Digital Commons Network^™

Exemplary Legal Writing 2019: Four Recommendations, Jed S. Rakoff, Lev Menand

Faculty Scholarship

Part of the purpose of recommending exemplary law books of the past year to readers of the Green Bag is to bring to their focus books even such erudite readers may not have noticed that nonetheless deserve their attention.

Boynton V. Virginia And The Anxieties Of The Modern African-American Customer, Amber Baylor

Faculty Scholarship

In 1958, Bruce Boynton was arrested for ordering food in a Whites-Only diner and charged with criminal trespass. Sixty years later, African Americans continue to face arrest and threat of arrest in commercial establishments based on discriminatory trespass claims. When store owners or employees decide to exclude would-be patrons from their establishment for discriminatory reasons, both overt and implicit, they rely on the police to enforce this form of discrimination. This article considers the legacy of Boynton v. Virginia, particularly the resonance of Boynton’s unaddressed claim, that the state enforcement of discriminatory trespass allegations is an Equal Protection …

Kamala Harris And The Complexity Of Racial Identity Politics, Vinay Harpalani

Faculty Scholarship

Vinay Harpalani reviews Kamala Harris' run as Democratic nominee for President, contrasting her challenges with Barak Obama's campaign to show how racial identity politics are complicated and constantly evolving as well as the intersectional, or multifaceted, issues Kamala faced during her candidacy.

Risk Factors And Mortality Rates Associated With Invasive Group B Streptococcus Infections Among Patients In The Us Veterans Health Administration, Robin L.P. Jump, Brigid Wilson, Daniel Baechle, Sunah Song, Federico Perez

Faculty Scholarship

IMPORTANCE The incidence of invasive infections caused by group B Streptococcus (GBS) continues to increase in the United States. Although diabetes is a key risk factor for invasive GBS, the influence of long-term glycemic control is not well characterized; other risk factors and mortality rates associated with specific types of invasive GBS infections are unknown. OBJECTIVE To investigate risk factors and mortality rates associated with specific invasive GBS infectious syndromes. DESIGN, SETTING, AND PARTICIPANTS This cohort study used US Veterans Health Administration data to assess active users of the Veterans Affairs health care system between January 1, 2008, and December …

Michael Vick, Robert Byrd, And The Case For Redemption, Vinay Harpalani

Faculty Scholarship

At the 2020 Pro Bowl, former NFL quarterback Michael Vick will be honored as one of the legends captains. Vick’s selection has sparked controversy, because in 2007, he was convicted of operating a dog fighting ring. Vick has served his prison sentence, and beyond that, he has sought redemption. We should extend forgiveness and let the NFL honor Michael Vick.

The Harvard Crimson Interviews Vinay Harpalani (Justice Department Continues Investigation Into Harvard Admissions), Vinay Harpalani, Camille G. Caldera

Faculty Scholarship

A Department of Justice investigation into alleged discrimination in Harvard’s race-conscious admissions policies remains ongoing. Harpalani believes the existence of this investigation supports Students for Fair Admissions (SFFA), which knows that the Trump Administration is sternly behind eliminating race-conscious admissions policies. He believes the real purpose of the investigation is to pressure other universities with race-conscious admissions policies to reduce or eliminate the use of race as an admissions factor.

Knowledge And Attitudes About Sudden Death In Epilepsy Among People Living With Epilepsy And Their Healthcare Providers In Mulago Hospital, Uganda: A Cross-Sectional Study, Carol Bixen, Martha Sajatovic

Faculty Scholarship

Objective: The objective of the study was to assess level of knowledge and attitudes of SUDEP among people living with epilepsy (PLWE) and healthcare workers providing epilepsy care in Uganda. Methods: This cross-sectional study of 48 PLWE and 19 epilepsy care providers used a tailored questionnaire to evaluate epilepsy and SUDEP knowledge, frequency of SUDEP discussion, reasons for not discussing SUDEP, timing of SUDEP discussions, and perceived patient reactions to being provided information on SUDEP. Results: Median PLWE sample age was 25 (IQR; 19-34) years, 10 (20.8%) were male, median age of onset of epilepsy 12 (IQR; 6-18) years. Half …

