Digital Commons Network^™

Review Of What's Wrong With Copying? By Abraham Drassinower, Jessica Silbey

Faculty Scholarship

There are several radical aspects of Abraham Drassinower’s book WHAT’S WRONG WITH COPYING? One is that he shoves to the side the question of copyright incentives and the economic theory of intellectual property law, both long-standing starting points for copyright theory and doctrine. Drassinower makes no intellectual apologies for this sidelining and justifies it by the second radical aspect of his book: he claims to be exploring copyright law on its own terms, not on terms from outside copyright (economics or behavioral incentives) but from internal to copyright law as written and developed since the Statute of Anne.1 This he …

The Potential Utility Of Disciplinary Regulation As A Remedy For Abuses Of Prosecutorial Discretion, Samuel J. Levine

Scholarly Works

This Essay is part of a larger project exploring the possibility that, contrary to much of the prevailing scholarship, judicial supervision of the prosecutor’s charging decision—through both expansive judicial interpretation of current ethics rules and judicial enactment and enforcement of more extensive ethics rules—might serve as a viable and effective mechanism for meaningful review and regulation.

In a forthcoming article, Bruce Green and I identify and respond to some of the reasons scholars have generally steered clear of considering the option that judges might play a more robust role in supervising prosecutors’ charging discretion by implementing enhanced disciplinary rules addressing …

A Reply To The National Conference Of Bar Examiners: More Talk, No Answers, So Keep On Shopping, Suzanne Darrow-Kleinhaus

Scholarly Works

In Let the Games Begin: Jurisdiction-Shopping for the Shopaholics (Good Luck With That) Mark Albanese defends the National Conference of Bar Examiners’ grading practices as essential to assuring reliability given the variability in grading between UBE jurisdictions. In addressing the claim that it is possible to achieve different outcomes on the same test by the same candidate if taken in different UBE jurisdictions, he describes how NCBE monitors jurisdiction variation to ensure grading consistency. Those of us concerned, however, with the possibility that the jurisdiction in which a candidate takes the Uniform Bar Examination (UBE) may make the difference between …

The Elements Of Urban Design : An Analysis Of Urban Planning In Ancient Israel, Scott Andrew Engebretson

ATS Dissertations

No abstract provided.

China's And India's Differing Investment Treaty And Dispute Settlement Experiences And Implications For Africa, Won Kidane

Faculty Publications

This Article examines China’s and India’s differing investment treaty and dispute settlement experiences and the resulting implications for Africa. It attempts to answer the question of whether there is evidence of China’s and India’s attempt to take advantage of the default structural imbalance enabled by centuries of international investment laws and institutions that favor the investor. The Article begins by presenting the background of the current economic reality and trends that necessitate the evaluation of the existing rules and institutions. It then presents a detailed assessment of this phenomenon by focusing on the investment cases brought against India for context, …

Visual-Linguistic Semantic Alignment: Fusing Human Gaze And Spoken Narratives For Image Region Annotation, Preethi Vaidyanathan

Theses

Advanced image-based application systems such as image retrieval and visual question answering depend heavily on semantic image region annotation. However, improvements in image region annotation are limited because of our inability to understand how humans, the end users, process these images and image regions. In this work, we expand a framework for capturing image region annotations where interpreting an image is influenced by the end user's visual perception skills, conceptual knowledge, and task-oriented goals. Human image understanding is reflected by individuals' visual and linguistic behaviors, but the meaningful computational integration and interpretation of their multimodal representations (e.g. gaze, text) remain …

Automated Grading And Feedback Of Regular Expressions, Himesh Kakkar

Theses

To keep up with the current spread of education, there has arisen the need to have automated tools to evaluate assignments. As a part of this thesis, we have developed a technique to evaluate assignments on regular expressions (regexes). Every student is different and so is their solution, thus making it hard to have a single approach to grade it all. Hence, in addition to the existing techniques, we offer a new way of evaluating regexes. We call this the regex edit distance. The idea behind this is to find the minimal changes that we could make in a wrong …

Aligning Business Decision Making To Strategy, Donald J. Barnes, Katherine A. Dominguez, Whitney J. Vazquez

Theses

"Hurry up and wait" is a recipe for inefficiency. Some product development projects start and stop and start again, with team members being added and removed throughout the process. The cost of this lurching does not appear to be well quantified. Moving technical talent from one project to another may assume 100% engineering efficiency, which is not case. Hidden effects of engineers being moved include having to "spin up" on the new project and learn where the last team members left off (which may not be well documented), repeating initial work, and lowered efficiency and morale on the part of …

A Novel 3d Printed Leg Design For A Biped Robot, Matthew A. Haywood

Theses

This paper proposes a novel leg design for a humanoid robot that can be 3D printed. More explicitly, the efforts of this paper are to bring some of the more complex leg designs seen in large scale bipedal robot into the realm of smaller bipeds while still allowing for it to be easily reproducible or modified. In order to accomplish this 3D printing technology was utilized, as well as an iterative design process. An ankle and knee powered by linear actuators were first constructed to test the conceptual design of the leg. This was followed by a complete leg design …

