Digital Commons Network^™

Prosecutorial Data Transparency And Data Justice, Caitlin Glass, Kat Albrecht, Perry Moriearty

Faculty Scholarship

The U.S. criminal legal system is notoriously racialized. Though Black and Latinx people make up less than 30% of U.S. residents, they constitute more than 50% of the nearly two million people currently in U.S. prisons and jails. For decades, research has indicated that one group of decision-makers has had an outsized influence on these numbers: prosecutors. From whom to charge to what sentences to recommend, no actor plays a greater role in determining who goes to prison in this country. Highly subjective and lacking in formal guidance and accountability, prosecutorial decisions are especially vulnerable to racial bias. They are …

Utility, Copyright, And Fair Use After Warhol, Keith N. Hylton

Faculty Scholarship

This paper is a reaction to AWF v. Goldsmith (Warhol), which finds that Warhol’s adaptation of a photograph of Prince, taken by photographer Lynn Goldsmith, is not protected from copyright liability by the fair use defense. The Warhol dissent accuses the majority of being overly concerned with the commercial character of Warhol’s use, while the dissent emphasizes the artistically transformative quality of Warhol’s adaptation. These different approaches provide strong evidence that the theory of fair use remains unclear to the Court. There is a need for a simple positive theory of the fair use doctrine. That need was largely …

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …

Two Ai Truths And A Lie, Woodrow Hartzog

Faculty Scholarship

Industry will take everything it can in developing Artificial Intelligence (AI) systems. We will get used to it. This will be done for our benefit. Two of these things are true and one of them is a lie. It is critical that lawmakers identify them correctly. In this Essay, I argue that no matter how AI systems develop, if lawmakers do not address the dynamics of dangerous extraction, harmful normalization, and adversarial self-dealing, then AI systems will likely be used to do more harm than good.

Given these inevitabilities, lawmakers will need to change their usual approach to regulating technology. …

Structural Sex Discrimination: Why Gynecology Patients Suffer Avoidable Injuries And What The Law Can Do About It, Christopher Robertson, Annabel Kupke, Louise P. King

Faculty Scholarship

The nearly four million Americans who undergo gynecological surgeries each year suffer avoidable lifelong, painful, and disabling injuries. This Article diagnoses the root cause in our legal framework for healthcare finance and identifies legal solutions.

America’s public-private system for reimbursing healthcare pays for procedures rather than outcomes, and it pays substantially more for work on male rather than female anatomies. This disparity is due to the federal government’s reliance on a secretive industry committee to set those rates, and the committee’s reliance on junk science surveys, allowing self-interested and gender-biased responses, contrary to objective measures.

As payors disvalue the bodies …

The Legal Metaverse And Comparative Taxonomy: A Reappraisal, Ugo Mattei

Faculty Scholarship

The present Article revisits my “Three Patterns of Law: Taxonomy and Change in the World’s Legal Systems”—published in this very Journal a quarter century ago—which acknowledged the ideological nature of the law versus politics distinction and posited taxonomy as a means for understanding law. The original article classified law into professional law, political law, and traditional law, and heralded the tentative and dynamic natures of such classification. The two purposes of the present Article are to (i) reflect on legal transformations that have since occurred as reactions to global geopolitical, technological, and economic changes, and (ii) interrogate whether epistemological assumptions …

Going Federal, Staying Stateside: Felons, Firearms, And The ‘Federalization’ Of Crime, Jonathan Abel

Faculty Scholarship

Scholars have long debated the federalization of crime. Proponents assert that federal prosecutions are more likely than state prosecutions to result in convictions and severe punishments, and thus more likely to deter crime. Opponents argue that federalization leads to the arbitrary, and even racist, punishment of a few unlucky defendants plucked from a sea of similarly situated peers. Everyone seems to agree about one thing, though: the federal system outstrips the state system in effectiveness and severity. Yet, no one has obtained the state-court data needed to substantiate these comparisons. This Article fills that gap with an examination of the …

Advancing Human Rights And The Rule Of Law In Haiti, Kate E. Bloch, Ariel Chéry, Marie Gerda Dorcy, Roxane Edmond Dimanche, Yvon Janvier, Maxo Mezilas, Benjamin Trouille

