Digital Commons Network^™

Self-Defense And Political Rage, Erin L. Sheley

Faculty Scholarship

This Article considers how American political polarization and the substantive issues driving it raise unique challenges for adjudicating self-defense claims in contexts of political protest. We live in an age where roughly a quarter of the population believes it is at least sometimes justifiable to use violence in defense of political positions, making political partisans somewhat more likely to pose a genuine threat of bodily harm to opponents. Furthermore, the psychological literature shows that people are more likely to perceive threats from people with whom they politically disagree and that juries tend to evaluate reasonableness claims according to their own …

Implementing Aba Standard 303(B)(3): Positive Legal Education Through A Community Of Inquiry, Joshua Aaron Jones

Faculty Scholarship

According to William Adams, Executive Director of Legal Education and Bar Admissions at the American Bar Association (ABA), “Full implementation [of 303(b)(3)] [was] expected by 2023.” The revised Standard requires that law schools provide “substantial opportunities” for professional identity development (PID). Though the ABA’s Standards and Rules of Procedure for Approval of Law Schools and the related interpretations allow flexibility, the ABA left law schools without detailed guidance; without a unified professional identity concept, law schools across the country will implement a patchwork of programs, some stronger than others, that may curtail a global strengthening of the profession. Fortunately, scholars …

Mutiny For A Bounty, Emily Strauss, Joseph A. Grundfest

Faculty Scholarship

Experience teaches that attorneys may violate duties of confidentiality and trust to pursue personal gain. Multiple insider trading, embezzlement, and fraud prosecutions prove the point. The Dodd-Frank Act of 2010 establishes a bounty regime whereby certain whistleblowers are eligible for awards of 10%–30% of Securities and Exchange Commission (“SEC”) enforcement recoveries exceeding $1 million. Since its inception, this program has paid at least 207 whistleblowers more than $1 billion. The Commission’s bounty program thus may be a meaningful inducement to breach privilege.

The SEC asserts that its whistleblower authority preempts state law and that it can accept attorney–client privileged information. …

Multi-Strain Probiotic Improves Subjective Sleep Quality With No Impact On Body Composition, Hemodynamics, And Physical Activity, Chad Kerksick, Jessca Moon, Kylie Walden, Anthony Hagele, L. E. Allen, Connor J. Gaige, Joesi M. Krieger, Ralf Jäger, Marco Pane, Petey Mumford

Faculty Scholarship

The objective of the study was to examine the impact of a multi-strain probiotic (MSP) on sleep, physical activity, and body composition changes. We used a randomised, double-blind, placebo-controlled approach with 70 healthy men and women (31.0 ± 9.5 years, 173.0 ± 10.4 cm, 73.9 ± 13.8 kg, 24.6 ± 3.5 kg/m2) supplemented daily with MSP (4 × 109 live cells Limosilactobacillus fermentum LF16, Lacticaseibacillus rhamnosus LR06, Lactiplantibacillus plantarum LP01, and Bifidobacterium longum 04; Probiotical S.p.A., Novara, Italy) or placebo (PLA). In response to supplementation (after 0, 2, 4, and 6 weeks of supplementation) and 3 weeks after stopping supplementation, …

Intentional Parenthood, Contingent Fetal Personhood, And The Right To Reproductive Self-Determination, Laura D. Hermer

Faculty Scholarship

This Article argues that intent should govern legal parenthood, regardless of the method of conception, the person’s biological or genetic relationship to the resulting embryo/fetus, or the person’s gender. This proposition is not new. This Article adds to scholarly discourse by extending the concept: Intent should not just determine parenthood, but also fetal rights. When a pregnant person establishes their procreational intent (or lack thereof) prior to birth, then both the existence (or lack thereof) of legal protections for the embryo/fetus and the gestator’s rights and duties (or lack thereof) should flow from this intent. Non-gestating gamete contributors would do …

If Not Here, Where?: Transnational Litigation Against U.S. Tech Giants Around The World, Pamela K. Bookman

Faculty Scholarship

In recent suits around the world against U.S. tech giants-e.g., litigation in Canada against Twitter (now X), in Kenya against Facebook, and in Europe against Google-plaintiffs urge foreign courts to adapt concepts like specific personal jurisdiction in flexible ways to allow litigation to proceed. In their defense, the U.S. companies are reusing the argument that similarly situated defendants successfully deployed in U.S. courts over the last few decades-that the cases are too foreign and do not belong in these courts. But these defendants have lost their home court advantage. They find themselves in courts with closer ties to the disputes …

Covid-19 Pediatric Vaccine Authorization, Fda Authority, And Individual Misperception Of Risk, Joanna K. Sax, Neal Doran

Faculty Scholarship

Vaccines are one component to the public health strategies to alleviate the COVID-19 pandemic. Hesitancy regarding COVID-19 vaccines in the United States has been problematic, which is not surprising given increasing overall vaccine hesitancy in recent decades. Most vaccines are administered during childhood years. Consequently, understanding hesitancy toward administration of vaccines in this age group may provide insight into possible interventions to reduce vaccine hesitancy. The present study analyzed a subset of over 130,000 public comments posted in response to a notice of meeting of the vaccine advisory group to the Food and Drug Administration. The meeting addressed whether to …

Is There A Presumption Against Wealth Taxation?, Linda Sugin

Faculty Scholarship

No abstract provided.

