Law Commons^™

Persistent Identifiers And The Next Generation Of Legal Scholarship, Aaron Retteen, Malikah Hall-Retteen

Faculty Scholarship

This article discusses the importance of the most common persistent identifiers in scholarly communications—the digital object identifier and the ORCID identifier—to legal scholarship. Persistent identifiers help preserve and disseminate academic content and data-driven services that leverage this information standard are now integrated into the publication process. Because legal publishers have not widely adopted persistent identifiers, the legal discipline cannot enjoy the benefits offered by this system. This article looks at barriers to implementing persistent identifiers among legal publishers and provides an anecdotal example of creating a sustainable workflow between the law library and student-run law journals.

Property, Psyche, And The Theory Of Tenancy: Independent And Interdependent Lease Law Covenants Through The Lens Of Cultural Psychology, Hanjo Hamann

Texas A&M Journal of Property Law

Is it property or contract? This question has perplexed scholars studying the residential lease for most of the last century. The present contribution combines the complementary perspectives of legal history and cultural psychology to clarify our theory of tenancy. From a historical perspective, I find that the oscillation of tenancy between competing doctrinal paradigms has resulted in a compromise solution rather than a coherent theory. While piecemeal reforms in the 1970s revised the doctrine of independent covenants, they did not provide a theoretical justification for increasing interdependence. From a psychological perspective, I suggest that such a theoretical justification may come …

Creating Persistent Law Review Article Links With Digital Object Identifiers, Valeri Craigle, Benjamin J. Keele, Aaron Retteen

Faculty Scholarship

A case study for how to use digital object identifiers (DOIs) to make online journals more accessible and improve their site user reports.

Reconceiving Argument Schemes As Descriptive And Practically Normative, Brian N. Larson, David Seth Morrison

Faculty Scholarship

We propose a revised definition of “argument scheme” that focuses on describing argumentative performances and normative assessments that occur within an argumentative context, the social context in which the scheme arises. Our premise-and-conclusion structure identifies the typical instantiation of an argument in the argumentative context, and our critical framework describes a set of normative assessments available to participants in the context, what we call practically normative assessments. We distinguish this practical normativity from the rationally or universally normative assessment that might be imposed from outside the argumentative context. Thus, the practical norms represented in an argument scheme may still be …

Norms Of Public Argumentation And The Ideals Of Correctness And Participation, Frank Zenker, Jan Albert Van Laar, Bianca Cepollaro, Anca Gâță, Martin Hinton, Colin Guthrie King, Brian N. Larson, Marcin Lewinski, Christoph Lumer, Steve Oswald, Maciej Pichlak, Blake D. Scott, Mariusz Urbanski, Jean H.M. Wagemans

Faculty Scholarship

Argumentation as the public exchange of reasons is widely thought to enhance deliberative interactions that generate and justify reasonable public policies. Adopting an argumentation-theoretic perspective, we survey the norms that should govern public argumentation and address some of the complexities that scholarly treatments have identified. Our focus is on norms associated with the ideals of correctness and participation as sources of a politically legitimate deliberative outcome. In principle, both ideals are mutually coherent. If the information needed for a correct deliberative outcome is distributed among agents, then maximising participation increases information diversity. But both ideals can also be in tension. …

Content Moderation As Surveillance, Hannah Bloch-Wehba

Faculty Scholarship

Technology platforms are the new governments, and content moderation is the new law, or so goes a common refrain. As platforms increasingly turn toward new, automated mechanisms of enforcing their rules, the apparent power of the private sector seems only to grow. Yet beneath the surface lies a web of complex relationships between public and private authorities that call into question whether platforms truly possess such unilateral power. Law enforcement and police are exerting influence over platform content rules, giving governments a louder voice in supposedly “private” decisions. At the same time, law enforcement avails itself of the affordances of …

The “End” Of Neutrality: Tumultuous Times Require A Deeper Value, Carol Pauli

Faculty Scholarship

This essay has observed that, when times are tumultuous, third parties who intend to be neutral may need some mooring beyond the norms that are shifting. It argues that neutrality is an unsatisfying value in such times and suggests that neutrals look to the deeper values of their field. It proposes human dignity as a good place to begin, and it invites others to explore whether an initial commitment to the inherent worth of every person would make a helpful difference in practice.

Adjudicating Identity, Laura Lane-Steele

Texas A&M Law Review

Legal actors examine identity claims with varying degrees of intensity. For instance, to be considered “female” for the U.S. Census, self-identification alone is sufficient, and no additional evidence is necessary. To change a sex marker on a birth certificate to “female,” however, self-identification is not enough; some states require people to show that they do not have a penis to be considered “female.” Similar examples of discrepancies in the type and amount of evidence considered for identity claims abound across identities and areas of law. Yet legal actors rarely acknowledge that they are adjudicating identity in the first place, much …

Children Are Human, Kim Pearson

Texas A&M Law Review

There are great benefits to be had should the United States, one of the global leaders in economic strength and political power, ratify the United Nations Convention on the Rights of the Child (“CRC”). The mystery of the United States’s ultimate reluctance to ratify the CRC, despite the nation’s central role in the drafting process, has been interrogated for years. Scholars and policy- makers have developed compelling narratives regarding obstacles to the United States’s ratification and implementation of the CRC. However well- reasoned the arguments for ratification are, there has been little progress in persuading the United States to ratify …

Countenancing Employment Discrimination: Facial Recognition In Background Checks, Kerri A. Thompson