Brief Of Professors Of Law, Us V. Bergdahl, Joshua E. Kastenberg, Rachel E. Vanlandingham, Geoffrey S. Corn

Faculty Scholarship

When scrutinizing executive actions for unlawful command influence, this Court must account for a president’s immense power over the military. The extant judicial test for unlawful command influence – a violation of due process in the military setting – is a contextual one, and hence must consider the unique and unparalleled authority of the Commander-In-Chief over the military and individual service-members when the president’s actions are at issue. This executive power should also be evaluated in light of its myriad, and historically important, constitutional and statutory constraints – some predating the birth of the United States – that appropriately continue …

The Role Of Social, Economic, And Physical Environmental Factors In Care Planning For Home Health Care Recipients, Elliane Irani

Faculty Scholarship

Social, economic, and environmental factors contribute to patients’ recovery following hospitalization. However, little is known about how home health nurses make decisions based on their assessment of these factors. The purpose of the current study was to explore the nonclinical factors that home health nurses evaluate and describe how these factors influence care planning decisions. Semi-structured inter-views conducted with 20 visiting nurses from three home health agencies were analyzed using conven-tional content analysis. Three nonclinical factor themes emerged: Social Support, Home Environment and Neighborhood, and Finances and Insurance Barriers. Nurses’ assessments guided them to include family caregivers in the plan …

The Effects Of Valbenazine On Tardive Dyskinesia In Older And Younger Patients, Martha Sajatovic

Faculty Scholarship

Objective: To evaluate the effects of once-daily valbenazine (40 or 80 mg/d) in older and younger adults with tardive dyskinesia (TD). Methods: Data were pooled from three 6-week, randomized, double-blind, placebo-controlled (DBPC) studies (KINECT [NCT01688037], KINECT 2 [NCT01733121], and KINECT 3 [NCT02274558]) and two long-term studies (KINECT 3 extension and KINECT 4 [NCT02405091]). Outcomes analyzed in older and younger participants (55 years or older and younger than 55 years, respectively) included Abnormal Involuntary Movement Scale (AIMS) response (threshold of greater than or equal to 50% improvement from baseline in total score [items 1 to 7]) and Clinical Global Impression of …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Faculty Scholarship

No abstract provided.

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

A Natural Right To Copy, Glynn Lunney

Faculty Scholarship

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …

Negative Liberty Meets Positive Social Change, Anita Bernstein

Faculty Scholarship

No abstract provided.

A Hardy Case Makes Bad Law, Victoria Sahani

Faculty Scholarship

This Article is the first ever to analyze a direct clash between the inherent power of US courts regarding the enforcement ofjudgments and the obligations of the United States as one of the 163 member countries of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of Other States, commonly known as the "ICSID Convention. " The ICSID Convention includes a self-enforcement mechanism whereby the courts of the member countries are obligated to enforce the pecuniary obligations in multimillion (and sometimes over one billion) dollar ICSID arbitration awards as though they were court judgments of the …

Cops And Cars: How The Automobile Drove Fourth Amendment Law, Tracey Maclin

Faculty Scholarship

This is an essay on Professor Sarah A. Seo’s new book, Policing the Open Road: How Cars Transformed American Freedom (Harvard Univ. Press 2019). I focus on Professor Seo’s analysis of Carroll v. United States, 267 U.S. 132 (1925) and Brinegar v. United States, 338 U.S. 160 (1949). Carroll is important not only because it was the Court’s first car case. Understanding Carroll (and Brinegar, which solidified and expanded Carroll’s holding) is essential because, nearly one hundred years later, its logic continues to direct how the modern Court resolves Fourth Amendment claims of motorists. Put simply, a majority of today’s …

