Digital Commons Network^™

If Only I Had Known: The Challenges Of Representation, Jenny E. Carroll

Faculty Scholarship

This Essay explores the challenges of that representation and the false dichotomies it creates—dichotomies that carry tremendous burdens for stakeholders—from my perspective as a public defender. It is the only perspective I know, and so it is an incomplete story. I cannot tell the whole story of representation no matter how generous the word count or deadline. I do not know it. Nor can I tell my complete story of what it was to be a representative. But this is a start. My story is written in the first person and tries at once both to be personal and to …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Scholarship

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Health Equity, Federalism, And Cannabis Policy, Nicole Huberfeld

Faculty Scholarship

Cannabis policy is a story of complexity and dynamism laced with tension and inequity. Policy makers’ views are rapidly changing, reflected by many bills sitting before Congress. This Essay considers three of the major bills that have a more comprehensive approach to cannabis. These bills also take different approaches to the flipped federalism that could occur if the federal government were to suddenly decriminalize cannabis. The Essay next considers the state law landscape and compares it to Medicaid expansion under the Affordable Care Act, drawing a comparison to learn health equity lessons from recent health reform efforts. Federal legislation is …

Medical Cannabis And The Age Of Majority, Katharine B. Silbaugh

Faculty Scholarship

This Essay considers whether commercial cannabis retailers are adequately constrained in the sale of cannabis to 18- to 21-year-olds. It examines the intersection of the medical cannabis market, recreational cannabis market, and underlying status law regulating late adolescents aged 18 to 21. Because the age of majority licenses full medical decision-making, an 18-year-old can access medical cannabis but not recreational cannabis or alcohol. This Essay proceeds on the assumption that medical cannabis is a construct that has eased the process of achieving a legalized commercial cannabis market. The ambiguity around medical claims is comfortable in the libertarian soil of cannabis …

Marijuana Legalization And The Role Of The Massachusetts Legislature, Sean J. Kealy

Faculty Scholarship

The public is often frustrated when Congress or their state legislature is not responsive to their policy priorities. This was especially true during the effort to legalize marijuana in Massachusetts. The legislature consistently refused to take up the issue despite public support. Legalization advocates ultimately bypassed the legislature by turning to the ballot-initiative process on three occasions: first to decriminalize possession of small amounts of marijuana, then to legalize medical marijuana, and most recently to legalize recreational marijuana. After the electorate legalized recreational marijuana, the legislature further frustrated advocates, first by delaying implementation of key parts of the law and …

Fire Otherwise: Lifeways Enhancing Fire Management In A Changing World, Cynthia Twyford Fowler, Cynthia Fowler

Faculty Scholarship

Fire is a daunting human ecological challenge and a major subject in science and policy debates about global trends in land conversion, climate change, and human health. Persistent environmental orthodoxies reduce complex burning traditions to overly simplistic representations of environmental destruction, degradation, and loss while reinforcing existing social inequities involving smallholders. What would a more inclusive and pluralistic fire ecology look like? How and why might we embrace diverse anthropogenic fire regimes and broader understandings of the ways humans interact with fire? Fire otherwise is the support of proactive local and regional efforts to adapt amidst continually changing social and …

Identifying Patient Strengths Instruments And Examining Their Relevance For Chronic Disease Management: A Systematic Review, Kurt C. Stange

Faculty Scholarship

What is already known on this topic? Chronic disease management often focuses on what is wrong with patients rather than recognizing their strengths and resources. However, studies show the value of emphasizing personal strengths to improve outcomes. What is added by this report? How instruments evaluate personal strengths varies, making it especially difficult when determining the use of instruments in clinical populations. This systematic review defines the heterogeneity of constructs that research has used to examine personal strengths as well as the reliability and validity of strengths-related scales. What are the implications for public health practice? Understanding the value of …

Brownfields Cleanup: A Look Back And Ahead Toward Superfund Authority, Clifford Villa

Faculty Scholarship

Did you know that the U.S. Environmental Protection Agency, through the Superfund program within each of the ten regional offices across the United States, has millions of dollars to spend each year for cleaning up contaminated sites that are not designated “Superfund” sites? Not many people seem to know that, even lawyers who practice in environmental law, or even law professors who teach it. If these elite folks do not know that, then how would ordinary community members know that, people with busy lives who don’t do Superfund for a living? The short answer is, they probably don’t know either.

Transmission Of Severe Acute Respiratory Syndrome Coronavirus 2 (Sars-Cov-2) In A Patient Transport Van, Lucas D. Jones, Ernest R. Chan, Sarah N. Redmond, Jeffrey D. Kovach, Marlin Linger, Peter A. Zimmerman, Curtis J. Donskey

Faculty Scholarship

We report 2 episodes of potential SARS-CoV-2 transmission from infected van drivers to passengers despite masking and physical distancing. Whole-genome sequencing confirmed relatedness of driver and passenger SARS-CoV-2. With the heater operating, fluorescent microspheres were transported by airflow >3 meters from the front to the back of the van.

