Digital Commons Network^™

South Atlantic Mpas And Oculina Hapc: Characterization Of Fish Communities, Benthic Habitat, And Benthic Macrobiota Final Report For 2018-2019 Noaa Ship Pisces Cruises (18-02, 19-02)., Stacey Harter, John K. Reed, Stephanie Farrington

Faculty Scholarship

The South Atlantic Fishery Management Council (SAFMC) and Department of Commerce through the Magnuson-Stevens Fishery Management Act have established eight deepwater Marine Protected Areas (MPAs), five deepwater Coral Habitat Areas of Particular Concern (CHAPCs), and the Oculina Coral HAPC along the outer continental shelf off the southeastern U.S. This project proposed to document and characterize the benthic habitat, benthic sessile biota, and fish populations within some of these protected areas and within the jurisdiction of the SAFMC. In February 2009, the SAFMC implemented eight Type II MPAs between Cape Hatteras, NC and the Florida Keys to protect seven species of …

Title Ix And Official Policy Liability: Maximizing The Law’S Potential To Hold Education Institutions Accountable For Their Responses To Sexual Misconduct, Erin E. Buzuvis

Faculty Scholarship

Title IX, the federal statute that prohibits sex discrimination in education, plays a key role in institutional accountability for sexual misconduct that is perpetrated by a school’s students, faculty, and staff. The Supreme Court has confirmed that Title IX includes an implied right of action for money damages when the institution had actual notice that sexual harassment had occurred, or was likely to occur, and responded to that threat with deliberate indifference. But the deliberate indifference standard has proven to be a high and unpredictable bar for plaintiffs. For this reason, many institutions required the threat of government enforcement—issued in …

Foreword, Sudha Setty

Faculty Scholarship

In November 2019, the Western New England Law Review held its symposium, On Account of Sex: Women’s Suffrage and the Role of Gender in Politics Today. The symposium articles ask us to look at history to see what factors enabled path-breaking activists to secure the right to vote in a time of immense national turmoil. They also ask us to weigh how history should assess the strategic decisions that ultimately gained political rights for some women, but deliberately excluded Black women and other activists.

These historical accounts help us consider how the right to vote is faring, particularly after …

Gender-Silent Legislative Drafting In A Non-Binary World, Jessica Vapnek, Donald L. Revell

Faculty Scholarship

No abstract provided.

Clerking For A Retired Supreme Court Justice—My Experience Of Being “Shared” Among Five Justices In One Term, Rory Little

Faculty Scholarship

No abstract provided.

The Qualified Small Business Stock Exclusion: How Startup Shareholders Get $10 Million (Or More) Tax-Free, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Perverse Incentives: Why Everyone Prefers High Drug Prices -- Except For Those Who Pay The Bills, Robin C. Feldman

Faculty Scholarship

Health care spending rarely follows an ordinary, rational model. Yet even in that context, prescription drug prices are rising at a puzzling rate. What is causing the phenomenon? Quite simply, incentives percolating throughout the prescription drug market push players toward higher prices. At the center lies the highly secretive and concentrated Pharmacy Benefit Manager (PBM) industry middle players who negotiate between drug companies and health insurers by arranging for rebates and establishing coverage levels for patients. Contracts between drug companies and the middle players are closely guarded secrets. The PBM customers, including Medicare, private insurers, and even their auditors, generally …

Lower-Income Tax Planning, Manoj Viswanathan

Faculty Scholarship

Tax planning is generally criticized by scholars as inefficient; that is, imposing welfare-reducing costs by incentivizing transactions with few non-tax economic benefits. This Article argues that this view is unacceptably narrow and makes the original claim that tax planning by lower-income taxpayers is often welfare-enhancing and should, as a normative matter, be encouraged. As such, various parties, including the IRS, law school clinics, legal academics, and tax practitioners should actively strategize to reduce the transaction costs currently hindering lower-income tax planning. This Article then applies that mandate to a specific cohort of lower-income taxpayers- drivers working in the sharing economy-and …

Naked Price And Pharmaceutical Trade Secret Overreach, Robin C. Feldman, Charles Graves

Faculty Scholarship

Trade secret has drifted from a quiet backwater doctrine to a pervasive force in intellectual property. As always, the risk of distortion is great when a legal arena is developing and expanding rapidly. Nowhere do the theoretical tensions of trade secret law appear in such stark relief as in the modern pharmaceutical debates, where the heart of the theoretical question involves whether pricing is a proper subject for trade secrecy claims.

