Digital Commons Network^™

The Brady Database, Brandon L. Garrett, Adam M. Gershowitz, Jennifer Teitcher

Faculty Scholarship

The Supreme Court’s landmark ruling in Brady v. Maryland turns sixty this year. The Brady doctrine, which requires the government to disclose favorable and material evidence to the defendant, is one of the most frequently litigated criminal procedure issues. Yet, despite decades of Brady cases in federal and state courts, we still know relatively little about how Brady claims are litigated, adjudicated, and what such claims can tell us about the criminal justice system writ large. Scholars are in the dark about how often Brady violations occur, whether it is primarily the fault of prosecutors or the police, whether violations …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

The U.S. Constitution grants Congress the power “[t]o regulate Commerce with foreign Nations,” but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

The Children Are Our Future (Not Our Future Criminals): Protecting South Carolina’S Youngest Citizens By Setting A Minimum Age Of Juvenile Court Jurisdiction, Peggy Nicholson

Faculty Scholarship

No abstract provided.

Reflections On Race, The Constitution, And Growing Up In The Segregated South, Walter Dellinger

Faculty Scholarship

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling.

Note: The …

A Great American Gun Myth: Race And The Naming Of The “Saturday Night Special”, Jennifer L. Behrens, Joseph Blocher

Faculty Scholarship

At a time when Second Amendment doctrine has taken a strongly historical turn and gun rights advocates have increasingly argued that gun regulation itself is historically racist, it is especially important that historical claims about race and guns be taken seriously and vetted appropriately. In this short article, we evaluate the often-repeated claim that the nickname “Saturday Night Special” derives from the phrase “[n___er]-town Saturday night.”

Based on a review of newspapers, legislative debates, dictionaries, slang compendiums, and other sources, we find no historical support for this claim. It apparently appeared for the first time, unsourced, in a 1976 article …

A Codified Liability Regime To Stimulate Greater Investment In Subpatentable Innovation, Jerome H. Reichman, Ana Santos Rutschman

Faculty Scholarship

The global intellectual property system rests on a distinction between exclusive property rights and free competition. Exclusive rights vary in strength and intensity, but the opposite of protection is almost always free competition. Distinctions of intensity are drawn in terms of the length of protection given to different subject matters plus variable lists of exceptions and limitations to exclusive rights. But the bottom line is that, when protection is not available under the existing system, free competition prevails, and vice-versa (i.e., where there is exclusivity, free competition is deferred for a specified period of time).

This Article departs from a …

The Limits Of Individual Prosecutions In Deterring Corporate Fraud, Samuel W. Buell

Faculty Scholarship

Fifteen years after the largest financial scandal and economic crisis in a century, discussion of the problem of corporate crime too often borders on cliché. Endless calls from Congress, the media, the public, many scholars, and even the Justice Department itself, to recommit, over and over, to locking up more managers and executives to deter corporate wrongdoing portray the problem as relatively straightforward and blame legislative and executive failure of will. Through examination of the litigation record from over 100 prosecutions spanning the period from the 2008 financial crisis to the present, this Article presents evidence that relying on individual …

Being An Icon: Reflections On Sandra Day O'Connor, Lisa Kern Griffin

Faculty Scholarship

Justice Sandra Day O'Connor's passing in December inspired an outpouring of tributes to the rancher's daughter who blazed a trail through Stanford, legal practice, the Arizona legislature, and the state trial and appellate courts to arrive at the Supreme Court of the United States. She served as the Court's 102nd Justice and the first woman Justice in the institution's almost 200-year history. Justice O'Connor was both a world historical figure and a one-of-a-kind personality. She has been justly celebrated for her tremendous accomplishments as well as her extraordinary personal grace. This reflection offers some insight into what she looked like …

Mickey, Disney, And The Public Domain: A Ninety-Five-Year Love Triangle, Jennifer Jenkins

Faculty Scholarship

No abstract provided.

