Digital Commons Network^™

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

Faculty Scholarship

The “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.¹ It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, ^{2 …}

The Never-Ending Assault On The Administrative State, Jack M. Beermann

Faculty Scholarship

This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …

South Atlantic Mpas And Oculina Hapc: Characterization Of Fish Communities, Benthic Habitat, And Benthic Macrobiota: Final Report For 2015-2017 Noaa Ship Pisces Cruises (15-02, 16-20, 17-02)., John K. Reed, Stacey Harter, Stephanie Farrington, Andrew David

Faculty Scholarship

In 2009, the South Atlantic Fishery Management Council (SAFMC) established eight deepwater Marine Protected Areas (MPAs) along the outer continental shelf off the southeastern U.S. from south Florida to North Carolina. This report summarizes three research cruises that were conducted from 2015 to 2017 in support of this NOAA Coral Reef Conservation Program (CRCP) and SAFMC grant. Seven MPA sites were surveyed in this 3-yr project and included St. Lucie Hump MPA, North Florida MPA, Georgia MPA, Edisto MPA, Charleston Deep Artificial MPA, Northern South Carolina MPA, and Snowy Wreck MPA. Also the Devil’s Hole Special Management Zone (SMZ) which …

Biomimetic Post-Capillary Venule Expansions For Leukocyte Adhesion Studies, Bryan L. Benson, Lucy Li, Jay T. Myers, R. Dixon Dorand, Umut A. Gurkan, Alex Y. Huang

Faculty Scholarship

Leukocyte adhesion and extravasation are maximal near the transition from capillary to post-capillary venule, and are strongly influenced by a confluence of scale-dependent physical effects. Mimicking the scale of physiological vessels using in vitro microfluidic systems allows the capture of these effects on leukocyte adhesion assays, but imposes practical limits on reproducibility and reliable quantification. Here we present a microfluidic platform that provides multiple (54–512) technical replicates within a 15-minute sample collection time, coupled with an automated computer vision analysis pipeline that captures leukocyte adhesion probabilities as a function of shear and extensional stresses. We report that in post-capillary channels …

Identifying Patients And Clinical Scenarios For Use Of Long-Acting Injectable Antipsychotics – Expert Consensus Survey Part 1, Martha Sajatovic

Faculty Scholarship

Objective: To assess expert consensus on barriers and facilitators for long-acting injectable antipsychotic (LAI) use and provide clinical recommendations on issues where clinical evidence is lacking, including identifying appropriate clinical situations for LAI use. Methods: A 50-question survey comprising 916 response options was distributed to 42 research experts and high prescribers with extensive LAI experience. Respondents rated options on relative appropriateness/importance using a 9-point scale. Consensus was determined using chi-square test of score distributions. Mean (standard deviation) ratings were calculated. Responses to 29 questions (577 options) relating to appropriate patients and clinical scenarios for LAI use are reported. Results: Recommendations …

Initiating/Maintaining Long-Acting Injectable Antipsychotics In Schizophrenia/Schizoaffective Or Bipolar Disorder – Expert Consensus Survey Part 2, Martha Sajatovic

Faculty Scholarship

Objective: The aim of this study was to provide recommendations on initiating and maintaining long-acting injectable antipsychotics (LAIs) in individuals with schizophrenia/schizoaffective or bipolar disorder. Methods: A 50-question survey comprising 916 response options was completed by 34 expert researchers and high prescribers with extensive LAI experience, rating relative appropriateness/importance on a 9-point scale. Consensus was determined using chi-square test of score distributions. Results of 21 questions comprising 339 response options regarding LAI initiation, maintenance treatment, adequate trial definition, identifying treatment nonresponse, and switching are reported. Results: Experts agreed that the most important LAI selection factor was patient response/tolerability to previous …

Cross-Subsidies: Government's Hidden Pocketbook, John Brooks, Brian Galle, Brendan S. Maher

Faculty Scholarship

Governments can use regulation to pay for public goods out of the pockets of consumers, rather than taxpayers. For example, the Affordable Care Act underwrites care for women and the infirm through higher insurance premium payments by healthy men. Building on a classic article from Richard Posner, we show that these “cross-subsidies” between consumers are a common feature of modern law, ranging from telecommunications to intellectual property to employee benefits.

