Digital Commons Network^™

"The Road I Can't Help Travelling": Holmes On Truth And Persuadability, Joseph Blocher

Faculty Scholarship

No abstract provided.

Disability And Design, Christopher Buccafusco

Faculty Scholarship

When scholars contemplate the legal tools available to policymakers for encouraging innovation, they primarily think about patents. If they are keeping up with the most recent literature, they may also consider grants, prizes, and taxes as means to increase the supply of innovation. But the innovation policy toolkit is substantially deeper than that. To demonstrate its depth, this Article explores the evolution of designs that help people with disabilities access the world around them. From artificial limbs to the modern wheelchair and the reshaping of the built environment, a variety of legal doctrines have influenced, for better and for worse, …

Building A Law-And-Political-Economy Framework: Beyond The Twentieth-Century Synthesis, Jedediah Britton-Purdy

Faculty Scholarship

We live in a time of interrelated crises. Economic inequality and precarity, and crises of democracy, climate change, and more raise significant challenges for legal scholarship and thought. “Neoliberal” premises undergird many fields of law and have helped authorize policies and practices that reaffirm the inequities of the current era. In particular, market efficiency, neutrality, and formal equality have rendered key kinds of power invisible, and generated a skepticism of democratic politics. The result of these presumptions is what we call the “Twentieth-Century Synthesis”: a pervasive view of law that encases “the market” from claims of justice and conceals it …

How Conceptual Art Challenges Copyright's Notions Of Authorial Control And Creativity, Christopher Buccafusco

Faculty Scholarship

No abstract provided.

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …

Digging Into Algorithms: Legal Ethics And Legal Access, Carla L. Reyes, Jeff Ward

Faculty Scholarship

The current discussions around algorithms, legal ethics, and expanding legal access through technological tools gravitate around two themes: (1) protection of the integrity of the legal profession and (2) a desire to ensure greater access to legal services. The hype cycle often pits the desire to protect the integrity of the legal profession against the ability to use algorithms to provide greater access to legal services, as though they are mutually exclusive. In reality, the arguments around protecting the profession from the threats posed by algorithms represent an over-fit in relation to what algorithms can actually achieve, while the visions …

Fossil Fortunes: Regulating Commercial Paleontology & Incentivizing Fossil Discovery, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

Complete Contracts In Finance, Elisabeth De Fontenay

Faculty Scholarship

Notwithstanding its significant influence in corporate finance, the theory of incomplete contracts is arguably misunderstood by courts enforcing contracts governing corporate transactions. In resolving such disputes, judges implicitly assume that complete contracts are both achievable and desirable when the parties are financially sophisticated, and they systematically assign blame to one of the parties for leaving the contract incomplete. This, in turn, prompts parties to write ever longer and more complex agreements. Such agreements do not necessarily produce more efficient outcomes, however. In fact, they may yield unexpected outcomes or interpretations, which can be enforced opportunistically by one of the parties …

Autonomous Systems & International Norms, Charles J. Dunlap Jr., Richard Jordan, Elsa Kania, Michael Klare

Faculty Scholarship

No abstract provided.

Accountability, Secrecy, And Innovation In Ai-Enabled Clinical Decision Software, Arti K. Rai, Isha Sharma, Christina Silcox

Faculty Scholarship

This article employs analytical and empirical tools to dissect the complex relationship between secrecy, accountability, and innovation incentives in clinical decision software enabled by machine learning (ML-CD). Although secrecy can provide incentives for innovation, it can also diminish the ability of third parties to adjudicate risk and benefit responsibly. Our first aim is descriptive. We address how the interrelated regimes of intellectual property law, Food and Drug Administration (FDA) regulation, and tort liability are currently shaping information flow and innovation incentives. We find that developers regard secrecy over training data and details of the trained model as central to competitive …

Tools For Regulators In A Changing Climate: Proposed Standards, State Policies, And Case Studies From The Western Grid, Adam D. Orford

Faculty Scholarship

With climate change a present reality, governments are confronting the need to adapt their regulatory planning processes to withstand new and uncertain climate risks. This Article provides three new resources to support this essential work. First, it develops a new standard for assessing the quality of climate adaptation decisionmaking, focusing on defining the problem, quantifying adaptation benefits, and evaluating equitable distribution of risk. Second, it reviews California’s climate adaptation policy development efforts between 1988 and 2018—from the state’s early efforts to study the problem, to later attempts at statewide strategic planning, until more recent work to integrate adaptation into existing …

Deal Insurance: Representation & Warranty Insurance In Mergers & Acquisitions, Sean J. Griffith

Faculty Scholarship

Efficient contracting depends upon imposing risk on the party with superior access to information. Yet the parties in mergers and acquisitions transactions now commonly use Representation and Warranty Insurance (“RWI”) to shift this risk to a third-party insurer. Because liability and trust go together, RWI would seem to give rise to a credible commitment problem between the transacting parties, and it raises adverse selection and moral hazard problems for the insurer.

This paper examines the emergence of RWI, focusing on three interrelated questions. First, how does RWI affect transactions?Second, why do transacting parties use RWI? And third, why do insurers …

Interpreting Contracts In A Regulatory State, Aditi Bagchi

Faculty Scholarship

Some scholars would limit courts to the text of written agreements when interpreting contracts on the theory that parties meant what they said, and said what they meant. Other scholars would have courts take into account the factual context surrounding contract formation. Both sides of this debate assume that contract interpretation is largely limited to reconstructing contracting parties’ intentions.

This assumption is mistaken. Since the overturning of Lochner v New York, contracting parties no longer have exclusive authority over contracts. State authority to regulate contract came at the expense of unbridled private authority. A more limited conception of contracting …

Evidentiary Irony And The Incomplete Rule Of Completeness: A Proposal To Amend Federal Rule Of Evidence 106, Daniel J. Capra, Liesa L. Richte

Faculty Scholarship

No abstract provided.

Against Prosecutors, I. Bennett Capers

Faculty Scholarship

No abstract provided.

Crystal Gazing: Foretelling The Next Decade In Oil And Gas Law, Joseph A. Schremmer

Faculty Scholarship

This chapter attempts to predict the major issues oil and gas law will encounter in the 2020s. Yet even before the first draft could be completed, the industry landscape changed unexpectedly. As this chapter goes to press, the global and domestic economies are just starting to emerge from a sharp downturn brought on by the outbreak of COVID-19. Oil and natural gas prices collapsed to levels not seen in decades. Against this unforeseen backdrop, the legal changes facing oil and gas development in the United States look somewhat different. But one element of our new reality is consistent with this …

First Man And Second Woman: Reflections On The Anniversaries Of Apollo 11 And Cruzan, George J. Annas

Faculty Scholarship

THE United States Supreme Court's decision in Cruzan v. Director, Missouri Department of Health marks its thirtieth anniversary in 2020.' This follows closely after the fiftieth anniversary of the Apollo 11 moon landing.² Anniversaries provide an opportunity for reflection and to gain perspective. We can, I suggest, gain deeper insights regarding human life and death by considering these two anniversaries together. Apollo 11 may seem far from Nancy Cruzan-but the discovery of disturbing details about the death of Neil Armstrong, the first man on the moon, is a productive introduction to the topic of death in a modern American …

Technologies Of Language Meet Ideologies Of Law, Anya Bernstein

Faculty Scholarship

This Article challenges this new prevailing wisdom, puts legal corpus linguistics in the context of other meaning-making technologies, and suggests an approach for analyzing any technology of language in the law. One of my aims is to caution against technological exceptionalism—a view that computerized, automated, or big-data approaches are somehow special, perhaps more trustworthy, less subjective, and most likely to succeed. Rather, I argue that we should ask the same questions and make the same demands of any method of interpretation.

Any technology, after all, is only as useful as the way it is used: Technology depends on technique. So …

The Footprint Of The Chinese Petro-Dragon: The Future Of Investment Law In Transboundary Resources, Guillermo J. Garcia Sanchez

Faculty Scholarship

Chinese offshore investments in the oil and gas sector around the world are on the rise. Like dragons roaming the seas trying to dominate the tides, Chinese state-owned companies are particularly eager to bid for oil fields in maritime borderlines. The article tells the story of how Chinese state-owned companies are over paying for oil on the US-Mexico boundary to gather experience on how China’s global competitors handle resource development conflicts. My argument is that Chinese participation in transboundary field development fits within a long-term strategy to master international legal regimes. The presence of these petro-dragons in borderlines is an …

