Digital Commons Network^™

Abdication Through Enforcement, Shalini Ray

Articles

Presidential abdication in immigration law has long been synonymous with the perceived nonenforcement of certain provisions of the Immigration and Nationality Act. President Obama’s never-implemented policy of deferred action, known as DAPA, serves as the prime example in the literature. But can the President abdicate the duty of faithful execution in immigration law by enforcing the law, i.e., by deporting deportable noncitizens? This Article argues “yes.” Every leading theory of the presidency recognizes the President’s role as supervisor of the bureaucracy, an idea crystallized by several scholars. When the President fails to establish meaningful enforcement priorities, essentially making every deportable …

Rodrigo's Reappraisal, Richard Delgado, Jean Stefancic

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No abstract provided.

Appellate Courts And Civil Juries, Adam Steinman

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In federal civil litigation, decisionmaking power is shared by juries, trial courts, and appellate courts. This Article examines an unresolved tension in the different doctrines that allocate authority among these institutions, one that has led to confusion surrounding the relationship between appellate courts and civil juries. At base, the current uncertainty stems from a longstanding lack of clarity regarding the distinction between matters of law and matters of fact. The high-stakes Oracle-Google litigation - which is now before the Supreme Court - exemplifies this. In that case, the Federal Circuit reasoned that an appellate court may assert de novo review …

Incentivized Torts: An Empirical Analysis, John Shahar Dillbary, Cherie Metcalf, Brock Stoddard

Articles

Courts and scholars assume that group causation theories deter wrongdoers. This Article empirically tests, and rejects, this assumption, using a series of incentivized laboratory experiments. Contrary to common belief and theory, data from over 200 subjects show that group liability can encourage tortious behavior and incentivize individuals to act with as many tortfeasors as possible. We find that subjects can be just as likely to commit a tort under a liability regime as they would be when facing no tort liability. Group liability can also incentivize a tort by making subjects perceive it as fairer to victims and society. These …

Covid-19 Relief And The Ordinary Inmate Symposium, Jenny E. Carroll

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No abstract provided.

Squaring A Circle: Advice And Consent, Faithful Execution, And The Vacancies Reform Act, Ronald J. Krotoszynski Jr., Atticus Deprospo

Articles

Successive presidents have interpreted the Federal Vacancies Reform Act of 1998 to authorize the appointment of principal officers on a temporary basis. Despite serving in a mere "acting" capacity and without the Senate's approval, these acting principal officers nevertheless wield the full powers of the office. The best argument in favor of this constitutionally dubious practice is that an acting principal officer is not really a "principal officer" under the U.S. Constitution because she only serves for a limited period. Although not facially specious, this claim elides the most important legal fact: an acting principal officer may exercise the full …

Cannabis Banking: What Marijuana Can Learn From Hemp, Julie A. Hill

Articles

Marijuana-related businesses have banking problems. Many banks explain that, because marijuana is illegal under federal law, they will not serve the industry. Even when marijuana-related businesses can open bank accounts, they still have trouble accepting credit cards and getting loans. Some hope to fix marijuana's banking problems with changes to federal law. Proposals range from broad reforms removing marijuana from the list of controlled substances to narrower legislation prohibiting banking regulators from punishing banks that serve the marijuana industry. But would these proposals solve marijuana's banking problems?

In 2018, Congress legalized another variant of the Cannabis plant species: hemp. Prior …

Socially Distant Health Care, Allyson E. Gold, Benjamin J. Mcmichael, Alicia Gilbert

Articles

The COVID-19 pandemic has elucidated many problems within the American health care system, chief among them the continuing access-to-care issue. Though the Affordable Care Act increased access to health insurance, the current pandemic has demonstrated that health insurance alone is not enough. Communities need access to health care providers. Indeed, many fully insured Americans across the country are experiencing what many have faced on a daily basis: the inability to access a health care provider Rural areas and communities of color regularly battle an inability to obtain care from health care professionals and have done so for many years. Much …

Enduring Exclusion Colloquium: New Visions Of Civil Rights Lawyering, Daiquiri J. Steele

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No abstract provided.

