Digital Commons Network^™

Contractual Arbitrage, Stephen J. Choi, G. Mitu Gulati, Robert E. Scott

Faculty Scholarship

Standard-form contracts are likely to be incomplete because they are not tailored to the needs of particular deals. In an attempt to reduce incompleteness, standard-form contracts often contain clauses with vague or ambiguous terms. Terms with indeterminate meaning present opportunities for strategic behavior well after a contract has been executed. This linguistic uncertainty in standard-form commercial contracts creates an opportunity for “contractual arbitrage”: parties may argue ex post that the uncertainties in expression mean something that the contracting parties did not contemplate ex ante. This chapter argues that the scope for contractual arbitrage is a direct function of the techniques …

Fixing America's Founding, Maeve Glass

Faculty Scholarship

The forty-fifth presidency of the United States has sent lawyers reaching once more for the Founders’ dictionaries and legal treatises. In courtrooms, law schools, and media outlets across the country, the original meanings of the words etched into the U.S. Constitution in 1787 have become the staging ground for debates ranging from the power of a president to trademark his name in China to the rights of a legal permanent resident facing deportation. And yet, in this age when big data promises to solve potential challenges of interpretation and judges have for the most part agreed that original meaning should …

Furman'S Legacy: New Challenges To The Overbreadth Of Capital Punishment, Jeffrey A. Fagan

Faculty Scholarship

A 2018 decision in the Arizona Supreme Court raised new strong claims that the death penalty in the U.S. has become a "fatal lottery," with critical implications for its constitutionality and its future in American criminal law. In the case, Hidalgo v. Arizona, the defense provided preliminary evidence that over the past twenty years, nearly 98% of all first- and second-degree murder defendants in Maricopa County-the state's largest county and location of the nation's fifth largest city-were death-eligible. The Arizona Supreme Court conceded this point even as it rejected Mr. Hidalgo's appeal. What the Arizona Supreme Court conceded, and what …

Minimum And Maximum Protection Under International Copyright Treaties, Jane C. Ginsburg

Faculty Scholarship

This Comment addresses minimum and maximum substantive international protections set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the maxima have generally received less attention. It first discusses the general structure of the Berne Convention, TRIPS, and the WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.

Rule By Data: The End Of Markets?, Katharina Pistor

Faculty Scholarship

This Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations …

From Individual Control To Social Protection: New Paradigms For Privacy Law In The Age Of Predictive Analytics, Dennis D. Hirsch

Maryland Law Review

No abstract provided.

Drawing The Line: A First Amendment Framework For Partisan Gerrymandering In The Wake Of Rucho V. Common Cause, Kyle Keraga

Maryland Law Review

No abstract provided.

Targeting The Tumor Core: Hypoxia-Responsive Nanoparticles For The Delivery Of Chemotherapy To Pancreatic Tumors, Matthew I. Confeld, Babak Mamnoon, Li Feng, Heather Jensen Smith, Priyanka Ray, James Froberg, Jiha Kim, Michael A. Hollingsworth, Mohiuddin Quadir, Yongki Choi, Sanku Mallik

Journal Articles: Eppley Institute

In pancreatic ductal adenocarcinoma (PDAC), early onset of hypoxia triggers remodeling of the extracellular matrix, epithelial-to-mesenchymal transition, increased cell survival, the formation of cancer stem cells, and drug resistance. Hypoxia in PDAC is also associated with the development of collagen-rich, fibrous extracellular stroma (desmoplasia), resulting in severely impaired drug penetration. To overcome these daunting challenges, we created polymer nanoparticles (polymersomes) that target and penetrate pancreatic tumors, reach the hypoxic niches, undergo rapid structural destabilization, and release the encapsulated drugs. In vitro studies indicated a high cellular uptake of the polymersomes and increased cytotoxicity of the drugs under hypoxia compared to …

