Digital Commons Network^™

The City’S Second Amendment, Dave Fagundes, Darrell A. H. Miller

Faculty Scholarship

Cities are increasingly common sites of contestation over the scope and meaning of the Second Amendment. Some municipalities have announced their opposition to firearm restrictions by declaring themselves Second Amendment sanctuaries. Others have sought to curtail gun violence by passing restrictive local regulations. Still others have responded to police violence by moving to demilitarize, disarm, or even disband their police forces. The burgeoning post-Heller legal literature, though, has largely overlooked the relationship between cities, collective arms bearing, and the Second Amendment. In sum, to what extent do cities themselves have a right to keep and bear arms? This Article tackles …

The Domains Of Loyalty: Relationships Between Fiduciary Obligation And Intrinsic Motivation, Deborah A. Demott

Faculty Scholarship

Recent scholarly inquiry into fiduciary law predominantly focuses on whether the subject is a coherent field and not a piecemeal assortment of doctrinal detail. This Article looks to the future and to relationships between the formal domain of fiduciary law and other factors that shape conduct. These include intrinsic motivation, markets for professional services, and forces like the operation of reputation. The Article demonstrates that looking across domains, from the legal to the extralegal, casts in sharp relief the reasons why fiduciary law is distinctive. These stem from the specific qualities of relationships to which fiduciary law applies, as well …

Pointing Guns, Joseph Blocher, Samuel W. Buell, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules of conduct sufficient to avoid the negative effects of gun displays, and that the rhetorical and expressive effects of Second Amendment debates threaten to make the situation worse. We also suggest how the legal rules might be improved, and how battles over norms—as much as …

Exemplary Legal Writing 2020: Five Recommendations, Femi Cadmus, Ariel A.E. Scotese

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2020.

The Cost Of Guilty Breach: Willful Breach In M&A Contracts, Theresa Arnold, Amanda Dixon, Madison Whalen Sherrill, Hadar Tanne, Mitu Gulati

Faculty Scholarship

The traditional framework of United States private law that every first-year student learns is that contracts and torts are different realms—contracts is the realm of strict liability and torts of fault. Contracts, we learn from the writings of Justice Holmes and Judge Posner, are best viewed as options; they give parties the option to perform or pay damages. The question we ask is whether, in the real world, that is indeed how contracting parties view things. Using a dataset made up of one thousand mergers and acquisitions (M&A) contracts and thirty in-depth interviews with M&A lawyers, we find that there …

Beyond Profit, Emilie Aguirre

Faculty Scholarship

Etsy was a crown jewel of socially responsible businesses. It prioritized female entrepreneurship, its employees, and environmental stewardship. It was widely admired as a company pursuing social goals alongside profit goals. But after scaling up through an IPO, Etsy fell apart both socially and financially. Similar stories proliferate in the world of socially conscious business. What happened? Standard accounts point to greedy investors, capitalism, and short-termism as the culprits.

But this Paper identifies a more fundamental problem: business law is not designed to facilitate scale-ups for companies that articulate objectives beyond profit. It lacks a durable commitment mechanism for these …

Second Amendment Equilibria, Darrell A. H. Miller

Faculty Scholarship

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although …

Final Report Of The Durham Statement Review Task Force, Durham Statement Review Task Force

Faculty Scholarship

No abstract provided.

Regulating Financial Guarantors, Steven L. Schwarcz

Faculty Scholarship

To improve financial regulation, scholars have engaged in extensive research over the past decade to try to understand why systemically important financial firms engage in excessive risk-taking. None of that research fully explains, however, the unusually excessive risk-taking by financial guarantors such as bond insurers, protection sellers under credit-default-swap (CDS) derivatives, credit enhancers in securitization transactions, and even issuers of standby letters of credit. With tens of trillions of dollars of financial guarantees outstanding, the potential for failure is massive. This Article argues that financial guarantor risk-taking is influenced by a previously unrecognized cognitive bias, which it calls “abstraction bias.” …

Stealing (Identity) From The Poor, Sara S. Greene

Faculty Scholarship

The law of data breaches is new, dynamic, and evolving. The number and complexity of breaches increases each year and legal scholars, courts, and policymakers scramble to respond. In 2019, 14.4 million consumers became victims of identity theft, the most problematic consequence of data breaches for consumers. Indeed, one-third of all Americans have experienced identity theft at some point in their lives. Yet despite low-income groups comprising at least thirty percent of all identity theft victims, existing discourse and debate on the regulatory regime governing data breaches and identity theft primarily reflects the experiences and concerns of middle- and high-income …

The Sec's Shareholder Proposal Rule: Creating A Corporate Public Square, James D. Cox, Randall S. Thomas

Faculty Scholarship

In this Article, we take advantage of this Symposium’s goals to think broadly about the future of Rule 14a-8 of the Securities Exchange Act of 1934, the shareholder proposal rule. We set forth a vision for the rule to address boardroom insularity by likening the shareholder proposal rule as the public square for shareholders. The existence of such a forum would redound to the benefit of investors, officers, and boards of directors as a fount of current and useful information about their investors’ and stakeholders’ concerns.

John Marshall Harlan And Constitutional Adjudication: An Anniversary Rehearing, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Two Concepts Of Gun Liberty, Joseph Blocher

Faculty Scholarship

No abstract provided.

Corporate Restructuring Under Relative And Absolute Priority Default Rules: A Comparative Assessment, Jonathan M. Seymour, Steven L. Schwarcz

Faculty Scholarship

The European Union recently adopted a Restructuring Directive intended to facilitate the reorganization of insolvent and other financially troubled firms. Although the central goal of the Directive parallels that of chapter 11 of U.S. bankruptcy law—to protect and maximize the value of financially distressed but economically viable enterprises by consensually reorganizing their capital structure—the Directive introduces an innovative but controversial option: that EU Member States can decree that reorganization negotiations should be subject to a relative priority default rule, in contrast to the type of absolute priority default rule used by chapter 11. EU officials argue that relative priority is …

Punishing With Impunity: The Legacy Of Risk Classification Assessment In Immigration Detention, Robert Koulish, Kate Evans

Faculty Scholarship

In 2012, the Department of Homeland Security adopted a risk classification assessment ("RCA") tool to run on migrants in the custody of Immigration and Customs Enforcement ("ICE"). The risk tool helped determine who was detained and who was released from ICE custody. It was intended to curb detention rates by limiting detention based on risk of flight and danger and to ensure that the conditions of civil immigration detention were distinct from those in criminal detention. This Article presents data from several RCA datasets received pursuant to the Freedom of Information Act.

The story of the RCA is one of …

Drugs, Patents, And Well-Being, Christopher Buccafusco, Jonathan S. Masur

Faculty Scholarship

The ultimate end of patent law should be to spur innovations that improve human welfare-innovations that make people better off. But firms will only invest resources in developing patentable inventions that will allow them to make money-that is, inventions that people will want to use and buy. This can gravely distort the types of incentives that firms face and the types of inventions they pursue. Nowhere is this truer than in the pharmaceutical field There is by now substantial evidence that treatments for diseases that primarily afflict poorer people-including the citizens of developing nations-are dramatically underproduced, compared with drugs that …

On The Scent: A History Of “The King Of The Foxes” Autograph Manuscript, Jennifer L. Behrens

Faculty Scholarship

No abstract provided.

Equality Metrics, Veronica Root Martinez, Gina-Gail S. Fletcher

Faculty Scholarship

This time is different. This time the death of another Black man at the hands of white police officers prompted calls for change not only within police departments, but across all aspects of American life. Those calls for change resulted in significant displays of support for the Black Lives Matter movement and interest in how to eliminate systemic racism and promote racial diversity and justice within one’s daily life and workplace. For the most part, corporations were quick to publicly align themselves with the movement. When carefully examined, however, many of the statements issued by corporations in support of the …

Influence Of Non-Uniform Elevated Temperature On The Structural Stability And Strength Of Gypsum-Sheathed Cold-Formed Steel Beam Channel Members, Elias Ali

Faculty Scholarship

The objective of this paper is to computationally explore the structural stability and strength of gypsum-protected CFS (cold-formed steel) beam channel sections under non-uniform elevated temperatures when exposed to standard fire on one side of the panel and subjected to pure bending. When a CFS member is subjected to fire (or thermal gradients) its material properties change—but this change happens around the cross-section and along the length creating a member which is potentially non-uniform and unsymmetrical in its response even if the apparent geometry is uniform and symmetric.Computational finite element models were analyzed in ABAQUS to establish steady-state thermal gradients …

Public Health Surveillance In The Context Of Covid-19, Jennifer D. Oliva

Faculty Scholarship

No abstract provided.

Default Culpability Requirements: The Model Penal Code And Beyond, Scott England

Faculty Scholarship

This Article examines section 2.02(3) of the Model Penal Code, both as proposed by the ALI and as modified by MPC states, and recommends new default culpability rules to replace it.

