Digital Commons Network^™

Heat Camps: Juvenile Curfews, Extreme Heat & The Eighth Amendment, Norrinda Brown

Faculty Scholarship

For decades, in the summertime, America has confined certain of its youth in what are essentially open-air heat camps. In city after city, camp-form is established through the enactment of warm-weather juvenile curfews which keep the youth at home or in state-sponsored centers during summer nights and, increasingly, during days as well. Local governments justify these curfews with general notions of “public safety,” including to protect the youth they confine. But the laws are not benevolent. Reducing youth mobility by curfew results in exclusion, oversurveillance, and potentially lethal heat punishment of the youth, possibly in violation of the Eighth Amendment. …

Novel Sex Work Anti-Discrimination Protections, Chi Adanna Mgbako, Christine Eldabh, Katie Falk, Emma Pennie

Faculty Scholarship

Sex workers throughout the world experience ubiquitous and acute discrimination in every facet of their lives due to deeprooted stigma. Societal fear and hatred of sex workers often lead to their exclusion from healthcare services, financial institutions, and accessible housing, as well as their marginalization by the carceral state, family law systems, media, and politicians. Between 2022 and 2024, the Australian jurisdictions of the Northern Territory, Queensland, and Victoria passed groundbreaking legislation codifying novel anti-discrimination protections for sex workers. These laws are the first in the world to explicitly protect sex workers against discrimination in accommodation, employment, government services, and …

Reconceptualizing Incomplete Attempt, Youngjae Lee

Faculty Scholarship

Incomplete attempt laws are typically explained as laws that exist to justify timely law enforcement intervention. Such explanations may well provide good reasons for the laws based on harm prevention rationales, but they do not address the question whether a person who has, say, “cocked and aimed the pistol” has actually attempted to kill and is blameworthy for having done so. It turns out that this question is notoriously difficult to answer. This Article describes the challenge of defining incomplete attempt and of identifying and articulating its wrongfulness as a general theoretical matter. This Article then argues in favor of …

Navigating Copyright In Ai-Enhanced Game Design: Legal Challenges In Multimodal And Dynamic Content Creation, Andrew Begemann, James Hutson

Faculty Scholarship

The integration of artificial intelligence (AI) in video game design has transformed traditional workflows, allowing for the generation of text, images, music, videos, and code at unprecedented scales. However, this advancement presents complex challenges for copyright law, traditionally rooted in human originality and authorship. This article examines recent case law that underscores the evolving legal landscape, exploring landmark cases such as Zarya of the Dawn and Andersen v. Stability AI. These cases reveal the tensions between AI-generated outputs and copyright eligibility, especially in the dynamic, multimodal compositions inherent to video games. The review analyzes how various AI tools are employed …

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

The Great Scrape: The Clash Between Scraping And Privacy, Daniel J. Solove, Woodrow Hartzog

Faculty Scholarship

Artificial intelligence (AI) systems depend on massive quantities of data, often gathered by “scraping”—the automated extraction of large amounts of data from the internet. A great deal of scraped data contains people’s personal information. This personal data provides the grist for AI tools such as facial recognition, deep fakes, and generative AI. Although scraping enables web searching, archiving of records, and meaningful scientific research, scraping for AI can also be objectionable and even harmful to individuals and society.

Organizations are scraping at an escalating pace and scale, even though many privacy laws are seemingly incongruous with the practice. In this …

Gig Work At What Cost? Exploring Privacy Risks Of Gig Work Platform Participation In The U.S., Amogh Pradeep, Johanna Gunawan, Álvaro Feal, Woodrow Hartzog, David Choffnes

Faculty Scholarship

In recent years, "gig work" platforms have gained popularity as a way for individuals to earn money; as of 2021, 16% of Americans have at some point earned money from such platforms. Despite their popularity and their history of unfair data collection practices and worker safety, little is known about the data collected from workers (and users) by gig platforms and about the privacy dark pattern designs present in their apps.

