Digital Commons Network^™

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

Brief In Support Of Respondents As Amici Curiae, Donald J. Trump, President Of The United States, Et Al. V. Rebecca Kelly Slaughter, Et. Al, No. 25-332, Andrea Scoseria Katz, Jonathan Gienapp

Scholarship@WashULaw

In the years since this Court’s decision in Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020), legal historians—including originalists—have unearthed a rich body of evidence challenging the conventional wisdom concerning the scope of the President’s removal powers at the Founding. Revisiting not only the Framers’ intellectual influences, but also their driving philosophical concerns and political incentives, this scholarship explains that removal authority was not understood to be vested exclusively in the President as a matter of settled constitutional law, but rather was permissibly exercised by various actors in various ways, intentionally not settled by the …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Scholarship@WashULaw

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts. Bringing together two lines of case-law-on …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

Scholarship@WashULaw

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

International Space Law Under The Trump Administration: Commerce And Security, Melissa (M.J.) Durkee

Scholarship@WashULaw

Early themes of the second Trump administration's orientation toward international space law include military assertiveness, privatization, and nominal diplomatic engagement. These themes carry significant implications for international space law. They pressure longstanding international legal ambiguities, widen existing geopolitical divisions, and raise questions about how public-private interdependence will shape state responsibility and the development of norms in space. This essay was prepared for a special issue of the American Journal of International Law that offers an introduction and overview of the U.S. government's actions across a wide range of international legal issues in the first six months of President Trump's second …

Rational Gridlock, Scott Baker, Michael D. Gilbert

Scholarship@WashULaw

We examine the design of lawmaking institutions when advocates have agenda setting power and there is randomness in the status quo laws eligible for reform. The institutional designer maximizes voter welfare. We find that the optimal arrangement consists of two lawmaking institutions that must agree to enact any reforms. The institutions do not share preferences with one another or with the median voter. As a result, gridlock arises: the institutions reject some reforms that the median voter favors. However, when reform succeeds, it tends to be modest in scope and to more closely track what the median voter prefers. The …

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Reflections On Translating Law And Economic Models For Lawyers And Law Professors, Scott Baker

Scholarship@WashULaw

Written as part of a keynote address for the 20th Annual Asian Law and Economics Conference, these remarks reflect on the way lawyers, judges, and law professors without economic training view and use law and economic models. After revisiting notably successes of classic results from the tort model – results that have penetrated the legal profession – it turns to the translation of more recent models of lawyer argumentation and precedent. Throughout, the point is to demonstrate how model insights can be used to help argue cases and distinguish precedent.

Viability As Abortion-Rights Orthodoxy, Susan Frelich Appleton

Scholarship@WashULaw

Borrowing a quotation from Justice Jackson’s influential opinion in West Virginia Board of Education v. Barnette, Professors Linda McClain and James Fleming have named their ambitious and illuminating new book “What Shall Be Orthodox” in Polarized Times. As Justice Jackson wrote in applying the First Amendment to protect school children with familial objections to a required flag salute: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act …

A Liberty-Balancing Approach To Crime, Sheldon Evans

Scholarship@WashULaw

At its core, the criminal legal system is an ecosystem of institutions that seek to balance liberty interests. The insightful theories and complex practices of crime policy coalesce around questions on how crime impacts the liberties of individuals and communities to be safe, and how this correlates with the deprivation of liberty from offenders through our punishment system. But modern criminal policy, most often associated with the problems of overcriminalization and mass incarceration, has wholly abandoned any such delicate and nuanced balancing. Instead, the system thrives on sacrificing the liberties of offenders in a perverse and ineffective regime that leads …

Grading Machines: Can Ai Exam-Grading Replace Law Professors?, Jens Frankenreiter, Kevin L. Cope, Scott Hirst, Eric A. Posner, Daniel Schwarcz, Dane Thorley

Scholarship@WashULaw

In the past few years, large language models (LLMs) have achieved significant technical advances, such that legal-advocacy organizations are increasingly adopting them as complements to—or substitutes for—lawyers and other human experts. Several studies have examined LLMs' performance in taking law school exams, finding mixed results. Yet there have been no published studies systematically analyzing LLMs' competence at one of law professors' chief responsibilities: grading law school exams. This paper presents results of an analysis of how LLMs perform in evaluating student responses to legal analysis questions of the kind typically administered in law school exams. The underlying data come from …