The Access-To-Care Epidemic, Benjamin Mcmichael

Articles

Among the many challenges it has created, the COVID19 pandemic has exacerbated the United States' access-to-care problem. While millions of individuals have confronted this problem for years in the context of chronic disease management, mental illness, and other diseases and injuries, many Americans are facing serious access-to-care issues for the first time during the pandemic. Recognizing the acuity of this problem, states adopted temporary policies to combat it. One of the most important policy solutions has been the relaxation of state scope-of-practice laws that inhibit the ability of many healthcare providers, such as nurse practitioners, to deliver healthcare. These temporary …

The Contested "Bright Line" Of Territorial Presence Symposium: Essays, Shalini Bhargava Ray

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No abstract provided.

Substance Use Disorder Discrimination And The Cares Act: Using Disability Law To Inform Part 2 Rulemaking, Kelly K. Dineen, Elizabeth Pendo

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Substance use disorder (SUD) is a chronic health condition—like people with other chronic health conditions, people with SUDs experience periods of remission and periods of exacerbation or recurrence. Unlike people with most other chronic conditions, people with SUDs may be more likely to garner law enforcement attention than medical attention during a recurrence. They are also chronically disadvantaged by pervasive social stigma, discrimination, and structural inequities. The COVID-19 pandemic has had devastating consequences for people with SUDs, who are at higher risk for both contracting the SARS-CoV-19 virus and experiencing poorer outcomes. Meanwhile, there are early indications that pandemic conditions …

Modelling Covid‑19 Severity In The Republic Of Ireland Using Patient Co‑Morbidities, Socioeconomic Profle And Geographic Location, February To November 2020, Martin Boudou, C. Óhaiseadha, P. Garvey, John O'Dwyer, Paul Hynds

Articles

Understanding patient progression from symptomatic COVID-19 infection to a severe outcome represents an important tool for improved diagnoses, surveillance, and triage. A series of models have been developed and validated to elucidate hospitalization, admission to an intensive care unit (ICU) and mortality in patients from the Republic of Ireland. This retrospective cohort study of patients with laboratory-confirmed symptomatic COVID-19 infection included data extracted from national COVID-19 surveillance forms (i.e., age, gender, underlying health conditions, occupation) and geographically-referenced potential predictors (i.e., urban/rural classification, socio-economic profile). Generalised linear models and recursive partitioning and regression trees were used to elucidate COVID-19 progression. The …

Geocoding Cryptosporidiosis Cases In Ireland (2008–2017)—Development Of A Reliable, Reproducible, Multiphase Geocoding Methodology, Lisa Domegan, Patricia Garvey, Paul Mckeown, Howard Johnson, Paul Hynds, Jean O'Dwyer, Coilín Óhaiseadha

Articles

Background: Geocoding (the process of converting a text address into spatial data) quality may affect geospatial epidemiological study findings. No national standards for best geocoding practice exist in Ireland. Irish postcodes (Eircodes) are not routinely recorded for infectious disease notifications and > 35% of dwellings have non-unique addresses. This may result in incomplete geocoding and introduce systematic errors into studies.

Aims: This study aimed to develop a reliable and reproducible methodology to geocode cryptosporidiosis notifications to fine-resolution spatial units (Census 2016 Small Areas), to enhance data validity and completeness, thus improving geospatial epidemiological studies.

Methods: A protocol was devised to utilise …

Management Development In Small And Medium Sized Firms In The Republic Of Ireland: An Investigation Of Contingency Factors And Management Development Activities, Deirdre Mcquillan, Thomas Garavan, Wael Rashwan, Lorraine Sweeney, Ciara Nolan, Osa Godwin Osaghae

Articles

Purpose The development of managerial skills is an important priority for small and medium sized firm globally yet we have few insights about the predictors and types of management development (MD) activities in SMEs. To date studies of MD have not sufficiently differentiated between small and medium sized firms. In this paper we investigate the impact of three sets of predictors (contextual, technology and innovation activities, behavioural and skill) on six dimensions of MD (formal internal development, formal internal with an external expert, formal external development, one-to-one MD activities, budget for MD and experiential focused MD).