U.S. Public Perceptions Of The Sensitivity Of Brain Data, Shenyang Huang, Umika Paul, Shikhar Gupta, Karan Desai, Melinda Guo, Jennifer Jung, Beatrice Capestany, William D. Krenzer, Dylan Stonecipher, Nita A. Farahany

Faculty Scholarship

As we approach an era of potentially widespread consumer neurotechnology, scholars and organizations worldwide have started to raise concerns about the data privacy issues these devices will present. Notably absent in these discussions is empirical evidence about how the public perceives that same information. This article presents the results of a nationwide survey on public perceptions of brain data, to inform discussions of law and policy regarding brain data governance. The survey reveals that the public may perceive certain brain data as less sensitive than other ‘private’ information, like social security numbers, but more sensitive than some ‘public’ information, like …

Liberty, Safety, And Misdemeanor Bail, Brandon L. Garrett, Sandra Guerra Thompson, Dottie Carmichael, David Shi, Songman Kang

Faculty Scholarship

The highest volume of cases in the U.S. criminal system are misdemeanors, and every day, hundreds of thousands of people are detained pretrial in such low-level cases. In policy and in politics, pretrial rules have swung between a focus on protecting constitutional rights and the public safety dangers posed by releasing arrestees. The Supreme Court’s ruling in United States v. Salerno sought to promote a balance between protecting individual due process rights and public safety interests. A central constitutional and pressing policy question is what trade-off exists between pretrial liberty and reoffending. The highest profile jurisdiction to examine that question …

King, Christian Ethics, And The Promise Of Positive Fundamental Rights, H. Timothy Lovelace Jr., Patrick T. Smith

Faculty Scholarship

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

The Harlan Court: A Constitutional Alternate History, H. Jefferson Powell

Faculty Scholarship

Walter Dellinger shared the widespread perception that the Burger Court was characterized by “rootless activism” rather than principled constitutional adjudication, and for him this put in question the legitimacy even of decisions that reached outcomes he thought politically or morally desirable. To explain what was wrong with such decisions, he often imagined the Court as it might have been if Justice John Marshall Harlan, who died in 1971, had lived another decade, and inspired an era of constitutional decisions deeply rooted in constitutional tradition and characterized by careful adherence to legal method. This Essay seeks to explain Dellinger’s idea and …

Sharing Pathogen Sequence Data For Global Scientific Research Under The Nagoya Protocol To The Convention On Biological Diversity, Jerome H. Reichman, Carolina Dos S. Ribeiro, George B. Haringhuizen, Paul F. Uhlir

Faculty Scholarship

The Nagoya Protocol to the Convention on Biological Diversity (CBD) has threatened to impede access to genetic resources and related data for cross-border scientific research. In principle, every use of genetic resources would require a set of contracts under the CBD, in a “bilateral” regime. The related transaction costs could overwhelm many transnational research undertakings, affecting even public health responses to outbreaks and epidemics. However, the Nagoya Protocol also offers a unique opportunity to resolve this dilemma, despite struggles to define the meaning and coverage of “digital sequence information.” The coverage of genetic sequence data under the CBD remains controversial …

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

Dispersal Limits Poleward Expansion Of Mangroves On The West Coast Of North America, Kyle C. Cavanaugh, Dustin Carroll, Rémi Bardou, Tom Van Der Stocken

Faculty Research, Scholarly, and Creative Activity

While much attention has been paid to the climatic controls of species' range limits, other factors such as dispersal limitation are also important. Temperature is an important control of the distribution of coastal mangrove forests, and mangrove expansion at multiple poleward range limits has been linked to increasing temperatures. However, mangrove abundances at other poleward range limits have been surprisingly insensitive to climate change, indicating other drivers of range limitation. For example, along the west coast of North America, the poleward mangrove range limits are found on the Baja California and mainland coasts of Mexico, between 26°48ʹ and 30°18ʹN. Non-climatic …

A Comparative Multivariate Analysis Of Var And Deep Learning-Based Models For Forecasting Volatile Time Series Data, Saroj Gopali, Sima Siami-Namini, Faranak Abri, Akbar Siami Namin

