Digital Commons Network^™

Judicial Departmentalism: An Introduction, Kevin C. Walsh

Law Faculty Publications

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

On The Twenty-Fifth Anniversary Of Lucas: Making Or Breaking The Takings Claim, Carol N. Brown

Law Faculty Publications

In Lucas v. South Carolina Coastal Council, the United States Supreme Court established the premier categorical regulatory takings standard with certain limited exceptions. The Lucas rule establishes that private property owners are entitled to compensation for a taking under the Fifth Amendment Takings Clause when a government regulation “denies all economically beneficial or productive use of land.” Today, Lucas remains the controlling law on categorical regulatory takings. But in application, how much does Lucas still matter?

My review of more than 1,600 cases in state and federal court reveals only twenty-seven cases in twenty-five years in which courts found …

Natural Rights And The First Amendment, Jud Campbell

Law Faculty Publications

The Supreme Court often claims that the First Amendment reflects an original judgment about the proper scope of expressive freedom. After a century of academic debate, however, the meanings of speech and press freedoms at the Founding remain remarkably hazy. Many scholars, often pointing to Founding Era sedition prosecutions, emphasize the limited scope of these rights. Others focus on the libertarian ideas that helped shape opposition to the Sedition Act of 1798. Still more claim that speech and press freedoms lacked any commonly accepted meaning. The relationship between speech and press freedoms is contested, too. Most scholars view these freedoms …

Brazil's Olympic-Era Anti-Corruption Reforms, Andrew B. Spalding

Law Faculty Publications

A country once renowned for glorifying corruption now leads what may be the furthest-reaching anti-corruption investigation in history. Brazil, once typified by its "Brazilian jeitinho" way of creatively navigating social problems,' now executes "Operation Car Wash," bringing down political and business leaders by the dozens. So too has Brazil's Congress adopted a series of dramatic, and effective, new anti-corruption laws, in response to public outcries for reform. It is deeply ironic, but not at all coincidental, that Brazil concurrently hosted the Summer Olympics. This paper chronicles the extraordinary series of events that connect - in a line that is straight …

The Unexpected Role Of Tax Salience In State Competition For Businesses, Hayes R. Holderness

Law Faculty Publications

Competition among the states for mobile firms and the jobs and infrastructure they can bring is a well-known phenomenon. However, in recent years, a handful of states have added a mysterious new tool to their kit of incentives used in this competition. Unlike more traditional incentives, these new incentives — which this Article brands “customer-based incentives” — offer tax relief to a firm’s customers rather than directly to the firm. The puzzle underling customer-based incentives is that tax relief provided to the firm’s customers would seem more difficult for the firm to capture than relief provided directly to the firm …

Why Kindergarten Is Too Late: The Need For Early Childhood Remedies In School Finance Litigation, Kevin Woodson

Law Faculty Publications

In the remedial phases of school finance lawsuits, courts and legislatures have sought to provide poor children access to adequate educational opportunities through remedies and reforms focusing almost exclusively on improving educational conditions within elementary and secondary schools. This approach is both inefficient and ineffective. As a large and growing body of scientific and social science research reveals, class-based disparities in quality of care and enrichment during the first years of life can have life-long effects that inhibit the ability of many poor children to succeed academically, thereby depriving them of equal and adequate access to educational opportunity. The failure …

Costing Out Campus Speaker Restrictions, Suzanne B. Goldberg

Faculty Scholarship

Frederick Schauer gently points out the challenging, and arguably absurd, situation we find ourselves in today, where a commitment to free expression has enabled provocateurs not only to spew hostile messages into our communities but also to divert extraordinary levels of resources to protect their messaging.

This is not new, of course. As Professor Schauer details, governments and courts have long wrestled with speakers dropping into communities where they are not wanted, generating significant tension and upset, and requiring outsized expenditures in efforts to ensure public safety.

‘Courts Have Twisted Themselves Into Knots’ (And The Twisted Knots Remain To Untangle): Us Copyright Protection For Applied Art After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

Domestic and international law makers have struggled to determine whether, and to what extent, copyright law should cover works that are both artistic and functional. American courts' application of a statutory “separability” standard has become so convoluted that the U.S. Supreme Court has decided an appeal from a case in which the appellate court expressed the lament quoted in the title of this Chapter. The Chapter will review the genesis and application of the statutory standard, especially in the Supreme Court’s decision in Star Athletica v. Varsity Brands (2017), and, having concluded that the Supreme Court has failed to untangle …

Freedman On Machiavelli, Philip C. Bobbitt

Faculty Scholarship

This chapter links Freedman’s work to that of Niccolò Machiavelli through constructivist realism, which is an apposite term for the two thinkers, as the unchanging sense of human nature interacts with ever changing context, and humans have to adapt to new circumstances, but with the limitations imposed on them both by themselves or situations. Despite their biographical parallels, it is the similarities and complementarities in their thinking that are more profound reasons to associate them. Both wrestle with the challenge of understanding the ways and the extent to which it is possible to anticipate and to shape the future to …

