Digital Commons Network^™

The Supreme Court Punts On The Realization Issue In Moore, Erik M. Jensen

Faculty Publications

The Supreme Court’s 2024 decision in Moore v. United States was a disappointment. The Court upheld the constitutionality of the so-called mandatory repatriation tax, a result that may or may not be defensible. But the Court didn’t resolve what was supposed to be the “question presented” in the case: “Whether the Sixteenth Amendment authorizes Congress to tax unrealized sums without apportionment among the states.” As a result, more than a century after ratification of the Sixteenth Amendment, we still don’t know whether realization of some sort is necessary to have income within the meaning of the Amendment. This article describes …

Charting The Scorched Trails: A Comparative Analysis Of Roadway Damage From Historical Megafires To The Unprecedented 2020 Labor Day Wildfires On The Usa West Coast, Kevin Christiansen, Ayat Al Assi, Rubayet Bin Mostafiz, Robert V. Rohli

Faculty Publications

Roadways in the US states of Washington (WA), Oregon (OR), and California (CA) incurred extraordinary damage during the 2020 Labor Day wildfires. However, the cost and risk of these fires have not been placed in a historical perspective. This study examines the damage to roadways affected by the 2020 Labor Day wildfires in relation to the history of megafires in WA (1902–2023), OR (1845– 2023), and CA (1889–2023) using carefully selected data sets gathered from the Washington State Department of Transportation (WSDOT), Oregon Department of Transportation (ODOT), and California Department of Transportation (Caltrans). A method for classifying road damage from …

Identifying And Filling Critical Knowledge Gaps Can Optimize Financial Viability Of Blue Carbon Projects In Tidal Wetlands, Tim J.B. Carruthers, S. Beaux Jones, Megan K. Terrell, Jonathan F. Scheibly, Brendan J. Player, Valerie A. Black, Justin R. Ehrenwerth, Patrick D. Biber, Rod M. Connolly, Steve Crooks, Jason P. Curole, Kelly M. Darnell, Alyssa M. Dausman, Allison L. Dejong, Shawn M. Doyle, Christopher R. Esposito, Daniel A. Friess, James W. Fourqurean, Ioannis Y. Georgiou, Gabriel D. Grimsditch, Songjie He, Eva R. Hillmann, Guerry O. Holm, Jennifer Howard, Hoonshin Jung, Stacy D. Jupiter, Erin Kiskaddon, Ken W. Krauss, Paul S. Lavery, Bingqing Liu, Catherine E. Lovelock, Sarah K. Mack, Peter I. Macreadie

Faculty Publications

One of the world’s largest “blue carbon” ecosystems, Louisiana’s tidal wetlands on the US Gulf of Mexico coast, is rapidly being lost. Louisiana’s strong legal, regulatory, and monitoring framework, developed for one of the world’s largest tidal wetland systems, provides an opportunity for a programmatic approach to blue carbon accreditation to support restoration of these ecologically and economically important tidal wetlands. Louisiana’s coastal wetlands span ∼1.4 million ha and accumulate 5.5–7.3 Tg yr⁻¹ of blue carbon (organic carbon), ∼6%–8% of tidal marsh blue carbon accumulation globally. Louisiana has a favorable governance framework to advance blue carbon accreditation, due to …

Can The Excessive Fines Clause Mitigate The Lfo Crisis? An Assessment Of The Caselaw, Michael M. O'Hear

Faculty Publications

The nation’s increasing use of fees, fines, forfeiture, and restitution has resulted in chronic debt burdens for millions of poor and working-class Americans. These legal financial obligations (LFOs) likely entrench racial and socioeconomic divides and contribute to the breakdown of trust in the police and courts in disadvantaged communities. One possible source of restraint on LFOs may be the Excessive Fines Clause of the Eighth Amendment. Largely ignored by courts and commentators for two centuries, the Clause has in recent years been the subject of a burgeoning volume of litigation and scholarship. The U.S. Supreme Court has decided a handful …

