Digital Commons Network^™

The Idea Of Air, Jonathan Skinner-Thompson

Publications

How we view air, especially clean air, has meaningful normative and practical implications. Today, it is commonly recognized as an exhaustible natural resource. But air was not always thought of as something to be conserved, developed, and used. This Article is the first to explore and interrogate that view.

The shift to seeing air as a resource started in the first part of the twentieth century. Previously, air was characterized by its limitless supply of oxygen: a pure public good. Over time, the quality of that good changed, and a precious resource emerged. That resource—especially its chemical and physical characteristics—inspired …

Separation Of Copyright Powers, Blake Reid

Publications

The United States Copyright Office’s multifarious roles in the U.S. copyright system have long prompted uncertainty about its position among the branches of the federal government. From its formal home in the Library of Congress, the chameleonic Office has accumulated a wide range of advisory, rulemaking, adjudicative, and administrative functions that have long prompted questions about both agencies’ exercise of dueling legislative and executive powers.

Despite its increasingly sprawling portfolio and unusual configuration, the Office has never faced a serious separation-of-powers reckoning—until now. In the span of just five days in May 2025, Donald Trump fired the Librarian of Congress …

Against A Medical Exception To Equal Protection, Govind Persad

Publications

Government regulations of medicine sometimes treat patients differently based on their race or sex. Does heightened scrutiny apply to such regulations—as is usual when law treats someone differently based on a protected characteristic? Or is there a medical exception to equal protection?

Recently, in United States v. Skrmetti, the Supreme Court upheld a law that restricted access to medical treatments for transgender minors. Though its holding did not rely on medical exceptionalism, its discussion reinvigorated interest in a "medical exception" to equal protection: that medical decisions are exempt from the searching review applied when governmental decisions consider protected characteristics.

For …

Advocacy Matters, Richard B. Collins

Publications

The Supreme Court’s 2022 Castro-Huerta decision was wrong on the points it discussed. It was doubly wrong for a reason it ignored. But the latter error was shared because all briefs and the dissenting opinion ignored it as well. The question presented was whether a nineteenth-century federal Indian country statute provided for exclusive federal jurisdiction over interracial crimes, or for concurrent authority with states. The Court held that the statute allowed concurrent jurisdiction. But it ignored the fact that Congress and the Court, until fairly recently, avoided concurrent federal-state jurisdiction over crimes. Had the self-styled originalist Justices taken their theory …

Jawbreaking And Counterboning, Blake Reid

Publications

FCC Chairman Brendan Carr’s public campaign of unlawful threats against television broadcasters, culminating in the high-profile preemption and later return to air of late-night host Jimmy Kimmel, provides an important natural experiment for the law of jawboning. The Kimmel-Carr episode highlights the challenges of legal remedies against government officials over even the most flagrantly coercive, unlawful, and public jawbones. It also highlights the importance of intermediaries refusing to comply with unlawful demands—what this Essay calls jawbreaking.

Using the Kimmel-Carr episode as a case study, this Essay proposes moving beyond voluntary incentives for jawbreaking to impose a mandatory duty to jawbreak …

Adversarial Certification Of Evidentiary Software, Nicholas G. Vincent, Bryan H. Choi, Eli Siems, Clay Halbert, Katherine J. Strandburg

Publications

No abstract provided.

Performing Within Performance: Gender Nonconformity In Drama, Eliana Lazzaro

Student Scholarship

No abstract provided.

Technology, Capabilities, And Power In The Indian Political Economy: A History Of Growth Without Development, Apremeya Sudarshan

Student Scholarship

No abstract provided.

A Feminist Analysis Of Forensic Psychology: Ethics, Power, And Practice In Carceral Systems, Sarah Mcgarry Gray

Student Scholarship

No abstract provided.

Heidegger And Eco-Anxiety: Constructing Ways To Deal With Eco-Anxiety Through Interpretations Of Heidegger, Leif Gajkowski

Student Scholarship

No abstract provided.

