Digital Commons Network^™

Vaccine Development, The China Dilemma, And International Regulatory Challenges, Peter K. Yu

Faculty Scholarship

This article examines the role played by China in the development of international regulatory standards at the intersection of intellectual prop- erty, international trade, and public health. It begins by briefly discussing the role China has played in the global health arena during the COVID-19 pandemic. The article then highlights the difficulty in determining how best to engage with the country in the development of new international regula- tory standards. It shows that the preferred method of engagement will likely depend on one’s perspective on China’s potential contributions and hin- drances: a perspective that focuses on global competition—in the economic, …

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

The Ever-Shifting Ground Of Pretrial Detention Reform, Jenny E. Carroll

Faculty Scholarship

In the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area.

Policing Protest: Speech, Space, Crime, And The Jury, Jenny E. Carroll

Faculty Scholarship

Speech is more than just an individual right—it can serve as a catalyst for democratically driven revolution and reform, particularly for minority or marginalized positions. In the past decade, the nation has experienced a rise in mass protests. However, dissent and disobedience in the form of such protests is not without consequences. While the First Amendment promises broad rights of speech and assembly, these rights are not absolute. Criminal law regularly curtails such rights—either by directly regulating speech as speech or by imposing incidental burdens on speech as it seeks to promote other state interests. This Feature examines how criminal …

Amazon's Pricing Paradox, Rory Van Loo, Nikita Aggarwal

Faculty Scholarship

Antitrust scholars have widely debated the apparent paradox of Amazon seemingly wielding monopoly power while offering low prices to consumers. A single company’s behavior thereby helped spark an intellectual renaissance as scholars debated why Amazon’s prices were so low, whether antitrust enforcers should intervene, and, eventually, how the field should be reformed for the era of large online platforms. One of the few things that all parties have agreed upon amidst those contentious conversations is that Amazon offers low prices. This Article challenges that assumption by demonstrating that Amazon charges higher prices than commonly understood. More importantly, unraveling the disconnect …

Toward A Liberal Common Good Constitutionalism For Polarized Times, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

In Common Good Constitutionalism, Adrian Vermeule urges his fellow conservatives to change the way they think about the American Constitution. Instead of maintaining a constitutionalism that emphasizes aggregating popular preferences, limiting government, and securing individual rights, he promotes a constitutionalism that emphasizes the common good and cultivates the attitudes and competences requisite to its pursuit. For the common good constitutionalist, a government is established primarily to do good things for people. It envisions an active government, including a strong president, a strong administrative state, and judges exercising reasoned judgment about which results would contribute to the general welfare, correctly understood, …

Continuous Reproductive Surveillance, Michael Ulrich, Leah R. Fowler

Faculty Scholarship

The Dobbs opinion emphasizes that the state’s interest in the fetus extends to “all stages of development.” This essay briefly explores whether state legislators, agencies, and courts could use the “all stages of development” language to expand reproductive surveillance by using novel developments in consumer health technologies to augment those efforts.

Introduction: Securing Reproductive Justice After Dobbs, Aziza Ahmed, Nicole Huberfeld, Linda C. Mcclain

Faculty Scholarship

When we conceptualized this symposium, Roe v. Wade was still the law of the land, albeit precariously. We aimed to commemorate its fiftieth anniversary by exploring historical, legal, medical, and related dimensions of access to abortion as well as the challenges ahead to secure reproductive justice. With the leak of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization on May 2, 2022, we shifted to mark the dawn of a new era. In the nearly identical official opinion announced on June 24, 2022, Justice Samuel Alito, writing for the majority (6-3), overturned Roe and Planned Parenthood …

Silencing Litigation Through Bankruptcy, Pamela Foohey, Christopher K. Odinet

Faculty Scholarship

Bankruptcy is being used as a tool for silencing survivors and their families. When faced with claims from multiple plaintiffs related to the same wrongful conduct that can financially or operationally crush the defendant over the long term—a phenomenon we identify as onslaught litigation—defendants harness bankruptcy’s reorganization process to draw together those who allege harm and pressure them into a swift, universal settlement. In doing so, they use the bankruptcy system to deprive survivors of their voice and the public of the truth. This Article identifies this phenomenon and argues that it is time to rein in this destructive use …