Formalization, Possession, And Ownership, Thomas W. Merrill

Faculty Scholarship

This paper is a comment on the work of Hernando de Soto, who has done so much to highlight the importance of property rights, especially in the context of what I will call migrant communities within developing countries. These are the shantytowns of Peru, the favelas of Brazil, and the bidonvilles of Haiti. De Soto characterizes these communities as “extralegal zones.” They consist, in his words, of “modest homes cramped together on city perimeters, a myriad of workshops in their midst, armies of vendors hawking their wares on the streets, and countless crisscrossing minibus lines.” I am interested in de …

Recasting The Founding Fathers: The Tea Party, Neoliberalism, And American Myth, Calvin Coker

Faculty and Staff Scholarship

This article analyzes representative texts from the Tea Party Movement (TPM), a conservative American political movement, to demonstrate the TPM uses the myth of the Founding Fathers as an argumentative strategy to craft and justify a sanitary neoliberal political project. The necessity of such of a project lies in the underlying democratic crisis of neoliberalism, a crisis navigated by the TPM through strategic use of political myth. Neoliberal policies require, in many instances, democratic consent, though those policies often serve to disenfranchise many of the groups supporting them. This essay argues the TPM uses myth for the purpose of creating …

Murder, Miscarriage, And Women’S Choice: Prudence In The Colorado Personhood Debate, Calvin Coker

Faculty and Staff Scholarship

This article analyzes texts circulated in the 2014 debate over Colorado’s Amendment 67, the so-called Personhood Amendment, to demonstrate that value claims within the abortion debate are subordinated in favor of discussing the potential legal and philosophical implications of granting fetuses personhood. Using prudence, Robert Hariman’s (1991) framework for understanding political action, as a theoretical lens, I argue the personhood debate offers scholars an opportunity to identify and evaluate competing value claims of and in relation to potential impacts of the amendment. Prudence offers a compelling area for political communication and rhetorical scholars to expand and develop in light of …

Modeling Soot Oxidation And Gasification With Bayesian Statistics, Alexander Jon Josephson, Neal D. Gaffin, Sean T. Smith, Thomas H. Fletcher, David Lignell

Faculty Publications

This paper presents a statistical method for model calibration using data collected from literature. The method is used to calibrate parameters for global models of soot consumption in combustion systems. This consumption is broken into two different submodels: first for oxidation where soot particles are attacked by certain oxidizing agents; second for gasification where soot particles are attacked by H2O or CO2 molecules. Rate data were collected from 19 studies in the literature and evaluated using Bayesian statistics to calibrate the model parameters. Bayesian statistics are valued in their ability to quantify uncertainty in modeling. The calibrated consumption model with …

Study Potential Of Indigenous Pseudomonas Aeruginosa And Bacillus Subtilis In Bioremediation Of Diesel-Contaminated Water, Mohammad-Saeed Safdari, Hamid-Reza Kariminia, Zahra Ghobadi Nejad, Thomas H. Fletcher

Faculty Publications

Petroleum products which are used in a wide variety of industries as energy sources and raw materials have become a major concern in pollution of terrestrial and marine environments. The purpose of this study was to assess the potential of indigenous microbial isolates for degradation of diesel fuel. Two most proficient bacterial strains among five isolated strains from polluted soil of an industrial refinery were studied. The isolates then were identified as Pseudomonas aeruginosa and Bacillus subtilis using biochemical tests and 16S rRNA gene sequence analyses. P. aeruginosa showed higher biodegradation efficiency than B. subtilis in shaking flask containing diesel-contaminated …

Democratic Experimentalism, Charles F. Sabel, William H. Simon

Faculty Scholarship

Democratic Experimentalism is an orientation in contemporary legal thought that draws on both the critical impulses of modernist theory and the constructive practice of postbureaucratic organization.

Some of the core ideas of Democratic Experimentalism were formulated long ago, notably by pragmatists in the John Dewey mold, but they have been elaborated in response to social developments of recent decades. A recurring challenge presented by these developments is uncertainty, by which we mean the inability to anticipate, much less to assign a probability to, future states of the world. The constellation of changes that make contemporary economies more innovative produces uncertainty …

Debating Autonomous Weapon Systems, Their Ethics, And Their Regulation Under International Law, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

An international public debate over the law and ethics of autonomous weapon systems (AWS) has been underway since 2012, with those urging legal regulation of AWS under existing principles and requirements of the international law of armed conflict, on the one side, in argument with opponents who favor, instead, a preemptive international treaty ban on all such weapons, on the other. This Chapter provides an introduction to this international debate, offering the main arguments on each side. These include disputes over defining an AWS, the morality and law of automated targeting and target selection by machine, and the interaction of …

The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan

Faculty Scholarship

In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Joshua Gupta-Kagan

Faculty Scholarship

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois — the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley …

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated yet distinct theory of authorial causation, which connects the element of human agency to a work …

Property And Sovereignty, Information And Audience, Thomas W. Merrill

Faculty Scholarship

Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences – strangers and transactors – those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to …

Antitrust Via Rulemaking: Competition Catalysts, Tim Wu

Faculty Scholarship

In its March 26, 2016 issue, The Economist magazine announced that "America needs a giant dose of competition." Its study of industry concentration and profits suggested that, after decades of consolidation, competition had decreased across a broad range of the American economy. An April 2016 issue brief by the Council of Economic Advisors reached similar conclusions, stating that "competition appears to be declining" due to "increasing industry concentration, increasing rents accruing to a few firms, and lower levels of firm entry and labor market mobility."

