Digital Commons Network^™

What Is "United" About The United States?, Gary S. Lawson

Faculty Scholarship

Jack Balkin’s The Cycles of Constitutional Time aims, among other things, to preserve and promote what Jack regards as “democracy and republicanism,” understood as “a joint enterprise by citizens and their representatives to pursue and promote the public good.” My question is whether and how this normative project is possible in a world full of perceptions of social, political, and moral phenomena akin to the white dress/blue dress internet controversy of 2015. Even if Madison had the better of Montesquieu in 1788 (and that is questionable), the United States has grown dramatically since the founding era, in a patchwork, and …

The Place Of The Presidency In Historical Time, Robert L. Tsai

Faculty Scholarship

This Essay arises from a symposium based on Jack Balkin’s book, The Cycles of Constitutional Time, which argues that America’s constitutional development is marked by patterns of decline and renewal. I contend that the presidency today has become endowed with outsized expectations borne of popular frustrations with a centuries-old document that is desperately in need of updating. As a result, Presidents enjoy imbalanced and dangerous power to initiate legal reform or stymie it. Going forward, three dynamics are worth watching. First, noisy signals coming from performative transformation can obscure the true source and scope of legal changes initiated by a …

Do Lenders Still Monitor? Leveraged Lending And The Search For Covenants, Frederick Tung

Faculty Scholarship

It was once conventional wisdom that lenders routinely influenced corporate managers’ decision making. Covenants constrained borrower risk taking and compelled specific affirmative obligations to protect lenders. Recent policy discussion, however, laments loan markets’ turn to various forms of high-risk lending. So-called leveraged loans — relatively risky, below-investment-grade loans — more than doubled in outstanding dollar terms, growing from about $550 billion in 2010 to $1.2 trillion by 2019. These risky loans have taken up a larger and larger share of the loan markets over time. More leveraged loans are also “covenant-lite,” issued without traditional financial maintenance covenants. And regulators worry …

Mad About The First Amendment, Our Beacon For Liberty, Equality And Democracy, Nicholas Allard

Faculty Scholarship

No abstract provided.

Q: What Is Tort? A: Categorical Hurt, Anita Bernstein

Faculty Scholarship

No abstract provided.

The End Of Liberty, Adam J. Kolber

Faculty Scholarship

No abstract provided.

'That Name Is Dead To Me': Reforming Name Change Laws To Protect Transgender And Nonbinary Youth, Sarah Steadman

Faculty Scholarship

For transgender and some nonbinary youth, living under a chosen name is a first step toward becoming their authentic selves. For these youth, a name change is powerful; it allows them to choose a name that matches their gender identity. They consider their birth name to be a distressing “dead” name - one that they cannot relate to and need to bury.

Using one’s chosen name decreases suicidality among transgender youth who face many challenges, including family rejection and other severe mental health stressors. Transgender and nonbinary youth can only require others to use their chosen names after obtaining a …

Reassessing The Ahistorical Judicial Use Of William Winthrop And Frederick Bernays Wiener, Joshua E. Kastenberg

Faculty Scholarship

Government lawyers, like the courts continue to cite to Winthrop. Most recently, in the pending appeal titled Larabee v. Harker, the government ‘s counsel quoted Winthrop for the proposition that “retired officers are a part of the army and so triable by court-martial—a fact indeed never admitting of question.” It is unlikely that the government’s counsel considered the matters presented in this brief article, or that Winthrop rested his statement on dicta rather than any constitutional statement on jurisdiction. Likewise, whatever criticism may be given to Justice Alito’s Ortiz dissent, I am not suggesting that either he, or Justice Neil …

Gendered Complications Of Covid-19: Towards A Feminist Recovery Plan, Naomi Cahn, Linda C. Mcclain

Faculty Scholarship

COVID-19 exposed the limitations in the current economic system on public and private support for gender equity and the intersecting impact of gender, race, and class in that lack of support. Women of color, particularly those who are Black, Latina, or Native American, were at the intersection of the inequities in the pandemic economy. The catalogue of COVID-19’s impact covers all aspects of women’s lives: work, family, education, health, reproduction, mental and physical well-being, and leisure. This Article argues that COVID-19 has complex implications for gender equality and gender equity as state and local governments, the federal government, and private …

The Jury Trial Reinvented, Christopher Robertson, Michael Shammas

Faculty Scholarship

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.
/="/">
/="/">Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts …

Replicability In Empirical Legal Research, Jason M. Chin, Kathryn Zeiler

Faculty Scholarship

As part of a broader methodological reform movement, scientists are increasingly interested in improving the replicability of their research. Replicability allows others to perform replications to explore potential errors and statistical issues that might call the original results into question. Little attention, however, has been paid to the state of replicability in the field of empirical legal research (ELR). Quality is especially important in this field because empirical legal researchers produce work that is regularly relied upon by courts and other legal bodies. In this review article, we summarize the current state of ELR relative to the broader movement towards …

Rico Had A Birthday! A Fifty-Year Retrospective Of Questions Answered And Open, Randy D. Gordon

Faculty Scholarship

The Racketeer Influenced and Corrupt Organizations Act (RICO) came into the world in 1970, a time of great social upheaval that was accompanied by shifting attitudes towards both crime and civil litigation. From the outset, the statute’s complexity, ambiguity, and uncertain purpose have confounded courts and commentators. At least some doubts as to the statute’s meaning and application arise because it has criminal and civil components that subject it to the twin—yet antithetical—social impulses to be “tough on crime” while containing a perceived “litigation explosion.” In this Article, I situate RICO in this larger context and offer that context as …

Intellectual Property Exhaustion And Parallel Imports Of Pharmaceuticals: A Comparative And Critical Review, Irene Calboli

Faculty Scholarship

This Chapter addresses the topic of intellectual property (IP) exhaustion in the context of the parallel trade of pharmaceuticals. These imports, which are controversial in general, are more complex with respect to pharmaceuticals, which require additional marketing and import authorizations. Nevertheless, individual countries remain free to accept these imports under the flexibility of Article 6 of the Agreement on Trade Related Aspects to Intellectual Property Rights (TRIPS Agreement). This Chapter reviews several national approaches—in developed, developing, and least developed countries (LDCs)—from the perspective of the exhaustion of patent rights as well as other IP rights. Through this review, it highlights …

Covid-19 Relief And The Ordinary Inmate, Jenny E. Carroll

Faculty Scholarship

As scholars and advocates have lamented the deficiencies of remedies pre- and post-conviction for the extraordinary, the “ordinary” are not saddled with slow and deficient remedies -- they have none. This Essay explores this absence of such relief for those unable to make an extraordinary claim during the COVID-19 public health crisis of 2020. For the ordinary men, women, and children held in custody in 2020 and beyond, pretrial detention and sentencing laws make no exception in the face of a potentially fatal contagion or the public health crisis it creates. Yet, the pandemic highlights the reality that systematic flaws …

Exploration Of The Psychometric Properties Of The Person-Centred Primary Care Measure (Pcpcm) In A Chinese Primary Care Population In Hong Kong: A Cross-Sectional Validation Study, Stephen J. Zyzanski, Kurt C. Stange

Faculty Scholarship

Objectives To evaluate the validity and psychometric properties of the Chinese Person-Centred Primary Care Measure (PCPCM) in a Chinese-speaking population. Design A cross-sectional study. Setting A primary care clinic in Hong Kong. Participants 300 Chinese adult patients (150 males and 150 females) were recruited from a primary care clinic to complete a questionnaire containing the PCPCM, Consultation and Relational Empathy (CARE), Patient Enablement Index (PEI) and Adult (short version) Primary Care Assessment Tool (PCAT). The Chinese PCPCM was readministered to 118 participants after 14 days for test-retest reliability. Outcome measures The construct validity, reliability and sensitivity of the Chinese PCPCM. …

Civil Procedure Update 2021: New Mexico Annual Judicial Conclave, Verónica C. Gonzales

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2021 to September 1, 2021.

The Supreme Court's Reticent Qualified Immunity Retreat, Katherine Mims Crocker

Faculty Scholarship

The recent outcry against qualified immunity, a doctrine that disallows damages actions against government officials for a wide swath of constitutional claims, has been deafening. But when the Supreme Court in November 2020 and February 2021 invalidated grants of qualified immunity based on reasoning at the heart of the doctrine for the first time since John Roberts became Chief Justice, the response was muted. With initial evaluations and competing understandings coming from legal commentators in the months since, this Essay explores what these cases appear to say about qualified immunity for today and tomorrow.

