Digital Commons Network^™

Revisionist History? Responding To Gun Violence Under Historical Limitations, Michael Ulrich

Faculty Scholarship

In the D.C. Circuit case Heller v. District of Columbia (Heller II), Judge Kavanaugh wrote that “Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Now Justice Kavanaugh, will he find support on the highest court for what was then a dissenting view? Chief Justice Roberts, during oral arguments for Heller I, asked “Isn’t it enough to…look at the various regulations that were available at the time…and determine how these—how this restriction and the scope of this …

Byrd V United States: Unauthorized Drivers Of Rental Cars Have Fourth Amendment Rights? Not As Evident As It Seems, Tracey Maclin

Faculty Scholarship

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment …

Digital Platforms And Antitrust Law, Keith N. Hylton

Faculty Scholarship

This Article is about "big data" and antitrust law. Big data, for my purposes, refers to digital platforms that enable the discovery and sharing of information by consumers, and the harvesting and analysis of consumer data by the platform. The obvious example of such a platform is Google. The big platforms owe their market dominance not to anticompetitive conduct, but to economies of scale. This Article discusses three types of anticompetitive conduct associated with digital platforms: kill zone expropriation, acquisition of nascent rivals, and denial of access to data. There is nothing so unusual about digital platforms that would require …

Using The Anglo-American Respondeat Superior Principle To Assign Responsibility For Worker Statutory Benefits And Protections, Michael C. Harper

Faculty Scholarship

When viewed flexibly, not to find doctrinal rules, but rather to find insight from judges' collective judgment on social values, the common law may have particular value for modern policy makers. For instance, a common law insight could set policy makers in both the United States (U.S.) and the United Kingdom (U.K.) on a promising path for defining when workers are to be protected and benefitted by employment statutes. That insight reflects the underlying rationale for the common law that made relevant the initial distinction between employees and independent contractors - the common law of vicarious liability through respondeat superior. …

Regulatory Monitors: Policing Firms In The Compliance Era, Rory Van Loo

Faculty Scholarship

Like police officers patrolling the streets for crime, the front line for most large business regulators — Environmental Protection Agency (EPA) engineers, Consumer Financial Protection Bureau (CFPB) examiners, and Nuclear Regulatory Commission (NRC) inspectors, among others — decide when and how to enforce the law. These regulatory monitors guard against toxic air, financial ruin, and deadly explosions. Yet whereas scholars devote considerable attention to police officers in criminal law enforcement, they have paid limited attention to the structural role of regulatory monitors in civil law enforcement. This Article is the first to chronicle the statutory rise of regulatory monitors and …

Attorney As Accompagnateur: Resilient Lawyering When Victory Is Uncertain Or Nearly Impossible, Margaret Reuter, Stephen A. Rosenbaum, Danielle Pelfrey Duryea

Faculty Scholarship

Social justice lawyers come to the profession intending to make a difference through the instruments of law. And gloriously, they often make a difference in people’s lives for the better. They make our world a more just, compassionate, and tolerant place. But there is no denying that, in poverty law practice, legal success can be illusive, ephemeral, or perhaps a mirage. How does that lawyer feel when the legal remedies at her disposal, even if “successful,” fail to mitigate the injustices suffered by her clients? Are there definitions of professional satisfaction and success that are enduring, even if legal success …

When Law Frees Us To Speak, Danielle K. Citron, Jonathon W. Penney

Faculty Scholarship

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We …

Intermediaries And Private Speech Regulation: A Transatlantic Dialogue - Workshop Report, Tiffany Li

Faculty Scholarship

The Wikimedia/Yale Law School Initiative on Intermediaries and Information (WIII) at Yale Law School has released a comprehensive report synthesizing key insights from intermediary liability and online speech and expression experts in Europe and the United States.

The report focuses on the critical but complicated issue of private speech regulation on the internet and the connections between platform liability laws and fundamental rights, including free expression. The report reflects discussions held at “Intermediaries & Private Speech Regulation: A Transatlantic Dialogue,” an invitation-only workshop convened by WIII, featuring leading internet law experts from the United States and Europe.