Civil Procedure Update 2021 (Handout And Slide Deck), Verónica C. Gonzales, Julio C. Romero

Faculty Scholarship

This presentation aims to 1) review recent amendments to the state and federal rules of civil procedure; 2) help you understand the impact of recent federal and state published opinions interpreting and applying the rules of civil procedure; and 3) assess your understanding of the updates.

Metabolic Basis Of Creatine In Health And Disease: A Bioinformatics-Assisted Review, Diego A. Bonilla, Richard B. Kreider, Jeffrey R. Stout, Diego A. Foreno, Chad M. Kerksick, Michael D. Roberts, Eric S. Rawson

Faculty Scholarship

Creatine (Cr) is a ubiquitous molecule that is synthesized mainly in the liver, kidneys, and pancreas. Most of the Cr pool is found in tissues with high-energy demands. Cr enters target cells through a specific symporter called Na+/Cl--dependent Cr transporter (CRT). Once within cells, creatine kinase (CK) catalyzes the reversible transphosphorylation reaction between [Mg2+:ATP4-]2- and Cr to produce phosphocreatine (PCr) and [Mg2+:ADP3-]-. We aimed to perform a comprehensive and bioinformatics-assisted review of the most recent research findings regarding Cr metabolism. Specifically, several public databases, repositories, and bioinformatics tools were utilized for this endeavor. Topics of biological complexity ranging from structural …

Settling Data Protection Law: Multistate Actions And National Policymaking, Elysa M. Dishman

Faculty Scholarship

Data privacy and cybersecurity law in the United States is as unsettled as it is unsettling. By failing to pass comprehensive data protection legislation, Congress has settled for uncertainty. And the authority of the Federal Trade Commission (FTC) to enforce and seek remedies in this area has been challenged by litigants, including a case currently pending in the U.S. Supreme Court. Nevertheless, FTC enforcement settlements play a vital role in data regulation. These settlements include corporate structural reforms that become de facto regulations by shaping corporate practices nationwide.

State attorneys general (AGs) have become increasingly prominent data policymakers through enforcement …

Understanding How Relational Health Effects Intimate Partner Violence Perpetration Among Low-Income, Black, Indigenous, Men Of Color Exposed To Adverse Childhood Experiences: An Exploratory Study, Laura A. Voith, Hyunjune Lee, Katie N. Russell, Amy E. Korsch-Williams

Faculty Scholarship

Relational health has emerged as a consistent factor that can mitigate the effects of trauma among children; however, less is known about relational health with adults, particularly related to intimate partner violence (IPV) perpetration among racially and socioeconomically marginalized men. The Exploratory Sequential Design, Taxonomy Development Model was used. Semi-structured interviews (N = 11) and narrative analysis were conducted in Phase I. In Phase II, variables approximating the key themes that emerged in Phase I were selected from an existing dataset (N = 67), and relationships were examined using bivariate associations. The sample consisted of low-income Black, Indigenous, men of …

The Covid Ceiling: Super-Moms Are Struggling, Verónica C. Gonzales

Faculty Scholarship

COVID Ceiling is the unique combination of identity, discipline, and academic work requirements with care crisis and public health crisis that is contributing to the current and soon larger wave of mental health crises.

Bits And Bonds: The International Law And Economics Of Sovereign Debt, Stratos Pahis

Faculty Scholarship

No abstract provided.

Law Enforcement's Lochner, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Technological Tethereds: Potential Impact Of Untrustworthy Artificial Intelligence In Criminal Justice Risk Assessment Instruments, Sonia M. Gipson Rankin

Faculty Scholarship

Issues of racial inequality and violence are front and center in today’s society, as are issues surrounding artificial intelligence (AI). This Article, written by a law professor who is also a computer scientist, takes a deep dive into understanding how and why hacked and rogue AI creates unlawful and unfair outcomes, particularly for persons of color.

Black Americans are disproportionally featured in criminal justice, and their stories are obfuscated. The seemingly endless back-to-back murders of George Floyd, Breonna Taylor, and Ahmaud Arbery, and heartbreakingly countless others have finally shaken the United States from its slumbering journey towards intentional criminal justice …

When Imitation Is Not Flattery: Addressing Cultural Exploitation In Guatemala Through A Sui Generis Model, Paul Figueroa

Faculty Scholarship

Indigenous Guatemalan weavers are fighting for intellectual property laws that better protect their designs and other cultural expressions. The exploitation and appropriation by local and international companies has negatively affected the weavers’ livelihoods and resulted in culturally inappropriate uses of spiritual and traditional symbols. Adhering to Western ideals of individual creativity and utility, intellectual property laws in most of the world (including Guatemala) are not suited to protect indigenous creations. To address this legal gap, some countries have adopted sui generis legal regimes that align with communal notions of creation, ownership and stewardship found in indigenous knowledge systems. Based on …

Can “Asians” Truly Be Americans?, Vinay Harpalani

Faculty Scholarship

Recent, tragic events have brought more attention to hate and bias crimes against Asian Americans. It is important to address these crimes and prevent them in the future, but the discourse on Asian Americans should not end there. Many non-Asian Americans are unaware or only superficially aware of the vast diversity that exists among us, along with the challenges posed by that diversity. Some have basic knowledge of the immigration and exclusion of Asian Americans, the internment of Japanese Americans which was upheld in Korematsu v. United States, and the “model minority stereotype”, but these are Asian Americans 101. This …

Environmental Law As Segregation, Nadia B. Ahmad, Melissa Bryan

Faculty Scholarship

No abstract provided.