Death Of Copyright, Paul Gugliuzza

Faculty Scholarship

The four primary bodies of intellectual property law—patent law, copyright law, trademark law, and the law of trade secrets—address the question of duration in different ways. Trade secrets have no fixed duration; the law protects against misappropriation as long as the relevant information remains secret. Trademark protection lasts as long as the mark retains its capacity to distinguish the goods or services it is attached to. In patent law—my primary area of scholarship—duration is fixed, finite, and generally straightforward to determine: you get twenty years from the date you file your patent application. Copyright duration, by contrast, varies depending on …

Learned Hand And The Objective Theory Of Contract Interpretation, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

The Halo Mass Function Of Late-Type Galaxies From H I Kinematics, Pengfei Li, Stacy S. Mcgaugh

Faculty Scholarship

We present an empirical method to measure the halo mass function (HMF) of galaxies. We determine the relation between the H i line width from single-dish observations and the dark matter halo mass (M 200) inferred from rotation-curve fits in the Spitzer Photometry and Accurate Rotation Curves (SPARC) database, then we apply this relation to galaxies from the H i Parkes All Sky Survey (HIPASS) to derive the HMF. This empirical HMF is well fit by a Schechter function, and matches that expected in the Λ Cold Dark Matter (ΛCDM) model over the range 1010.5 < M 200 < 1012 M o˙. More massive halos must be poor in neutral gas to maintain consistency with the power law predicted by ΛCDM. We detect no discrepancy at low masses. The lowest halo mass probed by HIPASS, however, is just greater than the mass scale where the Local Group missing satellite problem sets in. The integrated mass density associated with the dark matter halos of H i-detected galaxies sums to Ωm,gal ≈ 0.03 over the probed mass range.

A Psychometric Evaluation Of The Family Decision-Making Self-Efficacy Scale Among Surrogate Decision-Makers Of The Critically Ill, Grant A. Pignatiello, Elliane Irani, Sadia Tahir, Emily Tsivitse, Ronald L. Hickman Jr.

Faculty Scholarship

Objectives The purpose of this study was to report the psychometric properties, in terms of validity and reliability, of the Unconscious Version of the Family Decision-Making Self-Efficacy Scale (FDMSE). Methods A convenience sample of 215 surrogate decision-makers for critically ill patients undergoing mechanical ventilation was recruited from four intensive care units at a tertiary hospital. Cross-sectional data were collected from participants between days 3 and 7 of a decisionally impaired patient's exposure to acute mechanical ventilation. Participants completed a self-report demographic form and subjective measures of family decision-making self-efficacy, preparation for decision-making, and decisional fatigue. Exploratory factor analyses, correlation coefficients, …

Degradation Mechanism Detection In Photovoltaic Backsheets By Fully Convolutional Neural Network, Laura S. Bruckman

Faculty Scholarship

Materials and devices age with time. Material aging and degradation has important implications for lifetime performance of materials and systems. While consensus exists that materials should be studied and designed for degradation, materials inspection during operation is typically performed manually by technicians. The manual inspection makes studies prone to errors and uncertainties due to human subjectivity. In this work, we focus on automating the process of degradation mechanism detection through the use of a fully convolutional deep neural network architecture (F-CNN). We demonstrate that F-CNN architecture allows for automated inspection of cracks in polymer backsheets from photovoltaic (PV) modules. The …

Lt. Col. Vindman Is A Patriot, Joshua E. Kastenberg

Faculty Scholarship

Op-ed: Kastenberg discusses how it is the duty of a commissioned officer to report activity they consider legally questionable and it is within their duty to testify before Congress.