Design/methodology/approach Survey of 360 …

Franchisor Power As Employment Control, Andrew Elmore, Kati L. Griffith

Articles

Labor and employment laws are systematically underenforced in low-wage, franchised workplaces. Union contracts, and the benefits and protections they provide, are nonexistent. The Fight for Fifteen movement has brought attention to the low wages, systemic violations of workers' rights, and lack of collective representation in fast-food franchises. Given that franchisees can be judgment-proof and cannot set industry standards, the deterrence, remedial, and collective bargaining goals of labor and employment laws can depend on holding the franchisor (the brand) responsible under the joint employer doctrine. In a series of cases, however, a dominant approach has emerged that essentially foreclosed the possibility …

Stanley Surrey, The Code And The Regime, Reuven S. Avi-Yonah, Nir Fishbien

Articles

Stanley Surrey (1910-1984) was arguably the most important tax scholar of his generation. Surrey was a rare combination of an academic (Berkeley and Harvard law schools, 1947-1961 and 1969-1981) and a government official (Tax Legislative Counsel, 1942-1947; Assistant Secretary for Tax Policy, 1961-1969). Today he is mostly remembered for inventing the concept of tax expenditures and the tax expenditure budget. This paper will argue that while Surrey was influential in shaping domestic tax policy for a generation and had an impact after his death on the Tax Reform Act of 1986, his longest lasting contributions were in shaping the international …

Stanley Surrey, The 1981 Us Model, And The Single Tax Principle, Reuven S. Avi-Yonah

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2021 marks the fortieth anniversary of the 1981 US Model Tax Treaty as well as the fifth anniversary of the 2016 US Model Tax Treaty. The first author has repeatedly argued that the 1981 Model gave life to the single tax principle (‘STP’). The 2016 Model updates effectively implemented the principle that cross-border income should be taxed once – that is not more and but also not less than once. For example, the 2016 Model does not reduce withholding taxes on payments of highly mobile income that are made to related persons that enjoy low or no taxation with respect …

Reconsidering Ross: The Interplay Of Aedpa, Criminal Appeals, And The Right To Counsel, Kimberly A. Thomas

Articles

This piece highlights features of our current law that converge to say that we should reconsider Ross: (1) the utility of counsel on discretionary review, which has been underexplored, both before and after Ross; (2) the increased importance, in modern criminal law, of direct appeals; and relatedly, the U.S. Supreme Court’s interpretation of AEDPA that has moved most of the significant windows for substantive criminal law change into the direct appeal; and, finally, (3) perhaps an increased sliver of doctrinal sunlight in which to think about chipping away at Ross. Given the first two developments, the possible window to think …

Homes, History, And Shadows: Select Criminal Law And Procedure Cases From The Supreme Court’S 2020-21 Term, Eve Brensike Primus, Lily Sawyer-Kaplan

Articles

The death of Justice Ruth Bader Ginsburg in September 2020 and the appointment of Justice Amy Coney Barrett to replace her solidified a 6-3 majority on the Court for Republican appointees and is already affecting how the Court approaches and decides its criminal law and procedure cases. Justice Ginsburg, a strong advocate for equality and fair treatment, generally construed criminal statutes narrowly and stressed the importance of defendants’ procedural rights. Justice Barrett is an originalist who will look to history to seek answers on the scope of criminal procedure amendments. The combined appointments of Justice Gorsuch and Justice Barrett mean …

Certain Effects Of Random Taxes, James R. Hines Jr., Michael J. Keen

Articles

This paper explores the implications of tax rate randomness, identifying circumstances in which revenue-neutral rate variability increases profitability, economic activity, and the efficiency of resource allocation. Furthermore, with heterogeneous taxpayers, tax rate variability is shown to perform an efficiency-enhancing screening function, imposing heavier expected tax burdens on less responsive taxpayers. And while efficient tax randomness enables governments to reduce average costs of taxation, it necessarily increases the marginal cost of taxation over some ranges of expected revenue, so may reduce efficient levels of government spending.

