Digital Commons Network^™

Settled Law, G. Alexander Nunn, Alan M. Trammell

Faculty Scholarship

“Settled law” appears frequently in judicial opinions — sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful …

Examining The Causal Impact Of Prenatal Home Visiting On Birth Outcomes: A Propensity Score Analysis, Elizabeth R. Anthony, Robert L. Fischer

Faculty Scholarship

Objectives: In Ohio, African American babies die at 2.5–3 times the rate of White babies. Preterm birth and low birth weight are the leading causes of infant mortality. Home visiting is an evidence-based strategy for serving low-income pregnant women; however, there are relatively few rigorous studies examining its effect on birth outcomes. Methods: This study uses a propensity score technique to estimate the causal effect of participation in home visiting on prematurity and low birth weight among a low-income, predominantly African American sample (N = 26,814). Results: We found that participation in home visiting significantly reduced the odds of experiencing …

Investigating Music-Based Cognitive Rehabilitation For Individuals With Moderate To Severe Chronic Acquired Brain Injury: A Feasibility Experiment, Nicole M. Richard Williams

Faculty Scholarship

Background: Acquired brain injuries often cause cognitive impairment, significantly impacting participation in rehabilitation and activities of daily living. Music can influence brain function, and thus may serve as a uniquely powerful cognitive rehabilitation intervention. Objective: This feasibility study investigated the potential effectiveness of music-based cognitive rehabilitation for adults with chronic acquired brain injury. Methods: The control group participated in three Attention Process Training (APT) sessions, while the experimental group participated in three Music Attention Control Training (MACT) sessions. Pre-and post- testing used the Trail Making A & B, Digit Symbol, and Brown-Peterson Task as neuropsychological tests. Results: ANOVA analyses showed …

Mandating Disclosure Of Climate-Related Financial Risk, Madison Condon, Sarah Ladin, Jack Lienke, Michael Panfil, Alexander Song

Faculty Scholarship

Climate change presents grave risk across the U.S. economy, including to corporations, their investors, the markets in which they operate, and the American public at large. Unlike other financial risks, however, climate risk is not routinely disclosed to the public. Insufficient corporate disclosures have persisted despite the Securities and Exchange Commission’s (“SEC”) issuance of regulatory guidance on the topic, the emergence of voluntary disclosure frameworks and standards, and growing calls from major investors for improved disclosure. Given the inadequacy of the current regime, the SEC should take further action to fulfill its statutory mandate to protect investors and promote efficiency, …

Creatine Supplementation In Children And Adolescents, Andrew R. Jagim, Chad M. Kerksick

Faculty Scholarship

Creatine is a popular ergogenic aid among athletic populations with consistent evidence indicating that creatine supplementation also continues to be commonly used among adolescent populations. In addition, the evidence base supporting the therapeutic benefits of creatine supplementation for a plethora of clinical applications in both adults and children continues to grow. Among pediatric populations, a strong rationale exists for creatine to afford therapeutic benefits pertaining to multiple neuromuscular and metabolic disorders, with preliminary evidence for other subsets of clinical populations as well. Despite the strong evidence supporting the efficacy and safety of creatine supplementation among adult populations, less is known …

Three Deft Kicks To The Problem Of Cyberbullying, Anita Bernstein

Faculty Scholarship

No abstract provided.

The (Joseph) Stories Of Newmyer And Cover: Hero Or Tragedy?, Jed Handelsman Shugerman

Faculty Scholarship

Kent Newmyer's classics Supreme Court Justice Joseph Story: Statesman of the Old Republic and John Marshall and the Heroic Age of the Supreme Court are important stories about the architects and heroes of the rule of law in America. In Newmyer's account, Story played a crucial role preserving the republic and building a legal nation out of rival states, and Newmyer's Story is fundamentally important for students of American history. But in Robert Cover's account in Justice Accused on northern judges' deference to slavery, Story is an anti-hero. Sometimes Story stayed silent. In Prigg v. Pennsylvania, Story overvalued formalistic …

