Digital Commons Network^™

The Dog That Didn’T Bark: Looking For Techno-Libertarian Ideology In A Decade Of Public Discourse About Big Tech Regulation, Jodi L. Short, Reuel E, Schiller, Susan Sibley, Noah Jones, Babak Hammatian, Lee Anna Bowman-Carpio

Faculty Scholarship

The internet was built on the techno-libertarian ideology that “information wants to be free,” and that ideology has played a prominent role in academic and policy debates about regulating the internet and the big technology companies that dominate it.2 Techno-libertarian ideology has generated a constellation of claims about tech and regulation—from the suggestion that regulation will stifle innovation in the complex, dynamic tech sector, to the assertion that the large platform companies are literally not regulable. In this article, we explore how much traction such claims and ideologies have in the broader public discourse about big tech and regulation. We …

Open Educational Resources And Institutional Repositories: Roles, Challenges, And Opportunities For Libraries, James Hutson, Susan Edele, Elizabeth Macdonald, Paul Huffman, Nancy Messina, Maggie Pavone, Carla Mueller, Gabriela Romero

Faculty Scholarship

The adoption of digital-born, Open Educational Resources (OER) has been proven to improve student retention and learning outcomes, and OER has the flexibly to support multiple modalities of instruction. Institutional Repositories are uniquely situated to act as a platform to support and distribute content that can be created collaboratively between faculty researchers as well as students. However, faculty are still largely hesitant to adopt OER sources for a variety of reasons, not least among them being a lack of exposure and understanding of the potential benefits for both faculty and students in keeping curriculum affordable, up-to-date, and nimble through media-rich, …

Optimizing Disaster Preparedness Planning For Minority Older Adults: One Size Does Not Fit All, Omolola E. Adepoju, Luz E. Herrera, Minji Chae, Daikwon Han

Faculty Scholarship

By 2050, one in five Americans will be 65 years and older. The growing proportion of older adults in the U.S. population has implications for many aspects of health including disaster preparedness. This study assessed correlates of disaster preparedness among community-dwelling minority older adults and explored unique differences for African American and Hispanic older adults. An electronic survey was disseminated to older minority adults 55+, between November 2020 and January 2021 (n = 522). An empirical framework was used to contextualize 12 disaster-related activities into survival and planning actions. Multivariate logistic regression models were stratified by race/ethnicity to examine the …

Artificial Intelligence And The Disruption Of Higher Education: Strategies For Integrations Across Disciplines, James Hutson, Theresa Jeevanjee, Vanessa Vander Graaf, Jason Lively, Joe Weber, Graham Weir, Kathryn Arnone, Geremy Carnes, Kathi Vosevich, Daniel Plate, Michael Leary, Susan Edele

Faculty Scholarship

Artificial intelligence (AI) and its impact on society have received a great deal of attention in the past five years since the first Stanford AI100 report. AI already globally impacts individuals in critical and personal ways, and many industries will continue to experience disruptions as the full algorithmic effects are understood. Higher education is one of the industries that will be greatly impacted; consequently, many institutions have begun accelerating its adoption across disciplines to address the fast-approaching market shift. Recent advances with the technology are especially promising for its potential to create and scale personalized learning for students, to optimize …

Contractual Complexity, Spencer Williams

Faculty Scholarship

Lawyers, judges, scholars, and clients all agree on one thing about contracts: they are complex. But what does this actually mean? What is contractual complexity and where does it come from? Despite widespread agreement that contracts are complex, the literature on contracts has yet to effectively define contractual complexity. Furthermore, the literature lacks a general theory of complexity that connects it to the broader body of contracts scholarship. This Article aims to fill these gaps. Drawing on complexity theory, the Article argues that contractual complexity is the degree of interactivity between a contract’s terms. Building on this definition, the Article …

Using Artificial Intelligence In The Law Review Submissions Process, Brenda M. Simon

Faculty Scholarship

The use of artificial intelligence to help editors examine law review submissions may provide a way to improve an overburdened system. This Article is the first to explore the promise and pitfalls of using artificial intelligence in the law review submissions process. Technology-assisted review of submissions offers many possible benefits. It can simplify preemption checks, prevent plagiarism, detect failure to comply with formatting requirements, and identify missing citations. These efficiencies may allow editors to address serious flaws in the current selection process, including the use of heuristics that may result in discriminatory outcomes and dependence on lower-ranked journals to conduct …

Marshalling Copyright Knowledge To Understand Four Decades Of Berne, Peter K. Yu

Faculty Scholarship

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his …

Proportioning Collection Space And Learning In An Academic Library: Collection Performance Indicators, Christopher Stewart, Louise Lowe

Faculty Scholarship

Assessment on university campuses increasingly emphasizes learning outcomes and student success. Academic librarians need to identify relationships between their collection spaces and the learning activities of the university in order to play a role in the environment of assessment. Measuring the propor- tions of discipline-oriented content of library collections and comparing those proportions to discipline-oriented learning activities produces collection performance indicators. Academic libraries can use collection performance indicators to assess how well their collection spaces correspond to student demand and student success using readily available metrics. Collection performance indicators answers a gap in library literature per- taining to relationships between …

