Digital Commons Network^™

Corporate Childrearing, Katharine B. Silbaugh

Faculty Scholarship

With children influencing a trillion dollars in spending annually, corporations actively seek to shape children's identities in support of consumer culture and profit. Yet there are no scholarly treatments or theories of the legal relationship between children and corporations. Instead, scholars address individual industries such as food, social media, cosmetics, tobacco, or fashion, missing the structural role corporations play in children's identity formation. Family law evaluates child wellbeing interventions using a triangle to map the legal dynamics among child, parent, and state. This article adds corporations as fourth actors, reconceptualizing that triangle as a square. This square provides the first …

Five Lessons From Ken Kersch’S Conservatives And The Constitution For The Present Moment, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

Timothy Snyder’s On Tyranny, a New York Times bestseller, has the subtitle, “Twenty Lessons from the Twentieth Century.” Ken Kersch’s Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism (2019) provides at least twenty lessons from the second half of the Twentieth Century about the development of conservative constitutional thought and activism. Although conservatism has changed in many ways since the 1954-1980 period on which Kersch’s book focuses, these lessons are relevant for understanding the present political moment, filled with concerns that the U.S., during the second Trump Administration, is lurching toward tyranny, authoritarianism, and …

Memory Warriors, Pluralists, And Abnegators In Constitutional Interpretation: An Essay On Jack Balkin's Pluralist Originalism In Memory And Authority, Jed Handelsman Shugerman, Zachary Shugerman Handelsman

Faculty Scholarship

Jack Balkin’s Memory and Authority: The Uses of History in Constitutional Interpretation brings into conversation the scholarly insights of constitutional theory, history, and the growing field of “the politics of memory,” especially the concept of the “memory entrepreneur.”

Balkin appropriately connects the memory wars in American constitutional law back to Eastern

European memory wars during the World Wars and their aftermath. Prompted by Balkin, we turn to Jan Kubik and Michael Bernhard edited volume Twenty Years After Communism (2014), which has become even more widely influential after Putin’s invasion of Ukraine and a new round of Eastern European memory wars. …

Applying History As Law: The Role Of Historical Facts In Implementing Constitutional Doctrine, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory …

Confession Contamination And Dna Exonerations, 1989-2025, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Foreign Commerce Power, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between …

Crypto Litigation And Market Efficiency, Robert E. Bishop, Bradford Levy, Frank Partnoy, Daniel Taylor, Andrew Yeh

Faculty Scholarship

This paper investigates, for the first time in the literature, the factors that should matter to courts in determining whether a crypto  market is “efficient,” meaning that prices are sufficiently responsive to information. Based on new empirical evidence and a series of event studies, we recommend a new judicial framework for assessing market  efficiency in crypto litigation.

Market efficiency tests based on event studies have played an important role in other areas of litigation, particularly securities litigation, where courts frequently rely on what have become known as the “Cammer factors.” Academics have not yet assessed the extent to which market …

The Effect Of Provider Diversity On Racial Health Disparities: Evidence From The Military, Michael Frakes, Jonathan Gruber

Faculty Scholarship

We assess the relationship between the racial diversity of medical providers and racial health disparities in the use of preventive care and in patient outcomes. We use unique data from the Military Health System, where we observe providers as patients so that we can identify their race, and where moves across bases change exposure to provider race in a plausibly exogenous fashion. We consider patients with four chronic, deadly, but manageable illnesses, where the relationship with the provider may have the most direct impact on health. We find striking evidence that provider racial diversity leads to reduced disparities in maintenance …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Prevention Beyond Deterrence, Benjamin A. Barsky

Faculty Scholarship

This Article reconceptualizes preventive justice—the public safety paradigm that seeks to prevent harm before it occurs. Scholars have long documented how cities have advanced this paradigm through largely punitive measures, notably variants of broken windows policing, which posit that aggressive misdemeanor enforcement deters more serious crime. Yet in the aftermath of the 2020 George Floyd protests, and as underscored recently in City of Grants Pass v. Johnson, these measures have faced a legitimacy crisis—prompting calls for nonpunitive responses to nonviolent incidents.

