Digital Commons Network^™

The Making Of Presidential Administration, Ashraf Ahmed, Lev Menand, Noah Rosenblum

Faculty Scholarship

Today, the idea that the President possesses at least some constitutional authority to direct administrative action is accepted by the courts, Congress, and the legal academy. But it was not always so. For most of American history — indeed until relatively recently — Presidents derived their authority over the administrative state largely from statute. Any role for the White House in agency rulemaking or adjudication had to be legally specified. Scholars mostly agree about when this change occurred. But the dominant shared narrative — exemplified by then-Professor Elena Kagan’s seminal article Presidential Administration — is Whig history. It offers a …

Opening Dialogue, Lee C. Bollinger, Geoffrey R. Stone

Faculty Scholarship

To set the stage for the excellent essays that make up this volume on the future of free speech, let’s begin where we often do when thinking together about the First Amendment: with some basic facts and fundamental observations about the constitutional command that “Congress shall make no law ... abridging the freedom of speech, or of the press.”

Of course, in the United States, “free speech” is not only part of the constitutional Bill of Rights; it is also a cultural and social norm by which we choose to live. Several of the essays in this volume therefore take …

Present Case Studies Highlighting Practical Implications Of Architectural Design Choices, Emily Barnes, James Hutson

Faculty Scholarship

The interpretability of deep neural networks (DNNs) has become a crucial focus within artificial intelligence and machine learning, particularly as these models are increasingly used in high-stakes applications such as healthcare, finance, and autonomous driving. This article explores the impact of architectural design choices on the interpretability of DNNs, emphasizing the importance of transparency, trust, and accountability in AI systems. By presenting case studies and experimental results, the article highlights how different architectural elements—such as layer types, network depth, connectivity patterns, and attention mechanisms—affect model interpretability and performance. The discussion is structured into three main sections: real-world applications, architectural trade-offs, …

Repeated Stimulation Of Feeding Mechanoafferents In Aplysia Generates Responses Consistent With The Release Of Food, Hillel J. Chiel

Faculty Scholarship

How does repeated stimulation of mechanoafferents affect feeding motor neurons? Monosynaptic connections from a mechanoafferent population in the Aplysia buccal ganglia to five motor followers with different functions were examined during repeated stimulus trains. The mechanoafferents produced both fast and slow synaptic outputs, which could be excitatory or inhibitory. In contrast, other Aplysia mechanoafferents produce only fast excitation on their followers. In addition, patterns of synaptic connections were different to the different motor followers. Some followers received both fast excitation and fast inhibition, whereas others received exclusively fast excitation. All followers showed strong decreases in fast postsynaptic potential (PSP) amplitude …

Is John Stuart Mill's On Liberty Obsolete?, Vincent A. Blasi

Faculty Scholarship

In On Liberty, published in 1859, John Stuart Mill argues for the “absolute” protection of the “liberty of thought and discussion.” Ever the empiricist, he maintains that such uncompromised freedom, not for all communication or self-expression but for the subset of those activities that qualifies as thought and discussion, would generate the best overall consequences for societies such as Great Britain and the United States. The advent of digital technology has altered how thought and discussion is generated, distributed, and received in ways that might problematize some of the empirical assumptions upon which Mill's argument in On Liberty is …

Gateway And Non-Gateway Issues In The Enforcement Of Agreements To Arbitrate, George A. Bermann

Faculty Scholarship

Far greater attention is given in literature on international arbitration to limitations on the enforceability of arbitral awards than on the enforceability of agreements to arbitrate. This chapter seeks to redress the balance. While rulings on the enforceability of an award is incontrovertibly within the jurisdiction of the court asked to enforce the award, authority to determine the enforceability of an arbitration agreement is allocated between courts and arbitral tribunals themselves. The chapter seeks to determine which defenses to enforcement of arbitration agreements may be lodged before a court ("gateway issues") and which are necessarily reserved to the tribunal ("non-gateway …

