Digital Commons Network^™

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

Inmate Assistance Programs, Tim Friehe, Murat C. Mungan

Faculty Scholarship

This paper analyzes the deterrence implications of different inmate assistance programs (IAPs), carefully distinguishing between deterrence of first offenses and recidivism. All IAPs considered in our model reduce recidivism, and we identify IAPs that also reduce the first offense rate. However, IAPs which increase work opportunities, improve the reintegration of exiting inmates, and moderate individual’s self-control issues may lower the deterrence of first offenses, if this possibility is not adequately anticipated when designing these IAPs.

Going "Beyond" Mere Transformation: Warhol And Reconciliation Of The Derivative Work Right And Fair Use, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

The Supreme Court’s recent decision in Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith is a watershed moment in the story of copyright jurisprudence. At its broadest, the decision articulates a unified vision — one that had been dormant in the lower court fair use jurisprudence — about the role of copyright and the manner in which to make sense of its effort to balance exclusivity with its myriad limitations. This Essay focuses on how the Court reconciled the working of the statute’s derivative work right with the breadth and reach of the “transformative use” version of the fair …

The National Security Exception At The Wto: Should It Just Be A Matter Of When Members Can Avail Of It? What About How?, Mona Pinchis-Paulsen, Kamal Saggi, Petros C. Mavroidis

Faculty Scholarship

The GATT security exceptions were practically in hibernation until recently. The recent WTO disputes panel activity concerning such exceptions is characterized by a standard of review that places the accent on ‘when’ action should be taken and not so much on ‘what’ action should be taken. We see two problems with this construction. First, the ‘when’ might be a function of privileged information that those possessing it might be unwilling to divulge in a transparent manner. Second, national security is an amorphous concept, and unless we disaggregate it, it is impossible to pronounce the appropriateness of measures adopted to pursue …

The Influence Of The Race Of Defendant And The Race Of Victim On Capital Charging And Sentencing In California, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence

Faculty Scholarship

The California Racial Justice Act of 2020 recognized racial and ethnic discrimination as a basis for relief in capital cases, expressly permitting several types of statistical evidence to be introduced. This statewide study of the influence of race and ethnicity on the application of capital punishment contributes to this evidence. We draw on data from over 27,000 murder and manslaughter convictions in California state courts between 1978 and 2002. Using multiple methods, we found significant racial and ethnic disparities in charging and sentencing decisions. Controlling for defendant culpability and specific statutory aggravators, we show that Black and Latinx defendants and …

From The Bench, Pierre Leval, M. Margaret Mckeown, Jane C. Ginsburg

Faculty Scholarship

Lightly edited transcript of panel comments at the 2023 Symposium, “Rearrange, Transform, or Adapt: The Derivative Works Right After Andy Warhol Foundation v. Goldsmith.”

The Surprising Survival – So Far – Of The Corporate Contribution Ban, Richard Briffault

Faculty Scholarship

In Citizens United v. Federal Election Commission, the Supreme Court invalidated the longstanding ban on the expenditure of corporate funds in federal election campaigns. In so doing, the Court dismissed outright an argument that had long been the foundation for the restriction of corporate money in election campaigns — that, due to the “substantial aggregations of wealth amassed by the special advantages which go with the corporate form[,]” corporate money poses a distinct threat to the integrity of democracy. Instead, viewing corporations as essentially “associations of citizens,” Citizens United determined that “the First Amendment does not permit Congress to …

Administrative Arrest Warrants: Armed Encounters Outside The Judicial Process, Meg Penrose

Faculty Scholarship

This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this …

Prudence, Role Morality, And Restraint: Judge Wilkinson On The Separation Of Powers, Katherine Mims Crocker, Jack Goldsmith

Faculty Scholarship

Caution in reviewing the actions of the legislative and executive branches has been a hallmark of the jurisprudence of Judge J. Harvie Wilkinson III. The Constitution “at most gives judges specific authority to redress violations of specific provisions,” Judge Wilkinson writes in his book Cosmic Constitutional Theory. But even when doing so, “courts must exercise great caution before injecting themselves into the vortex of varied political questions,” for “[i]t is often far preferable to allow the political institutions under our Constitution to struggle among themselves, with each bringing to bear the respective arsenal of powers the Framers accorded them.” …

New York Falling Behind In Implementing Bold Climate Law, Michael B. Gerrard

Faculty Scholarship

In July 2019, shortly after Gov. Andrew Cuomo signed the Climate Leadership and Community Protection Act (CLCPA), I wrote in an op-ed, “The champagne corks are still popping. But the realization is dawning that implementing the new law will be really, really hard. New York is boldly going where no state has gone before … It will take a great deal of sweat and treasure (no one knows just how much), as well as a continuation of the political will that brought us to this point.”

We still do not know how much sweat and treasure will be required, but …

Perpetuating Inequality: What Salary History Bans Reveal About Wages, James Bessen, Chen Meng, Erich Denk

Faculty Scholarship

Pay gaps for women and minorities have persisted after accounting for observable differences. Why? If employers can access applicants’ salary histories while bargaining over wages, they can take advantage of past inequities, perpetuating inequality. Recently, a dozen US states have banned employer access to salary histories. We analyze the effects of these salary history bans (SHBs) on employer wage posting and pay in a difference-in-differences design. Following SHBs, employers posted wages more often and increased pay for job changers, particularly for women (6.4%) and non-whites (7.7%). Bargaining behavior appears to account for much of the persistence of residual wage gaps.

What The Warhol Court Got Wrong: Use As An Artist Reference And The Derivative Work Doctrine, Jessica Silbey, Eva Subotnik

Faculty Scholarship

In Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, the Supreme Court conflated “use as an artist reference” with preparing a “derivative work.” It did so on the erroneous assumption that permission to use a copyrighted work as an artist reference is a license to prepare a derivative work. But copyright law does not necessarily deem all uses of references for making new art to be the preparation of a derivative work. In other words, not all adaptations of an original work are infringing. Some may be neither derivative works nor substantially similar copies, and some may …

Is Distance From Innovation A Barrier To The Adoption Of Artificial Intelligence?, Jennifer Hunt, Iain Cockburn, James Bessen

Faculty Scholarship

Using our own data on Artificial Intelligence publications merged with Burning Glass vacancy data for 2007-2019, we investigate whether online vacancies for jobs requiring AI skills grow more slowly in U.S. locations farther from pre-2007 AI innovation hotspots. We find that a commuting zone which is an additional 200km (125 miles) from the closest AI hotspot has 17% lower growth in AI jobs’ share of vacancies. This is driven by distance from AI papers rather than AI patents. Distance reduces growth in AI research jobs as well as in jobs adapting AI to new industries, as evidenced by strong effects …

Constructing A Liberal/Progressive “Constitution In Exile”: An Appreciation Of Jack Balkin’S Memory And Authority, James E. Fleming

Faculty Scholarship

Balkin’s book makes clear why many liberal/progressive criticisms of conservative originalists—that they get the history wrong or cherry-pick it, that they only selectively insist upon originalism and otherwise ignore it, and the like—deliver at best glancing blows (as far as the conservative originalists are concerned). For one thing, he shows that the construction of memory entails the construction of forgetting (or erasure),7 which is essential to originalist projects that whitewash our historical injustices and repudiate the progressive aspirations embodied in our history. Hence, when conservative originalists erase unjust aspects of our history, and liberals and progressives criticize them for not …

Critical Race Theory As Legal Epistemic Justice, Jasmine Gonzales Rose

Faculty Scholarship

“Critical Thinking: Not Critical Race Theory” and “Teach Truth: Not CRT,” proclaimed the front and back of a T-shirt on a fellow traveler passing in the airport. I was startled by the blatant misconceptions. The core pursuits of critical race theory (“CRT”) are to think critically, discover truth, and diversify knowledge about race and racism. Although I was aware of then-President Trump’s executive order barring federal diversity training and bills modeled after it, nothing had prepared me for the realization that my academic subfield had become so widely criticized that it was now the subject of T-shirt slogans. A few …

Diffuse Interface Modeling Of Non-Isothermal Stokes-Darcy Flow With Immersed Transmissibility Conditions, Hyoung Suk Suh

Faculty Scholarship

The coupling between free and porous medium flows has received significant attention since it plays an important role in a wide range of problems from fluid-soil interactions to biofluid dynamics. However, modeling this coupled process remains a difficult task as it often involves a domain decomposition algorithm in conjunction with a special treatment at the interface. The problem can become more challenging under non-isothermal conditions because it requires the iterative procedure at every time step to simultaneously meet the transient mass continuity, force equilibrium, and energy balance for the entire system. This article presents a diffuse interface framework for modeling …

A Magnetic-Directed Micro-Particle With Near-Ir Light Triggered Guest-Release Property, Jin Ge, Xiang Cheng, Lihan Rong

Faculty Scholarship

In this study, guest carriers, composed of magnetic-directed hydrogel particles with near-infrared (NIR)-light-triggered guest-release properties, are prepared via the one-pot method. The gel particles contain photostable NIR-responsive polypyrrole nanoparticles with temperature-sensitive poly(N-isopropyl acrylamide), the combination of which can induce the accelerated release of encapsulated drugs by 337% upon 5 minutes of NIR light irradiation based on the release profile of NRMG-1 at 10–15 min. Additionally, with magnetic iron oxide particles crosslinking the polyvinyl alcohol frames, these gel particles can form a physical barrier that decreases the release rate by 20% under an external magnetic field over 24 h. The magnetic …