The Essay traces idealistic, pessimistic, and …

Composition Over Division: The Statutes Of The National Forest System, Jamison Colburn

Faculty Scholarship

Most crises like those facing the National Forest System (NFS) have complex origins. But few of them result from as vast or as tangled a range of causes as do those facing the NFS. Appropriations to fight the wildfires now consuming our forests and choking the West have steadily grown, far outpacing inflation for a generation now. Timber and other commodity production has remained at historic lows for as long. And biodiversity conservation measures cannot gain the acquiescence of different constituencies long enough to withstand the inevitable lawsuits or turnover in administrative personnel. If Congress originally expected that judicial oversight …

The Expressive Fourth Amendment, Karen Pita Loor

Faculty Scholarship

After the eight-minute and forty-six second video of George Floyd’s murder went viral, cities across the United States erupted in mass protests with people outraged by the death of yet another Black person at the hands of police. The streets were flooded for months with activists and community members of all races marching, screaming, and demonstrating against police brutality and for racial justice. Police—like warriors against enemy forces—confronted overwhelmingly peaceful protesters with militarized violence and force. Ultimately, racial justice protesters and members of the media brought lawsuits under section 1983 of the Civil Rights Act in the district courts of …

Antimicrobial Resistance: Is Health Technology Assessment Part Of The Solution Or Part Of The Problem?, Abigail Colson, Alec Morton, Christine Årdal, Kalipso Chalkidou, Sally Davies, Louis Garrison, Mark Jit, Ramanan Laxminarayan, Itamar Megiddo, Chantal Morel, Justice Nonvignon, Kevin Outterson, John Rex, Abdur Razzaque Sarker, Mark Sculpher, Beth Woods, Yue Xiao

Faculty Scholarship

Antimicrobial resistance is a serious challenge to the success and sustainability of our healthcare systems. There has been increasing policy attention given to antimicrobial resistance in the last few years, and increased amounts of funding have been channeled into funding for research and development of antimicrobial agents. Nevertheless, manufacturers doubt whether there will be a market for new antimicrobial technologies sufficient to enable them to recoup their investment. Health technology assessment (HTA) has a critical role in creating confidence that if valuable technologies can be developed they will be reimbursed at a level that captures their true value. We identify …

How To Be A Better Plea Bargainer, Cynthia Alkon, Andrea Kupfer Schneider

Faculty Scholarship

Preparation matters in negotiation. While plea bargaining is a criminal lawyer’s primary activity, the value of this skill is discounted by law schools and training programs. A systemic model can be used to improve plea bargaining skills. This Article offers a prep sheet for both prosecutors and defense attorneys and explains how each element of the sheet specifically applies to the plea bargaining context. The prep sheet is designed as a learning tool so that the negotiator can learn from the sheet and then make their own. The sheet highlights important considerations such as understanding the interests and goals of …

Testing Galaxy Formation And Dark Matter With Low Surface Brightness Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

Galaxies are the basic structural element of the universe; galaxy formation theory seeks to explain how these structures came to be. I trace some of the foundational ideas in galaxy formation, with emphasis on the need for non-baryonic cold dark matter. Many elements of early theory did not survive contact with observations of low surface brightness galaxies, leading to the need for auxiliary hypotheses like feedback. The failure points often trace to the surprising predictive successes of an alternative to dark matter, the Modified Newtonian Dynamics (MOND). While dark matter models are flexible in accommodating observations, they do not provide …

Molecular Differences In Skeletal Muscle After 1 Week Of Active Vs. Passive Recovery From High-Volume Resistance Training, Christopher G. Vann, Cody T. Haun, Shelby C. Osbourn, Matthew E. Romero, Paul A. Roberson, Petey W. Mumford, C. Brooks Mobley, Hudson M. Holmes, Carlton D. Fox, Kaelin C. Young, Michael D. Roberts

Faculty Scholarship

Numerous studies have evaluated how deloading after resistance training (RT) affects strength and power outcomes. However, the molecular adaptations that occur after deload periods remain understudied. Trained, college-aged men (n = 30) performed 6 weeks of whole-body RT starting at 10 sets of 10 repetitions per exercise per week and finishing at 32 sets of 10 repetitions per exercise per week. After this period, subjects performed either active (AR; n = 16) or passive recovery (PR; n = 14) for 1 week where AR completed ∼15% of the week 6 training volume and PR ceased training. Variables related to …

Law, Fact, And Procedural Justice, G. Alexander Nunn

Faculty Scholarship

The distinction between questions of law and questions of fact is deceptively complex. Although any first-year law student could properly classify those issues that fall at the polar ends of the law-fact continuum, the Supreme Court has itself acknowledged that the exact dividing line between law and fact—the point where legal inquiries end and factual ones begin—is “slippery,” “elusive,” and “vexing.” But identifying that line is crucially important. Whether an issue is deemed a question of law or a question of fact often influences the appointment of a courtroom decision maker, the scope of appellate review, the administration of certain …

