Digital Commons Network^™

Choice Theory: A Restatement, Michael A. Heller, Hanoch Dagan

Faculty Scholarship

This chapter restates choice theory, which advances a liberal approach to contract law. First, we refine the concept of autonomy for contract. Then we address range, limit, and floor, three principles that together justify contract law in a liberal society. The first concerns the state’s obligation to be proactive in facilitating the availability of a multiplicity of contract types. The second refers to the respect contract law owes to the autonomy of a party’s future self, that is, to the ability to re-write the story of one’s life. The final principle concerns relational justice, the baseline for any legitimate use …

The Pathologies Of Digital Consent, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Consent permeates both our law and our lives — especially in the digital context. Consent is the foundation of the relationships we have with search engines, social networks, commercial web sites, and any one of the dozens of other digitally mediated businesses we interact with regularly. We are frequently asked to consent to terms of service, privacy notices, the use of cookies, and so many other commercial practices. Consent is important, but it’s possible to have too much of a good thing. As a number of scholars have documented, while consent models permeate the digital consumer landscape, the practical conditions …

The Data Standardization Challenge, Kathryn Judge, Richard Berner

Faculty Scholarship

Data standardization offers significant benefits for industry and regulators alike, suggesting that it should be easy. In practice, however, the process has been difficult and slow moving. Moving from an abstract incentive-based analysis to one focused on institutional detail reveals myriad frictions favoring the status quo despite foregone gains. This paper explores the benefits of and challenges confronting standardization, why it should be a top regulatory priority, and how to overcome some of the obstacles to implementation.

The paper also uses data standardization as a lens into the challenges that impede optimal financial regulation. Alongside capture and other common explanations …

Guarantor Of Last Resort, Kathryn Judge

Faculty Scholarship

The optimal response to a financial crisis entails addressing two, often conflicting, demands: stopping the panic and starting the clock. When short-term depositors flee, banks can be forced to sell assets at fire-sale prices, causing credit to contract and real economic activity to decline. To reduce these adverse spillover effects, policymakers routinely intervene to stop systemic runs. All too often, however, policymakers deploy stopgap measures that allow the underlying problems to fester. To promote long-term economic health, they must also ferret out the underlying problems and allocate the losses that cannot be avoided. A well-designed guarantor of last resort can …

Holmes, Humility, And How Not To Kill Each Other, John D. Inazu

Scholarship@WashULaw

Oliver Wendell Holmes’s dissent in Abrams v. United States is one of the intellectual anchors of modern First Amendment doctrine. In the century since Abrams, we have witnessed changes in society, technology, and politics that have shaped and reshaped the contours of our First Amendment landscape. But not everything has changed — some aspects of our human experience remain remarkably similar to the context in which Holmes wrote. One unchanged aspect of the human condition is our inability to know with certainty. Confronted with this reality in his own day, Holmes at times gestured toward a foundationless relativism. But even …

Death By Stereotype: Race, Ethnicity, And California’S Failure To Implement Furman’S Narrowing Requirement, Catherine M. Grosso, Jeffrey A. Fagan, Michael Laurence, David C. Baldus, George W. Woodworth, Richard Newell

Faculty Scholarship

This Article examines the possible racial and ethnic implications of California’s expansive death penalty statute in light of the Eighth Amendment’s requirement that each state statute narrow the subclass of offenders on whom a death sentence may be imposed. The narrowing requirement derives from the holding in Furman v. Georgia over forty-five years ago, when the U.S. Supreme Court ruled that existing death penalty statutes violated the Eighth Amendment’s prohibition against cruel and unusual punishments. Citing statistics demonstrating arbitrary and capricious application of capital punishment, a majority of the Justices concluded that a death sentencing scheme is unconstitutional if it …

Law School Specialty Program Rankings: Is The Tail Wagging The Dog?, Robert R. Kuehn

Scholarship@WashULaw

In addition to its annual ranking of law schools, U.S. News ranks nine law school specialty programs. This year, U.S. News asked survey participants to rate specialty programs on a new 5-point scale mirroring the method used to assess the academic reputation of schools among peers and lawyers/judges. The program rankings show a noticeable bunching of law schools ranked highest by U.S. News also at the top of most specialty programs and an overpopulation of lowest ranked schools at the bottom.

