Digital Commons Network^™

The Jury Does Not Always Need Help From Lay Opinion Witnesses, Taurus Myhand

Scholarly Works

Who is the “reasonable person”? There is little doubt that every competent legal professional, both in law practice and in the academic setting, has spent a great deal of time attempting to define the reasonable person. “Reasonableness is largely a matter of common sense.” In police encounters, the definition is certainly important to the outcome of questionable police conduct. How the reasonable person is defined often determines whether a police officer has infringed on an individual’s Fourth Amendment guarantee to be secure in their person against unreasonable searches and seizures. As the narratives of the news media shape how some …

Current Higher Education Legal Issues And The Roles Of Legal Leadership On Campus, Louis H. Guard, Joyce P. Jacobsen, Patricia E. Salkin

Scholarly Works

No abstract provided.

How To Teach A Course On Land Use And Anti-Jewish Discrimination, Michael Lewyn

Scholarly Works

In 2022, I was asked to teach a one-week mini-course within a broader course on "Structural Barriers and the Pursuit of Equity," a course focusing on various forms of structural discrimination. The course is typically taught by over a dozen professors from various parts of Touro University, each of whom teaches for a week on a different topic. I chose to teach on issues related to land use law (because my scholarship focuses on that area) and in particular how land use law has been used by and against traditionally observant Jews (because that is the religious tradition I am …

You Get The Jury You Get And You Don’T Throw A Fit, Taurus Myhand

Scholarly Works

The proliferation of deepfake videos has resulted in rapid improvements in the technology used to create them. Although the use of fake videos and images is not new, advances in artificial intelligence have made deepfakes easier to make and harder to detect. Basic human perception is no longer sufficient to detect deepfakes. Yet, under the current construction of the Federal Rules of Evidence, trials judges are expected to do just that. Trial judges face a daunting challenge when applying the current evidence authentication standards to video evidence in this new reality of widely available deepfake videos. This article examines the …

Climate Nationalism, Gabriel Weil

Scholarly Works

Climate change is a global commons problem. The costs of emissions in any given country are mostly borne by foreigners. Absent strong measures to overcome this dynamic, pursuit of national self-interest will lead people and countries to underinvest in decarbonization, relative to what's best for the world as a whole. And we do see such underinvestment. Many countries are not on track to meet their Paris Agreement pledges, and those pledges, even if met, are not ambitious enough to meet the headline temperature stabilization goals of the agreement. This is the fairly banal pursuit of national interest in the climate …

A Conservative Attack On Urbanism - And Why It Fails, Michael Lewyn

Scholarly Works

No abstract provided.

Disparate Impact And Synagogue Location, Michael Lewyn

Scholarly Works

Because anti-density regulations seem likely to have a negative impact upon Sabbath-observant Jews, one might think that such regulations violate the Fair Housing Act (FHA) disparate impact doctrine. The purpose of this article is to show why FHA claims in this type of situation are unlikely to succeed: first by explaining the law governing the disparate impact doctrine, and then by applying that law to a hypothetical case involving Orthodox Jews.

Tribal Authority To Issue Search Warrants To Non-Tribal Entities Or On Non-Indian Land Within Reservation Boundaries, Ivy K. Chase

American Indian Law Review

No abstract provided.

The Native Fight For Hunting Rights: The Crow Tribe And Herrera V. Wyoming, Jacob Lewis

American Indian Law Review

No abstract provided.

The “Arm” That Saves You Might Also Strangle You: The Impact Of Sovereign Immunity On Economic Arms Of Tribes And How It Could Affect Others’ Willingness To Contract With Them, Josh Pumphrey

American Indian Law Review

No abstract provided.

