Digital Commons Network^™

Checks, Not Balances, Joshua C. Macey, Brian M. Richardson

Articles

Critics of the administrative state who would revive the nondelegation doctrine and embrace the unitary theory of executive power often assume that each branch’s powers are capable of precise definition, functionally distinct from the others, and that the formal boundaries between each branch are sacrosanct. This Article situates these critiques in Founding Era and nineteenth century debates about the structure of the Constitution. In the 1780s, the AntiFederalists objected to the Constitution for failing to enumerate a precise taxonomy of each branch’s powers, for failing to specify that each branch’s powers were exclusive, and for failing to make government officials …

Symposium Introduction: This Violent City? Urban Violence In Chicago And Beyond, Aziz Z. Huq, John Rappaport

Articles

To many, the city of Chicago conjures up a specter of unremitting urban violence. In 2014, the city was labeled the “murder capital” of the United States.¹ The following year, a video of the police shooting Laquan McDonald became a cynosure of public concern.² Commentators as disparate as Spike Lee and President Donald Trump agree: Chicago is uniquely bloody.³ Predictably, the empirical data about Chicago’s crime and policing trends belie the most dramatic of these claims.⁴ Yet if Chicago is not as violent as either Lee or Trump makes it out to be, the city’s experience …

Nonparty Interests In Contract Law, Omri Ben-Shahar, David A. Hoffman, Cathy Hwang

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Contract law has one overarching goal: to advance the legitimate interests of the contracting parties. For the most part, scholars, judges, and parties embrace this party primacy norm, recognizing only a few exceptions, such as mandatory rules that bar enforcement of agreements that harm others. This Article describes a distinct species of previously unnoticed contract law rules that advance nonparty interests, which it calls “nonparty defaults.”

In doing so, this Article makes three contributions to the contract law literature. First, it identifies nonparty defaults as a judicial technique. It shows how courts deviate from the party primary norm with surprising …

Procedural Losses And The Pyrrhic Victory Of Abolishing Qualified Immunity, Adam A. Davidson

Articles

Who decides? Failing to consider this simple question could turn attempts to abolish qualified immunity into a Pyrrhic victory. That is because removing qualified immunity does not change the answer to this question; the federal courts will always decide. For an outcome-neutral critic of qualified immunity who cares only about its doctrinal failures, this does not matter. But for the vast majority of critics who are outcome- sensitive, meaning they care about qualified immunity because of its role in police accountability, this is a troubling realization. Building on earlier work on the equilibration thesis, as well as on qualitative and …

Open Access, Interoperability, And Dtcc’S Unexpected Path To Monopoly, Dan Awrey, Joshua C. Macey

Articles

For markets characterized by significant economies of scale, scholars and policy- makers o�en advance open-access and interoperability requirements as superior to both regulated monopoly and the breakup of dominant firms. In theory, by compelling firms to coordinate in the development of common infrastructure, these requirements can replicate the advantages of scale without leaving markets vulnerable to monopoly power. Examples of successful coordination include the provision of electricity, intermodal transportation, and credit-card networks.

This Article offers a qualification to this received wisdom. By tracing the Depository Trust and Clearing Corporation’s path to monopoly in the U.S. securities clearing and depository markets, …

Beyond Purposivism In Tax Law, Jonathan H. Choi

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No abstract provided.

Will Competition Reduce Attention Costs In Social Media?, Francesco Parisi

Articles

Unlike other monopolies, social media networks almost uniformly give access to their services for free to everybody. Economists refer to these markets as “zero-price markets.” The main, and often sole, source of revenue for the network owners comes from fees that are paid by advertisers. Network owners offer access to users in exchange for users’ attention to advertisements. Economists refer to these implicit market exchanges under the heading of “attention economy.” Regulatory solutions and antitrust remedies have been considered to foster cost reduction in the market economy. This paper investigates the conditions under which an increase in competition in the …

Fifty Years Of Patent Remedies Case Law: Two Steps Forward, One Step Back, Thomas F. Cotter

Articles

Over the past fifty years, courts have developed a body of case law on patent remedies that is, in many respects, solidly grounded in economic reasoning. Among the high points are the courts’ embrace, in various contexts, of the simple principle that patent damages should restore patent owners to the position they would have occupied, but for the infringement—and of an important corollary to that principle, namely the importance to damages calculations of the “noninfringing alternatives” concept. By contrast, certain other developments—including the confusing standards for determining when it is appropriate to use the “entire market value” of a product …