A Unified Theory Of Data, William Magnuson

Faculty Scholarship

How does the proliferation of data in our modern economy affect our legal system? Scholars that have addressed the question have nearly universally agreed that the dramatic increases in the amount of data available to companies, as well as the new uses to which that data is being put, raise fundamental problems for our regulatory structures. But just what those problems might be remains an area of deep disagreement. Some argue that the problem with data is that current uses lead to discriminatory results that harm minority groups. Some argue that the problem with data is that it impinges on …

The Political Economy Of Enforcer Liability For Wrongful Police Stops, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This article questions whether excessive policing practices can persist in an environment where law enforcement policies are subject to political pressures. Specifically, it considers a setting where the police decide whether to conduct stops based on the suspiciousness of a person's behavior and the potential liability for conducting a wrongful stop. We establish that the liability level that results in a voting equilibrium is smaller than optimal, and consequently, that excessive policing practices emerge in equilibrium.

Anomalous Stellar Populations In Low-Surface-Brightness Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

We present new Hubble Space Telescope WFC3 near-IR observations of the color-magnitude diagrams (CMDs) in two low-surface-brightness galaxies, F575-3 and F615-1, notable for having no current star formation based on a lack of Ha emission. Key features of the near-IR CMDs are resolved, such as the red giant branch (RGB), the asymptotic giant branch (AGB) region, and the top of the blue main sequence. F575-3 has the bluest RGB of any CMD in the literature, indicating an extremely low mean metallicity. F615-1 has unusually wide RGB and AGB sequences, suggesting multiple episodes of star formation from metal-poor gas, and possibly …

The Constitution, The Common Good, And The Ambition Of Adrian Vermeule, Sotirios Barber, Stephen Macedo, James E. Fleming

Faculty Scholarship

Public trust in the U.S. government has declined steadily over the last sixty years, from 73% in 1958 to 17% in 2018 (Pew 12/9/20). Public support for the U.S. Constitution has remained higher. When support for the government dipped to an all-time low of 15% in 2010, support for the Constitution stood at 74%. But the gap has narrowed. From 2010 to 2017 support for the Constitution fell from 74% to around 50%—a drop of 24 points in seven years (AP/NCC 8/12; Rasmussen 2017). These figures suggest that if Americans continue to believe that their government isn’t working, they’ll eventually …

Harvard Crimson Interviews Vinay Harpalani: ‘Complete Switch In Position’: Legal Experts Say Biden Likely To Back Harvard In Race-Conscious Admissions Suit, Vinay Harpalani, Benjamin L. Fu, Vivi E. Lu

Faculty Scholarship

Many education and legal experts expect President-elect Joe Biden's Justice Department will extend support to universities — including Harvard — currently embroiled in legal challenges from anti-affirmative action group Students for Fair Admissions.

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Vinay Harpalani, a law professor at the University of New Mexico, said he believes the Department of Justice will reverse course and file an amicus brief in support of Harvard if the case is appealed even further.

“If the case goes to the U.S. Supreme Court, I would expect the Biden administration to file an amicus brief in favor of Harvard — so complete switch in …

The Future Of Materialist Constitutionalism, Robert L. Tsai

Faculty Scholarship

This is a review essay of Camila Vergara, Systemic Corruption (Princeton 2020). In this lively and important book, Vergara argues that corruption should be given a structural definition, one that connects corruption with inequality and is plebeian rather than elitist. After surveying the work of thinkers from Machiavelli to Arendt, she proposes a set of solutions grounded in the civic republican tradition.
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/="/">I press several points in my essay. First, Vergara's linkage of corruption with inequality is promising, but introduces tension between a general problem (domination of the many by the few) and a more specific problem (the …

Correlates Of Depression Among Black Girls Exposed To Violence, Dexter R. Voisin

Faculty Scholarship

Depression rates for youth remanded to juvenile detention is double that of the general population and Black girls are especially vulnerable. A dearth of literature analyzes the factors that are correlated with depression among system-involved Black girls, ages 12–17 years old. We utilized personal agency to examine the relationship between risk factors (i.e., abuse history, and fear of condom negotiation) and protective factors (i.e., condom self-efficacy, and perceived social support) that might correlate with depression among Black girls exposed to violence. Findings indicate that fear of condom negotiation, abuse history and low condom self-efficacy are correlated with depressive symptomology while …

