Digital Commons Network^™

State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young

Faculty Scholarship

Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …

The Second Amendment As Positive Law, Joseph Blocher, Darrell A.H. Miller

Faculty Scholarship

No abstract provided.

Opportunity Makes A Thief: Corporate Opportunities As Legal Transplant And Convergence In Corporate Law, Martin Gelter, Geneviève Helleringer

Faculty Scholarship

The paper surveys the corporate opportunities doctrine in four jurisdictions: the US, the UK, Germany, and France. Our analysis enables us to trace the development of the doctrine, exposing the way in which certain models of dealing with a particular issue have arisen, and how these models have then spread. Fiduciary duties are often today held out as typical instruments of shareholder protection in the US and the UK, both of which are often held out as model jurisdictions in corporate governance internationally. However, fiduciary duties in these two jurisdictions often operate in strikingly different ways. While the US relies …

Judge Victor Marrero’S Challenge To The Legal Profession: A ‘Little Rebellion Now And Then’, John D. Feerick

Faculty Scholarship

No abstract provided.

Confidentiality In Patent Dispute Resolution: Antitrust Implications, Mark R. Patterson

Faculty Scholarship

nformation is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents.

Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, …

A Taxonomy Of Striker Replacements, James J. Brudney

Faculty Scholarship

No abstract provided.

A Proposal For A National Tribally Owned Lien Filing System To Support Access To Capital In Indian Country, William H. Henning, Susan M. Woodrow, Marek Dubovec

Faculty Scholarship

This article sets forth a proposal to develop and implement a national, state-of-the-art, all-electronic filing system to support tribes’ secured-transactions laws, with the goal of improving access to capital for tribes, tribal consumers, and, most importantly, independent Native-owned businesses. Tribes are increasingly recognizing the need to establish a sound commercial legal infrastructure, including in particular a modern secured-transactions law, to support sustainable business development. Toward this end, many tribes have adopted the Model Tribal Secured Transactions Act (MTSTA), and many more are in the process of reviewing the act for adoption. Central to the functioning of any secured-transactions law is …

Is The First Amendment Obsolete?, Tim Wu

Faculty Scholarship

The First Amendment was brought to life in a period, the twentieth century, when the political speech environment was markedly different than today’s. With respect to any given issue, speech was scarce and limited to a few newspapers, pamphlets or magazines. The law was embedded, therefore, with the presumption that the greatest threat to free speech was direct punishment of speakers by government.

Today, in the internet and social media age, it is no longer speech that is scarce – rather, it is the attention of listeners. And those who seek to control speech use new methods that rely on …

Whose Lands? Which Public? The Shape Of Public-Lands Law And Trump's National Monument Proclamations, Jedediah S. Purdy

Faculty Scholarship

President Trump issued a proclamation in December 2017 purporting to remove two million acres in southern Utah from national monument status, radically shrinking the Grand-Staircase Escalante National Monument and splitting the Bears Ears National Monument into two residual protected areas. Whether the President has the power to revise or revoke existing monuments under the Antiquities Act, which creates the national monument system, is a new question of law for a 112-year-old statute that has been used by Presidents from Theodore Roosevelt to Barack Obama to protect roughly fifteen million acres of federal land and hundreds of millions of marine acres. …

L’Évolution Des Actions En Justice Climatique Aux États-Unis, De George W. Bush À Donald Trump, Michael B. Gerrard

Faculty Scholarship

Les États-Unis ont plus de procès sur le climat que tous les autres pays dumonde réunis. La nature du litige a tendance à varier selon le parti qui détient la Maison Blanche. Pendant les administrations démocrates (Barack Obama), les poursuites ont tendance à être intentées par des sociétés industrielles et des États à tendance républicaine, alléguant que le Gouvernement fédéral en fait trop pour lutter contre le changement climatique. Pendant les administrations républicaines (George W. Bush, Donald J. Trump), la plupart des poursuites sont intentées par des groupes environnementaux et des États démocrates, alléguant que le Gouvernement fédéral en fait …