Thinking Artfully With Matter: A Posthuman Enquiry Into The Pedagogical Values Of Sketch-Booking., Melanie Potier

School of Law, Humanities and Social Sciences Theses

Becoming attentive to art practices in terms of what they can do rather than what they are, the writing generates a more tentative-artful engagement with how sketchbooking processes engender more response-able relationship with the world. Exploring the relation between sensation and thought, this exemplification of the speculative potential of force and form, emerges as a powerful resistance to the constraints of the neoliberal education system. Practicing art as immanent doing, Erin Manning’s theory of incipient movement works to develop concepts, such as research-creation, event-time, artfulness and thought in motion, which find expression through the mundanities and ordinary occurrence of the …

Sealed Justice: Federal Courts' Inconsistent Record-Sealing Rules And Their Impact On Judicial Transparency, David S. Ardia

Faculty Publications

Public access to court records is a cornerstone of democratic governance, enabling public oversight of the judiciary and fostering confidence in the rule of law. Despite a strong presumption in favor of openness under both the First Amendment and common law, the sealing of federal court records has become widespread, often with minimal judicial scrutiny. Re-cent investigations have revealed that excessive court secrecy shields government and corporate misconduct, conceals vital public-safety information, and erodes public confidence in the courts.

This Article presents the first comprehensive analysis of the local rules governing sealing in all 94 federal districts, reviewing more than …

Wellness And The Tax Law, Leigh Z. Osofsky

Faculty Publications

The tax law has long provided extensive subsidies for “medical care.” These subsidies cost the government hundreds of billions of dollars a year. The definition of medical care, which is at the heart of these subsidies, originated many decades ago at a time when there was little to no conception of wellness.

Times have changed in the medical world. Medical science now emphasizes that wellness practices, like exercise, meditation, and social connection, have an important impact on physical as well as mental health, including by playing a significant role in preventing and treating disease. Under the tax statute, medical care …

A Patent System For Temple Grandin, Andrew Chin

Faculty Publications

This article explores the intersection of neurodiversity and innovation through the lens of Temple Grandin’s contributions to livestock handling systems and her philosophical alignment with the U.S. patent system. Drawing on cognitive research by Simon Baron-Cohen, archaeological insights from Penny Spikins, and personal reflections, I argue that autistic cognitive styles—characterized by heightened “folk physics” aptitudes and visual thinking—have historically driven technological progress. Grandin’s patented inventions, motivated by sensory-based empathy for animals, exemplify how neurodivergent inventors seek to embed their conceptions of ethical utility into the nation’s technological infrastructure. The article critiques modern patent litigation trends, advocating instead for a system …

Retrenchment By Diversion: The New Law And Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Faculty Publications

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Scrutinizing Transgender Healthcare Bans Through Intersex Exceptions, Holning Lau, Barbara A. Fedders

Faculty Publications

Major professional medical organizations—for example, the American Academy of Pediatrics, American Medical Association, and Endocrine Society—consider gender-affirming care to be safe and, at times, essential for vulnerable transgender youth. Despite these benefits, 26 states have banned gender-affirming care for minors. Proponents of these bans raise concerns about potential medical harms, the irreversibility of treatments, and the adequacy of informed consent.

Every state ban includes an exception for so-called gender-normalizing surgeries, which are performed on intersex infants to conform their bodies to socially constructed expectations about the male/female binary. The procedures are rarely medically necessary, but proponents of the surgeries contend …

Flooding The Zone: The State Of Federal Flood Insurance At The Beginning Of Trump 2.0, Maggie Caudle, Jacob Dowler, Donald T. Hornstein

Faculty Publications

The risks of flooding in the United States have never been more apparent, making all the more significant the state of flood insurance and the legal and political volatility of the National Flood Insurance Program. In this Article we discuss the details of “Risk Rating 2.0,” the most significant change to federal flood insurance in half a century, and its legal and political future in the new world of Trump 2.0. And, in addition to describing the details of this new change to federal flood insurance, we describe its advantages and disadvantages in both the newfound political environment in which …

Government Lawyers, Ethical Dilemmas: The Case Of Herbert Wechsler And Japanese American Incarceration, Eric L. Muller