Dysregulating The Media: Digital Redlining, Privacy Erosion, And The Unintentional Deregulation Of American Media, Jon M. Garon

Faculty Scholarship

Netflix, Amazon, YouTube, and Apple have been joined by Disney+, Twitch, Facebook, and others to supplant the broadcast industry. As the FCC, FTC, and other regulators struggle, a new digital divide has emerged. The current regulatory regime for television is built upon the government’s right to manage over-the-air broadcasting. As content producers shift away from broadcast and cable, much of the government’s regulatory control will end, resulting in new consequences for public policy and new challenges involving privacy, advertising, and antitrust law. Despite the technological change, there are compelling government interests in a healthy media environment. This article explores the …

Criminalization And Normalization: Some Thoughts About Offenders With Serious Mental Illness, Richard C. Boldt

Faculty Scholarship

Response to Professor E. Lea Johnston, Reconceptualizing Criminal Justice Reform for Offenders with Serious Mental Illness

Abstract

While Professor Johnston is persuasive that clinical factors such as diagnosis and treatment history are not, in most cases, predictive by themselves of criminal behavior, her concession that those clinical factors are associated with a constellation of risks and needs that are predictive of criminal system involvement complicates her efforts to maintain a clear boundary between the criminalization theory and the normalization thesis. Indeed, Professor Johnston’s article contains a brief section in which she identifies “possible justifications” for the specialized programs that are …

Modeling Narrowest Grounds, Maxwell Stearns

Faculty Scholarship

The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”

The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not …

Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Social Justice, Civil Rights, And Bioethics, Kathy Cerminara

Faculty Scholarship

A stunning confluence of events in the United States in the first few months of 2020 have illustrated pervasive systemic prejudice against vulnerable people resulting in increased risk of death. Combined and situated among other, similar incidents too numerous to mention here, they present an opportunity for bioethicists to help change the impact of implicit bias, white privilege, and prejudice in shaping the very ability to live a healthy life in America. The current lack of care and even outright cruelty rendering a variety of vulnerable populations susceptible to early death illustrate why there must be more attention paid to …

Normative Dimensions Of Consensual Application Of Black Box Artificial Intelligence In Administrative Adjudication Of Benefits Claims, Frank Pasquale

Faculty Scholarship

No abstract provided.

Isotonic Ion Replacement Can Lower The Threshold For Selective Infrared Neural Inhibition, Junqi Zhuo, Zihui Ou, Yuhan Zhang, Elizabeth M. Jackson, Sachin S. Shankar, Matthew T. Mcpheeters, Hillel J. Chiel, Michael W. Jenkins

Faculty Scholarship

Significance: Infrared (IR) inhibition can selectively block peripheral sensory nerve fibers, a potential treatment for autonomic-dysfunction-related diseases (e.g., neuropathic pain and interstitial cystitis). Lowering the IR inhibition threshold can increase its translational potentials. Aim: Infrared induces inhibition by enhancing potassium channel activation. We hypothesized that the IR dose threshold could be reduced by combining it with isotonic ion replacement. Approach: We tested the IR inhibition threshold on the pleural-abdominal connective of Aplysia californica. Using a customized chamber system, the IR inhibition was applied either in normal saline or in isotonic ion-replaced saline, which could be high glucose saline, high choline …

Life Without Parole Sentencing In North Carolina, Brandon L. Garrett, Travis M. Seale-Carlisle, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

What explains the puzzle of life without parole (LWOP) sentencing in the United States? In the past two decades, LWOP sentences have reached record highs, with over 50,000 prisoners serving LWOP. Yet during this same period, homicide rates have steadily declined. The U.S. Supreme Court has limited the use of juvenile LWOP in Eighth Amendment rulings. Further, death sentences have steeply declined, reaching record lows. Although research has examined drivers of incarceration patterns for certain sentences, there has been little research on LWOP imposition. To shed light on what might explain the sudden rise of LWOP, we examine characteristics of …

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Severe Or Pervasive Should Not Mean Impossible And Unattainable: Why The "Severe Or Pervasive" Standard For A Claim Of Sexual Harassment And Discrimination Should Be Replaced With A Less Stringent And More Current Standard, Kristy D'Angelo-Corker

Faculty Scholarship

No abstract provided.