The Imprint Of Spiral Arms On The Galactic Rotation Curve, Stacy S. Mcgaugh

Faculty Scholarship

We discuss a model for the Milky Way obtained by fitting the observed terminal velocities with the radial acceleration relation. The resulting stellar surface density profile departs from a smooth exponential disk, having bumps and wiggles that correspond to massive spiral arms. These features are used to estimate the term for the logarithmic density gradient in the Jeans equation, which turn out to have exactly the right location and amplitude to reconcile the apparent discrepancy between the stellar rotation curve and that of the interstellar gas. This model also predicts a gradually declining rotation curve outside the solar circle with …

Contractual Communication, Lawrence B. Solum

Faculty Scholarship

In Pseudo-Contract and Shared Meaning Analysis, Professors Robin Bradley Kar and Margaret Jane Radin develop an important theory of the nature of contract that draws on Paul Grice’s influential theory of meaning. That theory has significant implications for contract doctrine, in particular for questions about the enforceability of so-called “contracts of adhesion” in particular and for “boilerplate” in general. But at the most fundamental level, Kar and Radin’s work is about the nature of contractual communication. They answer the question, “How do contracts mean?,” by proposing a theoretical structure, which they name “Shared Meaning Analysis.” This Essay focuses on …

The Supreme Court And The Future Of Affirmative Action, Vinay Harpalani

Faculty Scholarship

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard. The big question is whether the U.S. Supreme Court will grant certiorari, since SFFA is sure to appeal subsequently to the High Court. However, there are a few reasons why the Justices might deny certiorari.

Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia

Faculty Scholarship

Approximately 3.8 million privately-owned residential housing units in America today contain affordability covenants recorded in their chains of title. State and local agencies and the District of Columbia use these covenants to ensure that publicly-subsidized properties are actually used to provide affordable housing. With rents at all-time highs and stagnant wages, the affordable housing crisis has reached a fever pitch. House Democrats are proposing billions more in housing subsidy. To the extent those funds subsidize privately-owned housing development they, too, will be secured by affordability covenants. In response to this crisis, a new trend in high cost markets is to …

Regarding Docket No. Fr-6111-P-02, Hud’S Implementation Of The Fair Housing Act’S Disparate Impact Standard, Sonia Gipson Rankin, Alfred Mathewson, Melanie Moses, G. Matthew Fricke, Kathy Powers, Gabriel R. Sanchez, Christopher Moore, Elizabeth Bradley, Mirta Galesic, Joshua Garland

Faculty Scholarship

The is a Comment on the Department of Housing and Urban Development (HUD) Proposed Rule: FR-6111-P-02 HUD’s Implementation of the Fair Housing Act’s Disparate Impact Standard . This comment examines how algorithms in housing applications may be inherently biased against certain groups of people.

Their arguments against the proposed legislation:

1. To ensure that an algorithm does not have disparate impact, it is not enough to show that individual input factors are not “substitutes or close proxies” for protected characteristics.

2. It is impossible to audit an algorithm for bias without an adequate level of transparency or access to the …

Voltage-Gated Potassium Channels Are Critical For Infrared Inhibition Of Action Potentials: An Experimental Study, Junqi Zhuo, Matthew T. Mcpheeters, Michael W. Jenkins, Hillel J. Chiel

Faculty Scholarship

Thermal block of unmyelinated axons may serve as a modality for control, suggesting a means for providing therapies for pain. Computational modeling predicted that potassium channels are necessary for mediating thermal block of propagating compound action potentials (CAPs) with infrared (IR) light. Our study tests that hypothesis. Results suggest that potassium channel blockers disrupt the ability of IR to block propagating CAPs in Aplysia californica nerves, whereas sodium channel blockers appear to have no significant effect. These observations validate the modeling results and suggest potential applications of thermal block to many other unmyelinated axons.

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

Faculty Scholarship

Author's Note: This Article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed. Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this …

The Uniform Commercial Code Survey: Introduction, Jennifer S. Martin, Colin P. Marks, Wayne Barnes

Faculty Scholarship

The survey that follows highlights the most important developments of 2018 dealing with domestic and international sales of goods, personal property leases, payments, letters of credit, documents of title, investment securities, and secured transactions.