Equivocal Originalism, Gary S. Lawson

Faculty Scholarship

"Originalism" is a term shrouded in ambiguity and ripe for equivocation. A recent article by Stephen Sachs in the Harvard Law Review tries to clarify the discussion by distinguishing between originalism as a decision standard, or a set of criteria for ascertaining the truth conditions for propositions, and a decision procedure, or a mechanism for ascertaining whether those truth conditions are satisfied in any given context. That is a helpful distinction, but it still leaves much room for multiple and confusing uses of the term originalism. Jumping off from comments on Professor Sachs's article by Mitchell Berman and Judge Andrew …

Bridge Building In Higher Education: Multi-Modal Mentoring Programs To Support Retention & Career Preparedness, James Hutson, Roger Nasser, Michael Marzano, Ryan Curtis, Elizabeth Macdonald, Sue Edele, Barbara Hosti-Marti

Faculty Scholarship

Despite the limitations on time for career preparedness and shrinking professional development budgets, mentoring remains as important as ever due to the interconnectedness in a global society and the changing demographics of postsecondary education students. The traditional-age population in college that lives on campus and does not work has been declining for over three decades. The majorities of current students that are now non-traditional, and work at least part-time are first-generation, and are pursuing degrees via distance or online learning. The importance of providing a diverse mentoring strategy for this new population is borne out in research in order to …

Augmented Creativity: Leveraging Natural Language Processing For Creative Writing, Daniel Plate, James Hutson

Faculty Scholarship

Recent advances have moved natural language processing (NLP) capabilities with artificial intelligence beyond mere grammar and spell-checking functionality. One such new use that has arisen is the ability to suggest new content to writers to inspire new ideas by using “machine-in-the-loop” strategies in creative writing. In order to explore the possibilities of such a strategy, this study provides a model to be adopted in creative writing courses in higher education. An NLP application was created using Python and spaCy and deployed via Streamlit. The AI allowed students to see if their grammar aligned with those principles and techniques taught in …

The Political Urgency Of Black Manhood: Frederick Douglass On Constitutional Theory, John M. Kang

Faculty Scholarship

How did Frederick Douglass—one who was born a slave, one who had been denied all formal education, one who had been sundered from his family, one who had been starved, tortured, and, on occasion, nearly killed—manage to muster the courage to do something as bold as challenge the United States Supreme Court? This Article suggests that Douglass, in order to assert his right as an American citizen, first had to assert his right as a man in an explicitly gendered sense. That is, Douglass had to muster a powerful sense of manliness that could elevate him psychologically to assert his …

Forecasting The How And Why Of Corporate Crime's Demise, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Poor Writing, Not Specialized Concepts, Drives Processing Difficulty In Legal Language, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Despite their ever-increasing presence in everyday life, contracts remain notoriously inaccessible to laypeople. Why? Here, a corpus analysis (n ≈10 million words) revealed that contracts contain startlingly high proportions of certain difficult-to-process features–including low-frequency jargon, center-embedded clauses (leading to long-distance syntactic dependencies), passive voice structures, and non-standard capitalization–relative to nine other baseline genres of written and spoken English. Two experiments (N=184) further revealed that excerpts containing these features were recalled and comprehended at lower rates than excerpts without these features, even for experienced readers, and that center-embedded clauses inhibited recall more-so than other features. These findings (a) undermine …

Racial Justice And Peace, Yuvraj Joshi

Faculty Scholarship

No abstract provided.

Vesting, Jed Handelsman Shugerman

Faculty Scholarship

"The executive Power shall be vested in a President of the United States of America." The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, the idea that the President possesses executive powers like removal without congressional limitations (that is, the powers are indefeasible). An underlying assumption is that "vest" connotes a formalist approach to separation of powers rather than a more functional system of Madisonian checks and balances. Assumptions about "vesting" for official powers are likely the result of semantic drift from property rights and ahistoric projections back from the later Marshall Court doctrine …

Toward Evidence-Based Antiracist Policymaking: Problems And Proposals For Better Racial Data Collection And Reporting, Neda Khoshkhoo, Aviva Geiger Schwarz, Luisa Godinez Puig, Caitlin Glass, Geoffrey S. Holtzman, Elaine O. Nsoesie, Jasmine Gonzales Rose

Faculty Scholarship

The study of data concerning racial and ethnic inequities and disparities allows us to better understand experiences of racism, and to see more clearly how and where racism manifests. Studying the effects of racism, in turn, allows us to more easily identify racist policies, so that we can craft antiracist interventions.

Existing race and ethnicity data collection efforts are riddled with gaps and errors, including missing and incomplete data, insufficiently disaggregated data, lack of meaningful longitudinal data, infrequently updated data, non-standardized methodologies, and other problems. These deficiencies significantly hinder evidence-based antiracist policymaking.