Motion Of A Janus Particle Very Near A Wall, Christopher L. Wirth

Faculty Scholarship

This article describes the simulated Brownian motion of a sphere comprising hemispheres of unequal zeta potential (i.e., “Janus” particle) very near a wall. The simulation tool was developed and used to assist in the methodology development for applying Total Internal Reflection Microscopy (TIRM) to anisotropic particles. Simulations of the trajectory of a Janus sphere with cap density matching that of the base particle very near a boundary were used to construct 3D potential energy landscapes that were subsequently used to infer particle and solution properties, as would be done in a TIRM measurement. Results showed that the potential energy landscape …

A Vatcoin Proposal Following On The 2017 Eu Vat Proposals - Mtic, Vatcoin, And Blockchain, Richard Thompson Ainsworth, Musaad Alwohaibi, Michael Cheetham, Camille Tirand

Faculty Scholarship

The following proposal for an EU VATCoin was presented at the Digital Tax Transformations Conference, December 18 & 19, 2017 in Vienna, Austria at WU Global Tax Policy Center (WU GTPC) at the Institute for Austrian and International Tax Law of Vienna University of Business and Economics.

The EU Commission has proposed “far-reaching reforms” to solve some of the fraud in the EU VAT. It hopes to capture €50 billion lost annually to MTIC fraud in goods. It hopes to do this without addressing tradable services, a MTIC mutation which by all accounts is running strong.

Fortunately, the Commission is …

The Antitrusting Of Patentability, Saurabh Vishnubhakat

Faculty Scholarship

Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance …

Reducing Transportation Emissions In The Northeast And Mid-Atlantic: Fuel System Considerations, Gabriel Pacyniak, Drew Veysey, James Bradbury

Faculty Scholarship

In support of states interested in learning more about market-based policy options, the Georgetown Climate Center developed Reducing Transportation Emissions in the Northeast and Mid-Atlantic: Fuel System Considerations to explore technical aspects of a possible regional cap-and-invest policy, as an illustrative example of a market-based approach to a multi-state transportation policy. The paper focuses on two subjects: which fuels might be covered under a policy, and which entities in the transportation fuel supply chain might be responsible for reducing emissions.

The recommendations made in this paper are intended to support robust market-based policies that provide flexibility and enable innovation while …

Microelectrode Implantation In Motor Cortex Causes Fine Motor Deficit: Implications On Potential Considerations To Brain Computer Interfacing And Human Augmentation, Monika Goss-Varley, Keith R. Dona, Justin A. Mcmahon, Andrew J. Shoffstall, Evon S. Ereifej, Sydney C. Lindner, Jeffrey R. Capadona

Faculty Scholarship

Intracortical microelectrodes have shown great success in enabling locked-in patients to interact with computers, robotic limbs, and their own electrically driven limbs. The recent advances have inspired world-wide enthusiasm resulting in billions of dollars invested in federal and industrial sponsorships to understanding the brain for rehabilitative applications. Additionally, private philanthropists have also demonstrated excitement in the field by investing in the use of brain interfacing technologies as a means to human augmentation. While the promise of incredible technologies is real, caution must be taken as implications regarding optimal performance and unforeseen side effects following device implantation into the brain are …

Florida's "Cruises To Nowhere" Industry: Current Status And Future Prospects, Robert Jarvis

Faculty Scholarship

Obtaining Reliable Information about the "cruises to nowhere" CTN industry in Florida always has been difficult.

Decomposing The “Tacit Knowledge Problem:” Codification Of Knowledge And Access In Crispr Gene-Editing, Neil Thompson, Samantha Zyontz

Faculty Scholarship

No abstract provided.

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Faculty Scholarship

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch politics. It …

A Cross-Sectional Study Of The Temporal Evolution Of Electricity Consumption Of Six Commercial Buildings, Ethan M. Pickering, Mohammad A. Hossain, Jack P. Mousseau, Rachel A. Swanson, Roger H. French, Alexis R. Abramson

