Digital Commons Network^™

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Faculty Scholarship

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Mickey, Disney, And The Public Domain: A Ninety-Five-Year Love Triangle, Jennifer Jenkins

Faculty Scholarship

No abstract provided.

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

Representations & Warranties, Fraud, And Risk Shifting: An Analytical Framework, Steven L. Schwarcz

Faculty Scholarship

Do violations of contractual representations and warranties (“R&Ws”) merely shift risk by giving rise to contract-breach damages, or can they also give rise to fraud claims? This question is at the heart of numerous lawsuits, including billions of dollars of securitization-related litigation. Many agreements governing the issuance of securities in these transactions limit R&W breach claims to a sole contractual remedy—curing the violation or repurchasing nonconforming loans that caused the violation. Although parties making the R&Ws argue that this sole remedy should adequately shift risk, investor plaintiffs contend that it insufficiently shifts the risk if the violations are extensive. Plaintiffs …

Diverse Originalism, History & Tradition, Christina Mulligan

Faculty Scholarship

No abstract provided.

Earlier Use Of Long-Acting Injectable Paliperidone Palmitate Once-Monthly Versus Oral Antipsychotics In Patients With Schizophrenia: An Integrated Patient-Level Meta Analysis Of The Prosipal And Pride Studies, Martha Sajatovic

Faculty Scholarship

Purpose: A previous integrated patient-level analysis demonstrated a significant benefit of implementing once-monthly injectable paliperidone palmitate (PP1M) earlier in the treatment course for schizophrenia. Earlier therapeutic interventions during the first 3–5 years after disease onset can positively impact long-term outcomes in schizophrenia. This present analysis evaluated the risk of relapse both overall and by different durations of illness (0–3 years, >3–5 years, and >5 years from diagnosis) in adult patients with schizophrenia who received PP1M or oral antipsychotics (OAPs). Patients and Methods: This analysis included integrated patient-level data from the Paliperidone Palmitate Research in Demonstrating Effectiveness (PRIDE) and Prevention of …

Stroke Recurrence Rate And Risk Factors Among Stroke Survivors In Sub-Saharan Africa: A Systematic Review, Christopher J. Burant, Shirley Moore, Carol Bixen, Martha Sajatovic

Faculty Scholarship

Purpose: Evidence supporting secondary stroke in sub-Saharan Africa is scarce. This study describes the incidence of stroke recurrence and associated risk factors in sub-Saharan Africa. Methods and Materials: Scientific databases were systematically searched from January 2000 to December 2022 for population-based observational studies, case-control or cohort studies of recurrent stroke involving adults aged 18 years and above in sub-Saharan Africa (SSA). We assessed the quality of the eligible studies using the Critical Appraisal Skills Program (CASP) checklist for observational studies. Results: Six studies met the inclusion criteria and were included in this study. Stroke recurrence rates in SSA ranged from …

A Roadmap For Sex Workers’ Rights Reform: Lessons Learned From Recent Legal Advancements, Chi Adanna Mgbako

Faculty Scholarship

The past decade has witnessed unprecedented growth in the legal recognition of sex workers’ rights. Recent legislation and court judgments strengthening sex workers’ rights protections have occurred in the Australian jurisdictions of the Northern Territory, Queensland, and Victoria, as well as in Belgium, India, and Malawi. These legal advancements conform with the goals of the global sex workers’ rights movement. They include newly decriminalized legal frameworks governing sex work, groundbreaking labor and anti-discrimination protections for sex workers, the striking down of vagrancy laws that indirectly target sex workers, and judicial directives on state protection of sex workers’ rights. Despite the …

Voice, Prevention, Remedy: Key Elements In A Global Supply Chain Convention, James J. Brudney

Faculty Scholarship

In a global supply chain (GSC) setting, workers’ voice may be understood as the extent to which employees and others toiling in the supply chain are able to participate—individually and/or collectively—in decisions affecting their labor conditions and rights. Policy instruments may strengthen this voice insofar as they provide mechanisms enabling workers to identify and actualize their labor rights within the GSC. This Article initially situates the role of workers’ voice in GSCs by reference to the writings of political economist Albert O. Hirschman. In his classic book, Exit Voice, and Loyalty, and related articles, Hirschman focused on mechanisms for addressing …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Human Psychology And Robot Evidence In The Courtroom, Alternative Dispute Resolution, And Agency Proceedings, Sara Sun Beale, Hayley Lawrence

Faculty Scholarship

In human–robot interactions in legal proceedings, human responses to robot-generated evidence will present unique challenges to the accuracy of litigation as well as ancillary goals such as fairness and transparency, though it may also enhance accuracy in other respects. The most important feature of human–robot interactions is the human tendency to anthropomorphize robots, which can generate misleading impressions and be manipulated by designing robots to make them appear more trustworthy and believable. Although robot-generated evidence may also offer unique advantages, there are concerns about the degree to which the traditional methods of testing the accuracy of evidence, particularly cross-examination, will …

Originalism And Historical Fact-Finding, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

Historical facts are more central to constitutional litigation than ever before, given the Supreme Court’s increasing reliance on originalism and other modes of interpretation that invoke historical practice and tradition. This raises a central tension. The case for originalism has rested largely on the idea that it is simultaneously fact-bound and a theory of adjudication capable of resolving questions of constitutional law. In practice, however, the historical facts central to originalism typically are not litigated in accordance with standard practices for fact-finding: introduction at trial, expert testimony, adversarial testing, deference on appeal, and so on.

In the absence of the …

Transgender Students And The First Amendment, Dara Purvis

Faculty Scholarship

Suppose a transgender child experiences teasing and harassment from their classmates, whose hostile reactions interrupt the school day. School administrators tell the transgender child that, in order to allow educational activities to continue, they must dress in more gender-neutral clothing, ideally cionsistent with the sex they were assigned at birth. The student's parents protest, arguing that their child's clothing is speech that expresses their gender identity. The school points to Tinker v. Des Moines, allowing suppression of student speech where it creates a material disruption, as well as recent legislation characterizing discussion of gender identity as lewd and obscene. …

Racing And Erasing Parental Rights, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Toward Best Practices For Trade-Security Measures, Harlan G. Cohen

Faculty Scholarship

The global economy is increasingly being weaponized. Citing security concerns from traditional defence to economic competitiveness, health emergency, and climate crisis, states are turning to sanctions, tariffs, export controls, investment screening, and subsidies. But while economic statecraft is becoming common, rules remain scarce. Questions about notice, duration, proportionality, harm minimization, compensation, retaliation, and/or rebalancing lack clear answers and seem almost theoretical. Once, we might have hoped the World Trade Organization (WTO) would play a role in developing such rules. But in the absence of an Appellate Body and in the face of state rejections of review, WTO’s deliberative processes have …

Proportionalities, Youngjae Lee

Faculty Scholarship

"Proportionality" is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Defamation, Presumed Damages, And Reputational Injury: A Legal And Philosophical Inquiry, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Afrofuturism And The Law: A Manifesto, I. Bennett Capers

Faculty Scholarship

Afrofuturism seems to be everywhere these days. In music, film, dance, literature. And in this special symposium issue of the Georgetown Law Journal, “Afrofuturism and the Law.” This prompts a foundational question. What is “Afrofuturism and the Law”? More specifically, as a practice, as a discipline, and a legal movement, what should Afrofuturism and the Law be. Indeed, given Afrofuturism’s seeming staying power, and its incursion into law, is it time for a manifesto to set parameters? Hence, this proposed manifesto. To be sure, I am troubled by the word manifesto, especially given its connection to the word manifest, which …

The Mistaken Law Of Mistakes Of Law: Mistakes Negating Culpability Under The Model Penal Code, Scott England

Faculty Scholarship

This Article examines the relationship between two core principles of American criminal law. On one hand, ignorance of the law is no excuse. On the other hand, criminal liability requires not just a guilty act but also a guilty mind. As the criminal law has become more complex, criminal offenses have increasingly raised issues about whether they require culpability as to issues of law, often bringing culpability requirements and the ignorance maxim into apparent conflict.

In 1962, the American Law Institute published the Model Penal Code (“MPC” or “the Code”). The MPC changed American criminal law significantly, and the Code’s …

Environmental Justice Beyond 2°C, Clifford Villa

Faculty Scholarship

In the last four decades, average temperatures have risen significantly across the United States, with Alaska and New Mexico among the fastest warming states. Since 1970, average temperatures in New Mexico have risen 3.5 degrees Fahrenheit (°F)—or nearly 2 degrees Celsius (°C). The international scientific community has urged world leaders to contain global warming above pre-industrial levels to 1.5°C ideally, and to 2°C at worst. Current trajectories, however, suggest we may shoot past 2°C of global warming this century and enter a world of 3-4°C or beyond... The “trade offs” and “letting go” as we confront the looming 4°C world …

Anticipating The Needs Of Future Law Students Based On Current Post-Pandemic National Reading Comprehension Test Scores, Nicole R. Chong

Faculty Scholarship

The current state of education in the elementary, middle, and high school levels regarding students’ reading comprehension skills is bleak. Post-pandemic scores are showing up to a thirty-year backslide in reading comprehension testing scores. These concerning decreases do not bode well for students who may enter law schools one day. Let’s anticipate those needs by thinking ahead of ways to remedy potential shortcomings.

Reading comprehension is tied closely to the skills of critical reading and thinking. Other scholars have written extensively in the legal academia field about critical reading and thinking. In fact, no one likely would dispute that critical …

A Tort For The Digital Age: False Light Invasion Of Privacy Reconsidered, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability.

Drawing from case law and …

Contractual Landmines, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Conventional wisdom is that the standardized boilerplate terms used in large commercial markets survive unchanged because they are an optimal solution to the contracting problems facing parties in these markets. As Smith and Warner explained, “harmful heuristics, like harmful mutations, will die out.” But an examination of a sample of current sovereign bond contracts reveals numerous instances of harmful landmines — some are deliberate changes to standard language that increase a creditor’s nonpayment risk, others are blatant drafting errors, and yet others are inapt terms that have been carelessly imported from corporate transactions. Moreover, these landmines differ from each other …

Rethinking Commercial Law’S Uncertain Boundaries, Steven L. Schwarcz

Faculty Scholarship

Although it is an essential part of business law, commercial law has uncertain boundaries. That uncertainty creates significant legal ambiguities and inconsistencies, confusing lawyers and courts and causing misinterpretations that disrupt commerce and reduce efficiency. This Article hypothesizes and tests possible explanations for the uncertainty, including that commercial law’s development has been path dependent, ad hoc, and lacking well-defined normative purposes. The Article then analyzes what those boundaries should be, arguing that commercial law should cover all business-related transfers of property, subject to exceptions needed to reduce transaction costs and otherwise increase economic efficiency. The Article also compares its proposed …

The Sense Of Safety Theoretical Framework: A Trauma-Informed And Healing-Oriented Approach For Whole Person Care, Kurt C. Stange

Faculty Scholarship

Objectives: This research describes four aspects of the development of the Sense of Safety Theoretical Framework for whole person care: exploring the meaning of the phrase “sense of safety”—the whole person language; the range of human experience that impacts sense of safety—whole person scope; the dynamics that build sense of safety—the healing goals; and the personal and cross-disciplinary trauma-informed practitioner skills and attitudes that facilitate sense of safety. Methods: This qualitative participatory study was conducted in two phases. Researchers iteratively explored the concept of sense of safety using focus groups and semi-structured interviews. Overarching research questions were: “Does the transdisciplinary …

Emotional Expression Between Ceo And Chairperson As A Micro-Foundation Of Organizational Capabilities: An Exploratory Mixed Methods Study, John Paul Stephens

Faculty Scholarship

The work relationships between CEOs and Chairpersons are key to the functioning of the firm. This study uses survey and interview data to explore how these work relationships serve as a micro-foundation for an organization's communication climate. Survey data suggested that CEO-Chairperson relationships can be characterized by emotional carrying capacity (ECC; constructively expressing more positive and negative emotions). The survey-based model further demonstrated that CEOs and Chairpersons perceive their ECC to positively predict organizational communication climate and, in turn, knowledge creation capabilities. The latter, in turn, are positively associated with firm performance. CEO-Chairperson dyadic interview data supplemented the associations identified …

Next Generation Microfluidics: Fulfilling The Promise Of Lab-On-A-Chip Technologies, Umut A. Gurkan

Faculty Scholarship

Microfluidic lab-on-a-chip technologies enable the analysis and manipulation of small fluid volumes and particles at small scales and the control of fluid flow and transport processes at the microscale, leading to the development of new methods to address a broad range of scientific and medical challenges. Microfluidic and lab-on-a-chip technologies have made a noteworthy impact in basic, preclinical, and clinical research, especially in hematology and vascular biology due to the inherent ability of microfluidics to mimic physiologic flow conditions in blood vessels and capillaries. With the potential to significantly impact translational research and clinical diagnostics, technical issues and incentive mismatches …

Fabrication And Validation Of Sub-Cellular Carbon Fiber Electrodes, Yu Huan, Hillel J. Chiel

Faculty Scholarship

Multielectrode arrays for interfacing with neurons are of great interest for a wide range of medical applications. However, current electrodes cause damage over time. Ultra small carbon fibers help to address issues but controlling the electrode site geometry is difficult. Here we propose a methodology to create small, pointed fiber electrodes (SPFe). We compare the SPFe to previously made blowtorched fibers in characterization. The SPFe result in small site sizes (105.4 ± 20.8μm²) with consistently sharp points (20.8 ± 7.64°). Additionally, these electrodes were able to record and/or stimulate neurons multiple animal models including rat cortex, mouse retina, …

Elective Corporate Governance: Does Board Choice Matter?, Martin Gelter, Mathias M. Siems

Faculty Scholarship

Recent literature discusses how “menu laws” allow corporations to opt into one of multiple competing statutory regimes. This paper contributes to this literature by presenting original empirical research on the choice between corporate board models. Today, many countries not only allow modifications of a particular board structure, but they provide separate legal templates, giving firms a choice between a one-tier and a two-tier board model (and sometimes a third hybrid model). However, how companies actually use these rules is largely underexplored. Based on data from 14 European countries that permit a choice between two models, this paper examines the use …

Extra-Legal Uses Of Tm, Clark Asay, Lareina Hingson, Stephanie Plamondon

Faculty Scholarship

Theoretical accounts of trademark law suggest that trademarks serve multiple marketplace functions, including protecting consumers and producers from unfair dealing, reducing consumer search costs, and incentivizing higher quality goods and services. Producers of goods and services often use the ‘TM’ symbol to signal their assertion of legal rights in a mark, arguably helping advance these goals. But recently, an interesting phenomenon has arisen in which individuals not engaged in typical commercial activities have been using the TM signifier in ways that don’t necessarily correspond to the symbol’s legal function. These so-called “extra-legal” uses of the TM symbol can offer insights …