Digital Commons Network^™

Misaligned Lawmaking, Timothy Meyer

Faculty Scholarship

This Article makes three contributions. First, it introduces the Misalignment Thesis in the context of U.S. trade policy. The Misalignment Thesis is a descriptive claim about how the structure of a legislative bargain influences the long-term stability and effectiveness of that bargain. Second, the Article introduces the normative corollary to the Misalignment Thesis: if political stability hinges on respecting the legislative bargain, interdependent policies should be subject to renegotiation on the same timeline and implementation on the same terms. In light of this prescription, I offer three concrete proposals for aligning trade liberalization and trade adjustment assistance in order to …

Avoiding Judicial Discipline, Veronica Root Martinez

Faculty Scholarship

Over the past several years, several high-profile complaints have been levied against Article III judges alleging improper conduct. Many of these complaints, however, were dismissed without investigation after the judge in question removed themselves from the jurisdiction of the circuit’s judicial council—oftentimes through retirement and once through elevation to the Supreme Court. When judges—the literal arbiters of justice within American society—are able to elude oversight of their own potential misconduct, it puts the legitimacy of the judiciary and the rule of law in jeopardy.

This Essay argues that it is imperative that mechanisms are adopted that will ensure investigations into …

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …

Indenture Trustee Duties: The Pre-Default Puzzle, Steven L. Schwarcz

Faculty Scholarship

This Article addresses a topic at the intersection of finance, agency, contract, and trust law: the pre-default duties of an indenture trustee for bondholders. The existing scholarship on indenture trustee duties focuses on the post-default scenario, when the indenture trustee is required to act as a prudent person in like circumstances on behalf of the bondholders. No prior scholarship addresses an indenture trustee’s predefault duties. It is critical to try to define those duties because activist investors in the $42-trillion-plus bond market increasingly are making pre-default demands on indenture trustees, requiring them to know how to respond.

Juvenile Life Without Parole In North Carolina, Ben Finholt, Brandon L. Garrett, Karima Modjadidi, Kristen M. Renberg

Faculty Scholarship

Life without parole (LWOP) is “an especially harsh punishment for a juvenile,” as the U.S. Supreme Court noted in Graham v. Florida. The United States is the only country in the world that imposes juvenile life without parole (JLWOP) sentences. Many of these individuals were sentenced during a surge in LWOP sentencing in the 1990s. In the past decade, following several Supreme Court rulings eliminating mandatory sentences of LWOP for juvenile offenders, such sentencing has declined. This Article aims to empirically assess the rise and then the fall in JLWOP sentencing in a leading sentencing state, North Carolina, to better …

The Importance Of Qualitative Research Approaches To Gig Economy Taxation, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

As the United States tax system continues to grapple with how to tax workers in the gig economy, it confronts a number of questions about the nature and composition of the sector as well as the tax issues confronted by its participants. Many of these questions have proven difficult to answer due to a lack of adequate information. But the answers are important and will shape how tax and other areas of law (such as employment law, labor law, and antitrust) respond to the gig economy. Thus, the question of how to obtain the data and information necessary to formulate …

Commentary On Meritor Savings Bank, Fsb V. Vinson, Trina Jones

Faculty Scholarship

No abstract provided.

The Rise And Fall Of Transcendent Constitutionalism In The Civil War Era, Cynthia Nicoletti

Faculty Scholarship

In the aftermath of the Civil War, American intellectuals saw the war itself as a force of transcendent lawmaking. They viewed it as a historical catalyst that had forged the United States into a nation. In writing the Fourteenth Amendment, Congress sought to translate the war's nationalistic spirit into text. But in the eyes of many contemporary thinkers, the war's centripetal energy was a doubleedged sword. It could create a nation out of disparate parts, but it was also potentially uncontainable, divorced from the regular lawmaking process and beyond the control of human actors. As a result, many American jurists …

Protecting Homeschoolers: A Proposal To Protect Homeschooled Children In North Carolina From Educational Neglect, Jane R. Wettach

Faculty Scholarship

No abstract provided.

Fossil Fortunes: Regulating Commercial Paleontology & Incentivizing Fossil Discovery, Ashlee A. Paxton-Turner

Faculty Scholarship

No abstract provided.

Competing For Votes, Kobi Kastiel, Yaron Nili

Faculty Scholarship

Shareholder voting matters. It can directly shape a corporation’s governance, operational and social policies. But voting by shareholders serves another important function—it produces a marketplace for votes where management and dissidents compete for the votes of the shareholder base. The competition over shareholder votes generates ex ante incentives for management to perform better, to disclose information to shareholders in advance, and to engage with large institutional investors.

