Digital Commons Network^™

Bridging Rhetoric And Pragmatics With Relevance Theory, Brian N. Larson

Faculty Scholarship

In this chapter, I bridge rhetoric and pragmatics, both of which concern themselves with language-in-use and meaning-making beyond formal syntax and semantics. Previous efforts to link these fields have failed, but Sperber and Wilson’s relevance theory (RT), an approach to experimental pragmatics grounded in cognitive science, offers the bridge. I begin by reviewing Gricean pragmatics and its incompatibility with rhetoric and cognitive science. I then sketch RT, but importantly, I identify revisions to RT that make it a powerful tool for rhetorical analysis, a cognitive pragmatic rhetorical (CPR) theory. CPR theory strengthens RT by clarifying what it means to be …

Digging Them Out Alive, Michael Millemann, Rebecca Bowman Rivas, Elizabeth Smith

Faculty Scholarship

From 2013-2018, we taught a collection of interrelated law and social work clinical courses, which we call “the Unger clinic.” This clinic was part of a major, multi-year criminal justice project, led by the Maryland Office of the Public Defender. The clinic and project responded to a need created by a 2012 Maryland Court of Appeals decision, Unger v. State. It, as later clarified, required that all Maryland prisoners who were convicted by juries before 1981—237 older, long-incarcerated prisoners—be given new trials. This was because prior to 1981 Maryland judges in criminal trials were required to instruct the jury …

A Longitudinal Examination Of Factors Associated With Network Bridging Among Ymsm: Implications For Hiv Prevention, Dexter R. Voisin

Faculty Scholarship

Social-environmental factors may be associated with social network stability, which has implications for HIV acquisition. However, the link between social-environmental factors, network composition and HIV risk has not been examined previously among a city-population based sample of young Black men who have sex with Men (YBMSM). Respondent driven sampling was used to recruit a cohort of 618 YMBSM. Respondents were evaluated at baseline, 9 and 18 months beginning June 2013. A logistic regression model was used to assess the relationship between bridging (i.e. having non-redundant contacts in one’s network, indicating network instability) and social-environmental factors and HIV risk factors between …

Rural Health, Universality, And Legislative Targeting, Nicole Huberfeld

Faculty Scholarship

Health disparities are persistent and worsening for rural communities, which have smaller patient populations with higher rates of uninsurance and greater incidence of the diseases and deaths of despair. Hospital closures and provider shortages are more common than in urban areas, also contributing to worsening population health and crises in maternal and infant health. This paper posits that these disparities are tied to the unique rural features of space and population. Efforts to address persistent problems in health care through universal legislation, such as the ACA, have given rural communities important tools to address some long-standing health problems by improving …

What Is Federalism In Health Care For?, Nicole Huberfeld

Faculty Scholarship

The Affordable Care Act offers a window on modern American federalism—and modern American nationalism—in action. The ACA’s federalism is defined not by separation between state and federal, but rather by a national structure that invites state-led implementation. As it turns out, that structure was only a starting point for a remarkably dynamic and adaptive implementation process that has generated new state-federal arrangements. States move back and forth between different structural models vis-à-vis the federal government; internal state politics produce different state choices; states copy, compete, and cooperate with each other; and negotiation with federal counterparts is a near-constant. These characteristics …

Prejudice, Constitutional Moral Progress, And Being "On The Right Side Of History": Reflections On Loving V. Virginia At Fifty, Linda C. Mcclain

Faculty Scholarship

What does it mean to be on the “right” or “wrong” side of history? When Virginia’s Attorney General explained his decision not to defend Virginia’s “Defense of Marriage Law” prohibiting same-sex marriage, he asserted that it was time for Virginia to be on the “right” rather than “wrong” side of history and the law. He criticized his predecessors, who defended the discriminatory laws at issue in Brown v. Board of Education, Loving v. Virginia, and United States v. Virginia. Loving played a crucial role in the majority opinion in Obergefell v. Hodges, even as the dissenters disputed …

The Thin Blue Line From Crime To Punishment, Alice Ristroph

Faculty Scholarship

No abstract provided.