Killing Stays, Madalyn K. Wasilczuk

Faculty Publications

For decades, the Supreme Court has been suspicious of litigation under warrant in capital cases. The Court has described last-minute litigation as manipulative and dilatory, a result of gamesmanship by people on death row and their lawyers. With the confirmation of Justice Brett Kavanaugh in 2018, the Court began to extinguish the opportunity to assert death row detainees’ rights against unlawful death sentences and executions, reaching a crescendo of stay vacaturs and denials during the Trump executions. Despite this sea change in capital stay jurisprudence and practice, few scholars have focused on the capital stay as a vital component of …

Breaking The Vicious Cycle Fragmenting National Law, Ryan Vacca, Peter S. Menell

Faculty Publications

One of the most troubling and increasingly overlooked problems plaguing the federal judiciary has been the reduction of throughput at the Supreme Court and the resulting fragmentation of national law. The imperative to resolve circuit splits has taken a back seat as the Court grapples with high-profile battles and the relentless crush of certiorari petitions. This fuels confusion and greater fragmentation of national law. Add in the general expansion of national law, and the vicious cycle intensifies.

This Article proposes a solution for expanding structural capacity to address fragmentation that does not require legislative reform or constitutional amendment. It utilizes …

Fascism: A Reading List With Notes, Michael F. Russo

Faculty Publications

Today, Fascism is on the rise around the world including, dismayingly, in the United States of America, threatening the rule of law, which is the basis of democracy. In the U. S. Donald Trump, the 2024 Republican nominee for president, has declared himself the standard bearer for authoritarian rule. If he wins, it is likely the United States will cease to be a democracy. If democracy is to survive, it is essential that citizens understand fascism, how it comes into existence, and what it does once it has taken root is essential. That is the reason for this reading list.

Alterity As A Mirror Of Identity: Primo Levi’S Self Representation In Other People’S Trades, Ilona Klein

Faculty Publications

Primo Levi reveals much about himself in the fifty-one short essays of L’altrui mestiere (Other People’s Trades). This study analyzes L’altrui mestiere as the awareness of the “self” through the observation of “otherness” — other people, but also other living beings which are not human (mammalian animals and insects), others as minerals, and others as hypotheses, theories, writings, microcosmic or macrocosmic conceptions that Levi uses to weave a discourse of “alterity” as a mirror of “identity.” L’altrui mestiere’s narrative pattern revolves around contrasts and comparisons between the familiar and the unfamiliar, the canny and the uncanny, the …

The Constitutional Court Of Indonesia As A Post-Conflict Institution, Christie S. Warren

Faculty Publications

In post-conflict settings, constitutional courts have important roles to play despite complex and often competing challenges they face to institutionalize their legitimacy and entrench the rule of law while attempting to build bridges from conflict to peace. By processing political conflict through legal means, constitutional courts can shift the tenor of public dialogue and provide a less inflammatory platform for analyzing conflicts that have divided societies. This article analyzes two seminal cases decided by the Constitutional Court of Indonesia in the aftermath of post- Suharto conflict and finds that despite its young age, the Court addressed lustration issues and a …

Principles Of Prosecutor Lenience, Jeffrey Bellin

Faculty Publications

[T]here are profound questions about the when and why of lenience, and particularly prosecutor lenience. The answers speak to one of the great mysteries of American criminal law: the role of the prosecutor. I have taken on this mystery in recent years and continue the effort here by offering a skeletal framework for prosecutor leniency. The framework proposes three principles of prosecutor lenience. Prosecutor lenience should be (1) non-arbitrary, (2) equal, and (3) abundant.

[...]

This Symposium Essay explores prosecutorial lenience through the lens set out above. Part I defines prosecutorial lenience and proposes three principles to guide its exercise. …

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

Speech Regulation And Tobacco Harm Reduction, Jonathan H. Adler, Jacob James Rich

Faculty Publications

Part I of this essay describes what is currently understood about the relative health risks of ENDS [electronic nicotine delivery systems] and other vaping products, particularly as compared to combustible cigarettes.

