Digital Commons Network^™

Inside The Black Box Of Prosecutor Discretion, Shima Baradaran Baughman, Megan S. Wright, Christopher T. Robertson

Faculty Scholarship

In their charging and bargaining decisions, prosecutors have unparalleled and nearly-unchecked discretion that leads to incarceration or freedom for millions of Americans each year. More than courts, legislators, or any other justice system player, in the aggregate prosecutors’ choices are the key drivers of outcomes, whether the rates of mass incarceration or the degree of racial disparities in justice. To date, there is precious little empirical research on how prosecutors exercise their breathtaking discretion. We do not know whether they consistently charge like cases alike or whether crime is in the eye of the beholder. We do not know what …

Creating Lightbulb Moments: Developing Higher-Order Thinking In Family Law Classrooms Through Court Observations, Sonia Gipson Rankin

Faculty Scholarship

This article fills a critical gap in the family law literature by arguing that teaching doctrinal family law in conjunction with the application of established learning theory and pedagogy yields a deeper engagement with the subject matter and leads to more practice-ready lawyers. ABA Standards 301, 303, and 304 do not clearly articulate the distinction between experiential education and experiential learning; doctrinal law classrooms are often bereft of experiential learning activities. By incorporating active learning and inclusive pedagogy in the doctrinal classroom and following recommendations from the MacCrate Report and Family Law Education Reform Project, students will be better prepared …

Against Political Speech, John M. Kang

Faculty Scholarship

The Supreme Court has dedicated itself to the proposition that political speech, more than any other category of speech, is deserving of the highest protection. A succession of cases amply supports this proposition. In Virginia v. Black, the Court announced that "lawful political speech [is] at the core of what the First Amendment is designed to protect." The Court similarly declared in Monitor Patriot Co. v. Roy that the First Amendment "has its fullest and most urgent application" to political speech. In McIntyre v. Ohio Elections Commission, the Court held that "handing out leaflets in the advocacy of …

Sheriffs, State Troopers, And The Spillover Effects Of Immigration Policing, Huyen Pham, Pham Hoang Van

Faculty Scholarship

As the Biden Administration decides whether to continue the 287(g) program (the controversial program deputizing local law enforcement officers to enforce federal immigration laws), our research shows that the program has broader negative effects on policing behavior than previously identified. To date, debate about the 287(g) program has focused exclusively on the policing behavior of law enforcement agencies like sheriff’s offices that sign the agreements, and on concerns that these signatory local enforcement agencies (“LEAs”) engage in racial profiling. Our research shows that the agreements also negatively affect the behavior of nearby, nonsignatory law enforcement agencies. Using 18 million traffic …

Infusing Leadership Competencies Into 1l Professional Identity Formation, Aric Short

Faculty Scholarship

Law schools across the country are beginning to address the growing need to incorporate leadership training into their curricula; however, very few explicitly cover leadership in the 1L year. This article argues for the value of providing leadership training to 1Ls as part of a required course on professional identity formation. Because foundational leadership concepts overlap in meaningful ways with core lawyering competencies, such integration is both practical and efficient. Beginning leadership in the 1L year allows law schools to build on that foundational material in later clinics, externships, upper-level classes, and other experiences, creating deeper leadership skills in their …

Teaching And Assessing Active Listening As A Foundational Skill For Lawyers As Leaders, Counselors, Negotiators, And Advocates, Lindsey P. Gustafson, Aric Short, Neil W. Hamilton

Faculty Scholarship

Our students will be more effective leaders, counselors, negotiators, and advocates as they deepen their ability to actively listen. As a professional and interpersonal skill linked closely with a lawyer’s success, our students’ ability to listen should demand our attention as legal educators. This attention is worth the effort because studies indicate active listening is not a static ability: we can teach students to be better listeners. But “active listening” is missing from most law schools’ learning outcomes or curricula, or it is only included as an undefined element of effective communication. Consequently, it is a critical lawyering skill that …

The Long And Winding Road To Effective Copyright Protection In China, Peter K. Yu

Faculty Scholarship

In November 2020, China adopted the Third Amendment to the Copyright Law, providing a major overhaul of its copyright regime. This Amendment entered into effect on June 1, 2021. The last time the regime was completely revamped was in October 2001, when the Copyright Law was amended two months before China joined the World Trade Organization. While U.S. policymakers and industry groups have had mixed reactions to the recent Amendment, the new law presents an opportunity to take stock of the progress China has made in the copyright reform process. This Article begins by mapping the long and winding road …