No Cake For You: Discrimination, Dignity, And Refusals To Serve, William Araiza

Faculty Scholarship

No abstract provided.

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Eduard Fosch Villaronga, Peter Kieseberg, Tiffany Li

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

Brief For Professors, Lamar, Archer & Cofrin, Llp V. R. Scott Appling As Amicus Curiae, Laura Spitz

Faculty Scholarship

This brief is concerned with the Petitioner’s misinterpretation of §523(a)(2) of the United States Bankruptcy Code, 11 U.S.C. §101, et seq., which wrongly maintains that a false oral statement describing a single asset gives rise to a non-dischargeable debt. This brief shows Congress understood that §523(a)(2) simply re-enacted statutory language already having a completely settled understanding that a statement about a single asset was a “statement respecting financial condition” which must be in writing in order to give rise to a nondischargeable debt. This brief also submits that even if, arguendo, Petitioner were correct that a statement respecting financial condition …

Pathways Linking Family Stress To Youth Delinquency And Substance Use: Exploring The Mediating Roles Of Self-Efficacy And Future Orientation, Dexter R. Voisin

Faculty Scholarship

African American adolescents in poorer neighborhoods experience significant sanctions related to drug use and delinquency. Parental stress (i.e. substance use, mental distress, and incarceration) is associated with youth drug use and delinquency. We examined whether high self-esteem and positive future orientation mediated parental stress and youth substance use and delinquency. Demographic, family stress, future orientation, self-esteem, and drug use data were collected from 578 youths. Major findings indicated that self-esteem mediated the relationship between family stress and both drug use and delinquency. Future mediated the relationship between family stress and delinquency. Resiliency factors may promote positive development for low-income youth.

Patent Schisms, Clark D. Asay

Faculty Scholarship

Parties frequently obtain patents for one purpose, only to use those patents for another. This article calls such divergences between parties' initial motivations to obtain patents and those patents' predominant uses late on "patent schisms."

Because traditional patent law theories typically treat the purposes of patents as static, scholars have neglected to explicitly examine patent schisms and the reasons behind them. This is so despite the pervasiveness of patent schisms in a variety of important contexts. Those contexts include the patenting behaviors of early-stage companies, later-stage companies, so-called "patent trolls," and universities. In fact, patent schisms lie at the heart …

Anti-Innovation Norms, Stephanie Plamondon, Laura G. Pedraza-Fariña

Faculty Scholarship

Intellectual property (IP) scholars have recently turned their attention to social norms—informal rules that emerge from and are enforced by nonhierarchically organized social forces—as a promising way to spur innovation in communities as diverse as the fashion industry and the open-source software movement. The narrative that has emerged celebrates social norms’ ability to solve IP’s free-rider problem without incurring IP’s costs.

But this account does not fully consider the dark side of social norms. In fact, certain social norms, when overenforced, can create substantial barriers to the most socially beneficial creative pursuits. Because IP scholars have left unexplored how social …

Personal Strengths Reported By People With Chronic Illness: A Qualitative Study, Kurt C. Stange

Faculty Scholarship

Background: Self-management of chronic illness can be highly demanding and people need to mobilize their personal strengths to live well with their condition. More knowledge is needed about how people with chronic illness perceive and use their personal strengths as a basis for better integrating empowering person-centred approaches into health care. Objective: To explore what people with chronic illness describe as their strengths relevant to their health and well-being. Setting and Participants: Thirty-nine participants (11 men) from 4 outpatient self-management programmes were recruited to individual or group interviews. Participants included patients with chronic respiratory disease (n = 7), chronic pain …

Beyond Intermediary Liability: The Future Of Information Platforms - Workshop Report, Tiffany Li