Faculty Publications

This essay examines ethical dilemmas facing government agency lawyers through two episodes from Herbert Wechsler’s wartime service as head of the DOJ War Division: overseeing the Supreme Court brief in Korematsu v. United States and administering the Renunciation Act of 1944 amid turmoil at the Tule Lake Segregation Center. In the Korematsu matter, Wechsler managed a brief that skirted the Army’s problematic “Final Report” claims (including shore-to-ship signaling), privileging institutional role fidelity over disclosure, and helping sustain a framework that justified mass removal of Japanese Americans. In the renunciation program, he chose to accept any “voluntary” citizenship renunciation regardless of …

Civic Duties And Cultural Change, Daniel B. Rice

Faculty Publications

What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. Yet the concept of civic duty has played a central role in America’s constitutional tradition. From shoveling snow to repairing roads to fighting overseas, private individuals have long been forced to serve the public in ways menial and profound. Strangely, the discourse of obligation that legitimated numerous compulsions has faded from professional view. Judges’ mawkish tributes to liberty pay no …

Notice, Consent, And Choice-Of-Jurisdiction Clauses In The United States, John F. Coyle

Faculty Publications

Although choice-of-jurisdiction clauses are routinely enforced by courts in the United States, there are circumstances where they are subject to special scrutiny. One of these circumstances is when the party resisting the clause was not provided with proper notice as to the existence of the clause or the identity of the chosen jurisdiction. This Article first reviews the existing case law in this area and shows that while some U.S. courts have refused to enforce clauses for lack of notice, others do so as a matter of course. It then discusses several decisions where U.S. courts have held that notice …

The Right To A Jury And The Rise Of Guilty Pleas Across Common Law Countries, Carissa Byrne Hessick

Faculty Publications

Juries have long been considered a key common law institution, yet their use has become quite uncommon in common law systems over time. Rather than trials by juries, most criminal cases are instead resolved by way of guilty pleas. The prevalence of guilty pleas is not merely a matter of defendants’ independent choices to accept responsibility and give up the right to a trial. Common law countries have adopted various legal structures over the past half century that incentivize guilty pleas and discourage trials.

This Essay will document the decline of jury trials and the rise of guilty pleas in …

Equality And Justice: An Essay In Memory Of Dan Markel, Carissa Byrne Hessick

Faculty Publications

One of the traits that I admired most about Dan Markel was that he held legal scholarship to a very high standard. Whether it was his own work or the work of others, he believed that our work could only improve if we insisted on giving each other critical feedback.

It has been a decade since Dan’s tragic death. And while a Festschrift is ordinarily seen as an opportunity to praise the work of one’s colleagues, I want to celebrate Dan Markel in the way that I imagine he would respect most—by providing critical feedback about his work. In particular, …

Generative Identity Theft: Criminalizing Deepfakes Using The Right Of Publicity, Dustin Marlan

Faculty Publications

The right of publicity grants individuals control over the commercial use of their identity, particularly name, image, and likeness. Currently, publicity laws are a fragmented patchwork of state statutes and case law, leading to frequent calls for reform, including the establishment of a federal right of publicity. This issue has gained renewed urgency amid the rise of generative artificial intelligence and deepfake technologies. In response, Congress has introduced multiple bipartisan proposals—most prominently, the Senate’s No FAKES Act and the House’s No AI FRAUD Act—that seek to create federal protections against unauthorized digital replicas of likeness, voice, and other aspects of …

The Swiping Desire: Intimacy, Libidinal Capitalism, And The Digital Subject In The Tinder Swindler, Chanif Ainun Naim

Masyarakat: Jurnal Sosiologi

This article examines how dating applications operate as libidinal infrastructures that restructure and commodify intimacy within platform capitalism, using The Tinder Swindler as a cultural case study. Employing a visual-narrative approach within the framework of Critical Discourse Analysis, the film is analyzed to reveal the structural exploitation of user affect and desire. Grounded in Lacanian psychoanalysis and Baudrillard’s simulation theory, the study argues that these platforms capitalize on the subject’s ontological lack (manque) which fuels desire as the desire for the Other’s desire. This psychic lack sustains a perpetual pursuit of recognition that can never be fulfilled. The swindler’s hyper-curated …

