Recent Submissions

  • Regulating Digital Health Care for the Cognitively Impaired

    Huber, Kathryn; Sklar, Tara; University of Arizona, James E. Rogers College of Law (American Health Law Association, 2024)
    Americans are living longer, and delivering high-quality, effective, and cost-efficient health care remains critically important, especially as the number of older adults with cognitive impairment increases. Relatedly, a growing number of older adults are preferring to “age in place” and receive care in their homes. This preference aligns with advances being made in digital health technologies (e.g., remote patient monitoring devices, telehealth) and Medicare coverage for in-home virtual health care services. However, efforts to integrate digital health care into the lives of older adults living with cognitive impairments present unique barriers and challenges due to their confused mental state or fluctuating capacity, which can limit their ability to provide meaningful informed consent; their vulnerability to privacy violations regarding their health data; their lack of digital health equity; difficulties operating the technology, navigating online platforms and applications; and effectively communicating with their providers. These challenges usually result in this particular demographic being far less likely to participate in the digital health ecosystem compared to their younger counterparts. This Article will address those challenges and their related regulatory and legal hurdles and will propose reforms for emerging models of digital health care that address the current shortcomings in caring for older adults with cognitive impairment.
  • Democratizing Law Librarianship: Reducing Barriers to Entry through Alternative Pathways to the Profession and Increased Support to Students. A Call to Action

    Miguel-Stearns, Teresa M.; Laskowski, Casandra; University of Arizona, James E. Rogers College of Law, Daniel F. Cracchiolo Law Library (Informa UK Limited, 2024-04-02)
    Law librarianship is a constantly evolving profession driven by the evolution of law practice, legal education, government, and law itself. Changes in these drivers are in turn influenced by factors such as technology, culture, client needs, American Bar Association Standards, bar exams, diversity and access efforts, faculty research, instructional trends, and law school rankings. Law librarians proudly keep up with these changes—and even stay ahead of them—as we impart new knowledge and skills to users of law libraries and legal information resources. As we proceed through the third decade of the twenty-first century, the legal information profession is engaged in dialogue about the perpetually shrinking pools of qualified candidates for law librarian positions. Additionally, law librarians have been lamenting for decades that the legal information profession does not accurately reflect the diversity in our communities. The literature reflects that those conversations began in earnest in the 1970s and continue today. This article addresses both compelling issues and offers concrete strategies to tackle them simultaneously, thoughtfully, and intentionally. The entire profession is invited to play a role in this effort.
  • Addressing structural hurdles for metadata extraction from environmental impact statements

    Laparra, Egoitz; Binford‐Walsh, Alex; Emerson, Kirk; Miller, Marc L.; López‐Hoffman, Laura; Currim, Faiz; Bethard, Steven; School of Information, University of Arizona; School of Government and Public Policy, University of Arizona; James E. Rogers College of Law, University of Arizona; et al. (Wiley, 2023-06-14)
    Natural language processing techniques can be used to analyze the linguistic content of a document to extract missing pieces of metadata. However, accurate metadata extraction may not depend solely on the linguistics, but also on structural problems such as extremely large documents, unordered multi-file documents, and inconsistency in manually labeled metadata. In this work, we start from two standard machine learning solutions to extract pieces of metadata from Environmental Impact Statements, environmental policy documents that are regularly produced under the US National Environmental Policy Act of 1969. We present a series of experiments where we evaluate how these standard approaches are affected by different issues derived from real-world data. We find that metadata extraction can be strongly influenced by nonlinguistic factors such as document length and volume ordering and that the standard machine learning solutions often do not scale well to long documents. We demonstrate how such solutions can be better adapted to these scenarios, and conclude with suggestions for other NLP practitioners cataloging large document collections.
  • Tort Liability for Physical Harm to the Police Arising from Protest: Common-Law Principles for a Politicized World

