Digital Commons Network^™

Participatory Defense: Humanizing The Accused And Ceding Control To The Client, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Batson's Appellate Appeal And Trial Tribulations, Jonathan Abel

Faculty Scholarship

Batson v. Kentucky is widely regarded as a failure. In the thirtyplus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the discriminatoy use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson's appellate virtues rather than its trial shortcomings. This change in focus reveals a number of ways in which the Batson doctrine provides opportunities on appeal that do not exist at trial. In short, this Article argues that appellate Batson …

Bringing The Science Of Policing To Liability For Third-Party Crime At Shopping Malls, Aaron Twerski, John M. Shane

Faculty Scholarship

No abstract provided.

If It's Tuesday, This Must Be Procreation: Methodology And Subject-Matter In Fourteenth Amendment Pedagogy, William Araiza

Faculty Scholarship

No abstract provided.

Supreme Judicial Bullshit, Adam J. Kolber

Faculty Scholarship

No abstract provided.

No Cake For You: Discrimination, Dignity, And Refusals To Serve, William Araiza

Faculty Scholarship

No abstract provided.

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Eduard Fosch Villaronga, Peter Kieseberg, Tiffany Li

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …

Quarantine And The Federal Role In Epidemics, Michael R. Ulrich, Wendy K. Mariner

Faculty Scholarship

Every recent presidential administration has faced an infectious disease threat, and this trend is certain to continue. The states have primary responsibility for protecting the public’s health under their police powers, but modern travel makes diseases almost impossible to contain intrastate. How should the federal government respond in the future? The Ebola scare in the U.S. repeated a typical response—demands for quarantine. In January 2017, the Department of Health and Human Services and the Centers for Disease Control and Prevention issued final regulations on its authority to issue Federal Quarantine Orders. These regulations rely heavily on confining persons who may …

Exploring The Meaning Of Experiential Deaning, Margaret Martin Barry, Robert D. Dinerstein, Phyllis Goldfarb, Peggy Maisel, Linda H. Morton

Faculty Scholarship

This article explores the position of associate dean of experiential education in law schools across the country and the central role associate deans play in the changing landscape of legal education. Experiential deans have broad responsibility for overseeing law schools’ experiential education programs. Additional responsibilities differ between institutions, but range from leading efforts to comply with new ABA standards to overseeing the integration of experiential education into the broader curriculum. Analyzing survey data collected from associate experiential deans across the country, the authors find the structure, content, and authority of the position is under-developed. The authors make recommendations on how …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Angela Onwuachi-Willig, Ifeoma Ajunwa

Faculty Scholarship

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior …

Afterword: What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis, Steven W. Bender, Francisco Valdes, Shelley Cavalieri, Jasmine Gonzales Rose, Saru Matambanadzo, Roberto Corrada, Jorge Roig, Tayyab Mahmud, Zsea Bowmani, Anthony E. Varona

Faculty Scholarship

In this multi-vocal Afterword, we reflect-personally and collectively to help chart renewed agendas toward and through a third decade of LatCrit theory, community, and praxis. This personal collective exercise illustrates and reconsiders the functions, guideposts, values, and postulates for our shared programmatic work a framework for our daily work as individuals and teams through our portfolio of projects, which in turn emerged as a "reflection and projection of LatCrit theory, community and praxis." These early anchors expressly encompassed (1) a call to recognize and accept the inevitable political nature of U.S. legal scholarship; (2) a concomitant call toward anti-subordination praxis …

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Faculty Scholarship

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes of …

Can A Court Change The Law By Saying Nothing?, Paul Gugliuzza, Mark A. Lemley

Faculty Scholarship

Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit’s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36.

