Digital Commons Network^™

The Value Of Constitutional Environmental Rights And Public Trusts, John C. Dernbach

Faculty Scholarship

No abstract provided.

The Nineteenth Amendment And Dobbs, Paula A. Monopoli

Faculty Scholarship

There was a surge in legal scholarship around the Nineteenth Amendment to the United States Constitution—the Woman Suffrage Amendment—leading up to its centennial in August 2020. But this scholarly interest around the Nineteenth peaked two years before the U.S. Supreme Court’s historic decision in Dobbs v. Jackson Women’s Health Organization in June 2022. This paper revisits the Nineteenth Amendment in light of the Court’s decision in Dobbs. It argues that the Nineteenth should be understood as a ban on sex discrimination that extends beyond the right to vote. The Amendment expands the scope of women’s citizenship as a matter of …

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Empowering Neurodivergence: The Role Of Positive Language In Challenging Systemic Ableism, Piper Hutson, James Hutson

Faculty Scholarship

This review article examines the power of language in shaping perceptions of neurodivergent individuals and the systemic ableism embedded in society. The analysis begins by exploring the historical development of terms like "disabled" and their impact on societal attitudes, focusing on how deficit-based language reinforces exclusion. By contrasting this with strength-based and inclusive language, the article advocates for a shift toward reframing disability in terms of social constructs and accessibility, rather than inherent limitations. Drawing on neuroscientific research, it demonstrates how language shapes neural pathways, reinforcing either stigma or empowerment. The review further critiques euphemisms like "differently abled" for minimizing …

Surveilling Disability, Harming Integration, Prianka Nair

Faculty Scholarship

No abstract provided.

One-Offs, William Araiza

Faculty Scholarship

No abstract provided.

Keeping Your Eye On The Esg Sustainable Development Ball, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Self-Defense And Political Rage, Erin L. Sheley

Faculty Scholarship

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

Implementing Aba Standard 303(B)(3): Positive Legal Education Through A Community Of Inquiry, Joshua Aaron Jones

Faculty Scholarship

According to William Adams, Executive Director of Legal Education and Bar Admissions at the American Bar Association (ABA), “Full implementation [of 303(b)(3)] [was] expected by 2023.” The revised Standard requires that law schools provide “substantial opportunities” for professional identity development (PID). Though the ABA’s Standards and Rules of Procedure for Approval of Law Schools and the related interpretations allow flexibility, the ABA left law schools without detailed guidance; without a unified professional identity concept, law schools across the country will implement a patchwork of programs, some stronger than others, that may curtail a global strengthening of the profession. Fortunately, scholars …

Second-Generation Flanking Policies: Addressing Extraterritorial And Non-Economic Costs Of Trade Liberalization, Timothy Meyer

Faculty Scholarship

Flanking policies – policies that aim to address potential negative effects of trade liberalization, and/or the concerns of domestic stakeholders regarding those negative effects, and that are either legally or factually linked to trade liberalization – have been a critical component of international trade policy since at least 1962. Over the years, however, flanking policies have changed. This Article argues that there is a heretofore unnoticed distinction between what I term first-generation flanking policies and second-generation flanking policies. Specifically, first-generation flanking policies target negative economic effects, or costs, of trade liberalization experienced within the enacting country. Trade adjustment assistance is …

Introducing Biosimilar Competition For Cell And Gene Therapy Products, Brian Canter, Sabine Sussman, Stephen Colvill, Nitzan Arad, Elizabeth Staton, Arti Rai

Faculty Scholarship

This article provides an early analysis of the potential for creating future biosimilar competition for cell and gene therapies (CGTs) to lower prices and improve patient access, building on a unique set of interviews with relevant experts. Our discussion addressed regulatory, manufacturing, intellectual property, and market size challenges. Due to CGTs’ complexity, meeting the regulatory requirement of ‘high similarity with no clinically meaningful differences’ will be difficult. Gene therapies are likely better candidates for biosimilar development than cell therapies. Biosimilarity should be met when gene therapy biosimilars contain the same genetic sequence as a reference product, and the variability in …

A Great American Gun Myth: Race And The Naming Of The “Saturday Night Special”, Jennifer L. Behrens, Joseph Blocher

Faculty Scholarship

At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.”

Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article …

The Brussels Effect And The Extraterritoriality Of Delaware Corporate Law, William J. Moon

Faculty Scholarship

This essay explores possible shareholder claims in the United States that may arise  if and when member states of the European Union implement the proposed Directive  on Corporate Sustainability Due Diligence. As a doctrinal matter, legal compliance  obligations for corporations incorporated in Delaware extend beyond the borders of  the United States. Under Delaware law, shareholders can bring viable fiduciary suits  against directors and officers when corporations violate applicable “positive law.”  This jurisprudence, principally aimed at ascertaining whether directors and officers  betrayed shareholders by engaging in or facilitating lawbreaking, is not limited to  complying with American law. As Delaware corporations expand …

Embracing Ai In English Composition: Insights And Innovations In Hybrid Pedagogical Practices, James Hutson, Daniel Plate, Kadence Berry

Faculty Scholarship

In the rapidly evolving landscape of English composition education, the integration of AI writing tools like ChatGPT and Claude 2.0 has marked a significant shift in pedagogical practices. A mixed-method study conducted in Fall 2023 across three sections, including one English Composition I and two English Composition II courses, provides insightful revelations. The study, comprising 28 student respondents, delved into the impact of AI tools through surveys, analysis of writing artifacts, and a best practices guide developed by an honors student. Initially, the study observed a notable anxiety and mistrust among students regarding the use of AI in writing. However, …

Response: Client Counseling In Post-Conviction, Alexis Hoag-Fordjour

Faculty Scholarship

No abstract provided.

Dead Bodies As Quasi-Persons, Ela A. Leshem

Faculty Scholarship

No abstract provided.

Digital Resurrection Of Historical Figures: A Case Study On Mary Sibley Through Customized Chatgpt, James Hutson, Paul Huffman, Jeremiah Ratican

Faculty Scholarship

This study investigates the emerging realm of digital resurrection, focusing on Mary Sibley (1800–1878), the esteemed founder of Lindenwood University. The core objective was to demonstrate the capability of advanced artificial intelligence, specifically a customized version of ChatGPT, in revitalizing historical figures for educational and engagement purposes. By integrating comprehensive diaries from Sibley with Claude 2.0, the research utilized a substantial autobiographical dataset to develop a GPT beta version that replicates her distinct voice and tone. The incorporation of her official portrait and diaries into the GPT Builder was pivotal, creating an interactive platform that accurately reflects her perspectives on …

Multi-Strain Probiotic Improves Subjective Sleep Quality With No Impact On Body Composition, Hemodynamics, And Physical Activity, Chad Kerksick, Jessca Moon, Kylie Walden, Anthony Hagele, L. E. Allen, Connor J. Gaige, Joesi M. Krieger, Ralf Jäger, Marco Pane, Petey Mumford

Faculty Scholarship

The objective of the study was to examine the impact of a multi-strain probiotic (MSP) on sleep, physical activity, and body composition changes. We used a randomised, double-blind, placebo-controlled approach with 70 healthy men and women (31.0 ± 9.5 years, 173.0 ± 10.4 cm, 73.9 ± 13.8 kg, 24.6 ± 3.5 kg/m2) supplemented daily with MSP (4 × 109 live cells Limosilactobacillus fermentum LF16, Lacticaseibacillus rhamnosus LR06, Lactiplantibacillus plantarum LP01, and Bifidobacterium longum 04; Probiotical S.p.A., Novara, Italy) or placebo (PLA). In response to supplementation (after 0, 2, 4, and 6 weeks of supplementation) and 3 weeks after stopping supplementation, …

Judicial Preferences And Aggrandizement Effects, Jason Marisam

Faculty Scholarship

Scholars increasingly portray the Supreme Court as power hungry and self-aggrandizing. This aggrandizement literature, though, lacks a robust causal theory. This essay argues that judicial aggrandizement is not the product of a power-maximizing agenda but a function of judicial preferences and legal background conditions. Aggrandizement occurs in cases where legal background conditions do not align with judicial policy preferences and the justices assert power to create their preferred policy outcomes. This theory has significant prescriptive and normative implications. For example, counterintuitively, this essay shows that more judicial aggrandizement could be a sign of a healthier institution under some conditions.

Executive Power, The Royal Prerogative, And The Founders’ Presidency, Andrew Kent

Faculty Scholarship

The original meaning of the opening clause of Article II of the Constitution— which vests “[t]he executive power ... in a President of the United States”—has been debated inconclusively for over 200 years. As originalism gains ground as an interpretive theory in U.S. courts, and the U.S. executive branch continues to read the clause very expansively, often by making claims about original meaning, an intense scholarly debate has raged in recent decades about the Clause. A cohort of influential originalist scholars read the Executive Power Clause as a broad grant of war, foreign affairs, and national security power supposedly considered …

The Section 1031 Qualified-Use Requirement, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Personal Jurisdiction And The Declaration Of Independence, Ryan Williams

Faculty Scholarship

No abstract provided.