We aim to bring trade secret into greater harmony with broad concepts that reach across all intellectual property regimes. As with other areas of intellectual property law, trade secret …

The Burden On Society From Eleventh-Hour 'Citizen Petitions' Filed To Slow Generic Drugs, Robin C. Feldman

Faculty Scholarship

The Food and Drug Administration's citizen petition process provides an avenue for ordinary citizens to raise concerns and participate in the regulatory process. Abuse of that process has been documented as an example of the legal maneuvering used by pharmaceutical companies to protect their brand-name drug revenue streams from the introduction of low-cost generics. To date, the financial cost to society of these delays has not been calculated in the literature, which likely hinders the push for policy solutions. Drawing from a previously published data set on 249 citizen petitions, this Article will identify four petitions that were highly likely …

When Are Vaccine Mandates Appropriate?, Dorit R. Reiss, Carmel Shachar

Faculty Scholarship

Vaccine refusal is a serious public health problem, especially in the context of diseases with potential to spark global pandemics, such as Ebola virus disease in the Democratic Republic of the Congo. This article examines whether and when compelling vaccination through mandates and criminalization, for example, are appropriate. It argues that some legal approaches are ethical when they preserve social stability, trust in government, therapeutic research opportunities, or when they diminish disease severity.

Viral Licensing: Ensuring The Public Interest When Taxpayers Fund Pharmaceutical Research, Robin C. Feldman, Betty Chang Rowe, Rabiah Oral

Faculty Scholarship

In recent years, the nation's drug development and delivery system has loomed in the forefront of pressing policy concerns. This piece suggests a relatively simple pathway that could provide opportunities for progress with aspects of the problem. Through the addition of a few choice provisions in their licensing agreements, research universities could improve consumer choices and access to the drugs developed with their government-funded research. Looking at the entire drug development system, universities play a complex set of roles. They are both the keepers of the academic flame and the stewards of public money. Beyond that, universities also may benefit …

Public Land Policy After The Trump Administration: Is This A Turning Point?, John D. Leshy

Faculty Scholarship

No abstract provided.

Social Enterprise Lawyering, Alina S. Ball

Faculty Scholarship

No abstract provided.

To Litigate A Pandemic: Cases In The United States Against China And The Chinese Communist Party And Foreign Sovereign Immunities, Chimene Keitner

Faculty Scholarship

No abstract provided.

Coequal Federalism And Federal-State Agencies, Dave Owen, Hannah Jacobs Wiseman

Faculty Scholarship

Dividing authority between the federal government and the states is central to the theory and practice of federalism. Division is the defining feature of dual federalism, which dominates the U.S. Supreme Court’s federalism jurisprudence. Recent academic theories of federalism emphasize overlap and interaction but still assume that federal and state actors will work within separate institutions. Each approach can be problematic, yet assumptions of separation remain the bedrock of federalism. This Article discusses a different form of federalism: coequal federalism. Under coequal federalism, federal- and state-appointed officials collaborate within a single agency that makes decisions binding on the federal government …

An Aye Aye For An Aye Aye: Making Biodiversity Offsets Sustainable, David Takacs

Faculty Scholarship

No abstract provided.

The Covid-19 Vaccine Dilemma, Dorit R. Reiss

Faculty Scholarship

COVID-19 continues to lead to large numbers of deaths, harms, and financial costs. Without an effective vaccine, those will continue. The pressure to find a vaccine is high; and that pressure places a risk on the safeguards in place to assure that vaccines are safe and effective will be ignored. The United States has an extensive apparatus to oversee vaccine safety before and after licensing, including multiple federal committees and several monitoring systems, and that apparatus gave us, in 2020, an extraordinarily safe vaccine supply. This Article explains the different pressures that push for and against using the same apparatus …

Institutionalizing The Centers For Disease Control And Prevention's Independence, Dorit R. Reiss

Faculty Scholarship

The United States' response to the COVID-19 pandemic was sub­ optimal. One problem in it was the politicization of the public health response. One aspect of that politicization was aggressive political intervention in the Centers for Disease Control and Prevention ( CDC) efforts to provide guidance and help pandemic response. The concern was strong enough that four previous CDC Directors, in an unusual step, published an op-ed calling out political intervention in the CDC. This article proposes two changes to strengthen the CDC's institutional independence: codifying the CDC's role in preventing diseases and reducing harms in a statute, and restructuring …

Digging The Rabbit Hole, Covid-19 Edition: Anti-Vaccine Themes And The Discourse Around Covid-19, Tara C. Smith, Dorit R. Reiss

