Digital Commons Network^™

The Visibility Trap, Kate Redburn

Faculty Scholarship

Vice Patrol offers a novel history of the visibility trap. It integrates interventions in legal history, history of sexuality, and queer theory with remarkable ease. Lvovsky brings new insight to a question that has puzzled scholars across several fields: Why and how does cultural representation lead to increased state repression? Blending impressive archival research with sophisticated theoretical analysis, Lvovsky follows cultural knowledge into the legal system to offer a fresh diagnosis of the problem and how it develops. In her discovery of “epistemic gaps,” she uncovers a key mechanism of the visibility trap. Disagreements between the police and the courts, …

Verification Dilemmas In Law And The Promise Of Zero-Knowledge Proofs, Kenneth A. Bamberger, Ron Canetti, Shafi Goldwasser, Evan J. Zimmerman

Faculty Scholarship

Individuals who wish to access a website or qualify for a loan are expected to expose personally identifying information, undermining their privacy and security. Firms share proprietary information in dealmaking negotiations which, if the deal fails, may be used by the negotiating partner for a competitive advantage. Regulators are expected to disclose their algorithmic tools to comply with public transparency and oversight requirements, a practice that risks rendering these tools circumventable and ineffective. Litigants might have to reveal trade secrets in court proceedings to prove a claim or defense. Such “verification dilemmas” — costly choices between opportunities that require the …

Practicing With Conviction: Race, Reentry, And The Legal Profession, Nicole Smith Futrell

Faculty Scholarship

Within recent years, different areas of the legal community have publicly addressed the need for racial justice. The killing of George Floyd and the reckoning with race that followed prompted law schools, bar associations, and court systems, as well as government, private, and non-profit legal organizations, to publicly acknowledge that racial disparities continue to persist in our society. While most of these legal institutions have made some recognition of the fact that the legal system has played a role in perpetuating systemic racism, they have essentially failed to address how discrimination against system-impacted individuals continues to deepen racial and socioeconomic …

Originalism And Personal Jurisdiction: Several Questions And A Few Answers, Lawrence B. Solum, Max Crema

Faculty Scholarship

The modern constitutional law of personal jurisdiction is largely the product of living constitutionalism. International Shoe's minimum-contacts and fairness standard was not derived from the constitutional text, and it cannot be supported by the original meaning of the Due Process of Law Clauses of the Fifth and Fourteenth Amendments. This Article explores the implications of that fact for the constitutional law of personal jurisdiction, with a focus on the federal courts.

The Article proceeds in six steps. First, it lays out the theoretical framework provided by Public Meaning Originalism, including the Fixation Thesis, the Constraint Principle, and the interpretation-construction …

Innovation In Adversity, Clark Asay, Stephanie Plamondon

Faculty Scholarship

Adverse experiences, like long-term poverty, can inhibit innovation. But as much research and many real-world examples show, adversity can also stimulate innovation. Indeed, the COVID-19 pandemic provides a number of recent examples where adverse conditions have led individuals, firms, and governments to innovate in the hope of benefiting society.

Despite the fact that some forms of adversity undermine innovation while others stimulate it, legal scholars have largely failed to distinguish between the two forms or even account for adversity's relationship to innovation when assessing innovation law and policy, including intellectual property (IP) laws. Yet given adversity's significant role in affecting …

Innovation's Hidden Externalities, Stephanie Plamondon Bair

Faculty Scholarship

When commentators discuss innovation’s externalities, they often classify them into one of two categories. On the positive externalities, or “spillovers” side, legal and economics scholars often speak of the benefits innovation confers on other innovators. Future innovators profit from past innovation as they “stand on the shoulders of giants” to develop progressively new and better innovation. Discussion of innovation’s negative externalities, on the other hand, has mainly focused on social harms not directly related to future innovation that particular advances impose on third parties—the classic example being pollution. Thus, the common understanding is that innovation’s spillovers positively impact innovation (among …

The Sociology And Psychology Of Innovation: A Synthesis And Research Agenda For Intellectual Property Scholars, Stephanie Plamondon Bair, Laura Pedraza-Fariña

Faculty Scholarship

Intellectual Property (IP) and innovation law scholarship is generally concerned with the question of how to promote socially beneficial innovation. Until recently, the analysis brought to bear on that question in the literature has been dominated by an individual, rational-actor-centered model grounded in the neoclassical economics tradition. Under this model, individual innovators are assumed to respond to innovation incentives in rational ways, unswayed by their social environments or their own psychology.

