Digital Commons Network^™

Intra-Eu Investment Disputes And The Monopoly Over The Interpretation Of Eu Law, Petros C. Mavroidis, Frederico Ortino

Faculty Scholarship

Following a recent European Charter Treaty (“ECT”) decision, it appears that the fate of intra-EU investment disputes, when adjudicated in fora other than the Luxembourg courts, is finally all but sealed. In Green Power, an arbitration tribunal confirmed prior decisions taken in different jurisdictions that there is no room for adjudicating intra-EU investment disputes away from Luxembourg. This decision sided with the approach already developed by the Court of Justice of the European Union (“CJEU”) in three decisions, namely, Achmea, Komstroy, and PL Holdings, which in turn led to legislative action by the Energy Charter Treaty aiming to put an …

Red White And Blue – And Also Green: How Energy Policy Can Protect Both National Security And The Environment, David M. Schizer

Faculty Scholarship

Too often, energy policy protects the environment while neglecting national security, or vice versa. Since each goal is critical, this Article shows how to advance both at the same time.

For national security, the key is to avoid depending on the wrong suppliers. If they are vulnerable to attack (like some Middle Eastern producers), they need to be defended. Or, if they are themselves geopolitical threats (like Russia and Iran), their energy exports fund harmful conduct. This Article breaks new ground in showing why suppliers tend to be insecure or menacing: authoritarian regimes — which are more likely to pose …

The (Immediate) Future Of Prosecution, Daniel C. Richman

Faculty Scholarship

Even as others make cogent arguments for diminishing the work of prosecutors, work remains – cases that must be brought against a backdrop of existing economic inequality and structural racism and of an array of impoverished institutional alternatives. The (immediate) future of prosecution requires thoughtful engagement with these tragic circumstances, but it also will inevitably involve the co-production of sentences that deter and incapacitate. Across-the-board sentencing discounts based on such circumstances are no substitute for the thoughtful intermediation that only the courtroom working group – judges, prosecutors and defense counsel- can provide. The (immediate) future also requires prosecutors to do …

Unexceptional Protest, Amber Baylor

Faculty Scholarship

Anti-protest legislation is billed as applying only in the extreme circumstances of mass-movements and large scale civil disobedience. Mass protest exceptionalism provides justification for passage of anti-protest laws in states otherwise hesitant to expand public order criminal regulation. Examples include a Virginia bill that heightens penalties for a “failure to disperse following a law officer’s order”; a Tennessee law directing criminal penalties for “blocking traffic”; a bill in New York criminalizing “incitement to riot by nonresidents.” These laws might be better described as antiprotest expansions of public order legislation.

While existing critiques of these laws emphasize the chilling effects on …

Europe's Digital Constitution, Anu Bradford

Faculty Scholarship

This Article uncovers the fundamental values underlying the European Union’s expansive set of digital regulations, which in aggregate can be viewed as Europe’s “digital constitution.” This constitution engrains Europe’s human-centric, rights-preserving, democracy-enhancing, and redistributive vision for the digital economy into binding law. This vision stands in stark contrast to the United States, which has traditionally placed its faith in markets and tech companies’ self-regulation. As a result, American tech companies today are regulated primarily by Brussels and not by Washington. By highlighting the distinctiveness and the global reach of the European digital constitution, this Article challenges the common narrative that …

In California And Europe, A New Dawn For Corporate Climate Disclosure, Magali Delmas, Michael B. Gerrard, Eric Orts

Faculty Scholarship

The Securities and Exchange Commission (SEC) is expected to finalize a new rule this month to cover required corporate climate disclosures by public-reporting companies. But the bigger news is that California Gov. Gavin Newsom (D) has announced that he will soon sign into law two climate change disclosure bills passed by the state Legislature.