Faculty Scholarship

On February 13, 2018, WIII hosted the workshop, “Beyond Intermediary Liability: The Future of Information Platforms.” Leading experts from industry, civil society, and academia convened at Yale Law School for a series of non-public, guided discussions. The roundtable of experts considered pressing questions related to intermediary liability and the rights, roles, and responsibilities of information platforms in society. Based on conversations from the workshop, WIII published a free, publicly available report detailing the most critical issues necessary for understanding the role of information platforms, such as Facebook and Google, in law and society today. The report highlights insights and questions …

Training Scholars In Dissemination And Implementation Research For Cancer Prevention And Control: A Mentored Approach, Kurt C. Stange

Faculty Scholarship

Background: As the field of D&I (dissemination and implementation) science grows to meet the need for more effective and timely applications of research findings in routine practice, the demand for formalized training programs has increased concurrently. The Mentored Training for Dissemination and Implementation Research in Cancer (MT-DIRC) Program aims to build capacity in the cancer control D&I research workforce, especially among early career researchers. This paper outlines the various components of the program and reports results of systematic evaluations to ascertain its effectiveness. Methods: Essential features of the program include selection of early career fellows or more experienced investigators with …

A Systematic Review Of Clinic And Community Intervention To Increase Fecal Testing For Colorectal Cancer In Rural And Low-Income Populations In The United States – How, What And When?, Kurt C. Stange

Faculty Scholarship

Background: Interventions to improve fecal testing for colorectal cancer (CRC) exist, but are not yet routine practice. We conducted this systematic review to determine how implementation strategies and contextual factors influenced the uptake of interventions to increase Fecal Immunochemical Tests (FIT) and Fecal Occult Blood Testing (FOBT) for CRC in rural and low-income populations in the United States. Methods: We searched Medline and the Cochrane Library from January 1998 through July 2016, and Scopus and clinicaltrials.gov through March 2015, for original articles of interventions to increase fecal testing for CRC. Two reviewers independently screened abstracts, reviewed full-text articles, extracted data …

A Rule Of Persons, Not Machines: The Limits Of Legal Automation, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Are Helicopter Parents Creating A Generation Of Wusi Employees?, Katherine Karl, Frank Butlerq, Joy V. Peluchette, Marjanna Gunkel

Faculty Scholarship

This study examines the extent to which having a helicopter parent is associated with one’s propensity to perceive one’s supervisor as abusive, or WUSI-ness. The WUSI construct consists of three traits including waspishness, umbrageous sensitivity and insecurity. Our findings suggest that having a helicopter mother is significantly related to an individual’s tendency to react with anger in response to supervisor behaviors that others might view as benign (Waspishness), as well as a tendency to anticipate negative interactions with their supervisor and experience high levels of anxiety when such interactions occur (Insecurity). Having a helicopter father was only associated with an …

Beyond Instrumentalism: A Substantivist Perspective On Law, Technology, And The Digital Persona, Frank Pasquale, Arthur J. Cockfield

Faculty Scholarship

No abstract provided.

Beyond The Bosses' Constitution: The First Amendment And Class Entrenchment, Jedediah Purdy

Faculty Scholarship

The Supreme Court’s “weaponized” First Amendment has been its strongest antiregulatory tool in recent decades, slashing campaign-finance regulation, public-sector union financing, and pharmaceutical regulation, and threatening a broader remit. Along with others, I have previously criticized these developments as a “new Lochnerism.” In this Essay, part of a Columbia Law Review Symposium, I press beyond these criticisms to diagnose the ideological outlook of these opinions and to propose an alternative. The leading decisions of the antiregulatory First Amendment often associate free speech with a vision of market effi­ciency; but, I argue, closer to their heart is antistatist fear of entrench­ment …

If We Pay Football Players, Why Not Kidney Donors, Philip J. Cook, Kimberly D. Krawiec