    Bublick, Ellen M.; Bambauer, Jane R.; University of Arizona James E. Rogers College of Law (DePaul University School of Law, 2024)
    When police officers bring tort suits for physical harms suffered during protest, courts must navigate two critically important sets of values—on the one hand, protesters’ rights to free speech and assembly, and on the other, the value of officers’ lives, health, and rights of redress. This year courts, including the United States Supreme Court, must decide who, if anyone, can be held accountable for severe physical harms suffered by police called upon to respond to protest. Two highly visible cases well illustrate the trend. In one, United States Capitol Police officers were injured on January 6, 2021, during organized attempts to overturn the results of the U.S. presidential election. In the other, a Baton Rouge police officer suffered traumatic brain injury when he was hit by an object thrown by an unidentified protester during a Black Lives Matter protest that sought to block a highway in front of police headquarters. In this article, Professors Bublick and Bambauer argue that courts analyzing common-law liability claims for physical injuries suffered by police in the highly political circumstances of protest, would be well-advised to work through a list of content-neutral questions. Such a list could help courts maximize states’ legitimate interests in officer safety, while minimizing impacts on protestors’ legitimate First Amendment activity. We juxtapose these political contexts to create an analytical framework that recognizes the threats involved, to both speech and safety, without as great a risk of ideological distortion. Courts in both the January 6th case and the Black Lives Matter case have failed to accommodate both physical safety interests and First Amendment issues.
  • Legal reasoning and Latin America’s economic development

    Kozolchyk, Boris; College of Law, University of Arizona, Arizona (Oxford University Press (OUP), 2022-08-24)
    This article discusses how a method of legal reasoning employed first by French and Spanish legislators and judges and, subsequently, by their Latin American successors hindered the economic development of their respective countries.1 It suggests that significant economic development would be possible if legislators helped enact honest, reasonable, and fair versions of successful market practices in a manner consistent with their nations' or regions' developmental goals.2 It further suggests that Latin American judges can contribute to the attainment of such goals by adopting a method of reasoning that differs from their present method. The proposed method requires that in disputes caused by the disabling effects of obsolete statutory, case, or customary law on promising new customs and practices, the judge acts as a quasi-legislator. In that capacity, he should carefully consider not only the pivotal facts of the dispute and the applicable law but also his nation's socio-economic conditions and economic development goals. Then, by placing himself in the archetypal position of a reasonable merchant, always having in mind the interest of his contractual and third-party 'others', the judge's decision should enable Justice Oliver Wendell Holmes Jr.'s 'prophecies' of what courts will decide in future cases with similar facts and legal issues.3 Thus, he will also be heeding the advice of the distinguished Mexican legal philosopher Eduardo García Máynez, who urged judges to fill the inevitable obsolete and unfair normative gaps with equitable judicial 'individual' norms.4 Finally, in updating practices and correcting injustices, the judges' methods of reasoning should be guided by a broad definition of good faith adopted by 19th-century German Civil and Commercial Codes as well as by the 20th-century US Uniform Commercial Code (UCC), as will be discussed throughout this article. In essence, it requires that legislators and judges take into account the honesty, reasonableness, and fairness of the new practice before it becomes a binding norm.
  • Technical Services, Social Justice, and LibGuides: A Model for Impact

    Ugstad, Jessica; Valenzuela, Jaime; Spence, Travis; Daniel F. Cracchiolo Law Library, James E. Rogers College of Law, University of Arizona (Informa UK Limited, 2023-05-11)
    In June 2020, news of police violence and murder, and the resulting protests, dominated the national conversation. Those acts threw a spotlight on the need for diversity, equity, and inclusion to be at the center of library collection development policy and resource offerings. As providers of information to their communities, librarians in all parts of the profession were feeling the impact of these events and moving to address information needs during a tumultuous time. This feeling was acknowledged in an Association of Research Libraries statement which issued a call to action for librarians to become more proactive in supporting social justice movements and dismantling systemic racism. This article details how Technical Services librarians at the Cracchiolo Law Library, traditionally viewed as behind-the-scenes members of the library, chose to heed that call and expand their roles to combat injustice and address systemic racism. This article will detail the work creating and promoting an Antiracist and Social Justice Resources guide and collection and demonstrate the impact of these efforts. Additionally, this article may serve as a model for other Technical Services librarians who wish to participate in the social justice movement by expanding their customary duties.
  • Death and Ethics: Suffocating or Saving Nonlawyer Practitioners with Lawyer Ethics

