Digital Commons Network^™

Valuing Future Lives, Daniel J. Hemel, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

Federal regulation often involves a tradeoff between monetary costs in the present and life-saving benefits in the future. A central question in regulatory cost-benefit analysis is how to assign a present dollar value to future lives so that future lives and present dollars can be compared. For regulations that are projected to prevent deaths years or decades down the road, agencies make two key analytical moves. First, they adjust the value of a statistical life upward to reflect the fact that society’s willingness to pay to save lives will rise as people become wealthier in the future. Second, they discount …

Leaning Into Absence: Lessons From Kony, Mark A. Drumbl

Scholarly Articles

This article begins with the confirmation of charges decisions undertaken by the International Criminal Court in the Kony case. These proceedings struggled with the reality of in absentia. This article addresses the high absentee rate among individuals against whom the International Criminal Court (ICC) has issued arrest warrants and notes the stark presence of absence in the ICC’s work as well as within the enforcement of international criminal law at large. This article suggests that international criminal lawyers lean into the prevalence of absence and reboot predominant collective thinking. One path forward is to truly and warmly embrace transitional …

Keeping Evidence Real, Anya Bernstein, Julia Simon-Kerr

Faculty Scholarship

Commentators largely agree that the Federal Rules of Evidence have problems. Expert testimony standards admit junk science. Impeachment rules chill defendant testimony. The hearsay regime defies consistent application and obstructs self-representation. The list goes on: Many rules fail to assist, or affirmatively thwart, jurors trying to make good decisions. Such shortcomings disproportionately harm those with the least power in the system, raising profound questions about whether the evidence code serves its statutory mandate—to promote truth and justice in court proceedings. In the face of widely recognized problems, the government body charged with managing the evidence code—the Advisory Committee on Evidence …

Sidelining The Public, Anya Bernstein, Glen Staszewski, Wendy E. Wagner

Faculty Scholarship

This Article challenges the widely held view that Congress is the American government’s institution closest to the people, while administrative agencies are unaccountable and unresponsive. Providing a systematic, side-by-side institutional analysis, we compare the actual practices and capacities of these two institutions to engage affected publics in policymaking. We find that despite the democratic bona fides of an elected legislature, agencies possess superior capacities, more evolved practices, stricter rules, and stronger incentives for meaningful public engagement. Yet these capacities have been eroded—particularly over the last 50 years—by intensifying legal, political, and managerial obstacles. The Supreme Court and political actors have …

Privacy’S Autonomy Thicket: Disentangling Choice, Consent And Control, Jordan Francis, Woodrow Hartzog, Neil Richards

Faculty Scholarship

When it comes to talking about autonomy, privacy law could use a little clarity. Its discourse uses terms like “choice,” “consent,” and “control” to evoke autonomy, but these terms are too rarely defined and too often used interchangeably, even though they can mean very different things. The three terms have become entangled in a way that has become confusing and counterproductive. We call this problem “privacy’s autonomy thicket,” and it matters because it encourages talking past each other in policy debates, enabling the redefinition of these terms in misleading ways that produce weak and disempowering “notice and choice” regimes.

In …

Beyond Price: How Platform Power Shapes Demand Allocation In Online Hotel Channels, Ling Ling, Timothy Webb, Zvi Schwartz

Human Movement Studies & Special Education Faculty Publications

Rate disparity remains a widely used but poorly understood pricing strategy in the hotel industry. While previous research generally assumes that lower prices shift demand toward less expensive channels, this study investigates whether such effects occur in practice. Using high-frequency booking and pricing data from five full-service hotels across multiple online travel agencies (OTAs), we analyze how rate disparity relates to the distribution of demand across channels. The findings show that the impact of price differences is limited, highly non-linear, and strongly dependent on contextual factors. Channel market power and hotel-specific characteristics seem to play a more significant role than …

Bloodstain Pattern Analysis And The Gatekeeping Role Of Canadian Courts, Sara Gordon