Briggs V. Southwestern Energy Production: Hydraulic Fracturing And Subsurface Trespass, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

The tort of trespass to land has proven to be controversial as applied to airplane overflights (and more recently to drones) as well as to oil and gas production using hydraulic fracking technology. The key to applying trespass to intrusions above and below the surface of land is to distinguish between possession of land and the right to possess land. Surface owners have the right to possess the column of space above and below the surface (a kind of option value), but only to the extent that this space is subject to possible effective possession. The Pennsylvania Supreme Court in …

Financial Inclusion, Cryptocurrency, And Afrofuturism, Lynnise E. Pantin

Faculty Scholarship

As a community, Black people consistently face barriers to full participation in traditional financial markets. The decentralized nature of the cryptocurrency market is attractive to a community that has been historically and systematically excluded from the traditional financial markets by both private and public actors. As new entrants to any type of financial market, Black people have increasingly embraced blockchain technology and cryptocurrency as a path towards the wealth-building opportunities and financial freedom they have been denied in traditional markets. This Article analyzes whether the technology’s decentralized system will lead to financial inclusion or increased financial exclusion. Without reconciling the …

The Major Questions Doctrine: Right Diagnosis, Wrong Remedy, Thomas W. Merrill

Faculty Scholarship

The Supreme Court’s “major questions” doctrine has been attacked as an attempt to revive the nondelegation doctrine. The better view is that this statutory interpretation responds to perceived failings of the Chevron doctrine, which has governed court-agency relations since 1984. This article criticizes the major question doctrine and proposes modifications to the Chevron doctrine that would partially correct its failings while preserving the traditional interpretive role of courts.

Ignorance Of The Rules Of Omission: An Essay On Privilege Law, Rebecca Wexler

Faculty Scholarship

Evidentiary privileges--that is, rules that empower people to withhold evidence from legal proceedings-are one thread in a mesh of secrecy powers that control the flow of information in society. They are part and parcel of the laws, rules, norms, and practicalities that determine who can conceal and who can compel, that allocate power based on access to knowledge and its opposite. Despite the significance of privileges and of the harms that they produce, our understanding of this body of law has profound gaps.5 The questions posed above turn out to be more challenging than they might at first appear. Notwithstanding …

Event-Driven Suits And The Rethinking Of Securities Litigation, Merritt B. Fox, Joshua Mitts

Faculty Scholarship

Event-driven securities suits-ones that arise after an issuer has experienced some kind of disaster-have become increasingly prevalent in recent years. These suits are based on the fraud-on-the-market doctrine, a doctrine that ultimately gives rise to the bulk of the damages paid out in settlements and judgments pursuant to private litigation under the U.S. securities laws. The theory behind fraud-on-the-market cases is that when an issuer's share price has been inflated by a Rule-10b-5-violating misstatement, investors who purchased shares at the inflated price have suffered a compensable injury if they still hold the shares after the inflation is gone. Although these …

Socioeconomic Deprivation And Cardiometabolic Risk Factors In Individuals With Type 1 Diabetes: T1d Exchange Clinic Registry, Stephanie Griggs, Sadeer Al-Kindi, Heather Hardin, Elliane Irani, Sanjay Rajagopalan, Ronald L. Hickman Jr.

Faculty Scholarship

Aims: Social determinants of health (SDOH) influence cardiovascular health in the general population; however, the degree to which this occurs in individuals with type 1 diabetes (T1D) is not well understood. We evaluated associations among socioeconomic deprivation and cardiometabolic risk factors (hemoglobin A1c, low-density lipoprotein, blood pressure, body mass index, physical activity) in individuals with T1D from the T1D Clinic Exchange Registry. Methods: We evaluated the association between the social deprivation index (SDI) and cardiometabolic risk factors using multivariable and logistic regression among 18,754 participants ages 13 – 90 years (mean 29.2 ± 17) in the T1D Exchange clinic registry …

Fostering Durable Skills Development: Leveraging Student Worker Programs, James Hutson, Elizabeth Macdonald, Lisa Young, Susan Edele, Chris Smentkowski

Faculty Scholarship

The past half century has witnessed exponential increases in the cost of a college degree paralleled by an increase of undergraduate students who are employed during matriculation. While the impact on learning outcomes due to off-campus employment continues to receive much attention, there has been little attention paid to students employed on-campus through student worker programs and their benefits, especially in developing durable skills and improving retention. Research has demonstrated that engagement in oncampus activities improves retention and persistence in students. Additionally, employers desire power or durable skills (formerly known as “soft skills”), and that student worker programs are suited …

Novel Screening Tool And Considerations For Music Therapists Serving Autistic Individuals Via Telehealth: Qualitative Results From A Survey Of Clinicians’ Experiences, Nicole M. Richard Williams

