Digital Commons Network^™

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 …

Reciprocal Learning In The Mentor-Novice Teacher Relationship In Middle School, Catherine R. Gaynor

Theses, Dissertations and Culminating Projects

This dissertation examined the mentor-novice teacher relationship in the post-2020 middle school setting in New Jersey to better understand the reciprocal learning that occurs between the mentor and novice teacher. The study addressed the relationship with a focus on learning for both the mentor and the novice teacher through the lens of mentoring. This study employed a qualitative research methodology of intrinsic single-case study and narrative inquiry. The data sources included individual and pair interviews and recorded conversations between the pair as well as instructional and curricular resources as artifacts generated by the pair. To answer the research questions, the …

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

Criminalization Of Immigration, Emily Ryo, Jennifer M. Chacón, Cecilia Menjívar

Faculty Scholarship

This article presents a critical analysis of social scientific research from the past fifteen years on the criminalization of immigration in the United States. Our review reveals three central themes. First, although immigration law is considered federal civil law, immigration enforcement has become substantially intertwined with criminal law enforcement in ways that have broad-ranging and radiating effects on immigrant communities of color. Second, race plays an important bidirectional role in the increasing criminalization of immigration. Specifically, criminalizing immigration results in the racialization of certain immigrant groups as dangerous outsiders, and such racialization has the effect of sustaining and promoting the …

Copyrighting Style, Christopher Buccafusco

Faculty Scholarship

Does copyright law protect an artist’s style? The federal courts that have considered the question are equally split. They all agree, however, that the answer to the question resides in copyright law’s idea/expression distinction. According to this doctrine, ideas, techniques, and methods cannot be copyrighted, but expressions of ideas can be. The question courts have faced, then, is whether artistic style is an idea or a matter of expression. The answer, perhaps unfortunately, is that style is both.

This is unfortunate because, this Article argues, copyright law’s idea/expression distinction is inadequate to the task of determining the copyrightability of style. …

Secondary-Default Remedies: Should Harshness Limit Enforcement?, Steven L. Schwarcz

Faculty Scholarship

This Article examines a critical but largely unexplored issue in contract law: whether secondary defaults—that is, relatively minor or technical defaults not involving debt repayment— should justify enforcing severe contractual remedies. In the context of lending, this issue concerns whether those types of defaults should justify terminating financing commitments, accelerating the maturity of outstanding debt, and foreclosing on collateral, any of which can cause a firm’s failure. Although this issue arises constantly and its resolution can be critical to a firm’s survival, judges and lawyers lack clear answers. This Article analyzes and seeks to provide answers both under existing law …

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

Faculty Scholarship

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Cost–Benefit Analysis, Matthew D. Adler

Faculty Scholarship

This chapter will address the place of cost–benefit analysis (CBA) in constitutional law, by way of a case study. I’ll describe, and puzzle over, CBA’s absence from most U.S. constitutional doctrines, notwithstanding its major role in U.S. administrative law. The general questions that I seek to illuminate are by no means limited to the U.S. How might CBA figure within the tests that constitutional courts use to adjudicate alleged violations of constitutional rights? How might it serve to determine the structure of constitutional institutions? Would it be justified for CBA to play these doctrinal roles? But these general questions are …

Reconstructing The Meaning Of "Forty Acres And A Mule", Cynthia Nicoletti

Faculty Scholarship

This article offers a new interpretation of the land grant to freedpeople contained in General William T. Sherman’s Special Field Orders No. 15. Issued in January 1865 at the end of the Civil War, Sherman’s Orders are widely considered to be the origin of the government promise to endow freedpeople with “forty acres and a mule” as they transitioned from slavery to freedom. As such, the Special Field Orders have played a central role in shaping the cultural memory of the Civil War, historical accounts of Reconstruction, and contemporary debates over reparations for slavery. They have also been misunderstood and …

Affording Oral Tradition Evidence Due Weight Before The International Court Of Justice, Terrence Neal

Faculty Scholarship

Oral traditions are irreplaceable sources of historical information, particularly with regard to Indigenous Peoples’ histories and cultures. However, when states have submitted oral traditions as evidence of historical practices, events, and circumstances in cases before the International Court of Justice (“Court”), the Court has been reluctant to afford them significant weight. This Article, which is the first detailed study on the Court’s treatment of oral traditions, examines whether the Court is failing to provide them due or appropriate weight. Based on historical, archaeological, and anthropological research, it establishes that oral traditions can be as reliable as written documents for reconstructing …

Artificial Intelligence And Procedural Due Process, Brandon L. Garrett

Faculty Scholarship

Artificial intelligence (AI) violates procedural due process rights if the government uses it to deprive people of life, liberty, and property without adequate notice or an opportunity to be heard. A wide range of government agencies deploy AI systems, including in courts, law enforcement, public benefits administration, and national security. If the government refuses to disclose the reasons why it denied a person bail, public benefits, or immigration status, serious due process concerns arise. If the government delegates such tasks to an AI system, the due process analysis does not change. One asks whether a person received adequate notice and …

Presidential Regulation, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

This Article documents and analyzes the rise of a new mode of economic governance: presidential regulation. Today, the President regularly bypasses not only Congress but also the executive branch’s own administrative agencies and directly imposes sweeping new economic regulations. President Biden, for instance, created new regulatory regimes governing producers of artificial-intelligence technologies, companies that trade in or hold the personal information of U.S. citizens, and companies that can increase the production of energy-efficient equipment and technology. During his first term, President Trump regulated the kinds of technologies that U.S. telecommunications companies can buy and sell, placed restrictions on the electrical …

Brief Of Professors Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, And Chantal Thomas As Amici Curiae In Support Of Petitioners In No. 24-1287 And Respondents In No. 25-250, Julian Arato, Rachel Brewster, Harlan Grant Cohen, David Singh Grewal, J. Benton Heath, Timothy Meyer, Gregory Shaffer, Chantal Thomas

Faculty Scholarship

No abstract provided.