All Faculty Publications

Despite its long history of admission throughout North America, there appears to be no published Canadian case subjecting bloodstain pattern analysis to the special scrutiny Canadian law demands for novel or contested scientific evidence. Instead, courts have admitted the evidence based largely on the training and experience of forensic examiners, taking it for granted that the field is sufficiently reliable. However, the application of the White Burgess framework reveals that there are serious and severe concerns about the underlying scientific validity of the technique which should render it generally inadmissible. At Stage One of White Burgess, bloodstain pattern analysis fails …

Race And Racism In Canada’S Immigration Detention System, Efrat Arbel, Prasanna Balasundaram, Hanna Gros, Nana Yanful

All Faculty Publications

Race and Racism in Canada's Immigration Detention System is the first comprehensive, independent study to examine race and racism in Canada's immigration detention system. Grounded in rigorous legal analysis and qualitative research, the study draws on interviews with 50 participants, including people with lived experience of immigration detention, as well as lawyers, paralegals, and service providers who work in immigration detention. The research was guided by an advisory board of people with lived-experience in immigration detention and co-led by a collaborative research team.

Model Law? Template Legal Culture And The Global Production Of Environmental Law, Natasha Affolder

All Faculty Publications

Lawyers build from templates. Accounts of how law is made rarely mention them. New legislation tends to present itself as original. It is almost never made from scratch. This article makes the hidden process visible. It does so through a study of the near-global spread of environmental impact assessment (EIA) legislation since 1969, using computer-assisted textual similarity analysis to trace what I expected to be identifiable model laws and clear lines of legal inheritance. The search yielded instead a transnational repertoire of legal fragments, repeatedly recombined into new legislative forms across different legal traditions, languages and decades. EIA's legislative spread …

Was The Early U.S. Tax Treaty Program A One-Man Show?, Wei Cui

All Faculty Publications

This article examines the origins of the U.S. tax treaty program from the mid-1930s to the early 1950s. Drawing on congressional records and previously unexamined Treasury and State Department archives, it argues that the program was shaped to an extraordinary degree by a single Bureau of Internal Revenue official, Eldon P. King. Far from merely administering treaty policy, King effectively created and directed it: he developed legal justifications for treaty negotiations, selected negotiating partners, led negotiations, managed relations with the State Department, and helped secure Senate acceptance of the resulting agreements. The article shows how King transformed the limited treaty-related …

A Qualitative Study Of Undergraduate Underrepresented Minoritized Students’ Online Learning Experiences, Susanne Morris

Theses and Dissertations--Curriculum and Instruction

This dissertation reports a qualitative secondary analysis of 37 semi-structured interviews with 40 undergraduate underrepresented minoritized (URM) students. Guided by social constructionism and intersectionality, the study explores how students make sense of online learning as a sociomaterial environment, attending to perceptions of constraints, affordances, and missing or misaligned signifiers. Interviews were analyzed using Braun and Clarke’s Reflexive Thematic Analysis to examine how institutional norms and course design shape what students experience as doable, safe, and meaningful. The study offers insight relevant to research and practice in equity and online learning.

Adolescent Relationships With Digital Actors And Their Influence In A Classroom Setting: An Interpretive Case Study, Kerry A. Hancock

Theses and Dissertations--Curriculum and Instruction

In this post-COVID-19 society students are strongly influenced by their use of digital text and electronic devices. The assumption of the study was that if students spend time with devices and digital text that it might be possible for them to develop relationships with the non-human actors that exist as part of the learning environments in schools. This  interpretive case study rooted, in Posthumanist ideology, used Latour’s Actor Network Theory to approach data collection.