Transplanting Anti-Suit Injunctions, Peter K. Yu, Jorge L. Contreras, Yu Yang

Faculty Scholarship

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering the proceedings in those courts. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation. The …

Transboundary Aquifers, Raya Marina Stephan, Alice Aureli, Aurélien Dumont, Annukka Lipponen, Sarah Tiefenauer-Linardon, Christina Fraser, Alfonso Rivera, Shammy Puri, Stefano Burchi, Gabriel Eckstein, Christian Brethaut, Ziad Khayat, Karen Villholth, Lesha Witmer, Renee Martin-Nagle, Anita Milman, Francesco Sindico, James Dalton

Faculty Scholarship

This chapter gives an overview of the status of transboundary aquifers and the cooperation related to shared groundwater resources, highlighting the complexity of the assessment, analysis and management of these systems. It summarizes the main challenges regarding transboundary aquifers and the need for more comprehensive and integrated management, which would include technical, legal and organizational aspects as well as training and cooperation.

Groundwater Policy And Planning, Jenny Grönwall, Marianne Kjellén, Gabriel Eckstein, Kerstin Danert, Lesha Witmer, Rebecca Welling, Viviana Re, Katharina Davis, Lulu Zhang

Faculty Scholarship

Groundwater policy defines objectives, ambitions and priorities for managing groundwater resources, for the benefit of society. Planning translates policy into programmes of action. Both are often part of a wider water resource policy and planning framework, but the specific challenges pertaining to groundwater have traditionally received less attention than surface water.

The terms ‘policy,’ ‘strategy’ and ‘plans’ are used interchangeably in many countries and contexts.

Legal And Other Institutional Aspects Of Groundwater Governance, Jenny Grönwall, Marianne Kjellén, Alice Aureli, Stefano Burchi, Mohamed Bazza, Raya Marina Stephan, Gabriel Eckstein, Lesha Witmer, Margreet Zwarteveen, Aurélien Dumont, Danielle Gaillar-Picher, Rio Hada, Rebecca Welling, Maki Tsujimura

Faculty Scholarship

This chapter defines the linked concepts of groundwater governance and groundwater management, explaining how they differ from each other. Then, it describes the prevailing legal instruments for, and the institutional aspects of, groundwater management and governance.

Judicial Philosophy 2022: Ethics & Professionalism In Appellate Decision-Making, Verónica C. Gonzales

Faculty Scholarship

Handout

Virtual Continuing Legal Education Program, Judicial Education Center, University of New Mexico School of Law

Judicial philosophy often plays a role in judicial appointments and elections. Members of the public ask candidates about their approach to the decision-making and law-making functions of the courts. The panel will delve into the ethical implications and challenges of serving on a court whose primary functions are error correction, statutory and regulatory interpretation, determinations of public policy, and development of common law. In discussing their personal philosophies and the challenges of deciding cases in panels, the panelists will also emphasize the impact of …

Low Voltage-Guided Ablation Of Posterior Wall Improves 5-Year Arrhythmia-Free Survival In Persistent Atrial Fibrillation, Ahmad Jabri, Soufian T. Almahameed, Ohad Ziv

Faculty Scholarship

Introduction: The posterior wall (PW) has been proposed as a standard target for ablation beyond pulmonary vein antral isolation (PVI) in patients with persistent atrial fibrillation (AF). However, studies have shown inconsistent outcomes with the addition of PW ablation. The presence or absence of low voltage on the PW may explain these inconsistencies. We evaluated whether PW ablation based on the presence or absence of low voltage improves long-term arrhythmia-free outcomes. Methods: We retrospectively reviewed 5-year follow-up in 152 consecutive patients who received either standard ablation (SA) with PVI alone or PVI + PW ablation (PWA) based on physician discretion …

Accountability As A Key Virtue In Mental Health And Human Flourishing, John R. Peteet, Charlotte Witvliet, C. Stephen Evans

Faculty Scholarship

We propose that accountability plays an implicit, important, and relatively unexamined role in psychiatry. People generally think of accountability as a relation in which one party is held accountable by another. In this paper, we examine accountability as a virtue, drawing on philosophy, psychiatry, and psychology to examine what it means to welcome being accountable in an excellent way that promotes flourishing. When people manifest accountability as a virtue, they are both responsive to others they owe a response, and they are responsible for their attitudes and actions in light of these relationships. Psychiatric treatment often aims to correct disordered …

