Digital Commons Network^™

Trade Policing, Kathleen Claussen

Articles

At the core of U.S. economic governance, there is a novel and under-noticed phenomenon that challenges longstanding frameworks of international law and corporate compliance. This practice, which this Article terms the new "trade policing," has extraordinary reach. Recent regulatory makeovers and pathbreaking statutes empower our trade agencies to target, for the first time, companies, rather than foreign governments, as used to be their purview. Trade police now pursue companies wherever they may be in the world, not just for violating U.S. law but also for violating foreign law in areas as diverse as labor rights and environmental protections. Such a …

Cinnamon P. Carlarne, Albany Law School's Nineteenth President And Dean, Garry W. Jenkins, Katrina Fischer Kuh, Jonathan Rosenbloom, Marc Roark, Jessica Owley, Robin Kundis Craig, Keith H. Hirokawa

Articles

No abstract provided.

Mobilizable Labor Law, Scott L. Cummings, Andrew Elmore

Articles

In the history of new labor localism, city-level living wage ordinances emerging in the 1990s with Los Angeles leading the way have generally been understood as a second-best, limited antipoverty device designed to raise wage floors, with only indirect effects on organized labor. Drawing upon original archival materials, this Article offers an alternative reading of the history of the living wage in Los Angeles, showing how it was designed and operationalized as a proactive tool to rebuild union density and reshape city politics. Doing so makes four key contributions. First, the Article theorizes and empirically examines the living wage as …

Winning The Imitation Game: Setting Safety Expectations For Automated Vehicles, William H. Widen, Philip Koopman

Articles

This article suggests that legislatures amend existing law to create a new legal category of "computer driver" to allow a plaintiff to make a negligence claim against an automated vehicle manufacturer for loss proximately caused by any negligent driving behavior exhibited by the driving automation systems which it produced. Creating this new legal category will allow a status quo approach to attribution and allocation of liability, including permitting defendants to take advantage of contributory negligence and comparative fault rules. Creation of the category also allows for continued functioning of the structure of our existing liability laws and regulations for motor …

Chatgpt, Esq.: Recasting Unauthorized Practice Of Law In The Era Of Generative Ai, Joseph J. Avery, Patricia S. Abril, Alissa Del Riego

Articles

In March of 2023, OpenAI released GPT-4, an autoregressive language model that uses deep learning to produce text. GPT-4 has unprecedented ability to practice law: drafting briefs and memos, plotting litigation strategy, and providing general legal advice. However, scholars and practitioners have yet to unpack the implications of large language models, such as GPT-4, for long-standing bar association rules on the unauthorized practice of law ("UPL"). The intersection of large language models with UPL raises manifold issues, including those pertaining to important and developing jurisprudence on free speech, antitrust, occupational licensing, and the inherent-powers doctrine. How the intersection is navigated, …

Is "Public Company" Still A Viable Regulatory Category?, George S. Georgiev

Articles

This Article suggests that the ubiquitous "public company" regulatory category, as currently constructed, has outlived its effectiveness in fulfilling core goals of the modern administrative state. An ever-expanding array of federal economic regulation hinges on public company status, but "public company" differs from most other regulatory categories in that it requires an affirmative opt-in by the subject entity. In practice, firms today become subject to public company regulation only if they need access to the public capital markets, which is much less of a business imperative than it once was due to the proliferation of private financing options. Paradoxically, then, …

Brokered Abuse, Thomas E. Kadri

Articles

No abstract provided.

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

Articles

Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested far safety. Many have been shown to cause serious health harms, ranging.from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures-the Toxic Substances Control Act ("TSCA")-was long considered a dead letter after the Environmental Protection …

Reforming Shareholder Claims In Isds, Julian Arato, Kathleen Claussen, Jaemin Lee, Giovanni Zarra

Articles

ISDS stands alone in empowering shareholders to bring claims for reflective loss (SRL) – meaning claims over harms allegedly inflicted upon the company, but which somehow affect share value. National systems of corporate law and public international law regimes generally bar SRL claims for strong policy reasons bearing on the efficiency and fairness of the corporate form. Though not necessitated by treaty text, nor beneficial in policy terms, ISDS tribunals nevertheless allow shareholders broad and regular access to seek relief for reflective loss. The availability of SRL claims in ISDS ultimately harms States and investors alike, imposing surprise ex post …

Restoring Indian Reservation Status: An Empirical Analysis, Michael K. Velchik, Jeffery Zhang

Articles

In McGirt v. Oklahoma, the Supreme Court held that the eastern half of Oklahoma was Indian country. This bombshell decision was contrary to settled expectations and government practices spanning 111 years. It also was representative of an increasing trend of federal courts recognizing Indian sovereignty over large and economically significant areas of the country, even where Indians have not asserted these claims in many years and where Indians form a small minority of the inhabitants.