This paper presents an empirical measurement of 16 gig work platforms' data practices in the U.S. We analyze what data is collected by these platforms, and how it is …

Foundations For Platform Liability, Kathryn E. Spier, Rory Van Loo

Faculty Scholarship

From spreading misinformation to selling deadly products, bad actors use technology platforms to their advantage while causing devastating harms to privacy, health, and even democracy. Despite their central role in enabling these bad actors, the platforms almost entirely escape liability. This legal immunity is purportedly grounded in economics. From the beginning, courts and legislatures feared that liability would chill innovation, growth, and user access. They also speculated that platforms have sufficient market incentives to voluntarily police bad actors, making liability unnecessary.

Whereas many scholars have argued that platform immunity is blind to justice, this Article shows that it is also …

Design Problems, Mark P. Mckenna, Jessica Silbey

Faculty Scholarship

This Essay draws on our empirical research into designers and their work to investigate the limits of intellectual property law for achieving its goal of progress in the design context. We focus on two related aspects of our research and also address a pressing doctrinal question in design patent law. The two research questions we discuss are: (1) How do designers conceive of and solve design problems through innovative design practice?; and (2) How do designers incorporate human values of coherence, inclusivity, and sustainability in their process, imbuing their practice with a kind of politics? The related doctrinal question concerns …

Normalizing Facial Recognition Technology And The End Of Obscurity, Woodrow Hartzog, Evan Selinger, Judy Hyojoo Rhee

Faculty Scholarship

This article argues that facial recognition technology is the most dangerous surveillance tool ever invented. Given the unique threats this morally suspect tool poses to privacy, civil liberties, human flourishing, and democracy, the only appropriate response is a ban. To justify our position, we explain why facial recognition is distinctive among biometrics, clarify how even seemingly benign and positive uses of the technology can trigger dangerous normalization dynamics, and pinpoint why current United States laws (with reverberations in the EU’s AI Act) are designed to accelerate a slippery slope that makes mass surveillance nearly inevitable. Our most fundamental contribution lies …

Policing Gender: The Interest Convergence Of Women's And Transgender Rights, Michael Ulrich

Faculty Scholarship

The social, political, and legal landscape has seen a resurgence of gender fundamentalism, seeking to reinforce archaic notions of what it means to be a woman. Social media movements run in tandem with this resurgence of gender fundamentalism. For instance, the “tradwife” phenomenon that romanticizes a domestic, subservient role for women.¹ Alabama Senator Katie Britt most infamously reflected the convergence of these trends when she delivered her response to the State of the Union from a kitchen table and proclaimed that her message was “a direct appeal” to her “fellow moms.”² Meanwhile, executive orders and state laws have …

The Perverse Effects Of Mandatory Judicial Reporting To Bar Authorities Of Ineffective Assistance Of Counsel Determinations, Tigran W. Eldred, David M. Siegel

Faculty Scholarship

California Business & Professions Code § 6086.7(a)(2) provides that a court shall notify the State Bar “[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.” Some California judges now interpret this provision as mandating referral to the State Bar in any case in which a new trial or withdrawal of a plea is granted due to ineffective assistance of counsel. This interpretation directly conflicts with an attorney’s continuing duty to her former client. It is unnecessary and has profoundly …

Challenging The Law, Steven Arrigg Koh

Faculty Scholarship

Frédéric Mégret’s engaging contribution, A Look Back at The Women’s Hague Peace Conference: What Contribution To International Law Today?, exposes a legal duality. On one hand, the legalist perspective: law is a closed system. From this perspective, law is objective, hard, universal, and bounded. On the other hand, the sociocultural perspective: law is a human practice. From this perspective, law is subjective, organic, particular, and porous. This Essay reads Mégret’s analysis of the 1915 International Congress of Women in The Hague as a “sociocultural challenge,” disrupting the legalist perspective on international law, war, and peace during World War I. …

Why Did Prosecution Strengthen President Trump In The 2024 Election?, Steven Arrigg Koh

Faculty Scholarship

Why did criminal prosecution strengthen President Donald Trump's electoral prospects in the 2024 federal election? It was not supposed to be this way: after President Trump's 2024 New York state conviction, many speculated that President Trump's "felon" status would imperil his political career. In fact, the opposite occurred: federal and state criminal prosecutions reenergized President Trump's 2024 presidential candidacy. Contemporary criminal law theories-traditional individualist, expressivist, and critical-struggle to explain why. 