Franchisor Power As Employment Control, Andrew Elmore, Kati Griffith

Faculty Scholarship

Labor and employment laws are systematically underenforced in low-wage, franchised workplaces. Union contracts, and the benefits and protections they provide, are nonexistent. The Fight for Fifteen movement has brought attention to the low wages, systemic violations of workers’ rights, and lack of collective representation in fast-food franchises. Given that franchisees can be judgment-proof and cannot set industry standards, the deterrence, remedial, and collective bargaining goals of labor and employment laws can depend on holding the franchisor (the brand) responsible under the joint employer doctrine. In a series of cases, however, a dominant approach has emerged that essentially foreclosed the possibility …

Rethinking The Plra: The Resiliency Of Injunctive Practice And Why It’S Not Enough, Allison Freedman

Faculty Scholarship

During the latter part of the twentieth century, prison populations in the United States increased exponentially and the nation became notorious for mass incarceration. Despite what many viewed as a broken prison system, in 1996 Congress passed the Prison Litigation Reform Act (“PLRA”), with the avowed purpose of hindering prisoners and their advocates from bringing civil rights actions to challenge prison conditions, laws, and policies. To accomplish this, Congress curbed courts’ most powerful remedial tool—injunctive relief. As a result, early scholarship predicted that injunctive practice would become a useless tool in prison reform litigation.

Instead, twenty-five years after Congress passed …

From Exposure To Violence Between Mother And Her Intimate Partner To Suicidality Experienced By Urban Adolescents In Chicago’S Southside, Dexter R. Voisin

Faculty Scholarship

Although the relationship between exposure to intimate partner violence and youths’ psychological and other wellbeing has been widely studied, there is limited research about how youths’ exposure to violence between mother and her intimate partner may be related to youth psychological wellbeing. The study used a sample of urban adolescents in Chicago Southbound to examine whether youths’ exposure to verbal conflict between mother and her intimate partner is related to their suicidality and whether youth depression and aggression may be in between such a linkage. Our findings indicated that one-third of the youth had suicidal thoughts or suicidal/self-hurting attempts. Youths’ …

Molecular Diagnosis Of Sars-Cov-2: Assessing And Interpreting Nucleic Acid And Antigen Tests, Peter A. Zimmerman, Christopher L. King, Mahmoud Ghannoum, Robert A. Bonomo, Gary W. Procop

Faculty Scholarship

In this review, we summarize the current status of nucleic acid and antigen testing required for diagnosing SARS-CoV-2 infection and COVID-19 disease. Nucleic acid amplification (NAAT) and antigen-detection (Ag) tests occupy a critically important frontline of defense against SARS-CoV-2 in clinical and public health settings. In early stages of this outbreak, we observed that identifying the causative agent of a new illness of unknown origin was greatly accelerated by characterizing the nucleic acid signature of the novel coronavirus. Results from nucleic acid sequencing led to the development of highly sensitive RT-PCR testing for use in clinical settings and to informing …

Brief For The National Stripper Well Association As Amicus Curiae, L. Ruth Fawcett Tr. V. Oil Producers, Inc. Of Kansas, Joseph A. Schremmer, Charles C. Steincamp

Faculty Scholarship

In its briefings, the Class in this appeal, in spite of the evidence, evokes the myth of a great conspiracy between operators and marketers, and it advances a theory that threatens impermissible economic and underground waste of natural gas resources. The language of the parties' oil and gas leases, on the other hand, sets up bargained-for arrangement that enables the parties to share in the benefits of stripper gas production and promotes conservation of the state's natural gas reserves.

Brief For American Indian Law Scholars As Amicus Curiae, Stephen C., Et Al V. Bureau Of Indian Education, Et Al.,, Barbara L. Creel, Tierra N. Marks, Randolph H. Barnhouse

Faculty Scholarship

Indian Civil Rights/Education Lawsuit

View this and other court documents at Turtle Talk.

Congress’s declared federal policy is “to fulfill the Federal Government’s unique and continuing trust relationship with and responsibility to the Indian people for the education of Indian children.” 25 U.S.C. § 2000. This federal policy is the touchstone of the federal government’s trust obligation to Indian families and their children. When the BIA (through the BIE) fails to protect the rights of Indian children to “educational opportunities that equal or exceed those for all other students in the United States,” courts have a vital role to …