Traditional corporate law has looked to a variety of “market forces” as a means of curbing the agency costs of public corporations. Yet, for various reasons, these market forces are, at best, an …

Complete Contracts In Finance, Elisabeth De Fontenay

Faculty Scholarship

Notwithstanding its significant influence in corporate finance, the theory of incomplete contracts is arguably misunderstood by courts enforcing contracts governing corporate transactions. In resolving such disputes, judges implicitly assume that complete contracts are both achievable and desirable when the parties are financially sophisticated, and they systematically assign blame to one of the parties for leaving the contract incomplete. This, in turn, prompts parties to write ever longer and more complex agreements. Such agreements do not necessarily produce more efficient outcomes, however. In fact, they may yield unexpected outcomes or interpretations, which can be enforced opportunistically by one of the parties …

Policing The Schoolhouse, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Justice In Forensic Algorithms, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Virtual Criminal Courts, Deniz Ariturk, William E. Crozier, Brandon L. Garrett

Faculty Scholarship

Criminal courtrooms are among many workplaces to shut down and adopt virtual operations in response to the coronavirus pandemic. As criminal courts around the United States suspended in-person proceedings, virtual hearings, where parties appear through videoconference or teleconference technology, have allowed courts to remain in session while reducing the danger to public health. Courts at all levels, from small municipal courts to the U.S. Supreme Court, have been hearing arguments remotely. In 38 states, as well as the District of Columbia and Puerto Rico, courts have either mandated or encouraged the use of virtual hearings when appropriate. Federal courts …

Undeliverable: Suspended Driver's Licenses And The Problem Of Notice, Brandon L. Garrett, Karima Modjadidi, William Crozier

Faculty Scholarship

In North Carolina, one in seven adult drivers currently has a suspended license for nondriving related reasons. As in many other states, in North Carolina, driver’s licenses are commonly suspended, for reasons unrelated to safety, when a person fails to appear in court in response to notice of a traffic court date or fails to pay traffic fines. Notices of traffic court dates are sent by mail, typically to the address on record at the Department of Motor Vehicles, as are subsequent notices that the consequence for nonappearance will be a driver’s license suspension. To better understand the effects of …

What Explains Taxation By Resource-Rich Rebels? Evidence From The Islamic State In Syria, Mara R. Revkin

Faculty Scholarship

Greed-based theories of civil war predict that rebel groups will only engage in taxation and other state-building activities in areas where they lack exploitable resources. However, this prediction is contradicted by the Islamic State’s pattern of taxation across time and space. A new data set mapping seven types of revenue-extracting policies imposed by the Islamic State, a jihadist rebel group, in the 19 Syrian districts that it governed between 2013 and 2017 indicates that these policies were just as prevalent in resource-rich as in resource-poor districts. I propose a new theory that better explains this pattern—a rebel group’s pattern of …

Foreword: State Enforcement In An Interstate World, Margaret H. Lemos

Faculty Scholarship

“State Enforcement in an Interstate World” is an important topic—fully deserving of all the attention it has received. Past commentators on this topic have generally treated the federal government as a unitary entity. Building on prior work on the subject, this Article explores the polycentric nature of federal regulatory authority and shows how cooperation and rivalry have long been dominant realities of the modern administrative state. The Article discusses how these dynamics complicate analysis of state enforcement in an interstate world and identifies strategies for reducing the frequency and magnitude of the seemingly inevitable conflicts.

Shadow Governance, Yaron Nili, Cathy Hwang

Faculty Scholarship

Corporations have something to say about some of the most important social and economic issues of our time—and one way they say it is through shadow governance. This Article spotlights a group of influential corporate policies comprising what we call “shadow governance.” These non-charter, non-bylaw governance documents express a corporation’s commitment to and process on issues as wide-ranging as campaign finance, environmental sustainability, and sexual harassment, but are largely overlooked by scholars and practitioners alike. This Article addresses that gap, revealing how shadow governance documents influence corporate decision-making and corporate behavior.

This Article makes two contributions to the literature. First, …

Accountability, Secrecy, And Innovation In Ai-Enabled Clinical Decision Software, Arti K. Rai, Isha Sharma, Christina Silcox

Faculty Scholarship

This article employs analytical and empirical tools to dissect the complex relationship between secrecy, accountability, and innovation incentives in clinical decision software enabled by machine learning (ML-CD). Although secrecy can provide incentives for innovation, it can also diminish the ability of third parties to adjudicate risk and benefit responsibly. Our first aim is descriptive. We address how the interrelated regimes of intellectual property law, Food and Drug Administration (FDA) regulation, and tort liability are currently shaping information flow and innovation incentives. We find that developers regard secrecy over training data and details of the trained model as central to competitive …

Judging Risk, Brandon L. Garrett, John Monahan

Faculty Scholarship

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process, from policing, to pre-trial, sentencing, corrections, and during parole. As efforts to reduce incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in criminal justice outcomes. Such work has neglected how decisionmakers use risk-assessment in practice. In this Article, we examine in detail the judging of risk assessment and we study why decisionmakers so often fail to consistently use such …

The Role Of Latency And Task Complexity In Predicting Visual Search Behavior, Leilani Battle, R. Jordan Crouser, Audace Nakeshimana, Ananda Montoly, Remco Chang, Michael Stonebraker

