Digital Commons Network^™

Response: Rights As Trumps Of What?, Joseph Blocher

Faculty Scholarship

No abstract provided.

Originalism And The Law Of The Past, William Baude, Stephen E. Sachs

Faculty Scholarship

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law — which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed.

This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of …

Is There A First-Drafter Advantage In M&A?, Adam B. Badawi, Elisabeth De Fontenay

Faculty Scholarship

No abstract provided.

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

The Emergence Of The American Constitutional Law Tradition, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Totemic Functionalism In Foreign Affairs Law, Elad D. Gil

Faculty Scholarship

In many Western democracies, and particularly in the United States, foreign affairs are primarily an executive enterprise. The travel ban, the exit from the Irannuclear deal, and the airstrikes against the Bashar al-Assad regime in Syria are just a few recent illustrations of unilateral assertions of presidential power. A large part of the justification for treating foreign affairs differently than other areas of public policy, in which political and judicial checks on the executive are more robust, is functional. Owing to the executive’s relative institutional advantages over the legislature and the judiciary—in expertise, knowledge, speed, unitary structure, and democratic accountability—courts …

Doctrinal Dynamism, Borrowing, And The Relationship Between Rules And Rights, Joseph Blocher, Luke Morgan

Faculty Scholarship

The study of "Rights Dynamism," exemplified in Timothy Zick' s new book on the First Amendment's relationship with the rest of the Bill of Rights, can enrich our understanding of constitutional rights. It also opens a door to another potentially fruitful arena: what we call "Doctrinal Dynamism." Constitutional rights often interact and generate new meanings and applications by way of importing and exporting one another's doctrinal rules, even when the rights themselves do not intersect directly in the context of a single case. Focusing on these doctrinal exchanges can illuminate the strengths and weaknesses of various rules, the specific interests …

Who Tells Your Story: The Legality Of And Shift In Racial Preferences Within Casting Practices, Nicole Ligon

Faculty Scholarship

Expressing racial preferences in casting calls and hiring practices is nothing new. Producers of television shows, movies, and Broadway musicals have regularly and explicitly sought to hire actors and actresses with certain physical characteristics, including race, in casting their productions. And, given that the industry seemingly accepted this standard when it favored white talent, the public heard little about it. To the extent controversy arose, courts quelled concerns in a swift and easy fashion, without consideration of the societal harms or impacts that stereotyped or limited portrayals of minorities in entertainment could have on the public’s perception of people of …

Engineered Credit Default Swaps: Innovative Or Manipulative?, Gina-Gail S. Fletcher

Faculty Scholarship

Credit default swaps (“CDS”) are, once again, making waves. Maligned for their role in the 2008 financial crisis and condemned by the Vatican, investors are once more utilizing CDS to achieve results of questionable market benefit. A CDS is a financial contract that allows investors to “bet” on whether a borrower will default on its loan. However, rather than waiting to see how their bets pan out, some CDS investors are collaborating with financially distressed borrowers to guarantee the profitability of their CDS positions—“engineering” the CDS’ outcome. Under the CDS contract, these collaborations are not prohibited, yet they have roiled …

The Conflicted Advice Problem: A Response To Conflicts & Capital Allocation, Gina-Gail S. Fletcher

Faculty Scholarship

No abstract provided.

Trade And The Separation Of Powers, Timothy Meyer, Ganesh Sitaraman

Faculty Scholarship

There are two paradigms through which to view trade law and policy within the American constitutional system. One paradigm sees trade law and policy as quintessentially about domestic economic policy. Institutionally, under the domestic economics paradigm, trade law falls within the province of Congress, which has legion Article I powers over commercial matters. The second paradigm sees trade law as fundamentally about America’s relationship with foreign countries. Institutionally, under the foreign affairs paradigm, trade law is the province of the President, who speaks for the United States in foreign affairs. While both paradigms have operated throughout American history, the domestic …

When Data Comes Home: Next Steps In International Taxation’S Information Revolution, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

Over the last decade, there has been a revolution in cross-border tax information exchange and reporting. While this dramatic shift was the product of multiple forces and events, a fundamental reality is that politics, technology, and law intersected to drive the shift to the point where nation-states will now transmit and receive from each other significant ongoing flows of taxpayer information. States can now expect to accumulate large stashes of data on cross-border income, assets, and activities on a scale and level of comprehensiveness unmatched by previous information exchange regimes.

This article examines the pressing follow-up question of how this …

Presidential Responses To Protest: Lessons Jefferson Davis Never Learned, Ashlee Paxton-Turner

Faculty Scholarship

No abstract provided.