Of course, as innovation scholars are beginning to recognize, the road to innovation is much more winding and complex than the straight path from incentive to innovation that the …

Do Networks Govern Contracts?, Matthew C. Jennejohn

Faculty Scholarship

An influential literature in private law argues that the legal system interferes with modern markets’ “private ordering.” Private ordering refers to parties relying upon informal institutions, like social norms and reputational sanctions, to enforce legal obligations. This informal governance is made possible by thick networks of social or commercial relationships, which circulate information about parties’ behavior. Social networks, not the state, govern commerce.

This Article argues that the private ordering literature has overlooked a paradox at the heart of its theory. The same networks that circulate reputational information also provide conduits for valuable technical information to leak from one company …

Generals Of The Resistance: Multistate Actions And Nationwide Injunctions, Elysa M. Dishman

Faculty Scholarship

State attorneys general (AGs) have become leaders of the political resistance against recent presidential administrations. They are suing the federal government with increasing frequency, seeking nationwide injunctions that thwart presidential priorities and shape national policies.

Nationwide injunctions have sparked considerable debate among jurists, scholars, and policymakers. However, the largely court-centric debate has overwhelmingly overlooked the role that state litigants and litigators play in shaping criticisms of the nationwide injunction. States and AGs have unique
attributes, advantages, and incentives that allow them to frequently seek and successfully secure nationwide injunctions. And these advantages are enhanced when states litigate together. Because states …

Contractual Evolution, Matthew C. Jennejohn, Eric Talley

Faculty Scholarship

Conventional wisdom portrays contracts as static distillations of parties’ shared intent at some discrete point in time. In reality, however, contract terms evolve in response to their environments, including new laws, legal interpretations, and economic shocks. While several legal scholars have offered stylized accounts of this evolutionary process, we still lack a coherent, general theory that broadly captures the dynamics of real-world contracting practice. This paper advances such a theory, in which the evolution of contract terms is a byproduct of several key features, including efficiency concerns, information, and sequential learning by attorneys who negotiate several deals over time. Each …

Delaware's Frontier, Matthew C. Jennejohn, D. Gordon Smith

Faculty Scholarship

This essay, prepared for a symposium honoring Chief Justice Leo Strine, explores how institutional capacity limits the Delaware courts’ role in the U.S. economy. A decision theoretic approach is employed to delineate the boundaries of that role, with particular attention paid to recent arguments that Delaware's Caremark doctrine should be extended to ESG concerns. The essay views muscular expansion of Caremark to encompass stakeholder interests as misguided without significant investments in institutional capacity.

The Transactional Dynamics Of Market Fragility, Matthew C. Jennejohn

Faculty Scholarship

This Article takes a step toward more clearly diagnosing market fragility for the purpose of developing better policy choices that anticipate and address future crises. It does so by connecting two erstwhile and distinct literatures: the legal scholarship on relational contracting and the social science on the diffusion of shocks in economic networks. This Article attempts to connect the strategies parties pursue in designing their agreements—a familiar topic to contract scholars—to the diffusion patterns observed in disrupted markets—an increasingly important area of study in macroeconomics. By investigating that intersection, this Article introduces a new potential policy domain for remediating market …

International Law: Corpus Linguistics And Ordinary Meaning, Eric Talbot Jensen, James Lee Rex

Faculty Scholarship

The application of corpus linguistics to clarify ambiguity or provide insight in legal interpretation is quickly gaining recognition within the United States, especially among the judiciary. However, very little has been done to assess its application to international law, particularly as a means of assisting international courts and tribunals. In the international legal system—where ambiguity inevitably arises from the great diversity of linguistic and cultural systems throughout the world—the norm for understanding contested terms within a treaty or agreement is to look for the “ordinary meaning to be given to the terms of the treaty in their context and in …

Book Review: The Restatement And Beyond: The Past, Present, And Future Of U.S. Foreign Relations Law. Edited By Paul B. Stephan And Sarah H. Cleveland. New York: Oxford University Press, 2020. Pp. Xi, 587., David H. Moore, Paul B. Stephan, Sarah H. Cleveland

Faculty Scholarship

This paper reviews The Restatement and Beyond: The Past, Present, and Future of U.S. Foreign Relations Law (Paul B. Stephan and Sarah H. Cleveland eds., OUP 2020).