Respecting Autonomy And Enabling Diversity: The Effect Of Eligibility And Enrollment On Research Data Demographics, Kayte Spector-Bagdady, Shengpu Tang, Sarah Jabbour, Nicholson Price, Ana Bracic, Melissa S. Creary, Sachin Kheterpal, Chad M. Brummett, Jenna Wiens

Articles

Many promising advances in precision health and other Big Data research rely on large data sets to analyze correlations among genetic variants, behavior, environment, and outcomes to improve population health. But these data sets are generally populated with demographically homogeneous cohorts. We conducted a retrospective cohort study of patients at a major academic medical center during 2012–19 to explore how recruitment and enrollment approaches affected the demographic diversity of participants in its research biospecimen and data bank. We found that compared with the overall clinical population, patients who consented to enroll in the research data bank were significantly less diverse …

How Much Can Potential Jurors Tell Us About Liability For Medical Artificial Intelligence?, W. Nicholson Price Ii, Sara Gerke, I. Glenn Cohen

Articles

Artificial intelligence (AI) is rapidly entering medical practice, whether for risk prediction, diagnosis, or treatment recommendation. But a persistent question keeps arising: What happens when things go wrong? When patients are injured, and AI was involved, who will be liable and how? Liability is likely to influence the behavior of physicians who decide whether to follow AI advice, hospitals that implement AI tools for physician use, and developers who create those tools in the first place. If physicians are shielded from liability (typically medical malpractice liability) when they use AI tools, even if patient injury results, they are more likely …

Race And The First Amendment: A Compendium Of Resources, Solomon F. Worlds, Leonard M. Niehoff

Articles

This article provides summaries of law review articles and books that consider the complex relationship between racial justice and free speech. It seeks to assist law students, legal scholars, judges, and practitioners to think more deeply about the intersection between these critically important values. It describes scholarship that views these values as complementary, but also scholarship that views them as conflicting.

Recollections Refreshed And Recorded, Leonard M. Niehoff

Articles

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?

Thoughts On The Retirement Of Jim Stewart, Leonard M. Niehoff

Articles

At the end of April 2021, Jim Stewart - my friend and colleague of almost 40 years - retired from the practice of law. He will now be spending his time trying to win rounds of golf instead of cases and trying to win arguments with his three daughters instead of opposing counsel. I know Jim will enjoy retirement, but I'm skeptical that his win-loss record is about to improve.

Opioid Settlement Funds: Do Not Neglect Patients With Pain, Mark C. Bicket, Barbara Mcquade, Chad M. Brummett

Articles

The opioid crisis has escalated in the setting of the COVID-19 pandemic to new extremes and has claimed more than half a million lives in the US since 2000. Lawsuits to address the civil and criminal liability of drug companies and other groups have originated from federal, state, local, and tribal jurisdictions. When successful, there will likely be billions of dollars and significant discretion as to how these funds are spent. Several groups have produced reports with principles to address the toll of addiction using settlement funds. However, they lack actionable strategies to address the needs of patients with pain, …

Understanding National Remedies And The Principle Of National Procedural Autonomy: A Constitutional Approach, Daniel H. Halberstam

Articles

This article provides a constitutionally grounded understanding of the vexing principle of ‘national procedural autonomy’ that haunts the vindication of EU law in national court. After identifying tensions and confusion in the debate surrounding this purported principle of ‘autonomy’, the Article turns to the foundational text and structure of Union law to reconstruct the proper constitutional basis for deploying or supplanting national procedures and remedies. It further argues that much of the case law of the Court of Justice of the European Union may be considered through the lens of ‘prudential avoidance’, ie the decision to avoid difficult constitutional questions …

'It All Depends … ' A Real Life Learning Model Informing Childminding Pedagogy In Ireland, Miriam O'Regan, Ann Marie Halpenny, Noirin Hayes

Articles

This doctoral research addressed the dearth of research focussed on childminding in Ireland, despite its significant role in national childcare provision. One overarching aim was to explore childminders’ pedagogy. The research was conducted within the theoretical framework of Ecocultural Theory (ECT) against the backdrop of Irish Early Childhood Education and Care (ECEC) policy on the eve of mandatory regulation of childminding. A mixed method approach was adopted, using the Ecocultural Family Interview for Childminders (EFICh) , including participants’ photographs, a case study survey, researcher field notes and holistic ratings. (Tonyan, Holli A. 2017. “Opportunities to Practice What Is Locally Valued: …

Circuit Criminal Trial And Evidence Practice Pointers, William H. Filmore, Tobie J. Smith, J. Patrick Lamb

Articles

No abstract provided.