Part II of this essay describes the current regulatory regime governing tobacco products and how this regime has been applied to ENDS and other vaping products.

Part III of this essay explains how the FDA’s regulatory regime hampers the ability of ENDS manufacturers to inform consumers about the relative risks of their products and the potential use of ENDS as smoking cessation aids.

Part IV explains why this regulation …

Standing Without Injury, Jonathan Adler

Faculty Publications

This Article seeks to assess Judge Newsom’s proposed injury-less approach to standing in federal court. Part I of this Article provides a brief overview of current standing doctrine, the requirements of standing consolidated in Lujan, and how these requirements have been interpreted and applied by the Supreme Court. Part II describes Judge Newsom’s critique of contemporary standing doctrine and outlines the two primary components of his proposed alternative: 1) elimination of the standing requirement in favor of a simple cause-of-action requirement and 2) recognition of an external constraint on standing derived from Article II, rather than Article III.

Part …

The Private Litigation Impact Of New York's Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Faculty Publications

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments”—self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns on judicial …

The Trial Of The Jurors - A Commentary On 12 Angry Men, Jonathan Van Patten

Faculty Publications

The movie, 12 Angry Men, is a fictionalized portrayal of a deliberation in a murder case from inside the jury room.  It provides a memorable treatment of the difficulty of deciding a case solely on the evidence admitted, as well as illuminating the dynamics of argument, emotion, and persuasion, particularly where deep-seated passions preclude honest evaluation of the evidence.

Rebalancing Judicial Immunity For Civil Rights Actions, Bailey D. Barnes

Faculty Publications

Sterilization for shorter jail sentences. Vasectomies and birth control implants for freedom. In 2017, a criminal court judge in rural Tennessee made this offer to people incarcerated through sentences issued by his court. When litigators sought monetary damages and to enjoin the practice, and the local media exposed the scheme, the judge begrudgingly rescinded the order while expressing surprise that it was controversial. The Board of Judicial Conduct issued a letter of reprimand to the judge. Meanwhile, the United States District Court for the Middle District of Tennessee summarily dismissed the constitutional tort claims against the judge based on absolute …

A Comparative Analysis Of Third-Party Litigation Funding In The United States And The United Kingdom, Gary Myers

Faculty Publications

Third-Party Litigation Funding (TPLF), which is also known as litigation finance, involves a financial arrangement in which a third party provides funding to support the plaintiff's pursuit of a civil lawsuit. The third party, in return, receives a portion of the proceeds if the litigation is successful. Like a contingent fee agreement, this type funding model enables a party to bring a lawsuit even if it does not have the resources to pay the up-front costs of the litigation. The important difference is that the litigation funder is not counsel to a party in the case, and that TPLF essentially …

Guns, Vices And Freedom, Oh My: A Preliminary Empirical Investigation, Royce De R. Barondes

Faculty Publications

This Essay estimates factors within States that are associated with per capita firearms ownership and the extent of legal restrictions con-cerning firearms. The metrics are: for the former, a proxy consisting of the fraction of suicides with a firearm; for the latter, Giffords Law Center’s ratings of the restrictiveness of a State’s regulation of fire-arms. For each, the Essay estimates the relationship between it and each of the levels of vices and freedom.

The Giffords score (more restrictions scored higher) is negatively related to the Cato Institute’s measure of overall freedom and regula-tory policy freedom but positively related to Cato’s …

The Success Of Pre-Enforcement Challenges To Antidiscrimination Laws, Alexander Gouzoules

Faculty Publications

Formally, judicial analysis of a challenged statute's validity should be consistent, regardless of the challenge's pre- or post-enforcement posture. A post-enforcement posture arises when an aggrieved party defensively challenges a purportedly unconstitutional statute being enforced against them. Alternatively, a pre-enforcement posture arises when an impacted party strikes first, attacking the statute by asserting a credible threat that the law will be enforced against them in the future. Either way, judicial evaluation of a statute's validity should turn on its content and effect-not on whether it was challenged before or after enforcement.

