Digital Commons Network^™

Re-Evaluating Gpt-4’S Bar Exam Performance, Eric H. Martinez

Faculty Scholarship

Perhaps the most widely touted of GPT-4’s at-launch, zero-shot capabilities has been its reported 90th-percentile performance on the Uniform Bar Exam. This paper begins by investigating the methodological challenges in documenting and verifying the 90th-percentile claim, presenting four sets of findings that indicate that OpenAI’s estimates of GPT-4’s UBE percentile are overinflated. First, although GPT-4’s UBE score nears the 90th percentile when examining approximate conversions from February administrations of the Illinois Bar Exam, these estimates are heavily skewed towards repeat test-takers who failed the July administration and score significantly lower than the general test-taking population. Second, data from a recent …

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of its counterfactual implications for a handful of prior decisions of the Supreme Court. …

Consumer Law For Gen Z Law Students, Neil Sobol

Faculty Scholarship

Whether they are consumers, representing consumers, or advising clients dealing with consumers, law school graduates will inevitably confront numerous consumer law issues. Moreover, most students entering law school are members of Generation Z and face a new wave of consumer laws arising from the 2007–2009 recession and the rapid growth of new technologies. Clickwrap agreements, email spoofing, cybercrimes, cryptocurrencies, fintech, identity theft, online disparagement, data privacy, artificial intelligence, robocalling, and autonomous vehicles are among the evolving topics in modern consumer law. Despite the growth in consumer law concerns, many law students have limited access to consumer law options, with almost …

Four Futures Of Chevron Deference, Daniel Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

Evolving Sovereignty Relationships Between Affiliated Jurisdictions: Lessons For Native American Jurisdictions, Vaughan Carter, Charlotte Ku, Andrew P. Morriss

Faculty Scholarship

Though sovereignty is principally associated with governance over a territory and freedom to act in the international arena, this article examines sovereignty as empowerment. The study tests the applicability to Native American jurisdictions of the experiences of fifteen case study jurisdictions presently associated with the United Kingdom, the Netherlands, and France in shared sovereign relationships. The focus is on the evolution of those relationships and opportunities for development where jurisdictions do not attain full control over their affairs. The case studies examine the relationships from the perspectives of political, economic, and cultural sovereignty. The article further examines the relationships in …

Rico's Long Arm, Randy D. Gordon

Faculty Scholarship

RICO has for over 50 years presented something of a parlor game for lawyers, mostly because its text leaves wide latitude in interpretation. And, as is often the case with RICO, resolution of one question begets more. The Supreme Court’s recent decision in Yegiazaryan v. Smagin proves no exception. Here, the Court brought some clarity to a question left open by RJR Nabisco: viz, what must one plead and prove to satisfy the “domestic injury” requirement necessary to invoke an extraterritorial application of RICO. The Court held that a foreign plaintiff can indeed, given the right facts and circumstances, establish …

Nudging Improvements To The Family Regulation System, Joshua Gupta-Kagan

Faculty Scholarship

The Restatement of Children and the Law features a strong endorsement of parents’ rights to the care, custody, and control of their children because parents’ rights are generally good for children. Building on that foundation, the Restatement’s sections on child neglect and abuse law would resolve several jurisdictional splits in favor of greater protections for family integrity, thus protecting more families against the harms that come from state intervention, especially state separation of parents from children.

But a close read of the Restatement shows that it only goes so far. It is not likely to significantly reduce the wide variation …

New York City Relaxing Environmental Review Rules For Housing Construction, Michael B. Gerrard

Faculty Scholarship

Faced with a severe housing shortage, New York City is exempting the construction of much new housing from the environmental review processes and taking many other steps to encourage such construction throughout the city. Several of these moves will also help the transition away from fossil fuels to renewable energy.

Black Girls Youth Participatory Action Research & Pedagogies, Kimberlé W. Crenshaw, Venus E. Evans-Winters

Faculty Scholarship

More than a decade ago, as a group of anti-racist and feminist researchers, including one of the authors, set out to survey the landscape of the schooling experiences of Black girls, we encountered a pronounced knowledge desert that threatened research-informed policy interventions that served to protect Black girls. Most research at the time focused on the educational experiences of male, female, or Black students. There was hardly any readily available data on the school-based outcomes of Black girls as a specific group of students with a unique set of experiences. In Black Girls Matter: Pushed Out, Overpoliced, & Underprotected (Crenshaw, …