Hydra: Lessons From The World's Largest Darknet Market, Priyanka Goonetilleke, Alex Knorre, Artem Kuriksha

Faculty Scholarship

Research Summary

We present a comprehensive description of Hydra, the largest darknet marketplace in the world until its shutdown in April 2022. We document the main features of Hydra such as dead-drop delivery, feedback and reputation system, escrow, and dispute resolution. Using data scraped from the platform, we quantitatively examine the scale and the structure of the marketplace. We find that it has been highly competitive, geographically covering at least 69% of the Russian population and trading a wide variety of drugs, while also allowing the wholesale trade of drugs and precursors. The dead-drop delivery system used on Hydra was …

Originalism After Dobbs, Bruen, And Kennedy: The Role Of History And Tradition, Randy E. Barnett, Lawrence B. Solum

Faculty Scholarship

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Ass’n v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the test for the consistency of state action with the Establishment Clause.

These cases raise important questions about …

Using Multiple Lenses To See An Invisible Group, Kathleen J. Farkas, Jaroslaw Richard Romaniuk

Faculty Scholarship

Social work in Poland and in the United States shares the values of human dignity and self-determination, but there are often value conflicts in terms of how various groups experience social roles and social expectations. This paper explores the use of multiple lenses to understand the past and current conditions for LGBT+ people in Poland. An international, university-level collaboration uses a framework of “invisible groups” to highlight the needs of those who are on the margins of society and whose human and individual rights are suppressed. The article reviews the results of a recently published on-line survey of LGBT+ populations …

Modified Newtonian Dynamics As An Alternative To The Planet Nine Hypothesis, Harsh Mathur

Faculty Scholarship

A new class of Kuiper Belt objects (KBOs) that lie beyond Neptune with semimajor axes greater than 250 astronomical units show orbital anomalies that have been interpreted as evidence for an undiscovered ninth planet. We show that a modified gravity theory known as modified Newtonian dynamics (MOND) provides an alternative explanation for the anomalies using the well-established secular approximation. We predict that the major axes of the orbits will be aligned with the direction toward the Galactic center and that the orbits cluster in phase space, in agreement with observations of KBOs from the new class. Thus, MOND, which can …

Exploring The Effectiveness Of Virtual Reality Role-Playing In Debating Repatriation Of Artworks In Active Learning Art History Classes, James Hutson, Trent Olsen

Faculty Scholarship

This paper addresses the pressing issue of repatriation debates for artworks, heightened by notable instances like the return of the Benin Bronzes and discussions around the Elgin Marbles. Given the challenges in conducting effective classroom debates on such sensitive topics due to the pandemic, generational shifts in learning preferences, and increased student anxiety, this study identifies a gap in the integration of active learning strategies in a virtual setting. The primary aim of this research is to examine the efficacy of virtual reality role-playing games (VR-RPGs) in enhancing student engagement, immersion, presence, and learning outcomes within a virtual learning environment …

Care Work, Gender Equality, And Abortion: Lessons From Comparative Feminist Constitutionalism, Linda C. Mcclain

Faculty Scholarship

Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It (2023).

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment …

Prevalence Of Adulteration In Dietary Supplements And Recommendations For Safe Supplement Practices In Sport, Andrew R. Jagim, Patrick Harty, Jacob L. Erickson, Grant M. Tinsley, Dan Garner, Andrew J. Galpin

Faculty Scholarship

The prevalence of dietary supplement use among athletes continues to rise with 60–80% of athletes often reporting current or previous use of dietary supplements. While select dietary ingredients have been shown to improve acute performance and enhance training adaptations over time, it is important to still consider the risk vs. reward for athletes before opting to consume a dietary supplement. Previous work has indicated that certain dietary supplements may pose risks for inadvertent doping, may be susceptible to mislabelling, could be banned by certain governing bodies of sport, or pose health risks for certain populations. The purpose of the current …