Bespoke Regulation Of Artificial Intelligence, Brenda M. Simon

Faculty Scholarship

The decision to regulate artificial intelligence (AI) has far reaching consequences. Determining how to address budding applications of AI technology should depend on their effects. This article describes how regulation should be carefully tailored to avoid harm while maximizing social welfare, building on Orly Lobel's taxonomy of regulatory tools. Part I examines the foundational difficulties in governing AI, including industry influence in regulation and deficiencies in enforcement. Part II elaborates on Lobel's framework, detailing the benefits and limitations of a variety of tools, such as voluntary standards, soft law mechanisms, and public-private partnerships. It describes how bringing in diverse stakeholders …

Natural Language Processing And Neurosymbolic Ai: The Role Of Neural Networks With Knowledge-Guided Symbolic Approaches, Emily Barnes, James Hutson

Faculty Scholarship

Neurosymbolic AI (NeSy AI) represents a groundbreaking approach in the realm of Natural Language Processing (NLP), merging the pattern recognition of neural networks with the structured reasoning of symbolic AI to address the complexities of human language. This study investigates the effectiveness of neurosymbolic AI in providing nuanced understanding and contextually relevant responses, driven by the need to overcome the limitations of existing models in handling complex linguistic tasks and abstract reasoning. Employing a hybrid methodology that combines multimodal contextual modeling with rule-governed inferences and memory activations, the research delves into specific applications like Named Entity Recognition (NER), where architectures …

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, John E. Lopatka, Jeffrey H. Kahn

Faculty Scholarship

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 100th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions.

Proponents of a rule that awards should reflect taxation and …

Competition And Congestion In Trademark Law, Christopher Buccafusco, Jonathan S. Masur, Mark P. Mckenna

Faculty Scholarship

Trademark law exists to promote competition. If consumers know which companies make which products, they can more easily find the products they actually want to purchase. Trademark law has long treated “source significance”—the fact that a particular trademark is identified with a particular producer—as both necessary and sufficient for establishing a valid trademark. That is, trademark law has traditionally viewed source significance as the only necessary precondition for a trademark being pro-competitive. In this Article, we argue that this equation of source significance and pro-competitiveness is misguided. Some marks use words that are so closely connected with the product being …

Evidence-Based Transitional Justice: Incorporating Public Opinion Into The Field, With New Data From Iraq And Ukraine, Mara Revkin, Ala Alrababah, Rachel Myrick

Faculty Scholarship

The field of “transitional justice” refers to a range of processes and mechanisms for accountability, truth-seeking, and reconciliation that governments and communities pursue in the aftermath of major societal traumas, including civil war, mass atrocities, and authoritarianism. This relatively new field emerged in the 1980s as scholars, practitioners, and policymakers looked for guidance to support post-authoritarian and post-communist transitions to democracy in Eastern Europe and Latin America. Since then, the field has grown rapidly—so rapidly that it is outpacing its capacity to learn from past mistakes. Recent methodological advances in the study of public attitudes about transitional justice through quantitative …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Too Young To Suspend: Ending Early Grade School Exclusion By Applying Lessons From The Fight To Increase The Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

In many respects, the evolution of juvenile court reform and school discipline reform follow similar trajectories. This Article begins by tracking those respective evolutions. Part I outlines the evolution of the juvenile court system in the United States and focuses on the fledgling system’s distinction of children from adults and its “rehabilitative ideal” that children could outgrow challenging behavior if given the right treatment and services. After a long period of “adultification” of the juvenile court in response to rising crime rates, more recent reform efforts have focused on returning to the early court’s rehabilitative model, including policies that would …

The Limits Of Individual Prosecutions In Deterring Corporate Fraud, Samuel W. Buell

Faculty Scholarship

Fifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual …

U.S. Public Perceptions Of The Sensitivity Of Brain Data, Shenyang Huang, Umika Paul, Shikhar Gupta, Karan Desai, Melinda Guo, Jennifer Jung, Beatrice Capestany, William D. Krenzer, Dylan Stonecipher, Nita A. Farahany

Faculty Scholarship

As we approach an era of potentially widespread consumer neurotechnology, scholars and organizations worldwide have started to raise concerns about the data privacy issues these devices will present. Notably absent in these discussions is empirical evidence about how the public perceives that same information. This article presents the results of a nationwide survey on public perceptions of brain data, to inform discussions of law and policy regarding brain data governance. The survey reveals that the public may perceive certain brain data as less sensitive than other ‘private’ information, like social security numbers, but more sensitive than some ‘public’ information, like …

Evaluating Pre-Trial Programs Using Interpretable Machine Learning Matching Algorithms For Causal Inference, Travis Seale-Carlisle, Saksham Jain, Courtney Lee, Caroline Levenson, Swathi Ramprasad, Brandon Garrett, Sudeepa Roy, Cynthia Rudin, Alexander Volfovsky

Faculty Scholarship

After a person is arrested and charged with a crime, they may be released on bail and required to participate in a community supervision program while awaiting trial. These ‘pretrial programs’ are common throughout the United States, but very little research has demonstrated their effectiveness. Researchers have emphasized the need for more rigorous program evaluation methods, which we introduce in this article. We describe a program evaluation pipeline that uses recent interpretable machine learning techniques for observational causal inference, and demonstrate these techniques in a study of a pre-trial program in Durham, North Carolina. Our findings show no evidence that …

Judging Firearms Evidence, Brandon L. Garrett, Eric Tucker, Nicholas Scurich

Faculty Scholarship

Firearms violence results in hundreds of thousands of criminal investigations each year. To try to identify a culprit, firearms examiners seek to link fired shell casings or bullets from crime scene evidence to a particular firearm. The underlying assumption is that firearms impart unique marks on bullets and cartridge cases, and that trained examiners can identify these marks to determine which were fired by the same gun. For over a hundred years, firearms examiners have testified that they can conclusively identify the source of a bullet or cartridge case. In recent years, however, research scientists have called into question the …

King, Christian Ethics, And The Promise Of Positive Fundamental Rights, H. Timothy Lovelace Jr., Patrick T. Smith

Faculty Scholarship

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and …

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

Integrating Art And Ai: Evaluating The Educational Impact Of Ai Tools In Digital Art History Learning, James Hutson

Faculty Scholarship

This study delves into the burgeoning intersection of Artificial Intelligence (AI) and art history education, an area that has been relatively unexplored. The research focuses on how AI art generators impact learning outcomes in art history for both undergraduate and graduate students enrolled in Ancient Art courses, covering eras from ancient Mesopotamia to the fall of Rome. Utilizing a mixed-methods approach, the study analyzes AI-generated artworks, reflective essays, and survey responses to assess how these generative tools influence students’ comprehension, engagement, and creative interpretation of historical artworks. The study reveals that the use of AI tools in art history not …

Illegitimate Families, Susan Hazeldean

Faculty Scholarship

No abstract provided.

Mass Accommodations: Signposts To A Hidden Jurisprudence, Shirley Lin

Faculty Scholarship

No abstract provided.

Consent And Disagreement, Aditi Bagchi

Faculty Scholarship

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version …

Earlier Use Of Long-Acting Injectable Paliperidone Palmitate Once-Monthly Versus Oral Antipsychotics In Patients With Schizophrenia: An Integrated Patient-Level Meta Analysis Of The Prosipal And Pride Studies, Martha Sajatovic

Faculty Scholarship

Purpose: A previous integrated patient-level analysis demonstrated a significant benefit of implementing once-monthly injectable paliperidone palmitate (PP1M) earlier in the treatment course for schizophrenia. Earlier therapeutic interventions during the first 3–5 years after disease onset can positively impact long-term outcomes in schizophrenia. This present analysis evaluated the risk of relapse both overall and by different durations of illness (0–3 years, >3–5 years, and >5 years from diagnosis) in adult patients with schizophrenia who received PP1M or oral antipsychotics (OAPs). Patients and Methods: This analysis included integrated patient-level data from the Paliperidone Palmitate Research in Demonstrating Effectiveness (PRIDE) and Prevention of …

A Roadmap For Sex Workers’ Rights Reform: Lessons Learned From Recent Legal Advancements, Chi Adanna Mgbako

Faculty Scholarship

The past decade has witnessed unprecedented growth in the legal recognition of sex workers’ rights. Recent legislation and court judgments strengthening sex workers’ rights protections have occurred in the Australian jurisdictions of the Northern Territory, Queensland, and Victoria, as well as in Belgium, India, and Malawi. These legal advancements conform with the goals of the global sex workers’ rights movement. They include newly decriminalized legal frameworks governing sex work, groundbreaking labor and anti-discrimination protections for sex workers, the striking down of vagrancy laws that indirectly target sex workers, and judicial directives on state protection of sex workers’ rights. Despite the …

Beyond Implicit Bias, Thomas Albright, William A. Darity Jr., Diana Dunn Dunn, Rayid Ghani, Deena Hayes-Greene, Tanya K. Hernandez, Sheryl Heron

Faculty Scholarship

In their introduction to this edition of Dædalus, Goodwin Liu and Camara Phyllis Jones write that “it is unlikely that implicit bias can be effectively addressed by cognitive interventions alone, without broader institutional, legal, and structural reforms.” They note that the genesis for the volume was a March 2021 workshop on the science of implicit bias convened by the Committee on Science, Technology, and Law of the National Academies of Sciences, Engineering, and Medicine. That workshop provided an opportunity to demonstrate that implicit bias is a common form of cognitive processing that develops in response to social, cultural, and …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …