta

Faculty Scholarship

Between 2017 and 2021, the Trump Administration waged an unprecedented battle on U.S. asylum structure, procedure, and substantive law. Seeking to alter long-standing legal principles and practices in a host of areas, the former administration’s efforts to demolish asylum protections were systematic and comprehensive. The Immigration Policy Tracking Project cataloged no fewer than ninety-six discrete policy and regulatory changes that the former administration implemented to curtail access to asylum. While some of the administration’s actions, such as the decision to separate children from their parents at the border, were carried out in the open, many other actions were largely hidden …

Violence And Nondelegation, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

Debates over delegation are experiencing a renaissance. These debates presuppose an initial distribution of constitutional authority between actors that cannot be redistributed, or that can be redistributed only according to some clear ex ante set of rules. Nondelegation in this sense often arises in debates about separation of powers and intergovernmental delegation, although scholars have begun applying the concept to delegations to private corporations and other private actors. The public delegation doctrine restricts one branch of government from transferring its constitutional authority to another branch, while the private delegation doctrine limits transfer of government power to private entities. In this …