Perceptions And Barriers To Adopting Artificial Intelligence In K-12 Education: A Survey Of Educators In Fifty States, Karen Woodruff, James Hutson, Kathryn Arnone

Faculty Scholarship

Artificial Intelligence (AI) is making significant strides in the field of education, offering new opportunities for personalized learning and access to education for a more diverse population. Despite this potential, the adoption of AI in K-12 education is limited, and educators’ express hesitancy towards its integration due to perceived technological barriers and misconceptions. The purpose of this study is to examine the perceptions of K-12 educators in all 50 states of the USA towards AI, policies, training, and resources related to technology and AI, their comfort with technology, willingness to adopt new technologies for classroom instruction, and needs assessment for …

To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.

This Article contends that the current approach to democratization is …

Shared Cinematic Experience And Emerging Technologies: Integrating Mixed-Reality Components For The Future Of Cinema, James Hutson

Faculty Scholarship

The enduring appeal of traditional cinema viewing in the face of alternative experiences, including streaming services and emerging technologies, such as extended reality, is rooted in its esthetic, cultural, and social significance. While the psychological appeal of shared cinematic experiences has gained attention in scholarship, there is a need to further explore the potential enhancement of these experiences through the integration of immersive technologies. The communal nature of cinema fosters social connection, especially in a post-pandemic context marked by widespread social isolation. This study highlights the psychological benefits of shared cinematic experiences and emphasizes the next phase of cinematic evolution, …

Federalism, Leadership, And Covid-19: Evolving Lessons For The Public’S Health, Nicole Huberfeld

Faculty Scholarship

The COVID-19 pandemic has had an enduring effect across the entire spectrum of law and policy, in areas ranging from health equity and racial justice, to constitutional law, the law of prisons, federal benefit programs, election law and much more. This collection provides a critical reflection on what changes the pandemic has already introduced, and what its legacy may be. Chapters evaluate how healthcare and government institutions have succeeded and failed during this global 'stress test,' and explore how the US and the world will move forward to ensure we are better prepared for future pandemics. This timely volume identifies …

Populist Constitutionalism, Anya Bernstein, Glen Staszewski

Faculty Scholarship

A Supreme Court majority has expressed hostility to administrative agencies. Yet, as this Article explains, agencies provide the primary site in our government for pluralistic contestation among disparate policy views. A political vision we identify as agonistic republicanism—a convergence among deliberative democrats, republican theorists, and agonism supporters—places such multilateral deliberation and debate among differing social groups at the foundation of democracy. A contrary vision, authoritarian populism, imagines a single leader embodying the will of a unified people with little use for the institutional mediation of divergent perspectives. This view, prominent in politics, enters legal theory through the rhetoric of judicial …

Additional Comments On Preliminary Draft 9, Jane C. Ginsburg

Faculty Scholarship

I am adding to the comments submitted by Profs. Balganesh, Menell and myself a list of points in PD9 that I believe require correction or clarification. These comments do not include Chapters 8, 10 or 11.

Self-Assessment Tool (Sat) For Improving How Higher Education Institutions And Stem Units Address Sexual Harassment By Faculty And Administrators, Susan Saab Fortney, Theresa Morris

Faculty Scholarship

Based on their systematic review of studies related to sexual harassment and higher education, researchers describe sexual harassment as an epidemic in higher education that constitutes one of the major challenges to an inclusive work and study environment. Persons involved in addressing sexual harassment recognize the extremely high institutional and individual costs associated with dealing with sexual harassment. Rather than reacting to sexual harassment that occurs, this Self-Assessment Tool assists institutions in examining and improving how they prevent and address sexual harassment.

The tool focuses on issues related to sexual harassment by faculty, administrators, and persons in supervisory positions, including …

Movement On Removal: An Emerging Consensus On The First Congress, Jed Shugerman

Faculty Scholarship

What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.

Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?