Automating International Human Rights Adjudication, Veronika Fikfak, Laurence R. Helfer

Faculty Scholarship

International human rights courts and treaty bodies are increasingly turning to automated decision-making (“ADM”) technologies to expedite and enhance their review of individual complaints. These tribunals have yet to consider many of the legal, normative, and practical issues raised by the use of different types of automation technologies for these purposes. This article offers a comprehensive and balanced assessment of the benefits and challenges of introducing ADM into international human rights adjudication. We argue in favor of using ADM to digitize documents and for internal case management purposes and to make straightforward recommendations regarding registration, inadmissibility, and the calculation of …

The Solicitor General, Consistency, And Credibility, Margaret H. Lemos, Deborah A. Widiss

Faculty Scholarship

This Article offers the first comprehensive look at cases in which the Solicitor General (SG) rejects a legal argument offered on behalf of the United States in prior litigation. Such reversals have received considerable attention in recent years, as shifts in presidential administrations have produced multiple high-profile “flip-flops”—as the Justices sometimes call them—by the SG. Even those observers who defend the SG, including veterans of the office, caution that inconsistency in legal argument poses a threat to the SG’s credibility with the Court. Our goal is to better understand the circumstances that lead the SG to change its position on …

Collective Management Of Copyrights And Human Rights In An Age Of Technological Automation, Laurence R. Helfer, Giulia Priora

Faculty Scholarship

Collective management organizations (CMOs) across the world have remained key to the exercise and enforcement of copyrights and neighbouring rights of individual creators notwithstanding the rapid development of digital technologies and their decentralizing potential. This chapter provides an up-to-date legal analysis on the role and activities carried out by CMOs vis-à-vis the protection of creators’ rights as international human rights. By scrutinizing key treaty provisions and interpretative documents, the analysis reveals how a human rights framework supports numerous functions performed by CMOs. However, significant conflicts may arise from certain practices and policies of CMOs concerning, for example, mandatory membership, promotion …

Technologies Of Violence: Law, Markets, And Innovation For Gun Safety, Joseph Blocher, Christopher Buccafusco

Faculty Scholarship

Violence in the United States is distinctive in many ways, perhaps none more visceral and fundamental than the technologies with which it is practiced. American violence disproportionately involves guns, and because guns are such an effective tool of violence, confrontations involving them are disproportionately deadly. Decades of research confirm this "instrumentality effect, " and it is reflected in the broad, bipartisan agreement that the nation has a gun violence problem. The deep disagreement, of course, remains about how to address it, with most of the debate focused on regulating who can carry which guns, where, and how.

But fully understanding, …

The Judicial Administrative Power, Jonathan Petkun, Joseph Schottenfeld

Faculty Scholarship

Article III of the Constitution confines the “judicial Power of the United States” to the adjudication of “cases” and “controversies.” In practice, however, federal judges exercise control over, and spend their scarce time on, a wide range of activities that traverse far beyond any individual adjudication. Typically classified as a form of “judicial administration,” these activities span everything from promulgating the rules of the various federal courts to overseeing federal pretrial detention services or choosing federal public defenders.

This Article describes how judges became involved in these nonadjudicatory Article III activities, clarifies the activities’ relationship to Article III adjudication, and …

Bankruptcy Appeal Barriers, Jonathan M. Seymour

Faculty Scholarship

Appeals in bankruptcy do not look like appeals elsewhere in the federal court system. In particular, bankruptcy appeal barriers are strikingly distinctive. These barriers serve outright to block an appeal from being decided. An appellate court may dismiss an appeal, rather than consider the merits, if facts on the ground have changed so much since the original decision that providing a remedy to an appellant, even if victorious, would not be prudent. Take ongoing litigation in the Boy Scouts bankruptcy case. A plan of reorganization was confirmed fixing the entitlements of victims to compensation. Dissenting creditors argued bitterly the plan …

The Dangerous Rise Of Dual-Use Objects In War, Oona A. Hathaway, Azmat Khan, Mara R. Revkin

Faculty Scholarship

Each day, the news brings stories of military attacks on schools, hospitals, apartment buildings, electrical facilities, and other critical civilian infrastructure. The militaries attacking these objects often seek to justify the attacks by claiming that the civilian objects are being used by militants. Objects that are believed to have both military and civilian use are often referred to as “dual-use” objects. Even though the term has become common, international law does not recognize a “dual-use” object as a legally meaningful category. Rather, the postwar Geneva Conventions that lie at the core of modern international humanitarian law establish a bright line …

“Murder The Media”: Press Freedom, Violence, And The Public Sphere, Joseph Blocher

Faculty Scholarship

The first goal of this chapter is to argue that the press as an institution is entitled to special solicitude under the First Amendment, not only because it is textually specified in the Constitution or because it serves important roles such as checking public and private power, but because it can contribute to the marketplace of ideas in ways that a healthy democracy needs. In other words, the press as an institution can provide an important link between the First Amendment’s epistemic and democratic values. The chapter’s second goal is to provide a rough and preliminary sketch of the relationship …