The Many Faces Of Modern Legal Realism, Brian Bix

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This work offers an overview of the consequences and implications of the work of the American Legal Realists. First, the article considers Brian Leiter’s naturalist understanding of the realist project and how he uses it as an occasion to argue for a generally naturalist approach to legal philosophy. Second, Frederick Schauer transforms a legal realist-like focus on the concerns of average citizens for legal enforcement to advocate for the view that coercion is central to understanding law. Third, self-styled New Legal Realists try to merge a realist-inspired search for the effects of legal rules with a more traditional respect for …

Chatgpt Goes To Law School, Jonathan Choi, Kristin E. Hickman, Amy B. Monahan, Daniel Benjamin Schwarcz

Articles

How well can AI models write law school exams without human assistance? To find out, we used the widely publicized AI model ChatGPT to generate answers to the final exams for four classes at the University of Minnesota Law School. We then blindly graded these exams as part of our regular grading processes for each class. Over ninety-five multiple-choice questions and twelve essay questions, ChatGPT performed on average at the level of a C+ student, achieving a low but passing grade in all four courses. After detailing these results, we discuss their implications for legal education and lawyering. We also …

January 6, Ambiguously Inciting Speech, And The Overt-Acts Rule, Alan Rozenshtein, Jed Handelsman Shugerman

Articles

A prosecution of Donald Trump for his role in the January 6 attack on the Capitol would have to address whether the First Amendment protects the inflammatory remarks he made at the “Stop the Steal” rally. A prosecution based solely on the content of Trump’s speech—whether for incitement, insurrection, or obstruction—would face serious constitutional difficulties under Brandenburg v. Ohio’s dual requirements of intent and likely imminence. But a prosecution need not rely solely on the content of Trump’s speech. It can also look to Trump’s actions: his order to remove the magnetometers from the entrances to the rally and his …

The Banality Of Evil (?): The Strange(Ly Quiet) Careers Of Korematsu And Hirabayashi In The Federal Circuit Courts, 1943‐2016, Scott Dewey

Articles

Korematsu v. United States (1944) and Hirabayashi v. United States (1943), the most famous Supreme Court cases associated with the tragic internment of Japanese Americans during World War II, now “live in infamy”, along with the likes of Plessy v. Ferguson and Scott v. Sandford, among the worst constitutional law train-wrecks of American legal history. Ironically, American courts and judges also used the two towering internment cases for their resounding language supporting racial equality and non-discrimination. In either guise, the cases came to cast a long shadow over America’s legal landscape. Thus, it may be somewhat surprising to discover that …

"You're Fired": Criminal Use Of Presidential Removal Power, Richard Painter

Articles

If Donald Trump wins the 2024 election, his first order of business would be to use his power as president to halt the criminal investigations against him. In the case of federal indictments, he would likely begin by removing the special counsel, and then proceeding to remove anyone else who had control over the investigations or prosecutions. Such removal would likely constitute the crime of obstruction of justice. May a President do this? This Article addresses a narrow but critically important aspect of presidential authority: the intersection between the President’s power to remove executive branch officers and criminal laws that …

Garbage In, Garbage Out: Improved Citators Through Improved Citations, Andrew J. Martineau

Articles

This article shows the continued need for the adoption of a universal, medium- and vendor-neutral citation format by examining how negative case treatment can be discerned algorithmically from Bluebook signals. Although traditional citations to case reporters are treated as machine-readable identifiers by contemporary research databases, the shortcomings of this format result in unnecessary errors and lag time in citators that discern negative treatment information from Bluebook-formatted citations alone. By adopting a universal citation format, as well as a small set of citation "best practices, " we would see significant improvements in these kinds of purely algorithmic citators. The greater the …

Promoting Patent Practitioner Diversity: Expanding Non-Jd Pathways And Removing Barriers, Christopher M. Turoski

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No abstract provided.

From Mandates To Governance: Restructuring The Employment Relationship, Brett Mcdonnell, Matthew Bodie

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No abstract provided.