Revitalizing Tribal Sovereignty In Treatymaking, David H. Moore, Michalyn Steele

Faculty Scholarship

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of …

Coase And Accommodation: A Reply, Frederick Mark Gedicks

Faculty Scholarship

Written for a Festschrift in honor of Michael Perry, this essay responds to the argument that the Coase theorem refutes the third-party harm doctrine, which holds that the Establishment Clause prohibits any religious accommodation imposing material burdens (“harms”) on those who derive no benefit from the accommodation because they do not engage in the exempted practice (“third parties”). In economic terms, the third-party harm doctrine prohibits negative externalities created by religious accommodations which shift material costs of practicing the accommodated religion to a relatively small number of third parties who practice a different religion or none at all.

Enter Coase, …

Supervision For Advocacy: Supporting Self-Care, Kathleen J. Farkas, Jaroslaw Richard Romaniuk

Faculty Scholarship

The objective is to examine the intersection of advocacy for social change, the individual’s emotional costs of advocacy, and the use of trauma informed care in supervisory practice to encourage and support advocates and their work. Supervision models exist, but none address the needs of advocates who might become targets for scorn and persecution. The literature on trauma informed care provides a direction to improve the support and supervision of advocates, especially those who use their personal experiences as examples in their work. We reviewed data bases and relevant literature regarding supervision and the principles of trauma informed care. Periodical …

Photochemistry Of Rna, Rna Monomers, And Plausible Prebiotic Precursors, Sean J. Hoehn, Naishka E. Caldero-Rodríguez, Carlos E. Crespo-Hernández

Faculty Scholarship

Sunlight is the primary source of energy to promote change on Earth. In this context, ultraviolet radiation can be thought as a catalyst of chemical change to refine chemical feedstocks and facilitate their transformations into the building blocks of life. To establish reasonable environmental constraints for the chemical origins of life, it is central to understand how the photochemical reactivity or photochemical resistance of prebiotic molecules might have supported the formation of the RNA monomers on the Earth's surface and particularly in aqueous solution. In this chapter, the photochemistry of the RNA monomers and several conceivably important prebiotic precursors are …

Trauma Informed Care In Medical Facilities (Terapia Zorientowana Na Traumę W Placówkach Ochrony Zdrowia), Jaroslaw Richard Romaniuk, Kathleen J. Farkas

Faculty Scholarship

The recognition of traumatic experiences across all aspects of human life has spurred the development of research on the impacts of trauma in various segments of society. The Adverse Childhood Experiences Study (ACES) first documented the correlation between childhood trauma exposure and physical and mental health disorders in adulthood. Further studies provided additional evidence of the long lasting impacts of trauma and led to practices to decrease re-traumatizing policies and practices. Trauma informed care (TIC) offers concepts and approaches for successful engagement and effective treatment for trauma survivors. This paper presents six basic principles of TIC and the methods for …

Motivation To Move Out Of The Community As A Moderator Of Bullying Victimization And Delinquent Behavior: Comparing Non-Heterosexual/Cisgender And Heterosexual African American Adolescents In Chicago’S Southside, Dexter R. Voisin

Faculty Scholarship

A growing body of research documents that bullying victimization is associated with delinquent behavior. There is an increasing need to better illuminate the factors that might moderate this relationship. This study examined whether the motivation to move out of low-resourced neighborhoods and sexual orientation/gender identity moderated the relationship between bullying victimization and delinquent behavior among a sample of 450 heterosexual and 91 non-heterosexual/cisgender African American youths. Measures considered were bullying victimization, delinquent behavior, sexual orientation/gender identity, motivation to move out, and family demographics. Sexual orientation/gender identity was not associated with youth delinquent behavior after controlling for covariates. Being motivated to …

A Simplified Stress Analysis Of Functionally Graded Beams And Influence Of Material Function On Deflection, Elias Ali

Faculty Scholarship

This paper aims at providing a simplified analytical solution for functionally graded beam stress analysis and optimized material gradation on the beam deflection. The power-law (P-FGM) and exponential (E-FGM) material functions were considered for an exact solution of the normal and shear stress distributions across the beam thickness. Optimization of material function on the FGM beam deflection, which is new of its kind, was also investigated considering both simply supported and cantilever beams. It was observed that the non-dimensional normal stress and shear stress are independent of the elastic moduli values of the constituent materials but rather depends on both …

Classrooms Into Courtrooms, Naomi M. Mann

Faculty Scholarship

The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …

Delegation And The Continuity Thesis, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Lawyering 'Twisties': Naming And Untangling Performance Anxiety, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Bargaining For Integration, Shirley Lin

Faculty Scholarship

No abstract provided.