Carbon-Sulfur Bond Elongation As The Promoting Reaction Coordinate In The Efficient Sub-Nanosecond Intersystem Crossing In Thianaphthene Derivatives, Cameron Griffith, Erqian Mao, Sean J. Hoehn, Sarah E. Krul, Carlos E. Crespo-Hernández

Faculty Scholarship

Thiophene derivatives have become integral to OLEDs, photovoltaics, and photodynamic therapy research. A deeper understanding of their excited state dynamics and electronic relaxation mechanisms is expected to provide important physical insights of direct relevance for these applications. In this study, thianaphthene (TN), 2-methylbenzothiophene (2MBT), and 3-methylbenzothiophene (3MBT) are investigated using femtosecond broadband transient absorption and steady-state spectroscopy techniques along with time-dependent density functional calculations in cyclohexane and acetonitrile. The photophysical properties and electronic relaxation mechanisms of these derivatives are elucidated. Small fluorescence quantum yields ranging from 0.4 to 1.1% are measured. It is demonstrated that excitation of TN at 290 …

Mhongoose: A Meerkat Nearby Galaxy H I Survey, Stacy S. Mcgaugh

Faculty Scholarship

The MHONGOOSE (MeerKAT H i Observations of Nearby Galactic Objects: Observing Southern Emitters) survey maps the distribution and kinematics of the neutral atomic hydrogen (H i) gas in and around 30 nearby star-forming spiral and dwarf galaxies to extremely low H i column densities. The H i column density sensitivity (3σ over 16 km s−1) ranges from ∼5 × 1017 cm−2 at 9000 resolution to ∼4 × 1019 cm−2 at the highest resolution of 700. The H i mass sensitivity (3σ over 50 km s−1) is ∼5.5×105 M at a distance of 10 Mpc (the median distance of the sample …

3d Mr Fingerprinting For Dynamic Contrast-Enhanced Imaging Of Whole Mouse Brain, Yuran Zhu, Yuning Gu, Walter Zhao, Jiahao Lu, Junqing Zhu, Christina J. Macaskill, Andrew Dupuis, Mark A. Griswold, Dan Ma, Chris A. Flask, Xin Yu

Faculty Scholarship

Purpose: Quantitative MRI enables direct quantification of contrast agent concentrations in contrast-enhanced scans. However, the lengthy scan times required by conventional methods are inadequate for tracking contrast agent transport dynamically in mouse brain. We developed a 3D MR fingerprinting (MRF) method for simultaneous T1 and T2 mapping across the whole mouse brain with 4.3-min temporal resolution. Method: We designed a 3D MRF sequence with variable acquisition segment lengths and magnetization preparations on a 9.4T preclinical MRI scanner. Model-based reconstruction approaches were employed to improve the accuracy and speed of MRF acquisition. The method's accuracy for T1 and T2 measurements was …

Living Collections: Biodiversity Cultivated At Public Gardens Has The Power To Connect Ecological Questions And Evolutionary Context, Jean H. Burns, Katharine L. Stuble, Juliana S. Medeiros

Faculty Scholarship

Combining ecological questions with evolutionary context generates novel insight into both ecology and evolution. However, our ability to draw broad inferences can be limited by the taxonomic diversity present within and across species at a site. Public gardens (including botanical gardens and arboreta) may focus solely on aesthetics in developing their gardens, but some public gardens include scientific inquiry and conservation at the core of their missions (Hohn, 2022). These scientifically oriented public gardens follow community standards of excellence (Hohn, 2022) to provide unique access to curated plant collections specifically designed to gather high levels of biodiversity, both among and …

Development Of A Selective Novel Fluorescent Substrate For Sodium-Dependent Transporters, Richard S. Agnes, Raymond F. Muzic Jr.

Faculty Scholarship

Aim: To synthesize, characterize, and validate 6FGA, a fluorescent glucose modified with a Cyanine5.5 at carbon-6 position, for probing the function of sodium-dependent glucose transporters, SGLT1 and SGLT2. Main methods: The synthesis of fluorescent glucose analogue was achieved through “click chemistry” of Cyanine5.5-alkyne and 6-azido-6-deoxy-D-glucose. Cell system studies were conducted to characterize the in vivo transport properties. Key findings: Optical analyses revealed that 6FGA displayed similar spectral profiles to Cyanine5.5 in DMSO, allowing for concentration determination, thus supporting its utility in quantitative kinetic studies within biological assays. Uptake studies in cell system SGLT models, LLC-PK1 and HEK293 cells, exhibited concentration …

Aso Author Reflections: Comparison Of Hospital Volume And Risk-Standardized Mortality Rate As A Proxy For Hospital Quality In Complex Oncologic Hepatopancreatobiliary Surgery, William T. Julian, Lee M. Ocuin

Faculty Scholarship

No abstract provided.

