Digital Commons Network^™

Principles For Responsibility Sharing: Proximity, Culpability, Moral Accountability, And Capability, Michael W. Doyle, Janine Prantl, Mark J. Wood

Faculty Scholarship

In this Essay, we explore how responsibility based on culpability, moral accountability, and capability can improve the current regime that rests on responsibility by proximity. In doing so, we draw on the 2017 Model International Mobility Convention (MIMC), a model convention drafted by a commission of independent experts and currently supported as a project of the Carnegie Council for Ethics in International Affairs.

Who Decides Where The Renewables Should Go?: A Response To Danielle Stokes’ Renewable Energy Federalism, Michael B. Gerrard

Faculty Scholarship

One of the central tasks in addressing the climate crisis is transitioning from an energy system based on fossil fuels to one that mainly uses renewable energy. In her article “Renewable Energy Federalism,” Professor Danielle Stokes has highlighted one of the key impediments to this transition — delays in state and local permitting of renewable energy facilities. She has proposed a new approach that would give more authority to the federal government. Stokes’ approach has much to commend it. However, I differ on some aspects.

I will begin by describing the magnitude of the problem — the amount …

Confronting Indeterminacy And Bias In Child Protection Law, Joshua Gupta-Kagan

Faculty Scholarship

The child protection legal system faces strong and growing demands for change following at least two critiques. First, child protection law is substantively indeterminate; it does not precisely prescribe when state agencies can intervene in family life and what that intervention should entail, thus granting wide discretion to child protection agencies and family courts. Second, by granting such discretion, the law permits race, class, sex, and other forms of bias to infect decisions and regulate low-income families and families of color.

This Article extends these critiques through a granular analysis of how indeterminacy at multiple decision points builds on itself. …

A Time For Triage, Michael B. Gerrard

Faculty Scholarship

The world is desperately behind in the energy transformation needed to avoid the worst impacts of climate change. Catching up requires a massive buildout of wind and solar power and associated infrastructure, but in the United States many impediments stand in the way. Among them, ironically enough, are environmental laws. Here I argue that we must accept difficult tradeoffs, sacrificing some of what we consider precious in order to avoid far worse impacts.

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – 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. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

Approvals And Timing Of New Formulations Of Novel Drugs Approved By The Us Food And Drug Administration Between 1995 And 2010 And Followed Through 2021, Ravi Gupta, Christopher J. Morten, Angela J. Zhu, Reshma Ramachandran, Nilay D. Shah, Joseph S. Ross

Faculty Scholarship

New formulations of prescription drugs can improve convenience and tolerability for patients, but they also constitute manufacturer strategies to extend brand-name drug market exclusivity periods. We examined whether new formulations of brand-name novel drugs were associated with novel drugs’ sales and/or therapeutic value, as well as characterized first new formulations’ approval timing relative to the novel drug’s generic approval. We found that manufacturers are several times more likely to secure Food and Drug Administration approval for a new formulation for existing drugs that have reached blockbuster status. (Blockbuster drugs are the most profitable drugs with more than $1 billion in …

Barbarians Inside The Gates: Raiders, Activists, And The Risk Of Mistargeting, Zohar Goshen, Reilly S. Steel

Faculty Scholarship

This Article argues that the conventional wisdom about corporate raiders and activist hedge funds — raiders break things and activists fix them — is wrong. Because activists have a higher risk of mistargeting — mistakenly shaking things up at firms that only appear to be underperforming — they are much more likely than raiders to destroy value and, ultimately, social wealth.

As corporate outsiders who challenge the incompetence or disloyalty of incumbent management, raiders and activists play similar roles in reducing “agency costs” at target firms. The difference between them comes down to a simple observation about their business models: …

Russia, Ukraine, And The Future World Order, Ingrid (Wuerth) Brunk, Monica Hakimi

Faculty Scholarship

Russia's invasion of Ukraine, initiated on February 24, 2022, is among the most — if not the most — significant shocks to the global order since World War II. This piece assesses the stakes of the invasion for the core principles that lie at the heart of contemporary international law and the world order that it has helped to create. We argue, relying in part on the other contributions to the October 2022 agora on Ukraine in the American Journal of International Law, that however this war ends, it will reshape, in ways large and small, the world we …

International Bureaucracies: Extraterritorial Reach Of The European Commission’S Legal Expertise, Anu Bradford