Texas A&M Law Review

Employing facial recognition technology implicates anti-discrimination law under Title VII of the Civil Rights Act when used as a factor in employment decisions. The very technological breakthroughs that made facial recognition technology commercially viable—data compression and artificial intelligence— also contribute to making facial recognition technology discriminatory in its effect on members of classes protected by Title VII. This Article first explains how facial recognition technology works and its application in employee background checks. Then, it analyzes whether the use of facial recognition technology in background checks violates Title VII under the disparate impact theory of liability due to the known …

Higher Education Savings And Planning: Tax And Nontax Considerations, F. Philip Manns Jr., Timothy M. Todd

Texas A&M Law Review

Funding higher education is among the critical financial decisions made by individuals and families. There are myriad options. Yet, the conventional wisdom—namely using Section 529 Plans—may not be the optimal vehicle to effectuate this goal. Therefore, this Article discusses various strategies to plan, save, and pay for higher education. It compares various savings methods including gifts, UTMA accounts, Section 529 Plans, trusts, and other vehicles. The analysis explores both tax and non-tax considerations, including the effect of different strategies on financial aid, transaction costs, investor control, income taxes, gift and estate taxes, flexibility, and creditor protection. This Article concludes that …

The Revised Ncaa Division I Governance Structure After Three Years: A Scorecard, Brian D. Shannon

Texas A&M Law Review

As part of the August 2014 Division I Governance re-design, the NCAA Division I Board of Directors, acting on the recommendation of a Board-appointed Steering Committee, granted certain autonomous decision-making powers to the Autonomy 5 conferences and their sixty-five member institutions. In effect, this recommendation by the Board’s Steering Committee enabled the Autonomy 5 conferences to begin to adopt policy legislation independently from the rest of Division I. Accordingly, the Steering Committee developed and recommended a structure “designed to allow permissive use of resources or to otherwise enhance the well-being of student-athletes by any [Autonomy 5 institutional] member, [or] to …

Fulfilling U.S. Commitment To Refugee Resettlement: Protecting Refugees, Preserving National Security, & Building The U.S. Economy Through Refugee Admissions, Harvard Immigration And Refugee Clinical Program

Texas A&M Law Review

At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers …

A Spatial Critique Of Intellectual Property Law And Policy, Peter K. Yu

Faculty Scholarship

Although geography has had an important and lasting impact on the development of intellectual property law and policy, at both the domestic and international levels, geographical perspectives and spatial analysis have thus far not attracted much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields. Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals, the protection of geographical indications and the treatment of traditional knowledge and traditional cultural expressions.

This article aims to provide a systematic analysis of the linkage …

Use What You Choose: Applying Computational Methods To Genre Studies In Technical Communication, Brian N. Larson, William Hart-Davidon, Kenneth C. Walker, Douglas M. Walls, Ryan Omizo

Faculty Scholarship

This paper reports on the results of an intensive application development workshop held in the summer of 2015 during which a group of thirteen researchers came together to explore the use of machine-learning algorithms in technical communication. To do this we analyzed Amazon.com consumer electronic product customer reviews to reevaluate a central concept in North American Genre Theory: stable genre structures arise from recurring social actions. We discovered evidence of genre hybridity in the signals of instructional genres embedded into customer reviews. Our paper discusses the creation of a prototype web application, "Use What You Choose" (UWYC), which sorts the …

Identifying Criminals’ Risk Preferences, Murat C. Mungan, Jonathan Klick

Faculty Scholarship

There is a 250-year-old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision-making models suggest that criminals must be risk seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different from law-abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill informed, and may therefore …

Charging The Poor: Criminal Justice Debt & Modern-Day Debtors' Prisons, Neil L. Sobol

Faculty Scholarship

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons. Criminal justice debt is the primary source for this imprisonment.

Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist …

Behavioral Public Choice And The Law, Gary M. Lucas Jr., Slaviša Tasić

Faculty Scholarship

Behavioral public choice is the study of irrationality among political actors. In this context, irrationality means systematic bias, a deviation from rational expectations, or other departure from economists’ conception of rationality. Behavioral public choice scholars extend the insights of behavioral economics to the political realm and show that irrational behavior is an important source of government failure. This Article makes an original contribution to the legal literature by systematically reviewing the findings of behavioral public choice and explaining their implications for the law and legal institutions. We discuss the various biases and heuristics that lead political actors to support and …

Denial And Concealment Of Unwanted Pregnancy: "A Film Hollywood Dared Not Do", Susan Ayres, Prema Manjunath

Faculty Scholarship

The actual cases and two films examined in this essay challenge stock narratives of mothers who deny or conceal unwanted pregnancy as a monster, or a victim, and also challenge "legal norms, logic and structures" pertaining to unwanted pregnancy and neonaticide. This essay draws on films because of their influential power to "reach enormous audiences by combining narratives and appealing characters with visual imagery and technological achievement, ... stir deep emotions and leave deep impressions." For these reasons, Orit Kamir asserts that films are more compelling than "theoretical legal texts or even judicial rhetoric."

The two films examined -- Stephanie …

Shifting Paradigms Of Parochialism: Lessons For International Trade Law, Elizabeth Trujillo

Elizabeth Trujillo

Much of the study of international private law has focused on exploring differences in legal systems in light of domestic issues or harmonization. Much less emphasis has been on accepting these various parochial interests as part of a global legal structure. This preliminary study into what drives parochial attitudes can help international trade scholars observe the traditions engendering these differing parochial attitudes and their impact on trade. Through a pluralist lens and in borrowing from studies in the social sciences on parochialism, this paper attempts to bring to light a world of “hybrid legal spaces” that adds complexity to the …

Protection Of Traditional Knowledge, Srividhya Ragavan

Srividhya Ragavan

Originally published in Minnesota Intellectual Property Review 2.2 (2001).