Including those no-opinion affirmances, the Federal Circuit has found …

Corporate Social Responsibility And Social Media Corporations: Incorporating Human Rights Through Rankings, Self-Regulation And Shareholder Resolutions, Erika George

Faculty Scholarship

This article examines the emergence and evolution of selected ranking and reporting frameworks in the expanding realm of business and human rights advocacy. It explores how indicators in the form of rankings and reports evaluating the conduct of transnational corporate actors can serve as regulatory tools with potential to bridge a global governance gap that often places human rights at risk. Specifically, this article examines the relationship of transnational corporations in the Internet communications technology sector (ICT sector) to human rights and the risks presented to the right to freedom of expression and the right to privacy when ICT sector …

Collaborative Enforcement, Andrew Elmore

Faculty Scholarship

Labor standards enforcement in the low-wage workplace has long suffered from a lack of capacity, expertise and remedies that blunt the impact of public and private enforcers alike. The question of how to address these pathologies in state and local workplace regulation has gained new urgency with the virtual explosion of regional labor lawmaking and the deregulatory impulses of the new federal administration.

This Article identifies collaboration between state and local agencies and private, public interest organizations (“PIOs”) as one pathway to address these enforcement gaps, by amplifying the deterrent effect of public and private enforcement and 1 by improving …

Brief For Professors, Lamar, Archer & Cofrin, Llp V. R. Scott Appling As Amicus Curiae, Laura Spitz

Faculty Scholarship

This brief is concerned with the Petitioner’s misinterpretation of §523(a)(2) of the United States Bankruptcy Code, 11 U.S.C. §101, et seq., which wrongly maintains that a false oral statement describing a single asset gives rise to a non-dischargeable debt. This brief shows Congress understood that §523(a)(2) simply re-enacted statutory language already having a completely settled understanding that a statement about a single asset was a “statement respecting financial condition” which must be in writing in order to give rise to a nondischargeable debt. This brief also submits that even if, arguendo, Petitioner were correct that a statement respecting financial condition …

An Analytical Framework For The Steady State Impact Of Carbonate Compensation On Atmospheric Co2, Anne Willem Omta

Faculty Scholarship

The deep-ocean carbonate ion concentration impacts the fraction of the marine calcium carbonate production that is buried in sediments. This gives rise to the carbonate compensation feedback, which is thought to restore the deep-ocean carbonate ion concentration on multimillennial timescales. We formulate an analytical framework to investigate the impact of carbonate compensation under various changes in the carbon cycle relevant for anthropogenic change and glacial cycles. Using this framework, we show that carbonate compensation amplifies by 15–20% changes in atmospheric CO2resulting from a redistribution of carbon between the atmosphere and ocean (e.g., due to changes in temperature, salinity, or nutrient …

Pathways Linking Family Stress To Youth Delinquency And Substance Use: Exploring The Mediating Roles Of Self-Efficacy And Future Orientation, Dexter R. Voisin

Faculty Scholarship

African American adolescents in poorer neighborhoods experience significant sanctions related to drug use and delinquency. Parental stress (i.e. substance use, mental distress, and incarceration) is associated with youth drug use and delinquency. We examined whether high self-esteem and positive future orientation mediated parental stress and youth substance use and delinquency. Demographic, family stress, future orientation, self-esteem, and drug use data were collected from 578 youths. Major findings indicated that self-esteem mediated the relationship between family stress and both drug use and delinquency. Future mediated the relationship between family stress and delinquency. Resiliency factors may promote positive development for low-income youth.

Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales, Barbara L. Creel

Faculty Scholarship

Prior cases, have assumed, without analysis that the ACA applies to Indian Country. This review of the ACA failed to consider and incorporate clearly established Indian law principles and foundational tenets of criminal law in the analysis of its applicability to Indians and Indian Country. Most importantly, the precedent and the Court below failed to understand the racial component involved in the analysis. These failures to understand the principles of Indian law and criminal law, have rendered haphazard and incoherent decisions.

Amici seek to bring clarity to the complex jurisdictional interplay and provide a practical framework for the proper analysis …

Using Empirical Studies As A Basis For Updating Intestacy Laws, Sergio Pareja

Faculty Scholarship

The principal goal of any intestacy statute is to determine the probable intent of individuals who die without a will. Professor Wright and Ms. Sterner analyze 493 wills that were probated in Escambia and Alachua Counties, Florida, in 2013. This blog post reviews their study as well as Wright and Sterner's final analysis. Pareja adds, new statutes, if properly considered, should pay attention to gender, race, and class differences that surfaced in the authors’ study