Faculty Scholarship

Ethicists who oppose compensating kidney donors claim they do so because kidney donation is risky for the donor’s health, donors may not appreciate the risks and may be cognitively biased in other ways, and donors may come from disadvantaged groups and thus could be exploited. However, few ethical qualms are raised about professional football players, who face much greater health risks than kidney donors, have much less counseling and screening concerning that risk, and who often come from racial and economic groups deemed disadvantaged. It thus seems that either ethicists—and the law—should ban both professional football and compensated organ donation, …

Radical Feminist Harms On Sex Workers, I. India Thusi

Faculty Scholarship

Sex work has long been a site for contesting womanhood, sexuality, race, and patriarchy. Its very existence forces us to examine how we think about two very dirty subjects-money and sex. The radical feminist literature highlights the problems with sex work and often describes it as a form of "human trafficking" and violence against women. This influential philosophy underlies much of the work in human trafficking courts, was evident in a letter signed by several Hollywood starlets in opposition to Amnesty International's support for decriminalization, and is the premise of several movies and documentaries about "sex slavery." Radical feminists aim …

Conscious Identity Performance, Leslie P. Culver

Faculty Scholarship

No abstract provided.

What To Expect When You’Re Expecting…Tanf-Style Medicaid Waivers, Laura D. Hermer

Faculty Scholarship

Many health policy scholars believe that Medicaid, the federal-state coverage program for lower-income Americans, should remain free from welfare reform trappings such as work requirements that are extraneous to the program. It would seem such requirements would be both inappropriate and counterproductive to the goals of Medicaid. Given the high probability that such requirements will, at least at some level, go into effect during the Trump administration, it bears considering what to expect. What evidence, if any, suggests that imposing welfare reform-style requirements on certain Medicaid beneficiaries will yield harmful results to those beneficiaries, or harmful to Medicaid’s programmatic goal …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …

How Daubert And Its Progeny Have Failed Criminalistics Evidence And A Few Things The Judiciary Could Do About It, David H. Kaye

Faculty Scholarship

A recent report of the President’s Council of Advisors on Science and Technology questioned the validity of several types of criminalistics identification evidence and recommended “a best practices manual and an Advisory Committee note, providing guidance to Federal judges concerning the admissibility under Rule 702 of expert testimony based on forensic feature-comparison methods.” This article supplies information on why and how judicial bodies concerned with possible rules changes—and courts applying the current rules—can improve their regulation of criminalistics identification evidence. First, it describes how courts have failed to faithfully apply Daubert v. Merrell Dow Pharmaceutical’s criteria for scientific validity to …

The Rainy Day Earned Income Tax Credit: A Reform To Boost Financial Security By Helping Low-Wage Workers Build Emergency Savings, Sarah Halpern-Meekin, Sara Sternberg Greene, Ezra Levin, Kathryn Edin

Faculty Scholarship

Financial stability depends on emergency savings. Low-wage workers regularly experience drops in income and unexpected expenses. Households with savings absorb these financial shocks but most low-income Americans lack rainy day savings. Therefore, even a small shock, like car repairs, can result in a cascade of events that throws a low-income family into poverty. Nonetheless, existing policies address emergency savings only indirectly. However, the Earned Income Tax Credit (EITC) already functions as an imperfect, makeshift savings tool. This lump sum refund at tax time gives workers a moment of financial slack, but many EITC recipients lack emergency reserves later in the …

The Constitutionality Of A National Wealth Tax, Dawn Johnsen, Walter Dellinger

Faculty Scholarship

Economic inequality threatens America’s constitutional democracy. Beyond obvious harms to our nation’s social fabric and people’s lives, soaring economic inequality translates into political inequality and corrodes democratic institutions and values. The coincident, relentless rise of money in politics exacerbates the problem. As elected officials and candidates meet skyrocketing campaign costs by devoting more and more time to political fundraising—and independent expenditures mushroom—Americans lose faith and withdraw from a system widely perceived as beholden to wealthy individuals and corporate interests.

The United States needs innovative approaches to help rebuild foundational, shared understandings of American democracy, the American Dream, and opportunity and …

No More Blood, Kerry Abrams

Faculty Scholarship

No abstract provided.