Although McGirt and similar cases fundamentally turn on questions of statutory and treaty interpretation, they are often couched in consequence-based arguments about the good …

The Not-So-Standard Model: Reconsidering Agency-Head Review Of Administrative Adjudication Decisions, Rebecca S. Eisenberg, Nina A. Mendelson

Articles

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed …

Back To Basics: The Benefits Of Paradigmatic International Organizations, Kristina Daugirdas, Katerina Linos

Articles

In the early 2000s, small “coalitions of the willing,” flexible networks, and nimble private-public partnerships were promoted as alternatives to bureaucratic, consensus-seeking, and slow-moving international organizations. The Global Fund to Fight AIDS, Tuberculosis and Malaria was established as an efficient alternative to the lumbering World Health Organization. The Basel Committee, the Financial Stability Forum, and the Financial Action Task Force were lauded as global market regulators. The Pompidou Group, the Dublin Group, and Interpol were touted as effective police networks in the battle against transnational crime.

We systematically reviewed the evolution of these celebrated networks in the ensuing decades by …

Feedback Loops: E-D-I-T, Patrick Barry

Articles

The Keep/Cut Framework we learned about back in the December 2022 Feedback Loops column is, admittedly, a bit of a blunt feedback instrument. When the only feedback you can give is “Keep” or “Cut,” there’s not a ton of room for nuance or gradation. Your comments are restricted to either endorsing what already exists or pushing for something to be removed. hat’s a pretty limited menu.

So in both this column and in the June 2023 column, we’re going to learn about a feedback framework that creates opportunities for a greater range of opinions and recommendations: “E-D-I-T.”

Responding To The New Major Questions Doctrine, Christopher J. Walker

Articles

The new major questions doctrine has been a focal point in administrative law scholarship and litigation over the past year. One overarching theme is that the doctrine is a deregulatory judicial power grab from both the executive and legislative branches. It limits the president’s ability to pursue a major policy agenda through regulation. And in the current era of political polarization, Congress is unlikely to have the capacity to pass legislation to provide the judicially required clear authorization for agencies to regulate major questions. Especially considering the various “vetogates” imposed by Senate and House rules, it is fair to conclude …

How Not To Lie: A Don't-Do-It-Yourself Guide For Litigators, Leonard Niehoff

Articles

Over the past few years, a number of high-profile attorneys have been sanctioned or suspended from the practice of law because they lied. The instance that probably received the greatest media attention came in June of 2021, when the Appellate Division of the Supreme Court of the State of New York ordered the immediate suspension of Rudy Giuliani’s license because he had made demonstrably false statements to the courts, lawmakers, and the public at large concerning the 2020 presidential election. In a 33- page opinion, the court considered the arguments Giuliani raised in his defense but concluded that his pants …

Assessing Visions Of Democracy In Regulatory Policymaking, Shoba Sivaprasad Wadhia, Christopher J. Walker

Articles

Motivated in part by Congress’s failure to legislate, presidents in recent years seem to have turned even more to the regulatory process to make major policy. It is perhaps no coincidence that the feld of administrative law has similarly seen a resurgence of scholarship extolling the virtues of democratic accountability in the modern administrative state. Some scholars have even argued that bureaucracy is as much as if not more democratically legitimate than Congress, either in the aggregative or deliberative sense, or both.

Pillar 2 And The Credits., Reuven S. Avi-Yonah

Articles

The international tax provisions of the Build Back Better Act (BBB) passed by the House of Representatives represent a reasonable compromise. They are consistent with the OECD’s Pillar Two statement, and they represent a significant move toward the implementation of the single tax principle (STP). In what follows, we will discuss the proposed changes and how they fit in with the new international tax regime (ITR). We will also address the possible interactions with the ITR if BBB is not enacted.