Faculty Research, Scholarly, and Creative Activity

The existing literature on forecasting time series data is primarily based on univariate analysis and techniques such as Univariate Autoregressive (UAR), Univariate Moving Average (UMA), Simple Exponential Smoothing (SES), deep learning models, and, most notably, univariate Long Short-Term Memory (LSTM) built based on univariate variable where the next lag of time series is leveraged for forecasting the next cycle of data. This paper takes this line of research to the next level by focusing on forecasting time series data based on “multivariate” modeling and analysis. To have a better insight of the performance of various deep learning-based models when multivariate …

Anti-Trafficking And Humanitarian Operations: Transferring Learnings For A Better World, Kezban Yagci Sokat, Maria Besiou

Faculty Research, Scholarly, and Creative Activity

Purpose: The purpose of this study is twofold: first, to draw insights from the rich literature on humanitarian operations efforts to combat human trafficking; second, to inspire humanitarian operations researchers to work more on human anti-trafficking. Design/methodology/approach: This is a conceptual paper inspired by recent relevant reports, the academic literature and the authors’ years of involvement in both humanitarian operations and anti-trafficking. Findings: Humanitarian supply chains and human trafficking supply chains very often operate in the same environments and hence face similar challenges. The paper highlights the overlaps between the two domains and demonstrates how two decades of learnings from …

The Role Of Paradata In Algorithmic Accountability, Ciaran B. Trace, James A. Hodges

Faculty Research, Scholarly, and Creative Activity

This chapter examines how the doings of the algorithm (instantiated through its operations, actions, and steps) and its accompanying algorithmic system are revealed and explored through an engagement with the paradata created as a part of this data-making effort. In doing so, the chapter explores how the concept of paradata helps us understand how information professionals and domain stakeholders conceptualize accountable algorithmic entities and how this influences how they emerge as documented and describable entities. Two complementary frameworks for capturing and preserving paradata for accountability purposes are examined in the process. The first is associated with diplomatic theory and archival …

Towards A Context-Contingent Stage Theory Of Entrepreneurial Opportunity: Introducing The Petii Model, Xiaohong Iris Quan

Faculty Research, Scholarly, and Creative Activity

Understanding opportunity is a crucial aspect of entrepreneurship research. Existing studies have extensively examined individual factors in facilitating entrepreneurial activities such as new venture creation. Although there are some discussions on contextual factors, few connect context with the origin of entrepreneurship—opportunity. Recognising the objectivity of entrepreneurial opportunity, this theoretical article first proposes two types of opportunities—innovative opportunity and imitative opportunity—to understand the nature of opportunity. It then proposes a systematic framework—the PETII (Population, Economic status, Technological advancement, Industry life cycle, Institutions) model—to analyse the role of context in the distribution of opportunity. Furthermore, it examines how both objective contextual factors …

Reexamining Enron's Regulatory Consequences, Steven L. Schwarcz

Faculty Scholarship

The downfall of Enron Corporation often epitomizes corporate fraud. One of the world’s fastest growing and most inventive companies, Enron had engaged in a range of complex structured hedging transactions designed to achieve accounting rather than operating results. Its principal motivation, though, was to avoid the risk of incurring financial-statement losses that could impair its credit rating and thereby destroy its primary business of derivatives-based energy trading.

Enron’s management has been criticized for engaging in these structured hedging transactions, and some of its managers were sent to jail. This symposium article concerning “Business and Financial Crimes” attempts to set forth …

Representations & Warranties, Fraud, And Risk Shifting: An Analytical Framework, Steven L. Schwarcz

Faculty Scholarship

Do violations of contractual representations and warranties (“R&Ws”) merely shift risk by giving rise to contract-breach damages, or can they also give rise to fraud claims? This question is at the heart of numerous lawsuits, including billions of dollars of securitization-related litigation. Many agreements governing the issuance of securities in these transactions limit R&W breach claims to a sole contractual remedy—curing the violation or repurchasing nonconforming loans that caused the violation. Although parties making the R&Ws argue that this sole remedy should adequately shift risk, investor plaintiffs contend that it insufficiently shifts the risk if the violations are extensive. Plaintiffs …