To examine the strength of the relationship between a school’s peer assessment and specialty program reputation, scores for each …

Challenges To Legal Education, Clinical Legal Education, And Clinical Scholarship, Peter A. Joy

Scholarship@WashULaw

This essay analyzes the challenges to legal education and what those challenges may mean both to clinical legal education and to clinical scholarship. Since the Great Recession, several law schools have closed, some have merged, and still other law schools approved by the American Bar Association (ABA) have been found out of compliance with ABA Accreditation Standards and either have been directed to take specific remedial action, have been placed on probation, or have lost ABA-approval. While enrollment has rebounded at some law schools, other law schools have continued to experience much smaller entering classes than the entering class in …

Special Counsel Investigations And Legal Ethics: The Role Of Secret Taping, Peter A. Joy

Scholarship@WashULaw

In July 2016, Michael Cohen, then presidential candidate Donald Trump’s lawyer, secretly recorded Trump discussing how they would use the publisher for the National Enquirer to purchase former Playboy model Karen McDougal’s story about an alleged affair with Trump in order to stop it from becoming public before the 2016 presidential election. The National Enquirer’s publisher purchased McDougal’s story in August 2016. In a similar move to quash another alleged affair from going public in October 2016, Cohen set up a corporation to purchase adult film star Stormy Daniels’s story of her affair with Trump. Trump was elected President in …

Judges' Misuse Of Contempt In Criminal Cases And Limits Of Advocacy, Peter A. Joy

Scholarship@WashULaw

This article examines the conduct of Judge Julius Hoffman and the defense lawyers, William Kunztler and Leonard Weinglas, in the Chicago Eight Trial. The article presents lessons from the Chicago Eight Trial about the limits of a judge's contempt authority against defense lawyers in criminal matters, and how far a defense lawyer may go in advocating for a client without being liable for contempt of court.

Informed Trading And Cybersecurity Breaches, Joshua Mitts, Eric L. Talley

Faculty Scholarship

Cybersecurity has become a significant concern in corporate and commercial settings, and for good reason: a threatened or realized cybersecurity breach can materially affect firm value for capital investors. This paper explores whether market arbitrageurs appear systematically to exploit advance knowledge of such vulnerabilities. We make use of a novel data set tracking cybersecurity breach announcements among public companies to study trading patterns in the derivatives market preceding the announcement of a breach. Using a matched sample of unaffected control firms, we find significant trading abnormalities for hacked targets, measured in terms of both open interest and volume. Our results …

Corporate Stewardship, Danielle D'Onfro

Scholarship@WashULaw

Harnessing strategies both ancient and modern — hostages, surety, gatekeepers, and blame — this Article proposes a new tool for achieving more efficient corporate compliance. It begins with the premise that a handful of well-known factors, including agency costs, misaligned time-horizons, cognitive biases, and insufficiently deterrent legal regimes sometimes cause companies to ignore important public safety obligations even when those obligations are cost-effective and welfare-maximizing. The result is systemic undercompliance with certain regulatory obligations. Despite the seriousness of this problem, currently available options for motivating compliance mostly fail to make public-safety regulations sufficiently salient to the individuals who perform the …

Right At Home: Modeling Sub-Federal Resistance As Criminal Justice Reform, Trevor George Gardner

Scholarship@WashULaw

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments. This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform. In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition. The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law …

N.C. Gen. Stat. § 48-3-601 And N.C. Gen. Stat. § 7b-1111: A Putative Father's Right To Be A Father, Baylee J. Hapeman

Campbell Law Review

An absent and uninterested father should not be able to withhold consent to a child's adoption to the detriment of the mother. However, when the father is genuinely unaware of the child's existence, through deceit of the mother or lack of communication, he is not being afforded the chance to be interested As it now stands, North Carolina adoption law is distressingly inadequate because it does not provide any recourse for biological fathers in situations like this. The law is too strict and statutory construction forces courts to apply the plain meaning of the statute rather than what is 'lust" …

The United States' National Debt And The Necessity To Prepare For Its Default, Donald D.A. Schaefer

Campbell Law Review

No abstract provided.