The Practice Of Executive Constitutionalism, Conor Clarke, Daniel Epps

Scholarship@WashULaw

The Executive Branch must inevitably interpret the Constitution. Although departmentalists and judicial supremacists disagree about the scope of the Executive’s constitutional authority, few believe the Constitution is only for the courts. But what are the practices through which the Executive Branch interprets the Constitution and translates those interpretations into concrete decisions? What is their history? And what, if anything, is distinctive about them? While a rich and growing literature has examined some aspects of these questions, scholars have not broadly canvased the most central tools by which the Executive Branch shapes and implements constitutional law, or considered what makes them …

Dark Patterns In The Opt-Out Process And Compliance With The California Consumer Privacy Act (Ccpa), Jens Frankenreiter, Van Hong Tran, Aarushi Mehrotra, Ranya Sharma, Marshini Chetty, Nick Feamster, Lior Strahilevitz

Scholarship@WashULaw

To protect consumer privacy, the California Consumer Privacy Act (CCPA) mandates that businesses provide consumers with a straightforward way to opt out of the sale and sharing of their personal information. However, the control that businesses enjoy over the opt-out process allows them to impose hurdles on consumers aiming to opt out, including by employing dark patterns. Motivated by the enactment of the California Privacy Rights Act (CPRA), which strengthens the CCPA and explicitly forbids certain dark patterns in the opt-out process, we investigate how dark patterns are used in opt-out processes and assess their compliance with CCPA regulations. Our …

Judicial Reform From The Inside Out, Daniel Epps, Marin K. Levy

Scholarship@WashULaw

Prepared for the Notre Dame Law Review’s Spring 2025 Federal Courts Symposium on the 100th Anniversary of the Judiciary Act of 1925.

The Judiciary Act of 1925, the subject of this Symposium, is known as “The Judges Bill” for a reason. The Justices of the Supreme Court, and Chief Justice Taft in particular, produced the Act and persuaded Congress to enact it. To modern eyes, such efforts seem indecorous; perhaps even scandalous. But in fact, Supreme Court Justices and other federal judges have been extensively involved in judicial reform throughout American history. This Essay examines participation by federal judges in …

Auditing Criminal Justice Minimalism, Trevor George Gardner

Scholarship@WashULaw

If criminal justice minimalism is a shared principle among criminal law scholars, it can help to clarify the quality of our disagreements. Every normative proposal in the criminal legal literature can be held to the minimalist standard—audited, so to speak, to account for the policy author’s minimalist claims. To this end, this Essay proposes a four-step framework by which to evaluate adherence to the minimalist principle, where each step serves as a hub for pointed scholarly debate regarding the path to minimalist criminal justice.

When Hard Cases Make Bad Law: A Theory Of How Case Facts Affect Judge-Made Law, Sepehr Shahshahani

Scholarship@WashULaw

“Hard cases make bad law” is one of the most famous aphorisms in Anglo-American law. Its insight is that when strict application of a generally sound law would impose a special hardship on someone, a court may be tempted to distort the law to avoid the hardship. Scholars have long debated the meaning and truth of the aphorism, but the debate has suffered from an imprecise conceptualization of what makes a case “hard.” This lack of precision limits our ability to disentangle and work through the important questions the aphorism raises about how the facts of a particular case affect …

An Anthology Of Interference In Law School Clinics, Peter A. Joy, Robert R. Kuehn

Scholarship@WashULaw

An Anthology of Interference in Law School Clinics explores interference in law school clinics in the United States, addressing its long history and the legal ethics, academic freedom, and First Amendment responses to that interference. Law clinics have faced interference in their representation of clients from elected officials, business groups, alumni and, at times, even their own school administrators. This interference has targeted clinics for providing individuals and nongovernmental organizations with legal representation on important matters, including racial and gender discrimination, environmental issues, prisoner rights litigation, death penalty cases, and immigration and human rights matters. In each instance, the interference …

Urban Isolation In The Digital Age- Examining The Sociological Impact Of The Digital Divide On Civic Life In U.S. Cities, Delante Clark