Faculty Scholarship

The EU exercises significant influence over global regulatory standards, whether as a result of its ability to unilaterally export its rules to foreign markets via market mechanisms – a phenomenon that I have elsewhere described as ‘the Brussels Effect’ – or by entrenching them globally through bilateral or multilateral negotiations. In all cases, the legal expertise of the Commission is central. It either pro-actively supplies its expertise to their foreign counterparts or responds to the demand to offer technical expertise to create a rule-based order that closely imitates the regulatory state in Europe. Companies also resort to the Commission as …

The Road To A Federal Family Court, Jane M. Spinak

Faculty Scholarship

The family court became a “federal” family court in the 1990s and early 2000s when the federal government transformed the court into a full partner with state and local child protection agencies in monitoring families. Federal funding mandates that had shaped and expanded state child welfare, foster care, and adoption systems since the early 1970s began to be applied more purposefully to address the role of family court in supervising those systems. The Clinton administration developed and implemented the Adoption and Safe Families Act of 1996 (ASFA) as a mechanism to harness the runaway size of the nationalized child protection …

Countering The New Election Subversion: The Democracy Principle And The Role Of State Courts, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

Among the threats to American democracy, the most serious may also be the most banal: future elections will be compromised by quiet changes to the law. State legislators across the country have introduced bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have created new criminal offenses that undermine professional election administration. While power-shifting legislation, audits, and criminal penalties advertise their fealty to law, they threaten the franchise and electoral integrity, as well as nonpartisan, expert election administration. Because of its ostensibly legal, even legalistic, character, however, the new …

Proving Copying, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Proof that a defendant actually copied from a copyrighted work is a critical part of a claim for copyright infringement. Indeed, absent such copying, there is no infringement. The most common method of proving copying involves the use of circumstantial evidence, consisting of proof that a defendant had “access” to the protected work, and a showing of “similarities” between the copy and the protected work. In inferring copying from the combination of such evidence, courts have for many decades developed a framework known as the “inverse ratio rule,” which allows them to modulate the level of proof needed on access …

Relying On Restatements, Shyamkrishna Balganesh

Faculty Scholarship

Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources …

Ending Cps Home Searches' Evasion Of The Fourth Amendment, Joshua Gupta-Kagan

Faculty Scholarship

Every year, Child Protective Service (CPS) agencies investigate about 3 million families around the country for alleged neglect or abuse of their children. Under agency policies, all of those millions of investigations include searches of families’ homes. CPS investigators knock on the door (usually unannounced), look in every room of the house, open kitchen cabinets, sometimes inspect children’s bodies, and generally look for any evidence of child maltreatment. Yet CPS agencies rarely seek a warrant, and typically act as if that is unnecessary. (P. 18 & n.86.)

Creating A Strong Legal Preference For Kinship Care, Joshua Gupta-Kagan

Faculty Scholarship

One new to our field would be forgiven for thinking that the law must favor placing foster children with kin rather than with strangers. After all, individuals and organizations from across the ideological spectrum endorse kinship care, government publications describe kinship care as “the preferred resource” for placing children who cannot live at home with a parent and, after steady increases over multiple decades, authorities now place more than one-third of all foster children with kin. And decades of evidence establish that kinship care is generally more stable and serves children’s health and well-being better than living with strangers, a …

Tributes To Family Law Scholars Who Helped Us Find Our Path, Ann Laquer Estin, Melissa Murray, June Carbone, Barbara A. Atwood, Paul M. Kurtz, J. Thomas Oldham, Bruce M. Smyth, Brian H. Bix, Elizabeth S. Scott, R.A. Lenhardt, Jessica Dixon Weaver, Solangel Maldonado, Sacha M. Coupet

Faculty Scholarship

At some point after the virus struck, I had the idea that it would be appropriate and interesting to ask a number of experienced family law teachers to write a tribute about a more senior family law scholar whose work inspired them when they were beginning their careers. I mentioned this idea to some other long-term members of the professoriate, and they agreed that this could be a good project.