This report highlights …

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold

Faculty Scholarship

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.

In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

Rising Confusion About "Arising Under" Jurisdiction In Patent Cases, Paul Gugliuzza

Faculty Scholarship

By statute, all cases “arising under” patent law must be heard exclusively by the federal courts (not state courts) and, on appeal, by the Federal Circuit (not the twelve regional circuits). But not all cases involving patents “arise under” patent law. As recently as 2013, the Supreme Court ruled that the mere need to apply patent law in, for example, a malpractice case involving a patent lawyer, is insufficient to trigger exclusive jurisdiction. Rather, the Court held, for a case that does not involve claims of patent infringement to arise under patent law, the patent issue must be “important . …

Law, Technology And Patient Safety, Kathryn Zeiler, Gregory Hardy

Faculty Scholarship

Medical error is the third leading cause of death in the United States, In an effort to increase patient safety, various regulatory agencies require reporting of adverse events, but reported counts tend to be inaccurate. In 2005, in an effort to reduce adverse event rates, Congress proposed a list of “never events,” adverse events, such as wrong-site surgery, that should never occur in hospitals, and authorized CMS to refuse payment for care required following such events. CMS has since pushed for further regulation, “such as putting more payment at risk, increasing transparency, increasing frequency of quality data reviews, and stepping …

The Sanctuary Of Prosecutorial Nullification, Zohra Ahmed

Faculty Scholarship

In the aftermath of the 2016 election, the shortcomings of existing sanctuary protections came sharply into focus.¹ Historically, cities enacted sanctuary protections to extricate their law enforcement agencies from activities related to federal immigration enforcement. In sanctuary cities, local government agencies are typically restricted from sharing information with federal immigration authorities or from cooperating in apprehending individuals targeted for removal. ² After the White House issued an Executive Order (EO) in late January 2017, many immigrant rights advocates recognized that external facing policies that proscribed direct cooperation would not suffice. ³ The EO announced that Immigration and Customs Enforcement …

The Inability To Self-Diagnose Bias, Christopher Robertson

Faculty Scholarship

The Constitution guarantees litigants an 'impartial' jury, one that bases its judgment on the evidence presented in the courtroom, untainted by affiliations with the parties, racial animus, or media coverage that may include inadmissible facts, a one-sided portrayal, and naked opinion. Problems of juror bias arise in almost every trial – state and federal, civil and criminal - and the problem is most severe in the highest profile cases, where the need for accuracy and legitimacy in outcomes is most salient.

The Supreme Court has instructed courts to use a simple method to determine whether jurors are biased: ask them. …

Us Military Medical Ethics In The War On Terror, George J. Annas, Sondra S. Crosby

Faculty Scholarship

Military medical ethics has been challenged by the post-11 September 2001 ‘War on Terror’. Two recurrent questions are whether military physicians are officers first or physicians first, and whether military physicians need a separate code of ethics. In this article, we focus on how the War on Terror has affected the way we have addressed these questions since 2001. Two examples frame this discussion: the use of military physicians to force-feed hunger strikers held in Guantanamo Bay prison camp, and the uncertain fate of the Department of Defense’s report on ‘Ethical Guidelines and Practices for US Military …

Reparations For Central American Refugees, Sarah R. Sherman-Stokes

Faculty Scholarship

In the midst of vicious and unrelenting attacks on Central American asylum seekers in the United States, this Article seeks to understand historic and present-day patterns of animus and discrimination facing this group of refugees, and to propose solutions. This Article begins by examining decades of prejudice faced by Central American asylum seekers, as well as attempts to right those wrongs through litigation, legislation, and the creation of Temporary Protected Status (TPS). Next, this Article identifies the predominant push and pull factors driving Central American refugees north—and the U.S. role in creating them. The Article then lays out the impact …

When A Little Goes A Long Way: Expanding Home Care Services To Adults With Disabilities, Serena Hasworth, Jaclyn Winfree, Ozcan Tunalilar, Diana L. White