The Model Penal Code’s default culpability provision, Section 2.02(3), plays a central but often overlooked role in the Code’s celebrated culpability scheme. Section 2.02(3) “reads in” a requirement of recklessness when an offense is silent about the mental state required for an offense element. The provision has profound implications for criminal law because thousands of state offenses fail to prescribe culpability requirements. Without a default culpability rule like Section …

Tuning In To Teens (Tint) With Adoptive Parents And Guardians In The Us: The Replication Phase Of Intervention Research, Nancy Rolock

Faculty Scholarship

Ensuring the wellbeing and stability of children with foster care experiences is critical. Between 5% and 20% of children experience post-permanency instability, a reentry into foster care after adoption or guardianship; adolescents are at increased risk for post-permanency instability. Few interventions that aim to reduce post-permanency instability have been rigorously tested. This study adapted and tested Tuning in to Teens (TINT), previously tested in Australia as a prevention program with parents of adolescents. TINT teaches caregivers skills in emotion coaching (responding with empathy, support, and guidance when young people express emotions) while helping them to reduce their dismissive or harsh …

Immature Platelet Dynamics In Immune-Mediated Thrombocytopenic States, Hollie M. Reeves, Robert W. Maitta

Faculty Scholarship

A major challenge encountered by clinicians is differentiating presentations characterized by significant thrombocytopenia due to overlapping clinical symptoms and signs in the setting of ambiguous laboratory results. Immature platelets represent the youngest platelets that can be measured in peripheral blood by current hematology analyzers. These young platelets are larger, with higher RNA content recently released from the bone marrow. Thrombocytopenic presentations caused directly or indirectly by immune responses can lead to compensatory bone marrow responses seeking to normalize the platelet count; thus obtaining absolute immature platelet counts may be informative while triaging patients. Over the last decade, their use has …

Kob-4 Interviews Serge Martinez: Landlords, Tenants Feel Impact Of State Eviction Moratorium, Serge A. Martinez

Faculty Scholarship

"A lot of folks in New Mexico have month-to-month leases that come up for renewal every 30 days or so, and even folks that have longer leases, it's been nine months since the Supreme Court issues their order so a large percentage of leases in New Mexico have come up for renewal in that time period,” said Serge Martinez, a professor at UNM School of Law.

View story at KOB-4

New Mexico In Depth Interviews Vinay Harpalani: Complexity Of Colorism, Vinay Harpalani, Claudia Silva

Faculty Scholarship

“Our discourse on race in this country has largely been framed around black or white,” said University of New Mexico civil rights law professor Vinay Harpalani.

But assumptions about varying shades of skin color can, for example, lead someone who is Indian, like himself, to be mistaken as Hispanic, he said.

Academics who’ve studied racial discrimination say discrimination based on a person’s skin-tone exists across many racial and ethnic groups and generally manifests as a systematic preference for lighter skin over darker skin.

Harpalani explains it can be the other way around in some instances, such as the bullying Clark …

Kob-4 Interviews Josh Kastenberg: Mother Wants Answers After Son Found Dead In New Mexico Jail, Joshua Kastenberg, Tommy Lopez

Faculty Scholarship

In the court file, there’s no explanation of why he wasn’t simply let go. Legal experts say judges need to give that explanation.

"You have to explain, if you’re a judge, to the defendant why it is that you’re assessing them money," said former judge and UNM professor Joshua Kastenberg.

Archuleta had a long record, and Kastenberg believes that’s a big factor in the judge setting bail.

"You want judges to be able to exercise their discretion, but without a ruling, we don’t know what this particular judge had in his or her thought processes," he said.

He says the …

Geographic Monitoring For Early Disease Detection (Geomedd), Andrew Curtis, Jayakrishnan Ajayakumar, Jacqueline Curtis, Sorapat Vijitakula, Justin Yax

Faculty Scholarship

Identifying emergent patterns of coronavirus disease 2019 (COVID-19) at the local level presents a geographic challenge. The need is not only to integrate multiple data streams from different sources, scales, and cadences, but to also identify meaningful spatial patterns in these data, especially in vulnerable settings where even small numbers and low rates are important to pinpoint for early intervention. This paper identifies a gap in current analytical approaches and presents a near-real time assessment of emergent disease that can be used to guide a local intervention strategy: Geographic Monitoring for Early Disease Detection (GeoMEDD). Through integration of a spatial …

Unm Newsroom Interviews Nathalie Martin: Unm Law Professor Practices Yoga And Meditation In Stressful Times, Nathalie Martin, Maggie Branch

Faculty Scholarship

A professor at The University of New Mexico School of Law has become a very accomplished Yogi – someone who studies and is proficient in yoga. Nathalie Martin, who has been a part of the UNM law faculty since 1998, was featured in a magazine put together by the Property Brothers and HGTV regarding her Yogi status.

Access Services: Not Waving, But Drowning, Max Bowman, Monica Samsky

Faculty Scholarship

Examining the chasm between access services staff and “the rest of the library” is illustrative of the divisions of labor that exist throughout the library. The chapter is an exploration of the effects of siloing and hierarchies in library staffing. The effort to elevate the work of the library within the academy has resulted in a troubling stratification of labor and devaluing of certain kinds of work within libraries.

From Loyalty To Justice, Andrew S. Gold

Faculty Scholarship

No abstract provided.