A comparative approach was adopted for this interpretive case study research and data were collected in three stages: initial classroom observation and analysis to determine the …

Enhancing International School Implementation Capacity: Supporting Contextualized Learning At An International Baccalaureate School In China, Christopher J. Hayden Iv

Theses and Dissertations--Educational Leadership Studies

International schools allocate substantial resources to implement progressive curricular innovations; however, the advantages offered by these developments are contingent on their effective execution within classroom settings. This mixed methods action research (MMAR) study examined the implementation of the International Baccalaureate (IB) Global Context (GC) Strategy in the Middle Years Programme (MYP) at an international school in China and asked how the school might strengthen its capacity to enact this and similar innovations. Following a sequential MMAR design, a reconnaissance phase combined a whole-staff survey (n=87) with qualitative interviews to diagnose the individual, organizational, and contextual factors shaping implementation. Analyses identified …

Unveiling The Shadows: An Exploratory Study On Ghostwriting, Gray Markets, And The Ethics Of Contract Cheating, Micah Crawford

Theses and Dissertations--Educational Policy Studies and Evaluation

Contract cheating has become an increasingly complex challenge for higher education, particularly as digital platforms, global academic labor markets, and generative artificial intelligence reshape the production and detection of academic work. While much of the existing literature examines contract cheating from the perspectives of students, faculty, and institutions, less attention has been given to the individuals who produce ghostwritten academic work. This dissertation addresses that gap by exploring how shadow scholars understand their roles, ethical boundaries, and participation within the academic integrity ecosystem.

Using an exploratory qualitative design, this study draws on twelve semi-structured narrative interviews with six freelance academic …

Are Multiple-Choice And Open-Ended Assessments Consistent In Predicting Science Achievement? Multivariate Multilevel Evidence From Chinese Students And Schools, Quan Wu

Theses and Dissertations--Education Sciences

A multivariate multilevel model was developed and applied to secondary data from a large-scale science assessment of Grade 8 students in China to examine the consistency between multiple-choice and open-ended formats of assessment in predicting science achievement at the student and school levels. The sample included 44,534 students from 159 schools across two regions. Multivariate multilevel results indicated a moderately positive consistency between the two formats at the student level and a strongly positive consistency at the school level; these consistencies were stable across regions and did not depend on student and school characteristics. The findings have important practical implications …

The Operationalization Of Student Success: How Institutions And Divisions Of Student Affairs Define And Align Non-Academic Student Success With External Accountability Expectations, Madeline N. Trudeau

Theses and Dissertations--Educational Policy Studies and Evaluation

This qualitative multi-case study investigates how higher education institutions and their divisions of student affairs publicly discuss and define non-academic student success through their strategic planning, within the context of external pressures from state legislatures and accrediting bodies. Grounded in Organizational Learning Theory, Transition Theory, and Theory of Student Involvement and Engagement, this study analyzes the alignment and divergence between external policy expectations and internal institutional and divisional strategic plans.

The findings reveal a fundamental tension; while external stakeholders increasingly demand quantifiable outcomes tied to economic productivity - like post-graduate wages and employability metrics - divisions of student affairs continue …

Good Faith And Certainty In Contract Law, Marcus Moore

All Faculty Publications

Does a general principle of good faith create too much uncertainty in  Contract Law? This article provides in-depth consideration of the controversy around this question.Reviewing a number of common arguments and reasonswhy good faith is said to be too uncertain, and responses to these, the article finds a complex picture rather than a simple answer. Recent Canadian experience with recognising a general principle of good faith in contractual performance suggests that at least two further details are critical to the potential for uncertainty: first, whether good faith operates as a freestanding duty or instead functions as a unifying principle that …

Efficient Preservation Of Old Methane-Derived Organic Carbon In Deep-Sea Surface Sediments, Rui Bao, Yangli Che, Mingzhi Liu, Naiyu Zhang, Yang Zhou, Lihua Dong, Shen Li, Owen A. Sherwood, Min Yu, Zongheng Chen, Shengxiong Yang, Nan Wang, Longhai Zhu, Jiawang Chen, Mutai Bao, Haoshuai Li, Luonan Chen, Weifeng Wu, Haiyue Ma, David J. Burdige

