Digital Commons Network^™

Interpretive Divergence In The New York Court Of Appeals, Ethan J. Leib

Faculty Scholarship

This Article focuses attention on the New York Court of Appeals, which is decidedly formalist about contract interpretation but decidedly contextualist about statutory interpretation. It explores some recent exemplary cases to show where the New York Court of Appeals tends to land in what turns out to be, for this court at least, two different battlefields in the law of interpretation. Finding that there is “interpretive divergence” between statutory and contract cases, the Article then reflects on the practice of divergence more generally, revisiting assumptions about why anyone might have thought harmonization was sensible in the first place.

Afrofuturism And The Law: A Manifesto, I. Bennett Capers

Faculty Scholarship

Afrofuturism seems to be everywhere these days. In music, film, dance, literature. And in this special symposium issue of the Georgetown Law Journal, “Afrofuturism and the Law.” This prompts a foundational question. What is “Afrofuturism and the Law”? More specifically, as a practice, as a discipline, and a legal movement, what should Afrofuturism and the Law be. Indeed, given Afrofuturism’s seeming staying power, and its incursion into law, is it time for a manifesto to set parameters? Hence, this proposed manifesto. To be sure, I am troubled by the word manifesto, especially given its connection to the word manifest, which …

The Legacy Of The Troubles: Casting A Long Shadow Over Northern Ireland, Jacqueline M. Nolan-Haley

Faculty Scholarship

The Good Friday/Belfast Agreement (Agreement) brought hope to Northern Ireland after thirty years of violent conflict during a period known as the Troubles (1968 - 1998). The Agreement offered a framework for ending the conflict and for addressing the needs of victims. However, unlike peace agreements from many other post-conflict societies, it did not provide a transitional justice process for dealing with contentious issues of the past. As a result, more than 25 years after the signing of the Agreement, the problematic legacy of the conflict continues. Paramilitaries are still a cause for concern. Peace walls still exist. Competing sectarian …

The Implications Of Section 230 For Black Communities, Spencer Overton, Catherine Powell

Faculty Scholarship

Section 230 of the Communications Decency Act generally immunizes online platforms such as Facebook, YouTube, Amazon, and Uber from liability for third-party user content (for example, posts, comments, and videos) and for moderation of that content. This Article addresses an important issue overlooked by both defenders and critics of Section 230: the implications of the law and proposed reforms for Black communities in particular. By relieving tech platforms of most legal liability for third-party content, Section 230 helps facilitate Black social activism, entrepreneurship, and artistic creativity. Section 230 also relieves platforms of most legal liability for content moderation, which boosts …

Is There A Presumption Against Wealth Taxation?, Linda Sugin

Faculty Scholarship

No abstract provided.

Do Americans Support More Housing?, Michael Lewyn

Scholarly Works

An analysis of opinion poll data on housing issues. The article finds that Americans generally believe that their community needs more housing of all types, but are more closely divided about whether such housing should be in their own neighborhoods. The article further finds that members of minority groups, lower-income Americans, and younger Americans are more pro-housing than older, affluent whites.

Green Amendments Land Use And Transportation: What Could Go Wrong?, Michael Lewyn

Scholarly Works

Numerous states have amended their constitutions to include a green amendment (that is, an amendment providing that the state's citizens have a right to a healthy environment). Unfortunately, the vagueness of these amendments leaves an enormous amount of interpretative power to courts. This article examines how some courts have interpreted green amendments and how these interpretations risk the misuse of green amendments. Additionally, this article examines how such misuse may be avoided.

Yes, Low-Income People Do Move, Michael Lewyn

Scholarly Works

One answer to the American housing affordability crisis is for municipalities to allow more housing to be built. Some argue, however, that new housing does not benefit people who seek to remain in their current residence, and that this group is disproportionately poor and/or minority. This article critiques the latter view, pointing out that lower-income households are actually more likely to move because of financial instability.

