Digital Commons Network^™

Corporate Law's Duty Of Data Loyalty, Andy Serwin, Neil Richards, Woodrow Hartzog, Ryan Durrie

Faculty Scholarship

Privacy law used to be a relatively tidy field, involving a few interesting but discrete topics like press disclosures of private facts, wiretapping, and the processing of personal data by internet companies. But as the digital revolution continues to disrupt area after area of human activity and software “is eating the world,” the core concerns of privacy law such as “when is it appropriate to process personal data?” have similarly entered field after field. Today, most fields of law, including discrimination law, antitrust, and international law, have found it necessary to reckon with the questions of informational harm and power …

Prevention Beyond Deterrence, Benjamin A. Barsky

Faculty Scholarship

This Article reconceptualizes preventive justice—the public safety paradigm that seeks to prevent harm before it occurs. Scholars have long documented how cities have advanced this paradigm through largely punitive measures, notably variants of broken windows policing, which posit that aggressive misdemeanor enforcement deters more serious crime. Yet in the aftermath of the 2020 George Floyd protests, and as underscored recently in City of Grants Pass v. Johnson, these measures have faced a legitimacy crisis—prompting calls for nonpunitive responses to nonviolent incidents.

This Article establishes a preventive justice approach that advances health and safety without emphasizing crime deterrence. It draws on …

Pharmaceutical Mergers: Do We Have The Right Cure?, Robin Feldman, Gideon Schor, Yaniv Konchitchki, Tanziuzzaman Sakib

Faculty Scholarship

Few federal agencies wield tools more powerful than the Federal Trade Commission’s authority to review—and deny—proposed mergers between companies. This authority is powerful for a reason: Large mergers can be uniquely harmful to the United States economy, potentially reducing competition, undercutting consumer choice, and inflating prices.

The pharmaceutical industry is particularly sensitive to merger harms, given the limited number of competitors and the inelasticity of demand for prescription drugs. As a result, when pharmaceutical companies seek to merge, the FTC often requires that one of the companies divest ownership of certain drugs not yet on the market—so-called “pipeline” drugs––to a …

Retrenchment, Segregation, And Public Education: A Five-Year Analysis Of State Exclusionary School Discipline Legislation, Thalia Gonzalez, Will Martel

Faculty Scholarship

Notwithstanding the decision in Brown v. Board of Education formally ending educational segregation and more than two decades of state reform, the legislative landscape protecting minoritized children from the structural violence of exclusionary school discipline has dramatically shifted in less than five years. From the passage of state “Teacher’s Bills of Rights” to mandatory expulsions, rescissions of prior protections, and new categories of removal, a retrenchment of anti-inclusion legislation—and its corollary, educational carcerality— has occurred. While studies of other forms of legislative retrenchment in K–12 public schools, such as anti-Critical Race Theory and Don’t Say Gay laws, literacy bans, and …

An International Approach To Homelessness. Part I: The Case Of India., Pranit Lanjewar, Jaroslaw Richard Romaniuk

Faculty Scholarship

This paper, the first in a two-part study on homelessness in developing countries, explores the causes of homelessness in countries with significant populations living in poverty. This instalment focuses primarily on homelessness in India. The country’s diversity in terms of culture and religion is reflected in challenges when approaching issues related to homelessness. We highlight governmental initiatives to combat homelessness and provide impoverished people and families with access to essential services. A qualitative research method was used. We interviewed the recipients of government services aimed at helping their families overcome homelessness. Our findings highlight the role of education and educational …

Transnational Mass Tort Litigation: A Proposal For An International Court Of Civil Justice, Maya Steinitz

Faculty Scholarship

This chapter argues for the creation of an International Court of Civil Justice for transnational mass tort cases. It considers the challenges of adjudicating cross-border mass torts along with the incentives and feasibility of a new international court. Drawing upon case studies including the Bhopal disaster, litigation surrounding the devastation of the Ecuadorian rainforest, and the attempts to sue over human rights abuses in Nigeria, the chapter demonstrates that the world's legal systems were not designed to solve these kinds of complex cases, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice …

Attitudes Driving Regional Differences In Long-Acting Injectable Antipsychotic Utilization For Schizophrenia Among Healthcare Professionals, Patients, And Caregivers (Advance): Results From A Multinational Survey Study, Martha Sajatovic

Faculty Scholarship

Background: Long-acting injectable (LAI) antipsychotics improve adherence and reduce schizophrenia relapse rates vs oral antipsychotics (OAs) but remain underused. The ADVANCE study explored country-level differences in LAI use among healthcare professionals (HCPs), patients, and caregivers, to identify drivers of LAI use. Study Design: ADVANCE included participants from Australia, Canada, China, Germany, Israel, South Korea, Spain, and the United States. Eligible HCPs spent ≥25% of their time in direct patient care, managed an adult population of whom ≥10% have schizophrenia, and treated patients prescribed LAIs. Patients aged ≥18 years and caregivers of adults living with schizophrenia who had tried/been offered an …

Opening Brief For Plaintiff-Appellant Emery Barron, Steven Mitchell, Carolyn Sacco, Shaina Sikka, Madeline H. Meth

Faculty Scholarship

By the time Emery Barron sued Pennsylvania Department of Corrections officials in 2021, they had kept him caged for almost six years in solitary confinement without providing a pathway for him to reenter general population. Department of Correction policy calls for officials to review the ongoing need for solitary confinement after an initial ninety-day stint in disciplinary confinement. However, procedural carve outs allow officials to leave people like Barron in solitary indefinitely without an opportunity to be heard by a decisionmaker and without requiring officials to assert any legitimate penological interest behind the confinement.

Under this scheme, which violated both …

Jmu Libraries Magazine: Volume 3, Jenne M. Klotz, Emily D. Blake, Kristen S. Shuyler

Faculty Scholarship

Volume 3 of the biennial JMU Libraries magazine, highlighting services, events, awards of the JMU Libraries.

International Law, Adam Chilton, Weijia Rao

Faculty Scholarship

International law has, historically, been best understood as a body of principles and rules that govern the interactions between sovereign states and regulate how sovereign states can behave outside their borders. Over time, international law has evolved to regulate a broader range of subjects than just exterritorial activities—including the treatment of citizens or migrants within a country’s borders—and to regulate a greater range of actors than just sovereign states—including private individuals, corporations, and other nonstate actors. This body of principles and rules comes from several sources, including treaties and conventions, customary international law, judicial opinions, and academic articles and treatises …

Experiences And Perceptions Of Patients, Caregivers, And Healthcare Professionals With Long-Acting Injectable Antipsychotics For The Treatment Of Schizophrenia: Qualitative Results From The Multinational Advance Study, Martha Sajatovic

Faculty Scholarship

Introduction: Schizophrenia imposes a substantial burden on individuals and society. Long-acting injectable antipsychotics (LAIs) improve adherence and reduce relapse and hospitalization rates compared with oral treatments for schizophrenia, yet LAI use varies globally. The qualitative interview portion of the global Attitudes DriVing regional differences in long-acting injectable ANtipsychotic utilization for schizophrenia among healthcare professionals (HCPs), patients, and CaregivErs (ADVANCE) study explored the patient journey from schizophrenia diagnosis to treatment, treatment goals, and experiences and perspectives on LAIs that may influence their use. Methods: ADVANCE included HCPs, patients, and caregivers from Australia, Canada, China, Germany, Israel, Spain, South Korea, and the …

Executive Function Among Older Adults With Bipolar Disorder: A Gage-Bd Analysis, Federica Klaus, Martha Sajatovic, Peijun Chen, Nicole Fiorelli, Ashley N. Sutherland