Tlr2 And Caspase-1 Signaling Are Critical For Bacterial Containment But Not Clearance During Craniotomy-Associated Biofilm Infection, Amy L. Aldrich, Cortney E. Heim, Wen Shi, Rachel W. Fallet, Bin Duan, Tammy Kielian

Journal Articles: Pathology and Microbiology

BACKGROUND: A craniotomy is required to access the brain for tumor resection or epilepsy treatment, and despite precautionary measures, infectious complications occur at a frequency of 1-3%. Approximately half of craniotomy infections are caused by Staphylococcus aureus (S. aureus) that forms a biofilm on the bone flap, which is recalcitrant to antibiotics. Our prior work in a mouse model of S. aureus craniotomy infection revealed a critical role for myeloid differentiation factor 88 (MyD88) in bacterial containment and pro-inflammatory mediator production. Since numerous receptors utilize MyD88 as a signaling adaptor, the current study examined the importance of Toll-like receptor 2 …

Rewilding And Domestication: Clarifying Terminology, Catia Correia-Caeiro

Animal Sentience

Baker & Winkler (B&W) describe the state of Asian elephant conservation, raising unique issues, and proposing a direction based on rewilding. The long history and socio-biology of elephants and humans has some parallels with the domestication of dogs (and other species). However, markers of domestication seem absent from elephants. The proper use of terms such as “wild” and “domestic” is crucial in defining the best conservation strategies, and, more important, in attending to the welfare needs of individuals, which can differ between wild and domestic animals. B&W’s target article represents an important starting point for discussion around elephant conservation, but …

The Future Of Space Governance, Melissa (M.J.) Durkee

Scholarship@WashULaw

Fifty years after the first moonwalk, the prospect for a new set of multilateral agreements governing outer space is remote, yet the legal questions raised by activity in space are mounting. With little prospect of new treaties, nations will need to make do with existing treaty law, generate customary rules to govern new applications, or develop forms of sub-legal understanding and cooperation. This special conference issue of the Georgia Journal of International and Comparative Law addresses these questions.

Considering Legitimacy, Gillian E. Metzger

Faculty Scholarship

This Article on Richard Fallon’s Law and Legitimacy in the Supreme Court focuses on public acceptance of the Supreme Court’s authority, what Fallon calls sociological legitimacy. After setting out Fallon’s accounts of legitimacy and constitutional argumentation, the Article looks at public opinion data and political science scholarship on the extent to which the Court’s decisions affect public acceptance of the Court. It then turns to the normative question of whether, even if the Court’s decisions may undermine its sociological legitimacy, that impact is a legally legitimate factor for the Court to consider. The Article argues that strategic consideration of the …

Birds Of A Feather, Tian Geng

Neureuther Book Collection Essay Competition

Undergraduate winner: 2d place, 2020 33nd Annual Carl Neureuther Student Book Collection Competition

Grief Work: I’M Almost Ready To Feel Better, Joe Gutierrez

Neureuther Book Collection Essay Competition

Graduate winner: 2d place, 2020, 33nd Annual Carl Neureuther Student Book Collection Competition

An Aye Aye For An Aye Aye: Making Biodiversity Offsets Sustainable, David Takacs

Faculty Scholarship

No abstract provided.

The Covid-19 Vaccine Dilemma, Dorit R. Reiss

Faculty Scholarship

COVID-19 continues to lead to large numbers of deaths, harms, and financial costs. Without an effective vaccine, those will continue. The pressure to find a vaccine is high; and that pressure places a risk on the safeguards in place to assure that vaccines are safe and effective will be ignored. The United States has an extensive apparatus to oversee vaccine safety before and after licensing, including multiple federal committees and several monitoring systems, and that apparatus gave us, in 2020, an extraordinarily safe vaccine supply. This Article explains the different pressures that push for and against using the same apparatus …

Progressive Punitivism: Notes On The Use Of Punitive Social Control To Advance Social Justice Ends, Hadar Aviram

Faculty Scholarship

No abstract provided.

