Digital Commons Network^™

Rethinking Standards Of Appellate Review, Adam N. Steinman

Faculty Scholarship

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

Whither The Regulatory "War On Coal"? Scapegoats, Saviors, And Stock Market Reactions, Cary Coglianese, Daniel E. Walters

Faculty Scholarship

Complaints about excessive economic burdens associated with regulation abound in contemporary political and legal rhetoric. In recent years, perhaps nowhere have these complaints been heard as loudly as in the context of U.S. regulations targeting the use of coal to supply power to the nation’s electricity system, as production levels in the coal industry dropped by nearly half between 2008 and 2016. The coal industry and its political supporters, including the president of the United States, have argued that a suite of air pollution regulations imposed by the U.S. Environmental Protection Agency during the Obama administration seriously undermined coal companies’ …

Cultural Adaptation And Content Validity Of A Chinese Translation Of The 'Person-Centered Primary Care Measure': Findings From Cognitive Debriefing, Stephen J. Zyzanski, Kurt C. Stange

Faculty Scholarship

Objectives To develop an equivalent Chinese translation of the Person-Centered Primary Care Measure (PCPCM) and to establish its cultural adaptability and content validity through cognitive debriefing. Design The original English PCPCM was first translated into Chinese by double forward-translation by professional translators. The reconciliated Chinese version was then doubly back-translated into English by two other professional translators blinded to the forward-translation. On affirmation on its linguistic equivalence with the developers of the original English PCPCM, the reconciliated Chinese PCPCM was sent for cognitive debriefing with 20 Chinese-speaking primary care subjects by a trained interviewer using structured probing questions to collect …

Conceptualizing The Effects Of Continuous Traumatic Violence On Hiv Continuum Of Care Outcomes For Young Black Men Who Have Sex With Men In The United States, Dexter R. Voisin

Faculty Scholarship

The United States (US) is on track to achieve the 90-90-90 targets set forth by UNAIDS and the National HIV/AIDS strategy, yet significant racial disparities in HIV care outcomes remain, particularly for young Black men who have sex with men (YBMSM). Research has demonstrated that various types of violence are key aspects of syndemics that contribute to disparities in HIV risk. However, little research has looked collectively at cumulative violent experiences and how those might affect HIV treatment and care outcomes. Drawing on extant literature and theoretical underpinnings of syndemics, we provide a conceptual model that highlights how continuous traumatic …

Shareholder Value(S): Index Fund Esg Activism And The New Millennial Corporate Governance, Michal Barzuza, Quinn Curtis, David H. Webber

Faculty Scholarship

Major index fund operators have been criticized as ineffective stewards of the firms in which they are now the largest shareholders. While scholars debate whether this passivity is a serious problem, index funds’ generally docile approach to ownership is broadly acknowledged.
/="/">
/="/">However, this Article argues that the notion that index funds are passive owners overlooks an important dimension in which index funds have demonstrated outspoken, confrontational, and effective stewardship. Specifically, we document that index funds have taken a leading role in challenging management and voting
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Self-Consistent Color-Stellar Mass-To-Light Ratio Relations For Low Surface Brightness Galaxies, Wei Du, Stacy S. Mcgaugh

Faculty Scholarship

The color-stellar mass-to-light ratio relation (CMLR) is a widely accepted tool for estimating the stellar mass (M ∗) of a galaxy. However, an individual CMLR tends to give distinct M ∗ for a same galaxy when it is applied in different bands. Examining five representative CMLRs from the literature, we find that the difference in M ∗ predicted in different bands from optical to near-infrared by a CMLR is 0.1 ∼ 0.3 dex. Based on a sample of low surface brightness galaxies that covers a wide range of color and luminosity, we therefore recalibrated each original CMLR in r, i, …

Industry Concentration And Information Technology, James Bessen

Faculty Scholarship

Industry concentration has been rising in the US since 1980. Firm operating margins have also been rising. Are these signs of declining competition that call for a new antitrust policy? This paper explores the role of proprietary information technology systems (IT), which could increase industry concentration and margins by raising the productivity of top firms relative to others. Using instrumental variable estimates, this paper finds that IT system use is strongly associated with the level and growth of industry concentration and firm operating margins. The paper also finds that IT system use is associated with relatively larger establishment size and …

L’Abbiam Fatta Tutti Noi: Collaboration And Originality In Early Modern Art, James Hutson

Faculty Scholarship

This article seeks a reevaluation of the collaborative efforts and critical valuation of the Carracci in the frescoes of the Palazzo Magnani. While the significance of the cycle for the development of the nascent baroque style is demonstrable, criticism has focused on attributional issues and the works remain understudied. Since their original biographers struggled over identifying which Carracci was responsible for which scene in the frieze, efforts have been made to carefully dissect the contributions of each. Yet, the collaborative working process of the Carracci, which was recently developed to reform the medieval workshop model of artistic education, was at …