Differential Degradation Patterns Of Photovoltaic Backsheets At The Array Level, Yu Wang, Laura S. Bruckman

Faculty Scholarship

There are relatively few field studies on the degradation of non-fluoropolymer-based backsheets, and understanding their in-field behavior is critical for further development of such products. In this study, backsheet degradation of modules with one of these new types of backsheets (polyethylene naphthalate (PEN)-based) was documented at a four-year old utility-scale array located in Maryland (USA). Visual inspection, colorimetry, glossimetry, and Fourier-transform infrared spectroscopy (FTIR) revealed highly varied properties depending on module position within the array. Specifically, modules near the edge of the array and with higher mounting elevations underwent greater amounts of backsheet degradation, as indicated by yellowing and gloss-loss. …

Fighting Technology With Technology: Taking Aim At Electronic Sales Suppression, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

Electronic sales suppression (ESS) is a fraud that has been a (prominent) feature of the North American retail business since at least 1996. The first EES case in the US dates from 1981. ESS is a global problem. Depending on the jurisdiction, and the research study consulted, ESS is estimated to be present in 34% (of Canadian), 50% (of German – two studies), and 70% (of Swedish and Slovenian) businesses. It may be the case today, that “you cannot leave home without” encountering (or participating in) ESS.

The most common types of sales suppression technology are Zappers and Phantomware programming. …

Patent Schisms, Clark D. Asay

Faculty Scholarship

Parties frequently obtain patents for one purpose, only to use those patents for another. This article calls such divergences between parties' initial motivations to obtain patents and those patents' predominant uses late on "patent schisms."

Because traditional patent law theories typically treat the purposes of patents as static, scholars have neglected to explicitly examine patent schisms and the reasons behind them. This is so despite the pervasiveness of patent schisms in a variety of important contexts. Those contexts include the patenting behaviors of early-stage companies, later-stage companies, so-called "patent trolls," and universities. In fact, patent schisms lie at the heart …

Searchlight New Mexico Interviews Maryam Ahranjani On The Prisonization Of America's Public Schools, Maryam Ahranjani, Sara Solovitch

Faculty Scholarship

Maryam Ahranjani writes about personal experiences with mass school shootings in "The Prisonization of America's Public Schools," published in October 2017 in Hofstra Law Review. The article takes a critical stance against what Ahranjani terms the growing "criminal infrastructure" metal detectors, surveillance cameras and police officers within our nation's schools. Searchlight New Mexico asked Ahranjani what kind of national response makes sense in the wake of the Parkland mass shooting.

Zapped! An Analysis Of Washington’S Electronic Monitoring Agreement, Richard Thompson Ainsworth, Robert Chicoine

Faculty Scholarship

The State of Washington v. Wong, Wash. Super. Ct., No. 16-1-00179-0 is the State of Washington’s first judicially resolved case involving an automated sales suppression device. Months of negotiations led to a plea agreement and the State’s first electronic sales monitoring agreement (August 30, 2017). The taxpayer violated RCW 82.32.290 (4)(a) by knowingly possessing, and knowingly using a Zapper to suppress sales.

The penalties in this case were severe. Not only were all taxes, penalties, and interest lawfully due required to be paid, but as a Class C felony incarceration of up to 5 years, a $10,000 fine, or both …

Design Center Leasing - A Hybrid Approach, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Privacy, Press, And The Right To Be Forgotten In The United States, Amy Gajda

Faculty Scholarship

No abstract provided.

Simulation As A Clinical Remediation Strategy For Undergraduate Nursing Students, Sara Camp, Tammy Legge

Faculty Scholarship

Development of clinical competency is a critical component of undergraduate nursing education. However, often when students struggle in the clinical setting with skills such as critical thinking and clinical reasoning, evidence-based resources for remediation are lacking. Because simulation is a well-established nursing pedagogy, could it be a valuable tool in clinical remediation for such students? The aim of this integrative review of literature was to examine what was currently known about clinical remediation using simulation and how simulation contributes to clinical competency. A literature search of three data bases was conducted to identify pertinent research using keywords such as simulation, …

Criminal Procedure And The Good Citizen, I. Bennett Capers

Faculty Scholarship

No abstract provided.