Digital Commons Network^™

Evidence-Based Transitional Justice: Incorporating Public Opinion Into The Field, With New Data From Iraq And Ukraine, Mara Revkin, Ala Alrababah, Rachel Myrick

Faculty Scholarship

The field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Too Young To Suspend: Ending Early Grade School Exclusion By Applying Lessons From The Fight To Increase The Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

In many respects, the evolution of juvenile court reform and school discipline reform follow similar trajectories. This Article begins by tracking those respective evolutions. Part I outlines the evolution of the juvenile court system in the United States and focuses on the fledgling system’s distinction of children from adults and its “rehabilitative ideal” that children could outgrow challenging behavior if given the right treatment and services. After a long period of “adultification” of the juvenile court in response to rising crime rates, more recent reform efforts have focused on returning to the early court’s rehabilitative model, including policies that would …

From Pollution To Resource: Advancing Swine Waste Treatment In The Usa, Viney P. Aneja, Ryke Longest, Matias B. Vanotti, Ariel A. Szogi, Gudigopuram B. Reddy

Faculty Scholarship

Concentrated animal feeding operations (CAFOs) have led to environmental challenges, specifically waste management. Swine CAFOs generate large amounts of waste, requiring proper treatment to avoid air and water pollution. Conventional waste management technologies, such as lagoon and spray field systems, do not prevent air and water pollution impacts. Research for the past few decades led to recommendations for waste treatment technologies superior to lagoons and spray fields. Private environmental sustainability initiatives focused on reducing greenhouse gas emissions in the food supply chain have implemented biogas digester projects for capturing methane in covered swine lagoons to reduce greenhouse gas emissions. However, …

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 …

Budgets And The Timing, Intensity, And Composition Of Interest Group Lobbying In The U.S. States, John M. De Figueiredo

Faculty Scholarship

This paper examines state level lobbying data to determine how budgeting affects the timing, intensity and composition of lobbying expenditures. Using a database of all available lobbying expenditures in the U.S. states ranging up to 25  years, the paper shows interest group lobbying increases substantially during the budgeting process, and the budgeting process is unlike other issues lobbyists face. Spikes in lobbying during budgeting are driven primarily by business groups, and these business groups account for most of the changes on the margin in lobbying activity. Moreover, even groups relatively unaffected by budgets lobby more intensely during legislative budgeting, consistent …

Beyond Neural Data: Cognitive Biometrics And Mental Privacy, Patrick Magee, Marcello Ienca, Nita Farahany

Faculty Scholarship

Innovations in wearable technology and artificial intelligence have enabled consumer devices to process and transmit data about human mental states (cognitive, affective, and conative) through what this paper refers to as ‘‘cognitive biometrics.’’ Devices such as brain-computer interfaces, extended reality headsets, and fitness wearables offer significant benefits in health, wellness, and entertainment through the collection and processing and cognitive biometric data. However, they also pose unique risks to mental privacy due to their ability to infer sensitive information about individuals. This paper challenges the current approach to protecting individuals through legal protections for ‘‘neural data’’ and advocates for a more …

U.S. Public Perceptions Of The Sensitivity Of Brain Data, Shenyang Huang, Umika Paul, Shikhar Gupta, Karan Desai, Melinda Guo, Jennifer Jung, Beatrice Capestany, William D. Krenzer, Dylan Stonecipher, Nita A. Farahany

Faculty Scholarship

As we approach an era of potentially widespread consumer neurotechnology, scholars and organizations worldwide have started to raise concerns about the data privacy issues these devices will present. Notably absent in these discussions is empirical evidence about how the public perceives that same information. This article presents the results of a nationwide survey on public perceptions of brain data, to inform discussions of law and policy regarding brain data governance. The survey reveals that the public may perceive certain brain data as less sensitive than other ‘private’ information, like social security numbers, but more sensitive than some ‘public’ information, like …

Compensating Exonerees In The United States, Brandon L. Garrett, Luke Mears

Faculty Scholarship

No abstract provided.

Liberty, Safety, And Misdemeanor Bail, Brandon L. Garrett, Sandra Guerra Thompson, Dottie Carmichael, David Shi, Songman Kang

Faculty Scholarship

The highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question …

Evaluating Pre-Trial Programs Using Interpretable Machine Learning Matching Algorithms For Causal Inference, Travis Seale-Carlisle, Saksham Jain, Courtney Lee, Caroline Levenson, Swathi Ramprasad, Brandon Garrett, Sudeepa Roy, Cynthia Rudin, Alexander Volfovsky

Faculty Scholarship

After a person is arrested and charged with a crime, they may be released on bail and required to participate in a community supervision program while awaiting trial. These ‘pretrial programs’ are common throughout the United States, but very little research has demonstrated their effectiveness. Researchers have emphasized the need for more rigorous program evaluation methods, which we introduce in this article. We describe a program evaluation pipeline that uses recent interpretable machine learning techniques for observational causal inference, and demonstrate these techniques in a study of a pre-trial program in Durham, North Carolina. Our findings show no evidence that …

Transdisciplinary Doctoral Training To Address Global Sustainability Challenges, Zoie Taylor Diana, John Virdin, Michelle B. Nowlin, Nishad Jayasundara, Daniel Rittschof

Faculty Scholarship

No abstract provided.