    Swisher, Keith; University of Arizona James E. Rogers College of Law (2023-01-26)
    Lawyers are no longer the only legal practitioners. In several states and trending toward more, lawyers now share their so-called monopoly over the practice of law with nonlawyer practitioners (NPs). These NPs may practice law without the supervision of lawyers and, like nurse practitioners who provide greater access to medicine, this newborn class of legal professionals was created to provide the public with greater access to justice. But the creators of NPs have saddled them with restrictive ethical codes that limit their ability to reach and serve new clients. While generally laudable, certain ethical restrictions lead to fewer NPs and reduce access to legal services for low-income clients. This Essay spotlights this ethical chokepoint and articulates for courts and policymakers the delicate balance in imposing and adapting ethical rules to this new class of legal professionals. Although important access-to-justice and client-protection policy choices are made with the imposition of each ethical rule, these decisions have largely flown under the radar, thereby risking the continued existence of NPs.
  • Opening the Pandemic Portal to Re-Imagine Paid Sick Leave for Immigrant Workers

    Milczarek-Desai, Shefali; University of Arizona, James E. Rogers College of Law (California Law Review, 2023)
    The COVID-19 pandemic has spotlighted the crisis low-wage immigrant and migrant (im/migrant) workers face when caught in the century-long collision between immigration enforcement and workers’ rights. Im/migrant workers toil in key industries, from health care to food production, that many now associate with laudable buzzwords such as “frontline” and “essential.” But these industries conceal jobs that pay little, endanger workers’ health and safety, and have high rates of legal violations by employers. Im/migrant workers usually do not benefit from employment and labor law protections, including paid sick leave. This has proven deadly during the pandemic. When im/migrants show up to work ill, they endanger not only themselves but risk transmission to co-workers, customers, patients, and the public at large. This has been starkly illustrated in nursing homes, which rely heavily on im/migrant labor and have been the locus of nearly one third of all coronavirus deaths. The pandemic presents an opportunity to analyze why and how existing paid sick leave laws fail im/migrant workers. It is also a portal to re-imagine paid sick time in a way that will benefit im/migrant workers, and by extension, a nation facing labor shortages and high worker turnover as demand for goods and services rises. This Article is the first to scrutinize paid sick leave laws through the lenses of critical race, movement, and health law theories. It argues that existing paid sick leave laws fail im/migrant workers because they ignore these workers’ social and economic situations and singularly focus on workers’ rights rather than collective well-being. Drawing from critical race, movement, and health law frameworks, this Article situates paid sick leave within a public health matrix based on mutual aid. It argues that when paid sick leave laws are drafted and enforced in a manner informed by workers’ lived experiences and contextualized within a broader public health conversation, employment and labor protections can better safeguard im/migrant workers and the health of the nation. Additionally, the proposed solution will reduce tensions between immigration enforcement and workers’ rights.
  • Research on the Forecast of the Spread of COVID-19

    Guo, Lihao; Yang, Yuxin; James E Rogers College of Law, The University of Arizona (ACM, 2021-07-20)
    With the spreading of COVID-19, various existing machine learning frameworks can be adopted to effectively control the epidemic to help research and predict the spread of the virus before the large-scale application of vaccines. Based on the spatiotemporal graph neural network and mobility data, this paper attempts to offer a novel prediction by building a high-resolution graph with the characteristics such as willingness to wear masks, daily infection, and daily death. This model is different from the time series prediction model. The method learns from the multivariate spatiotemporal graph, the nodes represent the region with daily confirmed cases and death, and edges represent the inter-regional contacts based on mobility. Simultaneously, the transmission model is built by a time margin as the characteristic of the time change. This paper builds the COVID-19 model by using STGNNs and tries to predict and verify the virus's infection. Finally, the model has an absolute Pearson Correlation of 0.9735, far from the expected value of 0.998. The predicted value on the first and second day is close to the real situation, while the value gradually deviates from the actual situation after the second day. It still shows that the graph neural network uses much temporal and spatial information to enable the model to learn complex dynamics. In the future, the model can be improved by tuning hyper-parameter such as modulation numbers of convolution, or construction of graphs that suitable for smaller individuals such as institutions, buildings, and houses, as well as assigning more features to each node. This experiment demonstrates the powerful combination of deep learning and graph neural networks to study the spread and evolution of COVID-19.
  • How do third parties affect compliance in the trade regime?

