Digital Commons Network^™

Technologies Of Violence: Law, Markets, And Innovation For Gun Safety, Joseph Blocher, Christopher Buccafusco

Faculty Scholarship

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect, " and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, …

Fútbol Profesional, Derecho De La Competencia Y 'Fair Play', Stephen Ross

Faculty Scholarship

El presente ensayo examina la relación entre el derecho de la competencia y la noción de «Fair Play» en el ámbito del fútbol profesional. El autor comienza analizando el significado lingüístico y filosófico del término «Fair Play» y valorando cómo las diferentes interpretaciones de esta noción pueden influir en la percepción de lo que se entiende por justicia en el deporte. A continuación, compara la aplicación del derecho de la competencia en EE.UU. y Europa, destacando que, aunque hay diferencias, no existe un verdadero conflicto entre la noción de «Fair Play» y la normativa en materia de competencia. Finalmente, defiende …

Per Se Non-Takings, Nestor M. Davidson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules–standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Measuring The Value Of Trademark Distinctiveness: Evidence From The Market For Bordeaux Wine, Christopher Buccafusco, Jonathan S. Masur, Ryan Whalen

Faculty Scholarship

The market value of distinctive trademarks is a fundamental assumption of both trademark law and marketing theory. However, there is little empirical evidence underlying this assumption. We examine the relationship between brand dissimilarity and market prices in the context of the Bordeaux wine market. Using a unique dataset covering thousands of wines and their associated prices and professional ratings, we find that brand distinctiveness is related to higher wine prices. We further show that this relationship persists across the wine quality spectrum, with both lower quality and higher quality wines benefiting from dissimilar marks. Finally, we show that while there …

Law As A Lamp Post, Janet Freilich

Faculty Scholarship

Law produces all manner of public information: court documents, securities filings, patents, property records, and much more. This information is used in a multitude of ways—it teaches readers about individual cases, transactions, or entities, and is also aggregated to inform policymaking, set priorities, and drive predictive analytics and artificial intelligence.

But choices about the information produced (or hidden) by law are often unintentional. Doctrines and institutions that appear facially unrelated to information production—like subject matter jurisdiction—nonetheless affect the shape and quantity of data produced. And even doctrines focused on information— like property recordation—create data used for purposes never envisioned by …

The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, And A Good-Faith Emergency Question Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more." Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to …

Judicial Accountability, Anya Bernstein

Faculty Scholarship

Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a …

Transcultural Courts, Scott Dodson

Faculty Scholarship

Although countries commonly divide their judicial systems along geographic and subject-matter divisions, the idea of creating specialized courts based on culture has not taken root. Instead, courts are generally transcultural. Functionally, the lack of culture-specific courts is surprising because cultural diversity within a population often creates legally significant distinctions. Focusing primarily on the U.S. judicial system, but incorporating attributes of other judicial systems where appropriate, this paper offers three explanations for why courts tend to eschew cultural specializations in favor of transculturality. It also hazards some opportunities for experimenting with cultural specializations in discrete areas of the law that most …

Video Game Development 3.0: Ai-Driven Collaborative Co-Creation, Jay Ratican, James Hutson

Faculty Scholarship

The evolution of game development has transitioned from manual coding (Software 1.0) to data-driven Artificial Intelligence (AI) (Software 2.0), and now to a more advanced stage—video game development 3.0. This phase is characterized by AI-driven processes leveraging large language models (LLMs), neural networks, and other AI techniques that autonomously generate code, content, and narratives. This paper explores the foundational technologies underpinning this paradigm shift, including customizable AI modules, dynamic asset creation, and intelligent non player characters (NPCs) that adapt to player interactions. It also highlights the integration of AI with emerging technologies like Virtual Reality (VR), Augmented Reality (AR), and …

Book Review: Transformative Negotiation: Strategies For Everyday Change And Equitable Futures, Peter R. Reilly

Faculty Scholarship

This volume makes an immense contribution to the field of negotiation and to dispute resolution more generally. The book covers a vast amount of ground, effectively connecting theory to practice and harnessing large amounts of research to support its arguments and advice. Perhaps most importantly, this reviewer found reading the book to be—as the title suggests—a transformative experience.

Interactional Ordering: Reconstructing Lon Fuller's Theory Of Private Law, Shyamkrishna Balganesh

Faculty Scholarship

While Lon Fuller is best remembered for his contributions to the fields of general jurisprudence and contract law, his work in each has long been seen as unrelated to the other. This Article shows that in a significantly underappreciated body of work, Fuller did connect the two and, in the process, developed the outlines of a robust theory of private law, best characterized as “interactional ordering.” Driven by Fuller’s efforts to develop a jurisprudence of form that was derived from conventionalism and natural law thinking, interactional ordering sees all normativity as originating in horizontal interactions between individuals in society, seeking …

Abortion Costs And The Language Of Torture, William J. Aceves

Faculty Scholarship

Following the U.S. Supreme Court's decision in Dobbs v. Jackson Women's Health Org., several states imposed significant restrictions on abortion. Some of these states established medical exceptions that would allow a pregnant person to receive an abortion only if they face "a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced." This language highlights the extreme pain and suffering that pregnant people must experience to qualify for an abortion …

Commercial Boilerplate: A Review And Research Agenda, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Boilerplate contracts have long fascinated legal scholars. But the focus has been largely on consumer contracts, with the debate centered on the question of whether take-it-or-leave-it mass-produced forms imposed on consumers by large corporations should be treated as contracts or as a problem in regulation. By contrast, commercial boilerplate — the standard forms used in transactions for corporate or sovereign bonds or merger agreements — has traditionally received little attention. The assumption has been that form contracts among sophisticated parties may differ in form but not in substance from bespoke contracts between business entities. Yet a growing body of scholarship …

Adaptive Worlds: Generative Ai In Game Design And Future Of Gaming, And Interactive Media, Jay Ratican, James Hutson

Faculty Scholarship

Generative AI is revolutionizing the field of game design, introducing unprecedented adaptability and personalization in gameplay. The latest advancements in AI-driven engines enable real-time content creation, offering dynamic, player-driven experiences that diverge from traditional pre-programmed narratives. This shift marks a transition toward "choose your own adventure" formats, with an unlimited number of variations in levels, enemies, collectibles, and weaponry, tailored to each player's decisions. Google's GameNGen, for example, showcases AI's capacity to recreate classic games like DOOM, learning and generating gameplay in real time. These innovations are not restricted to gaming alone; they extend to edutainment, television, and film, where …

Technoculture And Language Models In Archaeology: Reconstructing And Preserving Cultural Narratives Through Digital Humanities, James Hutson

Faculty Scholarship

Technoculture, which examines the intersection of culture and technology, has increasingly permeated archaeological practice, transforming both scholarly research and public engagement [1-3]. The introduction of digital tools such as virtual reality (VR), geographic information systems (GIS), and large language models (LLMs) has democratized access to archaeological knowledge, enabling communities to engage more actively with their cultural heritage [4-6]. This short article explores the mutual influence of technocultural studies and AI technologies on archaeology, with a focus on the preservation and reconstruction of cultural narratives through digital means.

The first aspect of this intersection lies in how technocultural tools are creating …

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

Critical Race Theory As Legal Epistemic Justice, Jasmine Gonzales Rose

Faculty Scholarship

“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few …

Even Laypeople Use Legalese, Eric H. Martinez, Francis Mollica, Edward Gibson

Faculty Scholarship

Whereas principles of communicative efficiency and legal doctrine dictate that laws be comprehensible to the common world, empirical evidence suggests legal documents are largely incomprehensible to lawyers and laypeople alike. Here, a corpus analysis (n=59 million words) first replicated and extended prior work revealing laws to contain strikingly higher rates of complex syntactic structures relative to six baseline genres of English.