This Article challenges that assumption, arguing that pre-enforcement challengers …

Just Consumer Financial Protection: Prevention Or Cure, Andrea Boyack

Faculty Publications

This article examines the relationship between two complementary and related consumer financial protection approaches: regulatory oversight of financing terms (ex ante protection) and bankruptcy discharge of consumer debts (ex post protection). Although often conceptualized as distinct areas of law, consumer financial regulation and consumer bankruptcy are two sides of the same coin and function together to treat the harms of financial distress. This article seeks to explore the relationship and tensions between these various approaches by juxtaposing consumer debtor-creditor law attitudes and legal developments in continental Europe (primarily France and Germany) with those in the United States. After …

Choosing Your Judge, Alexander Gouzoules

Faculty Publications

Accounts of American litigation pose a contradiction: Forum shopping is acceptable, but judge shopping is not. Formal disfavor toward judge shopping is pervasive, and attempts by parties to manipulate the assignment of their case are deemed abusive and even sanctionable. Nevertheless, sophisticated judge-shopping tactics have proliferated in specific areas of the law—particularly in challenges to executive branch policies and in the reorganization of large companies under Chapter 11. In these disparate areas, judge-shopping strategies have been deployed in high-profile cases, ranging from a challenge to the FDA’s authorization of an abortion drug to the opioid-driven bankruptcy of Purdue Pharma. In …

Heritable Genome Editing, And The Future Of Novel Reproductive Technologies, Kerry L. Macintosh

Faculty Publications

This Article compares human reproductive cloning (HRC) and
heritable genome editing (HGE) to identify factors that encourage bans
on novel reproductive technologies. HRC drew legislative opposition
in part because it involved asexual reproduction and was incorrectly
associated with copying. HGE and other technologies that involve
sexual reproduction do not have those problematic qualities. HRC also
became entangled with research in which human embryos were cloned
to be harvested for their stem cells. HGE did not because scientists
learned how to create and edit pluripotent stem cells without creating
embryos. However, the legal history of HRC predicts that reproductive
technologies strongly …

Biology, Ecology, And Management Of Redbanded Stink Bug (Hemiptera: Pentatomidae), Olabimpe O. Okosun, Justin George, Maribel Portilla, James P. Glover, Katherine A. Parys, Gadi V.P. Reddy

Faculty Publications

The redbanded stink bug (RBSB), Piezodorus guildinii (Westwood) (Hemiptera: Pentatomidae) is an invasive stink bug species and a polyphagous pest of cultivated crops and non-cultivated wild plants. The increase in soybean cultivation during the 1960s-1970s led to the spread of RBSB as an economic pest of soybean throughout South America, especially in Brazil, Argentina, and Uruguay. In the early 2000s, RBSB became an economic concern to US agriculture and is currently a key species in a stink bug complex that damages soybean in many mid-southern states. RBSB causes extensive damage to soybeans and other economically important leguminous crops by feeding …

Understanding Inequality In U.S. Farm Subsidies Using Large-Scale Administrative Data, Jisang Yu, Sunghun Lim

Faculty Publications

Using a large-scale, individual-level administrative data set for 2008–2021, we document the inequality in farm program payments across all recipients in the U.S. By examining the relationship between within-county inequality and demographic characteristics of farmers in a county, we find that there is a positive association between the share of Black operators and within-county inequality. We also provide suggestive evidence that a substantial portion of racial and gender disparities in farm payments are associated with crop production characteristics. We then utilize name information in farm payment data to infer the race and gender of individual payees. The analysis using approximately …

Memory And Myth In The Creation Of Identity: The Establishment Of The Vernal Public Library, Suzanne Marie Stauffer

Faculty Publications

Local history and lore reports that the Vernal Public Library owed its inception to a performance of Queen Esther Opera in 1907. However, the Vernal Express makes no mention of such a performance (nor can any such opera be identified), while it does record multiple other community fundraising events held to benefit the public library. One such, a unique event in public library history, occurred in 1908 when the public library association held a benefit performance of a stage version of Owen Wister’s popular Western novel, The Virginian. This documented event, however, seems to have been lost to history, as …