Computer Science: Faculty Publications

Latency in a visualization system is widely believed to affect user behavior in measurable ways, such as requiring the user to wait for the visualization system to respond, leading to interruption of the analytic flow. While this effect is frequently observed and widely accepted, precisely how latency affects different analysis scenarios is less well understood. In this paper, we examine the role of latency in the context of visual search, an essential task in data foraging and exploration using visualization. We conduct a series of studies on Amazon Mechanical Turk and find that under certain conditions, latency is a statistically …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Euripides : Suppliant To The Divine Feminine, Liz Amato

Theses, Dissertations and Culminating Projects

The Euripidean tragedies Hippolytus, The Bacchae and The Medea present us with female characters who have sacred and profound interactions with the gods. These women have powerful ritualistic abilities that move the tragic action. Similarly, Euripides' versions of Hecuba and Electra present us with dynamic: female characters who derive their agency from the religio-judicial need for cosmic atonement. It is up to these heroines to uphold the sacred laws decreed by the gods. Why does Euripides empower these females with such direct means of divination? Arguably, Euripides felt it necessary to use these deistic feminine connections to destroy the titular …

Culturally Relevant Pedagogy : The Views Of Latinx Students Inform Teacher Professional Development On Critical Consciousness, Florita Cotto

Theses, Dissertations and Culminating Projects

The number of Latinx K-12 students has grown dramatically over recent years. There are approximately 12.5 million Latinx students in U.S. public schools. Despite these large population gains, inner city Latinx students continue to struggle academically. Their dropout rate is almost two times higher than that of white students, making it the highest of all ethnic and racial groups. In the past several decades, there has been a focus on accountability, school choice, and various other educational reforms that have been implemented with an aim to improve student performance. However, these reform efforts have not yielded the desired change and …

A School-Based Group Intervention For Immigrant Adolescents : Addressing Acculturative Stress And Facilitating Ethnic Identity Development, School Connectedness, And Related Psychosocial Outcomes, Mark W. Kiang

Theses, Dissertations and Culminating Projects

Immigrant adolescents account for an ever-increasing portion of middle school and high school populations. In addition to experiencing stress related to typical adolescent development, immigrant adolescents are exposed to immigration-related and acculturative stress, which can lead to compromised mental health (Takeuchi, Alegria, Jackson, & Williams, 2007). Unfortunately, immigrants as a group tend to underutilize mental health services due to a number of cultural and economic factors (Saechao et al., 2012). Schools offer an ideal setting for services that address immigrant student stress (Gonzalez, Eades, & Supple, 2014). Ethnic identity and school connectedness are two constructs that have been linked to …

Institutional Racism And The Transformative Practices Of Black Women Educators In New York City Alternative Education, Gail M. Perry-Ryder

Theses, Dissertations and Culminating Projects

How does a teaching practice meet structural violence and oppression? And, how do teachers navigate systems they wish to change, in which they are also participating? This study is a qualitative investigation of institutional racism and power in U.S. alternative educational settings, and the knowledge and experiences of six Black women educators working to counteract the problem from the inside. There is a vast literature on preparing teachers for diverse classrooms; however, it has not adequately represented teachers who deploy transformative practices to directly challenge institutional racism in nontraditional educational settings, nor has it addressed the costs associated with doing …

Who’S Writing Open Access (Oa) Articles? Characteristics Of Oa Authors At Ph.D.-Granting Institutions In The United States, Anthony J. Olejniczak, Molly J. Wilson

Copyright, Fair Use, Scholarly Communication, etc.

The open access (OA) publication movement aims to present research literature to the public at no cost and with no restrictions. While the democratization of access to scholarly literature is a primary focus of the movement, it remains unclear whether OA has uniformly democratized the corpus of freely available research, or whether authors who choose to publish in OA venues represent a particular subset of scholars—those with access to resources enabling them to afford article processing charges (APCs). We investigated the number of OA articles with article processing charges (APC OA) authored by 182,320 scholars with known demographic and institutional …

Mplp: From Practice To Theory, Kyna Herzinger

Copyright, Fair Use, Scholarly Communication, etc.

Most American archivists are familiar with More Product, Less Process or MPLP and are sensible of its strengths and weaknesses, while applying its time-saving methods. Minimal methods are currently justified over more time-honored, time-consuming ones by applying MPLP’s now largely accepted practices in an effort to maximize resources and prioritize competing workplace demands.

This paper traces MPLP’s development through four broad observations and seeks to reframe how archivists engage with MPLP and its diverse approaches. MPLP’s larger impact is considered by encouraging a conversation around how professional values have found a voice in MPLP and, in turn, considers MPLP’s impact …

Sizing Up Categories, Lee Anne Fennell

Public Law and Legal Theory Working Papers

Categories intentionally create discontinuities. By breaking the world up into cognizable chunks, they simplify the information environment. But the signals they provide may be inaccurate or scrambled by strategic behavior. This Article considers how law might approach the problem of optimal categorization, given the role of categories in managing and transmitting information. It proceeds from the observation that high categorization costs can be addressed through two opposite strategies—making classifications more fine-grained (splitting), and making classifications more encompassing (lumping). Although continuizing and other forms of splitting offer intuitive answers to inaccurate classification and gaming along category lines, lumping is sometimes a …