So I reached out to some colleagues and asked them to participate. Many agreed to join the team. Some suggested other potential contributors, and some of these suggested faculty members …

The New Public/Private Equilibrium And The Regulation Of Public Companies, Elisabeth De Fontenay, Gabriel Rauterberg

Faculty Scholarship

This Symposium Article examines how the public/private divide works today and maps out some of the potential implications for major issues in securities law. Classic debates in securities law were often predicated on the idea that public companies are a coherent class of firms that differ markedly from private companies. For more than fifty years after the adoption of the federal securities laws, this view was justified. During that period, the vast majority of successful and growing private firms eventually accepted the regulatory obligations of being public in order to access a wider and deeper pool of capital, among other …

What Is The Law's Role In A Recession?, Gabriel Rauterberg, Joshua Younger

Faculty Scholarship

In March 2020, the world faced not only a public health emergency but also one of the most profound shocks to the global economy in the modern era — a shock deeper and broader than any other in eighty years. Never before had virtually all of the world’s economies suffered a contraction at the same time (Tooze, p. 5). Global output decreased by nearly 3.4% in 2020, the largest contraction since the Second World War. The United States saw the largest recorded demand shock in its history (-32.9%), and the unemployment rate peaked around 15% during 2020, higher than at …

In Search Of Good Corporate Governance, Dorothy S. Lund

Faculty Scholarship

In this Forum Response, Dorothy Lund considers whether the “corporate governance gap” between large and small public companies is the product of harmful or beneficial forces, and in so doing, rejects the idea that there is a single governance framework that is optimal for all public companies.

Twitter V. Musk: The "Trial Of The Century" That Wasn't, Ann M. Lipton, Eric L. Talley

Faculty Scholarship

The months-long saga over Elon Musk's on-again, off-again acquisition of Twitter provided considerable entertainment for lawyers and laypeople alike. But for those of us who teach business law, it also provided a unique (and in certain ways, vexing) opportunity to show real-time examples of the legal principles that are the grist for courses in contracts, corporations, corporate finance, and mergers and acquisitions.

Both of us found ourselves incorporating the saga into our classroom discussions, which in turn informed our own thinking about how the dynamic played out. Although we were both relatively active on social media (indeed on Twitter itself) …

Comments On Council Draft 6 [Black Letter And Comments], Jane C. Ginsburg, June M. Besek

Faculty Scholarship

We appreciate the Reporters’ incorporation of some of our comments on recent drafts. There remain, however, certain flaws in CD6 that should be addressed. We explain the issues, below.

A Collaborative Self-Study: Reflections On Convening A Sotl Community Of Practice, Rebecca Wilson-Mah Dr., Jo Axe Dr., Elizabeth Childs Dr., Doug Hamilton Dr., Sophia Palahicky Dr.

International Journal for the Scholarship of Teaching & Learning

Communities of practice (CoPs) can provide opportunities for diverse and inclusive groups to convene, share, collaborate, and support others. Using a self-study research approach combined with a visual research method, this study explores both scholarly and practice-based insights to describe the anticipated attributes of a high functioning CoP for the support of collaborative engagement in Scholarship of Teaching and Learning (SoTL). The following nine emergent attributes are identified: 1) Structures; (2) Social environments; (3) Diversity; (4) Knowledge, learning and ideas; (5) Support; (6) Shared leadership; (7) Risk; (8) Results and impact; and (9) Growth over time. This study contributes to …

Tpack Tried And Tested: Experiences Of Post-Secondary Educators During Covid-19 Pandemic, Viola Manokore, Jeff Kuntz

International Journal for the Scholarship of Teaching & Learning

This article explores educators’ experiences during the rapid shift from face-to-face to emergency virtual remote teaching and learning as a result of the COVID-19 pandemic. One hundred and forty educators from a Canadian province completed a survey with Likert scale and open-ended questions designed to capture their application of technological pedagogical content knowledge (TPACK) during the pandemic. Data was collected during fall of 2020. More than 50% of the study participants reported that the quality of their practice declined as they shifted from face-to-face to remote teaching as a result of the pandemic. Educators’ descriptions of their virtual remote experiences …

Empathy In Education: A Critical Review, Ziqian Zhou Dr

International Journal for the Scholarship of Teaching & Learning

This paper offers a systematic review of the literature on the nature of empathy in educational research. This synthesis of the literature will reveal four salient themes that SoTL authors have used to understand the concept of empathy. The value of empathy, according to SoTL researchers, will also receive a summarized treatment in this paper. Findings from this first part of the paper promote more accurate interpretations and comparisons of publications about empathy. Relatedly, a less ambiguous definition of empathy allows researchers and practitioners to design more precise studies that attempt to measure empathy in tutors or students, and to …