    Kucik, J.; Peritz, L.; School of Government and Public Policy, James E. Rogers College of Law, University of Arizona (University of Chicago Press, 2021)
    A core insight of the literature on dispute settlement at the World Trade Organization (WTO) is that third party countries help enforce the organization’s multilateral objectives, including the fundamental principle of nondiscrimination. Little is known, however, about when countries comply with WTO rulings and whether these bystander states play a role. We introduce new data on compliance, measured as whether losing countries make tangible domestic reforms to bring policy in line with WTO rulings. We show that compliance is significantly less likely in disputes with more third parties. Using a variety of estimation techniques, including controlling for nonrandom selection into legal rulings, we demonstrate a robust correlation between third party participation and noncompliance. Our findings highlight a risk of stringent enforcement and suggest that compliance problems threaten to undercut the operation of the multilateral trade regime. © 2021 by the Southern Political Science Association. All rights reserved.
  • Collective Biopolitics: The Rights of Indigenous Peoples in Genetic Research

    Garba, Ibrahim; Univ Arizona, Coll Law (TECNOSCIENZA, 2018)
    This essay considers issues implicated in biobanking with indigenous peoples, a population increasingly recognized as having a collective right to participation under international law (e.g., the United Nations Declaration on the Rights of Indigenous Peoples (2007)). In contrast, prevailing notions of participation within the field of human rights (including the right to health) presuppose an individualist notion of citizenship. This essay compares the indigenous collective right to participation with "molecularized biopower", the theory that biopolitics in modern democracies is becoming increasingly individualized in an unprecedented way. Using a US biobanking case study, this essay argues that two aspects of the indigenous collective right to participation (i.e., self-determination and the "empowerment" framework), not only counter the claim for a pervasively individualized biopolitics, but also demonstrate the importance of collective rights for indigenous participation in genetic research generally.
  • Indemnifying precaution: economic insights for regulation of a highly infectious disease

    Robertson, Christopher T; Schaefer, K Aleks; Scheitrum, Daniel; Puig, Sergio; Joiner, Keith; James E. Rogers College of Law, University of Arizona; Department of Agricultural and Resource Economics, University of Arizona; Eller College of Management, University of Arizona (Oxford University Press, 2020-05-30)
    Economic insights are powerful for understanding the challenge of managing a highly infectious disease, such as COVID-19, through behavioral precautions including social distancing. One problem is a form of moral hazard, which arises when some individuals face less personal risk of harm or bear greater personal costs of taking precautions. Without legal intervention, some individuals will see socially risky behaviors as personally less costly than socially beneficial behaviors, a balance that makes those beneficial behaviors unsustainable. For insights, we review health insurance moral hazard, agricultural infectious disease policy, and deterrence theory, but find that classic enforcement strategies of punishing noncompliant people are stymied. One mechanism is for policymakers to indemnify individuals for losses associated with taking those socially desirable behaviors to reduce the spread. We develop a coherent approach for doing so, based on conditional cash payments and precommitments by citizens, which may also be reinforced by social norms.
  • Emotion Perception in Hadza Hunter-Gatherers

    Gendron, Maria; Hoemann, Katie; Crittenden, Alyssa N.; Mangola, Shani Msafiri; Ruark, Gregory A.; Barrett, Lisa Feldman; Univ Arizona, James E Rogers Coll Law (NATURE PUBLISHING GROUP, 2020-03)
    It has long been claimed that certain configurations of facial movements are universally recognized as emotional expressions because they evolved to signal emotional information in situations that posed fitness challenges for our hunting and gathering hominin ancestors. Experiments from the last decade have called this particular evolutionary hypothesis into doubt by studying emotion perception in a wider sample of small-scale societies with discovery-based research methods. We replicate these newer findings in the Hadza of Northern Tanzania; the Hadza are semi-nomadic hunters and gatherers who live in tight-knit social units and collect wild foods for a large portion of their diet, making them a particularly relevant population for testing evolutionary hypotheses about emotion. Across two studies, we found little evidence of universal emotion perception. Rather, our findings are consistent with the hypothesis that people infer emotional meaning in facial movements using emotion knowledge embrained by cultural learning.
  • A New Multilateralism? A Case Study of the Belt and Road Initiative