Interpreting Religious Doctrine: The Third Rail That Wags The Dog In Religion Clause Jurisprudence, Samuel J. Levine

Scholarly Works

This Article is part of a broader project exploring and assessing the United States Supreme Court’s hands-off approach to interpreting religious doctrine. The mixed metaphor that constitutes the title of this Article incorporates various aspects of the project’s interrelated themes and claims. First, as a descriptive matter, the Supreme Court has repeatedly and increasingly refused to adjudicate issues that require the interpretation, evaluation, and resolution of substantive areas of religious practice and belief. Thus, like the third rail of train tracks, interpreting religious doctrine is deemed off-limits and better left untouched. Indeed, the Court’s justifications for the hands-off approach rely …

Cross-Sectional Analysis Of Primary Care Clinics' Policies, Practices, And Availability Of Patient Support Services During The Covid-19 Pandemic, Kendra Ratnapradipa, Runqiu Wang, Josiane Kabayundo, Walter Marquez Lavenant, Eleanore Nelson, Muskan Ahuja, Ying Zhang, Hongmei Wang

Journal Articles: Epidemiology

BACKGROUND: Healthcare accessibility and utilization are important social determinants of health. Lack of access to healthcare, including missed or no-show appointments, can have negative health effects and be costly to patients and providers. Various office-based approaches and community partnerships can address patient access barriers.

OBJECTIVES: (1) To understand provider perceptions of patient barriers; (2) to describe the policies and practices used to address late or missed appointments, and (3) to evaluate access to patient support services, both in-clinic and with community partners.

METHODS: Mailed cross-sectional survey with online response option, sent to all Nebraska primary care clinics (n = 577) …

Feasibility Assessment Of A Novel Isolation Care Tent In Uganda During The 2022, M. Jana Broadhurst, Rodgers R. Ayebare, David Brett-Major, Sean M. Carroll, Jacob Lacore, Alexander D. Laskey, James V. Lawler, Patricia Lord, Ruben M. Vazquez, Peter Waitt, Mohammed Lamorde

Journal Articles: Epidemiology

This case study describes a feasibility assessment of a novel isolation care tent used in health facilities in Uganda during the 2022 Sudan ebolavirus outbreak. The Isolation System for Treatment and Agile Response to High-Risk Infections Model 1B (ISTARI 1B) is a single-occupancy, portable, negative-pressure isolation tent designed for the safe delivery of standard care to patients with a communicable disease, including Ebola disease (Sudan). At the request of the Uganda Ministry of Health, the Makerere University Infectious Diseases Institute and University of Nebraska Medical Center partnered to evaluate 7 health facilities across 4 districts in Uganda for infrastructure, case …

The Effect Of A Tailored Educational Flyer On Colorectal Cancer Screening Among Rural Residents: Lessons Learned From A Pilot Randomized Trial, Jungyoon Kim, Cheryl Beseler, Melissa Leypoldt, Roma Subramanian, Tamara Robinson, Karen Funkenbusch, Jason Foster, Susan Harris, Aaron Yoder, Emma Hymel, Shinobu Watanabe-Galloway

Journal Articles: Epidemiology

Background/Objectives: Stool-based tests, such as the fecal immunochemical test (FIT), have been widely used for increasing colorectal cancer (CRC) screening. Small media, such as printed materials or flyers, are known to be an effective intervention to increase CRC screening by fecal tests. However, more evidence is needed to determine whether such small media are effective in improving screening uptake of a mailed FIT intervention targeted at rural populations in the USA.

Methods: In this randomized study, 1230 FIT kits were mailed from July to December 2022 to rural Nebraskans aged 45-74 who were not up to date on …

Assessing De Novo Parasite Genomes Assembled Using Only Oxford Nanopore Technologies Minion Data, Kaylee Herzog, Rachel Wu, John M. Hawdon, Peter Nejsum, Joseph R. Fauver

Journal Articles: Epidemiology

In this study, we assessed the quality of de novo genome assemblies for three species of parasitic nematodes (Brugia malayi, Trichuris trichiura, and Ancylostoma caninum) generated using only Oxford Nanopore Technologies MinION data. Assemblies were compared to current reference genomes and against additional assemblies that were supplemented with short-read Illumina data through polishing or hybrid assembly approaches. For each species, assemblies generated using only MinION data had similar or superior measures of contiguity, completeness, and gene content. In terms of gene composition, depending on the species, between 88.9 and 97.6% of complete coding sequences predicted in MinION data only assemblies …

Redesigning Surveillance Through The Global Emerging Infections Surveillance Program, David Brett-Major

Journal Articles: Epidemiology

No abstract provided.