Ucc § 2-510: A Commercial Law Blunder?, Steven L. Schwarcz

Faculty Scholarship

Commercial law, as codified by the Uniform Commercial Code ("UCC"), recognizes certain important policy goals and commercial realities as a basis to override property law. Among other provisions, § 2-509 of the UCC allocates the risk of loss to goods in transit to the party who controls and would be expected to insure the goods, whether or not that party owns the goods at the time of their loss. Promoting commercial reality over the "arbitrary shifting" of rights based on property has been widely praised. Shortly after that risk-of-loss provision was enacted, however, it was modified by an additional UCC …

The Progressive Case For American Power: Retrenchment Would Do More Harm Than Good, Megan A. Stewart, Jonathan B. Petkun, Mara R. Revkin

Faculty Scholarship

After more than 20 years of costly military adventures, the United States has failed to root out extremism or bring liberal democracy to the oppressed. Thousands of American soldiers have lost their lives in the failed wars in Afghanistan, Iraq, and beyond—and the death toll among civilians is in the millions. In the wake of these calamities, progressives have united around an overriding foreign policy prescription: the United States should jettison its world-dominating ambitions, restrain itself from taking on new commitments, and retrench from the world, shrinking the U.S. military’s footprint. In think tanks and universities, progressives are calling on …

Deepfakes In Court: How Judges Can Proactively Manage Alleged Ai-Generated Material In National Security Cases, Abhishek Dalal, Chongyang Gao, Paul W. Grimm, Maura R. Grossman, Daniel W. Linna Jr., Chiara Pulice, V. S. Subrahmanian, John Tunheim

Faculty Scholarship

Dall-E. ChatGPT GPT-4. Words that did not exist in the English lexicon just a few years ago are now commonplace. With the widespread availability of Artificial Intelligence (AI) tools, specifically Generative AI, whether in the context of text, audio, video, imagery, or even combinations of these, it is inevitable that trials related to national security will involve evidentiary issues raised by Generative AI. We must confront two possibilities: first, that evidence presented is AI-generated and not real and, second, that other evidence is genuine but alleged to be fabricated. Technologies designed to detect AI-generated content have proven to be unreliable, …

Evaluating Pre-Trial Programs Using Interpretable Machine Learning Matching Algorithms For Causal Inference, Travis Seale-Carlisle, Saksham Jain, Courtney Lee, Caroline Levenson, Swathi Ramprasad, Brandon Garrett, Sudeepa Roy, Cynthia Rudin, Alexander Volfovsky

Faculty Scholarship

After a person is arrested and charged with a crime, they may be released on bail and required to participate in a community supervision program while awaiting trial. These ‘pretrial programs’ are common throughout the United States, but very little research has demonstrated their effectiveness. Researchers have emphasized the need for more rigorous program evaluation methods, which we introduce in this article. We describe a program evaluation pipeline that uses recent interpretable machine learning techniques for observational causal inference, and demonstrate these techniques in a study of a pre-trial program in Durham, North Carolina. Our findings show no evidence that …

Changing Hearts And Minds: Theorizing How, When, And Under What Conditions Three Social Influence Implementation Strategies Work, Bryan J Weiner, Rosemary D Meza, Predrag Klasnja, Rebecca Lengnick-Hall, Gretchen J Buchanan, Aaron R Lyon, Kayne D Mettert, Marcella H Boynton, Byron J Powell, Cara C Lewis

2020-Current year OA Pubs

BACKGROUND: Opinion leadership, educational outreach visiting, and innovation championing are commonly used strategies to address barriers to implementing innovations and evidence-based practices in healthcare settings. Despite voluminous research, ambiguities persist in how these strategies work and under what conditions they work well, work poorly, or work at all. The current paper develops middle-range theories to address this gap.

METHODS: Conceptual articles, systematic reviews, and empirical studies informed the development of causal pathway diagrams (CPDs). CPDs are visualization tools for depicting and theorizing about the causal process through which strategies operate, including the mechanisms they activate, the barriers they address, and …

Utah Farmers Market Manager Handbook, Gwen Crist

Environment and Society Faculty Publications

Welcome to the Utah Farmers Market Manager Handbook, designed by the Utah Farmers Market Network for market managers like you! We’re thrilled to support you in your job as a market manager by providing this Handbook of information and tools you’ll need to start a market from scratch or to grow your market, along with helpful links and resources, tips, and best practices for running a successful market.