Have The Aca’S Exchanges Succeeded? It’S Complicated, David K. Jones, Sarah H. Gordon, Nicole Huberfeld

Faculty Scholarship

The fight over health insurance exchanges epitomizes the rapid evolution of health reform politics in the decade since the passage of the Affordable Care Act. The ACA's drafters did not expect the exchanges to be contentious; they would expand private insurance coverage to low- and middle-income individuals who were increasingly unable to obtain employer-sponsored health insurance. Yet, exchanges became one of the primary fronts in the war over Obamacare. Have the exchanges been successful? The answer is not straightforward and requires a historical perspective through a federalism lens. What the ACA has accomplished has depended largely on whether states were …

Border Babies — Medical Ethics And Human Rights In Immigrant Detention Centers, Sondra S. Crosby, George J. Annas

Faculty Scholarship

Providing decent medical care for families in U.S. detention centers near the Mexican border has become exceedingly difficult over the past 2 years. Trauma was inflicted on migrants to deter others from attempting to enter the United States. A cornerstone of deterrence was the “zero tolerance” policy that forcibly separated children from their parents at the border. Photographs of children confined in cages horrified Americans, who demanded that the policy be rescinded. It was, but family separations continue and have been made even worse by the Migrant Protection Protocol (MPP) — which the U.S. Supreme Court will most likely review …

Using The Baryonic Tully–Fisher Relation To Measure Ho, Stacy S. Mcgaugh

Faculty Scholarship

We explore the use of the baryonic Tully-Fisher relation (bTFR) as a new distance indicator. Advances in near-IR imaging and stellar population models, plus precise rotation curves, have reduced the scatter in the bTFR such that distance is the dominant source of uncertainty. Using 50 galaxies with accurate distances from Cepheids or the tip magnitude of the red giant branch, we calibrate the bTFR on a scale independent of H o . We then apply this calibrated bTFR to 95 independent galaxies from the SPARC sample, using CosmicFlows-3 velocities, to deduce the local value of H o . We find …

Racial And Ethnic Comparison Of Ecological Risk Factors And Youth Outcomes: A Test Of The Desensitization Hypothesis, Dexter R. Voisin

Faculty Scholarship

Minority youth, because of structural, ecological, and societal inequalities, are at heightened risk of reporting depression and experiencing negative sanctions associated with delinquency. Sociological theories suggest that greater exposure to ecological risk factors at the peer, family, school and community levels are associated with elevated rates of youth depression and delinquency. Desensitization theory posits that repeated exposures to ongoing stressors result in a numbing of psychological and behavioral responses. Thus, it remains unclear whether racial/ethnic differences exist with regards to how contextual stressors correlate with depression and delinquency. Using a sample of 616 Black, 687 Latinx, and 1,318 White youth, …

Inflammatory Pathway Analytes Predicting Rapid Cognitive Decline In Mci Stage Of Alzheimer’S Disease, Jagan A. Pillai, Gurkan Bebek, Lynn M. Bekris, Aaron Bonner-Jackson, Stephen M. Rao, Mark R. Chance, James B. Leverenz

Faculty Scholarship

Objective: To determine the inflammatory analytes that predict clinical progression and evaluate their performance against biomarkers of neurodegeneration. Methods: A longitudinal study of MCI-AD patients in a Discovery cohort over 15 months, with replication in the Alzheimer’s Disease Neuroimaging Initiative (ADNI) MCI cohort over 36 months. Fifty-three inflammatory analytes were measured in the CSF and plasma with a RBM multiplex analyte platform. Inflammatory analytes that predict clinical progression on Clinical Dementia Rating Scale-Sum of Boxes (CDR-SB) and Mini Mental State Exam scores were assessed in multivariate regression models. To provide context, key analyte results in ADNI were compared against biomarkers …

Fatca, The U.S. Congressional Black Caucus, And The Oecd Blacklist, Steven Dean

Faculty Scholarship

It may no longer be fashionable to refer to the United States as a melting pot, but it remains an incredibly heterogenous country. Both in terms of the race of those born there and the national origin of its immigrants, the United States has long enjoyed the benefits and burdens that come with diversity.¹ Its diversity can make even a seemingly simple story complicated, producing unexpected twists and surprise endings. This article tells a tale in which diversity helped change the face of international tax policy.

The United States has long wielded great power in international taxation. From the …

Building A National Ocean Policy Confronts Deconstruction Of The Administrative State, Brion Blackwelder

Faculty Scholarship

No abstract provided.