Risk Factors And Mortality Rates Associated With Invasive Group B Streptococcus Infections Among Patients In The Us Veterans Health Administration, Robin L.P. Jump, Brigid Wilson, Daniel Baechle, Sunah Song, Federico Perez

Faculty Scholarship

IMPORTANCE The incidence of invasive infections caused by group B Streptococcus (GBS) continues to increase in the United States. Although diabetes is a key risk factor for invasive GBS, the influence of long-term glycemic control is not well characterized; other risk factors and mortality rates associated with specific types of invasive GBS infections are unknown. OBJECTIVE To investigate risk factors and mortality rates associated with specific invasive GBS infectious syndromes. DESIGN, SETTING, AND PARTICIPANTS This cohort study used US Veterans Health Administration data to assess active users of the Veterans Affairs health care system between January 1, 2008, and December …

Electroanalytical Investigation Of The Electrode –Electrolyte Interface Of Quaternary Ammonium Ionic Liquids: Impact Of Alkyl Chain Length And Ether Functionality, Jeffrey M. Klein, Henry Squire, Burcu E. Gurkan

Faculty Scholarship

The influence of ionic associations and potential-dependent interactions on the electrode-electrolyte interfacial structure of ionic liquids (ILs) is studied by electrochemical impedance spectroscopy (EIS) and surface-enhanced Raman spectroscopy (SERS) for a variety of asymmetric quaternary ammonium ILs. Specifically, the impact of cation alkyl chain length (C = 4, 8 and 16) and ether functionality on the interfacial structuring of ILs at the glassy carbon electrode surface is examined. Ammonium cations with alkyl chain length of 8 and 16 carbons are found to stabilize the formation of the bis(trifluorosulfonyl)imide, [TFSI], anion dense Stern layer at positive electrode potentials leading to larger …

In-Situ Observation Of Aln Formation From Ni-Al Solution Using An Electromagnetic Levitation Technique, Andrew J. Loach, Justin S. Fada, Laura G. Wilson, Roger H. French, Jennifer L. W. Carter

Faculty Scholarship

Aluminum nitride is a promising substrate material for AlGaN-based UV-LED. In order to develop a robust growth processing route for AlN single crystals, fundamental studies of solution growth experiments using Ni-Al alloy melts as a new solution system were performed. Al can be stably kept in solution the Ni-Al liquid even at high temperature; in addition, the driving force of the AlN formation reaction from solution can be controlled by solution composition and temperature. To investigate AlN crystal growth behavior we developed an in situ observation system using an electromagnetic levitation technique. AlN formation behavior, including nucleation and growth, was …

The Role Of Social, Economic, And Physical Environmental Factors In Care Planning For Home Health Care Recipients, Elliane Irani

Faculty Scholarship

Social, economic, and environmental factors contribute to patients’ recovery following hospitalization. However, little is known about how home health nurses make decisions based on their assessment of these factors. The purpose of the current study was to explore the nonclinical factors that home health nurses evaluate and describe how these factors influence care planning decisions. Semi-structured inter-views conducted with 20 visiting nurses from three home health agencies were analyzed using conven-tional content analysis. Three nonclinical factor themes emerged: Social Support, Home Environment and Neighborhood, and Finances and Insurance Barriers. Nurses’ assessments guided them to include family caregivers in the plan …

Metal-Free Deep Eutectic Solvents: Preparation, Physical Properties, And Significance, Burcu E. Gurkan, Henry Squire

Faculty Scholarship

In the past decade, reports detailing the preparation, characterization, and application of deep eutectic solvents (DESs) have grown in number significantly, showing signs of increased interest and attention. Indeed, these systems provide tunable polar environments attractive for their ease of synthesis and lack of need for purification. DESs are homogeneous systems composed of two or more components having a significantly depressed melting point compared to either constituent material. As interest and application of DESs grow, the need for a common understanding of their preparation and characterization is required. In this Perspective, we discuss metal-free DESs, focusing on their preparation, characterization …

Washington’S 'Cutting-Edge' Solution To Combat Sales Tax Fraud, Richard Thompson Ainsworth, Robert Chicoine, Andrew Leahey, Sunder Gee