OES Faculty Publications

Methane released from the subseafloor is significantly attenuated during upward migration, yet the preservation of methane-derived organic carbon (OC) in global deep-sea sediments remains poorly understood. Here, we measured carbon isotopes coupled with temperature-ramped analyses on various methane seepage sediments. Our results reveal a correlation between the radiocarbon (¹⁴)C) content in deep-sea surface sediments and sulfate-methane transition depth. Notably, our findings suggest that a substantial amount of (¹⁴)C-depleted OC may originate from deep-seated methane and is efficiently preserved in surface seepage sediments. We propose that the efficient OC preservation is related to microbial-mediated aggregate formation at the seawater-sediment interface, where …

Safeguarding Public Pensioner Standing After Thole, Evelyn L. Stein

Vanderbilt Law Review

Today, public American pension funds hold over $6 trillion dedicated to rewarding the labor and stabilizing the retirements of millions of employees. These funds are facing increased scrutiny as activists draw more awareness to controversial investment strategies, resulting in litigation by plaintiffs arguing funds inappropriately prioritize goals other than financial returns. Structurally, many public funds operate with a defined benefit (DB) model, meaning fund beneficiaries are guaranteed specific payouts based on factors such as years of service and age at retirement. Because of this DB model, such litigation has been stymied by the U.S. Supreme Court's decision in Thole v. …

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

Reader-Character Identity Interdependence: An Empirical Investigation Of Congruence In Identity And Reading, Millicent Weber, Rachel Noorda

English Faculty Publications and Presentations

This article examines the mutually constitutive relationship between identity, social participation, and reading, through a survey of 3089 readers in the United States, United Kingdom and Australia conducted in 2022. This is driven by an intersectional call to take seriously individualised experiences of identity including diverse and overlapping identities, consider multiple marginalisations, and interrogate normative modes of thinking. This connects to a commitment shared with other scholars of reading practice to undertake research that is simultaneously descriptive and critical. This forms the basis for our survey design, comprehending substantial engagement with readers’ reporting of their own reading practices. We work …

“Spinning Wheel Got To Go Round”: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Tom Kierner, Stephen T. Middlebrook

Articles by Maurer Faculty

The past year reminds us of the rock lyrics from “Spinning Wheel” on Blood, Sweat & Tears’s 1968 self-titled record—“What goes up, must come down/Spinning Wheel got to go round”—because there have been many changes in strategy and reversal of policy since President Trump’s inauguration in January 2025. Our Survey documents these changes and reversals as they affect electronic payments and financial services. This year’s Survey also reports on warnings from state and federal regulators aimed at bank and non-bank providers of consumer financial services. Part II examines an FTC enforcement action related to the unfair and deceptive marketing of …

Titletown Madness: Title Insurance Through The Lens Of Tribal Jurisdiction And The Lasting Legacy Of Allotment, Nicholas Stamates

Marquette Law Review

American Property Law and Federal Indian Law have a conjoined history going back to Johnson v. MʻIntosh, 21 U.S. (8 Wheat.) 543 (1823), where the Supreme Court ruled that private citizens could not purchase aboriginal title from Indians. Decades later, the Dawes General Allotment Act of 1887 resulted in non-Indian fee simple landowners purchasing what the Federal Government deemed “surplus” federal land in the un-allotted former Indian land, which is still part of the Reservation’s legal jurisdiction. An unintended consequence of this process, which resulted in a checkerboard pattern of land title in Indian Reservations across the country, has recently …

The Boundaries Of Law And Politics: Disputes Over Wisconsin's Maps For Political Districts Have A Long History, But The Last Few Years Have Brought Especially Intense Court Battles, John D. Johnson

Marquette Law Review

Wisconsin’s 2020 redistricting cycle was long, bitterly contested, and subject to dramatic reversals of fortune. Yet perhaps the most unusual feature of the whole process was how it ended in 2024: with a legislative redistricting plan passed by Republican legislators and signed by a Democratic Governor. Redistricting of the Wisconsin Legislature by divided political branches had occurred only three times prior in state history—in 1852, 1856, and 1971.

