Digital Commons Network^™

Thinkprogress Interviews Ahranjani On Not Prosecuting Should Roe V. Wade Be Overturned, Maryam Ahranjani

Faculty Scholarship

Professor Ahranjani discusses the role of the Attorney General if Roe v. Wade was overturned.

Subfederal Immigration Regulation And The Trump Effect, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The restrictive changes made by the Trump presidency on U.S. immigration policy have been widely reported: the significant increases in both interior and border enforcement, the travel ban prohibiting immigration from majority-Muslim countries, and the termination of the DACA program. Beyond the traditional levers of federal immigration control, this administration has also moved aggressively to harness the enforcement power of local and state police to increase interior immigration enforcement. To that end, the administration has employed both voluntary measures (like signing 287(g) agreements deputizing local police to enforce immigration laws) and involuntary measures (threatening to defund jurisdictions with so-called “sanctuary” …

Hardball Vs. Beanball: Identifying Fundamentally Antidemocratic Tactics, Jed Handelsman Shugerman

Faculty Scholarship

The “constitutional hardball” metaphor used by legal scholars and political scientists illuminates an important phenomenon in American politics, but it obscures a crisis in American democracy. In baseball, hardball encompasses legitimate tactics: pitching inside to brush a batter back but not injure, hard slides, hard tags. Baseball fans celebrate hardball. Many of the constitutional hardball maneuvers previously identified by scholars have been legitimate, if aggressive, constitutional political moves. But the label “hardball” has been interpreted too broadly to include illegitimate, fundamentally undemocratic tactics. I suggest a different baseball metaphor for such tactics: beanball, pitches meant to injure and knock out …

Afrofuturism, Critical Race Theory, And Policing In The Year 2044, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Law's Enterprise: Argumentation Schemes & Legal Analogy, Brian N. Larson

Faculty Scholarship

Reasoning by legal analogy has been described as mystical, reframed by skeptics using the deductive syllogism, and called “no kind of reasoning at all” by Judge Posner. Arguments by legal analogy happen every day in courtrooms, law offices, and law-school classrooms, and they are the essence of what we mean when we talk of thinking like a lawyer. But we have no productive and normative theory for creating and evaluating them. Entries in the debate over the last 25 years by Professors Sunstein, Schauer, Brewer, Weinreb, and others leave us at an impasse: The ‘skeptics’ are too focused on the …

Preserving Habeas Corpus For Asylum Seekers Just When They Need It Most, Jennifer Moore

Faculty Scholarship

The blog post reviews are very recent Ninth Circuit case, Thuraissigiam, which holds that “asylum seekers facing deportation have the right to challenge the summary denial of their asylum claims in federal court". The ruling in Thuraissigiam applies to individuals who have failed to establish a “credible fear of persecution” in expedited removal proceedings conducted at the border.

Fair Use And Its Global Paradigm Evolution, Peter K. Yu

Faculty Scholarship

This Article closely examines the transplant of the fair use model in US. copyright law on to foreign soil. It begins by reviewing the literature concerning paradigm shift, in particular Thomas Kuhn's seminal work. The Article then documents a growing trend toward the worldwide adoption of the U.S. fair use model and a countertrend toward the retention of the status quo. The juxtaposition of these two trends explain why jurisdictions that set out to transplant U.S. -style fair use ended up adopting a hybrid model. The second half of this Article interrogates the different primary causes behind such a paradigm …

Repealing Patents, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

Prevalence, Patterns And Factors Associated With Hypertensive Crises In Mulago Hospital Emergency Department; A Cross-Sectional Study, Martha Sajatovic

Faculty Scholarship

Background: Hypertension is increasing in sub-Saharan Africa (SSA) and it’s the single most important modifiable stroke risk factor, yet it’s control is not routinely emphasized. The prevalence, pattern and factors associated with hypertensive urgencies and emergencies in Uganda is not well established. A cross-sectional study, was conducted between November 2015 and February 2016, using a complete clinical examination and pre-tested standardized questionnaire subjects were enrolled. The prevalence of hypertensive crises and associations of demographic and clinical factors determined using logistic regression. Results: The prevalence of hypertensive crises was 5.1%, (203/4000) of all admissions at the medical section of the accident …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