Faculty Scholarship

The rule of law in Haiti is precarious. The ESCDROJ law school clinic in the town of Jérémie champions indigent individuals whose human rights are under siege during their prolonged and unconstitutional pre-trial connement in prison. To our knowledge, it is the only operating in-house law school clinic in Ha1iti. Despite myriad obstacles, during its initial pre-pandemic period of op- eration in 2018-2019, the inaugural clinic team represented clients in 43 cases brought to trial and succeeded in garnering the release of 25 of those individuals. That is a trial release success rate of over 58%. Subsequently, however, the ad- …

Paucity Of Intellectual Property Rights Information In The Us Biologics System A Decade After Passage Of The Biosimilars Act, Robin Feldman

Faculty Scholarship

No abstract provided.

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Lidsky

Faculty Scholarship

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

Making Social Security Progressive, Manoj Viswanathan

Faculty Scholarship

Social Security is funded by a regressive tax in which wages below the wage cap ($160,200 in 2023) are taxed at a flat rate but wages above the cap are taxed at zero. To address this normative shortcoming and make Social Security progressive, this Piece proposes eliminating the wage cap and using the resulting additional revenue to fund a zero-rate Social Security tax bracket analogous to the standard deduction of the federal income tax. IRS data show that these changes could fund an exemption of at least $10,000, thereby saving low-wage taxpayers approximately $1,200. By altering only the distribution of …

“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. …

Mass Surveillance As Racialized Control, Prithika Balakrishnan

Faculty Scholarship

This Article examines how the expanded use of pretrial GPS surveillance is radically changing the presumption of innocence by implicating punitive measures absent constitutional protections and amplifying the racial disparities in our criminal justice system. Largely viewed as a substitution for physical detention and therefore a less onerous intrusion on a defendant’s liberty, pretrial GPS surveillance erodes fundamental liberties under the guise of criminal justice regulation. These highly racialized but invisible repercussions include harms to physical and psychological health, freedom of movement, privacy, and future economic self-determination. I argue that, in light of these substantial harms, courts must examine how …

Reproducing Inequality: Racial Capitalism And The Cost Of Public Education, Thalia Gonzalez, Paige Joki

Faculty Scholarship

American democracy is marked by an unwavering deployment of racialized economic modalities of fines, fees, and debt aimed at scaffolding hierarchies of white power and prescribing Black people as commodities, not human beings. Over the last two decades, an expanding praxis in the economic justice field has emerged, opposing and disrupting racialized economic logics within a national anti-fine, fee and cost movement. From scholarly discourse to legal interventions and reforms at city- and county-levels, the movement has sought to target interlocking material and ideological forces that comprise racial capitalist geographies across many criminal and civil systems. Despite this significant work, …

Education Equity And Brown: Reform, Retrenchment, And Exclusionary School Discipline, Thalia Gonzalez, Will Martel

Faculty Scholarship

Public schools have served as sites of social, political, and legal contestation since their inception in the United States. And, while the pathways of racialized inequalities have arguably waxed and waned, threats of exclusion and segregation—constituted and governed by anti-Blackness—have cast a long shadow on the promise of educational equity. In response to the central provocation of the 2024 Georgetown Journal of Law & Modern Critical Race Perspectives symposium—revisiting Brown v. Board of Education and the struggle for racial equity in education—this Essay seeks to (re)connect the past and present. More directly, through the Critical Race Theory reform and retrenchment …

Psychic Income & Democratized Investing, Abraham J.B. Cable

Faculty Scholarship

No abstract provided.

Empirically Assessing Medical Device Innovation, George Horvath

Faculty Scholarship

No abstract provided.

