Social and Behavioral Sciences Commons^™

Pandora's Loot Box, Sheldon Evans

Scholarship@WashULaw

The emerging trend of loot boxes in video game platforms continues to expand the shifting boundaries between the real and virtual world and presents unique insights into the impact each world should have on the other. Borrowing their design from the gambling industry, loot boxes operate as a hybrid between slot machines and trading cards. A consumer pays real-world money to buy a virtual box without knowing its contents. Upon opening the box, the consumer receives a virtual good that may be of great value, but more commonly is of little or no value. This Article contributes a novel theory …

International Environmental Law At Its Semicentennial: The Stockholm Legacy, Melissa (M.J.) Durkee

Scholarship@WashULaw

The 1972 United Nations Conference on the Human Environment produced the Stockholm Declaration, an environmental manifesto that forcefully declared a human right to environmental health and birthed the field of modern international environmental law. The historic event powerfully “dramatized . . . the unity and fragility of the biosphere,” sparking a remarkable period of international legal innovation and cooperation on environmental protection in the decades to come.

The Stockholm Declaration can be rightly celebrated for putting environmental issues on the international legal agenda and driving the development of environmental law at the domestic level around the world. At the same …

Comments Of The Cordell Institute On The Prevalence Of Commercial Surveillance And Data Security Practices That Harm Consumers, Neil M. Richards, Woodrow Hartzog, Jordan Francis

Scholarship@WashULaw

These comments are a response to the Federal Trade Commission's 2022 advance notice of proposed rulemaking (“ANPR”) requesting public comment on the prevalence of commercial surveillance and data security practices that harm consumers (Commercial Surveillance ANPR, R111004).

In an increasingly digitized world, data collection, processing, and transfer have become integral to market interactions. Our personal and commercial experiences are now mediated by powerful, information-intensive firms who hold the power to shape what consumers see, how they interact, which options are available to them, and how they make decisions. That power imbalance exposes consumers and leaves them all vulnerable. We all …

The Gdpr As Privacy Pretext And The Problem Of Co-Opting Privacy, Neil M. Richards

Scholarship@WashULaw

Privacy and data protection law's expansion brings with it opportunities for mischief as privacy rules are used pretextually to serve other ends. This Essay examines the problem of such co-option of privacy using a case study of lawsuits in which defendants seek to use the EU’s General Data Protection Regulation (“GDPR”) to frustrate ordinary civil discovery. In a series of cases, European civil defendants have argued that the GDPR requires them to redact all names from otherwise valid discovery requests for relevant evidence produced under a protective order, thereby turning the GDPR from a rule designed to protect the fundamental …

The Surprising Virtues Of Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

Defending The Defenders: Why Bureaucratic Independence Is A Necessary Supplement To Judicial Defense Of Democracy The Specter Of Dictatorship: Judicial Enabling Of Presidential Power, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland, as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature on democratic “backsliding” or “decline” proposes a menu of “guardrails” for shoring up democracy from gradual collapse. Broadly, these guardrails fall under two headings: I call one judicial, the other bureaucratic. The former looks to the power of judicial review, under which courts may invalidate enactments that threaten, not just the Constitution, but the very democratic …

Revisiting America's Guardrails The Constitution And Democratic Erosion Symposium, Andrea Scoseria Katz

Scholarship@WashULaw

A familiar story is being observed in countries ranging from Brazil to Australia, the United States, and Poland as elected executives deploy a populist threat narrative to politicize the rule of law and entrench themselves in power. Out of the academy, a growing literature proposes a menu of “guardrails” for shoring up democracy from backsliding or decline. Some see guardrails in society and culture, calling for rebuilding civic norms of tolerance. Others call for stricter rules in administering elections, to prevent undue influence. Others call for greater judicial intervention, tasking courts with striking down enactments that threaten the constitution or …

Unresponsive Judicial Review: How Formalism On The American Bench Thwarts Democracy Defense, Andrea Scoseria Katz

Scholarship@WashULaw

At a time when worldwide democratic decline is of grave concern, Rosalind Dixon’s Responsive Judicial Review is vital and timely. Dixon sketches an attractive vision of courts’ highest role as one of democracy-defense: protecting free and fair elections, ensuring rights and freedoms remain in vigor, muscularly enforcing checks and balances. Granted, argues Dixon, “responsive” courts must exercise their powers in a context-sensitive way; courts in fraught environments cannot get away with quite as much entrepreneurial judging as their counterparts, and they should tailor a remedy to ensure, one, its own feasibility, and two, the court’s survival. The pragmatic character of …

No New Tax Cuts? Examining The Rescue Plan's New State Tax Limits, Conor Clarke, Edward Fox

Scholarship@WashULaw

In this article, Clarke and Fox examine the American Rescue Plan Act’s restrictions on state tax cuts, arguing that the restrictions are a variation on more familiar maintenance-of-effort provisions. These provisions are common, and are designed to help ensure that federal grants supplement rather than supplant state spending by requiring the state to maintain its level of spending on a program. Clarke and Fox conclude that the Rescue Plan’s requirements create similar incentives, and argue that the similarity makes it more likely that the act’s tax provisions are consonant with the Constitution’s spending clause.