Imagining The Midwest Online: Place, Belonging, And The Rhetoric Of Official City Websites, Minh Chau Anh Nguyen

Student Scholarship

No abstract provided.

The Brady Materiality Standard, Brandon L. Garrett, Adam M. Gershowitz

Faculty Scholarship

The Brady doctrine requires prosecutors to disclose all favorable and material evidence to the defense. To effectuate that rule, the U.S. Supreme Court has defined materiality as a “reasonable probability” that the evidence would have affected the outcome at trial. But apart from that definition, the Court has resisted offering any further guidance to lower courts. While far too little is known about how Brady materiality claims are actually adjudicated, there is strong evidence that courts often reject Brady claims involving withheld evidence on the grounds that the evidence was not significant enough to be material.

To examine how Brady …

Mahmoud V. Taylor: Cause Or Effect Of Disruptions In Public Schools?, Richard B. Katskee, Ira C. Lupu

Faculty Scholarship

Mahmoud v. Taylor represents an extraordinary departure from long-standing constitutional norms about the rights of parents of children in public schools. In Mahmoud, the Supreme Court upheld a Free Exercise Clause claim by parents in Montgomery County, Maryland, who sought to have their children (grades K–5) excused from readings that contain LGBTQ characters and themes. The majority opinion by Justice Alito rests on a highly controversial reading of Wisconsin v. Yoder.

Part I of the paper provides the doctrinal and historical backdrop to Mahmoud, which reflects the acute tension between a once-narrow understanding of Yoder and the post-Obergefell backlash against …

Religious Riders And The Sherman Act, Bailey Sanders

Faculty Scholarship

Can corporations engage in anticompetitive behavior on the basis of religious belief? While the answer may seem like an obvious no, in fact this question has largely been overlooked. It has hovered at the margins of the debate over religious exemptions: Proponents of religious exemptions have essentially argued that there is no harm in providing such exemptions to businesses because a competitive market will ensure consumers who might be denied services or goods by a religious firm can still obtain those goods and services elsewhere. But what if religiously minded businesses act in ways that are specifically designed to limit …

Are Private Equity Funds Liable For Anticompetitive Acquisitions?, Aslihan Asil, Paulo Henrique Alcantara Ramos, Amanda Starc, Thomas Wollmann

Faculty Scholarship

Private equity acquisitions grew tenfold over the past two decades. Over the same period, their focus shifted from financial engineering to industry consolidation, raising antitrust concerns. Heightening these concerns, privately backed acquisitions of competitors historically escaped detection by federal antitrust authorities in their incipiency because they fell below the reporting thresholds of the Premerger Notification Program. However, academic studies and agency investigations are now unearthing these transactions. Most salient is a recent complaint filed by the Federal Trade Commission challenging a series of acquisitions stretching back ten years.

In the wave of litigation that is likely to follow this “groundbreaking” …

Uncertain Enforcement And Standing To Sue, Ernest A. Young

Faculty Scholarship

Plaintiffs with strong claims that a law is unconstitutional may yet fail to establish standing when the law is rarely enforced. Other statutes, like Texas’s unusual abortion law, may render challenges difficult by delegating enforcement to private parties who are difficult to identify in advance. Both problems arise from the assumption that the law shapes behavior only through sanctions imposed in enforcement proceedings. This view is mistaken, both jurisprudentially and empirically. Worse, it requires courts to ask two unanswerable questions: How likely is enforcement? And how likely does Article III require it to be? It also asks standing doctrine to …

Crypto Litigation And Market Efficiency, Robert E. Bishop, Bradford Levy, Frank Partnoy, Daniel Taylor, Andrew Yeh

Faculty Scholarship

This paper investigates, for the first time in the literature, the factors that should matter to courts in determining whether a crypto  market is “efficient,” meaning that prices are sufficiently responsive to information. Based on new empirical evidence and a series of event studies, we recommend a new judicial framework for assessing market  efficiency in crypto litigation.