Faculty Scholarship

This article draws on a broadcast popular among the anti-vaccine community to map out six themes used by the broadcast to mislead viewers about COVID-19. The themes are the claim that “they” e government and pharma e are lying to you, claims that COVID-19 is an excuse to remove civil liberties, viewing everyone as an expert, claiming that science cannot save us, skewing the science, and a claim that “they” are out to harm the viewers. The article points out that similar themes are used to mislead followers with anti-vaccine information. It highlights the concern that these themes will not …

How Congress Can Help Raise Vaccine Rates, Dorit R. Reiss, Y. Tony Yang

Faculty Scholarship

2019 saw an unusually high number of measles cases, and other preventable disease outbreaks, at least in part linked to vaccines refusal. States are considering legislative responses. This Essay examines what role the federal government can fill in increasing vaccines rates. The Essay suggests that the federal government has an important role to fill in funding research, coordination, and local efforts. It also suggests that a federal school vaccine mandate is likely not the solution: first, such mandates can run into plausible constitutional challenges, and second, there are policy arguments against it. The policy contentions include the unfairness of imposing …

When Public Participation Is Public Theatre: Misuse Of Public Comment Opportunities By Anti-Vaccine Activists, Dorit R. Reiss, Barbara S. Romzek

Faculty Scholarship

No abstract provided.

Evidence Of Memory From Brain Data, Emily R. Murphy, Jesse Rissman

Faculty Scholarship

Much courtroom evidence relies on assessing witness memory. Recent advances in brain imaging analysis techniques offer new information about the nature of autobiographical memory and introduce the potential for brain-based memory detection. In particular, the use of powerful machine- learning algorithms reveals the limits of technological capacities to detect true memories and contributes to existing psychological understanding that all memory is potentially flawed. This article first provides the conceptual foundation for brain-based memory detection as evidence. It then com- prehensively reviews the state of the art in brain-based memory detection research before establishing a framework for admissibility of brain-based memory …

Moral Character: Making Sense Of The Experiences Of Bar Applicants With Criminal Records, Hadar Aviram

Faculty Scholarship

No abstract provided.

Estimating The Need For Additional Bankruptcy Judges In Light Of The Covid-19 Pandemic, Benjamin Iverson, Jared A. Ellias, Mark Roe

Faculty Scholarship

In this Article, we present the first effort to use an empirical approach to bolster the capacity of the bankruptcy system during a national crisis—here, the COVID-19 crisis. We provide two analyses, one using data from May 2020, very early on in the crisis, and another using data from September 2020, closer to the publication of this Article. Our analysis is based on an empirical observation: Historically, an increase in the unemployment rate has been a leading indicator of a rise in bankruptcy filings. If this historical trend continues to hold, the May 2020 unemployment rate of 13.3% would have …

Providing Adolescents With Independent And Confidential Access To Childhood Vaccines: A Proposal To Lower The Age Of Consent, Lois A. Weithorn, Dorit R. Reiss

Faculty Scholarship

The recent rise in rates of nonvaccination and vaccine-preventable diseases and the attendant risks to the public’s health require that lawmakers consider new policy solutions. This Article proposes one such solution. We recommend creation of a limited exception to parental decisionmaking authority by permitting certain older minors to provide legally binding consent for childhood vaccinations and protecting the confidentiality of minors who request vaccination. We analogize this proposed policy to other statutory exceptions that permit certain minors independent access to services relating to contraception, pregnancy, sexually transmitted diseases, mental health and substance abuse, and sexual assault. In this interdisciplinary paper, …

The Zooming Of Federal Civil Litigation, Scott Dodson, Lee Rosenthal, Christopher Dodson

Faculty Scholarship

No abstract provided.

The Time Politics Of Home-Based Digital Piecework, Veena B. Dubal

Faculty Scholarship

No abstract provided.

How Much Procedure Is Needed For Agencies To Change Novel Regulatory Policies?, Ming Hsu Chen

Faculty Scholarship

The use of guidance documents in administrative law has long been controversial and considered to be one of the most challenging aspects of administrative law. When an agency uses a guidance document to change or make policy, it need not provide notice to the public or allow comment on the new rule; this makes changes easier, faster, and less subject to judicial review. Under the Obama Administration, guidance documents were used to implement policy shifts in many areas of administrative law, including civil rights issues such as transgender inclusion and campus sexual harassment, and immigration law issues such as deferred …

Son Of Sam, Service-Connected Entitlements, And Disabled Veteran Prisoners, Jennifer D. Oliva

Faculty Scholarship

No abstract provided.