Institute on Aging Publications

Policy makers are increasingly interested in reducing public spending while maintaining quality of life. Since 1975, Oregon Project Independence (OPI) has supported community-based adults aged 60 and older to avoid or delay the need for residential long-term care services by increasing access to personal and home care services. The program also aims to prevent the need for Medicaid by optimizing personal resources and natural supports. In 2014, the OPI Expansion (OPI-E) pilot project began to serve adults aged 18-59 with disabilities in seven of Oregon’s seventeen Area Agencies on Aging (AAAs). This poster describes the evaluation of the expansion using …

Consumer Satisfaction With Aging & Disability Resource Connection Of Oregon: Round 6, Diana L. White, Allyson Stodola

Institute on Aging Publications

This report describes findings from the sixth consumer satisfaction survey conducted with consumers or family members who are served by the Aging and Disability Resource Connection (ADRC) of Oregon, focusing on Call Center staff (or Information, Referral and Assistance; IR&A) and recipients of options counseling services. The Institute on Aging at Portland State University directed the project, partnering with Washington State University Social & Economic Research Center, who conducted the telephone survey between February 27 and April 5, 2019.

Answers Without Words, Anke Schüttler

Answers Without Words

Answers Without Words was a photographic exchange between imprisoned artists from Columbia River Correctional Institution in North Portland, Oregon, and photographers from many places around the world.

CRCI/Free Mind Collective/ A project by, for and with: Quandrell Dumas, Elsa Leydier, Donald Ray Tunis, Maria Jauregui Ponte, Tom Price, Torsten Schumann, Monika Sala, J Barclay, Mischa Christen, Isabel Kiesewetter, Richard Lundquist, Anna Drvnik, Musonda Mwango, Maren Winkler, Joshua Wright, Øyvind Hjelmen, Ben Hall, Sara Lamens, Ivan Jaramillo, Birgit Krause, Donsha Jackson, Tay Kay Chin, Justin Fin Cannon, Kathleen McIntyre, Daniel Bluestein, Dafna Talmon, Joey Lucero, Alice Myers, Michael Brown, Gemma-Rose Turnbull, …

Security And Human Rights: Finding A Language Of Resilience And Inclusion, Liora Lazarus, Benjamin J. Goold

All Faculty Publications

This is the introduction to the second edition of Security and Human Rights (Hart Publishing 2019).

When the first edition of this collection was published in 2007, many scholars were struggling with the question of whether it is possible to reconcile a commitment to human rights with the demands of security in a post-9/11 world. More than a decade later, this fundamental tension remains at the heart of many discussions about the relationship between security and human rights. But in the years that have passed since the first edition, we have also seen the re-emergence of nationalism and xenophobia, a …

Replicating Silicon Valley? Law And Human Capital In The Making Of China’S Tech Startups, Li-Wen Lin

All Faculty Publications

The rise of China’s tech companies in the global economy raises an urgent need to understand how China incubates its tech startups. China’s tech startup ecosystem presents two puzzling legal arrangements for human capital in light of Silicon Valley’s experience: the co-existence of enforceable non-competes and the high-velocity labor market; the common use of stock options but with a buyback norm. This article delves into the peculiarities of China’s legal and political institutions to resolve the legal puzzles. This article also speaks to a global policy debate about the replicability of Silicon Valley and the necessity of such replication. The …

Regulating Systemic Risk In Canada, Anita Anand, Maziar Peihani

All Faculty Publications

This chapter is a contribution to an interdisciplinary book that drew on some of the world's leading experts on financial stability and regulation to examine and critique the progress made since 2008 in addressing systemic risk. The chapter contends that Canadian regulators’ ability to address systemic risk is limited by the structure of the regime, built on a sector-by-sector model, without any one institution responsible for comprehensively regulating the financial system. We also posit the proposal to establish a macroprudential regulator to monitor the financial system as a whole, as advocated by academic literature and international forums, is unlikely …

Consumer Remedies For Civil Rights, Kate Sablosky Elengold

Faculty Publications

No abstract provided.