Critics of the ACA, and even some of its supporters, argue that taxes would be a better choice. Taxes are said to be more transparent, and to fit better with …

What Is Federalism In Health Care For?, Nicole Huberfeld

Faculty Scholarship

The Affordable Care Act offers a window on modern American federalism—and modern American nationalism—in action. The ACA’s federalism is defined not by separation between state and federal, but rather by a national structure that invites state-led implementation. As it turns out, that structure was only a starting point for a remarkably dynamic and adaptive implementation process that has generated new state-federal arrangements. States move back and forth between different structural models vis-à-vis the federal government; internal state politics produce different state choices; states copy, compete, and cooperate with each other; and negotiation with federal counterparts is a near-constant. These characteristics …

Stays, Portia Pedro

Faculty Scholarship

After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …

Medico-Legal Collaboration Regarding The Sex Offender: Othering And Resistance, Mary Lay Schuster, Brian N. Larson, Amy D. Propen

Faculty Scholarship

We examined medico-legal collaboration regarding dangerous sex offenders where state legislators have adopted statutes that determine the criteria for commitment to and discharge from civil commitment programs. The application of these statutes relies on medical diagnoses of pathologies such as paraphilia, anti-social personality disorder, and pedophilia along with prognoses for cure or recidivism. In our study, we examined court opinions from commitment hearings and observed a trial in federal court on the constitutionality of these commitments. We found that one result of this medico-legal collaboration is the marginalization or othering of sex offenders by essentializing, dividing, shaming, and impeaching them. …

Brief Of The Legal Aid Society, Bronx Defenders, Brooklyn Defender Services, Community Service Society Of New York, Center On The Administration Of Criminal Law At New York University School Of Law, Center On Race, Law And Justice At Fordham University Law School, Katal Center For Health, Equity, And Justice, And Brooklyn Community Bail Fund In Support Of Plaintiff-Appellant, Zohra Ahmed, Cynthia Conti-Cook

Faculty Scholarship

In upholding the constitutionality of the officers’ prolonged detention of Mr. Vargas, the lower court inaccurately assumed that Mr. Vargas was labeled a “transit recidivist” by the New York City Police Department (NYPD) as a result of either an open warrant or a prior conviction.3 The amici submit this brief to correct this misconception.4 The NYPD actually labels New York subway riders “transit recidivist” based on a much broader, constitutionally compromised database that includes prior arrests and summons that have been dismissed, declined prosecution or otherwise terminated in favor of the accused.

Consumer Bitcredit And Fintech Lending, Christopher K. Odinet

Faculty Scholarship

The digital economy is changing everything, including how we borrow money. In the wake of the 2008 crisis, banks pulled back in their lending and, as a result, many consumers and small businesses found themselves unable to access credit. A wave of online firms called fintech lenders have filled the space left vacant by traditional financial institutions. These platforms are fast making antiques out of many mainstream lending practices, such as long paper applications and face-to-face meetings. Instead, through underwriting by automation — utilizing big data (including social media data) and machine learning — loan processing that once took days …

The Public Cost Of Private Equity, William Magnuson

Faculty Scholarship

This Article presents a theory of the corporate governance costs of private equity. In doing so, it challenges the common view that private equity’s governance structure has resolved, or at least significantly mitigated, one of the fundamental tensions in corporate law, that is, the conflict between management and ownership. The Article argues that this widespread perception about the corporate governance benefits of private equity overlooks the many ways in which the private equity model, far from eliminating agency costs, in fact exacerbates them. These governance costs include compensation structures that incentivize excessive risk-taking, governance rights that provide investors with few …

The New Utilities: Private Power, Social Infrastructure, And The Revival Of The Public Utility Concept, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Race And Assisted Reproduction: Implications For Population Health, Aziza Ahmed

Faculty Scholarship

This Article emerges from Fordham Law Review's Symposium on the fiftieth anniversary of Loving v. Virginia,¹ the case that found antimiscegenation laws unconstitutional. ² Inspired by the need to interrogate the regulation of race in the context of family, this Article examines the diffuse regulatory environment around assisted reproductive technology (ART) that shapes procreative decisions and the inequalities that these decisions may engender. ³ ART both centers biology and raises questions about how we imagine our racial futures in the context of family, community, and nation. ⁴ Importantly, ART demonstrates how both the state and private actors shape family …

Home Health Nurse Decision-Making Regarding Visit Intensity Planning For Newly Admitted Patients: A Qualitative Descriptive Study, Elliane Irani

Faculty Scholarship

Despite patients referred to home health having diverse and complex needs, it is unknown how nurses develop personalized visit plans. In this qualitative descriptive study, we interviewed 26 nurses from three agencies about their decision-making process to determine visit intensity and analyzed data using directed content analysis. Following a multifactorial assessment of the patient, nurses relied on their experience and their agency’s protocols to develop the personalized visit plan. They revised the plan based on changes in the patient’s clinical condition, engagement, and caregiver availability. Findings suggest strategies to improve visit planning and positively influence outcomes of home health patients.