All Stick And No Carrot? Reforming Public Offerings, Stephen J. Choi, Adam C. Pritchard

Articles

The SEC heavily regulates the traditional initial public offering (IPO). Those regulatory burdens fuel interest in alternative paths for private companies to go public, “regulatory arbitrage.” The SEC’s response to the emergence of alternatives, most recently SPACs and direct listings, has been to re-assert the regulatory protections in a traditional IPO, including heightened liability under Section 11 of the Securities Act. The SEC’s treatment of the traditional IPO regulatory process as a one-size fits-all regime ignores the weaknesses of this process, in particular the informational inefficiency of the book-building process. In this essay we argue that the agency’s focus in …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Articles

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

Relative Corporate Social Performance And Cost Of Equity Capital: International Evidence, Benjamin Lynch, Martha O'Hagan-Luff

Articles

This research examines the relationship between firms' corporate social performance (CSP) and the implied cost of equity capital using a sample of 25,938 firm-year observation from 49 countries during the period from 2002 to 2021. Using estimates of the firms' ex ante cost of equity capital, we examine its relationship with industry-relative measures of the firms' CSP, its environmental and social pillars and sub-pillars. We find that increased overall CSP reduces a firm's cost of equity capital up until a point, beyond which the marginal benefits of further CSP investment decrease. We find that the social pillar is the main …

Factor Substitution Possibilities, Labor Share Dynamics, And Inequality In An Age Of Intangibles, Adnan Velic

Articles

We examine the economy-wide degree of substitutability between intangible capital and other factor inputs in production using a large sample of advanced countries. In this context, we turn to studying the implications of intangible and tangible capital growth for labor income share dynamics. Compared to tangible capital, we find that intangible capital more strongly complements skilled labor. The analysis further indicates relative fungibility between tangible capital and a composite of intangible capital and skilled labor, in line with the rising prominence of knowledge-intensive tasks and AI-driven online platforms. The intrinsic nature of intangibles and their asymmetric effects across skilled and …

The Gut Microbiota Of Broilers Reared With And Without Antibiotic Treatment, Genevieve Greene, Leonard Koolman, Paul Whyte, Catherine Burgess, Declan Bolton

Articles

The aim of this study was to examine the microbiota in broilers reared with and without antibiotics and to investigate differences between the upper, middle and lower sections of the gastrointestinal tract (GIT). One of two commercial flocks was treated with an antibiotic (T) (20 mg trimethoprim and 100 mg sulfamethoxazole per ml in the drinking water for 3 days) and the other was left untreated (UT). The GIT contents of 51 treated and untreated birds were aseptically removed from the upper (U), middle (M) and lower (L) sections. These were pooled in triplicate (n = 17 per section per …

Individual And Combined Antioxidant Activity Of Spices And Spice Phenolics, Mohammad Hossain, Lubna Ahmed, Anna Belen Martin-Diana, Nigel P. Bruton, Catherine Barry-Ryan

Articles

The present study investigated the interaction effects (additive, synergistic, and antagonistic) of different groups of spices, their constituent phenolic compounds, and synthetic antioxidants on the total phenol (TP) content and antioxidant activity, as measured by the ferric-reducing antioxidant power (FRAP) of the mixtures. The results showed that there was an additive effect in all the groups studied, except for the group containing turmeric or curcumin. The groups containing turmeric or curcumin showed a moderate synergistic effect. Among the groups of spices, the highest summated TP (50.6 mg GAE/mL) and FRAP (106.2 mg Trolox/mL) values were observed in the group containing …

The Gross Injustices Of Capital Punishment: A Torturous Practice And Justice Thurgood Marshall’S Astute Appraisal Of The Death Penalty’S Cruelty, Discriminatory Use, And Unconstitutionality, John D. Bessler

Articles

Through the centuries, capital punishment and torture have been used by monarchs, authoritarian regimes, and judicial systems around the world. Although torture is now expressly outlawed by international law, capital punishment—questioned by Quakers in the seventeenth century and by the Italian philosopher Cesare Beccaria and many others in the following century—has been authorized over time by various legislative bodies, including in the United States. It was Beccaria’s book, Dei delitti e delle pene (1764), translated into French and then into English as An Essay on Crimes and Punishments (1767), that fueled the still-ongoing international movement to outlaw the death penalty. …

Informationalism Beyond Managerialism, Salome Viljoen

Articles

It is now commonplace to observe that digital platforms are both affecting and reshaping markets. The focus of this Article is not the anticompetitive effects of digital platforms upon the markets they enter. It instead focuses on digital platforms themselves as market mechanisms. Information—especially datafied information about people and their behavior—and information technologies have transformed how many markets function in the digital economy. Markets have become market machines: highly engineered and computationally intensive market-like mechanisms that make up a key layer of technological infrastructure within digital platforms.