Getting At The Root Instead Of The Branch: Extinguishing The Stereotype Of Black Intellectual Inferiority In American Education, A Long-Ignored Transitional Justice Project, Camille Lamar Campbell

Faculty Scholarship

No abstract provided.

Impact Of Varying Dosages Of Fish Oil On Recovery And Soreness Following Eccentric Exercise, Trisha A. Vandusseldorp, Kurt A. Escobar, Kelly E. Johnson, Matthew T. Statton, Terrence Moriarty, Chad M. Kerksick, Gerald T. Mangine, Alyssa J. Holmes, Matthew Lee, Marvin R. Endito, Christine M. Mermier

Faculty Scholarship

Fish oils (FOs) are rich in omega-3 long-chain polyunsaturated fatty acids, which have been purported to enhance recovery of muscular performance and reduce soreness post-exercise. However, the most effective FO dose for optimizing recovery remains unclear. The purpose of this investigation was to examine the effect of FO supplementation dosing on the recovery of measures of muscular performance, perceived soreness, and markers of muscle damage following a rigorous bout of eccentric exercise. Thirty-two college-aged resistance-trained males (~23.6 years, 71.6 kg, 172.1 cm) were supplemented with 2, 4, 6 g/day (G) FO or placebo (PL) for ~7.5 weeks. Following 7 weeks …

The U.S. Small Business Bankruptcy Amendments: A Global Model For Reform?, Edward J. Janger

Faculty Scholarship

No abstract provided.

Chevron As Construction, Lawrence B. Solum, Cass R. Sunstein

Faculty Scholarship

In 1984, the Supreme Court declared that courts should uphold agency interpretations of ambiguous statutory provisions, so long as those interpretations are reasonable. The Chevron framework, as it is called, is now under serious pressure. Current debates can be both illuminated and softened with reference to an old distinction between interpretation on the one hand and construction on the other. In cases of interpretation, judges (or agencies) must ascertain the meaning of a statutory term. In cases of construction, judges (or agencies) must develop implementing principles or specify a statutory term. In cases that involve statutory construction, the argument on …

Pretrial Detention In The Time Of Covid-19, Jenny E. Carroll

Faculty Scholarship

It is hard to overstate the impact of COVID-19. When it comes to the criminal justice system, the current COVID-19 crisis has shone a light on pre-existing flaws. Long before the first confirmed case in Seattle or elsewhere, America’s jails and prisons were particularly susceptible to contagions, exacerbated by problems from overcrowding to over policing to lack of reentry programs. This Essay focuses on one aspect of the challenges the criminal justice system faces in light of COVID-19 and beyond—that of a pretrial detention system that falls more harshly on poor and minority defendants, has swollen local jail populations, and …

The Emerging Legal Architecture For Social Justice, Luz E. Herrera, Louise G. Trubek

Faculty Scholarship

Lawyers advocating for social change are now front and center in newspapers and social media. This article discusses how a new breed of progressive lawyers envision social justice law practice today. These “critical lawyers” are diverse in background, gender, ethnicity and race. They see law as a complex, contradictory tool rather than a necessary and sufficient route to justice. Their practices differ from the traditional non-profit public interest firms of the earlier generation that assumed justice would result if law and lawyers were accessible. To highlight the differences, the article discusses the law practices of Beyond Legal Aid, Law for …

Artificial Financial Intelligence, William Magnuson

Faculty Scholarship

Recent advances in the field of artificial intelligence have revived long-standing debates about what happens when robots become smarter than humans. Will they destroy us? Will they put us all out of work? Will they lead to a world of techno-savvy haves and techno-ignorant have-nots? These debates have found particular resonance in finance, where computers already play a dominant role. High-frequency traders, quant hedge funds, and robo-advisors all represent, to a greater or lesser degree, real-world instantiations of the impact that artificial intelligence is having on the field. This Article will argue that the primary danger of artificial intelligence in …

Repealing The Statute Of Wizarding Secrecy In Legal Education, Mark Burge

Faculty Scholarship

In the fictional Harry Potter universe, J.K. Rowling has fashioned a parallel world based on our own, but with the fundamental difference of a separate magical society grafted onto it. In Rowling’s fictional version, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and was brought about by centuries-long hostility toward wizards by the non-magical majority. But what if secrecy is precisely the wrong approach? What if widespread wizard-Muggle collaboration were precisely the thing needed to address the enormous and pressing problems of the day?