Accountability And Autonomy, Motivation, And Psychiatric Treatment, John R. Peteet, Charlotte Witvliet, C. Stephen Evans

Faculty Scholarship

Christina Miller invites further clarification about the relationship between accountability and autonomy. Whereas embracing accountability to others for one’s responsibilities in those relationships emphasizes relationality, autonomy accents the individual’s own capacities to exhibit agency in enacting one’s decisions (which may or may not relate to other people). Accordingly, we theorize that relational capacities for empathic concern and perspective-taking are especially important in the virtue of accountability (and other relational virtues such as gratitude and forgivingness). The capacity for self-regulation may serve both one’s autonomous pursuits and accountability for carrying out one’s responsibilities within relationships, especially when enacting modifications in order …

Seroprevalence Of Severe Acute Respiratory Syndrome Coronavirus-2 (Sars-Cov-2) Among Healthcare Providers Prior To The Vaccine Era In An Integrated Midwestern Healthcare System, Elie A. Saade, Xiaochun Zhang, Jaime H. Noguez, Lisa M. Stempak, Daniel Tisch, Christine Schmotzer, Robert A. Salata

Faculty Scholarship

We performed severe acute respiratory coronavirus virus 2 (SARS-CoV-2) antinucleocapsid IgG testing on 5,557 healthcare providers and found a seroprevalence of 3.9%. African Americans were more likely to test positive than Whites, and HCWs with household exposure and those working on COVID-19 cohorting units were more likely to test positive than their peers.

Deploying Digitalisation And Artificial Intelligence In Sustainable Development Research, Peter Yang

Faculty Scholarship

Many industrialised countries have benefited from the advent of twenty-first century technologies, especially automation, that have fundamentally changed manufacturing and industrial production processes. The next step in the evolution of automation is the development of artificial intelligence (AI), i.e. intelligence which is demonstrated by machines and systems, which cannot only perform tasks but also work synergistically with humans and nature. Intelligent systems that can see, analyse situations and respond sensitively to real-time cues, from human gestures and facial expressions to pedestrians crossing a busy street, will reshape transportation, precision agriculture, biodiversity conservation, environmental modelling, public health, construction and manufacturing, as …

Countering Gerrymandered Courts, Jed Handelsman Shugerman

Faculty Scholarship

The key insight in Professor Miriam Seifter's outstanding article Countermajoritarian Legislatures is that state legislatures are usually antidemocratic due to partisan gerrymandering, whereas state governors and judiciaries are insulated from gerrymandering by statewide elections (or selection), and thus they should have a more prominent role in framing election law and in enforcing the separation of powers.

This Piece offers afriendly amendment: These observations are true, so long as states do not gerrymander their state supreme courts into antidemocratic districts. The problem is that historically, judicial elections emerged generally as districted elections, and often with regional and partisan politics shaping those …

Where Is The “Public” In American Public Health? Moving From Individual Responsibility To Collective Action, Cecília Tomori, Dabney P. Evans, Aziza Ahmed, Aparna Nair, Benjamin Mason Meier

Faculty Scholarship

American individualism continues to prove incommensurate to the public health challenge of COVID-19. Where the previous US Administration silenced public health science, neglected rising inequalities, and undermined global solidarity in the early pandemic response, the Biden Administration has sought to take action to respond to the ongoing pandemic. However, the Administration's overwhelming focus on individual responsibility over population-level policy stands in sharp contrast to fundamental tenets of public health that emphasize “what we, as a society, do collectively to assure the conditions for people to be healthy”. When this misalignment of individual responsibility and public health initially became clear with …

A Theory Of City Biogeography And The Origin Of Urban Species, Ryan A. Martin

Faculty Scholarship

Many of the choices humans make with regard to infrastructure, urban planning and other phenomena have impacts that will last thousands of years. This can readily be seen in modern cities in which contemporary streets run along street grids that were laid out thousands of years prior or even in which ancient viaducts still play a role. However, rarely do evolutionary biologists explicitly consider the future of life likely to be associated with the decisions we are making today. Here, we consider the evolutionary future of species in cities with a focus on the origin of lineages and species. We …

Expanding The Definition Beyond Surveillance Criteria Reveals A Large Burden Of Osteomyelitis Caused By Group B Streptococcus In The United States Veterans Health Administration, Taissa A. Bej, Brigid Wilson, Sunah Song, Robin L.P. Jump, Federico Perez