Beyond The Numbers: Substantive Gender Diversity In Boardrooms, Yaron Nili

Faculty Scholarship

No abstract provided.

Introduction: Professor Randall Thomas’S Depolarizing And Neutral Approach To Shareholder Rights, James D. Cox, Frank Partnoy

Faculty Scholarship

No abstract provided.

Federal Criminal Risk Assessment, Brandon L. Garrett

Faculty Scholarship

Risk assessments are a common feature of federal decisionmaking, including across a range of administrative agencies. However, in federal criminal law, risk assessments have been only haltingly adopted. Decisions regarding bail, sentences, and prison programming have largely been made based on official discretion. Risk assessment instruments are currently used in federal courts pretrial and postconviction, and in federal prisons regarding security levels and reentry, with highly uneven results to date. The adoption of the First Step Act, which has the ambition to transform the federal prison system through the use of risk instruments, has the potential to introduce a more …

Wealth, Equal Protection, And Due Process, Brandon L. Garrett

Faculty Scholarship

Increasingly, constitutional litigation challenging wealth inequality focuses on the intersection of the Equal Protection and Due Process Clauses. That intersection—between equality and due process—deserves far more careful exploration. What I call “equal process” claims arise from a line of Supreme Court and lower court cases in which wealth inequality is the central concern. For example, the Supreme Court in Bearden v. Georgia conducted analysis of a claim that criminal defendants were treated differently based on wealth in which due process and equal protection principles converged. That equal process connection is at the forefront of a wave of national litigation concerning …

Machine Learning At The Patent Office: Lessons For Patents And Administrative Law, Arti K. Rai

Faculty Scholarship

The empirical data indicate that a relatively small increment of additional U.S. Patent and Trademark Office (“Patent Office” or “USPTO”) investment in prior art search at the initial examination stage could be a cost-effective mechanism for improving accuracy in the patent system. This contribution argues that machine learning provides a promising arena for such investment. Notably, the use of machine learning in patent examination does not raise the same potent concerns about individual rights and discrimination that it raises in other areas of administrative and judicial process. To be sure, even an apparently easy case like prior art search at …

Proactive Resolution Of Sovereign And Subnational Debt, Steven L. Schwarcz

Faculty Scholarship

Sovereign debt restructuring strategies have been mostly reactive, applying only once a nation’s debt burden becomes unsustainable. Reactive strategies are suboptimal for many reasons, including that international law does not yet provide mechanisms—in the corporate sector, provided by bankruptcy law—for correcting collective action and other market failures that impede the restructuring of sovereign debt. A financially troubled nation often faces a dilemma: paying its debt would reduce its ability to provide critical public services, but defaulting would further damage the nation’s fiscal integrity and reputation and could even shock the broader economy. Building on “proactive” strategies designed to resolve corporate …

Legal And Policy Responses To Vaccine-Preventable Disease Outbreaks, Leila Barraza, Dorit R. Reiss, Patricia Freeman

Faculty Scholarship

No abstract provided.

Thermal Block Of Action Potentials Is Primarily Due To Voltage-Dependent Potassium Currents: A Modeling Study, Michael W. Jenkins, Hillel J. Chiel

Faculty Scholarship

Objective. Thermal block of action potential conduction using infrared lasers is a new modality for manipulating neural activity. It could be used for analysis of the nervous system and for therapeutic applications. We sought to understand the mechanisms of thermal block. Approach. To analyze the mechanisms of thermal block, we studied both the original Hodgkin/Huxley model, and a version modified to more accurately match experimental data on thermal responses in the squid giant axon. Main results. Both the original and modified models suggested that thermal block, especially at higher temperatures, is primarily due to a depolarization-activated hyperpolarization as increased temperature …

Soft-Surface Grasping: Radular Opening In Aplysia Californica, Catherine E. Kehl, Joey Wu, Sisi Lu, Richard F. Drushel, Rebekah K. Smoldt, Hillel J. Chiel

Faculty Scholarship

Grasping soft, irregular material is challenging both for animals and robots. The feeding systems of many animals have adapted to this challenge. In particular, the feeding system of the marine mollusk Aplysia californica, a generalist herbivore, allows it to grasp and ingest seaweeds of varying shape, texture and toughness. On the surface of the grasper of A. californica is a structure known as the radula, a thin flexible cartilaginous sheet with fine teeth. Previous in vitro studies suggested that intrinsic muscles, I7, are responsible for opening the radula. Lesioning I7 in vivo does not prevent animals from grasping and ingesting …

Exploring The Health Implications Of Mixed-Income Communities: Mariposa, Denver, Co, Emily Miller

Faculty Scholarship

This site profle is part of a series that spotlights mixed-income community transformations that emphasize health and wellness in their strategic interventions. The Mixed-Income Strategic Alliance produced these profles to better understand the health implications of creating thriving and inclusive communities with a socioeconomically and racially diverse population. This site profle, which focuses on Mariposa, was developed through interviews with local stakeholders as well as a review of publicly-available and internal documents.