Faculty Scholarship

Globally, consumption tax compliance (value added tax and retail sales tax) has gone digital – digital invoices are becoming mandatory, centralized monitoring of transactions and tax payments are increasingly common, and artificial intelligence is assessing fraud risks in real-time. When tax is collected, it is increasingly being remitted in near-real-time. This is the trajectory for the modern retail sales tax (RST) imposed by most states in the US. While this may appear to be revolutionary to the average American, it is a well-worn path among global nations using the value added tax (VAT). The RST will eventually be following suit. …

Deep Fakes: A Looming Challenge For Privacy, Democracy, And National Security, Robert Chesney, Danielle K. Citron

Faculty Scholarship

Harmful lies are nothing new. But the ability to distort reality has taken an exponential leap forward with “deep fake” technology. This capability makes it possible to create audio and video of real people saying and doing things they never said or did. Machine learning techniques are escalating the technology’s sophistication, making deep fakes ever more realistic and increasingly resistant to detection. Deep-fake technology has characteristics that enable rapid and widespread diffusion, putting it into the hands of both sophisticated and unsophisticated actors. While deep-fake technology will bring with it certain benefits, it also will introduce many harms. The marketplace …

Prophetic Patents, Janet Freilich

Faculty Scholarship

In most contexts, making up data is forbidden - considered fraudulent or even immoral. Not so in patents. Patents often contain experimental data and it is perfectly acceptable for these experiments to be entirely fictional. These so-called "prophetic examples" are not only explicitly permitted by both the Patent and Trademark Office and federal courts, but are considered almost equivalent to factual data in patent doctrine. Though prophetic examples are thought to be common, there are no studies of these experiments, no explanation for why fictional data are allowed in patents, and no evaluation of the practice.

Here, I provide the …

A Natural Right To Copy, Glynn Lunney

Faculty Scholarship

In this symposium, we gather to celebrate the work of Wendy Gordon. In this essay, I revisit her article, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property. In the article, Professor Gordon first used the "no-harm" principle of John Locke to justify copyright as natural right and then used his “enough-and-as-good” proviso to limit that right. Her second step turned natural rights approaches to copyright on its head. Through it, she showed that even if we accept copyright as natural right, that acceptance does not necessarily lead to a copyright of undue breadth …

Sonic Hedgehog Is Expressed By Hilar Mossy Cells And Regulates Cellular Survival And Neurogenesis In The Adult Hippocampus, Luis E. Gonzalez-Reyes, Chia-Chu Chiang, Mingming Zhang, Joshua Johnson, Manuel Arrillaga-Tamez, Nicholas H. Couturier, Neha Reddy, Jeffrey R. Capadona, Dominique M. Durand

Faculty Scholarship

Sonic hedgehog (Shh) is a multifunctional signaling protein governing pattern formation, proliferation and cell survival during embryogenesis. In the adult brain, Shh has neurotrophic function and is implicated in hippocampal neurogenesis but the cellular source of Shh in the hippocampus remains ill defined. Here, we utilize a gene expression tracer allele of Shh (Shh-nlacZ) which allowed the identification of a subpopulation of hilar neurons known as mossy cells (MCs) as a prominent and dynamic source of Shh within the dentate gyrus. AAV-Cre mediated ablation of Shh in the adult dentate gyrus led to a marked degeneration of MCs. Conversely, chemical …

Understanding The Role Of Complexation In The Charge-Transfer Kinetics Of The Cu2+ + E ↔ Cu1+ Redox Reaction In Ethaline Deep Eutectic Solvent, Dai Shen, Rohan Akolkar

Faculty Scholarship

Deep eutectic solvent (DES) based electrolytes are gaining attention for electrochemical applications. As such, knowledge of the charge transfer kinetics in DES and its dependence on electrolyte composition and temperature is important. Using Cu2+ + e ↔ Cu1+ as a model system, we demonstrate that metal redox reactions in chloride-containing DES media suffer from sluggish charge transfer kinetics. The exchange current density, i0, displayed a peculiar inverse relationship with the bulk chloride concentration, [Cl−]b. The i0 decreased from 7.9 to 3.0 mA/cm2 when [Cl−]b increased from 2.8 to 4.6 M at 30°C. Such dependence is shown to originate from Cl− …