Relationships Between Stress Self-Management, Social Support, And Health In Hispanic Informal Caregiver Burnout Prevention, Nicole Alexandra Mas Román

Walden Dissertations and Doctoral Studies

Burnout syndrome is a psychological disorder characterized by physical, emotional, and mental distress and exhaustion resulting in feelings of depression, anxiety, irritability, and negative attitudes. If left unattended, burnout syndrome can lead to new or worsening health outcomes. The purpose of this nonexperimental quantitative study was to examine the relationship between stress self-management, perceived social support, health status, and burden among Puerto Rican informal caregivers. The theoretical foundations for this research were the informal caregiving integrative model and the individual and family self-management theory. Survey data were collected from 415 participants. Multiple regression analyses were performed to determine the relationship …

Appraisal Of Institutional Antimicrobial Stewardship In Selected Public Health Facilities In Nigeria, Joshua Olusegun Obasanya

Walden Dissertations and Doctoral Studies

The misuse of antimicrobials (AM) constitutes a huge problem in developing countries, including Nigeria, posing severe public health threats to the populace’s health. Misuse contributes to the high consumption of AM, driving the emergence and spread of antimicrobial resistance (AMR). Establishing functional antimicrobial stewardship (AMS) programs at the health facility levels is recognized as an effective and efficient strategies to tackle AMR. Literature is replete with evidence of poor prescription practices, but few studies assessing the factors contributing to inappropriate use of AM in Nigeria exist. The purpose of this study was to improve the understanding of AMS practice at …

The Imperatives Of Political Will For Revenue Diversification In Delta State Nigeria, Benson Chukwuweike Ojoko

Walden Dissertations and Doctoral Studies

Proceeds from crude oil export account for about 90% of the revenue of the federal, state, and local governments in Nigeria. Given the vagaries of the international oil market, scholars have advocated the need for the government to look beyond oil for other revenue sources with little or no success to date. Despite the plethora of research on the phenomenon of political will, there is no research on how the construct affects revenue diversification at the subnational level. This study examined how central political will is in the design of expansionary revenue policies in Delta State, Nigeria. Developing an understanding …

Mechanism And Methods Of Early Prevention Of Bank Insolvency, Morgan Alexander Fox

DLSU Business & Economics Review

Early detection of the financial condition of commercial banks is especially relevant in modern conditions of economic turbulence related to the global COVID-19 pandemic. The article provides a brief overview of the applied methods in the early detection of financial problems and prevention of bank insolvency. This study also explains the use and purpose of systems such as CAMELS and multivariate analysis models.The article illustrates the necessity of the complex use of multivariate analysis models and averaging simulation results in obtaining the most reliable results.A mechanism is offered for organizing the process of early prevention of bank insolvency.When implementing this …

The Lonely Reason Impeding Compliance With Covid-19 Prevention Guidelines, Ainslie E. Schultz, Kevin P. Newman

AMTP Proceedings 2022

To reduce transmission of the 2019 coronavirus (COVID-19), the US Center for Disease Control recommends that all individuals follow a series of prevention guidelines (e.g., wearing a mask, physical distancing, and vigilant handwashing). However, some individuals have been unwilling to comply with them. In this research, we use reciprocal altruism theory to investigate the role of loneliness in compliance with COVID-19 prevention guidelines. Specifically, we find that lonely (vs. non-lonely) consumers report less willingness to comply with these guidelines. Process evidence demonstrates that this occurs because lonely individuals experience a lower sense of obligation to reciprocate. Importantly, the negative impact …

The Changing Landscape For Billboard Regulation, Daniel R. Mandelker

Scholarship@WashULaw

Expectation turns to the Supreme Court as it once more takes up a free speech dispute about billboard regulation. On June 28, 2021, the Court granted the City of Austin’s Petition for Writ of Certiorari in Reagan National Advertising of Austin, Inc. v. City of Austin, 972 F.3d 696 (5th Cir. 2020), in which the Fifth Circuit struck down the city’s ban on digitizing off-premises signs. Billboards have a long history of legal contention, and billboard intolerance is historic. Billboards have their place, but they can overpower the aesthetic environment and threaten traffic safety. Before they were regulated at the …

Comments On Proposed Rules For Special Purpose Acquisition Companies, Shell Companies, And Projections, Andrew F. Tuch

Scholarship@WashULaw

In March 2022, the Securities and Exchange Commission released proposed rules for special purpose acquisition companies (SPACs), shell companies, and projections. In this comment letter, filed with the SEC, I provide a critical assessment of this proposal.