Fair Use In The Us Redux: Reformed Or Still Deformed?, Jane C. Ginsburg

Faculty Scholarship

In 2019, Professor Ginsburg delivered the Distinguished Visitor in Intellectual Property Lecture at the Faculty of Law, National University of Singapore. Titled “Fair Use in the US: Transformed, Reformed, Deformed?”, the lecture explored US caselaw applying the statutory fair use exception, highlighting its excesses and apparent rebalancing. Four and half years (and a pandemic) later, the Supreme Court has rendered decisions in two fair use cases (Google v Oracle; Andy Warhol Foundation v Goldsmith). Together, these controversies prompt inquiry whether the Supreme Court has redrawn the landscape of US fair use and copyright law, expanding fair use …

Standing Between Private Parties, Thomas P. Schmidt

Faculty Scholarship

Standing is generally framed as a doctrine about plaintiffs. The basic question, the Supreme Court has said, is “whether the plaintiff is the proper party” to invoke the federal judicial power. Asking that question tends to obscure a natural corollary: Against whom? This Article attends to the other side of the “v.” It argues that suits against private parties should be treated differently from suits against government officials for standing purposes because these two types of suits raise different structural concerns. Notwithstanding its focus on plaintiffs, the Supreme Court has said repeatedly that standing is “built” on the “single basic …

Government Counterspeech, Jamal Greene

Faculty Scholarship

We are awash in lies. Misinformation has always been with us, but the endemicity of social media and the depth of political polarization in the United States and elsewhere has enabled falsehoods to be amplified, monetized, microtargeted, and spread around the world at unprecedented speed and scale. The consequences for democracy, public health, and social harmony are emergent and grave.

Misinformation presents one of the most vexing challenges for content moderation on social media (and off it, such as on cable news) for myriad reasons. Because misinformation can be difficult or controversial to define, policing it risks chilling core political …

Employer-Sponsored Reproduction, Valarie K. Blake, Elizabeth Mccuskey

Faculty Scholarship

This Article interrogates the current and future role of employer-sponsored health insurance in reproductive choice, revealing the magnitude of impact that employers’ insurance coverage choices have on Americans’ access to reproductive care, as well as the legal infrastructure that prioritizes employer choice over individual autonomy.

Over half the population depends on employers for health insurance. The laws regulating those plans grant employers discretion in what services to cover, with exceptionally wide latitude for employers’ choices about reproductive care services, like abortion, contraception, infertility, and pre-exposure prophylaxis (PrEP). In their role as health care funders, employers pursue their own economic interests, …

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

The Ideology Of Press Freedom, Hannah Bloch-Wehba

Faculty Scholarship

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …

Orthogonalizing Inputs, Talia B. Gillis

Faculty Scholarship

This paper examines an approach to algorithmic discrimination that seeks to blind predictions to protected characteristics by orthogonalizing inputs. The approach uses protected characteristics (such as race or sex) during the training phase of a model but masks these during deployment. The approach posits that including these characteristics in training prevents correlated features from acting as proxies, while assigning uniform values to them at deployment ensures decisions do not vary by group status.

Using a prediction exercise of loan defaults basedon mortgage HMDA data and German credit data, the paper highlights the limitations of this orthogonalization strategy. Applying a lasso …

War Powers Reform: A Skeptical View, Matthew C. Waxman

Faculty Scholarship

Debates about war powers focus too much on legal checks and on the President’s power to start wars. Congressional checks before and during crises work better than many reform-ists suppose, and there are ways to improve Congress’s political checking without substantial legal reform.

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Faculty Scholarship

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Restating The Law In A Child Wellbeing Framework, Elizabeth S. Scott

Faculty Scholarship

The Restatement of Children and the Law is scheduled for formal adoption by the American Law Institute in 2024. When this project was first proposed, it was met with some skepticism, on the view that the regulation of children was not a coherent field of law. But after eight years of work on this Restatement, the Reporters have produced a comprehensive account of the law’s treatment of children and clarified that it is, indeed, an integrated and coherent area of law. Our work has uncovered a deep structure and logic that shapes the legal regulation of children in the family, …

Charging Abortion, Milan Markovic

Faculty Scholarship

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Pushing A Square Pin Into A Round Hole? Intellectual Property Challenges To A Sustainable And Circular Economy, And What To Do About It, Irene Calboli