The …

When They Hear Us: Race, Algorithms And The Practice Of Criminal Law, Ngozi Okidegbe

Faculty Scholarship

We are in the midst of a fraught debate in criminal justice reform circles about the merits of using algorithms. Proponents claim that these algorithms offer an objective path towards substantially lowering high rates of incarceration and racial and socioeconomic disparities without endangering community safety. On the other hand, racial justice scholars argue that these algorithms threaten to entrench racial inequity within the system because they utilize risk factors that correlate with historic racial inequities, and in so doing, reproduce the same racial status quo, but under the guise of scientific objectivity.

This symposium keynote address discusses the challenge that …

Toward Establishing A Pre-Extinction Definition Of "Nationwide Injunctions", Portia Pedro

Faculty Scholarship

Some define “nationwide injunctions” as injunctions with: (1) no geographic limitations and (2) benefits to people beyond named plaintiffs or plaintiff classes. In this Article, I pose several questions central to figuring out what these so-called “nationwide injunctions” are. I argue that continuing to debate about injunctions in isolation from any developed, conceptual framework leads to potentially misguided arguments. The balance of criticisms regarding the targeted injunctions involve issues that are structural, jurisprudential, prudential, and formalist in ways that would curtail “nationwide injunctions” to protect Article II actors, to the relative detriment of those injured by Article II actors. There …

Trips And Its Contents, Peter K. Yu

Faculty Scholarship

In 2006, I published TRIPS and Its Discontents in a symposium commemorating the tenth anniversary of the WTO TRIPS Agreement. At that time, developing countries were deeply discontent with the Agreement and the new and higher intellectual property standards that the WTO had imposed upon them. By contrast, when the TRIPS Agreement was about to celebrate its twenty-fifth anniversary in April 2019, the developing countries' trenchant critiques of the Agreement were mostly gone. Also disappearing were their usual accusations of neoimperialism.

What has happened? Have developing countries successfully adjusted, or become sensitized, to the high intellectual property standards in the …

From Salt In Solution To Solely Ions: Solvation Of Methyl Viologen In Deep Eutectic Solvents And Ionic Liquids, Jeffrey M. Klein, Henry Squire, William Dean, Burcu E. Gurkan

Faculty Scholarship

Solvation and transport properties of methly viologen dichloride (MVCl2) in 1:2, 1:4, and 1:6 molar mixtures of choline chloride (ChCl) and ethylene glycol (EG), including the deep eutectic solvent (DES) ethaline (1:2 mixture), were studied through the application of the hole theory to measured physical properties, cyclic voltammetry, and Raman spectroscopy. The ChCl:EG mixtures were compared to the ionic liquid (IL) 1-methyl-1-propylpyrrolidinium bis(trifluoromethylsulfonyl) imide ([PYR13][TFSI]) and choline bis(trifluoromethylsulfonyl)imide (ChTFSI) EG mixtures with the same molar ratios in order to understand the impact of the anion and hydrogen bond donor on solvation. Exchanging the chloride anion with TFSI is found to …

The Law Professor Pipeline, Milan Markovic

Faculty Scholarship

Throughout U.S. legal education’s history, a small number of elite law schools have produced the vast majority of law professors. Although law professor hiring is now more inclusive in certain respects, the law school an aspiring professor attended continues to serve as a powerful predictor of hiring market success. Some scholars have maintained that this preference for graduates of elite law schools infects legal education with class bias and distorts legal pedagogy, but the absence of reliable data on socioeconomic diversity within law schools has muted these criticisms.

This Essay reorients the debate on law school hiring by focusing on …

Civil Procedure Update 2020: New Mexico Annual Judicial Conclave, Verónica C. Gonzales, George Bach

Faculty Scholarship

These materials are part of a presentation on civil procedure given to magistrate, district, appellate, and tribal court judges, justices, and staff attorneys in New Mexico courts. These materials include the language of approved and proposed amendments to the state and federal rules of civil procedure as well as summaries of relevant appellate cases issued by the New Mexico Supreme Court and Court of Appeals, the Supreme Court of the United States, and the Supreme Court of the Navajo Nation between May 1, 2019 to May 1, 2020.

• Amendments to the New Mexico Rules of Civil Procedure include NMRA Rule …

Art Adherence Among Men Who Have Sex With Men Living With Hiv: Key Challenges And Opportunities, Dexter R. Voisin

Faculty Scholarship

Purpose of Review: In the USA, gay, bisexual, and other men who have sex with men (MSM) are disproportionately affected by HIV. High levels of adherence to antiretroviral therapy (ART) can dramatically improve outcomes for persons living with HIV and reduce the risk of HIV transmission to others. Yet, there are numerous individual, social, and structural barriers to optimal ART adherence. Many of these factors disproportionately impact Black MSM and may contribute to their poorer rates of ART adherence. This review synthesizes the key challenges and intervention opportunities to improve ART adherence among MSM in the USA. Recent Findings: Key …