The Means And Ends Of Wellness Programs, Laura D. Hermer

Faculty Scholarship

How far should we go in assigning individuals causal responsibility for their own health status and what should the implications of any such assignment be?

Few would deny that most adults have a major role in achieving and maintaining their own health. However, it is not at all clear where one should draw the line between what is freely chosen and what is determined by forces outside a person’s control. Medical care plays only a small role in most people’s overall health, and often social, environmental, and personal factors are far more important. Incentivizing an individual to take better care …

Mediation: Embedded Assumptions Of Whiteness?, Sharon Press, Ellen E. Deason

Faculty Scholarship

This article attempts to uncover some of the systemic ways in which white supremacy is expressed in the practice of mediation in the United States with the goal of inspiring additional conversations and deeper attention to these issues by scholars and practitioners in the field of dispute resolution. Our methodology is to apply the themes in Layla F. Saad’s book, Me and White Supremacy: Combat Racism, Change the World, and Become a Good Ancestor (2020). We use the lenses of tone policing, color-blindness, racial stereotyping, anti-blackness, white silence, and white supremacy to reflect on the following aspects of mediation: communication …

Algorithms In Business, Merchant-Consumer Interactions, & Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

The shift towards the use of algorithms in business has transformed merchant–consumer interactions. Products and services are increasingly tailored for consumers through algorithms that collect and analyze vast amounts of data from interconnected devices, digital platforms, and social networks. While traditionally merchants and marketeers have utilized market segmentation, customer demographic profiles, and statistical approaches, the exponential increase in consumer data and computing power enables them to develop and implement algorithmic techniques that change consumer markets and society as a whole. Algorithms enable targeting of consumers more effectively, in real-time, and with high predictive accuracy in pricing and profiling strategies. In …

Response To: A Telehealth Explosion: Using Lessons From The Pandemic To Shape The Future Of Telehealth Regulation, Joanna K. Sax

Faculty Scholarship

In A Telehealth Explosion: Using Lessons from the Pandemic to Shape the Future of Telehealth Regulation, published in the Texas A&M Law Review, Professor Deborah Farringer tackles the critical issue of the efficacy and implementation of telehealth, using our experience(s) of telehealth during the COVID–19 pandemic as the guide. This is important, as Professor Farringer acknowledges, because while telehealth advocates pre-date the pandemic, barriers prevented the implementation of telehealth in a widespread manner. These barriers included a concern about fraud and a question as to whether telehealth visits could provide effective outcomes compared to in-person visits. Professor Farringer …

Clearing Opacity Through Machine Learning, Arti K. Rai, W. Nicholson Price Ii

Faculty Scholarship

Artificial intelligence and machine learning represent powerful tools in many fields, ranging from criminal justice to human biology to climate change. Part of the power of these tools arises from their ability to make predictions and glean useful information about complex real-world systems without the need to understand the workings of those systems.

But these machine-learning tools are often as opaque as the underlying systems, whether because they are complex, nonintuitive, deliberately kept secret, or a synergistic combination of those three factors. A burgeoning literature addresses challenges arising from the opacity of machine-learning systems. This literature has largely focused on …

Second Amendment Animus, Jacob D. Charles

Faculty Scholarship

The Supreme Court’s animus doctrine has proven surprisingly adaptive. The Court has employed the doctrine not just in the typical equal protection context from which it arose, but also to claims that religious conduct or beliefs are the target of legislative hostility. Animus law and scholarship are flourishing after several invocations of the doctrine in the high Court’s recent Terms. Coinciding with these developments, gun-rights advocates and other supporters have increasingly railed against the hostility with which they believe government officials are treating the Second Amendment. This Essay connects these developments, mapping three types of gun-supporter claims that sound in …