This Article establishes a preventive justice approach that advances health and safety without emphasizing crime deterrence. It draws on …

Campus Crises And The Limits Of Title Vi, Suzanne B. Goldberg, Olatunde C.A. Johnson

Faculty Scholarship

This Piece examines the deployment of Title VI of the Civil Rights Act of 1964 as a mechanism for regulating campus conflict following the 2023 to 2024 campus protests and seeks to reset the discourse in light of the statute’s history, doctrine, and role in higher education. Title VI is an important tool for addressing identity-based harassment, epithets, and violence between students, but it is neither designed nor effective as a tool for negotiating clashes between universities’ cornerstone commitments to robust debate and an optimal learning environment for all students. In converting the statute from a source of protection against …

Why Constitutional Argument Matters, Philip C. Bobbitt

Faculty Scholarship

The program for this symposium promised that I would be discussing the “descriptive grammar of constitutional law.” To put my purpose less benignly, I should say that I mean to attack the practice of limiting what I will call “modal analysis” to its descriptive virtues. Part of that attack will be the claim that courts and their commentators should pay closer attention to the modal requirements of the fundamental forms of constitutional discourse, but not because straying from this is a kind of grammatical faux pas. After all, if the system I have urged for constitutional analysis — the system …

Disconsents, Daryl J. Levinson, David E. Pozen

Faculty Scholarship

Consent is an indispensable standard and organizing principle in any liberal legal order that prizes self-directed autonomy, self-identified preferences, and collective agreement. Yet consent’s capacity to advance those values has become increasingly uncertain in a society beset by power imbalances, information asymmetries, and multiple forms of polarization. In this Article, we document how the rise of neoliberalism has led to greater reliance on consent throughout U.S. law, while at the same time leading to greater doubts about its moral efficacy and empirical feasibility. Connecting and generalizing pathologies of consent-based regulation that have been identified within myriad domains, the Article identifies …

Slaughter, The Symmetry Rule, And What The Decision Of 1789 Actually Decided, Jane Manners, Lev Menand

Faculty Scholarship

During oral argument in Slaughter last month, Solicitor General John Sauer argued that there were three textual sources for an illimitable presidential removal power: the Vesting Clause, the Take Care Clause, and the Appointments Clause. Why the Appointments Clause? Because, he explained, “the power to remove flows to the power to appoint.” According to Sauer, a run of nineteenth century cases, including Ex Parte Hennen, supports this proposition.

Sauer’s contention is not new: Chief Justice Taft in Myers v. U.S. also claimed that in the First Congress, “the express recognition of the power of appointment in [Article II] enforced this …

"Activist" Versus "Passive" Investors: A Closer Look At Proxy Contests And The Contemporary Balance Of Advantage, John C. Coffee Jr.

Faculty Scholarship

The era of the hostile takeover has clearly given way to the era of the proxy contest led by an activist hedge fund. Today, a record number of such contests are underway, and they have changed the board composition at many U.S. companies and caused a record number of CEO resignations. But there is a mystery here: when activist funds negotiate for changes with target managements, they often obtain meaningful changes in the board of directors and corporate policies. However, when activists attempt a proxy contest, they have generally been unsuccessful, winning only a small number of seats in a …

An International Approach To Homelessness. Part I: The Case Of India., Pranit Lanjewar, Jaroslaw Richard Romaniuk

Faculty Scholarship

This paper, the first in a two-part study on homelessness in developing countries, explores the causes of homelessness in countries with significant populations living in poverty. This instalment focuses primarily on homelessness in India. The country’s diversity in terms of culture and religion is reflected in challenges when approaching issues related to homelessness. We highlight governmental initiatives to combat homelessness and provide impoverished people and families with access to essential services. A qualitative research method was used. We interviewed the recipients of government services aimed at helping their families overcome homelessness. Our findings highlight the role of education and educational …

Transnational Mass Tort Litigation: A Proposal For An International Court Of Civil Justice, Maya Steinitz

Faculty Scholarship

This chapter argues for the creation of an International Court of Civil Justice for transnational mass tort cases. It considers the challenges of adjudicating cross-border mass torts along with the incentives and feasibility of a new international court. Drawing upon case studies including the Bhopal disaster, litigation surrounding the devastation of the Ecuadorian rainforest, and the attempts to sue over human rights abuses in Nigeria, the chapter demonstrates that the world's legal systems were not designed to solve these kinds of complex cases, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice …

Attitudes Driving Regional Differences In Long-Acting Injectable Antipsychotic Utilization For Schizophrenia Among Healthcare Professionals, Patients, And Caregivers (Advance): Results From A Multinational Survey Study, Martha Sajatovic

Faculty Scholarship

Background: Long-acting injectable (LAI) antipsychotics improve adherence and reduce schizophrenia relapse rates vs oral antipsychotics (OAs) but remain underused. The ADVANCE study explored country-level differences in LAI use among healthcare professionals (HCPs), patients, and caregivers, to identify drivers of LAI use. Study Design: ADVANCE included participants from Australia, Canada, China, Germany, Israel, South Korea, Spain, and the United States. Eligible HCPs spent ≥25% of their time in direct patient care, managed an adult population of whom ≥10% have schizophrenia, and treated patients prescribed LAIs. Patients aged ≥18 years and caregivers of adults living with schizophrenia who had tried/been offered an …