Redistricting may once have seemed a matter primarily of interest to political insiders. But the boundaries of legislative districts have great impact on politics and power, as the events of the last …

Black Suburbanization: Potent Hope Or Illusory Promise?, Mary Jo Wiggins

Marquette Law Review

Suburbs are popular. People like living in them, and scholars like studying them. For the first time, more Americans live in the suburbs than in central cities. Perhaps more noteworthy is that more Black Americans live in the suburbs than ever before. Given these realities, it is not surprising that the suburbs have become a laboratory for analyzing a host of political, legal, and economic questions.

In previous scholarship, I examined the complex phenomenon of Black suburbanization through the lens of two communities: South DeKalb, Georgia and Prince George’s County, Maryland. These communities were part of what I called the …

Justified: Reasonable Beliefs, True Beliefs, And Self-Defense, Michael D. Cicchini

Marquette Law Review

A defendant is charged with criminal battery and asserts self-defense at trial. The defense calls witnesses who would testify that, about ten minutes before the fight, the alleged victim said he was going to “find” the defendant and “end him.” But the trial judge excludes the testimony because the threat, while heard by several witnesses, was not communicated to the defendant. Therefore, the judge says, the threat cannot be relevant in determining whether the defendant “reasonably believed” he was in imminent danger at that time.

This Article explores the theoretical foundation for this common ruling and demonstrates why it is …

Toward A Framework For A Law Of Electronic Intangibles Liability, James M. Beck, Alexander M. Deguire

Marquette Law Review

Products liability law was built for a world of gears, levers, and physical failure. It now confronts a marketplace dominated by software, data, algorithms, and artificial intelligence—objects that do not break, shatter, or wear out, but nevertheless cause real and sometimes catastrophic harm. Courts and commentators increasingly respond to this tension by asking whether these digital systems are “product-like” enough to be squeezed into existing strict liability frameworks. This Article argues that this is the wrong question.

The Article traces the historical foundations of strict products liability; explains why courts have traditionally excluded intangibles from its reach; and examines recent …

Access Denied: The Injustice Of Plra Exhaustion, Rachel Kincaid

Marquette Law Review

Law students learn to “think like a lawyer” by studying appellate decisions that contain extensive reasoning and result from vigorous advocacy by lawyers on both sides. These well-reasoned decisions allow students to learn how to distill legal rules from judicial opinions: to focus on the rationale behind a court’s decision so that they might be able to predict how the court would deal with a different factual scenario. But this focus on extensively reasoned and argued appellate court opinions obscures the access-to-justice crisis plaguing our legal systems; most people cannot even afford to pay a lawyer to represent them, let …

A Matter Of Life And Death: Give Me All Of Your Money And I'Ll Give You Healthcare, Shilanka I. Lewis

Marquette Law Review

The Medicaid Estate Recovery Program (MERP) is a federal mandate requiring states to recover costs of long-term care and related services provided to Medicaid beneficiaries from their estates after death. This Article explores the core arguments supporting and opposing MERP, offering a balanced analysis of its ethical, legal, and economic dimensions. Proponents argue that estate recovery ensures fiscal responsibility by recouping taxpayer dollars and preventing wealth transfer from those who received public assistance to their heirs. Proponents contend that MERP upholds the principle that Medicaid is a need-based program and a payor of last resort. Conversely, critics argue that MERP …

Reining In State Judicial Conduct Commissions, Rebecca Frank Dallet

Marquette Law Review

There is a new threat to judicial independence: state judicial conduct commissions. These bodies are charged with holding judges accountable for violations of state ethics rules. But what was intended to be a shield for the public against judicial misconduct has instead been turned into a sword used against judges. As the judiciary has become more politicized, commissions are being overhauled to include more partisan political appointments. Unfounded complaints against judges are easy to file and to make public, despite confidentiality rules. And investigations of complaints may take many months, leaving judges in limbo as to what they can or …