Faculty Scholarship

It is old news that the world is facing growing environmental problems related to industrial manufacturing and waste management. Finally, consumers are demanding change due to the increasing threat of climate change, and industries are being forced to adapt. Repairing, reselling, upcycling, and recycling existing products are key activities to promote sustainability and a circular economy, but current intellectual property (IP) rules may stand in the way when these activities are not conducted by, or with the consent of IP owners. This opinion argues that IP cannot be used to prevent a greener and more sustainable economy. Instead, it needs …

Parental Rights: Rhetoric Versus Doctrine, Clare Huntington

Faculty Scholarship

Professor Josh Gupta-Kagan observes that the Restatement of Children and the Law does not transform the law of child abuse and neglect. As he contends, this is neither a feature nor a bug. It is simply the reality of a restatement, which can only nudge, not reform, the law. I agree with Gupta-Kagan that only political will, not the American Law Institute (ALI), can fix the significant problems with the family regulation system. For advocates and scholars — including both of us — who seek structural and doctrinal change, the ALI has principles projects, and there is a broader ecosystem …

Dci Submission To The European Commission (Ec) On Generative Artificial Intelligence, Stephen Dnes, Lee Fleming, Keith N. Hylton, Bowman Heiden, Juliana Oliveira Domingues, Lola Montero Santos, Nicolas Petit, Jason Potts, Asta Pundziene

Faculty Scholarship

The DCI welcomes the opportunity to submit comments on the EC’s consultation on competition and generative artificial intelligence (hereafter, “GenAI”).1 The two main messages of the DCI submission are the following: • The technological and economic properties of GenAI do not support a case of tipping in which one firm takes the entire market; • The financial and regulatory context of GenAI could fuel ‘winner takes all or most’ dynamics in GenAI markets. These points are set out in more detail in the paragraphs below.

Structuralism In Differential Equations, Colin Mclarty

Faculty Scholarship

Structuralism in philosophy of mathematics has largely focused on arithmetic, algebra, and basic analysis. Some have doubted whether distinctively structural working methods have any impact in other fields such as differential equations. We show narrowly construed structuralism as offered by Benacerraf has no practical role in differential equations. But Dedekind’s approach to the continuum already did not fit that narrow sense, and little of mathematics today does. We draw on one calculus textbook, one celebrated analysis textbook, and a monograph on the Navier–Stokes equation to show structural methods like Dedekind’s have long been central to differential equations, and have philosophically …

Identifying Virtual Care Modality In Electronic Health Record Data, Kurt C. Stange

Faculty Scholarship

Background: Virtual care increased dramatically during the COVID-19 pandemic. The specific modality of virtual care (video, audio, eVisits, eConsults, and remote patient monitoring) has important implications for the accessibility and quality of care, but rates of use are relatively unknown. Methods for identifying virtual care modalities, especially in electronic health records (EHR) are inconsistent. This study (a) developed a method to identify virtual care modalities using EHR data and (b) described the distribution of these modalities over a 3-year study period. Methods: EHR data from 316 primary care safety net clinics throughout the study period (4/1/2020-3/31/2023) were included. Visit type …

A Framework For Building Comprehensive Cancer Center’S Capacity For Bidirectional Engagement, Erika S. Trapl, Sarah Koopman Gonzalez, Kristina Austin

Faculty Scholarship

Purpose: Community engagement has benefits for cancer centers’ work and for its researchers. This study examined the experiences and perceptions of community engagement by members of the Case Comprehensive Cancer Center (Case CCC) to create and implement a framework to meet the needs of the entire cancer center. Methods: This study included three phases: 1) Semi-structured interviews with 12 researchers from a basic science program to identify needs and suggestions for the support of community engagement; 2) Preliminary interview results informed the development of a survey of 86 cancer center members’ about their awareness of and readiness to integrate community …

Stem Cell And Neural Progenitor Cell Therapy For Neurogenic Bladder—Where Are We In 2023?, Ilaha Isali, Thomas R. Wong, Adonis Hijaz

Faculty Scholarship

Purpose of Review: This review aims to consolidate the currently available literature regarding the treatment of neurogenic bladder (NGB) with stem cells or neural progenitor cells (NPCs). Recent Findings: Several promising studies published in the past 5 years suggest therapeutic potential of stem cells in treating NGB. In vitro models of NGB have demonstrated the efficacy of stem cells from varying sources to induce nerve regeneration while simultaneously improving bladder function parameters. Additionally, mesenchymal stem cells (MSCs) were found to inhibit fibrosis through the TGF-β1 signaling pathway while their effects were potentiated by elevated levels of BDNF or SDF-1. Among …

Sociodemographic And Clinical Characteristics Of People With Oldest Older Age Bipolar Disorder In A Global Sample: Results From The Global Aging And Geriatric Experiments In Bipolar Disorder Project, Peijun Chen, Martha Sajatovic, Joy Yala, Kaylee Sarna

Faculty Scholarship

Objects: Studies of older age bipolar disorder (OABD) have mostly focused on “younger old” individuals. Little is known about the oldest OABD (OOABD) individuals aged ≥70 years old. The Global Aging and Geriatric Experiments in Bipolar Disorder (GAGE-BD) project provides an opportunity to evaluate the OOABD group to understand their characteristics compared to younger groups. Methods: We conducted cross-sectional analyses of the GAGE-BD database, an integrated, harmonized dataset from 19 international studies. We compared the sociodemographic and clinical characteristics of those aged <50 (YABD, n = 184), 50–69 (OABD, n = 881), and ≥70 (OOABD, n = 304). To standardize the comparisons between age categories and all characteristics, we used multinomial logistic regression models with age category as the dependent variable, with each characteristic as the independent variable, and clustering of standard errors to account for the correlation between observations from each of the studies. Results: OOABD and OABD had lower severity of manic symptoms (Mean YMRS = 3.3, 3.8 respectively) than YABD (YMRS = 7.6), and lower depressive symptoms (% of absent = 65.4%, and 59.5% respectively) than YABD (18.3%). OOABD and OABD had higher physical burden than YABD, especially in the cardiovascular domain (prevalence = 65% in OOABD, 41% in OABD and 17% in YABD); OOABD had the highest prevalence (56%) in the musculoskeletal domain (significantly differed from 39% in OABD and 31% in YABD which didn't differ from each other). Overall, OOABD had significant cumulative physical burden in numbers of domains (mean = 4) compared to both OABD (mean = 2) and YABD (mean = 1). OOABD had the lowest rates of suicidal thoughts (10%), which significantly differed from YABD (26%) though didn't differ from OABD (21%). Functional status was higher in both OOABD (GAF = 63) and OABD (GAF = 64), though only OABD had significantly higher function than YABD (GAF = 59). Conclusions: OOABD have unique features, suggesting that (1) OOABD individuals may be easier to manage psychiatrically, but require more attention to comorbid physical conditions; (2) OOABD is a survivor cohort associated with resilience despite high medical burden, warranting both qualitative and quantitative methods to better understand how to advance clinical care and ways to age successfully with BD.

Uncovering The Interhospital Price Variations For Vasectomies In The United States, Sherry Mortach, Nicholas Sellke, Stephen Rhodes, Helen H. Sun, Kimberly Tay, Ramy Abou Ghayda, Aram Loeb, Nannan Thirumavalavan

Faculty Scholarship

Due to the historic lack of transparency in healthcare pricing in the United States, the degree of price variation for vasectomy is largely unknown. Our study aims to assess characteristics of hospitals reporting prices for vasectomy as well as price variation associated with hospital factors and insurance status. A cross-sectional analysis was performed in October, 2022 using the Turquoise Database which compiles publicly available hospital pricing data. The database was queried for vasectomy prices to identify the cash (paid by patients not using insurance), commercial (negotiated by private insurers) and Medicare and Medicaid prices for vasectomies. Hospital characteristics of those …

3.0-T Mr-Guided Transgluteal In-Bore-Targeted Prostate Biopsy Under Local Anesthesia In Patients Without Rectal Access: A Single-Institute Experience And Review Of Literature, Kaustav Bera, Nikhil Ramaiya, Dean Nakamoto, Sree Harsha Tirumani

Faculty Scholarship

Purpose: To describe the technique and evaluate the performance of MRI-guided transgluteal in-bore-targeted biopsy of the prostate gland under local anesthesia in patients without rectal access. Methods: Ten men (mean age, 69 (range 57–86) years) without rectal access underwent 13 MRI-guided transgluteal in-bore-targeted biopsy of the prostate gland under local anesthesia. All patients underwent mp-MRI at our institute prior to biopsy. Three patients had prior US-guided transperineal biopsy which was unsuccessful in one, negative in one, and yielded GG1 (GS6) PCa in one. Procedure time, complications, histopathology result, and subsequent management were recorded. Results: Median interval between rectal surgery and …