Digital Commons Network^™

Energy Partisanship, Hari M. Osofsky, Jacqueline Peel

Articles

Whether the topic is the Paris Agreement on climate change, greenhouse gas emissions from power plants, the Keystone XL pipeline, hydraulic fracturing, offshore drilling, or renewable energy, much of the U.S. policy dialogue about energy and climate change is deeply partisan. Republicans and Democrats debate individual issues in vitriolic sound bites that indicate minimal common ground. For example, officials favoring robust action on climate change are charged with engaging in a “War on Coal.” Those opposed are labeled “members of the Flat Earth Society.” Set against these dysfunctional climate and energy politics, how can progress be made? For people who …

'Against All Odds': Head Chefs Profiled, Máirtín Mac Con Iomaire, Hannah Allen

Articles

This study based on a survey of 170 head chefs provides the first comprehensive empirical data on the profile of head chefs in the Republic of Ireland. Eighty-four percent of head chefs were male and the majority (48.8%) were in their thirties. There is an increased rise in the attainment of degrees (currently at 35%), but findings showed that it takes years to advance in the industry, where there is a high rate of turnover. This article both reviews and adds to the international literature on the occupation of chef and raises questions for further research such as: Why are …

Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott

Articles

The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence …

Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes

Articles

No abstract provided.

What Should Tribes Expect From Federal Regulations? The Bureau Of Land Management's Fracking Rule And The Problems With Treating Indian And Federal Lands Identically, Monte Mills

Articles

On March 26, 2015, the Bureau of Land management (BLM) published its Final Rule regarding Hydraulic Fracturing on Federal and Indian Lands (Final Rule). Work on the Rule had begun nearly four and a half years earlier as a way to update the agency’s outdated regulatory scheme to account for new fracking technology and growing public concern over the practice and potential safety concerns related to fracking.

The Final Rule amassed a number of procedural and substantive requirements for fracking operations and proposed to apply these standards uniformly to both public lands and lands held in trust by the Federal …

Branding Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

Fundamental Rights In A Post-Obergefell World, Peter Nicolas

Articles

In this Article, I identify and critically examine three substantive criticisms raised by the dissents in the Supreme Court's 2015 decision in Obergefell v. Hodges, which struck down state laws and constitutional provisions barring same-sex couples from marrying within the state or having their out-of-state marriages recognized by the state. First, that the majority improperly framed the right at issue broadly as the right to marriage instead of narrowly as the right to same-sex marriage, conflicting with the Court's holding in Washington v. Glucksberg that in fundamental rights cases the right at issue must be framed narrowly, and in …

Bringing Demonstrative Evidence In From The Cold: The Academy's Role In Developing Model Rules, Maureen A. Howard, Jeffry C. Barnum

Articles

To this day, judges and advocates struggle with the definition and use of "demonstrative evidence." The ambiguity of this term (or its close cousins "illustrative evidence" and evidence offered "for illustrative purposes only") infects the judicial process with uncertainty, hindering advocates when preparing for trial and, in some cases, producing erroneous verdicts. For example, the Seventh Circuit recently reversed a case for improper use of a demonstrative exhibit, and on retrial the result swung from a defense verdict to an $11 million plaintiffs victory. Uncertainty about the admission and use of demonstrative evidence has festered for decades. Lawyers innovate in …

Creative Capitalism And Human Trafficking: A Business Approach To Eliminate Forced Labor And Human Trafficking From Global Supply Chains, Dana Raigrodski

Articles

A great amount of revenue generated by businesses in the global economy can be linked to the trafficking and enslavement of human beings. Yet, the current discourse on human trafficking fails to recognize the magnitude of benefit consumers, businesses, and economies gain from the work of forced and trafficked labor. Moreover, the limited efforts that seek to address this situation have focused on ways to encourage businesses to voluntarily adopt more socially responsible practices. These measures have had only limited success, and are generally believed to be in tension with the for-profit purposes of businesses.

Hence, the task of convincing …

Robots As Legal Metaphors, Ryan Calo

Articles

This Article looks at the specific role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies that courts select for emerging technology can be outcome determinative. Privacy law scholar Professor Daniel Solove argues convincingly, for instance, that George Orwell's Big Brother metaphor has come to dominate, and in ways limit, privacy law and policy in the United States. Even at a more specific, practical level, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection she is …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

Articles

Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …

Controlling Presidential Control, Kathryn A. Watts

Articles

Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

Police Stories, Helen A. Anderson

Articles

As lawyers and judges know, the facts, and the stories created with those facts, make the law: “[A] case well stated is more than half argued.” The police narrative is one of the most common narratives in legal writing, simply because there are so many criminal cases, as well as numerous civil cases, involving police. For the most part, these narratives tell the familiar story of the hardworking, careful police officer in a challenging situation with dangerous criminals.

These narratives do much of the work of an appellate argument, just as Chief Justice Robert’s story about Officer Devlin makes the …

Reasons For Counseling Reasonableness In Deploying Covenants-Not-To-Compete In Technology Firms, Robert W. Gomulkiewicz

Articles

Some states ban the enforcement of employee covenants-not-to-compete (“non-competes”) but most enforce them to the extent they are reasonable. As such, “reasonableness” provides the touchstone for enforceability analysis. The academic literature commenting on the reasonableness of non-competes is large and growing. Scholars usually direct their comments to judges, legislators, and other scholars.

Rarely do they address practicing lawyers. That omission is particularly unfortunate because practicing lawyers, more than judges, legislators, and scholars, can affect whether non-competes work both fairly and effectively. This Article fills that void by providing reasons, directed to practicing lawyers, for deploying non-competes in a reasonable manner. …

Federal Treaty And Trust Obligations, And Ocean Acidification, Robert T. Anderson

Articles

Ocean acidification will have profound effects on the entire human population and natural resources that depend in any way upon Earth’s oceans and lakes. In turn, those effects will be even greater, and potentially catastrophic, for indigenous populations who rely on the seas for physical, cultural, and spiritual sustenance. While most research on carbon dioxide absorption from the atmosphere has focused on oceans and the resulting acidification, many believe that acidification levels also will also increase in the Great Lakes. Indian tribes in the Pacific Northwest and the Great Lakes regions share reliance on marine and freshwater resources, and many …

Copyright's Illogical Exclusion Of Conceptual Art That Changes Over Time, Zahr K. Said

Articles

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection.

There are of course both normative and descriptive questions around the …

The Risks Of Clouded Property Title For Cannabis Business Owners, Investors, And Creditors, Sean M. O'Connor, Jason Liu

Articles

This Article provides a brief primer on the surprising range of assets that the Controlled Substances Act forfeiture provisions govern for the state-legal cannabis businesses. It outlines these provisions for tangible as well as intangible property, with an emphasis on risks to state-legal cannabis businesses’ intellectual property and issued securities.

We argue that these forfeiture risks create clouded title for all subject tangible and intangible property—not only for the state-legal businesses and their proprietors, but also for those businesses’ outside investors, creditors, and suppliers/contractors.

The Revival Of Climate Change Science In U.S. Courts, William H. Rodgers, Jr., Andrea K. Rodgers

Articles

Science never has been the obstacle to the recognition of climate change. Since Arhennius did his original calculations in 1896, the scientific world was quite aware of the prospect that industrial-age levels of carbon dioxide pollution would result in increasing global temperatures and acidification of the world’s oceans. The brilliant—and striking—graphical display that we know today as the Keeling Curve started in 1957, and year after year it records the relentless upward march of these atmospheric pollutant loadings.