This Article advances a theory of criminal coalescence to explain why the Trump prosecutions led the former President to political victory. Criminal coalescence is the intensification of mass support for …

Panel Discussion: Mindfulness In The Law School Environment, Erika George, Nicky Boothe, Kellyn O. Mcgee

Faculty Scholarship

A 2016 study of 13,000 lawyers conducted by American Bar Association Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Foundation found that approximately 28 percent struggle with depression, 19 percent anxiety and 23 percent stress.¹² The study found “younger lawyers in the first ten years of practice and those working in private firms experience the highest rates of problem drinking and depression.”¹³ At least one study suggests that 40-70 percent of disciplinary proceedings and malpractice claims against lawyers involve substance abuse or depression.

According to a 2016 Survey of Law Student Well-Being including over 3,300 law …

Response: Work And Home, Katharine B. Silbaugh

Faculty Scholarship

The idea of work, as it pertains to a place called home, as distinct from the market, has engaged and perplexed scholars for generations. Work in the home raises complicated issues that have accordingly drawn the focus of generations of scholars, from Charlotte Perkins Gilman and the material feminists of the late nineteenth century¹ to historians of labor such as Eileen Boris² and of law like Reva Siegel,³ from legal scholars like Fran Olson, Dorothy Roberts, and Robert Ellickson⁴ to social theorists like Friedrick Engels⁵ and architectural historians like Dolores Hayden,⁶ to name just …

What We Should Know About The Reliability Of Empirical Legal Studies, Kathryn Zeiler

Faculty Scholarship

The findings of replication studies conducted in the early 2010s led many to declare that science was in the midst of a “replication crisis.” Since then, a growing number of reforms have been proposed and tested. The field of empirical legal studies seems behind other fields such as psychology, economics, political science, medicine, biology, and others that have taken significant steps toward uncovering the general reliability of the field’s empirical work, investigating the causes of observed unreliability, and instituting and testing the effects of various reforms. The purpose of this Article is to summarize what we know about the reliability …

Managing The Cost Of Services For People With Disabilities: An International Approach. Part I: Poland, Dana Pugh, Jaroslaw Richard Romaniuk

Faculty Scholarship

Introduction: The cost of care for people with disabilities is rising, whereas all forms of support for them are decreasing. Countries and communities develop different ways to serve the disabled. We examined the comprehensive state of care from the perspective of cost management of services for individuals with disabilities in Poland. Method: This paper is based on a review of relevant international literature, with a special focus on the situation in Poland. A keyword search was completed in both Polish- and English-language databases. Results: In Poland, people with disabilities usually live with their families, and specialized services are offered outside …

Reply Brief For Plaintiff-Appellant Brandon Velez, Stephen T. Martin, Seth J. Hipple, Madeline H. Meth

Faculty Scholarship

Defendants don’t want to face the evidence, including video footage, that shows them escalating a traffic stop in front of Velez’s home to a forceful arrest because Velez exercised his First Amendment rights. So, instead of dealing with the record directly, Defendants rely entirely on the district court’s (improper) view of the record, which on appeal from that court’s grant of summary judgment is subject to this Court’s de novo review. Besides ignoring the evidence that favors Velez, Defendants leave unaddressed this Court’s key cases, citing only precedent in which officers confronted wildly different circumstances from those presented here.

When …

Opportunities To Address Health Disparities In Suicidality For Sexual And Gender Minority Youth In Public Systems, Dana M. Prince, Kathleen Lewis, Peter S. Hovmand

Faculty Scholarship

No abstract provided.