Adopting Civil Damages: Wrongful Family Separation In Adoption, Malinda L. Seymore

Faculty Scholarship

The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary, or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents …

Forum Clauses At The Margin, James P. George

Faculty Scholarship

This article will first dispel the historical account and demonstrate an enforcement history that was reasoned and fairly consistent in England, but erratic in the United States, yielding to an ever-increasing contract-autonomy view after Bremen. The history concludes with concerns about what is now the Bremen/Atlantic Marine presumption (referred to under either case name depending on the context and time frame), including its encouragement of summary analysis and enforcement. To illustrate this extreme, the last section focuses on a Fifth Circuit decision that, with its cursory analysis and extreme favoring of enforcement, leaves significant questions unanswered—a result the law should …

Capturing The Regulatory Agenda: An Empirical Study Of Agency Responsiveness To Rulemaking Petitions, Daniel E. Walters

Faculty Scholarship

In environmental regulation as well as in other regulatory domains, a critical question is how outside interests shape the rulemaking agenda. A great deal of skepticism toward regulation stems from the widespread perception that agencies excessively, or even exclusively, cater to business interests. One answer to these concerns is administrative procedure, in particular rulemaking petitions, which are provided for in the Administrative Procedure Act and in many substantive environmental statutes. Although rulemaking petitions could in theory be used by business interests to strengthen their hold on regulatory agenda-setting, a growing number of scholars, highlighting the critical role a rulemaking petition …

Design And Actuation Of A Fabric-Based Worm-Like Robot, Akhil Kandhari, Anna Mehringer, Hillel J. Chiel, Roger D. Quinn, Kathryn A. Daltorio

Faculty Scholarship

Soft-bodied animals, such as earthworms, are capable of contorting their body to squeeze through narrow spaces, create or enlarge burrows, and move on uneven ground. In many applications such as search and rescue, inspection of pipes and medical procedures, it may be useful to have a hollow-bodied robot with skin separating inside and outside. Textiles can be key to such skins. Inspired by earthworms, we developed two new robots: FabricWorm and MiniFabricWorm. We explored the application of fabric in soft robotics and how textile can be integrated along with other structural elements, such as three-dimensional (3D) printed parts, linear springs, …

Effects Of High-Fidelity Simulation Based On Life-Threatening Clinical Condition Scenarios On Learning Outcomes Of Undergraduate And Postgraduate Nursing Students: A Systematic Review And Meta-Analysis, Celeste Marie Alfes

Faculty Scholarship

Objective The purpose was to analyse the effectiveness of high-fidelity patient simulation (HFPS) based on life-threatening clinical condition scenarios on undergraduate and postgraduate nursing students' learning outcomes. Design A systematic review and meta-analysis were conducted based on the Cochrane Handbook for Systematic Reviews of Interventions and its reporting was checked against the Preferred Reporting Items for Systematic Reviews and Meta-Analyses checklist. Data sources PubMed, Scopus, CINAHL with Full Text, Wiley Online Library and Web of Science were searched until July 2017. Author contact, reference and citation lists were checked to obtain additional references. Study selection To be included, available full-texts …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

Transdisciplinarity At The Boundaries: Exploring A Sylvan Metaphor For Health, Peter J. Whitehouse

Faculty Scholarship

Transdisciplinarity is an action oriented intellectual and ethical endeavor to address complex ecological, economic, and political challenges that humans face. Language is viewed as a powerful tool for necessary cultural change. Blending art and science looking for the difficult to define but critically important hidden spaces between apparently rigid conceptual structures is a core of transdisciplinarity. Metaphor is a particular powerful tool for examining boundaries and developing creative blends of structures and processes. Forests are biologically and culturally critical to life on the planet. In this paper we explore, a performance character named Sylvanus, the Tree Doctor, named after the …