Market efficiency tests based on event studies have played an important role in other areas of litigation, particularly securities litigation, where courts frequently rely on what have become known as the “Cammer factors.” Academics have not yet assessed the extent to which market …

The Foreign Commerce Power, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Faculty Scholarship

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Effect Of Provider Diversity On Racial Health Disparities: Evidence From The Military, Michael Frakes, Jonathan Gruber

Faculty Scholarship

We assess the relationship between the racial diversity of medical providers and racial health disparities in the use of preventive care and in patient outcomes. We use unique data from the Military Health System, where we observe providers as patients so that we can identify their race, and where moves across bases change exposure to provider race in a plausibly exogenous fashion. We consider patients with four chronic, deadly, but manageable illnesses, where the relationship with the provider may have the most direct impact on health. We find striking evidence that provider racial diversity leads to reduced disparities in maintenance …

The Eighth Amendment And Prison Staff-To-Sentenced Prisoner Sexual Violence, Matthew Lyskawa

Faculty Scholarship

In this Article, I provide the first comprehensive account of lower federal courts’ Eighth Amendment prison conditions jurisprudence regarding prison staff-to-sentenced prisoner sexual violence. I show that lower federal courts are systematically misunderstanding and misapplying Supreme Court case law in this context. The result is that sexually victimized prisoners must meet extremely burdensome doctrinal standards unique to sexual violence claims. Lower federal courts would faithfully follow Supreme Court precedent if they applied the excessive force standard to sexual assault claims and the conditions of confinement standard to sexual harassment claims. However, a faithful application of Supreme Court case law does …

Leveraging Ai, Iot, And Predictive Analytics For Crisis Management And Urban Resilience In Dubai, Suhail Bin Kalli

Theses

The thesis will discuss how smart technologies could be incorporated in the crisis management structures of Dubai to make the city more resilient. As Dubai grows more urbanized, it experiences increased problems with managing its crisis especially in the high population density places, traffic congestion, utility disruption, and extreme weather. This paper discusses how artificial intelligence (AI), the Internet of Things (IoT), and predictive analytics can be used to ameliorate the response to emergencies, manage the allocation of resources, and enhance the coordination between different agencies. The crisis management systems at Dubai are still ineffective despite the level of technologies …

Enhanced Pulsar Timing Precision For The Era Of Nanohertz Gravitational Wave Astronomy, Sofia V. Sosa Fiscella

Theses

In 2023, several international collaborations comprising the International Pulsar Timing Array achieved a major scientific milestone with the first detection of a signal in pulsar timing observations consistent with the signature expected from a stochastic gravitational wave background, created by an ensemble of unresolved supermassive black hole binaries in the early Universe. The next breakthrough in the field is expected to be the first detection of a continuous wave from a single such binary, which would allow us to better understand their evolution and that of our Universe. However, this feat will require unprecedented precision in our timing measurements. To …

Predicting Student Academic Performance Using Behavioural And Parental Engagement Data From Learning Management Systems, Saeed Alfalasi

Theses

This paper explores how behavioral, academic, and parental engagement data provided within the xAPI-Edu-Data dataset can be used to predict the academic performance of students when training on machine learning models with supervised learning. Due to the developing demands of the data-driven initial selection of the learners under risk, the study will create a valid and explainable predictive model that can consider the most significant factors of student success in Learning Management System (LMS). The research is based on behavioral engagement and self-regulation learning theories; the observations included in the analysis of student interaction, i.e. resource usage, classroom engagement and …

Understanding Computer-Mediated Human Experience In Digital-Physical Hybrid Space, Jiangnan Xu