Toward Inclusive Online Environments: Counterfactual-Inspired Xai For Detecting And Interpreting Hateful And Offensive Tweets, Muhammad Deedahwar Mazhar Qureshi, Muhammad Atif Qureshi, Wael Rashwan

Articles

The prevalence of hate speech and offensive language on social media platforms such as Twitter has significant consequences, ranging from psychological harm to the polarization of societies. Consequently, social media companies have implemented content moderation measures to curb harmful or discriminatory language. However, a lack of consistency and transparency hinders their ability to achieve desired outcomes. This article evaluates various ML models, including an ensemble, Explainable Boosting Machine (EBM), and Linear Support Vector Classifier (SVC), on a public dataset of 24,792 tweets by T. Davidson, categorizing tweets into three classes: hate, offensive, and neither. The top-performing model achieves a weighted …

Learnings From A National Cyberattack Digital Disaster During The Sars-Cov-2 Pandemic In A Pediatric Emergency Medicine Department, Fiona Leonard, Hugh O'Reilly, Carol Blackburn, Laura Melody, Dani Hall, Eleanor Ryan, Kate Bruton, Pamela Doyle, Bridget Conway, Michael Barrett

Articles

Objective: The primary objective was to analyze the impact of the national cyberattack in May 2021 on patient flow and data quality in the Paediatric Emergency Department (ED), amid the SARS-CoV-2 (COVID-19) pandemic. Methods: A single site retrospective time series analysis was conducted of three 6-week periods: before, during, and after the cyberattack outage. Initial emergent workflows are described. Analysis includes diagnoses, demographic context, key performance indicators, and the gradual return of information technology capability on ED performance. Data quality was compared using 10 data quality dimensions. Results: Patient visits totaled 13 390. During the system outage, patient experience times …

New Fxlmat-Based Algorithms For Active Control Of Impulsive Noise, Alina Mirza, Farkhanda Afzal, Ayesha Zeb, Abdul Wakeel, Waqar Shahid Qureshi, Ali Akgul

Articles

In the presence of non-Gaussian impulsive noise (IN) with a heavy tail, active noise control (ANC) algorithms often encounter stability problems. While adaptive filters based on the higher-order error power principle have shown improved filtering capability compared to the least mean square family algorithms for IN, however, the performance of the filtered-x least mean absolute third (FxLMAT) algorithm tends to degrade under high impulses. To address this issue, this paper proposes three modifications to enhance the performance of the FxLMAT algorithm for IN. To improve stability, the first alteration i.e. variable step size FxLMAT (VSSFxLMAT)algorithm is suggested that incorporates the …

Argframe: A Multi-Layer, Web, Argument-Based Framework For Quantitative Reasoning, Lucas Rizzo

Articles

Multiple systems have been proposed to perform computational argumentation activities, but there is a lack of options for dealing with quantitative inferences. This multi-layer, web, argument-based framework has been proposed as a tool to perform automated reasoning with numerical data. It is able to use boolean logic for the creation of if-then rules and attacking rules. In turn, these rules/arguments can be activated or not by some input data, have their attacks solved (following some Dung or rank-based semantics), and finally aggregated in different fashions in order to produce a prediction (a number). The framework is implemented in PHP for …

Enhancing The Prediction For Shunt‑Dependent Hydrocephalus After Aneurysmal Subarachnoid Hemorrhage Using A Machine Learning Approach, Dietmar Frey, Adam Hilbert, Anton Früh, Vince Istvan Madai, Tabea Kossen, Julia Kiewitz, Jenny Sommerfeld, Peter Vajkoczy, Meike Unteroberdörster, Esra Zihni, Sophie Charlotte Brune, Stefan Wolf, Nora Franziska Dengler

Articles

Early and reliable prediction of shunt-dependent hydrocephalus (SDHC) after aneurysmal subarachnoid haemorhage (a SAH) may decrease the duration of in-hospital stay and reduce the risk of catheter-associated meningitis. Machine learning (ML) may improve predictions of SDHC in comparison to traditional non-ML methods. ML models were trained for CHESS and SDASH and two combined individual feature sets with clinical, radiographic, and laboratory variables. Seven different algorithms were used including three types of generalized linear models (GLM) as well as a tree boosting (Cat Boost) algorithm, a Nave Bayes (NB) classifier, and a multilayer perceptron (MLP) artificial neural net. The discrimination of …