Insulin-Like Growth Factor Signaling Regulates Developmental Trajectory Associated With Diapause In Embryos Of The Annual Killifish Austrofundulus Limnaeus, S. Cody Woll, Jason E. Podrabsky

Biology Faculty Publications and Presentations

Annual killifishes exhibit a number of unique life history characters including the occurrence of embryonic diapause, unique cell movements associated with dispersion and subsequent reaggregation of the embryonic blastomeres, and a short postembryonic life span. Insulin-like growth factor (IGF) signaling is known to play a role in the regulation of metabolic dormancy in a number of animals but has not been explored in annual killifishes. The abundance of IGF proteins during development and the developmental effects of blocking IGF signaling by pharmacological inhibition of the insulin-like growth factor I receptor (IGF1R) were explored in embryos of the annual killifish Austrofundulus …

Privacy's Trust Gap, Neil M. Richards, Woodrow Hartzog

Faculty Scholarship

It can be easy to get depressed about the state of privacy these days. In an age of networked digital information, many of us feel disempowered by the various governments, companies, and criminals trying to peer into our lives to collect our digital data trails. When so much is in flux, the way we think about an issue matters a great deal. Yet while new technologies abound, our ideas and thinking — as well as our laws — have lagged in grappling with the new problems raised by the digital revolution. In their important new book, Obfuscation: A User’s Guide …

Patenting Frankenstein's Monster: Exploring The Patentability Of Artificial Organ Systems And Methodologies, Jordana Goodman

Faculty Scholarship

The conception of Frankenstein’s monster bridges the ever-narrowing divide between man and machine. Long before Congress codified Section 33(a) of the America Invents Act (“AIA”), Mary Shelley’s vague description of the monster’s creation has left people wondering: what defines a human organism? Through an analysis of patent law and scientific progress in the development of artificial organ systems, this paper explores the boundaries of patentable subject matter in the United States and attempts to clarify Congress’s determination that “no patent may issue on a claim directed to or encompassing a human organism.” Though patent law should incentivize development of artificial …

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Faculty Scholarship

For the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We …

How Much Has The Supreme Court Changed Patent Law?, Paul Gugliuzza

Faculty Scholarship

The U.S. Supreme Court has decided a remarkable number of patent cases in the past decade, particularly as compared to the first twenty years of the Federal Circuit’s existence. No longer is the Federal Circuit “the de facto Supreme Court of patents,” as Mark Janis wrote in 2001. Rather, it seems the Supreme Court is the Supreme Court of patents. In the article at the center of this symposium, Judge Timothy Dyk of the Federal Circuit writes that the Supreme Court’s decisions “have had a major impact on patent law,” citing, among other evidence, the Court’s seventy percent reversal rate …

The Deserving Poor, The Undeserving Poor, And Class-Based Affirmative Action, Khiara M. Bridges

Faculty Scholarship

This Article is a critique of class-based affirmative action. It begins by observing that many professed politically conservative individuals have championed class-based affirmative action. However, it observes that political conservatism is not typically identified as an ideology that generally approves of improving the poor’s well-being through the means that class-based affirmative action employs — that is, through redistributing wealth by taking wealth from a wealthy individual and giving it directly to a poor person. This is precisely what class-based affirmative action does: it takes a seat in an incoming class (a species of wealth) from a wealthy individual and gives …

The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity, Danielle K. Citron, Benjamin Wittes

Faculty Scholarship

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to …

By Any Other Name: Rational Basis Inquiry And The Federal Government's Fiduciary Duty Of Care, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something very similar to substantive due process, however, is easily justifiable as a matter of original constitutional meaning once one understands that the Constitution, for interpretative purposes, is best seen as a kind of fiduciary instrument. Fiduciary instruments operate against a background of legal norms that notably include a duty of care on the part of agents. All federal actors …

No Restoration, No Rehabilitation: Shadow Detention Of Mentally Incompetent Noncitizens, Sarah R. Sherman-Stokes

Faculty Scholarship

This article examines the burgeoning mental competency regime in immigration removal proceedings, as well as its shortcomings. While some strides have been made in the last six years to identify noncitizen detainees who are incompetent, and to implement safeguards, including appointed counsel, to protect their rights, the current mental competency framework fails to protect some of the most vulnerable. Specifically, this article explains that mentally incompetent, noncitizen detainees for whom no adequate safeguards are available, face a kind of shadow, prolonged and potentially indefinite detention. These detainees’ continued detention is wholly without process – despite their incompetence, they are not …

Confronting Crawford: Justice Scalia, The Judicial Method, And The Adjudicative Limits Of Originalism, Gary S. Lawson

Faculty Scholarship

If you conduct an online search for something like “Justice Scalia’s most important opinions” or “Justice Scalia’s most influential opinions,” you will (or at least I did) almost always end up with a list that is top-heavy with dissents. That is not surprising. Dissenting opinions gave Justice Antonin Scalia the most freedom to exercise his considerable skills as a writer and were therefore more likely to produce memorable one-liners. They were also the best occasions for him to express his views can­didly and forcefully and thus served as the best vehicles for elaboration of his jurisprudential and doctrinal positions. Majority …

