Digital Commons Network^™

The Promise And Perils Of Tech Whistleblowing, Hannah Bloch-Wehba

Faculty Scholarship

Whistleblowers and leakers wield significant influence in technology law and policy. On topics ranging from cybersecurity to free speech, tech whistleblowers spur congressional hearings, motivate the introduction of legislation, and animate critical press coverage of tech firms. But while scholars and policymakers have long called for transparency and accountability in the tech sector, they have overlooked the significance of individual disclosures by industry insiders—workers, employees, and volunteers—who leak information that firms would prefer to keep private.

This Article offers an account of the rise and influence of tech whistleblowing. Radical information asymmetries pervade tech law and policy. Firms exercise near-complete …

Researcher Access To Social Media Data: Lessons From Clinical Trial Data Sharing, Christopher J. Morten, Gabriel Nicholas, Salomé Viljoen

Faculty Scholarship

For years, social media companies have sparred with lawmakers over how much independent access to platform data they should provide researchers. Sharing data with researchers allows the public to better understand the risks and harms associated with social media, including areas such as misinformation, child safety, and political polarization. Yet researcher access is controversial. Privacy advocates and companies raise the potential privacy threats of researchers using such data irresponsibly. In addition, social media companies raise concerns over trade secrecy: the data these companies hold and the algorithms powered by that data are secretive sources of competitive advantage. This Article shows …

The Will To Chaos And Disorder: The Behemoth As A Model Of Political Economy, Bernard E. Harcourt

Faculty Scholarship

The history of political economy is tormented by beasts. The most famous is the Leviathan, the giant serpentine monster that figures in Hobbes’s masterpiece of modern political theory. Robert Fredona and Sophus Reinert spotlight another sea monster, the Kraken, that giant octopus or squid with a particular morphology (i.e., its tentacles) that so fittingly describes the grip of multinational corporations, stateless financial capital, social media, and tech giants today. But there are still other monsters in the bestiary of political economy. In this essay, I highlight the Behemoth, a land monster that captures another critical dimension of political economy: the …

The Chicken-And-Egg Of Law And Organizing: Enacting Policy For Power Building, Kate Andrias, Benjamin I. Sachs

Faculty Scholarship

In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure …

The Last Colony Of The Mind: Narrative, Legal Advocacy, And The Decolonization Of Legal Knowledge, Ayodeji Kamau Perrin

Faculty Scholarship

Philippe Sands’ The Last Colony¹ tells the story of how Chagos Islanders won the right to return to the lands of their birth through a 2019 Advisory Opinion of the International Court of Justice (ICJ).² In 1965, while the United Kingdom stood in the midst of conceding to the independence claims of myriad anti-colonialists throughout its imperial holdings, it took the anachronistic step of creating a colony—the British Indian Ocean Territory (BIOT).³ In flagrant violation of UN Resolution 1514,⁴ the United Kingdom detached the Chagos Archipelago from the colony of Mauritius. And between 1967 and 1973, …

The Transformation Of Social Work In Ukraine Before And During The War, Jaroslaw Richard Romaniuk, Kathleen J. Farkas

Faculty Scholarship

Background: This article aims to review the development of the social work profession in Ukraine and to describe the impact of social, economic and political changes on social work practices and education. Methods: A comprehensive literature review and participant observation methods informed this study. A case study of a Polish community’s response to Ukrainian war refugees illustrates how social workers might capitalize on current social structures to continue strengthening civil society in Ukraine. Findings and Discussion: Social Work, focusing on the fit between person and environment, is shaped by knowledge, culture and belief systems. Ukraine’s history and transition from communist/centralized …

Preserving Linguistic Diversity In The Digital Age: A Scalable Model For Cultural Heritage Continuity, James Hutson, Pace Ellsworth, Matt Ellsworth

Faculty Scholarship

In the face of the rapid erosion of both tangible and intangible cultural heritage globally, the urgency for effective, wide-ranging preservation methods has never been greater. Traditional approaches in cultural preservation often focus narrowly on specific niches, overlooking the broader cultural tapestry, particularly the preservation of everyday cultural elements. This article addresses this critical gap by advocating for a comprehensive, scalable model for cultural preservation that leverages machine learning and big data analytics. This model aims to document and archive a diverse range of cultural artifacts, encompassing both extraordinary and mundane aspects of heritage. A central issue highlighted in the …

Seeking Sufficient And Appropriate Care During The First Year After Spinal Cord Injury: A Qualitative Study, Anne M. Bryden, Brian Gran