Graduate Scholarship and Creative Works

The digital divide remains a persistent barrier to civic participation and social inclusion in urban America, particularly in historically underserved communities. This mixed-methods study investigates how digital lack of access affects civic engagement, social capital, and community cohesion in U.S. cities, with a focus on Chicago’s South Side, Harlem New York, St. Louis, and Orlando. Drawing on quantitative data from recent surveys and qualitative insights from peer-reviewed literature, the research applies four sociological frameworks, Urban Sociology, Social Capital Theory, Critical Race Theory, and Symbolic Interactionism. These were used to examine the structural and interpretive aspects of digital isolation. Findings reveal …

Search Strategies For "Malondialdehyde-Acetaldehyde Modified Macromolecules And Resulting Autoantibodies In Rheumatoid Arthritis Pathogenesis: A Systematic Literature Review", Wenxian Zhou, Nozima Aripova, Hannah J. Johnson, Bryant England, Cynthia M. Schmidt, Daniel R. Anderson, Jill A. Poole, Tate Johnson, Michael J. Duryee, Geoffrey M. Thiele, Ted R. Mikuls

Search Strategies: Leon S. McGoogan Health Sciences Library

No abstract provided.

Exploring The Public Health Agency Of Canada’S And The Ontario Government’S Vaccine-Related Crisis Communication On X During The Covid-19 Pandemic, Sheraza Burney, Lorie Donelle Phd, Rn, Fcan, Anita Kothari

Publications

Crisis communication strategies must be tailored to the unique nature of social media. In response to the COVID-19 pandemic, public health agencies have widely used social media to address vaccine hesitancy and misinformation. This research utilized the social media pandemic communication model to describe the key themes disseminated through the Ontario government and the Public Health Agency of Canada’s vaccine-related crisis communication on X (formerly Twitter). Between 27 January 2020 and 6 April 2021, 1271 posts related to COVID-19 vaccination were collected from three official government X accounts——two from the province of Ontario and one from Canada. Posts were analyzed …

Passive Remote Monitoring Technologies’ Influence On Home Care Clients’ Ability To Stay Home: Multiprovincial Randomized Controlled Trial, Lorie Donelle Phd, Rn, Fcan, Bradley Hiebert, Grace Warner, Michael Reid, Jennifer Reid, Salimah Shariff, Emily Richard, Sandra Regan, Lori Weeks, Kathleen Ledoux

Publications

Background: Researchers in Nova Scotia and Ontario, Canada, implemented a passive remote monitoring (PRM) model of home care unique to their health system contexts. Each PRM model integrated tailored PRM devices (eg, motion sensors, cameras, and door alarms) into home care patients’ residences with the aim of linking patients, family and friend caregivers, and health care providers to support older adults’ aging in place. Objective: The purpose of this study was to examine the use of PRM technologies in the home to support older adults’ safe aging in place and avoidance or delay of higher levels of care. Methods: This …

Examining Racial Discrimination Index And Black-Years Of Potential Life Lost (Ypll) In South Carolina: A Real-Time Social Media Research, Yunqing Ma, Peiyin Hung Ph.D, Xiaotong Shen, Zhenlong Li, Curisa Tucker Phd, Rn, Jiajia Zhang Ph.D.

Publications

Purpose: Despite efforts to reduce health disparities, Black Americans still face higher mortality rates than Whites. Racism has been recognized as a significant social determinant of health. Using social media data, human-being qualitative coding, and AI, we created a county-level racial discrimination index, exploring its association with years of potential life lost (YPLL) rates. Methods: Through human-AI collaborative approaches using X/Twitter data, we calculated yearly county-level racial discrimination index (RDI)—number of racial discrimination posts per 100,000 in-county non-duplicated posts and examined the relationship between RDI terciles and YPLL per 100,000 non-Hispanic Black individuals. Annual data for the covariates were derived …

Self-Determined Strategies For Physical Activity Motivation Among Women With Polycystic Ovary Syndrome, Pamela J. Wright Phd, Ms, Med, Rn, Cen, Cynthia Corbett Phd, Rn, Faan, Bernardine M. Pinto Phd, Fapa, Fsbm, Fabmr, Michael D. Wirth Msph, Phd, Face, Robin M. Dawson Phd, Rn, Cpnp-Pc