Investigating Fit Kit Completion For Crc Screening In Younger Adults In Rural Areas, Cheryl Beseler, Jungyoon Kim, Melissa Leypoldt, Roma Subramanian, Tamara Robinson, Karen Funkenbusch, Jason M. Foster, Susan Harris, Aaron Yoder, Emma Hymel, Shinobu Watanabe-Galloway

Journal Articles: Epidemiology

Rural regions have higher incidence rates of colorectal cancer (CRC) than urban regions, while screening is lower in rural residents than in urban residents. Rural residents experience barriers to CRC screening due to a lack of access to healthcare, perceived lack of privacy, and other cultural factors. The fecal immunochemical tests (FITs) may provide an inexpensive and convenient alternative for those lacking access to a colonoscopy or sigmoidoscopy. In a clinical trial, we investigated factors that influenced the return of a FIT kit for CRC screening among 1,230 rural residents in a midwestern U.S. state. Participants were selected from two …

Can Crt Save Dei?: Workplace Diversity, Equity & Inclusion In The Shadow Of Anti-Affirmative Action, Tanya K. Hernandez

Faculty Scholarship

Just four years after the nation’s summer of 2020 protests—sparked by the murder of George Floyd— culminated in a racial reckoning in which many organizations across the country instituted racial equity measures and policies, legislators across the nation are enacting anti-Critical Race Theory (CRT) bans in a seeming backlash to this advocacy for racial justice. The bans simultaneously mischaracterize CRT as anti-White discrimination while strategically conflating it with workplace diversity, equity, and inclusion (DEI) initiatives. Further inflaming the racially hostile public discourse is the U.S. Supreme Court’s recent decision in Students for Fair Admissions v. Harvard (2023), which greatly narrows …

The Celebration Of Interracial Intimacy Racial Mixture As The Cure For Racism – A Critical View, Tanya K. Hernandez

Faculty Scholarship

No abstract provided.

Impact Ipsa Loquitur: A Reverse Hand Rule For Consumer Finance, Susan Block-Lieb, Edward J. Janger

Faculty Scholarship

Algorithms in consumer finance can entrench, exacerbate, and conceal bias. This article considers the increased importance, in the age of algorithmic lending, of disparate impact analysis as a tool to combat predation and discrimination in consumer finance transactions. It explores the existing legal landscape and finds gaps in the relationship between discrimination and predatory lending doctrines. It then situates both disparate impact analysis and UDAAP doctrines within the broader context of balancing and burden-shifting rules in tort law and considers how this analysis might be tailored for the new algorithmic lending environment. We conclude that predatory discrimination permits consideration of …

Consent And Disagreement, Aditi Bagchi

Faculty Scholarship

Contracts purport to settle rights and obligations between parties. The fact that parties have consented to a given set of terms seems to hold the promise of preempting conflict about those terms after the fact. But contract gives rise to disputes about consent itself. Many disputes about implied conditions, for example, are best understood as disagreements about the scope of consent.

This article identifies several moral ambiguities in the concept of concept. We not only disagree about the analytic merits of competing conceptions among ourselves but, even as individuals, we tend not to endorse and consistently apply a single version …

Long Live The Federal Rules Of Evidence!, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

The Federal Rules of Evidence have been pronounced dead. Indeed, the Federal Rules of Evidence have recently been declared dormant, stagnant, frozen, lethargic, and yes, deceased. In The Living Rules of Evidence, 170 U. Pa. L. Rev. 937 (March 2022), Professor Alexander Nunn claims that the Rules are lifeless, incapable of any meaningful change, and littered with anachronistic and even dangerous standards and provisions. To blame for the moribund state of the Federal Rules of Evidence is the bureaucratic and complex federal rulemaking process that requires amendments to traverse multiple constituencies in a multi-year process before taking effect. As a …

A Short History Of The Early History Of American Student-Edited International Law Journals, Harlan G. Cohen

Faculty Scholarship

How did ideas hatched among Harvard, Virginia, and Columbia students remake the world of international publishing? Part of the Study and Analysis of International Law Scholarship (SAILS) project, this piece follows LLMs in Cambridge (like a young Georges Abi-Saab), moot court competitors in Texas, student Vietnam-war critics in Nashville, idealistic young theorists in the New Haven, and an expanding cadre of international law scholars as they discover and develop a new publishing platform.