Opening Brief For Plaintiff-Appellant Emery Barron, Steven Mitchell, Carolyn Sacco, Shaina Sikka, Madeline H. Meth

Faculty Scholarship

By the time Emery Barron sued Pennsylvania Department of Corrections officials in 2021, they had kept him caged for almost six years in solitary confinement without providing a pathway for him to reenter general population. Department of Correction policy calls for officials to review the ongoing need for solitary confinement after an initial ninety-day stint in disciplinary confinement. However, procedural carve outs allow officials to leave people like Barron in solitary indefinitely without an opportunity to be heard by a decisionmaker and without requiring officials to assert any legitimate penological interest behind the confinement.

Under this scheme, which violated both …

Jmu Libraries Magazine: Volume 3, Jenne M. Klotz, Emily D. Blake, Kristen S. Shuyler

Faculty Scholarship

Volume 3 of the biennial JMU Libraries magazine, highlighting services, events, awards of the JMU Libraries.

International Law, Adam Chilton, Weijia Rao

Faculty Scholarship

International law has, historically, been best understood as a body of principles and rules that govern the interactions between sovereign states and regulate how sovereign states can behave outside their borders. Over time, international law has evolved to regulate a broader range of subjects than just exterritorial activities—including the treatment of citizens or migrants within a country’s borders—and to regulate a greater range of actors than just sovereign states—including private individuals, corporations, and other nonstate actors. This body of principles and rules comes from several sources, including treaties and conventions, customary international law, judicial opinions, and academic articles and treatises …

Experiences And Perceptions Of Patients, Caregivers, And Healthcare Professionals With Long-Acting Injectable Antipsychotics For The Treatment Of Schizophrenia: Qualitative Results From The Multinational Advance Study, Martha Sajatovic

Faculty Scholarship

Introduction: Schizophrenia imposes a substantial burden on individuals and society. Long-acting injectable antipsychotics (LAIs) improve adherence and reduce relapse and hospitalization rates compared with oral treatments for schizophrenia, yet LAI use varies globally. The qualitative interview portion of the global Attitudes DriVing regional differences in long-acting injectable ANtipsychotic utilization for schizophrenia among healthcare professionals (HCPs), patients, and CaregivErs (ADVANCE) study explored the patient journey from schizophrenia diagnosis to treatment, treatment goals, and experiences and perspectives on LAIs that may influence their use. Methods: ADVANCE included HCPs, patients, and caregivers from Australia, Canada, China, Germany, Israel, Spain, South Korea, and the …

Executive Function Among Older Adults With Bipolar Disorder: A Gage-Bd Analysis, Federica Klaus, Martha Sajatovic, Peijun Chen, Nicole Fiorelli, Ashley N. Sutherland

Faculty Scholarship

Objectives Executive function deficits in bipolar disorder (BD) are major contributors to disability in older age BD (OABD). We investigated the difference between OABD and age-equated healthy comparators (HC); and, in the OABD group, the associations of executive function with age, symptom severity, global cognition, and daily functioning. Design Cross-sectional analysis of executive function in OABD versus HC. Setting Analysis of large archival dataset harmonized from 12 international OABD studies. Participants Older adults (≥50 years) with OABD ( n = 614) and HC ( n = 192). Measurements Executive function was assessed via Trail Making Test B (TMT-B) completion time; …

Opening Brief For Plaintiff-Appellant Jacob Julick, Aryssa Harris, Cameron Tong, Madeline H. Meth

Faculty Scholarship

For ten days in the middle of winter, officers at the Kentucky State Penitentiary (KSP) confined Jacob Julick in freezing cells, dressed only in paper boxers, and without access to hygiene products, a shower, cleaning products, bedding, or shoes. The reason? Mistaken retribution in response to a recent assault on an officer in which Julick was not involved.