Publications

BACKGROUND: According to clinical practice guidelines for polycystic ovary syndrome, first-line treatment includes performing 150 min of moderate-to-vigorous physical activity on most days of the week plus at least 2 days of resistance training. However, < 40% of women with polycystic ovary syndrome engage in regular physical activity, and about 60% are sedentary. Research evidence supports theory-informed physical activity interventions to improve motivation for physical activity. This study examined the fit of a behavioral change theory for women with polycystic ovary syndrome. OBJECTIVES: The purposes of this qualitative study were to analyze physical activity barriers through the lens of self-determination theory and identify motivational strategies that may promote initiation and maintenance of physical activity among women with polycystic ovary syndrome. DESIGN: The study involved a qualitative, descriptive design using theory-driven thematic analysis. METHODS: After emailing a demographic questionnaire and Personal Health Questionnaire-8 to screen for depressive symptoms, participants (n = 7) met three times via Zoom during the summer of 2021. Meetings were audio-recorded, transcribed, and analyzed. RESULTS: Participants were aged 33.9 (±8.1) years, premenopausal, mostly White (71%), educated (100% with at least some college), employed full-time (86%), and married (86%) with a mean depressive symptoms score of 6.4 (±3.4) indicating mild depression. Strategies such as a buddy system, physician support, technology, and behavioral change techniques are necessary to meet the psychological needs of autonomy, competence, and relatedness among women with polycystic ovary syndrome to help increase exercise motivation. CONCLUSION: Findings supported the use of self-determination theory by emphasizing that the social context of polycystic ovary syndrome can undermine physical activity behavior. Thus, physical activity interventions should consider the social context, peer support system, and mental health status of women with polycystic ovary syndrome, and include tailored programs and motivational strategies to help meet the psychological needs of autonomy, competence, and relatedness.

“I Feel Like It Gets Worse As I Get Older”: Perspectives Of Peri-Postmenopausal Women With Pcos, Pamela J. Wright Phd, Ms, Med, Rn, Cen, Cynthia F. Corbett Phd, Rn, Faan, Robin M. Dawson Phd, Rn, Cpnp-Pc, Charlotte Burts

Publications

Introduction: Polycystic ovary syndrome (PCOS) is a chronic endocrinopathy that transcends the reproductive years. Peri-postmenopausal women with PCOS remain at cardiometabolic risk or subsist with established comorbidity while continuing to contend with persistent PCOS signs and symptoms such as hirsutism. Evidence based information for peri-postmenopausal women with PCOS is scant. The purpose of this qualitative study was to explore the physical, psychosocial, and healthcare perspectives of peri-postmenopausal women with PCOS.

Methods: Peri-postmenopausal women with PCOS aged ≥43 years (n = 29) were recruited using ResearchMatch to participate in a virtual interview. Interviews were conducted using a semi-structured guide. The interviews …

Exploring Maternal Grief And Shame In Addiction Recovery For Pregnant And Early Parenting Women Using Community-Based Participatory Research: A Qualitative Descriptive Study, Phyllis Raynor Phd, Aprn, Pmhnp-Bc, April Hutto, Khushi Patel, Amber Goforth, Cynthia Corbett Phd, Rn, Faan, Delia West Phd, Kacey Eichelberger, Constance Guille, Nicole Nidey, Lori Vick Phd, Mat, Rn, Anef, Alain Litwin

Publications

Introduction: Little research has explored the constructs of grief and shame-proneness for pregnant and early parenting women seeking recovery from substance use disorders (SUD) and the impact on parents’ and children's well-being. Purpose: This study aimed to explore the contexts of reported guilt and shame and the associations with grief and loss among pregnant and early parenting women in SUD recovery.

Methods: Using a community based participatory research (CBPR) approach, we conducted in-depth interviews with 30 pregnant and early parenting women with SUD who were recruited from a residential drug recovery facility in the Southeastern United States. A qualitative descriptive …

Navigating “Being Seen”: Experiences Of Older Adult Arab Immigrants And Family Caregivers Accessing Health Care Services In Ontario, Selma Tobah, Lorie Donelle Phd, Rn, Fcan, Jodi Hall, Lloy Wylie, Sandra Regan

Publications

Immigrants to Canada face unique barriers to accessing health care including communication barriers, socioeconomic limitations, and a lack of health care system navigation knowledge. Arabs in particular face mainstream negative attitudes, propagated through political discourses as well as entertainment media. We sought to understand how older adult Arab immigrants and family caregivers accessed and experienced health care in Ontario. We conducted a critical constructivist grounded theory, using Charmaz’s approach to grounded theory. A critical constructivist grounded theory method asks not only “what” social processes are happening and “how” but also “why” and “who” benefits. Both older adult immigrant Arabs and …