Faculty Scholarship

Study design: Longitudinal qualitative study, based on a constructivist grounded theory and transformative approach. Objectives: This study investigated experiences of individuals with spinal cord injury (SCI) while navigating rehabilitation, resources for recovery, and community reintegration during the first year after injury. Setting: An acute inpatient rehabilitation facility in the Midwest United States. Methods: In-depth, semi-structured interviews were conducted with 20 individuals with newly-acquired SCI. Interviews were conducted approximately every other month for one year, beginning at acute inpatient rehabilitation. Data were analyzed and interpreted using a constructivist grounded theory approach and transformative paradigm, which examines power and social structures within …

Reclaiming The Symbol: Ethics, Rhetoric, And The Humanistic Integration Of Gai - A Burkean Perspective, Daniel Plate, James Hutson

Faculty Scholarship

This study delves into the intersection of generative artificial intelligence (GAI) and the Humanities, guided by the critical insights of Kenneth Burke, a seminal figure in the study of rhetoric and a vocal critic of scientism and positivism. The skepticism of the American literary theorist towards an uncritical embrace of science and technology, and his concerns over the inclination of the Humanities to adopt scientific methodologies at the expense of traditional forms of inquiry, provide a critical framework for examining the new role played by GAI within the Humanities. By framing these tools in the context of Burkean rhetorical theory, …

Understanding The Utility Of Less Than Six-Month Prognosis Using Administrative Data Among U.S. Nursing Home Residents With Cancer, Long Vu, Siran M. Koroukian, Sara L. Douglas, Hannah L. Fein

Faculty Scholarship

Background: There is a dearth of studies evaluating the utility of reporting prognostication among nursing home (NH) residents with cancer. Objective: To study factors associated with documented less than six-month prognosis, and its relationship with end-of-life (EOL) care quality measures among residents with cancer. Methods: The Surveillance, Epidemiology, and End Results linked with Medicare, and the Minimum Data Set databases was used to identify 20,397 NH residents in the United States with breast, colorectal, lung, pancreatic, or prostate cancer who died between July 2016 and December 2018. Of these, 2205 residents (10.8%) were documented with less than six-month prognosis upon …

Definitions Of Recovery And Reintegration Across The First Year: A Qualitative Study Of Perspectives Of Persons With Spinal Cord Injury And Caregivers, Kim D. Anderson, Anne M. Bryden, Brian Gran, Susan W. Hinze

Faculty Scholarship

Study Design: Longitudinal, qualitative cohort study. Objectives: To understand how people with newly acquired spinal cord injury (PWS) and their support person (SP) define recovery and successful community reintegration (CR) across the first 12 months post-injury (mpi) and their satisfaction with the rate of recovery and reintegration experienced. Setting: Academic and Veterans hospitals in Midwest USA. Methods: In-depth, semi-structured interviews were conducted in two cohorts of PWS and SP during the initial inpatient rehabilitation stay, at 6 mpi, and at 12 mpi. Recordings were transcribed; four authors independently undertook line-by-line coding. The team discussed codes to reach consensus and synthesize …

Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jodi L. Short, Jed Handelsman Shugerman

Faculty Scholarship

A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …

Crowdsourcing Surveillance, Chaz Arnett

Faculty Scholarship

In Unreasonable: Black Lives, Police Power, and the Fourth Amendment, Devon W. Carbado illuminates how both the spectacular and quotidian forms of racialized terror, brutality, and surveillance—characteristic of enslavement—have shaped the construction of our constitutional order. He argues that the combined social normalization and legal naturalization of racial hierarchy paved the way for the development of slave patrols and other early iterations of policing where incredible acts of violence against Black bodies were made ordinary and essential. He explains how this legacy continues today with Fourth Amendment jurisprudence not simply failing to protect rights but rather licensing police violence …

Renewing Products Liability With Semen, Anita Bernstein

Faculty Scholarship

No abstract provided.

Empowering Neurodivergence: The Role Of Positive Language In Challenging Systemic Ableism, Piper Hutson, James Hutson

Faculty Scholarship

This review article examines the power of language in shaping perceptions of neurodivergent individuals and the systemic ableism embedded in society. The analysis begins by exploring the historical development of terms like "disabled" and their impact on societal attitudes, focusing on how deficit-based language reinforces exclusion. By contrasting this with strength-based and inclusive language, the article advocates for a shift toward reframing disability in terms of social constructs and accessibility, rather than inherent limitations. Drawing on neuroscientific research, it demonstrates how language shapes neural pathways, reinforcing either stigma or empowerment. The review further critiques euphemisms like "differently abled" for minimizing …

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 …

Dead Bodies As Quasi-Persons, Ela A. Leshem

Faculty Scholarship

No abstract provided.

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 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 …

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 …

Beyond Profit Motives, William J. Moon

Faculty Scholarship

Why do corporations exist? Generations of legal scholars have debated both the origins of business corporations and their purpose.1 Professor Stephen Bainbridge’s new book The Profit Motive: Defending Shareholder Value Maximization is a substantial contribution to this literature and an essential read for anyone who wishes to better understand a controversy that has an immense impact on how movers and shakers of today’s largest corporations make decisions.