Longitudinal Descriptive Profile Of Collegiate Pitchers Participating In A Summer Baseball League, Isabelle Leslie Gillis

Theses and Dissertations--Kinesiology and Health Promotion

The purpose of this study was to provide a longitudinal profile of pitching performance in a cohort of pitchers over two collegiate seasons and a summer league. Thus, this study utilized a longitudinal design to evaluate the impact of summer league participation on subsequent collegiate regular season pitching performance. Specifically, the performance of a cohort of Division 1 collegiate baseball pitchers during the 2018 Spring collegiate season, 2018 Summer League season, and the 2019 Spring collegiate season was evaluated and stratified by pitcher designation, arm dominance, and academic status. Analyses of variance were used to identify main and interaction effects …

Factors That Influence Maternal Feeding Decisions For Toddlers: Extending The Theory Of Planned Behavior, Elizabeth Lucas Combs

Theses and Dissertations--Kinesiology and Health Promotion

Establishing healthy eating behaviors is vital in the early years to help combat the development of obesity and other chronic diseases. Mothers play an invaluable role in shaping their children's eating habits through controlling what and when children eat as well as the overall food environment, which is why a better understanding of what influences mothers’ decisions about these behaviors is important.

The purpose of the dissertation was to gain a better understanding of what impacts maternal feeding decisions regarding toddler nutrition behaviors. This was a two-phased mixed methods study. The aim of the initial study was to explore, using …

Examining Attitudes, Perceptions, And Observations Of Tobacco Use And Compliance At A Small Private Liberal Arts College In Kentucky With A Designated Area Tobacco Policy, Michael Dalessio

Theses and Dissertations--Kinesiology and Health Promotion

A multitude of higher education institutions have adopted comprehensive smoke- and tobacco-free policies to minimize tobacco use, increase quit attempts, and reduce exposure to secondhand smoke on campus. However, the majority of campuses across the U.S. still have non-comprehensive policies and/or designated tobacco use areas. Given the limited research in this area, the purpose of this dissertation was to assess the attitudes, perceptions, tobacco use behaviors, and actual observational compliance of students, faculty, and staff on a college campus that possesses a designated area tobacco policy.

This two-phased cross-sectional study included both direct observations and online survey data collection. For …

Chronic Low Intensity Continuous And Interval Training Prevent Heart Failure-Related Coronary Artery Stiffness, An Ouyang

Theses and Dissertations--Kinesiology and Health Promotion

Heart failure (HF) induced by aortic pressure over-load is associated with increased coronary artery stiffness. Perivascular adipose tissue (PVAT) and advanced glycation end products (AGE) both promote arterial stiffness. However, the mechanisms by which coronary PVAT promotes arterial stiffness and the efficacy of exercise to prevent coronary stiffness are unknown. The present study hypothesized both chronic continuous and interval exercise training would prevent coronary artery stiffness associated with inhibition of PVAT secreted AGE. Yucatan mininature swine were divided into four groups: control-sedentary (CON), aortic-banded sedentary heart failure (HF), aortic-banded HF continuous exercise trained (HF+CONT), and aortic-banded HF interval exercise trained …

An Oral History Exploration Of Change At The University Of Kentucky Following The Virginia Tech Shooting, Marianne R. L. Young

Theses and Dissertations--Educational Policy Studies and Evaluation

Following the mass shooting at Virginia Tech on April 16, 2007, institutions of higher education appeared to restructure themselves and change the way that they worked with students who may pose a risk to self or others. They formed committees, sometimes known as Communities of Concern, to help review these concerns and respond appropriately. The purpose of this study was to examine how the Community of Concern Committee at the University of Kentucky was developed following the incident at Virginia Tech. Particular attention was focused on the change and learning that took place. Using the frames of single-loop and double-loop …

It’S Not The Programs; It’S The People: Building Human Levers Of Retention In Community Colleges, Kyle Barron

Theses and Dissertations--Educational Policy Studies and Evaluation

Student attrition prior to the completion of a credential is an issue that has increasingly demanded the attention of stakeholders in higher education, particularly in the community college sector, in which less than half of all students complete a credential after six years. The costs of student attrition are high and widespread, ranging from the financial costs for institutions and federal and state governments to the personal and monetary costs paid by those students whose personal and professional goals are not achieved. With the ever-increasing focus on accountability for institutions of higher education and the growing movement toward performance-based funding, …