Preparing Engineering Students For The Challenges Of The Sdgs: What Competences Are Required?, Una Beagon, Klara Kövesi, Brad Tabas, Bente Nørgaard, Riitta Lehtinen, Brian Bowe, Christiane Gillet, Claus Monrad Spliid

Articles

Despite the emerging discussions about the growing role of engineers in achieving the Sustainable Development Goals (SDGs), there is a lack of agreement on which competences should be prioritised to prepare engineering students to resolve future sustainability challenges. This study examined and compared the views of key stakeholders of engineering education (Academics, Employers and Students) using twelve focus groups in Denmark, Finland, France and Ireland. The findings were mapped against competences identified in previous studies to highlight gaps and opportunities for development. The results confirm the strong emphasis on normative, strategic and systems thinking competences in engineering. However, the outcomes …

Passion Projects In Law Librarianship: A Belated Tribute To Igor Kavass And His Personal Mission To Acquire And Organize U.S. International Agreements, Loren Turner

Articles

In December 2020, Oona Hathaway, Curtis Bradley, and Jack Goldsmith, law professors at Yale, Chicago, and Harvard, respectively, published their article, The Failed Transparency Regime for Executive Agreements: An Empirical and Normative Analysis, in the Harvard Law Review. The article reveals that the U.S. executive branch consistently fails to comply with federal requirements to report and publish the international agreements it makes with foreign countries. As a result, Congress and the American public regularly lack access to legal information to which they are entitled under federal law. Additionally, Hathaway, Bradley, and Goldsmith identify a particular time when our already-inadequate access …

Revolt Against The U.S. Hegemony: Judicial Divergence In Cyberspace, Dongsheng Zang

Articles

This Article contributes to our understanding of the current state of cyber law. The global perspective demonstrates an almost uniform response to the U.S. law in cyberspace from all of America's major trading partners. In the past, comparative studies tended to focus on a single jurisdiction-typically, the European Union-and compared it with the United States. This approach, informative as it was, significantly understated the gravity of the differences between that jurisdiction and the United States. Fundamentally, it was based on an American-centric outlook with primary interests in building convergence models. In cyberspace, however, this is simply not helpful. In recent …

Bostock: An Inevitable Guarantee Of Heightened Scrutiny For Sexual Orientation And Transgender Classifications, Kaleb Byars

Articles

n June 2020, the Supreme Court decided Bostock v. Clayton County. In Bostock, the Court held that discrimination on the basis of sexual orientation and transgender status per se constitutes discrimination "because of sex" for purposes of Title VIL But Bostock inspires the question of whether its holding and reasoning apply in other contexts, including the Equal Protection Clause context. While the Supreme Court has held intermediate scrutiny applies to sex classifications analyzed under the Equal Protection Clause, the Court has yet to elucidate the level of scrutiny that applies to LGBTQ classifications. Meanwhile, state and federal courts …

A Modified Spectroscopic Approach For The Real-Time Detection Of Pollen And Fungal Spores At A Semi-Urban Site Using The Wibs-4+, Part I, Emma Markey, Jerry Hourihane Clancy, Moisés Martínez-Bracero, Finnian Neeson, Roland Sarda-Estève, Dominique Baisnée, Eoin Mcgillicuddy, Gavin Sewell, David J. O’Connor

Articles

The real-time monitoring of primary biological aerosol particles (PBAP) such as pollen and fungal spores has receivedmuch attention in recent years as a result of their health and climatic effects. In this study, theWideband Integrated Bioaerosol Sensor (WIBS) 4+ model was evaluated for its ability to sample and detect ambient fungal spore and pollen concentrations, compared to the traditional Hirst volumetric method. Although the determination of total pollen and fungal spore ambient concentrations are of interest, the selective detection of individual pollen/fungal spore types are often of greater allergenic/agricultural concern. To aid in this endeavour, modifications were made to the …

Disarmament, Demobilization, And Reintegration In Colombia: Lost Human Rights Opportunities For Ex-Combatants With Disabilities, Minerva Rivas Velarde, Janet E. Lord, Michael Ashley Stein, Thomas Shakespeare

Articles

This article examines whether and how the circumstances of Colombian ex-combatants with disabilities were recognized in the disarmament, demobilization, and reintegration (DDR) processes in the period following the adoption of the 2016 peace agreement. Our results suggest severe procedural and substantive shortcomings during the drafting of the peace agreement and the implementation of the DDR processes that exacerbated the exclusion of ex-combatants with disabilities from available opportunities for their social, economic, and political reintegration. We conclude that a better understanding of the disabling impact of conflict and the exp

Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak

Articles

As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …

Assessing Sex-Specific Circadian, Metabolic, And Cognitive Phenotypes In The Aβpp/Ps1 And Appnl-F/Nl-F Models Of Alzheimer's Disease., Jesse Britz, Emmanuel Ojo, Asmita Dhukhwa, Takashi Saito, Takaomi C Saido, Erin R Hascup, Kevin N Hascup, Shelley A Tischkau

Articles

BACKGROUND: Circadian disruption has long been recognized as a symptom of Alzheimer's disease (AD); however, emerging data suggests that circadian dysfunction occurs early on in disease development, potentially preceding any noticeable cognitive deficits.