Towards Patent Standardization, Janet Freilich, Jay P. Kesan

Faculty Scholarship

Among the most important purposes of patents are to provide clear notice to third parties of the patent's boundaries and to disclose helpful information to researchers seeking to replicate or further develop the patented invention. Unfortunately, patents often fail at both of these tasks, in part because of lack of uniformity of language and format.' Use of idiosyncratic language in patent claims renders it difficult to find relevant patents and, once a patent is found, to interpret its claims. As there is no customary set of information that must always be included in a patent, researchers often find reading a …

The Future Of Fast Food Governance, Andrew Elmore

Faculty Scholarship

The Fast Food Forward movement has swelled into one of the largest protests by low‐wage workers in U.S. history, animating efforts at all levels of government to raise and enforce workplace standards. One such strategy is to hold fast food franchisors accountable as joint employers of their franchisees’ employees. In what may be a watershed moment, New York Attorney General Eric Schneiderman (NYAG) recently filed suit against Domino’s Pizza, the franchisor, for wage‐and‐hour‐law violations in its franchisees’ stores across New York State.

Fast food store employees report widespread wage‐and‐hour law violations, and the NYAG’s Domino’s lawsuit appears to confirm this …

Original Foreign Affairs Federalism, Gary S. Lawson

Faculty Scholarship

Two of the most doctrinally bewildering topics in American constitutional law are federalism and foreign affairs. Put the two together and it requires the patience of Job and the wisdom of Solomon to navigate, never mind make sense of, the judicial and political accommodations that have arisen over the course of more than two centuries concerning the relative roles of the national, state, and local governments in matters that implicate American involvement with foreign countries and citizens. I will not go so far as to say that Mike Glennon and Rob Sloane’s new book, Foreign Affairs Federalism: The Myth of …

Enhanced Damages For Patent Infringement: A Normative Approach, Keith N. Hylton

Faculty Scholarship

This paper takes a normative approach to patent infringement damages. Its underlying premise is that the goal of a damages regime should be to maximize society's welfare. Patent damages should therefore balance society's interest in encouraging innovation against the need to regulate infringement incentives. This balancing approach generates an optimal standard for awarding enhanced damages and guidelines for determining the size of the damages multiplier. On the legal standard, the approach developed here illuminates the factors that should be taken into consideration in the enhancement analysis, and, more importantly, the reasons those factors should be considered. On the precise size …

Before Interpretation, Anya Bernstein

Faculty Scholarship

What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present …

Comment On "Error And Regulatory Risk In Financial Institution Regulation", Keith N. Hylton

Faculty Scholarship

I agree with just about everything Jonathan Macey (2017) says in his symposium contribution. His claim that bureaucratic tendencies toward regularity—specifically, treating like cases alike—generate errors in categorization seems appropriate to me. His explanations of the pathologies in financial regulation should fall in the category of essential or required reading for anyone who chooses to write on the topic. Where I differ from Macey is in the choice of framework, or perspective from which to view the pathologies. Whereas Macey adopts an “error cost” framework, which is clearly appropriate for this symposium, I would build explicitly on a “public choice” …

Evaluating Hourly Rainfall Characteristics Over The U.S. Great Plains In Dynamically Downscaled Climate Model Simulations Using Nasa-Unified Wrf, Huikyo Lee, Duane E. Waliser, Robert Ferraro, Takamichi Iguchi, Christa D. Peters-Lidard, Baijun Tian, Paul C. Loikith, Daniel B. Wright

Geography Faculty Publications and Presentations

Accurate simulation of extreme precipitation events remains a challenge in climate models. This study utilizes hourly precipitation data from ground stations and satellite instruments to evaluate rainfall characteristics simulated by the NASA-Unified Weather Research and Forecasting (NU-WRF) regional climate model at horizontal resolutions of 4, 12, and 24 km over the Great Plains of the United States. We also examined the sensitivity of the simulated precipitation to different spectral nudging approaches and the cumulus parameterizations. The rainfall characteristics in the observations and simulations were defined as an hourly diurnal cycle of precipitation and a joint probability distribution function (JPDF) between …

Late Precontact Settlement On The Northern Seward Peninsula Coast: Results Of Recent Fieldwork, Shelby L. Anderson, Justin Andrew Junge

Anthropology Faculty Publications and Presentations

Changing Arctic settlement patterns are associated with shifts in socioeconomic organization and interaction at both the inter- and intraregional levels; analysis of Arctic settlement patterns can inform research on the emergence and spread of Arctic maritime adaptations. Changes in late precontact settlement patterns in Northwest Alaska suggest significant shifts in subsistence and/or social organization, but the patterns themselves are not well understood. Prior research around Kotzebue Sound suggests three possible scenarios: (1) population decrease and dispersion from settlement centers after 550 cal bp, (2) population stability and dispersion after 550 cal bp, and (3) different settlement patterns in the northern …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Maintaining Power By Manipulating Memory In Rwanda, Thomas A. Kelley Iii

Faculty Publications

No abstract provided.

The Free Speech Rights Of University Students, Mary-Rose Papandrea

Faculty Publications

No abstract provided.