    Zhou, Jingyuan; James E. Rogers College of Law, University of Arizona (Oxford University Press (OUP), 2020-08-30)
    The first five years (the first stage) of the Belt and Road Initiative (BRI) have drawn international attention and provoked scepticism and debate. This article explores questions about the nature of the BRI and its impact on multilateralism, which is increasingly fragile and under attack. After summarizing past practices employed in BRI investments, it analyses the characteristics of the BRI and assesses the results and implications. This article studies in depth one of the two primary BRI economic activities—special economic zones. The article introduces and compares the Asian Infrastructure Investment Bank and Chinese domestic banks in their respective financing practices and compares state-owned enterprises and privately owned enterprises in BRI practices. The article observes three characteristics from past BRI practices and analyzes their respective implications on the transformation of international trade governance. The first characteristic is the unconventional ‘infrastructure development first, institution next’ approach. The second is the plurilateral- and multilateral-focused method in international rule-setting processes. The third characteristic is innovation in the dispute settlement mechanism. Through a cautious examination, the article argues that experiences gained from BRI inform China’s international rule-making efforts and further its domestic trade liberalization reform agenda, which will likely contribute to the convergence of rule-making in international trade. © The Author(s) (2020). Published by Oxford University Press. All rights reserved.
  • Distinguishing moral hazard from access for high-cost healthcare under insurance

    Robertson, Christopher T; Yuan, Andy; Zhang, Wendan; Joiner, Keith; Univ Arizona, James E Rogers Coll Law; Univ Arizona, Dept Econ (PUBLIC LIBRARY SCIENCE, 2020-04-17)
    Context Health policy has long been preoccupied with the problem that health insurance stimulates spending ("moral hazard"). However, much health spending is costly healthcare that uninsured individuals could not otherwise access. Field studies comparing those with more or less insurance cannot disaggregate moral hazard versus access. Moreover, studies of patients consuming routine low-dollar healthcare are not informative for the high-dollar healthcare that drives most of aggregate healthcare spending in the United States. Methods We test indemnities as an alternative theory-driven counterfactual. Such conditional cash transfers would maintain an opportunity cost for patients, unlike standard insurance, but also guarantee access to the care. Since indemnities do not exist in U.S. healthcare, we fielded two blinded vignette-based survey experiments with 3,000 respondents, randomized to eight clinical vignettes and three insurance types. Our replication uses a population that is weighted to national demographics on three dimensions. Findings Most or all of the spending due to insurance would occur even under an indemnity. The waste attributable to moral hazard is undetectable. Conclusions For high-cost care, policymakers should be more concerned about the foregone efficient spending for those lacking full insurance, rather than the wasteful spending that occurs with full insurance.
  • Vulnerability to legal misconduct: a profile of problem lawyers in Victoria, Australia

    Sklar, Tara; Moore, Jennifer Schulz; Bismark, Marie; Taouk, Yamna; Univ Arizona, James E Rogers Coll Law (ROUTLEDGE JOURNALS, TAYLOR & FRANCIS LTD, 2020-04-27)
    Public trust in the legal profession rests on regulators taking timely and effective action in response to misconduct. Usually, case-by-case analysis occurs after a claim or complaint is lodged with little attention on factors that may predispose a lawyer to misconduct. Vulnerability is a useful concept for understanding individuals' susceptibility to harm and for identifying safeguards to protect against that harm. This empirical study adds to the largely normative research on vulnerability with an analysis of 67 "problem lawyers" who were the subject of multiple complaints and at least one disciplinary hearing, a paid financial misconduct claim, or striking from the roll in Victoria, Australia between 2005 and 2015. We analysed determinations about these lawyers and identified a concatenation of factors associated with legal misconduct. Personal vulnerabilities included older age, male sex, poor health, and patterns of behaviour such as low conscientiousness. Situational vulnerabilities included working as a sole principal or in a small practice, excessive workload, and pressures from relationship breakdowns, death or illness in the family, or financial difficulties. These findings shed light on vulnerabilities to legal misconduct, and have implications for lawyer education and well-being, protection of clients, and efforts to reduce lapses in professionalism.
  • Race and Class: A Randomized Experiment with Prosecutors