Faculty Scholarship

Current approaches to building efficiency diagnoses include conventional energy audit techniques that can be expensive and time consuming. In contrast, virtual energy audits of readily available 15-minute-interval building electricity consumption are being explored to provide quick, inexpensive, and useful insights into building operation characteristics. A cross sectional analysis of six buildings in two different climate zones provides methods for data cleaning, population-based building comparisons, and relationships (correlations) of weather and electricity consumption. Data cleaning methods have been developed to categorize and appropriately filter or correct anomalous data including outliers, missing data, and erroneous values (resulting in < 0.5% anomalies). The utility of a cross-sectional analysis of a sample set of building’s electricity consumption is found through comparisons of baseload, daily consumption variance, and energy use intensity. Correlations of weather and electricity consumption 15-minute interval datasets show important relationships for the heating and cooling seasons using computed correlations of a Time-Specific-Averaged-Ordered Variable (exterior temperature) and corresponding averaged variables (electricity consumption)(TSAOV method). The TSAOV method is unique as it introduces time of day as a third variable while also minimizing randomness in both correlated variables through averaging. This study found that many of the pair-wise linear correlation analyses lacked strong relationships, prompting the development of the new TSAOV method to uncover the causal relationship between electricity and weather. We conclude that a combination of varied HVAC system operations, building thermal mass, plug load use, and building set point temperatures are likely responsible for the poor correlations in the prior studies, while the correlation of time-specific-averaged-ordered temperature and corresponding averaged variables method developed herein adequately accounts for these issues and enables discovery of strong linear pair-wise correlation R values. TSAOV correlations lay the foundation for a new approach to building studies, that mitigates plug load interferences and identifies more accurate insights into weather-energy relationship for all building types. Over all six buildings analyzed the TSAOV method reported very significant average correlations per building of 0.94 to 0.82 in magnitude. Our rigorous statistics-based methods applied to 15-minute-interval electricity data further enables virtual energy audits of buildings to quickly and inexpensively inform energy savings measures.

Presidential Executive Orders Duel Over Floodplain Definition As S.E. Florida Prepares For Sea Level Rise, Brion Blackwelder

Faculty Scholarship

No abstract provided.

An Examination Of Policy Options For Achieving Greenhouse Gas Emissions Reductions In New Jersey, Gabriel Pacyniak

Faculty Scholarship

An Examination of Policy Options for Achieving Greenhouse Gas Emissions Reductions in New Jersey surveys emissions and energy trends, describes a “deep decarbonization pathway” for the state, and identifies the types of policies that would be necessary to achieve those reductions. Many of the policies address the power and transportation sectors, which account for more than 60 percent of total greenhouse gas emissions from New Jersey. The report also includes options for improving building efficiency, reducing methane leaks from natural gas infrastructure, restoring natural carbon sinks in forests and wetlands, and incorporating equity considerations to address the needs of frontline …

A Framework For Understanding Subfederal Enforcement Of Immigration Laws, Huyen Pham

Faculty Scholarship

In discussing the varied LEA responses, the normative question naturally arises: Which model of immigration enforcement should an LEA embrace? If an LEA with no current immigration enforcement policy were to decide on a model, which model should it choose? Or, if an LEA wants to reconsider its current enforcement model, what factors should it consider in making its decision? The answers to these questions depend on the interests of individual LEAs-interests that may vary from LEA to LEA. The second contribution of this article then is to raise important questions that LEAs should consider in deciding which model is …

Data Collection And The Regulatory State, Ahmed Ghappour

Faculty Scholarship

The following remarks were given on January 27, 2017 during the Connecticut Law Review’s symposium, “Privacy, Security & Power: The State of Digital Surveillance.” Hillary Greene, the Zephaniah Swift Professor of Law at the University of Connecticut School of Law, offered introductory remarks and moderated the panel. The panel included Dr. Cooper, Associate Professor of Law and Director of the Program on Economics & Privacy at Antonin Scalia Law School at George Mason University, Professor Ghappour, Visiting Assistant Professor at UC Hastings College of the Law, Attorney Lieber, Senior Privacy Policy Counsel at Google, and Dr. Wu, Professor of Law …

Arbitration And Fine Dining: Two Faces Of Efficiency, William W. Park

Faculty Scholarship

A restaurant meal might turn into disappointment either when good food arrives late, or when prompt service delivers bad food. The chef cannot become preoccupied with any one aspect of fine dining to the exclusion of others. Likewise, arbitral proceedings implicate proportionality and balance among a multitude of factors which can make the experience good or bad. Several elements play key roles in evaluating any arbitration, namely: accuracy, fairness, cost, speed, and award enforceability. An inevitable tension exists among these goals. Decisions reached quickly and cheaply will do few favors if the award gets it wrong on the substantive merits. …

