Digital Commons Network^™

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

On The Socles Of Fully Inert Subgroups Of Abelian P-Groups, Andrey R. Chekhlov, Peter V. Danchev, Brendan Goldsmith

Articles

We define the so-called fully inert socle-regular and weakly fully inert socle-regular Abelian p-groups and study them with respect to certain of their numerous interesting properties. For instance, we prove that in the case of groups of length ω, these two group classes coincide, but that in the case of groups of length ω+1, they differ. Some structural and characterization results are also obtained. The work generalizes concepts which have been of interest recently in the theory of entropy in algebra and builds on recent investigations by Danchev and Goldsmith (Arch Math (3) 92:191–199, 2009; J Algebra 323:3020–3028, 2010).

A Systematic Review Of Urban Navigation Systems For Visually Impaired People, Fatmaelzahraa Eltaher Ph.D, Ayman Taha, Jane Courtney, Susan Mckeever

Articles

Blind and Visually impaired people (BVIP) face a range of practical difficulties when undertaking outdoor journeys as pedestrians. Over the past decade, a variety of assistive devices have been researched and developed to help BVIP navigate more safely and independently. In~addition, research in overlapping domains are addressing the problem of automatic environment interpretation using computer vision and machine learning, particularly deep learning, approaches. Our aim in this article is to present a comprehensive review of research directly in, or relevant to, assistive outdoor navigation for BVIP. We breakdown the navigation area into a series of navigation phases and tasks. We …

Physics-Guided Neural Network For Predicting Chemical Signatures, Cara Murphy, John Kerekes

Articles

Achieving high classification accuracy on trace chemical residues in active spectroscopic sensing is challenging due to the limited amount of training data available to the classifier. Such classifiers often rely on physics-based models for generating training data though these models are not always accurate when compared to measured data. To overcome this challenge, we developed a physics-guided neural network (PGNN) for predicting chemical reflectance for a set of parameterized inputs that is more accurate than the state-of-the-art physics-based signature model for chemical residues. After training the PGNN, we use it to generate a library of predicted spectra for training a …

Unrules, Gabriel Scheffler, Cary Coglianese, Daniel E. Walters

Articles

At the center of contemporary debates over public law lies administrative agencies' discretion to impose rules. Yet for every one of these rules, there are also unrules nearby. Often overlooked and sometimes barely visible, unrules are the decisions that regulators make to lift or limit the scope of a regulatory obligation through, for instance, waivers, exemptions, or exceptions. In some cases, unrules enable regulators to reduce burdens on regulated entities or to conserve valuable government resources in ways that make law more efficient. However, too much discretion to create unrules can facilitate undue business influence over the law, weaken regulatory …

Teaching Written Advocacy In A Law Clinic Setting, Tamar Ezer

Articles

Written advocacy is a critical lawyering skill and vital component of student work in many clinics. This is certainly true in appellate advocacy and policy-based clinics, such as my own focused on human rights advocacy. Teaching written advocacy requires a deliberate and thoughtful pedagogy, just as with other aspects of clinical teaching. There is a rich literature on teaching legal writing, but only sparse discussion of its applicability in the fast-paced law clinic setting, where written products have real world consequences and need to be of high quality. This article delves into this literature and argues that written advocacy consists …

The Continued Relevance Of The Contributions Of The Sierra Leone Tribunal To International Criminal Law, Charles C. Jalloh

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No abstract provided.

Recollections Refreshed And Recorded, Len Niehoff

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Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them. So how do we get there?

Reframing Article I, Section 8, Richard Primus

Articles

Constitutional lawyers usually think of the Constitution's enumeration of congressional powers as a device for limiting the federal government's legislative jurisdiction. And there's something to that. But considered from the point of view of the Constitution's drafters, it makes more sense to think of the enumeration of congressional powers as primarily a device for empowering Congress, not limiting it. The Framers wanted both to empower and to limit the general government, and the Constitution's enumeration of congressional powers makes more sense as a means of empowerment than as a means of limitation. The major exception--that is, the one significant way …

Fraudulent Transfers And Juries: Was Granfinanciera Rightly Decided?, David G. Carlson

Articles

In 1989, the Supreme Court ruled that a third party recipient of a fraudulent conveyance had a Seventh Amendment right to a jury trial when a bankruptcy trustee brought suit for a money judgment under Bankruptcy Code section 550(a). This was because, in 1791, an English bankruptcy trustee would have brought fraudulent transfer litigation in a court of law (not a court of equity) and would have obtained a money judgment. I maintain that the Supreme Court committed the classical logical error of Quaternio Terminorum—a false analogy. The analogy was that American bankruptcy trustees are like 18th century English bankruptcy …

Metrics For Performance Quantification Of Adaptive Mesh Refinement, Nicole Beisiegel, Cristóbal E. Castro, Jörn Behrens

Articles

Non-uniform, dynamically adaptive meshes are a useful tool for reducing computational complexities for geophysical simulations that exhibit strongly localised features such as is the case for tsunami, hurricane or typhoon prediction. Using the example of a shallow water solver, this study explores a set of metrics as a tool to distinguish the performance of numerical methods using adaptively refined versus uniform meshes independent of computational architecture or implementation. These metrics allow us to quantify how a numerical simulation benefits from the use of adaptive mesh refinement. The type of meshes we are focusing on are adaptive triangular meshes that are …

The Norms Of Algorithmic Credit Scoring, Nikita Aggarwal

Articles

This article examines the growth of algorithmic credit scoring and its implications for the regulation of consumer credit markets in the UK. It constructs a frame of analysis for the regulation of algorithmic credit scoring, bound by the core norms underpinning UK consumer credit and data protection regulation: allocative efficiency, distributional fairness and consumer privacy (as autonomy). Examining the normative trade-offs that arise within this frame, the article argues that existing data protection and consumer credit frameworks do not achieve an appropriate normative balance in the regulation of algorithmic credit scoring. In particular, the growing reliance on consumers' personal data …

Acknowledgements As A Window Into Legal Academia, Jonathan Tietz, W. Nicholson Price Ii

Articles

Legal scholarship in the United States is an oddity—an institution built on student editorship, a lack of peer review, and a dramatically high proportion of solo authorship. It is often argued that this makes legal scholarship fundamentally different from scholarship in other fields, which is largely peer-reviewed by academics. We use acknowledgments in biographical footnotes from law review articles to probe the nature of legal knowledge co-production and de facto peer review in the legal literature. Using a survey and a textual analysis of about thirty thousand law review articles from 2008 to 2017, we examined the nature of knowledge …

Suicide Prevention And Mood Disorders: Self-Exclusion Agreements For Firearms As A Suicide Prevention Strategy, Melvin G. Mcinnis, Stephen B. Thompson, Sofia D. Merajver, Carl E. Schneider

Articles

Suicide involves a complex set of behaviors and emotions that lead up to actions that may be based on planning and forethought or the result of impulse. While there are a host of antecedent circumstances the presence of a mood disorder, primarily depression, is the most common factor in suicide. While management of depression is recognized as important prevention strategy in depression, the means by which suicide occurs must be a critical element of prevention. Policies that lower access to the means for suicide will decrease the fatality. Guns are associated with half of suicides and the case fatality rate …

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Articles

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the U.S. Supreme Court has endorsed companies’ ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices? This paper synthesizes and extends the existing law and economics literature by analyzing the firms’ incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

Antitrust Antitextualism, Daniel A. Crane

Articles

Judges and scholars frequently describe antitrust as a common-law system predicated on open-textured statutes, but that description fails to capture a historically persistent phenomenon:judicial disregard of the plain meaning of the statutory texts and manifest purposes of Congress. This pattern of judicial nullification is not evenly distributed: when the courts have deviated from the plain meaning or congressional purpose, they have uniformly done so to limit the reach of antitrust liability or curtail the labor exemption to the benefit of industrial interests. This phenomenon cannot be explained solely or even primarily as a tug-of-war between a progressive Congress and conservative …

The Reincorporation Of Prisoners Into The Body Politic: Eliminating The Medicaid Inmate Exclusion Policy, Mira K. Edmonds

Articles

Incarcerated people are excluded from Medicaid coverage due to a provision in the Social Security Act Amendments of 1965 known as the Medicaid Inmate Exclusion Policy (“MIEP”). This Article argues for the elimination of the MIEP as an anachronistic remnant of an earlier era prior to the massive growth of the U.S. incarcerated population and the expansion of Medicaid eligibility under the Patient Protection and Affordable Care Act of 2010. It explores three reasons for eliminating the MIEP. First, the inclusion of incarcerated populations in Medicaid coverage would signify the final erasure from the Medicaid regime of the istinction between …

Automaticity Of Lexical Access In Deaf And Hearing Bilinguals: Cross-Linguistic Evidence From The Color Stroop Task Across Five Languages, Rain G. Bosworth, Sarah C. Tyler, Eli M. Binder, Jill P. Morford