Faculty Scholarship

During the COVID-19 pandemic, music therapists transitioned services from in-person to telehealth due to health and safety concerns. Though online delivery of music therapy services for autistic individuals occurred prior to 2020, the number of North American music therapists using telehealth with autistic clients rose substantially during the pandemic. The current paper’s objective was to delineate music therapists’ perceptions regarding factors that helped or hindered autistic persons’ engagement in online music therapy sessions. One-hundred ninety-two participants completed the survey. Qualitative content analysis of an open-ended question identified seven overarching themes regarding benefits and challenges of telehealth music therapy for autistic …

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, …

Essential Property, Timothy M. Mulvaney, Joseph William Singer

Faculty Scholarship

For a sizable swath of the U.S. population, incomes and wealth are insufficient to cover life’s most basic necessities even in the most ordinary of times. A disturbingly resilient explanation for this state of affairs rests on the view that resource inequities are avoidable through self-reliance, a stance that invites observers to see people in poverty as morally suspect. This Article advances a counterview in contending that the widespread lack of essential resources did not simply arise naturally via individuals’ life choices but instead has been, in very meaningful part, created and perpetuated by our system of property laws.

The …

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 …

The Private Law Of Stablecoins, Kara J. Bruce, Christopher K. Odinet, Andrea Tosato

Faculty Scholarship

Stablecoins are one of the cornerstones of the crypto world. They’ve attracted significant attention over the past few years, ranging from Wall Street to kitchen table investors, and even the White House. As a less volatile alternative to crypto-assets like bitcoin, stablecoins have the potential to change the way we make payments, unlock the groundwork needed for more blockchain-based applications, and even reorient the economy toward private money. But how stable are these stablecoins, really? Can they be relied upon in the way their many proponents claim? And how much of the popular beliefs about stablecoins match their realities? That’s …

The Role Of Virtual Reality In Art Therapy To Mitigate Autism Spectrum Disorder (Asd) Symptoms, James Hutson

Faculty Scholarship

Traditional art therapy sessions are designed for face-to-face engagement with patients as with other mental health services such as counseling. However, the pandemic of 2019 severely limited access to these services and, initially, led to widespread cancelation and postponement until the nature of COVID-19 could be better understood. When treatment resumed, video conferencing was the preferred method of holding therapy sessions one-on-one to diagnose patients and provide services. Similar approaches were taken in art therapy with less efficacy given the hands-on nature of the required activities. With the rise of virtual reality (VR) as a more widely accessible technology since …

Would You Make It To The Future? Teaching Race In An Assisted Reproductive Technologies And The Law Classroom, Sonia Gipson Rankin

Faculty Scholarship

Would you make it to the future? For the last five years, I have started my Assisted Reproductive Technology (ART) lecture in Family Law with this question. Students take the query seriously. They ponder their lived experiences such as home training, medical history, education, financial well-being, personality traits, work ethic, and social graces when determining if they would be the “model DNA” someone might select in a future society. The good-natured jokes about being nearsighted, having a pitiful jump shot, and wearing orthodontic headgear turn reflective when someone raises the question: would someone in the future select my race? In …

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 …

An Empirical Study Of Copyright's Substantial Similarity Test, Clark D. Asay

Faculty Scholarship

The substantial similarity test is copyright law’s dominant means by which courts determine whether a party has infringed another party’s copyright rights. Despite this, we have very little empirical evidence about what the test is and how courts apply it. To date, only a few empirical studies exist, and these are limited in several important ways, including with regards to scope, time periods covered, and volume of opinions. Mostly, courts, commentators, and scholars rely on anecdotal accounts of the test in both their conceptualizations and critiques of it.

To help provide a clearer empirical assessment of the test, this study …

"Keep To The Code”: A Global Code Of Conduct For Third-Party Funders, Victoria Sahani

Faculty Scholarship

Global commercial third-party funding has given rise to wide-ranging regulatory approaches worldwide. Consequently, funders can engage in cross-border regulatory arbitrage by exploiting regulatory gaps within and among nations. This Article argues that the global community of nations should articulate a universal approach to the behavioral expectations of third-party funders operating transnationally, independent of local laws regarding the technical business of funding. It asserts that the key to fostering the ethical development of the third-party funding industry is to develop a globally applicable but locally enforced code of conduct or professional responsibility for the industry. Moreover, a successful regime for funder …

Why Money Is Well Spent On Time, Michael Ulrich

Faculty Scholarship

There are a few reasons why incentivizing clinicians to spend more time with patients can improve health outcomes. Doing so affords clinicians time to assess social determinants’ influences on their patients’ health experiences; offers opportunities to identify and respond to patients’ loneliness; and helps motivate patients’ trust in health care, strengthen patient-clinician relationships, and bolster patients’ adherence to clinicians’ recommendations.