First Amendment Disequilibrium, Christina Koningisor, Lyrissa Lidsky

Faculty Scholarship

The Supreme Court has constructed key parts of First Amendment law around two underlying assumptions. The first is that the press is a powerful actor capable of obtaining government information and checking government power. The second is that the executive branch is bound by various internal and external constraints that limit its ability to keep information secret. Judges and legislators have long assumed that these twin forces—an emboldened press and a constrained executive—maintain a rough balance between the press’s desire to uncover secrets and the executive’s desire to keep information hidden. Landmark First Amendment cases such as the Pentagon Papers …

Dance Of The Biologics, Robin Feldman, Gideon Schor

Faculty Scholarship

From COVID-19 vaccines to cancer treatments, biologic medicines are gaining importance in the U.S. health care system. Their high price tags, however, make these medications difficult for many Americans to afford. The Biosimilars Act, enacted in 2010, aimed to reduce costs and increase access to biologic medications by encouraging follow-on competition. The legislative effort followed in the footsteps of its predecessor, the Hatch-Waxman Act of 1984.

Although the Hatch-Waxman system succeeded in creating a landscape of more affordable and widely used generic drugs, the Biosimilars Act has failed to live up to its promise. Biologic drugs in the United States …

Ai & Antitrust: The Algorithm Made Me Do It, Robin Feldman, Caroline Yuen

Faculty Scholarship

As the dawn of artificial intelligence (“AI”) rises rapidly, competition authorities should contemplate the potential for hazy days ahead. Undoubtedly, AI’s already ubiquitous presence offers exciting possibilities, from enhancing efficiency, to leveling the playing field for non-native speakers,to enabling scientific discovery.Despite these breathtaking advancements, however, recent data from the Pew Research Center reveal that only 15% of adults surveyed were “more excited than concerned about the increasing use of AI in daily life,” with 46% expressing “an equal mix of concern and excitement.”

Policymakers also manifest concerns about AI, exemplified by the extent to which government actors are racing to …

Digital Inclusion For People With Autism Spectrum Disorders: Review Of The Current Legal Models And Doctrinal Concepts, James Hutson, Piper Hutson

Faculty Scholarship

Objective: Today, a significant part of professional tasks are performed in the digital environment, on digital platforms, in virtual and other meetings. This necessitates a critical reflection of traditional views on the problem of accessible environment and digital accessibility, taking into account the basic universal needs of persons with disabilities.

Methods: A gap between the traditional legal perspective on special working conditions for persons with disabilities and the urgent need of a digital workplace (digital environment) clearly shows lacunas in the understanding of accessibility, which are identified and explored with formal-legal and doctrinal methods. The multifaceted aspects of …

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 …

Beyond The Pixelated Mirror: Understanding Avatar Identity And Its Impact On In-Game Advertising And Consumer Behavior, Kyle Coble, Jay Ratican, James Hutson

Faculty Scholarship

This article examines the complex dynamics between avatars and in-game advertising, probing how virtual representations influence consumer behavior within digital environments. It delves into the psychological interplay between self-perception and avatar embodiment, suggesting that while younger users may treat avatars as accessories showcasing personal interests, adults tend to opt for idealized selves, affecting their interaction with and responsiveness to virtual marketing. The study contemplates the avatar’s function as both a consumer and influencer in the expanding metaverse, considering the escalating integration of branded items in games. It also highlights potential shifts in consumption patterns as digital and physical realities converge. …

College Major Area And Career Commitment: Rethinking Steam In Educational- Vocational Guidance, James Hutson, Sara Bagley, Colleen Biri

Faculty Scholarship

Objective: The exigency for higher education to exhibit outcomes aligning with career competencies has intensified, driven by external pressures favoring job-specific training. Amidst shifting career tendencies of Generations Y and Z and the advent of artificial intelligence-led automation, the valuation of different college majors has come under scrutiny. This study aims to dissect the prevailing assumptions and explore the satisfaction and career commitment levels among individuals with career-focused degrees.

Methods: Utilizing a mixed-methods approach, the study delves into the relationships among areas of study, career commitment, self-esteem, and self-efficacy among alumni from a private Midwestern liberal arts college. Instruments …

The Effects Of Protein And Carbohydrate Supplementation, With And Without Creatine, On Occupational Performance In Firefighters, Kaia Elstad, Conley Malone, Joel Luedke, Salvadore J. Jaime, Ward C. Dobbs, Thomas Almonroeder, Chad M. Kerksick, Adam Markert, Andrew R. Jagim