Faculty Scholarship

Objectives Executive function deficits in bipolar disorder (BD) are major contributors to disability in older age BD (OABD). We investigated the difference between OABD and age-equated healthy comparators (HC); and, in the OABD group, the associations of executive function with age, symptom severity, global cognition, and daily functioning. Design Cross-sectional analysis of executive function in OABD versus HC. Setting Analysis of large archival dataset harmonized from 12 international OABD studies. Participants Older adults (≥50 years) with OABD ( n = 614) and HC ( n = 192). Measurements Executive function was assessed via Trail Making Test B (TMT-B) completion time; …

“Quasi-Judicial”: A History And Tradition, By Beau J. Baumann & Jed H. Shugerman, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

“I do not say the office is either Executive or Judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances ought to take place.” – James Madison on the Comptroller, June 29, 1789

On Monday, December 8th, the Supreme Court will hear oral arguments in Trump v. Slaughter. The case presents a pivotal challenge to Humphrey’s Executor, the New Deal precedent underpinning so-called independent agencies. In Humphrey’s, the Hughes Court unanimously held that Congress could shield administrators from presidential removal if they exercised “quasi-judicial” or …

Opening Brief For Plaintiff-Appellant Jacob Julick, Aryssa Harris, Cameron Tong, Madeline H. Meth

Faculty Scholarship

For ten days in the middle of winter, officers at the Kentucky State Penitentiary (KSP) confined Jacob Julick in freezing cells, dressed only in paper boxers, and without access to hygiene products, a shower, cleaning products, bedding, or shoes. The reason? Mistaken retribution in response to a recent assault on an officer in which Julick was not involved.

When Julick reported experiencing suicidal thoughts, Defendant Officer Jason Denny mocked him, telling him to “kill [him]self and do them the favor.” Shortly after, Julick was moved from his first solitary cell to a strip cage where he was handcuffed, shackled, and …

Neuroadaptive Return On Investment In Education: A Critical Review Of Eeg And Eye-Tracking For Decision Optimization, Piper Hutson, James Hutson

Faculty Scholarship

This article advances a critical synthesis of a proposed neuroadaptive return on investment framework that integrates electroencephalography and eye-tracking into educational decision systems. The analysis situates neuroadaptive ROI within scholarship on neurodiversity, engagement, and adaptive learning, arguing that process-level indicators of attention, cognitive load, and persistence merit inclusion alongside conventional outcome metrics in investment models. Methodological scrutiny examines construct validity for neural and gaze indices, requirements for multimodal fusion, calibration across heterogeneous learner profiles, and threats to internal and external validity in classroom contexts. Evidence from pilot implementations suggests feasibility for real-time pacing, friction-point detection, and targeted resource triage, although …

Correlates Of Depressive Symptom Severity Among Adults With Epilepsy Participating In An Epilepsy Self-Management Clinical Trial, Rachel Branning, Michael Liu, David Silva, Jessica Black, Jacqueline Krehel-Montgomery, Nicole Fiorelli, Richard Barigye, Clara Adeniyi, Martha Sajatovic

Faculty Scholarship

Background People living with epilepsy (PWE) experience higher rates of depression compared with the general population. Depression in PWE is associated with increased seizure burden and reduced quality of life. We aimed to examine clinical and demographic correlates of depression severity using the nine-item Patient Health Questionnaire in PWE experiencing negative health events in the past 6 months. Aims (a) To assess how depressive severity correlated with seizure frequency; To examine how outcomes such as quality of life are influenced by depressive severity; To investigate how demographic factors affect depressive severity. Method Depressive severity was defined as a score of …

Large Language Models As Machines Of Beauty: Cognitive Averaging, Latent Space Geometry, And The Entropic Foundations Of Aesthetic Preference, Daniel Plate, James Hutson

Faculty Scholarship

This study advances the position that large language models (LLMs) and human perceptual systems are governed by a shared computational drive toward prototypicality, entropy reduction, and aesthetic coherence. Drawing on developmental evidence that infants exhibit early preferences for facial symmetry and averageness, the analysis situates aesthetic preference within broader research on processing fluency and predictive coding, emphasizing that biological perception rewards stimuli that reduce uncertainty and support efficient information compression. This foundation is used to examine how LLMs, through cross-entropy optimization, perplexity minimization, and latent space clustering, converge on high-density representational regions that operate as statistical prototypes of linguistic and …