Insights Into Early Stage Of Antibiotic Development In Small And Medium-Sized Enterprises: A Survey Of Targets, Costs, And Durations, Christine Årdal, Enrico Baraldi, Ursula Theuretzbacher, Kevin Outterson, Jens Plahte, Francesco Ciabuschi, John-Arne Røttingen

Faculty Scholarship

Antibiotic innovation has dwindled to dangerously low levels in the past 30 years. Since resistance continues to evolve, this innovation deficit can have perilous consequences on patients. A number of new incentives have been suggested to stimulate greater antibacterial drug innovation. To design effective solutions, a greater understanding is needed of actual antibiotic discovery and development costs and timelines. Small and medium-sized enterprises (SMEs) undertake most discovery and early phase development for antibiotics and other drugs. This paper attempts to gather a better understanding of SMEs’ targets, costs, and durations related to discovery and early phase development of antibacterial therapies.

Reconstructing The Administrative State In An Era Of Economic And Democratic Crisis, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Revenge Against Robots, Christina Mulligan

Faculty Scholarship

No abstract provided.

Getting There: On Strategies For Implementing Criminal Justice Reform, Susan Herman

Faculty Scholarship

No abstract provided.

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Faculty Scholarship

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

Participatory Defense: Humanizing The Accused And Ceding Control To The Client, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Supreme Judicial Bullshit, Adam J. Kolber

Faculty Scholarship

No abstract provided.

Afterword: What's Next? Into A Third Decade Of Latcrit Theory, Community, And Praxis, Steven W. Bender, Francisco Valdes, Shelley Cavalieri, Jasmine Gonzales Rose, Saru Matambanadzo, Roberto Corrada, Jorge Roig, Tayyab Mahmud, Zsea Bowmani, Anthony E. Varona

Faculty Scholarship

In this multi-vocal Afterword, we reflect-personally and collectively to help chart renewed agendas toward and through a third decade of LatCrit theory, community, and praxis. This personal collective exercise illustrates and reconsiders the functions, guideposts, values, and postulates for our shared programmatic work a framework for our daily work as individuals and teams through our portfolio of projects, which in turn emerged as a "reflection and projection of LatCrit theory, community and praxis." These early anchors expressly encompassed (1) a call to recognize and accept the inevitable political nature of U.S. legal scholarship; (2) a concomitant call toward anti-subordination praxis …

Collaborative Enforcement, Andrew Elmore

Faculty Scholarship

Labor standards enforcement in the low-wage workplace has long suffered from a lack of capacity, expertise and remedies that blunt the impact of public and private enforcers alike. The question of how to address these pathologies in state and local workplace regulation has gained new urgency with the virtual explosion of regional labor lawmaking and the deregulatory impulses of the new federal administration.

This Article identifies collaboration between state and local agencies and private, public interest organizations (“PIOs”) as one pathway to address these enforcement gaps, by amplifying the deterrent effect of public and private enforcement and 1 by improving …

Can A Court Change The Law By Saying Nothing?, Paul Gugliuzza, Mark A. Lemley

Faculty Scholarship

Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit’s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36.

Including those no-opinion affirmances, the Federal Circuit has found …

Combating Discrimination Against The Formerly Incarcerated In The Labor Market, Angela Onwuachi-Willig, Ifeoma Ajunwa

Faculty Scholarship

Both discrimination by private employers and governmental restrictions in the form of statutes that prohibit professional licensing serve to exclude the formerly incarcerated from much of the labor market. This Essay explores and analyzes potential legislative and contractual means for removing these barriers to labor market participation by the formerly incarcerated. First, as a means of addressing discrimination by the state, Part I of this Essay explores the ways in which the adoption of racial impact statements — which mandate that legislators consider statistical analyses of the potential impact their proposed legislation may have on racial and ethnic groups prior …

Humans Forget, Machines Remember: Artificial Intelligence And The Right To Be Forgotten, Eduard Fosch Villaronga, Peter Kieseberg, Tiffany Li

Faculty Scholarship

To understand the Right to be Forgotten in context of artificial intelligence, it is necessary to first delve into an overview of the concepts of human and AI memory and forgetting. Our current law appears to treat human and machine memory alike – supporting a fictitious understanding of memory and forgetting that does not comport with reality. (Some authors have already highlighted the concerns on the perfect remembering.) This Article will examine the problem of AI memory and the Right to be Forgotten, using this example as a model for understanding the failures of current privacy law to reflect the …