This policy report examines the state of racial …

The Original Meaning Of “Due Process Of Law” In The Fifth Amendment, Max Crema, Lawrence B. Solum

Faculty Scholarship

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase …

Evaluating Legal Needs, Luz E. Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas––a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, and barriers …

Transplanting Anti-Suit Injunctions, Peter K. Yu, Jorge L. Contreras, Yu Yang

Faculty Scholarship

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering the proceedings in those courts. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation. The …

Timeout For Sports Trademark Overprotection: Comparing The United States, European Union, And United Kingdom, Jodi S. Balsam

Faculty Scholarship

No abstract provided.

Creating Tomorrow’S Change-Makers: Using Alternative Media In The 1l Skills Classroom To Connect Students With Real Practice And Enhance Established Methods For Teaching Appellate Advocacy, Marni Goldstein Caputo, Kathleen Luz

Faculty Scholarship

Fostering that idea of lawyers as change-makers can be difficult in the typical 1L curriculum. The traditional, doctrinal law school classroom typically has a formula comprised of extensive textbook reading, the Socratic classroom, in which that reading is processed in a large group, and, finally, a cumulative, high-stakes exam at the end of the semester.⁶ That formula has largely not changed for decades.⁷ The lawyering skills classroom is often the only outlier from that formula for first-year law students.⁸ Even so, the skills classroom can be formulaic in its own right—introduction of an assignment, classroom instruction regarding …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

Are People In Federal Territories Part Of “We The People Of The United States”?, Gary S. Lawson, Guy Seidman

Faculty Scholarship

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the …

Latinxs Reshaping Law & Policy In The U.S. South, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article addresses the key law and policy levers affecting Latinxs in what the U.S. Census Bureau designates as the South. Since the rise of the Latinx population from the 1980s onward, few legal scholars and researchers have participated in a sustained dialogue about how law and policy affects Latinxs living in the South. In response to this gap in legal research, this article provides an overview of the major law and policy challenges and opportunities for Latinxs in this U.S. region. Part II examines the geopolitical landscape of the South with special focus on the enduring legacy of Jim …

Observers Use Gesture To Disambiguate Contrastive Expressions Of Preference, Fey Parrill, Grace Moran, Hannah Boylan, Ishita Gupta, Aisha Zamir

Faculty Scholarship

We present two studies exploring how participants respond when a speaker contrasts two ideas, then expresses an ambiguous preference towards one of them. Study 1 showed that, when reading a speaker’s preference as text, participants tended to choose whatever was said last as matching the speaker’s preference, reflecting the recent-mention bias of anaphora resolution. In Study 2, we asked whether this pattern changed for audio versions of our stimuli. We found that it did not. We then asked whether observers used gesture to disambiguate the speaker’s preference. Participants watched videos in which two statements were spoken. Co-speech gestures were produced …

Decoding Nondelegation After Gundy: What The Experience In State Courts Tells Us About What To Expect When We're Expecting, Daniel E. Walters

Faculty Scholarship

The nondelegation doctrine theoretically limits Congress’s ability to delegate legislative powers to the executive agencies that make up the modern administrative state. Yet, in practice, the U.S. Supreme Court has, since the New Deal, shied away from enforcing any limits on congressional delegation. That may change in the near future. In Gundy v. United States, the Court narrowly upheld a delegation, and a dissent signaled deep doubts about the Court’s longstanding “intelligible principle” standard and offered a new framework to replace it. Subsequent events strongly suggest that the Court is poised to move in the direction contemplated by the dissent …

An Interventional Pilot Of Customized Adherence Enhancement Combined With Long-Acting Injectable Antipsychotic Medication (Cae-L) For Poorly Adherent Patients With Chronic Psychotic Disorder In Tanzania, Christopher J. Burant, Carol E. Blixen, Kristin A. Cassidy, Jennifer B. Levin, Martha Sajatovic

Faculty Scholarship

Background: Chronic psychotic disorders (CPD) impose a particularly significant burden in resource-limited settings. Combining long-acting antipsychotic medication (LAI) with a customized adherence enhancement intervention (CAE-L) has potential to advance care. Methods: Nineteen adults ≥ age 18 with CPD who self-reported missing ≥20% of antipsychotic medication within the last month were stabilized on oral haloperidol prior to transitioning to monthly haloperidol decanote for 25 weeks. Outcome evaluations were conducted at baseline and Week 25. Primary outcomes were oral medication adherence assessed via the Tablet Routines Questionnaire (TRQ) and LAI injection frequency. Secondary outcomes included CPD symptoms measured by the Brief Psychiatric …

Beyond Bake Sales: Environmental Justice Through Superfund Removal Actions, Clifford Villa

Faculty Scholarship

Few people outside of EPA seem to be aware of the existence of the Superfund removal program, a program through which millions of dollars are allocated through EPA’s ten regional offices each year for cleaning up contaminated sites that are not designated 'Superfund' sites. This essay will provide a basic introduction to the Superfund removal program and particularly encourage consideration of Superfund removals to address growing concerns for environmental justice. Part II examines the legal authorities and limitations of the Superfund removal program. Part III provides examples of removal actions in environmental justice communities across the country. Part IV considers …

“Change And Become Like Children”: Eschatological Childhood As Critique And Intention Of Ecclesiological Life, Joel Young

Faculty Scholarship

No abstract provided.