Reliance On Executive Constitutional Interpretation, Zachary S. Price

Faculty Scholarship

Federal executive officials routinely authorize government personnel to violate otherwise applicable laws based on contestable constitutional interpretations. This practice raises an important and unresolved question, one that arose in connection with the George W Bush Administration's interrogation practices and that could easily arise again: What legal effect, if any, should internal executive guidance on constitutional questions have in subsequent civil or criminal litigation against officials who relied on it? This Article systematically analyzes this question. Building on existing case law in related areas, it argues that any sound reliance defense in this area must balance three competing constitutional considerations: (1) …

Random Sequence Perception Amongst Finance And Accounting Personnel: Can We Measure Illusion Of Control, A Type I Error, Or Illusion Of Chaos, A Type Ii Error?, Keith I. Taylor

Dissertations from the Executive Doctorate in Business Administration Program

The purpose of this dissertation was to determine if finance and accounting personnel could distinguish between random and non-random time-series strings and to determine what types of errors they would make. These individuals averaging 13 years of experience were unable to distinguish non-random patterns from random strings in an assessment composed of statistical process control (SPC) charts. Respondents scored no better than guessing which was also assessed with a series of true-false questions. Neither over-alternation (oscillation) nor under-alternation (trend) strategies were able to predict type I or type II error rates, i.e. illusion of control or illusion of chaos. Latent …

The Second Shift.” Female Police Officers And The Struggle Of Work/Life Balance And Promotion, Ashlyn Decruise-Fortune

Theses and Dissertations

This study examined how women in law enforcement maintained a work-life balance with responsibilities such as motherhood, domestic responsibility and other care-taker roles. While there has been some research conducted on female police officers, much of the literature was outdated. Further, many of these studies focused on women’s performance and competence as police officers, and the associated burnout rate of female police officers. Very few studies examined the gender gaps in supervisory positions in relation to the Law Enforcement field within the United States, as well as the continued underrepresentation of women in Law Enforcement. Additionally, previous literature did not …

An Efficiency Tactic For Behavioral Skills Training, Brian Liu-Constant

Theses and Dissertations

This applied dissertation was designed to enhance the use of behavioral skills training to teach staff members a discrete trial training (DTT) procedure in a setting with a low trainer-to-staff ratio. Although effective, the rehearsal and feedback components of behavioral skills training can be time consuming and require more time with an expert trainer than the trainer has available.

For the behavioral skills training protocol, the researcher recorded and presented instructions and modeling on video and developed scripts that participants followed during rehearsal and feedback. Each participant was assigned to a group of three. Participants took turns in one of …

Lived Experiences Of Teachers In Professional Learning Communities In Transient School Environments, Katelyn Marie Jones

Theses and Dissertations

Professional learning communities (PLCs) are increasingly being used in South Korean elementary schools in order to improve student learning and the quality of teaching. This new educational trend is being funded by provincial offices of education but facing some difficulties in implementation and sustainability. School leaders, teacher leaders, and teachers are struggling to understand the purpose of professional learning communities and how to use them to improve student learning and the quality of teaching. In addition, South Korean elementary school teachers are transient, as they rotate to new schools every two to three years. This impacts their ability to build …

Gut Microbiota Composition Is Correlated To Host Hummingbird Protein Requirements, Ryan C. Stanton , '20

Senior Theses, Projects, and Awards

The gut microbiome shapes and is shaped by a host animal’s physiology. Avian taxa hold physiological characteristics unique from mammals and might inform novel pressures experienced by microbial communities. Further, the symbionts’ relative abundance and their abilities to adapt to available resources are of critical importance to a holobiont’s fitness in rapidly changing climates. Therefore, wild populations of hummingbirds Selasphorus rufus and Calypte anna were studied. The two systems differ in S. rufus’s annual migrations from wintering grounds to their breeding grounds in the Pacific Northwest, whereas C. anna are resident in the latter region. Previous findings have indicated …

Earth Mothers, Soy Boys, And Cool Dudes: Practicing Law While Protecting The Environment, Elizabeth J. Hubertz

Scholarship@WashULaw

As a public-interest environmental lawyer, this author explores gender in the legal profession. Specifically, gender in environmental law. Through a recognition of the gendered dimensions of environmental law, this Article explores the nature-culture binary, the relationship of meat to masculinity, and perceptions of the risks and threats of climate change.

