Digital Commons Network^™

Against Engagement, Neil Richards, Woodrow Hartzog

Faculty Scholarship

In this Article, we focus on a key dimension of commercial surveillance by data-intensive digital platforms that is too often treated as a supporting cast member instead of a star of the show: the concept of engagement. Engagement is, simply put, a measure of time, attention, and other interactions with a service. The economic logic of engagement is simple: more engagement equals more ads watched equals more revenue. Engagement is a lucrative digital business model, but it is problematic in several ways that lurk beneath the happy sloganeering of a “free” internet

Our goal in this Article is to isolate …

Hidden In Plain Sight: Redefining The Field Of National Security, Aziza Ahmed

Faculty Scholarship

Throughout his campaign for presidency, Trump called for a ban on Muslims entering the United States. As President, he kept his word. Only days after he took office, the new administration released the first version of the Executive Order: Protecting the Nation From Foreign Terrorist Entry Into the United States. The first Executive Order, however, did not say the word Muslim. Instead, it listed only Muslim-majority countries as necessary for restrictions on entry. The Executive Order also trafficked in stereotypes about Muslims, such as the need to ban people who engage in acts of "bigotry or hatred," including honor killings. …

The Thrusts And Parries Of Policy Arguments, Scott Hirst

Faculty Scholarship

Anyone who has ever put forward a policy proposal has heard the response, “if it ain’t broke, don’t fix it.” But despite the ubiquity of this attack on policy proposals, there has been little sustained inquiry into how the attack works and how it can be defended. The goal of this Article is to identify policy attacks like this, and to show their underlying logical structure, and how they function to attack policy proposals. The Article demonstrates this approach by considering three generic attacks on policy proposals, which I refer to as ain’t broke attacks, partial framing attacks, and dollar …

Afreeist Legal Theory And The Problem Of Innocence, Stephen G. Marks

Faculty Scholarship

Afreeism refers to the lack of the assumption that human beings have free will. Rather, it assumes that humans are subject to the same laws of physics, chemistry, biology, etc., that govern all other phenomena. Afreeist Legal Theory in turn is a legal theory that forgoes the assumption of free will. By foregoing the notion of free will, we also forgo notions of desert, blame, and moral responsibility. Human beings are causally or stochastically deterministic beings. As such, they can never do other than what they do. And because they never possess the ability to do otherwise, they are at …

“Legally Magic” Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Kate Weisburd, Roseanna Sommers

Faculty Scholarship

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do courts. …

The Holistic Archival Personality Profiling Model (Happm): Comprehensive Data Integration For Personality Analysis, James Hutson, Pace Ellsworth

Faculty Scholarship

The traditional approach to biographical profiling, predominantly reliant on limited and fragmented datasets, has frequently resulted in superficial personality understandings. This is largely due to an overemphasis on official records and notable events, neglecting the rich tapestry of everyday experiences and personal interactions that significantly shape personalities. To address this shortcoming, this article introduces a multi-disciplinary methodology, The Holistic Archival Personality Profiling Model (HAPPM), which integrates a diverse array of archival materials, including personal correspondences, social media footprints, and family memorabilia. This approach involves digitizing various data forms, including handwritten documents, into machine-readable text, and then semantically classifying this data …

Digitizing The Cultural Capital: Harnessing Digital Humanities For Heritage Preservation In Bujumbura, Burundi, James Hutson, Pace Ellsworth, Matt Ellsworth, Jean Bosco Ntungirimana

Faculty Scholarship

In an era where the erosion of cultural heritage is increasingly prevalent, there exists a critical imperative to explore and implement innovative methods for the preservation and revitalization of cultural identities, as exemplified by the urgent situation in Bujumbura, Burundi. Central to this study is the exploration of innovative digital methodologies for archiving a wide spectrum of cultural artifacts, including both notable and everyday heritage elements, in Bujumbura. Traditional approaches to biographical and historical profiling have predominantly focused on official records and significant events, often neglecting the richness of personal experiences and everyday interactions that substantially shape cultural identities. To …

Individuality And The Collective In Ai Agents: Explorations Of Shared Consciousness And Digital Homunculi In The Metaverse For Cultural Heritage, James Hutson, Jay Ratican

Faculty Scholarship

The confluence of extended reality (XR) technologies, including augmented and virtual reality, with large language models (LLM) marks a significant advancement in the field of digital humanities, opening uncharted avenues for the representation of cultural heritage within the burgeoning metaverse. This paper undertakes an examination of the potentialities and intricacies of such a convergence, focusing particularly on the creation of digital homunculi or changelings. These virtual beings, remarkable for their sentience and individuality, are also part of a collective consciousness, a notion explored through a thematic comparison in science fiction with the Borg and the Changelings in the Star Trek …

Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson

Faculty Scholarship

The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …

Synthesizing Sentience: Integrating Large Language Models And Autonomous Agents For Emulating Human Cognitive Complexity, Jay Ratican, James Hutson, Daniel Plate

Faculty Scholarship

The paper aims to present a novel methodology for emulating the intricacies of human cognitive complexity by ingeniously integrating large language models with autonomous agents. Grounded in the theoretical framework of the modular mind theory-originally espoused by Fodor and later refined by scholars such as Joanna Bryson—the study seeks to venture into the untapped potential of large language models and autonomous agents in mirroring human cognition. Recent advancements in artificial intelligence, exemplified by the inception of autonomous agents like Age in GPT, auto GPT, and baby AGI, underscore the transformative capacities of these technologies in diverse applications. Moreover, empirical studies …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …

The Role Of Faculty In Durable Skills Development In Higher Education, James Hutson, Mark Valenzuela, Shannon Wright, Elizabeth Melick

Faculty Scholarship

Although Emsi and other market researchers have found that employers desire durable skills (formerly known as “soft skills”) in new hires, there have been few studies dedicated to identifying how faculty perceptions of skill development differ in degree and by area, and how that might impact how such skills are embedded in classroom instruction. This study proposes to investigate the perceptions of faculty from different academic backgrounds and how their disciplines and experiences may contribute to their perceived role in curricular, cocurricular or extracurricular offerings that support durable skill development. Results from the study demonstrate the differing perspectives and expectations …

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …

Bura Ura, Kendu Waiyo (Rain Falls, Water Rises): The Tyranny Of Water Insecurity And An Agenda For Abolition In Kodi (Sumba Island, Indonesia), Cynthia Twyford Fowler

Faculty Scholarship

This article explores the dynamic links between transformations in freshwater ecosystems and social changes in the Kodi region of Sumba (Indonesia). Insights into the politics surrounding changing hydrosocial systems are generated by using a feminist anthropology approach together with critical development studies and intersectionality theory. In aligning with fellow feminists whose advocacy sometimes takes the form of scholarship, I lay out a five-prong strategy for collecting empirical evidence from persons who are vulnerable when hydrological systems change and offer eight principles for future development interventions. The argument related to the five-prong toolkit is that by conducting intensive, extensive, opportunistic, and …

Even Lawyers Do Not Like Legalese, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Significance

Real-Time Mapping With Global Positioning Systems Devices In A Mixed Methods Toolkit For Studying Social And Environmental Change, Cynthia Twyford Fowler

Faculty Scholarship

To explore the process through which people develop knowledge about socioecological change, this article describes a mixed-methods toolkit containing a technique for making maps in real time while moving through landscapes. The quantitative component of the toolkit is grounded in ethnobiologists’ embeddedness in place-based communities and harnesses the power of global positioning systems (GPS). As GPS-wielding ethnobiologists engage in participatory mapping by moving through landscapes with their research collaborators, we can use handheld devices and simultaneously communicate with satellites in outer space to produce maps in real time. Within the existing, large inventory of ethnobiological methods, using handheld GPS devices …

The Poetry Of Prompts: The Collaborative Role Of Generative Artificial Intelligence In The Creation Of Poetry And The Anxiety Of Machine Influence, James Hutson, Ana Schnellmann

Faculty Scholarship

2022 has been heralded as the year of generative artificial intelligence (AI). Generative AI like ChatGPT and Stable Diffusion, along with a host of others, launched late in the year and immediately disrupted the status quo of the literary and art worlds, leading to outcries to ban “AI Art” and spawning an entirely new market of NFTs. Fears over the “death of the artist” and the “death of college composition,” however, are unfounded when considering the historical adoption of emerging technologies by creatives and the reconsideration of authorship that began with post structuralism and the Foucauldian Death of the Author …

The Case Against The Debt Tax, Vijay Raghavan

Faculty Scholarship

No abstract provided.