Mobile Intervention To Address Cannabis Use Disorder Among Black Adults: Protocol For A Randomized Controlled Trial, Pamella Nizio, Bryce Clausen, Michael S. Businelle, Natalia Ponton, Ava A. Jones, Brooke Y. Redmond, Julia D. Buckner, Ezemenari M. Obasi, Michael J. Zvolensky, Lorra Garey

Faculty Publications

Background: African American or Black (hereafter referred to as Black) adults who use cannabis use it more frequently and are more likely to meet criteria for cannabis use disorder (CUD) than both White and Hispanic or Latin individuals. Black adults may be more apt to use cannabis to cope with distress, which constitutes a false safety behavior (FSB; a behavior designed to reduce psychological distress in the short term). Although FSB engagement can perpetuate the cycle of high rates of CUD among Black individuals, limited work has applied an FSB elimination treatment approach to Black adults with CUD, and no …

Rationale And Challenges For A New Instrument For Remote Measurement Of Negative Symptoms, David Gordon Daniel, Alex S. Cohen, Philip D. Harvey, Dawn I. Velligan, William Z. Potter, William P. Horan, Raeanne C. Moore, Stephen R. Marder

Faculty Publications

There is a broad consensus that the commonly used clinician-administered rating scales for assessment of negative symptoms share significant limitations, including (1) reliance upon accurate self-report and recall from the patient and caregiver; (2) potential for sampling bias and thus being unrepresentative of daily-life experiences; (3) subjectivity of the symptom scoring process and limited sensitivity to change. These limitations led a work group from the International Society of CNS Clinical Trials and Methodology (ISCTM) to initiate the development of a multimodal negative symptom instrument. Experts from academia and industry reviewed the current methods of assessing the domains of negative symptoms …

Insights Into Properties Of Biomass Energy Pellets Made From Mixtures Of Woody And Non-Woody Biomass: A Meta-Analysis, Rajitha Lakshan Rupasinghe, Priyan Perera, Rangika Bandara, Hiran Amarasekera, Richard Vlosky

Faculty Publications

There is a widespread global shift toward renewable energy sources, where the emphasis is on enhancing the utilization of renewable energy due to the rising costs associated with fossil fuels. In this light, biomass pellets made from woody and non-woody biomass and blends have gained increased attention. Extensive research has been conducted globally to enhance the quality of biomass pellets and to explore the potential to combine woody biomass with other non-woody forms of biomass in biomass pellet production. The heterogeneity of the raw materials used and resulting properties of the biomass pellets have led to the establishment of internationally …

Strategic Environmental Consumer Segmentation: An Exploratory Case Study In Slovakia, Hana Maťová, Miroslava Oravcová Triznová, Vladislav Kaputa, Erika Loučanová, Richard P. Vlosky

Faculty Publications

The desire to live in a healthy “green” environment is becoming increasingly important to global populations. The term “green” is overused, confusing, and inconsistently used among and between consumers, corporate enterprises, environmental groups, government entities, and other segments globally. Research studies suggest that defining and applying the term “green” to behaviors and decision-making is constantly changing, further complicating the study of corporate and consumer environmental responsibility. In this study, we focus on the consumer. Not all consumers behave the same or have the same beliefs and perceptions regarding what is environmentally “green.” As such, we segmented consumers in Slovakia into …

Webster Parish Library, 1929-1935 : A Rosenwald Demonstration Library, Suzanne Marie Stauffer

Faculty Publications

In 1929 the Julius Rosenwald Fund instituted its County Demonstration Library program of matching grants to promote public library service to Blacks in the South. By the end of the program, total circulation in the demonstration counties averaged 5.2 per capita, with circulation among Blacks more than twice what it had been the previous year. One such segregated library system was established in Webster Parish Louisiana with the support of the State Library Commission. The central white library and eight branches opened on October 4, 1929. The central Black library and four branches opened a short time later. The Library …