Comments Of The Cordell Institute For Policy In Medicine & Law At Washington University In St. Louis, Neil Richards, Woodrow Hartzog, Jordan Francis

Faculty Scholarship

The Federal Trade Commission—with its broad, independent grant of authority and statutory mandate to identify and prevent unfair and deceptive trade practices—is uniquely situated to prevent and remedy unfair and deceptive data privacy and data security practices. In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all …

Social Determinants Of Health And Child Maltreatment Prevention: The Family Success Network Pilot, Nancy Rolock, David Crampton

Faculty Scholarship

Child maltreatment is a highly prevalent public health concern that contributes to morbidity and mortality in childhood and short- and long-term health consequences that persist into adulthood. Past research suggests that social determinants of health such as socioeconomic status and intergenerational trauma are highly correlated with child maltreatment. With support from the U.S. Children’s Bureau, the Ohio Children’s Trust Fund is currently piloting the Family Success Network, a primary child maltreatment prevention strategy in Northeast Ohio that seeks to address these social determinants through pillars of service that include family coaching, financial assistance, financial education, parenting education, and basic life …

Testing Modified Gravity Theories With Numerical Solutions Of The External Field Effect In Rotationally Supported Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

The strong equivalence principle is violated by gravity theories of Milgromian dynamics [modified Newtonian dynamics (MOND)] through the action of the external field effect. We test two different Lagrangian theories Aquadratic-Lagrangian (AQUAL) and quasilinear MOND (QUMOND) based on their numerical solutions of the external field effect, by comparing two independent estimates of the mean external field strength of the nearby universe: a theory-deduced value from fitting the outer rotation curves of 114 galaxies and an empirical value from the large-scale distribution of cosmic baryons. The AQUAL-deduced external field strength from rotation curves agrees with that from the large-scale cosmic environment, …

Gamification In Education: A Study Of Design-Based Learning In Operationalizing A Game Studio For Serious Games, James Hutson, Ben Fulcher, Joe Weber

Faculty Scholarship

The gamification of learning has proven educational benefits, especially in secondary education. Studies confirm the successful engagement of students with improved time on task, motivation and learning outcomes. At the same time, there remains little research on games and learning at the postsecondary level of education where traditional pedagogies remain the norm. Studies that have been conducted remain almost exclusively restricted to science programs, including medicine and engineering. Moreover, postsecondary subject-matter experts who have created their own gamified experiences often are forced to do so on an ad hoc basis either on their own, teaching themselves game engines, or with …

In The Name Of Energy Sovereignty, Guillermo J. Garcia Sanchez

Faculty Scholarship

Throughout history, the phrase "In the name of the King" justified actions that trumped the rights of citizens in order to safeguard the interests of the Crown. Today, in the name of energy sovereignty, states deploy the government apparatus to access oil and gas in other parts of the world, build pipelines on private lands, subsidize renewable energy, and nationalize their oil and power industries. States justify each of these actions by noting that they create a sense of energy independence, ensure security, or achieve other social and economic goals. Energy, however, cannot be trapped in one "realm." Its nature …

Algorithmic Governance From The Bottom Up, Hannah Bloch-Wehba

Faculty Scholarship

Artificial intelligence and machine learning are both a blessing and a curse for governance. In theory, algorithmic governance makes government more efficient, more accurate, and more fair. But the emergence of automation in governance also rests on public-private collaborations that expand both public and private power, aggravate transparency and accountability gaps, and create significant obstacles for those seeking algorithmic justice. In response, a nascent body of law proposes technocratic policy changes to foster algorithmic accountability, ethics, and transparency.

This Article examines an alternative vision of algorithmic governance, one advanced primarily by social and labor movements instead of technocrats and firms. …