Faculty Scholarship

Background: Population-based surveillance studies may underestimate osteomyelitis caused by Group B Streptococcus (GBS). We analyzed cases of GBS osteomyelitis, including patients diagnosed using an expanded case definition that incorporates cultures from non-sterile sites, as well as cultures from normally sterile sites. Methods: We retrospectively examined a cohort of veterans with the diagnosis of osteomyelitis between 2008 and 2017. Cases of definite GBS osteomyelitis required GBS isolation from normally sterile sites, (e.g., blood or bone). Cases of probable GBS osteomyelitis permitted GBS isolation from non-sterile sites (e.g., surgical sites, wounds). We compared comorbid conditions, lower extremity amputation and mortality rates in …

Virtual Reality And Art History: A Case Study Of Digital Humanities And Immersive Learning Environments, James Hutson, Trent Olsen

Faculty Scholarship

The potential benefits of integrating immersive realities into traditional humanities curricula have been touted over the last two decades, but budgetary and technical constraints of implementation have limited its adoption. However, recent advances in technology, along with more affordable hardware coupled with more user-friendly interfaces, have seen widespread adoption beyond that of the military and healthcare. In fact, higher education institutions are poised to adopt VR on a broader scale to enhance learning with virtual environments. This study seeks to determine the expectations and results of integrating virtual reality into coursework with students and faculty in Art History. The study …

The Epistemology Of Second Best, Gary S. Lawson

Faculty Scholarship

Second best theory “holds that where it is not possible to satisfy all the conditions necessary for a[] . . . system to reach an overall optimum, it is not generally desirable to satisfy as many of those conditions as possible.” Adrian Vermeule, Foreword: System Effects and the Constitution, 123 HARV. L. REV. 4, 17 (2009). In other words, if you are not moving all the way to the ideal state of affairs, it is unclear whether partial moves that seem to go in the direction of the ideal make the world “better” or “worse” – with “better” or “worse” …

Ethical Ai Development: Evidence From Ai Startups, James Bessen, Stephen Michael Impink, Lydia Reichensperger, Robert Seamans

Faculty Scholarship

Artificial Intelligence startups use training data as direct inputs in product development. These firms must balance numerous trade-offs between ethical issues and data access without substantive guidance from regulators or existing judicial precedence. We survey these startups to determine what actions they have taken to address these ethical issues and the consequences of those actions. We find that 58% of these startups have established a set of AI principles. Startups with data-sharing relationships with high-technology firms; that were impacted by privacy regulations; or with prior (non-seed) funding from institutional investors are more likely to establish ethical AI principles. Lastly, startups …

Regulating Natural Gas Venting And Flaring As Waste: A Review Of The New Mexico Approach, Joseph A. Schremmer

Faculty Scholarship

Special issue: Law and Policy for Gas Flaring in a Low-Carbon Economy.

This essay interrogates the regulation of routine venting and flaring of natural gas as a source of prohibited “waste,” using New Mexico’s recently adopted Waste Rule as an example. It begins with a survey of both the environmental and economic benefits to be achieved by limiting or eliminating venting and flaring and the direct and indirect costs of doing so, including the forgone opportunity to produce crude oil. Then the essay explains the common law and statutory definitions of “waste” to demonstrate that the concept implicates a balancing …

The Democratizing Potential Of Algorithms?, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions are increasingly embracing the use of pretrial risk assessment algorithms as a solution to the problem of mass pretrial incarceration. Conversations about the use of pretrial algorithms in legal scholarship have tended to focus on their opacity, determinativeness, reliability, validity, or their (in)ability to reduce high rates of incarceration as well as racial and socioeconomic disparities within the pretrial system. This Article breaks from this tendency, examining these algorithms from a democratization of criminal law perspective. Using this framework, it points out that currently employed algorithms are exclusionary of the viewpoints and values of the racially marginalized communities most …

Latinxs Reshaping Law & Policy In The U.S. South, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article addresses the key law and policy levers affecting Latinxs in what the U.S. Census Bureau designates as the South. Since the rise of the Latinx population from the 1980s onward, few legal scholars and researchers have participated in a sustained dialogue about how law and policy affects Latinxs living in the South. In response to this gap in legal research, this article provides an overview of the major law and policy challenges and opportunities for Latinxs in this U.S. region. Part II examines the geopolitical landscape of the South with special focus on the enduring legacy of Jim …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

The Place Of The Prosecutor In Abolitionist Praxis, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Contract's Covert Meddlers, Sarah Winsberg

Faculty Scholarship

No abstract provided.