On The Ftc’S Authority To Promulgate Trade Regulation Rules, Lev Menand, Tim Wu

Faculty Scholarship

On April 23, 2024, the FTC finalized a trade regulation rule prohibiting employers from enforcing non-compete agreements against workers. In response, business groups sued and Daniel Crane, a law professor at the University of Michigan, published a piece in Notice and Comment that reported on the views of 17 anonymous online volunteers regarding the fate of the rule in the courts. All but one of the volunteers, drawn from law professor listservs, predicted the law would be struck down, either based on the “Major Questions Doctrine” (MQD) or for lack of authority to promulgate substantive rules governing unfair methods of …

Transforming The Welfare State, One Case At A Time: How Utrecht Makes Customized Social Care Work, Charles F. Sabel, Jonathan Zeitlin, Jan-Kees Helderman

Faculty Scholarship

Advanced welfare states are under pressure to customize services, promptly enough to prevent a cascade of harms. With these goals, the Netherlands in 2015 decentralized social care services to municipalities, and within municipalities to neighborhood teams in continuing contact with clients. The overall results have been disappointing. But the experience of Utrecht, the Netherlands’ fourth-largest city, has been strikingly different. By using hard-to-resolve cases to signal conflicts in rules, obstructive jurisdictional boundaries, and the shortcomings of private service providers, Utrecht is learning to customize and speed delivery of social care through incremental steps. This article explains how Utrecht’s success addresses …

Perspectives On The Constitution Of The War On Drugs: A Collection Of Posts From The Balkinization Blog, Douglas A. Berman, Rachel Barkow, Louis Michael Seidman, Kimani Paul-Emile, Jennifer D. Oliva, Shaun Ossei-Owusu, Katherine Shaw, Paul Butler, David E. Pozen

Faculty Scholarship

This collection of essays provides extended commentary from multiple law professors on David Pozen’s 2024 book, The Constitution of the War on Drugs. Pozen’s book provides a rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access. Yale Law Professor Jack Balkin, recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields …

Multiple Changes In Connectivity Between Buccal Ganglia Mechanoafferents And Motor Neurons With Different Functions After Learning That Food Is Inedible In Aplysia, Hillel J. Chiel, Jeffery Gill

Faculty Scholarship

Changes caused by learning that a food is inedible in Aplysia were examined for fast and slow synaptic connections from the buccal ganglia S1 cluster of mechanoafferents to five followers, in response to repeated stimulus trains. Learning affected only fast connections. For these, unique patterns of change were present in each follower, indicating that learning differentially affects the different branches of the mechanoafferents to their followers. In some followers, there were increases in either excitatory or inhibitory connections, and in others, there were decreases. Changes in connectivity resulted from changes in the amplitude of excitation or inhibition, or as a …

A Data Integration Framework Of Additive Manufacturing Based On Fair Principles, Kristen J. Hernandez, Erika I. Barcelos, Jayvic C. Jimenez, Arafath Nihar, Pawan K. Tripathi, Roger H. French, Laura S. Bruckman

Faculty Scholarship

Abstract: Laser-powder bed fusion (L-PBF) is a popular additive manufacturing (AM) process with rich data sets coming from both in situ and ex situ sources. Data derived from multiple measurement modalities in an AM process capture unique features but often have different encoding methods; the challenge of data registration is not directly intuitive. In this work, we address the challenge of data registration between multiple modalities. Large data spaces must be organized in a machine-compatible method to maximize scientific output. FAIR (findable, accessible, interoperable, and reusable) principles are required to overcome challenges associated with data at various scales. FAIRified data …

Review Of Treatment Of Hepatitis C Among Persons Who Are Housing Insecure And Use Substances, Kate Kelley

Faculty Scholarship

With the advent of direct-acting antiviral agents (DAA), reduction of hepatitis C infection (HCV) has become a public health priority. The World Health Organization’s goal of global elimination of HCV by 2030 has brought to light the challenges in treating certain populations. This review examines the burden of HCV infection on unhoused individuals and people who use substances in the United States in the last five years, and presents best practices in patient care and treatment.