Through the years, necessarily, a vast number of scientific warnings, publications, findings, and predictions would be offered to the public at large, …

The Rhetoric Of Negative Externalities, Claire Hill

Articles

The concept of negative externalities is firmly entrenched in economic analysis even though it is almost impossible to apply with any rigor in many important real-world contexts. For instance, what is the baseline from which “pollution” is measured? How clean must the air and water surrounding the firm be? And whose costs must the firm take into account in order to internalize the externalities? Clearly, the firm’s next door neighbors harmed by the polluted air generated by the firm. But what about people who are more remotely affected? There is no neutral way to set the baseline below which deviations …

Remaking Energy: The Critical Role Of Energy Consumption Data, Alexandra Klass, Elizabeth Wilson

Articles

This Article explores the public policy benefits associated with increased access to energy consumption data as well as the legal and institutional barriers that currently prevent such access. As state and local governments as well as electricity users attempt to improve the efficiency of their buildings, reduce greenhouse gas emissions, and realize the promises of improved demand side management of energy resources, the need for electricity and other energy-related data becomes even more pressing. But the current law that balances making energy consumption data available against any privacy or confidentiality interests in the data is underdeveloped. Thus, this Article draws …

Interpretive Modesty, Heidi Kitrosser

Articles

“New originalism” presents a profound challenge to originalist determinacy – that is, to the notion that original constitutional meanings alone can resolve most constitutional controversies. While new originalists purport to seek out and adhere to original meanings of constitutional provisions, they acknowledge that some original meanings are too thin to fully resolve many constitutional questions. Such acknowledgment stands in sharp tension with traditional claims of originalist determinacy. While new originalism improves on “old originalism” in important ways, the former’s break from determinacy is not clean enough. New originalists are correct that it is neither epistemologically defensible nor normatively preferable to …

Friending The Privacy Regulators, William Mcgeveran

Articles

According to conventional wisdom, data privacy regulators in the European Union are unreasonably demanding, while their American counterparts are laughably lax. Many observers further assume that any privacy enforcement without monetary fines or other punishment is an ineffective “slap on the wrist.” This Article demonstrates that both of these assumptions are wrong. It uses the simultaneous 2011 investigation of Facebook’s privacy practices by regulators in the United States and Ireland as a case study. These two agencies reached broadly similar conclusions, and neither imposed a traditional penalty. Instead, they utilized “responsive regulation,” where the government emphasizes less adversarial techniques and …

Pursuing A Single Mission (Or Something Closer To It) For The Irs, Kristin Hickman

Articles

It is often said that taxes are the lifeblood of government. As the nation’s tax collector, the IRS serves a critical function without which the federal government would cease to function. Yet the IRS is an agency in crisis—mired in scandal, chronically underfunded, overreliant on automation, and failing to provide taxpayers with the support they need to comply with the tax laws and pay their taxes. This Essay argues that a major contributor to the IRS’s woes is Congress’s penchant in recent decades for utilizing the IRS to administer social welfare and regulatory programs that are only tangentially related to …

Impedance Biosensor Incorporating A Carboxylate-Terminated Bidentate Thiol For Antibody Immobilization, Rajeswaran Radhakrishnan, Madhavi Pali, Han Ju Lee, Thomas Randall Lee, Ian Suni

Articles

An impedance biosensor is reported that employs the bidentate thiol, 16-[3,5-bis(mercaptomethyl)phenoxy]-hexadecanoic acid (BMPHA), as a bifunctional reagent for antibody immobilization atop an Au electrode, and the results are compared to those obtained for the analogous monodentate reagent, 16-mercaptohexadecanoic acid (16 MHA). The detection limit for peanut protein Ara h 1 on the BMPHA bidentate thiol- coated Au electrode is approximately 0.71 ng/mL (0.01 nM), about 3x lower than that obtained on the comparable monodentate (16-MHA) thiol-coated Au electrode. Daily impedance measurements were employed to study antibody regeneration with a mild denaturing agent, 0.2 M KSCN at pH 7.3. The antibody-coated …

Electrodeposition Of Mos2 For Charge Storage In Electrochemical Supercapacitors, Daniel Falola, Tomasz Wiltowski, Ian Suni

Articles

Mo sulfide thin films were cathodically electrodeposited onto glassy carbon electrodes (GCE) from aqueous electrolytes containing 10 mM (NH₄)₂MoS₄ and 0.2 M KCl. Film adhesion was adequate only for electrodes pretreated by potential cycling in 1.0 M HNO₃ and 0.1 M NaF to enhance the surface roughness and partially oxidize the GCE. Previous studies report direct cathodic electrodeposition of MoS₂, but energy dispersive x-ray spectroscopy and x-ray diffraction suggest that the as-deposited film is closer in stoichiometry to MoS₃, which can be converted to MoS₂ by annealing in Ar …

Archivists And Thespians: A Case Study And Reflections On Context And Authenticity In A Digitization Project, Matthew J. Gorzalski

Articles

During a recent digitization project between archivists and theater faculty at Southern Illinois University Carbondale (SIUC), different assumptions and perspectives revealed competing ideas about context and authenticity of primary sources. This article discusses these points of contention by framing them within similar concerns expressed in the archival and humanities literature. It then examines theater literature to understand performance studies research needs and to conceptualize notions of context and authenticity in theater scholarship. The article supports prior assertions that notions of context and authenticity are not absolute but are rooted in the perspectives of different disciplines. It also argues that when …

Piperlongumine (Piplartine) And Analogues: Antiproliferative Microtubule-Destabilising Agents, Mary J. Meegan, Seema M. Nathwani, Brendan Twamley, Daniela M. Zisterer, Niamh O'Boyle

Articles

Piperlongumine (piplartine, 1) is a small molecule alkaloid that is receiving intense interest due to its antiproliferative and anticancer activities. We investigated the effects of 1 on tubulin and microtubules. Using both an isolated tubulin assay, and a combination of sedimentation and Western blotting, we demonstrated that 1 is a tubulin-destabilising agent. This result was confirmed by immunofluorescence and confocal microscopy, which showed that microtubules in MCF-7 breast cancer cells were depolymerised when treated with 1. We synthesised a number of analogues of 1 to explore structure-activity relationships. Compound 13 had the best cytotoxic profile of this series, …

Enhanced Cognition And Hypoglutamatergic Signaling In A Growth Hormone Receptor Knockout Mouse Model Of Successful Aging., Kevin N Hascup, Mary K Lynn, Patrick J Fitzgerald, Shari Randall, John J Kopchick, Heather A Boger, Andrzej Bartke, Erin R Hascup

Articles

Growth hormone receptor knockout (GHR-KO) mice are long lived with improved health span, making this an excellent model system for understanding biochemical mechanisms important to cognitive reserve. The purpose of the present study was to elucidate differences in cognition and glutamatergic dynamics between aged (20- to 24-month-old) GHR-KO and littermate controls. Glutamate plays a critical role in hippocampal learning and memory and is implicated in several neurodegenerative disorders, including Alzheimer's disease. Spatial learning and memory were assessed using the Morris water maze (MWM), whereas independent dentate gyrus (DG), CA3, and CA1 basal glutamate, release, and uptake measurements were conducted in …

Sport, Unity And Conflict: An Enduring Social Dynamic, Paddy Dolan, John Connolly

Articles

The purpose of this article is largely to serve as an introduction to this special issue on sport, unity and conflict. This was the theme of the European Association for Sociology of Sport conference in 2015, held in Dublin, Ireland. The special issue contains articles by the three keynote speakers of the conference – Randall Collins, Anthony King and Roberta Sassatelli. Each dealt with the theme in different, yet compatible, and highly thought-provoking ways. This article will also attempt to elaborate on the theme and argue for the continued significance of the place of unification and conflict processes within sport, …

Can Sport Be ‘Un-Political’?, Ansgar Thiel, Anna Vilanova, Martin Toms, Lone Friis Thing, Paddy Dolan

Articles

Sports officials often claim that sport has to be ‘un-political’. This argument is most notably made in two contexts: Firstly, when the decision of awarding Olympic Games or World Championships to nations that struggle with human right issues is justified by the IOC or other international sporting federations. Secondly, when athletes express their concern over social injustices with symbolic gestures of protest in sports-specific contexts.