When Julick reported experiencing suicidal thoughts, Defendant Officer Jason Denny mocked him, telling him to “kill [him]self and do them the favor.” Shortly after, Julick was moved from his first solitary cell to a strip cage where he was handcuffed, shackled, and …

“Quasi-Judicial”: A History And Tradition, By Beau J. Baumann & Jed H. Shugerman, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

“I do not say the office is either Executive or Judicial; I think it rather distinct from both, though it partakes of each, and therefore some modification, accommodated to those circumstances ought to take place.” – James Madison on the Comptroller, June 29, 1789

On Monday, December 8th, the Supreme Court will hear oral arguments in Trump v. Slaughter. The case presents a pivotal challenge to Humphrey’s Executor, the New Deal precedent underpinning so-called independent agencies. In Humphrey’s, the Hughes Court unanimously held that Congress could shield administrators from presidential removal if they exercised “quasi-judicial” or …

Neuroadaptive Return On Investment In Education: A Critical Review Of Eeg And Eye-Tracking For Decision Optimization, Piper Hutson, James Hutson

Faculty Scholarship

This article advances a critical synthesis of a proposed neuroadaptive return on investment framework that integrates electroencephalography and eye-tracking into educational decision systems. The analysis situates neuroadaptive ROI within scholarship on neurodiversity, engagement, and adaptive learning, arguing that process-level indicators of attention, cognitive load, and persistence merit inclusion alongside conventional outcome metrics in investment models. Methodological scrutiny examines construct validity for neural and gaze indices, requirements for multimodal fusion, calibration across heterogeneous learner profiles, and threats to internal and external validity in classroom contexts. Evidence from pilot implementations suggests feasibility for real-time pacing, friction-point detection, and targeted resource triage, although …

Correlates Of Depressive Symptom Severity Among Adults With Epilepsy Participating In An Epilepsy Self-Management Clinical Trial, Rachel Branning, Michael Liu, David Silva, Jessica Black, Jacqueline Krehel-Montgomery, Nicole Fiorelli, Richard Barigye, Clara Adeniyi, Martha Sajatovic

Faculty Scholarship

Background People living with epilepsy (PWE) experience higher rates of depression compared with the general population. Depression in PWE is associated with increased seizure burden and reduced quality of life. We aimed to examine clinical and demographic correlates of depression severity using the nine-item Patient Health Questionnaire in PWE experiencing negative health events in the past 6 months. Aims (a) To assess how depressive severity correlated with seizure frequency; To examine how outcomes such as quality of life are influenced by depressive severity; To investigate how demographic factors affect depressive severity. Method Depressive severity was defined as a score of …

Large Language Models As Machines Of Beauty: Cognitive Averaging, Latent Space Geometry, And The Entropic Foundations Of Aesthetic Preference, Daniel Plate, James Hutson

Faculty Scholarship

This study advances the position that large language models (LLMs) and human perceptual systems are governed by a shared computational drive toward prototypicality, entropy reduction, and aesthetic coherence. Drawing on developmental evidence that infants exhibit early preferences for facial symmetry and averageness, the analysis situates aesthetic preference within broader research on processing fluency and predictive coding, emphasizing that biological perception rewards stimuli that reduce uncertainty and support efficient information compression. This foundation is used to examine how LLMs, through cross-entropy optimization, perplexity minimization, and latent space clustering, converge on high-density representational regions that operate as statistical prototypes of linguistic and …

Signaling Through National Security Lawmaking, Weijia Rao

Faculty Scholarship

An often-overlooked element of the ongoing TikTok saga is China’s export control law, which prohibits the sale of TikTok’s core content recommendation algorithm without prior approval from the Chinese government. This law is just one example of the extensive national security lawmaking China has undertaken in recent years. Closely paralleling similar institutions in the U.S., China has established a comprehensive national security legal framework that authorizes the government to restrict exports, sanction foreign entities, screen foreign investments, and block transactions involving cyber infrastructure.

Why turn towards legality when China has the ability to employ these actions without a formal legal …

A Randomized Study To Examine The Ability Of A Caffeine-Based Energy Drink To Impact Energy Expenditure, Fat Oxidation, And Cognitive Performance, Joesi Krieger, Alex Schrautemeier, Anthony M. Hagele, Connor Gaige, Olivia Mennemeyer, Sydney Tolbert, Joshua Iannotti, Chad Kerksick, Chris Noonan, Petey Mumford

Faculty Scholarship

Objectives: This study evaluated the effects of acute and 28-day supplementation with a caffeine-based energy drink on energy expenditure, fat oxidation, and cognitive performance.

Methods: In a double-blind, placebo-controlled trial, 33 males and 27 females (27 ± 8 years, 26.7 ± 2.2 m/kg2) consumed a caffeinated energy drink (200 mg; CAF) or placebo (PLA) for 28 days. Indirect calorimetry assessed energy expenditure and fat oxidation at 0, 30, 60, 90, and 120 min after ingestion on day 1 and 28. Cognition assessments (Dynavision reaction, Serial Sevens, Trail Making Test A (TMT-A) and B (TMT-B)) were performed at 0, …