Differences In Total Daily Energy Expenditure Across Field Sports: A Narrative Review, Brenen Skalitzky, Jennifer Fields, Margaret T. Jones, Chad Kerksick, Andrew Jagim

Faculty Scholarship

Background: Differences in total daily energy expenditure (TDEE) across sports, sex, and skill level support the need for sport- and athlete-specific energy intake recommendations. The purpose of the current review was to examine TDEE and related markers of energy expenditure across field-based team sports. A secondary aim was to evaluate physical activity levels (PAL), calculated as TDEE divided by resting metabolic rate (RMR), and their utility in estimating energy needs within team sports.

Methods: The review was limited to studies that included the field-based team sports of rugby or soccer and reported energy expenditure data using doubly labeled water …

The Case For Selective Non-Transparency In Ai-Mediated Work: A Workers Rights Framework, Daniel Plate, James Hutson

Faculty Scholarship

This article advances a labor rights argument for selective non-transparency in AI-mediated work, framed through educational labor yet generalizable across the United States. The central claim asserts that blanket requirements to disclose all AI-assisted methods reconfigure managerial power by converting process knowledge into a surveillance substrate, thereby diminishing autonomy, chilling professional judgment, and enabling rapid deskilling. Synthesizing U.S. labor and privacy frameworks—especially interpretations of the National Labor Relations Act regarding electronic monitoring—alongside emerging state initiatives on automated decision systems, the analysis demonstrates how expansive process transparency risks infringing protected concerted activity while normalizing function creep in algorithmic management. Empirical literature …

The Blackstone Ratio, Modified, Murat C. Mungan

Faculty Scholarship

In his discussion of evidentiary policies, Blackstone famously noted that ‘it is better that ten guilty persons escape than that one innocent suffer’ (Blackstone 1769). The conventional wisdom among lawyers, judges as well as academics holds that accepting this statement as a maxim necessitates the adoption of pro-defendant evidentiary rules. It is also commonly believed that costs associated with false convictions being greater than those associated with failures to punish offenders due to the presence of punishment costs provides a utilitarian rationale for Blackstonian principles. After formalizing Blackstone ratios (either as marginal rates of substitution or, alternatively, as the ratio …

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Lawyers' Client-Inclusive Negotiations: The "New Mediation"?, Nancy A. Welsh, Donna Shestowsky

Faculty Scholarship

When proponents initially urged the courts to institutionalize mediation for the resolution of general civil cases, they argued that the procedure would be superior to trial—and also to lawyers’ settlement negotiations—in terms of parties’ exercise of self-determination, satisfaction with outcomes, and opportunity for voice. These claims, however, rested on certain assumptions, particularly regarding the implementation of mediation and lawyers’ settlement negotiations. In mediation, the parties were to take center stage, with the mediator assisting them by facilitating their communication and negotiation so that they could reach a customized resolution. Lawyers’ settlement negotiations in general civil litigation, meanwhile, were assumed to …

Defending Form Contract Consent, Wayne R. Barnes

Faculty Scholarship

The issue of standard form contracts has bedeviled Contracts scholars for a century. The basic problem has long been known. Contract is supposed to be a quintessentially consensual activity, whereby both parties are operating with full knowledge and comprehension of the array of terms and conditions being negotiated and agreed to. But by employing standard forms replete with boilerplate fine print, companies have created a regime whereby it is most likely irrational for consumers to bother reading the terms before consenting to the transaction. The existing “duty to read” doctrine is that consumers fully consent to all terms when they …

Copyright, Incentives, And Popular Music Composition, Glynn S. Lunney Jr.

Faculty Scholarship

The rise of file sharing and the subsequent collapse in sales of recorded music offer a rare glimpse into a counterfactual world where copyright, for a time, was weakened. Comparing creative output before and after this exogenous shock allows us to test empirically whether incentives to copyright owners were correlated with creative output. In this article, I extend previous work on this issue from recording artists to songwriters and search for a correlation between incentives and popular music composition. In particular, I test three hypotheses. First, I test whether more incentives were associated with more or better popular musical compositions. …

General Rulemaking Grants And The Federal Trade Commission, Tamar Katz, Alex Lloyd George, Lev Menand, Tim Wu

Faculty Scholarship

The legal campaign against the administrative state has a new front: general rulemaking provisions. General rulemaking provisions authorize agencies, in an open-ended way, to write rules to carry out Congress’s directives. Administrative agencies have relied on such provisions for decades. But over the last several years, some litigators, scholars, and judges have advanced limiting theories that would, if applied widely, greatly reduce the ability of agencies to execute federal statutes. The leading edge of this campaign is an effort to negate the rulemaking authority of the Federal Trade Commission (FTC). The reasoning employed by the FTC’s opponents, already adopted by …

Purpose And Nonprofit Enterprise, Cathy Hwang, Dorothy S. Lund

Faculty Scholarship

Nonprofit enterprise is responsible for a large share of economic activity across the globe. And yet, leading theories fail to explain why nonprofit business survives and even thrives across a vast number of industries, ranging from artificial intelligence to beer brewing, despite an absence of shareholder control. Indeed, as shareholder ownership and intervention rights have become the core component of successful corporate governance, this success is all the more surprising.

This Essay offers a novel “purposeful enterprise” theory to explain the puzzling success of nonprofit enterprises. Drawing on research in behavioral economics and organizational science, it argues that organizational purpose …

The Value Of Jury Rights, Philip A. Hamburger

Faculty Scholarship

The right to a civil jury trial is often dismissed as an inefficient anachronism ill suited to the complexities of modern litigation, and these efficiency concerns have long overshadowed any serious defense of the Seventh Amendment. This Article argues that such skepticism profoundly misunderstands the constitutional function and enduring value of civil jury rights. The Article observes that the Seventh Amendment’s jury right was adopted with the understanding that it would come with some inefficiencies and that contemporary concerns about its inefficiencies tend to be overstated. Ultimately, the Article finds that civil juries are essential for structural reasons such as …

Emergency Lending By The Federal Reserve, Kathryn Judge, Richard Clarida

Faculty Scholarship

The Federal Reserve established an array of innovative emergency lending facilities during the Great Financial Crisis and expanded the scope of its emergency lending yet further in response to the Covid-19 pandemic. This Article provides a retrospective of how the Federal Reserve used its emergency lending authority across these two episodes, identifying patterns and revealing some differences. It sheds light on the conditions that enabled the Federal Reserve to establish the facilities that it did, including the roles played by Congress and Treasury in providing the equity funding that made certain facilities possible. It shows how in each episode, the …

Symbolic Justice: The Continued Limits Of International Criminal Justice Without A Permanent Prison System, Meg Penrose

Faculty Scholarship

Many people misremember Nuremberg, Tokyo, and the subsequent World War II tribunals. These seminal international tribunals gave the world convictions but largely failed to fully enforce the sentences imposed. Most people do not recall the mass clemency following the World War II tribunals. This Article seeks to fill a scholarly void by explaining why international criminal justice has never matured beyond Nuremberg and Tokyo. The modern ad hoc tribunals, as well as the permanent International Criminal Court (“ICC”), have failed to deliver lasting justice. Much like Nuremberg and Tokyo, the modern tribunals fixate on arrests and convictions and then seemingly …

Local Government Standing As State Standing, Katharine Cooney, Katherine Mims Crocker

Faculty Scholarship

It is increasingly common, and controversial, for local governments to bring lawsuits as plaintiffs in federal court. Many questions about this practice raise matters that sound in policy. But some, including the issue of standing to sue, also raise issues of constitutional law. How local governments fit into standing rules should reflect how they fit into the U.S. constitutional system more broadly. As the Supreme Court put it in the famous (and infamous) 1907 case Hunter v. City of Pittsburgh, "[m]unicipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of …