Structural And Electronic Factors Controlling The Efficiency And Rate Of Intersystem Crossing To The Triplet State In Thiophene Polycyclic Derivatives, Cameron Griffrith, Sarah E. Krul, Sean J. Hoehn, Tram Phan, Carlos E. Crespo-Hernández

Faculty Scholarship

Thiophene polycyclic derivatives are widely used in organic light-emitting diodes, photovoltaics, and medicinal chemistry applications. Understanding the electronic and structural factors controlling their intersystem crossing rates is paramount for these applications to be successful. This study investigates the photophysical, electronic structure, and excited state dynamics of 1,2-benzodiphenylene sulfide, benzo[b]naphtho[1,2-d]thiophene, and benzo[b]naphtho[2,3-d]thiophene in polar aprotic and non-polar solvents. Steady-state absorption and emission spectroscopy, femtosecond transient absorption spectroscopy, and DFT and TD-DFT calculations are employed. Low fluorescence quantum yields of 1.2 to 2.7 % are measured in acetonitrile and cyclohexene, evidencing that the primary relaxation pathways in these thiophene derivatives are nonradiative. …

Effect Of Polyacrylamide Gel Elasticity On Collagen Type Ii Fibril Assembly, Kathryn G. Wilcox, Stephanie Kramer, Surajit Chatterjee, Adam Linscott, Sneha Suresh, Lydia Kisley, Svetlana Morozova

Faculty Scholarship

Collagen type II fibrils provide structural integrity to the articular cartilage extracellular matrix. However, the conditions that control the fibril radial size scale, distribution, and formation inside of dense networks are not well understood. We have investigated how surrounding elastic networks affect fibril formation by observing the structure and dynamics of collagen type II in model polyacrylamide gels of varying moduli. Cryogenic transmission electron microscopy (cryo-TEM) is used to image the fibril structure and is verified qualitatively with optical microscopy of fluorescently-tagged collagen within the gels. Using fluorescence correlation spectroscopy super-resolution optical fluctuation imaging (fcsSOFI), the diffusion dynamics of the …

Assistive Technologies For Internet Navigation: A Review Of Screen Reader Solutions For The Blind And Visually Impaired, Juan Nino, Sherezada Ochoa, Jocelyne Kiss, Geoffreyjen Edwards, Ernesto Morales, James Hutson, Frédérique Poncet, Walter Wittich

Faculty Scholarship

The internet is a critical resource for individuals with visual impairments (VI), including those with low vision or blindness, enabling access to information and fostering independent participation in society. However, despite advancements in screen reader software, challenges persist in navigating complex and dynamic web content. This narrative review evaluates Assistive Technologies (AT), which enhance internet navigation for VI screen reader users, focusing on design strategies and usability outcomes. A systematic search across the ACM Digital Library, IEEE Xplore, JSTOR, and ScienceDirect identified 698 studies, of which 33 met the inclusion criteria, encompassing 502 participants. Key themes were extracted from bibliographic …

From Codex To Code: Pedagogical Transformations In The Age Of Technological Innovation, James Hutson, W. Travis Mcmaken, Kathi Vosevich

Faculty Scholarship

Generative Artificial Intelligence (GAI) is revolutionizing education, echoing historic shifts such as the emergence of the codex and the printing press. GAI automates complex tasks and personalizes learning to individual needs, enhancing interdisciplinary collaboration and bolstering critical thinking and ethical reasoning skills. Initiatives in new, innovative programming illustrate the benefits of embedding these generative technologies to foster cultural competence and innovative problem-solving. Research indicates that intelligent tools significantly enhance learner engagement and access to quality education, enriching learning environments. However, integrating these tools introduces challenges, including ethical dilemmas, academic integrity issues, and resource disparities. These challenges necessitate comprehensive policy development, …

Neuroplasticity And Creativity: Transformative Potential Of Fibre Arts For Growth And Well-Being, Piper Hutson, James Hutson

Faculty Scholarship

This article explores the transformative potential of fibre arts—such as quilting, weaving, and embroidery—as tools for personal growth, neuroplasticity, and well-being. Drawing on neuroscience and psychology, it demonstrates how engaging with fibre arts stimulates brain regions associated with problem-solving, sensory integration, and adaptability, fostering neural growth and enhancing cognitive flexibility. Fibre arts, through their inherent challenges and opportunities for play, provide a perfect medium for stepping beyond familiar boundaries, cultivating resilience, and reducing stress. This interplay of creativity and tactile engagement is particularly effective due to the historical undervaluation of fibre arts, which makes them novel and accessible mediums that …

Beyond Pathology: Inclusive Mentorship, Accommodations, And Policy Reforms For Autistic Women In The Medical Profession, Piper Hutson, James Hutson

Faculty Scholarship

This article addresses the unique challenges faced by autistic women in the medical profession, particularly in navigating traditional medical frameworks that often marginalize neurodiverse individuals. Drawing from a targeted literature review, this paper highlights the importance of adapting medical curricula, establishing mentorship programs, and reforming policies to foster inclusivity. Autistic women in medicine encounter barriers such as a lack of mentorship tailored to their needs, inadequate accommodations, and systemic bias rooted in the pathologization of autism. The article synthesizes current research to provide evidence-based recommendations that address these barriers. Specific examples of successful mentorship programs demonstrate the critical role of …

Expanding Sensory Kit Utilization Across Age And Contexts: Bridging Gaps For Inclusive Accessibility, Piper Hutson, James Hutson

Faculty Scholarship

Sensory kits, initially developed for neurodivergent children, have seen growing integration into various educational, cultural, and therapeutic contexts. However, their broader applicability, particularly for adults and diverse populations, remains underexplored. This study examines existing practices in the design and use of sensory kits within academic, museum, and inclusion frameworks, highlighting their role in promoting focus, reducing anxiety, and supporting self-regulation. Using case studies from institutions such as the Smithsonian and the Metropolitan Museum of Art, alongside a review of evidence-based interventions like weighted items and fidget tools, the research underscores the potential of these tools in diverse environments. The methodology …

The Evolving Role Of Copyright Law In The Age Of Ai-Generated Works, James Hutson

Faculty Scholarship

Objective: to identify the prospects and directions of copyright law development associated with the increasing use of generative artificial intelligence.

Methods: the study is based on the formal-legal, comparative, historical methods, doctrinal analysis, legal forecasting and modeling.

Results:the article states that the emergence of generative artificial intelligence makes one rethink the processes occurring in the field of creative activity and the traditional copyright system, which becomes inadequate to modern realities. The author substantiates the necessity of legal reassessment of copyright and emphasizes the urgent need for updated means of copyright protection. Unlike previous digital tools, which expanded …

The Algorithm Of Fear: Unpacking Prejudice Against Ai And The Mistrust Of Technology, James Hutson, Daniel Plate

Faculty Scholarship

The mistrust of AI seen in the media, industry and education reflects deep-seated cultural anxieties, often comparable to societal prejudices like racism and sexism. Throughout history, literature and media have portrayed machines as antagonists, amplifying fears of technological obsolescence and identity loss. Despite the recent remarkable advancements in AI—particularly in creative and decision-making capacities—human resistance to its adoption persists, rooted in a combination of technophobia, algorithm aversion, and cultural narratives of dystopia. This review investigates the origins of this prejudice, focusing on the parallels between current attitudes toward AI and historical resistance to new technologies. Drawing on examples from popular …

From Concept To Creation: The Role Of Generative Artificial Intelligence In The New Age Of Digital Marketing, Andrew Smith, James Hutson

Faculty Scholarship

Artificial intelligence (AI) has been extensively used in digital marketing. Still, the recent advances in generative AI (GAI) have revolutionized social media marketing and content creation, lowering barriers that once restricted high-quality design to professionals well versed in expensive and complex software like Adobe Suite. GAI tools enable anyone, from students to marketers, to generate logos, branding, and multimedia content without extensive training. This shift has empowered more people to engage in creative expression, expanding the pool of ideas and creativity. However, the abundance of AI-generated content raises questions about the evolving definition of “art” and the emergence of a …