Femtech In Context: A Critical Conceptual (Re)View, Danica Facca, Jodi Hall, Gail Teachman, Joanna Redden, Lorie Donelle Phd, Rn, Fcan

Publications

Emerging as a commercial category in 2016, ‘femtech’ has been publicly celebrated as a category of consumer-based digital health technologies designed to support the unmet and systemically marginalized health needs of women in areas such as menstruation, fertility, pregnancy, postpartum, and menopause, through data-driven apps, wearables, and self-diagnostic tools. Since its emergence, the term femtech has become culturally significant and has taken on a life of its own across commercial, public, and healthcare discourses. Despite the growth of femtech scholarship, clarity is lacking on how different disciplines have challenged the assumptions about sex, gender, health, technology, and innovation that shape …

The Association Between Social Determinants Of Health And Hiv Risk Behaviors And Hiv Testing Among Sexual And Gender Minority Individuals: A National Survey Study, Edith Nnenna Utaka, Xueying Yang Ph.D., Fanghui Shi, Huiyi Xia, Qingyang Li, Brooks Yelton Ma, Lmsw, Daniela Friedman Ph.D., Lorie Donelle Phd, Rn, Fcan, Xiaoming Li Ph.D.

Publications

Social determinants of health (SDOH) predispose Sexual and Gender Minority (SGM) individuals to HIV infection through risky behaviors and less HIV testing. This study used data from the 2022 Behavioral Risk Factor Surveillance System (BRFSS) survey to evaluate the association between composite measures of SDOH and HIV risk behaviors and HIV testing among adult SGM population in the US. SGM individuals were identified through two questions that asked about respondents’ sexual orientation and gender identity. Two primary outcomes of interest were HIV testing behavior and HIV risk behavior. SDOH was measured by ten items which were summed to get a …

Complex Role Of Digital Health Literacy In Awareness And Use Of Digital Sexually Transmitted And Blood-Borne Infections Testing: A Structural Equation Modelling Analysis Of The 2022 Getcheckedonline Survey, Ihoghosa Iyamu, Pierce Gorun, Sofia Bartlett, Geoffrey Mckee, Lorie Donelle Phd, Rn, Fcan, Hsiu Ju Chang, Rodrigo Sierra-Rosales, Devon Haag, Heather Nicole Pedersen, Nathan John Lachowsky, Catherine Worthington, Troy Grennan, Daniel Grace, Mark Gilbert

Publications

Background Although digital health literacy (DHL) is recognised as a determinant of access to digital sexually transmitted and blood-borne infection (STBBI) testing, empirical evidence about its contribution to access disparities remains limited. We applied multidimensional DHL measures to examine inequities in awareness and use of GetCheckedOnline, British Columbia’s (BC) publicly funded digital STBBI testing service. Methods We analysed data from GetCheckedOnline’s 2022 community survey of English-speaking BC residents aged ≥16 years who were sexually active in the past year. Outcomes were awareness and use of GetCheckedOnline (yes/no). DHL was measured using latent factors from the eHealth Literacy Scale: Information Navigation, …

Impact Of Online Interactive Decision Tools On Women’S Decision-Making Regarding Breast Cancer Screening: Systematic Review And Meta-Analysis, Patricia Villain, Laura Downham, Alice Le Bonniec, Charlotte Bauquier, Olena Mandrik, Tom Nadarzynski, Lorie Donelle Phd, Rn, Fcan, Raúl Murillo, Eleni L. Tolma, Sonali Johnson, Patricia Soler-Michel, Robert Smith

Publications

Background: The online nature of decision aids (DAs) and related e-tools supporting women’s decision-making regarding breast cancer screening (BCS) through mammography may facilitate broader access, making them a valuable addition to BCS programs. Objective: This systematic review and meta-analysis aims to evaluate the scientific evidence on the impacts of these e-tools and to provide a comprehensive assessment of the factors associated with their increased utility and efficacy. Methods: We followed the 2020 PRISMA (Preferred Reporting Items for Systematic Reviews and Meta-Analyses) guidelines and conducted a search of MEDLINE, PsycINFO, Embase, CINAHL, and Web of Science databases from August 2010 to …