Statutory Interpretation In The 2020s: A View Of The Cathedral, Ethan J. Leib, Fordham University School Of Law

Faculty Scholarship

This Comment looks at eighty-seven statutory interpretation cases in the Supreme Court’s docket over the 2020–2022 Terms to evaluate trends in how the nation’s highest court reads statutes in the modern era. It concludes that the overarching story is neither a purely “textualist” one, nor one in which the liberal bloc is very often at odds with the conservative bloc. Instead, statutory interpretation is much more consensual than it is often credited to be—and contextual and purposive arguments continue to remain valid modalities of interpretation, even as standard textualist tools also remain relevant.

Painting A Clearer Picture: Introducing New Federal Rule Of Evidence 107 Regulating Illustrative Aids, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

They say a picture is worth a thousand words—and charts, drawings, diagrams, computer animations, and even tangible items are utilized at trial in virtually every case tried in the federal and state court systems. Litigants have come to depend heavily upon such aids to engage visual learners in the jury box and to present a compelling narrative. And the creative use of trial aids has only increased with the rapid technological advancements of recent decades. The ubiquity of such aids notwithstanding, there is no written standard governing their use, no agreed-upon lexicon for describing them, and no set of uniform …

Regulating For Asymmetric Market Power : Beyond The Consumer Sovereignty Model, Olivier Sylvain

Faculty Scholarship

Recent policy developments suggest that consumer sovereignty models of regulation have substantial, if not fatal, limitations. Binding decisions by the European Data Protection Board in 2023, as well as other recent public law enactments in the EU and the US, overtly reject the assumption that individuals are best situated to manage how companies process or use their personal information. Prevalent online practices are too opaque. And the “ take it or leave it ” services that companies provide render individuals’ rights and commercial choices effectively meaningless. In short, the relative power of consumers as compared to the companies that collect, …

No Strings Attached: How Catholic Institutions Prospered At The Expense Of The Administrative State And Patient Autonomy, Lori Freedman, Kimani Paul-Emile

Faculty Scholarship

Catholic hospitals and health systems have proliferated and succeeded in American healthcare; they now operate four of the largest health systems and serve nearly one in six hospital patients. Like other religious entities that Wuest and Last write about in this issue, in their article Church Against State, they have benefited by and supported the long reach of conservative efforts to undermine the administrative state.

Demoralizing Elite Fraud, Zephyr Teachout

Faculty Scholarship

The Supreme Court keeps striking down wire fraud convictions. Why?

As I show in this piece, from the 1970s to this year, the Court has repeatedly attempted to shift the framework of fraud cases from moral language to morally neutral language. As a result, the Court ends up making a hash of statutory interpretation, because it then has to interpret statutes that it has effectively rewritten. For instance, much of the current fraud jurisprudence revolves around defining what property means. The Mail Fraud statute does not have the language of property in it, and the legislative history does not involve …

Public Confidence, Judges, And Politics On And Off The Bench, Bruce A. Green, Rebecca Roiphe

Faculty Scholarship

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public …

Dataset For An Acute Bout Of Low- And Higher-Volume Circuit Training Improves Immediate And Short-Term Cognition In Young Adults, Ronald V. Croce, Michael Horvat

Data Catalog

The significance of exercise in promoting health and fitness cannot be overstated. In addition, various exercise modes can facilitate information processing and enhance cognition. The present study investigated the role of two volumes of circuit training using resistance exercise (Low Volume [LV-CTRE] of approximately 11 min and Higher Volume [HV-CTRE] of approximately 23 min) on the speed of information processing and executive function. Thirty adult male and female volunteers (18, male; 12, female) between the ages of 18-25 (mean [+ standard deviation]: 22.37 +2.06) were randomly recruited and assigned to either a non-exercise-control (CON), an LV-CTRE, or an HV-CTRE group. …

Fostering Flexibility: How Medicare Advantage Potentially Accelerated Telehealth Benefits, Lisa M. Grabert, Grace Mccormack, Erin Trish, Kathryn L. Wagner

Economics Faculty Research and Publications

In 2018, the US Congress enacted a policy permitting Medicare Advantage (MA) plans to cover telehealth services in a beneficiary’s home and through audio-only means as part of the basic benefit package of services, where prior to the policy change such benefits were only allowed to be covered as a supplemental benefit. MA plans were afforded 2 years of lead time for strategizing, negotiating, and capital investment prior to the start date (January 1, 2020) of the new coverage option. Our data analysis found basic benefit telehealth was offered by plans comprising 71% of enrollment in 2020 and increased to …

Cover And Content

Turkish Journal of Physics

No abstract provided.