If We Build It, Will They Legislate? Empirically Testing The Potential Of The Nondelegation Doctrine To Curb Congressional "Abdication", Daniel E. Walters, Elliott Ash

Faculty Scholarship

A widely held view for why the Supreme Court would be right to revive the nondelegation doctrine is that Congress has perverse incentives to abdicate its legislative role and evade accountability through the use of delegations, either expressly delineated or implied through statutory imprecision, and that enforcement of the nondelegation doctrine would correct for those incentives. We call this the Field of Dreams Theory—if we build the nondelegation doctrine, Congress will legislate. Unlike originalist arguments for the revival of the nondelegation doctrine, this theory has widespread appeal and is instrumental to the Court’s project of gaining popular acceptance of a …

The Article Iii "Party" And The Originalist Case Against Corporate Diversity Jurisdiction, Mark Moller, Lawrence B. Solum

Faculty Scholarship

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this Article and a previous one, we develop the first sustained critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And …

Stories From The Negative Spaces: United States V. Thind And The Narrative Of (Non)Whiteness, Joy Kanwar

Faculty Scholarship

No abstract provided.

Disruptive Homiletics: Liberationist Hermeneutics And The Preconditions Of Critical Consciousness, Joel (J.T.) Young

Faculty Scholarship

No abstract provided.

Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans

Faculty Scholarship

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …

Centering Students’ Rhetorical Knowledge: The Community Of Inquiry As Formative Assessment, Brian N. Larson

Faculty Scholarship

This essay describes an approach to peer review and classroom workshopping intended to develop a community of inquiry in the first-year law school classroom, center students’ own rhetorical knowledge, and establish the authority of students—especially minoritized students—as rhetorical agents. The technique described in this essay works from the presumption that each student who comes to law school comes with rich rhetorical experience. In other words, they have extensive experience constructing discourse suited to certain audiences and certain contexts. They use a variety of tools to construct such discourse, including linguistic registers (or styles) and rhetorical genres (such as the academic …

Architecting The Metaverse: Blockchain And The Financial And Legal Regulatory Challenges Of Virtual Real Estate, James Hutson, Guarango Banerjee, Naresh Kshetri, Kurt Odenwald, Jeremiah Ratican

Faculty Scholarship

There has been disagreement over the value of purchasing space in the metaverse, but many businesses including Nike, The Wendy’s Company, and McDonald’s have jumped in headfirst. While the metaverse land rush has been called an “illusion” given underdeveloped infrastructure, including inadequate software and servers, and the potential opportunities for economic and legal abuse, the “real estate of the future” shows no signs of slowing. While the current virtual space of the metaverse is worth $6.30 billion, that is expected to grow to $84.09 billion by the end of 2028. But the long-term legal and regulatory considerations of capitalizing on …

Gamesmanship In Modern Discovery Tech, Neel Guha, Peter Henderson, Diego A. Zambrano

Faculty Scholarship

This chapter explores the potential for gamesmanship in technology-assisted discovery. Attorneys have long embraced gamesmanship strategies in analog discovery, producing reams of irrelevant documents, delaying depositions, or interpreting requests in a hyper-technical manner. The new question, however, is whether machine learning technologies can transform gaming strategies. By now it is well known that technologies have reinvented the practice of civil litigation and, specifically, the extensive search for relevant documents in complex cases. Many sophisticated litigants use machine learning algorithms – under the umbrella of “Technology Assisted Review” (TAR) – to simplify the identification and production of relevant documents in discovery. …

Major Questions And An Emergency Question Doctrine: The Biden Student Debt Case Study Of Pretextual Abuse Of Emergency Powers, Jed Handelsman Shugerman

Faculty Scholarship

The major question doctrine tries to address one problem, the Imperial Executive, by escalating another, the Imperial Judiciary. This article proposes a solution, with the Biden Student Debt Waiver as a case study: An “emergency question” doctrine.

This emergency questions doctrine would apply when the executive relies on a statutory emergency clause or invokes an emergency in its application of a statutory provision. As a matter of statutory interpretation, the emergency question doctrine would follow the two most important steps of the major question approach: 1) relying on purpose and context to clarify and limit the scope of open-ended emergency …

Black Lives Monitored, Chaz Arnett

Faculty Scholarship

The police killing of George Floyd added fuel to the simmering flames of racial injustice in America following a string of similarly violent executions during a global pandemic that disproportionately ravaged the health and economic security of Black families and communities. The confluence of these painful realities exposed deep vulnerabilities and renewed a reckoning with the long unfulfilled promise of racial equality, inspiring large-scale protests around the country and across the globe. As with prior movements for racial justice, from slavery abolition to the civil rights movement’s demand to end Jim Crow, protests have been met with extreme force, either …

Square-Peg Frauds, Miriam Baer

Faculty Scholarship

No abstract provided.