Next, two pre-registered text generation experiments (n=286) tested two leading hypotheses regarding how these complex structures enter into legal documents in the first place. In line with the magic spell hypothesis, we found people tasked with writing official laws …

Giant Asset Managers, The Big Three, And Index Investing, Dorothy S. Lund, Adriana Z. Robertson

Faculty Scholarship

A robust literature describes the incentives and stewardship practices of the “Big Three” asset managers (BlackRock, Vanguard, and State Street Global Advisors), often referring to these asset managers as “passive.” This is so common that the “Big Three,” “index fund,” and “passive manager” are used almost interchangeably by both academics and practitioners. This shorthand emerged in the foundational scholarship in this area, and while it may remain useful in certain contexts, its casual use obscures important features of the market and contributes to misperceptions. In this chapter, we demonstrate that it is a mistake to equate passive investing with index …

Bridging The Gap: Ai And The Hidden Structure Of Consciousness, Emily Barnes, James Hutson

Faculty Scholarship

The quest to develop Artificial Intelligence (AI) systems that possess human-like consciousness necessitates a deep dive into both theoretical and practical aspects underpinning this ambitious goal. This article builds on initial philosophical explorations of AI consciousness by examining the intricate and often hidden structures that may facilitate conscious experiences in AI. Drawing from concepts in cognitive science and neuroscience, the article elucidates how AI systems can be designed to replicate the structural and functional aspects of human consciousness. The discussion includes the Hierarchy of Spatial Belongings proposed by Forti (2024), frameworks like the Integrated Information Theory (IIT), and models linking …

False Start On Nil: Public And Private Law Should Treat College Athletes Like Any Other Student, Jodi Balsam

Faculty Scholarship

No abstract provided.

The Sources And Consequences Of Disputes Over Contractual Meaning, Randy D. Gordon

Faculty Scholarship

With some frequency, parties agree to the particular words used in a contract they sign, only to later disagree as to the meaning of those words and their legal effect. That is, they each assent to something, but that “something” is something different for each of them. In this Article, I first categorize and trace the sources of recurring points of disagreement as a matter of language and linguistics. Then, I look at the consequences of a dispute that leads a fact finder to conclude that the parties genuinely did not agree to the same thing, which is to say …

Improved Motor Skills In Autistic Children After Three Weeks Of Neurologic Music Therapy Via Telehealth: A Pilot Study, Nicole M. Richard Williams, Corene Hurt-Thaut, Jessica Brian, Luc Tremblay, Marija Pranjic, Jessica Teich, Melissa Tan, Julia Kowaleski, Michael Thaut

Faculty Scholarship

Background: Many autistic children experience motor skill deficits which can impact other areas of functioning, and research on therapeutic interventions for motor skills in autism is in a preliminary stage. Music-based therapies have been used extensively to address motor skills in non-autistic populations. Though a handful of studies exist on the effects of music-based therapies for movement in autistic children, none have investigated the possibility of administering sessions via telehealth. This mixed-methods pilot study investigated whether nine Neurologic Music Therapy (NMT)^® sessions via telehealth would improve motor and attention skills in autistic children.

Methods: Five autistic children between five …

Advancing Sentiment Analysis Through Emotionally-Agnostic Text Mining In Large Language Models (Llms), Jay Ratican, James Hutson

Faculty Scholarship

The conventional methodology for sentiment analysis within large language models (LLMs) has predominantly drawn upon human emotional frameworks, incorporating physiological cues that are inherently absent in text-only communication. This research proposes a paradigm shift towards an emotionallyagnostic approach to sentiment analysis in LLMs, which concentrates on purely textual expressions of sentiment, circumventing the confounding effects of human physiological responses. The aim is to refine sentiment analysis algorithms to discern and generate emotionally congruent responses strictly from text-based cues. This study presents a comprehensive framework for an emotionally-agnostic sentiment analysis model that systematically excludes physiological indicators whilst maintaining the analytical depth …

The Perennial Eclipse: Race, Immigration, And How Latinx Count In American Politics, Rachel F. Moran

Faculty Scholarship

In 2016, the U.S. Supreme Court decided Evenwel v. Abbott, a case challenging the use of total population in state legislative apportionment as a violation of the Equal Protection Clause. The plaintiffs sued Texas, alleging that the State impermissibly diluted their voting power because they lived in areas with a high proportion of voting-age citizens. When total population was used to draw district lines, the plaintiffs had to compete with more voters to get their desired electoral outcomes than was true for voters in districts with low proportions of voting-age citizens. The Court rejected the argument, finding that states enjoy …

Auditory Feedback Decreases Timing Variability For Discontinuous And Continuous Motor Tasks In Autistic Adults, Nicole M. Richard Williams, Luc Tremblay, Corene Hurt-Thaut, Jessica Brian, Julia Kowaleski, Kathrin Mertel, Sebastian Schlüter, Michael Thaut

Faculty Scholarship

Introduction: Autistic individuals demonstrate greater variability and timing error in their motor performance than neurotypical individuals, likely due at least in part to atypical cerebellar characteristics and connectivity. These motor difficulties may differentially affect discrete as opposed to continuous movements in autistic individuals. Augmented auditory feedback has the potential to aid motor timing and variability due to intact auditory-motor pathways in autism and high sensitivity in autistic individuals to auditory stimuli. Methods: This experiment investigated whether there were differences in timing accuracy and variability in autistic adults as a function of task (discontinuous vs. continuous movements) and condition (augmented auditory …

Storylines Of Family Medicine Xii: Family Medicine And The Healthcare System, Kurt C. Stange

Faculty Scholarship

Storylines of Family Medicine is a 12-part series of thematically linked mini-essays with accompanying illustrations that explore the many dimensions of family medicine, as interpreted by individual family physicians and medical educators in the USA and elsewhere around the world. In 'XII: Family medicine and the future of the healthcare system', authors address the following themes: 'Leadership in family medicine', 'Becoming an academic family physician', 'Advocare-our call to act', 'The paradox of primary care and three simple rules', 'The quadruple aim-melding the patient and the health system', 'Fit-for-purpose medical workforce', 'Universal healthcare-coverage for all', 'The futures of family medicine' and …

Rethinking Plagiarism In The Era Of Generative Ai, James Hutson

Faculty Scholarship

The emergence of generative artificial intelligence (AI) technologies, such as large language models (LLMs) like ChatGPT, has precipitated a paradigm shift in the realms of academic writing, plagiarism, and intellectual property. This article explores the evolving landscape of English composition courses, traditionally designed to develop critical thinking through writing. As AI becomes increasingly integrated into the academic sphere, it necessitates a reevaluation of originality in writing, the purpose of learning research and writing, and the frameworks governing intellectual property (IP) and plagiarism. The paper commences with a statistical analysis contrasting the actual use of LLMs in academic dishonesty with educator …

Researcher Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Viljoen

Faculty Scholarship

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

Preserving Linguistic Diversity In The Digital Age: A Scalable Model For Cultural Heritage Continuity, James Hutson, Pace Ellsworth, Matt Ellsworth

Faculty Scholarship

In the face of the rapid erosion of both tangible and intangible cultural heritage globally, the urgency for effective, wide-ranging preservation methods has never been greater. Traditional approaches in cultural preservation often focus narrowly on specific niches, overlooking the broader cultural tapestry, particularly the preservation of everyday cultural elements. This article addresses this critical gap by advocating for a comprehensive, scalable model for cultural preservation that leverages machine learning and big data analytics. This model aims to document and archive a diverse range of cultural artifacts, encompassing both extraordinary and mundane aspects of heritage. A central issue highlighted in the …