The promotion of competition in the American economy is a task that has traditionally fallen …

Cosmology, Mickey L. Mattox

Theology Faculty Research and Publications

No abstract provided.

"Hail Mary, Full Of Haze": Physicalism And The Knowledge Argument, Jesse R. Powell

Honors College Theses

This project aims to provide a clear and compelling reason for rejecting dualism with respect to the mind, by undermining the support dualist positions receive from so-called knowledge arguments. In particular, I will show the error present in the many forms of what is variously called the “Mary’s Room” or “Mary the Brilliant Color Scientist” thought experiment.

The Effect Of Stretching The Gastrocnemius On Electromechanical Delay And Decreased Muscle Power Production, Kolyse E. Wagstaff

Honors College Theses

Previous studies in the field of biomechanics have determined that statically stretching muscles before explosive athletic events decreases muscle power production during performance. However, current research does not explain why muscle power production is lessened due to static stretching. Electromechanical delay (EMD) is the delay between muscle stimulation and force, and the purpose of this research is to determine if the decrease in muscle force production is due to a lengthened EMD of the muscle, potentially caused by static stretching. To test this, participants jumped on force plates and jump power produced by the gastrocnemius was calculated, with stretching and …

Individual Domestic Terrorism: An Analysis Of The Motivations And Radicalization Of Terrorism In The United States, Tony Hudson Jr.

Honors College Theses

Individual terrorist events have increased in the United States. What are the motivations behind these attacks and what led these individuals to participate in this form of political violence? In this paper, I provide a case study analysis of four domestic terrorist attacks in the United States that have been executed by individual perpetrators. I combine rational choice, sociological, and psychological theories in order to show a similar path of radicalization taken by each of the terrorists involved in these attacks. I build upon previous research on the importance of studying terrorism from an individual- analysis perspective.

Effects Of Mortality Salience On Anti- Atheist Prejudice: A Terror Management Perspective, Cassidy J. Keim

Honors College Theses

Terror Management Theory argues that mortality salience is an important motivator in how people behave throughout their lives, and can influence how prejudiced individuals become. In this study we triggered participants’ mortality salience to test this claim, as well as measured the attitudes of prejudice have for atheists compared to homosexuals to see if they differ. Mortality salience did not have an effect on prejudice in this experiment, but anti-atheist prejudice was significantly higher than anti-homosexual prejudice. Although these findings are small, they confirm a need for continued research on prejudice against religious minorities, such as atheists, and how to …

Lost Boys And Girls: Navigating Experience And Identity During Operation Pedro Pan, Caleb M. Still

Honors College Theses

Over 14,000 unaccompanied children came from Cuba to the United States during Operation Pedro Pan. Once they arrived they were faced with an entirely new living situation and were forced to adapt. One of the remaining similarities to their Cuban home was the Catholic Church. The Church played a significant role in shaping these children’s fluid concept of their ethnic, national, and religious identities. Previous scholarship has not addressed the role of the Church in the program or the issue of the fluidity of identity among these children. This study builds on the existing scholarship and aims to fill in …

The Mobius Strip Of Total Health: Manipulation Of Thinking Prior To Exercise Activity, Joseph A. Schenk

Honors College Theses

Research shows mental and physical health are interdependent. We sought to test various methods of external motivation to effect change in the physical performance and mental health of students enrolled in walking classes. We hypothesized that if there was a correlation between physical exercise and mental health and we could motivate individuals to exercise, then that motivation would in turn result in better mental health. Participants, 19 in the pilot and 320 in the main study, were randomly assigned into three groups to receive messages prior to conducting physical activity: those who received neutral messages about exercise, those who received …

Practicing Therapeutic Recreation In A World Of Differences, Morgan Herrington

Honors College Theses

Therapeutic recreation (TR) services are available to any individual who wishes to increase quality of life and improve functioning. The profession is based on many conceptual foundations, including quality of life; perceived freedom; intrinsic motivation, self-efficacy, and self-determination; health, wellness, and disability; and recreation and leisure. However, these Western-ideological perspectives may hinder the introduction and practice of TR in countries with other worldviews. This study was designed to explore different worldviews and to evaluate the conceptual foundations of TR with respect to these differences. Findings attempt to identify ways to adapt and shape TR foundations so that it may be …

School Shootings Perpetrators' Self-Reported Motives: A Qualitative Analysis Of Manifestos And Other Writings, Stephanie A. Miller

Honors College Theses

The motivations behind perpetrators decisions to commit a school shooting are important to study because they are rare events which contain high public concern, are difficult to predict and have been increasing in recent years. This study examined the self-reported motives of nineteen perpetrators of school shootings throughout the world by examining their manifestos and other writings. If no self-reported motives were found then statements made in the perpetrators writings were used to decide what factors may have motivated them to commit their act. In particular, we looked at what motivations the perpetrators expressed in their writings and which motivations …