Student Preferences In Using Affordable Learning Materials To Teach Research Methods Online, Phillip D. Grant, Elizabeth M. Pope

International Journal for the Scholarship of Teaching & Learning

This basic qualitative study assessed students’ perceptions of affordable learning materials in an asynchronous master’s level research methods course at a regional university. Students preferred instructor-created mini-lectures (45%) more than required readings (39%), supplementary items concerning a specific topic (7%), sample studies (5%), CITI training modules (3%), and continuing education materials (2%). We found that students tended to prefer material that offered foundational information about research methods. Students also preferred material that “translated” academic language. Students preferred materials that were compatible with their perceived learning style. Finally, students preferred materials that related research methods to their own professional practice.

Influence Of Discussion Prompts On Fostering Student Teachers’ Competence In Knowledge Of English Instruction, Chin-Wen Chien

International Journal for the Scholarship of Teaching & Learning

This study analyzed questionnaire, pre-test, post-test, and online posts to explore influence of discussion prompts on the competence in English instruction of seven student teachers of elementary school EFL (English as a Foreign Language) in a practicum in Taiwan. This study reached the following conclusions. First, student teachers had good perceptions of the discussion prompts, particularly their effects on reflection on and relevance of English instruction. Secondly, student teachers had good perceptions of discussion prompts because of their clarity; however, they were not satisfied with inactive discussions among participants. Finally, participants’ education background and teaching experience affected their perceptions and …

Resistivity Imaging Of Prominent Seepage Pathways In Karst Terrain, Abdullah Hadi Zaid Alhaj

Doctoral Dissertations

"An integrated research approach was conducted to evaluate subsurface karstic conditions in Greene County, southwestern Missouri. Electrical resistivity tomography (ERT) was employed to image anomalously low resistivity zones associated with the presence of seepage pathways that were anthropogenic and/or natural in origin. Techniques including visual inspection (VI), multichannel analysis of surface waves (MASW), borehole control (BC), and aerial imagery (AI) were supplementally used to constrain the ERT data interpretations.

This research addressed six objectives. First, the ERT data interpretations were verified in terms of depth to the top of bedrock, fractures/voids, and moisture changes using the MASW, borehole control, and …

Psychopathy And Emotion Regulation: The Mediating Role Of Motives And Goals, Morning S. Baker

Dissertations and Theses @ UNI

The purpose of this study was to examine the relation between psychopathy and emotion regulation as serially mediated by emotional motives and goals in an all-male sample. Six serial mediation models were proposed, three for each motive-type (i.e., hedonistic, instrumental), and two for each emotion (i.e., anger, fear, joy). Eight-hundred and seventy-eight participants were recruited via Amazon’s Mechanical Turk (MTurk). Results indicate that male MTurk workers with greater levels of psychopathy have poorer emotion regulation, emotion goals for experiencing anger and fear, hedonistic and instrumental motives for experiencing anger and fear, emotion goals for not experiencing joy, and hedonistic and …

Machine Learning Land Cover And Land Use Classification Of 4-Band Satellite Imagery, Lorelei Turner, Torrey J. Wagner, Paul Auclair, Brent T. Langhals

Faculty Publications

Land-cover and land-use classification generates categories of terrestrial features, such as water or trees, which can be used to track how land is used. This work applies classical, ensemble and neural network machine learning algorithms to a multispectral remote sensing dataset containing 405,000 28x28 pixel image patches in 4 electromagnetic frequency bands. For each algorithm, model metrics and prediction execution time were evaluated, resulting in two families of models; fast and precise. The prediction time for an 81,000-patch group of predictions wasmodels, and >5s for the precise models, and there was not a significant change in prediction time when a …

Africana Legal Studies: A New Theoretical Approach To Law & Protocol, Angi Porter

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: In 1743, a group of enslaved Africans from various estates in French colonial New Orleans gathered, held a musical ceremony sung in their native language, and discussed the actions and fate of a slaveholder named Corbin. Earlier, Corbin had threatened to shoot one of the enslaved Africans in this group, and Corbin’s brother then actually shot that person with a gun loaded with salt. Now, as the group of Africans gathered, they determined that Corbin had to die. Two months later, Corbin disappeared and was never found.

If we use a traditional (Western) legal framework to describe this …