King, Christian Ethics, And The Promise Of Positive Fundamental Rights, H. Timothy Lovelace Jr., Patrick T. Smith

Faculty Scholarship

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

Sharing Pathogen Sequence Data For Global Scientific Research Under The Nagoya Protocol To The Convention On Biological Diversity, Jerome H. Reichman, Carolina Dos S. Ribeiro, George B. Haringhuizen, Paul F. Uhlir

Faculty Scholarship

The Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial …

Fractionalizing Investment Securities: Using Fintech To Expand Financial Inclusion, Steven L. Schwarcz, Robert Bourret

Faculty Scholarship

Recent innovations in financial technology, or “FinTech,” are enabling the fractionalization of investment securities, such as shares of stock and bonds. We explain how this fractionalization can fundamentally expand financial inclusion both for investors and for businesses, including small and medium-sized enterprises (SMEs). Using the fractionalization of investment securities as a model, we also counter the argument that FinTech-enabled transactions should not need regulation because they are governed by mathematical algorithms under so-called smart contracts. Additionally, we derive and test a regulatory framework to identify and help to mitigate the risks caused by fractionalization. In the process, we also explain …

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 …

No Strings Attached: How Catholic Institutions Prospered At The Expense Of The Administrative State And Patient Autonomy, Lori Freedman, Kimani Paul-Emile

Faculty Scholarship

Catholic hospitals and health systems have proliferated and succeeded in American healthcare; they now operate four of the largest health systems and serve nearly one in six hospital patients. Like other religious entities that Wuest and Last write about in this issue, in their article Church Against State, they have benefited by and supported the long reach of conservative efforts to undermine the administrative state.

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

Older Women Workers, The Pandemic, Employment Discrimination And Lifetime Disadvantage, Susan Bisom-Rapp

Faculty Scholarship

As a group, older women workers were among those most severely impacted by the COVID-19 crisis. Drawing from both intersectionality and cumulative disadvantage theory, the Model of Lifetime Disadvantage created by Bisom-Rapp and Sargeant helps frame the position of these workers in the labor market prior to and during the pandemic. The model also explains why and how disjointed, incremental legal interventions are unable to meet the challenge of gendered ageism, which surged during the crisis. Disasters produce impacts unevenly on individuals and communities. Older women are a diverse group, whose social position is mediated by race, ethnicity, sexual orientation …

Municipal Abortion Bans: When Local Control Clashes With State Power, Laura D. Hermer

Faculty Scholarship

Anti-abortion activists are using different strategies in different states. Some focus on restricting zoning for abortion clinics. Others address the licensure of abortion providers. Some purport to create a cause of action for private individuals to sue neighbors and others in their municipality who get an abortion. Still, others seek to enforce the federal Comstock Act, alleging that it prohibits the mailing of abortifacients and preempts state abortion law to the contrary.

This Article evaluates the likely success of each of these strategies in two states in which they are currently being tried: Nebraska and New Mexico. Part I will …

Accommodating Trans Rights, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Carbon Emissions And Energy Benchmarking, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Illegitimate Families, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Surviving The Megadrought, Warigia Bowman

Faculty Scholarship

According to NASA, the Earth experienced its hottest day in recorded history on July 22, 2024, surpassing the previous hottest day, which was set in 2023. The year 2024 will enter the record books as the hottest year since pre-industrial times. The temperatures in 2024 exceeded the year 2023, during which the average global surface temperature was the warmest ever recorded in the past 174 years. These meteorological facts—although alarming on their own—are the backdrop for the legal analysis contained in this Article. The driest states in the Southwest, including Arizona, Colorado, Nevada, New Mexico, and Utah, have long relied …

Mass Accommodations: Signposts To A Hidden Jurisprudence, Shirley Lin

Faculty Scholarship

No abstract provided.

Are Voters Allowed To Protect Abortion?, Laura Portuondo

Faculty Scholarship

No abstract provided.

Consent And Disagreement, Aditi Bagchi

Faculty Scholarship

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version …

Proxy Taxes: Taxing The Wrong Person Can Be The Right Policy, Linda Sugin

Faculty Scholarship

Congress seems unable to fix the inequities and inefficiencies that riddle the tax law. This article suggests such a new strategy for building a better tax system that Congress should find politically possible. It proposes taxing the wrong taxpayer for the right reasons-to raise revenue and improve fairness. It introduces a conceptual and theoretical framework for provisions that are already in the Internal Revenue Code, explaining why they should be understood as examples of "proxy taxes," and proposes that proxy taxes can solve many intractable problems in the law.

“Proxy taxes,” as defined in this article, impose liability on taxpayers …

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 …