Diffusing New Technology Without Dissipating Rents: Some Historical Case Studies Of Knowledge Sharing, James Bessen, Alessandro Nuvolari

Faculty Scholarship

The diffusion of innovations is supposed to dissipate inventors’ rents. Yet in many documented cases, inventors freely shared knowledge with their competitors. Using a model and case studies, this article explores why sharing did not eliminate inventors’ incentives. Each new technology coexisted with an alternative for one or more decades. This allowed inventors to earn rents while sharing knowledge, attaining major productivity gains. The technology diffusion literature suggests that such circumstances are common during the early stages of a new technology.

Shades Of Nixon In Mattis Departure, Joshua E. Kastenberg

Faculty Scholarship

With the voluntary departure or unceremonious firing of Secretary of Defense James Mattis, there is a potential/looming crisis in civil-military affairs in our country. Not since President Richard Nixon has there been this type of instability in the Department of Defense.

Distinguishing Different Kinds Of Property In Patents And Copyrights, Sean O'Connor

Faculty Scholarship

No abstract provided.

Contracting Around The Hague Service Convention, Robin Effron, John F. Coyle, Maggie Gardner

Faculty Scholarship

No abstract provided.

Can A State's Water Rights Be Damned? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Faculty Scholarship

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment …

Nefarious Neighbors: How Living Near Payday Loan Stores Affects Loan Use, Nathalie Martin, Younghee Lim, Aimee Moles, Trey Bickham

Faculty Scholarship

Few of us give much thought to local laws, yet local laws, such as zoning and other land use regulations, have an abiding influence on our lives. Think for a few moments about the types of businesses located near your home. Are these businesses places you frequent? Considering socio-economics, how do land uses differ from locale to locale throughout your city or state? Do all citizens have an equal voice in the land use approval process? The answer is likely no, which creates environmental and economic justice issues.

Like all businesses, when it comes to payday lenders, geography matters. Payday …

A “Paucity Of Details”: S.J. Crane And The Baseball Rule, Robert Jarvis

Faculty Scholarship

No abstract provided.

Exemplary Legal Writing 2018: Five Recommendations, Femi Cadmus, Casandra Laskowski

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2018.

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

Faculty Scholarship

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

Thermal Block Of Action Potentials Is Primarily Due To Voltage-Dependent Potassium Currents: A Modeling Study, Michael W. Jenkins, Hillel J. Chiel

Faculty Scholarship

Objective. Thermal block of action potential conduction using infrared lasers is a new modality for manipulating neural activity. It could be used for analysis of the nervous system and for therapeutic applications. We sought to understand the mechanisms of thermal block. Approach. To analyze the mechanisms of thermal block, we studied both the original Hodgkin/Huxley model, and a version modified to more accurately match experimental data on thermal responses in the squid giant axon. Main results. Both the original and modified models suggested that thermal block, especially at higher temperatures, is primarily due to a depolarization-activated hyperpolarization as increased temperature …

Soft-Surface Grasping: Radular Opening In Aplysia Californica, Catherine E. Kehl, Joey Wu, Sisi Lu, Richard F. Drushel, Rebekah K. Smoldt, Hillel J. Chiel

Faculty Scholarship

Grasping soft, irregular material is challenging both for animals and robots. The feeding systems of many animals have adapted to this challenge. In particular, the feeding system of the marine mollusk Aplysia californica, a generalist herbivore, allows it to grasp and ingest seaweeds of varying shape, texture and toughness. On the surface of the grasper of A. californica is a structure known as the radula, a thin flexible cartilaginous sheet with fine teeth. Previous in vitro studies suggested that intrinsic muscles, I7, are responsible for opening the radula. Lesioning I7 in vivo does not prevent animals from grasping and ingesting …