Articles

The well-known Stroop interference effect has been instrumental in revealing the highly automated nature of lexical processing as well as providing new insights to the underlying lexical organization of first and second languages within proficient bilinguals. The present cross-linguistic study had two goals: 1) to examine Stroop interference for dynamic signs and printed words in deaf ASL-English bilinguals who report no reliance on speech or audiological aids; 2) to compare Stroop interference effects in several groups of bilinguals whose two languages range from very distinct to very similar in their shared orthographic patterns: ASL-English bilinguals (very distinct), Chinese-English bilinguals (low …

Symposium: Diamond Anniversary: 75 Years Of The Lanham Act, Jessica Litman

Articles

Thank you so much for inviting me. I think this is my fifth or sixth event with the Arts and Entertainment Law Journal. It’s always lots of fun, and I learn a lot. I’ve been spending the last couple of months doing a deep dive into everything Edward Sidney Rogers with no real agenda. I’m exploring what’s there, to see if there are any interesting stories I might tell. I found a few, so this afternoon I’ll tell one of them. I want to start with the mundane observation that intellectual prop-erty and intellectual property law are global. We’ve seen …

Deployment And Control Of Adaptive Building Facades For Energy Generation, Thermal Insulation, Ventilation And Daylighting: A Review, Hani Alkhatib, Philippe Lemarchand, Brian Norton, Dominic O'Sullivan

Articles

A major objective in the design and operation of buildings is to maintain occupant comfort without incurring significant energy use. Particularly in narrower-plan buildings, the thermophysical properties and behaviour of their façades are often an important determinant of internal conditions. Building facades have been, and are being, developed to adapt their heat and mass transfer characteristics to changes in weather conditions, number of occupants and occupant’s requirements and preferences. Both the wall and window elements of a facade can be engineered to (i) harness solar energy for photovoltaic electricity generation, heating, inducing ventilation and daylighting (ii) provide varying levels of …

Adapting To Remote Library Services During Covid-19., Lydia A. Howes, Lynne Ferrell, Geoffrey S. Pettys, Adam Roloff

Articles

In response to the COVID-19 pandemic and the subsequent Stay At Home order, the Southern Illinois University Medical Library utilized new technologies and implemented new virtual service models in order to improve internal communication, and to continue providing services and resources to patrons remotely. The changes happened quickly, and the librarians faced several challenges during this time, but things went smoothly overall and there were some considerable silver linings. Several of the newly adopted technologies, service models, and virtual resource offerings proved to be extremely effective and their use will continue beyond the duration of the pandemic.

Impact Of Dynamic Sub-Populations Within Grafted Chains On The Protein Binding And Colloidal Stability Of Pegylated Nanoparticles, Delyan Hristov, Hender Lopez, Yannick Ortin, Kate O'Sullivan, Kenneth A. Dawson, Dermot F. Brougham

Articles

Polyethylene glycol grafting has played a central role in preparing the surfaces of nano-probes for biological interaction, to extend blood circulation times and to modulate protein recognition and cellular uptake. However, the role of PEG graft dynamics and conformation in determining surface recognition processes is poorly understood primarily due to the absence of a microscopic picture of the surface presentation of the polymer. Here a detailed NMR analysis reveals three types of dynamic ethylene glycol units on PEG-grafted SiO2 nanoparticles (NPs) of the type commonly evaluated as long-circulating theranostic nano-probes; a narrow fraction with fast dynamics associated with the chain …

Federalizing Tax Justice, Reuven Avi-Yonah, Orli Avi-Yonah, Nir Fishbien, Hayian Xu

Articles

The United States is the only large federal country that does not have an explicit way to reduce the economic disparities among more and less developed regions. In Germany, for example, federal revenues are distributed by a formula that takes into account the relative level of wealth of each state (the so-called Finanzausgleich, or fiscal equalization). Similar mechanisms are found in Australia, Canada, India, and other large federal countries. The United States, on the other hand, has no such explicit redistribution. Each state is generally considered equal and sovereign, and the federal government does not distribute revenues to equalize …

Address Practices Of Deaf Undergraduate Students And Faculty: A Study Of Language, Identity, And Community, Brenda Nicodemus, Maicol Formentelli, Keith Cagle, Jay Pittman