North Carolina Department Of Motor Vehicles Administrative Procedures

Campbell Law Review

No abstract provided.

Workers' Compensation And The Nc Industrial Commission

Campbell Law Review

No abstract provided.

Reflections On Sheep Rearing, Joyce D'Silva

Animal Sentience

Sheep rearing has an incredibly long history. Sometimes this alone can give credibility and status to a human practice. In the twenty-first century, it may be time to reassess our treatment of sheep and their place in nature. “Just because we’ve always done it” no longer has validity by itself. There are many other human practices which used to be accepted widely in certain societies and which we now may find abhorrent. With sheep intelligence now rightly regarded as an acceptable area of research within the academic community, it is a good time to reflect on our treatment of these …

Cognitive Dissonance About Sheep Cognition And Consumption, Catia Correia Caeiro

Animal Sentience

Sheep are perceived as mere resources under the massive demand of the food and wool industry. Evidence that sheep cognition is comparable to that of other species may inspire reflection on sheep consumption. Dogs may be a promising comparison species.

Examining Stigma Associated With Firefighters Seeking Social Support After Experiencing A Traumatic Event, John Richard Tormos

Theses and Dissertations

This applied dissertation was designed to examine stigma associated with firefighters seeking social support after experiencing a traumatic event. This quantitative study employed a survey approach with a cross-sectional design. The researcher self-selected 26 active career firefighters from a medium-sized fire department located in the southeastern United States to participate in the study. Firefighters responded to an array of emergency incidents and were repeatedly exposed to traumatic events. The Secondary Trauma Exposure Scale was employed to answer the first research question: What are the most frequent types of traumatic events that firefighters have experienced? The findings revealed that all of …

Using Video Modeling To Determine The Effects On Play Skills Of Elementary Students With Autism Spectrum Disorders, Carrietta L. Gaudio

Theses and Dissertations

This applied dissertation was designed to enhance the play skills of elementary students diagnosed with an autism spectrum disorder. The current social skills programs available at the writer’s school did not specifically target improving play skills and were not geared toward individuals with autism. The traditional teaching techniques used in the classroom to teach play skills were not adequate, as students continued to show minimal growth on quarterly progress reports and repeated yearly goals focusing on play skills on their individualized education plans.

The writer conducted a study that compared the effects of video modeling and video selfmodeling on play …

The Fair Deal Universal Health Care Proposals: Historians’ Perspectives From From 1970 To 2003, George Horvath

Faculty Scholarship

No abstract provided.

Emergent Regulatory Systems And Their Challenges: The Case Of Combination Medical Products, George Horvath

Faculty Scholarship

Where regulatory systems overlap, courts and scholars often focus on the undesirable aspects of the overlap—the ways in which systems conflict. One such context involves the regulation of prescription drugs and medical devices by the FDA’s premarket evaluation processes and by state common-law tort and products liability actions. FDA regulation and state common law are often described as separate, conflicting regulatory systems. This Article challenges that description by proposing a model in which FDA premarket evaluation and state common law function as a single regulatory system.