Smart Contracts And The Illusion Of Automated Enforcement, Danielle D'Onfro

Scholarship@WashULaw

This symposium essay explores the barriers to deploying smart contracts in the consumer finance space: the humans themselves, existing consumer protection laws, and the other businesses who have financial contracts with consumers but that cannot deploy smart contracts. These three barriers render perfectly automated enforcement all but impossible. Nevertheless, there may be room for modifiable smart contracts in the consumer financial space although these contracts may be only marginally more efficient than traditional contracts.

Reconstructing Racially Polarized Voting, Travis Crum

Scholarship@WashULaw

Racially polarized voting makes minorities more vulnerable to discriminatory changes in election laws and therefore implicates nearly every voting rights doctrine. In Thornburg v. Gingles, the Supreme Court held that racially polarized voting is a necessary—but not a sufficient—condition for a vote dilution claim under Section 2 of the Voting Rights Act. The Court, however, has recently questioned the propriety of recognizing the existence of racially polarized voting. This colorblind approach threatens not only the Gingles factors but also Section 2’s constitutionality.

The Court treats racially polarized voting as a modern phenomenon. But the relevant starting point is the 1860s, …

What Would Mlk Do?: A Civil Rights Model Of “Good Citizenship” In Criminal Procedure, Trevor George Gardner

Scholarship@WashULaw

Good citizenship and eager participation in police investigations would seem to fit hand-in-glove. The good citizen helps to enforce the criminal law, particularly if the physical safety of the citizenry is thought to be at risk. But as Bennett Capers argues in his essay, Criminal Procedure and the Good Citizen, this version of the good citizen—crafted and propagated by our nation’s highest court—falls into direct tension with the activist principles animating the Civil Rights Movement. For instance, Martin Luther King, Jr., insisted that the citizen not suffer from a cultural condition Capers describes as “too much respect for majoritarian …

The Hidden Transactional Wisdom Of Media Discrimination In Pre-Awcpa Copyright, Kevin Emerson Collins

Scholarship@WashULaw

Media neutrality in copyright’s subject matter means that works of authorship are protected against copying, or not, regardless of the tangible medium in which they are fixed. For example, the same features of a sculptural work are protected regardless of whether they are fixed in a statue or a photograph of a statue. Media neutrality in subject matter is a fundamental and largely unquestioned copyright principle with a firm policy basis under copyright’s dominant incentive-to-create theory. Media discrimination in subject matter undermines in arbitrary ways authors’ ability to recoup their creativity costs over the sale of multiple copies.

This Article …

Estate Planning With Shaq And Strom: Teaching Post-Mortem Intimacy Audits, Adrienne D. Davis

Scholarship@WashULaw

This Article highlights the importance of using both popular culture references and fictional show characters as mediums for teaching courses on Trusts and Estates. Utilizing post-mortem intimacy audits, specifically through pop culture pedagogical hypotheticals and case studies, Professor Davis highlights the importance of understanding doctrines within Trusts and Estates Law. Focusing on the examples of Shaquille O’Neal and Strom Thurmond, this Article highlights three important lessons for students: the fragility of estate planning, the effects of individual estate planning on groups’ broader wealth and political equality, and the role of private law in distributing legal rights and political equality.

Off-Label Drug Risks: Toward A New Fda Regulatory Approach, George Horvath

Faculty Scholarship

No abstract provided.