A Framework For Applying Copyright Law To The Training Of Textual Generative Artificial Intelligence, Art Neill, James Thomas, Erika Lee

Faculty Scholarship

The rise in the popularity of consumer-facing generative artificial intelligence (GenAI) has created considerable confusion and consternation among some copyright owners. The ability to automate the generation of original works based on user input is considered by some copyright holders to have been made possible by large-scale direct infringement by OpenAI, Microsoft, and other major GenAI developers. This article explores the application of copyright law to the training of OpenAI’s ChatGPT, specifically focusing on the legal issues surrounding the unauthorized use of copyrighted textual works in the GenAI training process.

The large language models (LLMs) that drive ChatGPT and similar …

Arrests: Legal And Illegal, Daniel Yeager

Faculty Scholarship

The Fourth Amendment prohibits unreasonable searches and seizures. An arrest—manifesting a police intention to transport a suspect to the stationhouse for booking, fingerprinting, and photographing—is a mode of seizure. Because arrests are so intrusive, they require roughly a fifty percent chance that an arrestable offense has occurred. Because nonarrest seizures (aka Terry stops), though no “petty indignity,” are less intrusive than arrests, they require roughly just a twenty-five percent chance that crime is afoot. Any arrest not supported by probable cause is illegal. It would therefore seem to follow that any arrest supported by probable cause is legal. But it …

Food And Drug Regulation: Statutory And Regulatory Supplement (2024), Adam I. Muchmore

Faculty Scholarship

This Statutory and Regulatory Supplement is intended for use with its companion casebook, Food and Drug Regulation: A Statutory Approach (2021). This is not a traditional statutory supplement. Instead, it contains selected, aggressively edited provisions of the Federal Food, Drug and Cosmetic Act (FFDCA), related statutes, and the Code of Federal Regulations. The Supplement includes all provisions assigned as reading in the casebook, as well as a few additional provisions that some professors may wish to cover. The excerpts are designed to be teachable rather than comprehensive.

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

A Reputational View Of Antitrust’S Consumer Welfare Standard, Murat C. Mungan, John M. Yun

Faculty Scholarship

A reform movement is underway in antitrust. Citing prior enforcement failures, deviations from the original intent of the antitrust laws, and overall rising levels of sector concentration, some are seeking to fundamentally alter or altogether replace the current consumer welfare standard, which has guided courts over the past fifty years. This policy push has sparked an intense debate over the best approach to antitrust law enforcement. In this Article, we examine a previously unexplored potential social cost from moving away from the consumer welfare standard: a loss in the information value to the public from a finding of liability. A …

The Major Questions Doctrine At The Boundaries Of Interpretive Law, Daniel E. Walters

Faculty Scholarship

The Supreme Court’s apparent transformation of the major questions doctrine into a clear statement rule demanding clear congressional authorization for “major” agency actions has already had, and will continue to have, wide-ranging impacts on American public law. Not the least of these is the impact it will have on the enterprise of statutory interpretation. Indeed, while it is easy to focus on the policy repercussions of a newly constrained Congress and newly hamstrung administrative state, this Article argues that equally important is the novel precedent that is set in this particular formulation of a clear statement rule, which stands almost …

English Company Law: Legal Architecture For A Global Law Market, Andrew P. Morriss, Charlotte Ku

Faculty Scholarship

English-architecture company law describes the distinct and diverse group of company or corporate law used in more than 60 jurisdictions worldwide. English-architecture company law provides a robust platform for innovation and development due to its permissive structure, opportunity for choice of law in an entity’s internal governance, and scalability permitting variation for small and large entities. It is the dominant form among International Financial Centers (IFCs), many of which have legal systems with a British connection. This body of law responds to competition and maintains dynamism by engaging its practice community through “learning by doing” and “frictioneering.” An architecture approach …

Wipo Negotiations On Intellectual Property, Genetic Resources And Associated Traditional Knowledge, Peter K. Yu

Faculty Scholarship

At the 2000 General Assembly, the World Intellectual Property Organization (WIPO) established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) to address intellectual property issues relating to genetic resources, traditional knowledge (TK) and traditional cultural expressions (TCEs). Although the IGC initially focused its work on studying these issues, it obtained a new mandate to accelerate its work in October 2009 and began text-based negotiations on an international instrument, or international instruments, a few months later. These negotiations paved the way for WIPO to convene a diplomatic conference to conclude an International Legal Instrument Relating …