Labor's New Localism, Andrew Elmore

Faculty Scholarship

Millions of workers in the United States, disproportionately women, immigrants, and people of color, perform low-paid, precarious work. Few of these workers can improve their workplace standards because the National Labor Relations Act ("NLRA") does not sufficiently protect their right to form unions and collectively bargain. Lacking sufficient influence in federal and state government to strengthen labor and employment law, unions and worker centers have increasingly sought to build power in cities. The shift to local labor lawmaking has delivered local minimum wage, paid sick leave, and fair scheduling ordinances covering millions of low-wage workers, as well as groundbreaking unionization …

Information Technology And The New Capitalism, James Bessen

Faculty Scholarship

Harnessing Digitalization for Sustainable Economic Development: Insights for Asia describes digitalization’s role in raising the productive capacities of economies. It examines how digital transformation can enhance trade, financial inclusion, and firm competitiveness, as well as how greater digital infrastructure investment, internet connectivity, and financial and digital education in the region can maximize digitalization’s economic benefits. It also explains the importance of striking the right balance between the regulation and supervision of financial technology to enable innovation and safeguarding financial stability and consumer protection.

Part I of the book seeks to build an understanding of digitalization’s effects on macroeconomic performance, including …

Carbon Fiber Electrodes For Intracellular Recording And Stimulation, Yu Huan, Jeffrey P. Gill, Hillel J. Chiel

Faculty Scholarship

Objective. To understand neural circuit dynamics, it is critical to manipulate and record many individual neurons. Traditional recording methods, such as glass microelectrodes, can only control a small number of neurons. More recently, devices with high electrode density have been developed, but few of them can be used for intracellular recording or stimulation in intact nervous systems. Carbon fiber electrodes (CFEs) are 8 µm-diameter electrodes that can be assembled into dense arrays (pitches 80 µm). They have good signal-to-noise ratios (SNRs) and provide stable extracellular recordings both acutely and chronically in neural tissue in vivo (e.g. rat motor cortex). The …

Covid-19 In Pregnancy, Jill E. Miracle, Prakash R. Ganesh, Johnie Rose, Pauline Terebuh, Kurt C. Stange, Andrea Szabo, Heidi L. Gullett, Rachel Pope

Faculty Scholarship

Objective:To define the symptomatology of SARS-CoV-2 infection in pregnancy and associations between occupation, sociodemographic factors, and comorbidities with the severity of COVID-19 disease in pregnancy in all trimesters, regardless of hospitalization.Methods:We studied a retrospective cohort of a public health surveillance sample of persons with COVID-19 infection diagnosed during pregnancy. Data was collected March 2020 to August 2020 regarding symptoms, disease severity, comorbidities, obstetric history, and occupation.Results:One hundred sixty-three individuals were identified. Constitutional (64%) and lower respiratory symptoms (61%) were most common. Seventeen individuals (13.6%) were hospitalized, and one person (0.7%) died due to COVID-19. Risk factors for severe disease were …

Absorption Kinetics Of Berberine And Dihydroberberine And Their Impact On Glycemia: A Randomized, Controlled, Crossover Pilot Trial, Jessica M. Moon, Kayla M. Ratliff, Anthony M. Hagele, Richard A. Stecker, Petey W. Mumford, Chad M. Kerksick

Faculty Scholarship

Berberine is a natural alkaloid used to improve glycemia but displays poor bioavailability and increased rates of gastrointestinal distress at higher doses. Recently, dihydroberberine has been developed to combat these challenges. This study was designed to determine the rate and extent to which berberine appeared in human plasma after oral ingestion of a 500 mg dose of berberine (B500) or 100 mg and 200 mg doses of dihydroberberine (D100 and D200). In a randomized, double-blind, crossover fashion, five males (26 ± 2.6 years; 184.2 ± 11.6 cm; 91.8 ± 10.1 kg; 17.1 ± 3.5% fat) completed a four-dose supplementation protocol …