(Public) Health And Human Rights: Of Bridges And Matrixes, George J. Annas

Faculty Scholarship

Responding to President Trump's anti-Muslim executive order restricting immigration, the American Public Health Association (APHA) issued a press release recommitting the organization to human rights, noting that "health and human rights are inextricably linked." The organization underlined the basic human rights norm of nondiscrimination, noting that "all people should be valued equally, no matter their race, gender, sexual orientation, religion, immigration status, income or geographic region" and that whenever any groups of people are prevented from "experiencing basic human rights, all of our communities suffer" (APHA 2017). Human rights, especially the right to health, have also been at the core …

Status Epilepticus Due To Intraperitoneal Injection Of Vehicle Containing Propylene Glycol In Sprague Dawley Rats, Evon S. Ereifej, Seth M. Meade, Cara S. Smith, Keying Chen, Nanette Kleinman, Jeffrey R. Capadona

Faculty Scholarship

Published reports of status epilepticus due to intraperitoneal injection containing propylene glycol in rats are sparse. In fact, there are no reports specifying a maximum safe dose of propylene glycol through intraperitoneal administration. We report here a case of unexpected seizures in Sprague Dawley rats after receiving an intraperitoneal injection containing propylene glycol. Nine-week-old, 225-250 gram male rats were reported to experience tremor progressing to seizures within minutes after given injections of resveratrol (30 mg/kg) dissolved in a 40: 60 propylene glycol/corn oil vehicle solution by direct intraperitoneal (IP) slow bolus injection or via a preplaced intraperitoneal catheter. The World …

The Sailor, The Prostitute, The Pimp, And The Judge: Chasing Down The Loose Ends Of Koistinen V. American Export Lines, Inc., Robert Jarvis

Faculty Scholarship

Koistinen v. American Export Lines, Inc. is a case all admiralty law professors love to teach and all law students love to read.

The First Real-Time Blockchain Vat - Gcc Solves Mtic Fraud, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

Following years of study the Gulf Cooperation Council (GCC) appears ready to adopt the recommendations of the International Monetary Fund (IMF) and put in place a tax system that will stabilize revenue. A value added tax (VAT) and corporate income tax (CIT) are considered. A VAT Framework Agreement, that functions like the VAT Directive in the EU, has been agreed.

Although new, the GCC VAT is very worthy of attention. From a tax policy perspective, it is making notable improvements to EU VAT design. The GCC VAT is (potentially) the world’s first real-time, blockchain-secured, multi-jurisdictional VAT. This is a remarkable …

Bitproperty And Commercial Credit, Christopher K. Odinet

Faculty Scholarship

In the past several years, the growth of virtual property in today’s economy has been explosive. The everyday use of virtual assets, ranging from Twitter and Facebook to YouTube and virtual world accounts, is nearly absolute. Indeed, by one account, Americans check social media over seventeen times per day. Further, a growing number of savvy virtual entrepreneurs are reporting incomes in the six- and seven-figure range, derived solely from their online businesses. Nevertheless, although the commercial world has come to embrace these newfound markets, commercial law has done a poor job of keeping up. Scholars have argued that laws governing …

Winds Of Change: James Madison University Libraries' Participation In The Viva/Zepheira/Atlas Linked Data Pilot, Steven W. Holloway, Rebecca B. French

Faculty Scholarship

The Virtual Library of Virginia Consortium (VIVA) contracted in 2016 with Zepheira and Atlas to launch a pilot project using archives/special collections records from ten member schools in a Linked Data experiment. The records are converted to Zepheira's form of BIBFRAME 1.0 and published in their Library.Link program. Zepheira's structured data approach to Linked Data web publication is extreme, unique, and promising. We will describe how James Madison University enriched its bib records with LC, FAST, and AAT URIs, what the resulting Zepheira structured data injection looks like, and how effectively the method is driving web traffic to our Library.Link …