Exploring The Health Implications Of Mixed-Income Communities: Yesler Terrace, Seattle, Wa, Emily Miller

Faculty Scholarship

This site profile is part of a series that spotlights mixed-income community transformations that emphasize health and wellness in their strategic interventions. The Mixed-Income Strategic Alliance produced these profiles to better understand the health implications of creating thriving and inclusive communities with a socioeconomically and racially diverse population. This site profile, which focuses on Yesler Terrace, was developed through interviews with local stakeholders as well as a review of publicly-available and internal documents.

Anchor Institutions And Mixed-Income Communities: Partnerships Ripe With Possibilities, Edmund Kwame Botchway, Salin Geevarghese

Faculty Scholarship

This report is part of the Mixed-Income Strategic Alliance’s exploration of the linkages among mixed-income communities, the social determinants of health, and improving health outcomes. This report considers the key opportunities and challenges for anchor institutions and mixed-income communities. It was developed through interviews with national experts as well as a review of salient articles, research reports, and publicly-available information. It speaks to the promising examples of anchors who are stepping forward to lead, support, and invest in mixed-income communities, but it also notes the real or perceived deterrents and barriers that stand in the way for anchors. After noting …

Mixed-Income Communities As A Strategic Lever To Impact Health Equity: Lessons From The Field And Implications For Strategy And Investment, Mark L. Joseph

Faculty Scholarship

This report provides an overview of the current state of knowledge about how mixed-income community interventions could help achieve greater health equity. The report culminates an eighteen-month inquiry on mixed-income communities and health and focuses on implications from profi les of fi ve mixed-income community interventions that have a strategic emphasis on improving health and wellness.

Promoting Inclusive Social Dynamics In Mixed-Income Communities: Promising Practices, Joni Hirsch, Mark L. Joseph

Faculty Scholarship

This report considers the key challenges of promoting “inclusive social dynamics” in mixed-income communities, presents key principles and approaches to achieve greater success, and spotlights promising efforts to advance these approaches. The Mixed-Income Strategic Alliance produced this report as part of a broader inquiry regarding social inclusion in mixed-income communities. Our aim is to help advance strategic action in the community development field to more effectively promote a shared sense of belonging, increased social cohesion and broadened voice and influence in order to increase equitable outcomes in mixed-income communities. The report was created through scans of the fi eld, evidence …

Promoting Inclusive Social Dynamics In Mixed-Income Development: Conceptual Framework, Joni Hirsch, Mark L. Joseph

Faculty Scholarship

This conceptual framework examines the process of promoting more inclusive social dynamics in mixed-income communities. Each slide depicts two possible pathways: an inclusionary pathway on top and an exclusionary pathway below. These pathways are not mutually exclusive and are often both at play. The slides provide increasing levels of detail about the pathways. Though represented for simplicity as a linear process, in reality the process is likely more cyclical.

Activist Directors And Agency Costs: What Happens When An Activist Director Goes On The Board?, John C. Coffee Jr., Robert J. Jackson Jr., Joshua R. Mitts, Robert E. Bishop

Faculty Scholarship

We develop and apply a new and more rigorous methodology by which to measure and understand both informed trading and the agency costs of hedge fund activism. We use quantitative data to show a systematic relationship between the appointment of a hedge fund-nominated director to a corporate board and an increase in informed trading in that corporation’s stock (with the relationship being most pronounced when the fund’s slate of directors includes a hedge fund employee). This finding is important from two different perspectives. First, from a governance perspective, activist hedge funds represent a new and potent force in corporate governance. …

Defending Refugees: A Case For Protective Procedural Safeguards In The Persecutor Bar Analysis, Charles Shane Ellison

Faculty Scholarship

For refugees and asylum seekers, application of the so-called persecutor bar is tantamount to a death sentence. However, the Board of Immigration Appeals -- without any real deliberation--has arrived at an interpretation of a generic-relief, burdenshifting regulation to allow for application of the persecutor bar based upon very little evidence. Even mere membership in a group with a poor human rights record has been held sufficient to switch the burden of proof and apply the bar. While the recent holding of Matter of Negusie, 27 I&N Dec. 347 (June 28, 2018) can be read and understood largely as a victory …