The SEC proposed far-reaching changes intended to enhance investor protections and align disclosure and liability rules in de-SPACs more closely with those in traditional IPOs. An under-appreciated feature of the proposed reforms is that they would subject de-SPACs to provisions closely modeled on Rule 13e-3 of the Exchange Act, which applies to going-private transactions, including management buyouts. Intended to tackle potential conflicts of …

Race-Aware Algorithms: Fairness, Nondiscrimination And Affirmative Action, Pauline T. Kim

Scholarship@WashULaw

The growing use of predictive algorithms is increasing concerns that they may discriminate, but mitigating or removing bias requires designers to be aware of protected characteristics and take them into account. If they do so, however, will those efforts be considered a form of discrimination? Put concretely, if model-builders take race into account to prevent racial bias against Black people, have they then engaged in discrimination against white people? Some scholars assume so and seek to justify those practices under existing affirmative action doctrine. By invoking the Court’s affirmative action jurisprudence, however, they implicitly assume that these practices entail discrimination …

Sexual Agreements, Susan Frelich Appleton, Albertina Antognini

Scholarship@WashULaw

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself. A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or …

The Lawfulness Of The Fifteenth Amendment, Travis Crum

Scholarship@WashULaw

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to …

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Understanding Urban Renewal: History Forgotten, Daniel R. Mandelker

Scholarship@WashULaw

Urban renewal is an important feature of urban life, but judicial, statutory, and constitutional backlash followed a U.S. Supreme Court decision that held constitutional the use of eminent domain to acquire land for redevelopment in an urban renewal project. Urban renewal got its start in the federal urban renewal program, which influenced state legislation but had a weak planning requirement and did not include blight as a requirement for urban renewal. This weakness was a factor in the problems that occurred in urban renewal and that created the backlash to the Supreme Court decision.

Reforming Reimbursement For The Us Food And Drug Administration’S Accelerated Approval Program To Support State Medicaid Programs, Rachel Sachs, Julie M. Donohue, Stacie B. Dusetzina

Scholarship@WashULaw

Importance The US Food and Drug Administration (FDA) has an accelerated approval program that has become the subject of scholarly attention and criticism, not only for the FDA’s oversight of the program but also for its implications for payers.

Observations State Medicaid programs’ legal obligations to provide reimbursement for accelerated approval products have created fiscal challenges for Medicaid that have been exacerbated by industry’s changing use of the accelerated approval program over time. Although strategies for accelerated approval reforms have been proposed, most focus on reforming the FDA’s accelerated approval pathway and product regulation without taking into account the implications …

Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps

Scholarship@WashULaw

Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any …

Torture In Our Schools?, Leila Nadya Sadat

Scholarship@WashULaw

America’s kids are not okay. As gun violence surges and politicians dither, school shootings are traumatizing a generation of youth. While only one manifestation of America’s gun violence crisis, school shootings are shocking in their ferocity, the senseless and random nature of the violence, and their impact upon millions of young, captive, and vulnerable individuals. This Essay makes the claim that the suffering of America’s school children from uncontrolled gun violence may be significant enough in scale and kind to rise to the level of ill-treatment under international law, violating U.S. treaty obligations and customary international law. If so, their …

Political Ideology And Judicial Administration: Evidence From The Covid-19 Pandemic, Kyle Rozema, Adam Chilton, Christopher Anthony Cotropia, David L. Schwartz

Scholarship@WashULaw

We study the effect of political ideology on the administration of the judiciary by investigating how the chief judges of federal district courts set courthouse policies in response to the COVID-19 pandemic. To do so, we use novel data on the geographic boundaries of federal courts and on the contents of pandemic orders. We account for state and local conditions and policies by leveraging district courts in states that have multiple judicial districts and that have courthouses in multiple counties, and we isolate the effect of chief ideology by using simulations that difference out unobserved district-level effects. We find no …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

Scholarship@WashULaw

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

The Promise Of Radical Crime Policy, Trevor George Gardner

Scholarship@WashULaw

To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.

In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …