Digital Commons Network^™

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to repeal …

An Unsung Success Story: A Forty-Year Retrospective On U.S. Communications Policy, Christopher S. Yoo

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Looking backwards on the occasion of Telecommunications Policy’s fortieth anniversary reveals just how far U.S. communications policy has come. All of the major challenges of 1976, such as promoting competition in customer premises equipment, long distance, and television networking, have largely been overcome. Moreover, new issues that emerged later, such as competition in local telephone service and multichannel video program distribution, have also largely been solved. More often than not, the solution has been the result of structural changes that enhanced facilities-based competition rather than agency-imposed behavioral requirements. Moreover, close inspection reveals that in most cases, prodding by the courts …

Annual Global Mean Temperature Explains Reproductive Success In A Marine Vertebrate From 1955 To 2010, Robert A. Mauck, Donald C. Dearborn, Charles E. Huntington

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The salient feature of anthropogenic climate change over the last century has been the rise in global mean temperature. However, global mean temperature is not used as an explanatory variable in studies of population-level response to climate change, perhaps because the signal-to-noise ratio of this gross measure makes its effect difficult to detect in any but the longest of datasets. Using a population of Leach's storm-petrels breeding in the Bay of Fundy, we tested whether local, regional, or global temperature measures are the best index of reproductive success in the face of climate change in species that travel widely between …

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

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American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

Eggshells As Hosts Of Bacterial Communities: An Experimental Test Of The Antimicrobial Egg Coloration Hypothesis, Donald C. Dearborn, Symmantha M. Page, Miri Dainson, Mark E. Hauber, Daniel Hanley

All Faculty Scholarship

Oviparous animals have evolved multiple defenses to prevent microbes from penetrating their eggs and causing embryo mortality. In birds, egg constituents such as lysozyme and antibodies defend against microbial infestation, but eggshell pigments might also impact survival of bacteria. If so, microbes could exert an important selective pressure on the evolution of eggshell coloration. In a previous lab experiment, eggshell protoporphyrin caused drastic mortality in cultures of Gram positive, but not Gram negative, bacteria when exposed to light. Here, we test this “photodynamic antimicrobial hypothesis” in a field experiment. In a paired experimental design, we placed sanitized brown, protoporphyrin-rich chicken …

Antitrust Policy And Inequality Of Wealth, Herbert J. Hovenkamp

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Why would anyone want to use antitrust law as a wealth distribution device when far more explicit statutory tools are available for that purpose? One feature of antitrust is its open-textured, nonspecific statutes that are interpreted by judges. As a result, using antitrust to redistribute wealth may be a way of invoking the judicial process without having to go to Congress or a state legislature that is likely to be unsympathetic. Of course, a corollary is that someone attempting to use antitrust law to redistribute wealth will have to rely on the existing antitrust statutes rather than obtaining a new …

Nontronite-Bearing Tubular Hydrothermal Deposits From A Galapagos Seamount, Megan Lubetkin, Steven Carey, Katherine A. Kelley, Geneviève Robert, Winton Cornell, Nicole Raineault, Jacob Balcanoff, Robert D. Ballard, Pelayo Salinas-De-León

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A telepresence-enabled cruise using remotely operated vehicle (ROV) exploration discovered an unusual tubular deposit of Fe-rich hydrothermal nontronite on a young seamount, Mashi, of the Wolf-Darwin lineament in the Galápagos Islands. X-ray diffraction, ICP-MS, ICP-AES, and SEM-EDS analyses show that this deposit is chemically and mineralogically similar to other deep-sea hydrothermal nontronites, indicating a likely formation temperature of about 30° to 50 °C by diffuse hydrothermal activity. These deposits contain mixtures of Fe-rich, Al-poor nontronite and poorly crystalline Fe-Si-oxyhydroxides with bulk compositions of 38–51 wt% SiO2 and 40–50 wt% Fe2O3*. The presence of filamentous and spherical structures in the …

Brief Of Amici Curiae Of 11 Addiction Experts In Support Of Appellee, Gene M. Heyman, Scott O. Lilienfeld, Stephen J. Morse, Sally L. Satel

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This brief is a critique of the brain disease model and many supposed implications of that model. It begins with a brief history of the model and moves to a discussion of the motivations behind the characterization of addiction as a “chronic and relapsing brain disease.” We follow with an enumeration of fallacious inferences based upon the brain disease model, including the very notion that addiction becomes a “brain disease” simply because it has neurobiological correlates. Regardless of whether addiction is labeled a brain disease, the real question, we contend, is whether the behavioral manifestations of addiction are unresponsive to …

Before International Tax Reform, We Need To Understand Why Firms Invert, Michael S. Knoll

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A wave of corporate inversions by U.S. firms over the past two decades has generated substantial debate in academic, business, and policy circles.

The core of the debate hinges on a couple of key economic questions: Do U.S. tax laws disadvantage U.S.-domiciled companies relative to their foreign competitors? And, if so, do inversions improve the competitiveness of U.S. multinational firms both abroad and at home?

There is unfortunately little, if any, empirical work directly determining whether U.S.-based MNCs are currently tax-disadvantaged compared to their foreign rivals, or measuring the amount by which (if any) U.S.-based MNCs improve their competitive position …

Community Engagement Through An Environmental Studies Lens, Jane T. Costlow

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Situated within a state strongly identified with pristine nature, our central Maine campus provides a fabulous "laboratory" for both environmental science and civic engagement. To take full advantage of this fortunate situation, Bates College's Environmental Studies (ES) program includes community civic engagement in many, if not all, of our classes and major requirements. Questions about community, diversity, and civic life help our students grapple with the complexity of environmental challenges, pushing them to consider the many kinds of knowledge essential to addressing problems at both local and more global scales. We strongly believe that a liberal arts environmental education can …

Midwestern Us Farmers Perceive Crop Advisers As Conduits Of Information On Agricultural Conservation Practices, Francis R. Eanes, Ajay S. Singh, Brian R. Bulla, Pranay Ranjan, Linda S. Prokopy, Mary Fales, Benjamin Wickerham

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Nonpoint source pollution from agricultural land uses continues to pose one of the most significant threats to water quality in the US, with measurable impacts across local, regional, and national scales. The impact and the influence of targeted conservation efforts are directly related to the degree to which farmers are familiar with and trust the entities providing the information and/or outreach. Recent research suggests that farmers consistently rank independent and retail-affiliated crop advisers as among the most trusted and influential sources for agronomic information, but little is understood about whether farmers are willing to receive advice from crop advisers on …

Law And Psychology Grows Up, Goes Online, And Replicates, Krin Irvine, David A. Hoffman, Tess Wilkinson-Ryan

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Over the last thirty years, legal scholars have increasingly deployed experimental studies, particularly hypothetical scenarios, to test intuitions about legal reasoning and behavior. That movement has accelerated in the last decade, facilitated in large part by cheap and convenient Internet participant recruiting platforms like Amazon Mechanical Turk. The widespread use of MTurk subjects, a practice that dramatically lowers the barriers to entry for experimental research, has been controversial. At the same time, law and psychology’s home discipline is experiencing a public crisis of confidence widely discussed in terms of the “replication crisis.” At present, law and psychology research is arguably …

Tragedy, Outrage & Reform: Crimes That Changed Our World: 1983 – Thurman Beating - Domestic Violence, Paul H. Robinson, Sarah M. Robinson

All Faculty Scholarship

Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. As it turns out, it is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of our everyday existence but some crimes make people stop and take notice – because they are so outrageous, or so curious, or so heart-wrenching. These “trigger crimes” are the cases that this book is about.

They offer some incredible stories about how people, good and bad, change the world around …

Conclusion: Trigger Crimes & Social Progress, Paul H. Robinson, Sarah M. Robinson

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Can a crime make our world better? Crimes are the worst of humanity’s wrongs but, oddly, they sometimes do more than anything else to improve our lives. It is often the outrageousness itself that does the work. Ordinary crimes are accepted as the background noise of everyday existence but some crimes make people stop and take notice – because they are so outrageous or so heart-wrenching.

This brief essay explores the dynamic of tragedy, outrage, and reform, illustrating how certain kinds of crimes can trigger real social progress. Several dozen such “trigger crimes” are identified but four in particular are …

The Tax Treatment Of Tokens: What Does It Betoken?, David J. Shakow

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Digital tokens have been used to raise substantial amounts of money. But little attention has been paid to the tax consequences surrounding their issuance and sale. There are significant potential tax liabilities lurking in the use of digital tokens. But, because of the anonymity inherent in the blockchain structures used for the issuance of tokens and payments for them, there is a significant question as to whether those tax liabilities will ever be collected.

Active Auditory Experience In Infancy Promotes Brain Plasticity In Theta And Gamma Oscillations, Gabriella Musacchia, Silvia Ortiz-Mantilla, Naseem Choudhury, Teresa Realpe-Bonilla, Cynthia P. Roesler, April A. Benasich

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Language acquisition in infants is driven by on-going neural plasticity that is acutely sensitive to environmental acoustic cues. Recent studies showed that attention-based experience with non-linguistic, temporally-modulated auditory stimuli sharpens cortical responses. A previous ERP study from this laboratory showed that interactive auditory experience via behavior-based feedback (AEx), over a 6-week period from 4- to 7-months-of-age, confers a processing advantage, compared to passive auditory exposure (PEx) or maturation alone (Naïve Control, NC). Here, we provide a follow-up investigation of the underlying neural oscillatory patterns in these three groups. In AEx infants, Standard stimuli with invariant frequency (STD) elicited greater Theta-band …

The Use And Reliability Of Federal Nature Of Suit Codes, Christina L. Boyd, David A. Hoffman

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When filing a civil case in a federal district court, attorneys must identify one, and only one, of ninety issue area nature of suit (NOS) codes that best describes their case. While this may seem like a trivial moment in litigation, the selection of this single descriptor has significant implications for court statistics, empirical research findings, and the allocation of resources to federal courts, including judgeships. Despite the import of NOS codes, there is little within the process of choosing them to guarantee reliability in the selected NOS codes. To assess how reliable NOS codes are, we examine a database …

Report Of The Delaware Criminal Law Recodification Project, Paul H. Robinson, Matthew Kussmaul, Ilya Rudyak, Criminal Law Research Group

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In 1973, during the “first wave” of American criminal law recodification efforts following the publication of the Model Penal Code, Delaware adopted a new criminal code. While it represented a dramatic improvement over the law it replaced, its initial clarity and utility were greatly diminished by subsequent piecemeal legislation. Delaware’s current criminal code is lengthy, inconsistent, and replete with duplicative and outdated offenses that impose disproportional punishments. This process of criminal code deterioration is not unique to Delaware and plagues other U.S. jurisdictions. In 2015, however, stakeholders in Delaware’s criminal justice system initiated a code revision process, commissioning the authors …

Rules And Values In Virtual Optimization Of California Hydropower, Sonya Ziaja

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Optimization models for California’s hydropower system are designed to be decision-support tools and aids for climate adaptation decision-making. In practice, they fall short of this goal. One potential explanation is that optimization models are not more successful because they are built on, and depend on, a misrepresentation of law and politics. The legal reality of California’s hydropower system is a web of networked jurisdictions of multiple federal and state agencies, with varying levels of coordination, long periods of legally obligated stability with rigid rules, and prone to conflict, but with multiple procedures for conflict resolution. Barriers to climate adaptation from …

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

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This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

The Effect Of Health Insurance Coverage Expansions On Auto Liability Claims And Costs, Srikanth Kadiyala, Paul Heaton

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How do the Affordable Care Act health insurance coverage expansions affect payment for medical care provided through liability insurance, such as auto insurance? Theoretically, expanding coverage might lead to a substitution of health insurance disbursements for automobile insurance disbursements. Alternatively, expanding health insurance coverage might increase utilization of medical care, increasing auto liability claims payments. The net effect of these two mechanisms can only be determined empirically. We evaluate the health insurance-auto insurance interaction by examining the 2010 ACA dependent coverage expansion. Prior to 2010, individuals 19 and older were excluded from health insurance coverage under their parental health insurance …

Cooperative And Uncooperative Foreign Affairs Federalism, Jean Galbraith

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This book review argues for reorienting how we think about federalism in relation to foreign affairs. In considering state and local engagement in foreign affairs, legal scholars often focus on the opportunities and limits provided by constitutional law. Foreign Affairs Federalism: The Myth of National Exclusivity by Michael Glennon and Robert Sloane does precisely this in a thoughtful and well-crafted way. But while the backdrop constitutional principles studied by Glennon and Sloane are important, so too are other types of law that receive far less attention. International law, administrative law, particular statutory schemes, and state law can all affect how …

Abrahamic Figurations Of Responsibility: Religion Without Religion In Derrida And Marion, Harris B. Bechtol

All Faculty Scholarship

No abstract provided.

The Inevitability And Ubiquity Of Cycling In All Feasible Legal Regimes: A Formal Proof, Leo Katz, Alvaro Sandroni

All Faculty Scholarship

Intransitive choices, or cycling, are generally held to be the mark of irrationality. When a set of rules engenders such choices, it is usually held to be irrational and in need of reform. In this article, we prove a series of theorems, demonstrating that all feasible legal regimes are going to be rife with cycling. Our first result, the legal cycling theorem, shows that unless a legal system meets some extremely restrictive conditions, it will lead to cycling. The discussion that follows, along with our second result, the combination theorem, shows exactly why these conditions are almost impossible to meet. …

Regulating By Robot: Administrative Decision Making In The Machine-Learning Era, Cary Coglianese, David Lehr

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Machine-learning algorithms are transforming large segments of the economy, underlying everything from product marketing by online retailers to personalized search engines, and from advanced medical imaging to the software in self-driving cars. As machine learning’s use has expanded across all facets of society, anxiety has emerged about the intrusion of algorithmic machines into facets of life previously dependent on human judgment. Alarm bells sounding over the diffusion of artificial intelligence throughout the private sector only portend greater anxiety about digital robots replacing humans in the governmental sphere. A few administrative agencies have already begun to adopt this technology, while others …

Ispy: Threats To Individual And Institutional Privacy In The Digital World, Lori Andrews

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What type of information is collected, who is viewing it, and what law librarians can do to protect their patrons and institutions.

Foster V. Chatman: A Missed Opportunity For Batson And The Peremptory Challenge, Nancy Marder

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In 2016, the United States Supreme Court decided that the prosecutors in Foster v. Chatman exercised race-based peremptory challenges in violation of Batson v. Kentucky. The Court reached the right result, but missed an important opportunity. The Court should have acknowledged that after thirty years of the Batson experiment, it is clear that Batson is unable to stop discriminatory peremptory challenges. Batson is easy to evade, so discriminatory peremptory challenges persist and the harms from them are significant. The Court could try to strengthen Batson in an effort to make it more effective, but in the end the only way …

Morality, Law, And Judicial Ethics In The Western Legal Tradition, Mortimer N.S. Sellers

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No abstract provided.

Taxation, Competitiveness, And Inversions: A Response To Kleinbard, Michael S. Knoll

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In this report, I argue that the inversion situation is more nuanced, complex, and ambiguous than Edward D. Kleinbard acknowledges, and I challenge Kleinbard’s claim that U.S. multinationals are on a tax par with their foreign competitors.

Error Costs, Legal Standards Of Proof And Statistical Significance, Michelle Burtis, Jonah B. Gelbach, Bruce H. Kobayashi

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The relationship between legal standards of proof and thresholds of statistical significance is a well-known and studied phenomena in the academic literature. Moreover, the distinction between the two has been recognized in law. For example, in Matrix v. Siracusano, the Court unanimously rejected the petitioner’s argument that the issue of materiality in a securities class action can be defined by the presence or absence of a statistically significant effect. However, in other contexts, thresholds based on fixed significance levels imported from academic settings continue to be used as a legal standard of proof. Our positive analysis demonstrates how a …