Mass Accommodations: Signposts To A Hidden Jurisprudence, Shirley Lin

Faculty Scholarship

No abstract provided.

Medical Expenditures And The Measurement Of Poverty In The United States, Luke Petach, David Wyant

Faculty Scholarship

Using data from the Medical Expenditure Panel Survey (MEPS) we estimate the fraction of the US population that is health poor. A person is health poor if their income prior to paying health insurance premiums and out-of-pocket healthcare costs is above the poverty line, but their income net-of-premiums and out-of-pocket healthcare costs is below the poverty line. Because resources used to finance health insurance premiums and out-of-pocket costs are (A) lexicographically preferred and (B) cannot be used to maintain an individual’s standard of living, they should be excluded from official poverty estimates. Approximately 1% to 2% of the US population …

Defamation, Presumed Damages, And Reputational Injury: A Legal And Philosophical Inquiry, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

The Sense Of Safety Theoretical Framework: A Trauma-Informed And Healing-Oriented Approach For Whole Person Care, Kurt C. Stange

Faculty Scholarship

Objectives: This research describes four aspects of the development of the Sense of Safety Theoretical Framework for whole person care: exploring the meaning of the phrase “sense of safety”—the whole person language; the range of human experience that impacts sense of safety—whole person scope; the dynamics that build sense of safety—the healing goals; and the personal and cross-disciplinary trauma-informed practitioner skills and attitudes that facilitate sense of safety. Methods: This qualitative participatory study was conducted in two phases. Researchers iteratively explored the concept of sense of safety using focus groups and semi-structured interviews. Overarching research questions were: “Does the transdisciplinary …

“I’M Not The Girl I Was…”, Donald K. Freedheim

Faculty Scholarship

My wife has Alzheimer’s. That might not be the precise diagnosis, but her symptoms are practically textbook for it. On a seven-stage scale of the disease, she would be in the latter part of the 5th and early 6th Stage. I have been asked by a number of colleagues to write down what has been happening to Gerda; but up until now, it was too painful and personal to record. I also believed that so much useful information has been written and published that there was no need to add to the literature. But when Gerda said the words I …

Revisioning Algorithms As A Black Feminist Project, Ngozi Okidegbe

Faculty Scholarship

We live in an age of predictive algorithms.¹ Jurisdictions across the country are utilizing algorithms to make or influence life-altering decisions in a host of governmental decision-making processes—criminal justice, education, and social assistance to name a few.² One justification given for this algorithmic turn concerns redressing historical and current inequalities within governmental decision-making.³ The hope is that the predictions produced by these predictive systems can correct this problem by providing decision-makers with the information needed to make fairer, more accurate, and consistent decisions.⁴ For instance, jurisdictions claim that their turn to risk assessment algorithms in bail, …

Race, Racial Bias, And Imputed Liability Murder, Perry Moriearty, Kat Albrecht, Caitlin Glass

Faculty Scholarship

Even within the sordid annals of American crime and punishment, the doctrines of felony murder and accomplice liability murder stand out. Because they allow states to impose their harshest punishments on defendants who never intended, anticipated, or even caused death, legal scholars have long questioned their legitimacy. What surprisingly few scholars have addressed, however, is who bears the brunt.

This Article is one of the first to explore the racialized impact of the two most controversial and ubiquitous forms of what we call “imputed liability murder.” An analysis of ten years of murder prosecutions in the state of Minnesota reveals …

Counseling Oppression, Angelo Petrigh

Faculty Scholarship

Critical scholars and public defenders alike have grappled with the contradictions at the heart of counseling clients in a carceral system. Systems of oppression operate within the public defender - client relationship because the defender’s role in translating the law also enforces its inequities. Counseling can obscure the workings of the system, providing an illusion of choice despite privileging certain forms of knowledge and tactics.

But the counseling site is also where defenders become exposed to client’s lived experiences, encounter collectivist tactics, and critically examine the tension of their role in the system. Likewise, through counseling defenders can pull back …

Moving Beyond Statements And Good Intentions In U.S. Law Schools, Angela Onwuachi-Willig

Faculty Scholarship

This Article seeks to answer these questions about how law school leaders might help to cultivate antiracist cultures within their law schools, among their students, and across the legal profession, even in the face of a growing national backlash against antiracism, diversity, equity, and inclusion.³² Part I first establishes why it is important for law schools to "provide [an] education to law students on bias, cross-cultural competency, and racism," as the American Bar Association (ABA) requires, and to train future lawyers who have the abilities to combat racism. ³³ In so doing, Part I defines key terms such as …