Theses

With the rapid development of mobile and immersive technologies, the boundary between the digital and real world is increasingly blurred, giving rise to hybrid spaces. Hybrid spaces have permeated daily life and reshaped spatial meaning-making and social interaction. Despite their growing prevalence, empirical understanding of human experiences in hybrid spaces remains limited. If left unexamined, hybrid spaces risk becoming technology-centered rather than human-centered environments that overlook socio-cultural dimensions, potentially leading to harmful consequences for individuals and society. To investigate human experience in hybrid spaces, this thesis comprises five studies and uses gameful systems as research probes. Prior literature identifies collaboration …

Predicting Undergraduate Fallout And Success, Ammar Ahmed Alzarooni

Theses

Universities need to uncover students who are likely to drop out early and do something about it. It should be easy to find and use this information. This thesis evaluated interpretable machine-learning models (MLMs) for predicting three final student outcomes including Dropout, Enrolled and Graduate, using solely demographic, administrative/financial and first-semester academic variables. Study employed publicly accessible Portuguese UCI student retention dataset (4,424 records) and incorporated end-of-Semester-1 feature window to prevent look-ahead leakage and align with actual advising cycles. We trained and compared models using stratified validation, explicit class-imbalance handling and decision-threshold optimization to make dropout detection most critical factor. …

No Harm, No Foul: Investor Loss And The Future Of Sec Disgorgement, Evan Barth

Western New England Law Review

It is a foundational principle of law that no one should profit from their own wrong. In the securities context, the Securities and Exchange Commission (SEC) enforces that principle through disgorgement, a remedy designed to deprive violators of unjust enrichment and deter misconduct. Although disgorgement has long played a central role in securities enforcement, its legal scope has recently become unsettled. In Liu v. SEC, the Supreme Court held that disgorgement must maintain traditional equitable principles. Shortly thereafter, Congress amended the securities laws providing the SEC its authority for disgorgement.

These developments have led to a circuit split over how …

Paying Up To Uncle Sam: Fbar Penalties, The Eighth Amendment’S Excessive Fines Clause, And A New Circuit Split, Christopher J. Nasta

Western New England Law Review

The Bank Secrecy Act requires those with foreign financial accounts to file a Report of Foreign Bank and Financial Accounts (FBAR) with the United States Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN). Those who do not file are subject to a variety of criminal and civil penalties.

The Eighth Amendment of the United States Constitution provides that excessive fines cannot be levied by the American government against individuals. How does this apply to those with foreign financial accounts who willfully choose not to file the required reporting forms with the United States government? A circuit split has arisen …

Tempering Trademark Tactics: Alloying Anti-Slapp Laws With Massachusetts’ Proven Petition Principles, Brian A. Pattengale

Western New England Law Review

Legitimate criticism of corporate actions or rights creates a free speech dilemma. When speech implicates or even indirectly relates to a trademark, costly litigation can arise where a plaintiff trademark holder is positioned to, or even obliged to, bury a defendant with numerous attendant claims only tangentially related to substantive trademark issues. If those claims are well-pled, the trademark holder succeeds in defeating constitutional speech rights unless the defendant mounts First Amendment defenses against the attendant claims at great cost.

Where a defendant’s speech—trademark or otherwise—is of public value, such lawsuits have been termed strategic lawsuits against public participation (SLAPPs). …

Evolving Execution Methods: The Constitutionality Of Nitrogen Hypoxia Through Pain, Precedent, And Practicality, Reem Haikal

Western New England Law Review

Method-of-execution challenges have intensified as lethal injection protocols face chronic instability. This Article evaluates whether execution by nitrogen hypoxia violates the Eighth Amendment and argues that it does not. The analysis applies Baze and Glossip to two questions: whether nitrogen hypoxia presents a substantial risk of severe pain and whether a feasible and readily implemented alternative would materially reduce that risk. This Article synthesizes historical Eighth Amendment principles with the contemporary record from executions by nitrogen hypoxia, related litigation materials, medical testimony, and physiological literature on inert-gas hypoxia.

The evidence indicates that nitrogen hypoxia typically produces rapid loss of consciousness …