OBJECTIVE: This study compares the onset of AD in male and female wild type (C57BL6/J), transgenic (AβPP/PS1), and knock-in (APPNL-F/NL-F) AD mouse models from the period of plaque initiation (6 months) through 12 months.

METHODS: Rhythmic daily activity patterns, glucose sensitivity, cognitive function (Morris water maze, MWM), and AD pathology (plaques formation) were assessed. A comparison was made across sexes.

RESULTS: Sex-dependent hyperactivity in AβPP/PS1 mice was …

Trade Transparency: A Call For Surfacing Unseen Deals, Kathleen Claussen

Articles

For many years, the executive branch has concluded foreign commercial agreements with trading partners pursuant to delegated authority from Congress. The deals govern the contours of a wide range of U.S. inbound and outbound trade: from food safety rules for imported products to procedures and specifications of exported goods, to name two. The problem is that often no one-apart from the executive branch negotiators- knows what these deals contain. A lack of transparency rules has inhibited the publication of and reporting to Congress of these unseen deals. Dozens if not hundreds of foreign commercial deals are unseen in two ways: …

Assessing Sex-Specific Circadian, Metabolic, And Cognitive Phenotypes In The Aβpp/Ps1 And Appnl-F/Nl-F Models Of Alzheimer's Disease., Jesse Britz, Emmanuel Ojo, Asmita Dhukhwa, Takashi Saito, Takaomi C Saido, Erin R Hascup, Kevin N Hascup, Shelley A Tischkau

Articles

BACKGROUND: Circadian disruption has long been recognized as a symptom of Alzheimer's disease (AD); however, emerging data suggests that circadian dysfunction occurs early on in disease development, potentially preceding any noticeable cognitive deficits.

OBJECTIVE: This study compares the onset of AD in male and female wild type (C57BL6/J), transgenic (AβPP/PS1), and knock-in (APPNL-F/NL-F) AD mouse models from the period of plaque initiation (6 months) through 12 months.

METHODS: Rhythmic daily activity patterns, glucose sensitivity, cognitive function (Morris water maze, MWM), and AD pathology (plaques formation) were assessed. A comparison was made across sexes.

RESULTS: Sex-dependent hyperactivity in AβPP/PS1 mice was …

Epistolary Mcgahern, Eamon Maher

Articles

No abstract provided.

Vaccine Diplomacy Game: The Race For Soft Power, Isaac Antwiboasiako

Articles

This article examines the motivations and dynamics of the donors and suppliers of the covid-19 vaccines to the global south countries in the context of public diplomacy to wield soft power. Thus, it investigates how the West and East use the vaccines as a public diplomacy tool to influence public opinion in other nations or continents in order to either enhance their global image and reputation or exert some form of international influence or have new allies. The article argues that covid-19 vaccines are a soft power asset; therefore, the manufacturing nations may use them to shape their target foreign …

Raman Spectroscopy Of Carotenoid Compounds For Clinical Applications—A Review, Joy Udensi, James Loughman, Ekaterina Loskutova, Hugh Byrne

Articles

Carotenoid compounds are ubiquitous in nature, providing the characteristic colouring of many algae, bacteria, fruits and vegetables. They are a critical component of the human diet and play a key role in human nutrition, health and disease. Therefore, the clinical importance of qualitative and quantitative carotene content analysis is increasingly recognised. In this review, the structural and optical properties of carotenoid compounds are reviewed, differentiating between those of carotenes and xanthophylls. The strong non-resonant and resonant Raman spectroscopic signatures of carotenoids are described, and advances in the use of Raman spectroscopy to identify carotenoids in biological environments are reviewed. Focus …

Residential Demand Side Management Model, Optimization And Future Perspective: A Review, Subhasis Panda, Sarthak Mohanty, Pravat Kumar Rout, Binod Kumar Sahu, Mohit Bajaj, Dr Hossam Zawbaa, Salah Kamel

Articles

The residential load sector plays a vital role in terms of its impact on overall power balance, stability, and efficient power management. However, the load dynamics of the energy demand of residential users are always nonlinear, uncontrollable, and inelastic concerning power grid regulation and management. The integration of distributed generations (DGs) and advancement of information and communication technology (ICT) even though handles the related issues and challenges up to some extent, till the flexibility, energy management and scheduling with better planning are necessary for the residential sector to achieve better grid stability and efficiency. To address these issues, it is …