Faculty Scholarship

Background: The purpose of this study was to assess the effects of protein and carbohydrate supplementation, with and without creatine, on occupational performance in firefighters. Methods: Using a randomized, double-blind approach, thirty male firefighters (age: 34.4 ± 8.4 yrs., height: 1.82 ± 0.07 m; weight: 88.6 ± 12.5 kg; BF%: 17.2 ± 5.8%) were randomized to receive either (A.) 25 g of whey protein isolate + 25 g of carbohydrate powder (ProCarb group); or (B.) ProCarb + 5 g of creatine (Creatine group) in a double-blind fashion over a period of 21–26 days (depending on shift rotations) to evaluate …

Leveraging Generative Agents: Autonomous Ai With Simulated Personas For Interactive Simulacra And Collaborative Research, James Hutson, Jay Ratican

Faculty Scholarship

The advent of large language models (LLMs) and AI learning have fundamentally reshaped the research landscape, paving the way for novel problem-solving approaches. This paper introduces a unique framework that leverages the capabilities of autonomous AI agents with simulated personas to drive collaborative research in groundbreaking ways. Inspired by a recent study of autonomous agents mirroring human behavior, this concept encourages the use of a cadre of AI agents, each possessing specialized expertise for collective endeavors. By replicating human diversity in teamwork, this approach targets complex and hitherto unsolvable issues. The key to this strategy is persona and emotional simulation, …

Outlawing Corporate Prosecution Deals When People Have Died, Peter Reilly

Faculty Scholarship

Two Boeing 737 MAX aircraft crashes, occurring less than five months apart in 2018 and 2019, resulted in 346 deaths—possibly the deadliest corporate crime in U.S. history. The United States Department of Justice (DOJ) used an alternative dispute resolution tool called a deferred prosecution agreement (DPA) to resolve criminal charges against Boeing and to immunize the company’s senior-level managers from prosecution. In the end, the company admitted to engaging in the criminal behavior, paid a monetary fine, and agreed to cooperate fully with the government—meaning there would be no courtroom trial, no formal adjudication of guilt, and no possibility of …

A Perfect Storm For Legal Education: Privatization, Polarization, And Pedagogy, Rachel F. Moran

Faculty Scholarship

Today, the legal profession faces new challenges to its integrity and legitimacy due to technological change, rising political polarization, and a stratified bar. In this Article, I first explore how technological innovations are undermining lawyers’ claims to a unique monopoly based on expert professionalism. These technologies are designed to transform routinized law practice in ways that improve efficiency. With little focus on attorneys’ obligations to serve the greater good, technology entrepreneurs emphasize practical advantages over traditional forms of representation. These proponents promise reduced costs and superior results through a single-minded commitment to market dynamics. Those promises in turn depend on …

Final Report Of The Mexican Reintegration Project Study, Guillermo J. Garcia Sanchez, Sonia Hernandez, Luz E. Herrera, Angela D. Morrison, Huyen Pham, Nancy Plankey-Videla

Faculty Scholarship

The phenomenon of Mexicans returning to Mexico after an extended stay in the United States is an increasingly important one. Though estimates for the period from 2014 through 2019 show that more Mexicans have migrated to the United States than left, net migration is still well below that of peak net migration from 1995 to 2000. In the period of 2014-2019, the net migration of Mexican nationals to the United States was only 160,000 versus 2.3 million during the period from 1995 to 2000. From 2005–2014, the U.S. experienced an outmigration of Mexican nationals, as more Mexicans left the U.S. …

Reporte Final Del Estudio Del "Proyecto De Reintegración Mexicana", Guillermo J. Garcia Sanchez, Sonia Hernandez, Luz E. Herrera, Angela D. Morrison, Huyen Pham, Nancy Plankey-Videla

Faculty Scholarship

El fenómeno de los mexicanos que estan regresando a México después de una estadía prolongada en Estados Unidos es cada vez más importante. Aunque las estimaciones para el período de 2014 a 2019 muestran que más mexicanos han migrado a Estados Unidos de los que se fueron, la migración neta todavía está muy por debajo del pico de migración neta de 1995 a 2000. En el período de 2014-2019, la migración neta de mexicanos a Estados Unidos era de tan solo 160,000 versus 2.3 millones durante el periodo de 1995 a 2000. Entre 2005 y 2014, Estados Unidos experimentó una …