Scheduling Meetings: Are The Odds In Your Favor?, Harsh Mathur

Faculty Scholarship

Abstract: Polling all the participants to find a time when everyone is available is the ubiquitous method of scheduling meetings nowadays. We examine the probability of a poll with m participants and ℓ possible meeting times succeeding, where each participant rejects r of the ℓ options. For large ℓ and fixed r/ℓ, we can carry out a saddle-point expansion and obtain analytical results for the probability of success. Despite the thermodynamic limit of large ℓ, the ‘microcanonical’ version of the problem where each participant rejects exactly r possible meeting times, and the ‘canonical’ version where each participant has a probability …

Association Between Residential Distance To Airport And Blood Lead Levels In Children Under 6 Living In North Carolina, 1992–2015, Abdul-Nasah Soale

Faculty Scholarship

Even with progress in lead poisoning prevention, research has consistently shown there is no safe blood lead level (BLL) for children.1 Behavioral and cognitive deficits are associated with lead exposure, even at low levels.2 Unfortunately, many piston-engine aircraft are still fueled by leaded aviation gas (avgas). The US Environmental Protection Agency (EPA) estimates that 5.2 million people live within 500m of an airport where avgas is used.3 Our past research in six North Carolina (NC) counties indicates that children living within 500m of airports where avgas is used have ∼4% higher BLLs than children who lived beyond 2,000m (reference group); …

Uncertainty Quantification In Machine Learning Models Via Gaussian Process Regression: A Comparative Study, Ayorinde E. Olatunde, Weiqi Yue, Pawan K. Tripathi, Roger H. French, Anirban Mondal

Faculty Scholarship

As the use of Machine learning models in science and engineering continues to increase, there is an increasing need for quantifying the uncertainties inherent in the predictions of these models. The more complex a model is, the more the uncertainties in its predictions increase. Amongst the plethora of methodologies used in quantifying uncertainties lies Gaussian Process Regression (GPR). GPR surmounts some of the popular shortfalls of other state-of-the-art methodologies. Although GPR has some quick wins in its application for uncertainty quantification, it is plagued with some shortfalls, such as scalability issues when the feature space increases as well as an …

The Complexity Of American Federalism, Christian G. Fritz

Faculty Scholarship

For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024).

Alison LaCroix’s insightful new book, The Interbellum Constitution, builds on an often-overlooked fact: that Americans living before the Civil War did not know they were part of an “antebellum” period. That oversight has contributed to a conventional narrative of constitutional history and doctrine during the first half of the nineteenth-century that tends to read that history and doctrine backwards through the lens of a war that contemporaries did not know would define them. From this …

Bridging The Gap: Ai And The Hidden Structure Of Consciousness, Emily Barnes, James Hutson

Faculty Scholarship

The quest to develop Artificial Intelligence (AI) systems that possess human-like consciousness necessitates a deep dive into both theoretical and practical aspects underpinning this ambitious goal. This article builds on initial philosophical explorations of AI consciousness by examining the intricate and often hidden structures that may facilitate conscious experiences in AI. Drawing from concepts in cognitive science and neuroscience, the article elucidates how AI systems can be designed to replicate the structural and functional aspects of human consciousness. The discussion includes the Hierarchy of Spatial Belongings proposed by Forti (2024), frameworks like the Integrated Information Theory (IIT), and models linking …

Contemplating Existence: Ai And The Meaning Of Life, Emily Barnes, James Hutson

Faculty Scholarship

This article explores the intersection of artificial intelligence (AI) with existential philosophy, examining how AI technologies influence human conceptualizations of purpose and meaning. Despite rapid advancements in AI, the domain's implications for existential thought remain underexplored. By integrating interdisciplinary perspectives from psychology, philosophy, and AI ethics, this study elucidates how AI can shape, challenge, or enhance our understanding of life's purpose. It investigates theoretical frameworks and practical implementations of AI engaging in existential questions, analyzing both the capabilities and limitations of AI systems such as ChatGPT in simulating human existential thought. The ethical implications of AI's role in existential inquiries …

Beyond Automation: Ai As A Catalyst For New Job Creation In Software Development, Jill Willard, James Hutson

Faculty Scholarship

As artificial intelligence (AI) continues to evolve, its impact on software development and programming is profound, drawing parallels to the shift from assembler to object-oriented programming. This article explores how AI is reshaping the landscape of software jobs, creating new opportunities rather than diminishing them. By simplifying complex tasks and lowering barriers to coding, AI is expanding the technology "pie," introducing new use cases, and enhancing efficiency. The transition from monolithic services to microservices has reduced risks and accelerated deployment processes, and AI is poised to further this evolution by managing the complexities of service interactions through advanced orchestration layers. …