Articles

The members of a community have conventionalized linguistic structures to convey both the content of a message and the social status of the interlocutors. Crucial in the codification of interpersonal relations are address terms, which are determined by pragmalinguistic and sociopragmatic norms related to the language system, the local communicative event and the broader social context. The study examines the usage of address terms (direct address, reference, introductions) at a bilingual university that uses American Sign Language (ASL) as language of instruction and socialization, and English in teaching/learning materials, email correspondence, written announcements, inter alia. Based on interviews with Deaf …

The Potential Of Raman Spectroscopy In The Diagnosis Of Dysplastic And Malignant Oral Lesions, Ola Ibrahim, M. Toner, Steven Flint, Hugh Byrne, Fiona Lyng

Articles

Early diagnosis, treatment and/or surveillance of oral premalignant lesions are important in preventing progression to oral squamous cell carcinoma (OSCC). The current gold standard is through histopathological diagnosis, which is limited by inter and intra observer and sampling errors. The objective of this work was to use Raman spectroscopy to discriminate between benign, mild, moderate and severe dysplasia and OSCC in formalin fixed paraffin preserved (FFPP) tissues. The study included 72 different pathologies from which 17 were benign lesions, 20 mildly dysplastic, 20 moderately dysplastic, 10 severely dysplastic and 5 invasive OSCC. The glass substrate and paraffin wax background were …

Is New York's Market-To-Market Act Unconstitutionally Retroactive?, Reuven S. Avi-Yonah, David Gamage, Darien Shanske, Kirk J. Stark

Articles

In this installment of Academic Perspectives on SALT, the authors argue that if New York’s proposed Billionaire Mark-to-Market Tax Act is enacted, it should be upheld against any constitutional challenge based on retroactivity.

Japanese Quail (Coturnix Japonica) As A Novel Model To Study The Relationship Between The Avian Microbiome And Microbial Endocrinology-Based Host-Microbe Interactions, James Keane, Joshua M. Lyte, Julia Eckenberger, Nicholas Anthony, Sandip Shrestha, Daya Marasini, Karrie M. Daniels, Valentina Caputi, Annie M. Donoghue, Mark Lyte

Articles

Background

Microbial endocrinology, which is the study of neuroendocrine-based interkingdom signaling, provides a causal mechanistic framework for understanding the bi-directional crosstalk between the host and microbiome, especially as regards the effect of stress on health and disease. The importance of the cecal microbiome in avian health is well-recognized, yet little is understood regarding the mechanisms underpinning the avian host-microbiome relationship. Neuroendocrine plasticity of avian tissues that are focal points of host-microbiome interaction, such as the gut and lung, has likewise received limited attention. Avian in vivo models that enable the study of the neuroendocrine dynamic between host and microbiome are …

Noncompete Agreements In The U.S. Labor Force, Evan P. Starr, J.J. Prescott, Norman D. Bishara

Articles

Using nationally representative survey data on 11,505 labor force participants, we examine the use and implementation of noncompete agreements and the employee outcomes associated with these provisions. Approximately 18 percent of labor force participants are bound by noncompetes, with 38 percent having agreed to at least one in the past. Noncompetes are more likely to be found in high-skill, high-paying jobs, but they are also common in low-skill, low-paying jobs and in states where noncompetes are unenforceable. Only 10 percent of employees negotiate over their noncompetes, and about one-third of employees are presented with noncompetes after having already accepted job …

Deportation Arrest Warrants, Lindsay Nash

Articles

The common conception of a constitutionally sufficient warrant is one reflecting a judicial determination of probable cause, the idea being that the warrant process serves to check law enforcement. But neither the Constitution nor the Supreme Court has fully defined who can issue arrest warrants within the meaning of the Fourth Amendment; the constitutional significance of arrest “warrants” that are not; or when (if ever) warrants of any type are constitutionally required for deportation-related arrests. In that void, the largest federal law enforcement agency—the Department of Homeland Security (DHS)—is on pace to issue over 150,000 administrative “warrants” annually, authorized by …

Jack Weinstein: Reimagining The Role Of The District Court Judge, Jessica A. Roth

Articles

This essay, for a symposium issue of the Federal Sentencing Reporter dedicated to the impact of Judge Jack Weinstein on the occasion of his retirement from the federal bench, highlights how Judge Weinstein has re-imagined the role of the district court judge. Through his judicial opinions, extrajudicial writings and speeches, and his innovative use of the court’s supervisory authority, Judge Weinstein has challenged, and in some cases altered, the status quo in the realm of criminal sentencing. In doing so, he has established a forceful example of how district court judges can use their position to advocate for and effect …