Broad-Area-Search Of New Construction Using Time Series Analysis Of Landsat And Sentinel-2 Data, Xiaojing Tang, Madison G. Barrett, Kangjoon Cho, Kelsee H. Bratley, Katelyn Tarrio, Yingtong Zhang, Hanfeng Gu, Peter Rasmussen, Marc Bosch, Curtis E. Woodcock

Faculty Scholarship

New construction activities can alter surface albedo and structure, which then affect surface temperature and roughness, and hence have a significant impact on urban climate. Construction activity is also an important indicator of human development and movement and is of high interest to the intelligence community. A new approach for Broad-Area-Search of New Construction activities (BASC) by combining time series analysis and rule-based filters using Landsat data was developed and tested in five selected cities (Boston, Shanghai, Sa ̃o Paulo, Dubai, and Ho Chi Minh City). The algorithm transforms Landsat images into fractions of a set of four endmembers using …

Viral Meningitis And Encephalitis Update, Boris Garber, Jonathan Glauser

Faculty Scholarship

Purpose of Review: This review describes advances in the diagnosis, treatment, and prevention of non-bacterial meningitis and encephalitis, with a focus on emerging viral causes of central nervous system (CNS) infection. Recent Findings: The Infectious Diseases Society of America recently published new guidelines for the management of encephalitis. Multiple articles have been published detailing emerging etiologies in human CNS infections, including analyses of neurological complications in the ongoing COVID-19 pandemic. Finally, several novel viral detection methods have been described, which may improve the detection of the specific etiologies of CNS infections (Hongyan et al. Front Neurol 14, [1]). Summary: Meningitis …

Opening Brief For Plaintiff-Appellant Rocky Freeman, Madeline H. Meth, Sanketh Bhaskar, Henry Drembus, Brianna Jordan

Faculty Scholarship

For nearly two decades, while Rocky Freeman was in federal prison, the United States treated him like a contract killer who murdered two victims even though the U.S. Probation Office knew that this information was false, and the Bureau of Prisons (BOP) knew or should have known the same merely by looking at Freeman’s pre-sentence report (PSR). As a result, Freeman spent years subject to harsh conditions of confinement that he would not have experienced had probation or BOP officers acted with reasonable care. Since learning about this negligence, Freeman has sought repeatedly to remedy the various harms he suffered, …

Improved Motor Skills In Autistic Children After Three Weeks Of Neurologic Music Therapy Via Telehealth: A Pilot Study, Nicole M. Richard Williams, Corene Hurt-Thaut, Jessica Brian, Luc Tremblay, Marija Pranjic, Jessica Teich, Melissa Tan, Julia Kowaleski, Michael Thaut

Faculty Scholarship

Background: Many autistic children experience motor skill deficits which can impact other areas of functioning, and research on therapeutic interventions for motor skills in autism is in a preliminary stage. Music-based therapies have been used extensively to address motor skills in non-autistic populations. Though a handful of studies exist on the effects of music-based therapies for movement in autistic children, none have investigated the possibility of administering sessions via telehealth. This mixed-methods pilot study investigated whether nine Neurologic Music Therapy (NMT)^® sessions via telehealth would improve motor and attention skills in autistic children.

Methods: Five autistic children between five …

The Spectrum Of Pneumonia Among Intubated Neonates In The Neonatal Intensive Care Unit, Dayle J. Bondarev, Rita M. Ryan, Devashis Mukherjee

Faculty Scholarship

We review the pathophysiology, epidemiology, diagnosis, treatment, and prevention of ventilator-associated pneumonia (VAP) in neonates. VAP has been studied primarily in adult ICU patients, although there has been more focus on pediatric and neonatal VAP (neo-VAP) in the last decade. The definition as well as diagnosis of VAP in neonates remains a challenge to date. The neonatal intensivist needs to be familiar with the current diagnostic tools and prevention strategies available to treat and reduce VAP to reduce neonatal morbidity and the emergence of antibiotic resistance. This review also highlights preventive strategies and old and emerging treatments available.

The Submerged Administrative State, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

The United States government is experiencing a reputation crisis: after decades of declining public trust, many Americans have lost confidence in the government’s capacity to perform its basic functions. While various explanations have been offered for this worrying trend, these existing accounts overlook a key factor: people are unfamiliar with the institutions that actually do most of the governing—administrative agencies—and they devalue what they cannot easily observe. The “submerged” nature of the administrative state is, we argue, a central reason for declining trust in government.

This Article shows that the administrative state is systematically submerged in two ways. First, administrative …

Constitutional Rights And Remedial Consistency, Katherine Mims Crocker

Faculty Scholarship

When the Supreme Court declined definitively to block Texas’s S.B. 8, which effectively eliminated pre-enforcement federal remedies for what was then a plainly unconstitutional restriction on abortion rights, a prominent criticism was that the majority would have never tolerated the similar treatment of preferred legal protections—like gun rights. This refrain reemerged when California enacted a copycat regime for firearms regulation. This theme sounds in the deep-rooted idea that judge-made law should adhere to generality and neutrality values requiring doctrines to derive justification from controlling a meaningful class of cases ascertained by objective legal criteria.

This Article is about consistency, and …

Averting Plausibility Pleading’S Threats To Novel Fha Legal Claims, Tanya Pierce, Aric Short

Faculty Scholarship

Plausibility pleading requirements articulated by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal continue to confound even well-intentioned courts. But for courts inclined to avoid grappling with modern applications of existing law, they provide ideal camouflage: a way of relying on procedural justifications to ostensibly side-step substantive law decisions—while in effect creating de facto law that robs litigants of their day in court. These negative, unintended consequences of Twombly and Iqbal are vividly illustrated in recent federal litigation brought under the Fair Housing Act involving claims of landlord liability for tenant-on-tenant harassment.

This Article …

Inmate Assistance Programs: Toward A Less Punitive And More Effective Criminal Justice System, Erkmen G. Aslim, Yijia Lu, Murat C. Mungan

Faculty Scholarship

High recidivism rates in the United States are a well-known and disturbing problem. In this article, we explain how this problem can be mitigated in a cost-effective manner through reforms that make greater use of humane methods that help inmates rather than using more punitive measures.

We focus on Inmate Assistance Programs (IAPs) adopted by many states. Some of these programs provide inmates with valuable skill sets to utilize upon their release while others are geared towards treating mental health and substance use disorder problems. IAPs are likely to reduce recidivism by lowering ex-convicts’ need to resort to crime for …

Bail At The Founding, Kellen R. Funk, Sandra G. Mayson

Faculty Scholarship

How did criminal bail work in the Founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related constitutional provisions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the Founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including Founding-era statutes, case law, legal treatises, and …

The Remedial Rationale After Sffa, Olatunde C.A. Johnson

Faculty Scholarship

After the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) limiting the ability of higher education institutions to use race as a factor to advance diversity in the student body, at least one prominent commentator suggested that universities should now justify their affirmative action policies based not on diversity but on the need to remedy discrimination. Chief Justice John Roberts’s majority opinion deems diversity — the rationale established in Regents of the University of California v. Bakke and affirmed in Grutter v. Bollinger — a “commendable” goal. But the …

Distinguishing Family Poverty From Child Neglect, Joshua Gupta-Kagan

Faculty Scholarship

Family courts and child protective services (“CPS”) agencies surveil, regulate, and separate hundreds of thousands of families for neglect annually. These families are overwhelmingly poor, and the history of this legal system reveals an expectation, if not an intention, to intervene in poor families. This raises the question whether family courts and CPS agencies are “confusing poverty and neglect” or if they intervene for more than “just poverty,” as a raging debate in the field is framed.

The law fails to help resolve this debate. Instead of distinguishing poverty from neglect, or providing nuanced examinations of what social science has …

Ethical Imperatives And Challenges: Review Of The Use Of Machine Learning For Predictive Analytics In Higher Education, Emily Barnes, James Hutson, Karriem Perry

Faculty Scholarship

The escalating integration of machine learning (ML) in higher education necessitates a critical examination of its ethical implications. This article conducts a comprehensive review of the application of ML for predictive analytics within higher education institutions (HEIs), emphasizing the technology's potential to enhance student outcomes and operational efficiency. The study identifies significant ethical concerns, such as data privacy, informed consent, transparency, and accountability, that arise from the use of ML. Through a detailed analysis of current practices, this review underscores the need for HEIs to develop robust ethical frameworks and technological infrastructures to navigate these challenges effectively. The findings reveal …

Optimizing Adult Learner Success: Applying Random Forest Classifier In Higher Education Predictive Analytics, Emily Barnes, James Hutson, Karriem Perry

Faculty Scholarship

This study examines the application of the Random Forest Classifier (RF) model in predicting academic success among adult learners in higher education. It focuses on evaluating the model's effectiveness using key statistical measures like accuracy, precision, recall, and F1 score across a comprehensive dataset from 2013–14 to 2021–22, which includes variables such as age, ethnicity, gender, Pell Grant eligibility, and academic performance metrics. The research highlights the RF model's capability to handle large datasets with varying data types and demonstrates its superiority over traditional regression models in predictive accuracy. Through an iterative process, the study refines the RF model to …

A New Approach To Patent Reform, Janet Freilich, Michael J. Meurer, Mark Schankerman, Florian Schuett

Faculty Scholarship

Scholars and policy makers have tried for years to solve the tenacious and harmful crisis of low quality, erroneously granted patents. Far from resolving the problem, these determined efforts have resulted in hundreds of conflicting policy proposals, failed Congressional bills, and no way to evaluate the policies’ value or impact or to decide between the overwhelming multiplicity of policies.

This Article provides not only new solutions, but a new approach for designing and assessing policies both in patent law and legal systems more generally. We introduce a formal economic model of the patent system that differs from existing scholarship because …

Government Misinformation Platforms, Janet Freilich

Faculty Scholarship

There is a harmful mismatch between how information published by the government is perceived-as highly trustworthy-and the reality that it is often not. This Article shows that the government frequently collects information from third party private entities and publishes it with no review or vetting. Although this information is riddled with errors and inaccuracies, scholars, policymakers, and the public treat the information with unwarranted confidence because it derives from the government. Further, institutional imprimatur (and consequent trust) attaches to information even tangentially associated with the government and to information where the government explicitly disclaims review.

This Article highlights the ubiquity …

Reply To: On The Statistical Foundation Of A Recent Single Molecule Fret Benchmark, Dorothy A. Erie, Lydia Kisley, Dushani Dunukara

Faculty Scholarship

In their ‘Matters Arising’ manuscript, Saurabh et al. discuss two issues related to single-molecule Förster resonance energy transfer (smFRET) experiments: the use of the Gaussian noise approximation and spectral crosstalk. Their arguments are based on simulations obtained with parameters that differ significantly from the typical conditions measured experimentally, and, thus, from the regime included in the original study (Götz et al.1). In addition, they make claims about our multi-lab blind study that we would like to rectify. In Table 1, we provide a list of specific statements made by Saurabh et al. with our respective explanations.

Barriers To Dental Utilization Among Medicaid-Enrolled Young Children From Primary Care Practices In Northeast Ohio, David Selvaraj, Neel Agarwal, Jeffrey M. Albert, Suchitra Nelson

Faculty Scholarship

Objectives: To evaluate the individual and community factors that contribute to dental utilization among young children on Medicaid utilizing the Anderson Model and the Socio-Ecological Framework. Methods: This observational cross-sectional study was conducted using baseline data (socio-demographics, clinical dental need) from a cluster-randomized hybrid effectiveness-implementation trial among 1021 child–parent dyads recruited from primary care practices across northeast Ohio. The baseline data were then linked to dental Medicaid claims data (categorized as any dental visit, volume, and type in the past 12 months) and ICD-10 codes from the child's EHR data (individual-level) together with Dental Health Provider Shortage Area (HPSA) status …