This model brings order to the Supreme Court’s seemingly inconsistent medical products preemption cases, …

A Case Study: Meeting The Needs Of English Learners With Limited Or Interrupted Formal Education, Michelle Ivette Marrero

Theses and Dissertations

Increasing numbers of English-language learners with limited or interrupted formal education are entering schools across the United States. This new trend is affecting school districts with new challenges as high school teachers of English speakers of other languages are not prepared to address the beginning literacy needs of students with limited or interrupted formal education. In addition, students with limited or interrupted formal education are encountering challenges in high school as they are simultaneously learning a new language and academic content in a new culture in addition to learning how to read and write for the first time in their …

A Multiple Case-Study Approach To Examine Police Officers Perceptions On Narcan® Policies, Casey Gnann

Theses and Dissertations

In October 2017, President Trump officially declared the opioid epidemic to be a public health emergency. Reports from the CDC indicate that over 140 Americans die per day as a result of an opioid overdose (NPR, 2017). This statistic alone highlights the tragic effects of the current opioid climate. To date, an abundance of research has been conducted on opioid addicts, family members, doctors approach to addiction, etc. However, there is a gap in the research regarding law enforcement officers and their ever-changing role in the fight against opioids. As the opioid epidemic has continued to worsen, many law enforcement …

Kindergarten Parent Engagement And Student Reading Literacy In Title I Schools: A Systematic Literature Review And Meta-Synthesis, Stacy L. M. Mcdonald

Theses and Dissertations

The purpose of this study was to systematically review research on the relationship between parent engagement and student reading outcomes in Title I schools at Kindergarten level. The following research questions guided this study:

1. What is the relationship between parent engagement and student reading literacy outcomes in low socioeconomic students in kindergarten? Findings show that parent engagement brings parents together with the school staff working with one another to promote a child’s reading literacy. Parent engagement includes the parent as an active member who shares responsibility for a child’s achievement. A need for teacher professional development for teachers on building …

Bacterial Alkylquinolone Signaling Contributes To Structuring Microbial Communities In The Ocean, Kristen E. Whalen, Jamie W. Becker, Anna M. Schrecengost '18, Yongjie Gao '20, Nicole Giannetti '18

Biology Faculty Scholarship

No abstract provided.

The Impact Of Law On The State Pension Crisis, Elizabeth S. Goldman, Stewart E. Sterk

Articles

While some state and municipal pension plans have funds sufficient to meet obligations to retirees without imposing onerous obligations on current and future taxpayers, underfunding of plans in other states has reached disastrous proportions, raising the possibility of default on pension obligations, cuts in public services, steep tax increases, or some combination of the three. The substantial differential in pension funding might be attributed to divergent political pressures, different responses to uncertainty about investment returns, or other factors. Our examination of pension funding law in ten states-five with the best-funded plans and five with the worst-funded plans-highlights the role of …

Dependent Care Fsas Work For Low- To Moderate-Income Families: 5 Action Steps For Policymakers, Sophia Fox-Dichter, Ellen Frank-Miller, Sloane Wolter

Social Policy Institute Research

Dependent Care Flexible Spending Accounts (DCFSAs) can help workers save money on child care expenses by using pre-tax dollars, but few employees actually use the accounts, particularly low- to moderate-income (LMI) employees, because:

• DCFSAs are difficult to understand; figuring out if they are possible to use and worth the trouble is a complex task for families.

• Families face a “double-hit” if they use the accounts – they have to set aside pre-tax dollars for child care expenses and then pay out-of-pocket before getting reimbursed.

• Using a DCFSA may require certainty about a year’s worth of child care …

Dependent Care Fsas: The Uneven Playing Field For Employers And Workers, Ellen Frank-Miller, Sophia Fox-Dichter, Sloane Wolter

Social Policy Institute Research

This research was funded by the Annie E. Casey Foundation. We thank them for their support but acknowl-edge that the findings and conclusions presented in this report are those of the authors alone, and do not necessarily reflect the opinions of the Foundation.The authors are grateful to Don Baylor at the Annie E. Casey Foundation for his guidance and support throughout the project. We extend our thanks to Elaine Maag at the Urban Institute for offering her expertise related to interactions between the Earned Income Tax Credit and dependent care flexible spending ac-counts.In this two-part series, we provide a field …