    Robertson, Christopher; Baughman, Shima Baradaran; Wright, Megan S.; Univ Arizona, James E Rogers Coll Law, Law; Univ Arizona, James E Rogers Coll Law, Res & Innovat (WILEY, 2019-12)
    Disparities in criminal justice outcomes are well known, and prior observational research has shown correlations between the race of defendants and prosecutors' decisions about how to charge and resolve cases. Yet causation is questionable: other factors, including unobserved variation in case facts, may account for some of the disparity. Disparities may also be driven by socioeconomic class differences, which are highly correlated with race. This article presents the first blinded, randomized controlled experiment that tests for race and class effects in prosecutors' charging decisions. Case vignettes are manipulated between subjects in five conditions to test effcts of defendants' race and class status. In the control condition, race and class are omitted, which allows baseline measures for bias and pilot testing of a blinding reform. Primary outcome variables included whether the prosecutor charged a felony, whether the prosecutor would pursue a fine or imprisonment, and the amounts thereof. With 467 actual prosecutors participating nationwide, we found that race and class did not have detectable prejudicial effects on prosecutorial decisions. This finding, contrary to the majority of observational studies, suggests that other causes drive known disparities in criminal justice outcomes.
  • Characteristics of Lawyers Who Are Subject to Complaints and Misconduct Findings

    Sklar, Tara; Taouk, Yamna; Studdert, David; Spittal, Matthew; Paterson, Ron; Bismark, Marie; Univ Arizona, James E Rogers Coll Law, Hlth Law (WILEY, 2019-06)
    Regulators of the legal profession are charged with protecting the public by ensuring lawyers are fit to practice law. However, their approach tends to be reactive and case based, focusing on the resolution of individual complaints. Regulators generally do not seek to identify patterns and trends across their broader caseloads and the legal profession as a whole. Using administrative data routinely collected by the main regulator of the legal profession in Victoria, Australia, we characterized complaints lodged between 2005 and 2015 and the lawyers against whom they were made. We also analyzed risk factors for complaints and misconduct findings. We found that the odds of being subject to a complaint were higher among lawyers who were male, older, had trust account authority, and whose legal practices were smaller, in nonurban locations, and incorporated. A deeper understanding of these risk factors could support efforts to improve professional standards and reform regulatory practices.
  • Imperfect Alternatives: Institutional Choice and the Reform of Investment Law

    Puig, Sergio; Shaffer, Gregory; Univ Arizona, James E Rogers Coll Law (CAMBRIDGE UNIV PRESS, 2018-07)
    This Article applies the theory of comparative institutional analysis to evaluate the trade-offs associated with alternative mechanisms for resolving investment disputes. We assess the trade-offs in light of the principle of accountability under the rule of law, which underpins the goals of fairness, efficiency, and peace that are attributed to investment law. The Article makes two recommendations: first, reforms should address complementarity between domestic and international institutions; second, institutional choices should respond to the different contexts that states face.
  • Evolving conceptions of the role of large dams in social-ecological resilience

    Hammersley, Mia A.; Scott, Christopher; Gimblett, Randy; Univ Arizona, Coll Law; Univ Arizona, Sch Nat Resources & Environm (Resilience Alliance, 2018)
    Rivers and riparian ecosystems have historically provided a range of beneficial goods and services to human societies. However, floodplains have also posed risks to the humans that came to rely upon them. Although riparian areas are among the most resource-rich and biodiverse ecosystems, they are also some of the most disturbed by human activity. Today, social and economic needs for water diverted off-stream are often pitted against the flow of water needed to maintain crucial instream ecological functions. The construction of dams has been a widely implemented method to control rivers for human purposes, particularly in the western United States. However, there is a growing movement to decommission dams, as stakeholders begin to recognize the ultimate value of restoring ecosystem services, including cultural ecosystem services; indeed, their restoration may be necessary to ensure lasting systemic resilience. Broader questions of dam decommissioning in the United States are receiving increasing attention by scholars and practitioners alike. In this paper, we adapt and apply seminal concepts from the adaptive cycle framework and cultural ecosystem services, particularly for Native Nations, and thereby assess the unfolding case of decommissioning and restoration on the Elwha River in northwest Washington State. The empirical evidence indicates that dam removal coincided with scalar and temporal alignment of multiple adaptive cycles and contributed to both short and long-term resilience. Further, the Elwha case represents an extremely important precedent in the evolution of river management practices, in which stakeholder-based collaborative governance incorporated knowledge coproduction and regulatory maneuvering to successfully overcome obstacles inherent in both dam decommissioning and subsequent restoration. We conclude by reflecting on lessons of broader relevance beyond the specific case of the Elwha.

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