The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …

Two Decades Of Trips In China, Peter K. Yu

Faculty Scholarship

This chapter reviews China’s engagement with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in the past twenty years. It begins by highlighting TRIPS-related developments in the first decade of China’s WTO membership. The chapter then discusses the country’s ‘innovative turn’ in the mid-2000s and the ramifications of its changing policy positions. This chapter continues to examine the US-China trade war, in particular the second TRIPS complaint that the United States filed against China in March 2018. It concludes with observations about the impact of the TRIPS Agreement on China, China’s impact on that agreement and how the …

Comments On Preliminary Draft 9, Shyamkrishna Balganesh, Jane C. Ginsburg, Peter S. Menell

Faculty Scholarship

We are writing to offer our views on Preliminary Draft No. 9 (“PD9”) and express our deep and persistent concern about the direction and methodology that the Project continues to take, which we have sought to address and remedy at multiple points over the last several years. The elements of PD9 that we describe below are, in our view, particularly striking illustrations of the problems that we have previously identified. The gravity and salience of PD9’s problems are borne out in the comments of Judge Pierre Leval, who describes elements of the draft as requiring “a substantial editing and rewriting.” …

Thermoresponsive Polymers With Lcst Transition: Synthesis, Characterization, And Their Impact On Biomedical Frontiers, Yichun Yuan, Konpal Raheja, Nathalie B. Milbrandt, Sophia Beilharz, Steffy Tene, Solomon Oshabaheebwa, Umut A. Gurkan, Anna Cristina S. Samia, Metin Karayilan

Faculty Scholarship

Advances in thermoresponsive materials have significantly impacted many biomedical fields. The unique behavior of reversible phase transition close to the physiological temperatures makes these types of materials a great candidate for a wide variety of biomedical applications including bioimaging, biosensing, injectables, smart surfaces, adhesives, biomanufacturing, and tissue engineering. Thermoresponsive behavior, mainly lower critical solution temperature (LCST) can be easily tuned by shifting the balance between hydrophobicity and hydrophilicity (e.g., by using comonomers or changing end groups) and modifying the molecular weight and architecture of the polymer. Hence, synthetic and characterization tools are critical in tailoring and precisely determining these properties. …

Measuring Galaxy Cluster Mass Profiles Into The Low-Acceleration Regime With Galaxy Kinematics, Pengfei Li, Stacy S. Mcgaugh

Faculty Scholarship

We probed the dynamical mass profiles of ten galaxy clusters from the HIghest X-ray FLUx Galaxy Cluster Sample (HIFLUGCS) using galaxy kinematics. We numerically solved the spherical Jeans equation and parameterize the dynamical mass profile and the galaxy velocity anisotropy profile using two general functions to ensure that our results are not biased toward any specific model. The mass-velocity anisotropy degeneracy is ameliorated by using two virial shape parameters that depend on the fourth moment of velocity distribution. The resulting velocity anisotropy estimates consistently show a nearly isotropic distribution in the inner regions, with an increasing radial anisotropy toward large …

Aether Scalar Tensor Theory Confronted With Weak Lensing Data At Small Accelerations, Tobias Mistele, Stacy S. Mcgaugh

Faculty Scholarship

Context. The recently proposed aether scalar tensor (AeST) model reproduces both the successes of particle dark matter on cosmological scales and those of modified Newtonian dynamics (MOND) on galactic scales. But the AeST model reproduces MOND only up to a certain maximum galactocentric radius. Since MOND is known to fit very well to observations at these scales, this raises the question of whether the AeST model comes into tension with data. Aims. We tested whether or not the AeST model is in conflict with observations using a recent analysis of data for weak gravitational lensing. Methods. We solved the equations …

Community Members’ Experiences Training As Medical Journal Reviewers, Jeri Jewett-Tennant, Kurt C. Stange, Ashwini R. Sehgal

Faculty Scholarship

Purpose: Although medical research dissemination is intended to benefit members of society, few members of society actually participate in the process of publishing findings. This study shares findings from community members’ (including patients and the public) experiences being trained as medical journal reviewers. Methods: We analyzed findings from two focus group interviews of community reviewers (N = 29) to identify themes in their experiences with the training program. Results: Community members trained as journal reviewers appreciated learning the context under which manuscript development and review occur from authors and funders, the value of the community member perspectives to science, and …