Comparison Of Energy Expenditure Observed Between Scheduled Activities In Collegiate Team-Sport Female Athletes, Jessica M. Moon, Hannah A. Zabriskie, Patrick S. Harty, Bradley S. Currier, Julia C. Blumkaitis, Richard A. Stecker, Andrew Jagim, Chad M. Kerksick

Faculty Scholarship

Energy needs of female team-sport athletes are poorly understood with no evidence highlighting differences present between scheduled activities. The purpose of this study was to examine the difference in energy expenditure between NCAA Division II female basketball (BBALL) and lacrosse (LAX) athletes during different scheduled team activities. Female BBALL (n = 13; 19.8 ± 1.3 yrs; 173.9 ± 13.6 cm; 74.6 ± 9.1kg; 27.1 ± 3.2%fat) and LAX (n = 20; 20.4 ± 1.8yrs; 168.4 ± 6.6cm; 68.8 ± 8.9kg; 27.9 ± 3.1%fat) athletes were outfitted with heart rate and activity monitors during four consecutive days on five different occasions …

School Finance Reform And Professor Stephen D. Sugarman’S Lasting Legacy, Rachel F. Moran

Faculty Scholarship

Once, over lunch, I recall a law professor reflecting on scholarly work’s ephemeral nature. Legal academics, he thought, should consider themselves lucky if their articles sparked a discussion that lasted for even a few years. By that standard, Professor Stephen Sugarman’s seminal work on school finance reform, done in collaboration with John Coons and William Clune, must count as a Methuselah of academic concepts. Decades later, this research continues to prompt scholarly debate, legal advocacy, and legislative reform. In this essay, I first describe the origins of the theory of school finance reform. I then turn to the ongoing influence …

Legal Services Needs Assessment For Rio Grande Valley Residents In Texas: A Comprehensive T3 Report, Amber Baylor, Nandita Chaudhuri, Luz E. Herrera, Felipe Hinojosa

Faculty Scholarship

This report presents the findings of a legal needs assessment and oral history project that was simultaneously undertaken from August 2019 to September 2020 in the Rio Grande Valley region of Texas. The purpose of the research is to provide a detailed discussion about access to legal information and to document the pertinent legal needs in the Rio Grande Valley. The project documented respondents’ perceptions of the area’s legal assets and needs.

The report captured information from more than 600 individuals who participated in surveys, focus groups, and interviews to create an overview of the historic legal-resource environment that exists …

Results Of The Legal Incubator Lawyers' Survey, Aba Standing Committee On The Delivery Of Legal Services, Center For Computer-Assisted Legal Instruction, Luz E. Herrera, Rebecca Sandefur, Briana Morris

Faculty Scholarship

Legal incubators, also known as law firm incubators, in the United States are designed to help lawyers develop and launch law practices while expanding access to underserved populations. Based on business incubator models, legal incubator programs support the creation of new law firms by providing space, mentoring, and training to licensed lawyers. Most of the law firms produced by these legal incubators are solo or small firms that exist as both for profit businesses and nonprofit entities. Since the first legal incubator appeared in 2007, over 70 self-identified legal incubator programs have emerged around the globe.

In 2016, the ABA …

The Private Option, Brendan S. Maher

Faculty Scholarship

Health care reform is once again in the air. Virtually all Democrats favor some meaningful expansion of public insurance, whether through single payer or the creation of a “public option” that would allow consumers dissatisfied with the private market to buy into a public program. Republicans, not surprisingly, have pushed back, not only against single payer, but also against the public option, saying it will drive private payors to extinction. All the political jousting implicates a larger and serious policy question; namely, what should be the role of private payors in the nation’s health care system?

Arguments to date on …

Unrules, Cary Coglianese, Gabriel Scheffler, Daniel E. Walters

Faculty Scholarship

At the center of contemporary debates over public law lies administrative agencies’ discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Digital Humanities And Virtual Reality: A Review Of Theories And Best Practices For Art History, James Hutson, Trent Olsen

Faculty Scholarship

The technology of virtual reality (VR) has had proven educational benefits over the last three decades. And yet, most research conducted on these benefits has been confined to science programs, especially in Computer Science. The application of VR technology for the Digital Humanities is only now beginning to receive attention, but more study needs to be conducted on its uses within various humanistic disciplines. In order to expand on the research at a pivotal time in education when modalities expand beyond the dominant face-to-face model to incorporate more hybrid, distance education, and online learning, this study reviews the literature and …

Healthy Hives: Can Replacing Hierarchies With Intergroup Teams Transform Our Profession?, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Follow-Up Enforcement, Andrew K. Jennings

Faculty Scholarship

No abstract provided.

Beyond The "Made In America Tax Plan": Gilti And International Tax Cooperation's Next Golden Age, Steven A. Dean

Faculty Scholarship

No abstract provided.