“We Just Go With The Flow”: Healthcare Providers As Secondary Impacted Subjects In Informal Refugee Healthcare Provision In Indonesia, Realisa D. Masardi, Elan Lazuardi

Masyarakat: Jurnal Sosiologi

With prolonged transit times, refugees’ right to health in Indonesia has become an urgent issue. This article asks how healthcare providers are positioned within Indonesia’s ambiguous refugee health provision regime. Drawing on qualitative fieldwork, this study moves beyond a legalistic analysis of refugee health rights by foregrounding the precarious positions of healthcare providers themselves. We examine Presidential Regulation 125/2016 as well as state and non-state actors’ views on what are often described as structural barriers in improving refugees’ rights. We argue that conditions of informality, which both arise from and perpetuate institutional ambiguity, systematically undermine refugees’ right to health while …

The Adaptive Roles Framework: Trauma Adaptations And Identity Formation, Steffannie Roache

School of Social Work Faculty Publications and Presentations

The Adaptive Roles Framework is a culturally grounded conceptual model that explains how individuals develop patterned behavioral, emotional, and relational strategies in response to family systems, culture, trauma exposure, and social environments. Rather than conceptualizing behavior through pathology or personality typology, the framework positions behavioral patterns as adaptive survival strategies, responses that increased safety, belonging, or stability within specific environments and were reinforced over time because they worked. The framework identifies seven adaptive roles observed consistently across individuals, families, workplaces, and communities: the Guardian, the Translator, the Assimilator, the Archive Keeper, the Time Jumper, the Intellectual Escape Artist, and the …

Book Review For The Journal Of African Trade “How Africa Trades”, Edited By David Luke, Published By Lse Press (2023), Andrew Mold

Journal of African Trade

No abstract provided.

Migration And Youth Unemployment In Africa: Implications For The African Continental Free Trade Area (Afcfta), S.U.R Aliyu, Afees Adebare Salisu, Oyeyemi Kale

Journal of African Trade

This research explores the impact of migration within Africa on youth unemployment. The study makes two sig nificant contributions to existing literature. First, it investigates how intra-African migration can potentially support intra-African trade to enhance productivity and reduce youth unemployment. Second, it estimates the effects of intra African migration on male and female youth unemployment. The research methodology comprises using a two-level estimation involving the Poisson Pseudo Maximum Likelihood (PPML) technique and a Two-Stage Least Squares approach addressing endogeneity bias. Furthermore, a Negative Binomial Maximum Likelihood estimator was utilized to test the model's robustness. The results indicate that higher per …

Empowering Women On Screen: Exploring The Influence Of Female Protagonists On Contemporary Culture And Gendered Enjoyment In Film, Fokiya Akhtar, Azmat Rasul

All Works

A prevalent notion in the film industry across the globe suggests that female-led films may underperform, leading producers to avoid casting women as leads. This fear of alienating male audiences perpetuates patriarchal ideologies, objectifies female bodies, reinforces gender stereotypes, and alters perceptions of femininity. Examining this perception, the present study investigated the impact of the gender of the protagonist on the audience preference, challenging the misconception that exists in the film industry globally that films starring females as protagonists are less commercially successful. The study conducted an online experiment of 434 participants who were assigned different movies starring male and …

Victoria Welby's Semiotics, Significs And Gender: Through A Modernist Lens, Zoe Hurley

All Works

While there is an established body of scholarship discussing Victoria Welby's contribution to semiotics, her philosophical ideas engage with many of the intellectual currents that would later define the modernist movement. Exploring Welby's extensive articles, letters, speeches, and monographs - through a genealogical framework and modernist lens - conveys Welby's semiotic portrait of language and gender as both building upon and extending the classical semiotic approaches of Peirce as well as demonstrating nascent modernist elements. This casts a new light on the importance of Welby's semiotic concepts of Significs and mother-sense. Yet, although Welby's works correspond with proto-modernist concepts, including …