Digital Commons Network^™

Before Interpretation, Anya Bernstein

Faculty Scholarship

What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present …

Comment On "Error And Regulatory Risk In Financial Institution Regulation", Keith N. Hylton

Faculty Scholarship

I agree with just about everything Jonathan Macey (2017) says in his symposium contribution. His claim that bureaucratic tendencies toward regularity—specifically, treating like cases alike—generate errors in categorization seems appropriate to me. His explanations of the pathologies in financial regulation should fall in the category of essential or required reading for anyone who chooses to write on the topic. Where I differ from Macey is in the choice of framework, or perspective from which to view the pathologies. Whereas Macey adopts an “error cost” framework, which is clearly appropriate for this symposium, I would build explicitly on a “public choice” …

Recognizing Women's Rights At Work: Health And Women Workers In Global Supply Chains, Erika R. George, Candace D. Gibson, Rebecca Sewall, David Wofford

Faculty Scholarship

The Guiding Principles mandate that businesses respect the human fights enshrined in the International Bill of Human Rights and in the International Labour Organization (ILO)'s Declaration on Fundamental Principles and Rights at Work. Due diligence processes and risk impact assessments are the main recommended means for ensuring compliance with companies' commitments to respect international human fights. Because OSH as a conceptual framework and regulatory order is not sufficient to identify the risk of health fights violations to women workers, we argue companies should not anchor their due diligence and risk assessment in OSH conventions and settle for a check-the-box solution …

Corpus Linguistics As A Tool In Legal Interpretation, Lawrence Solan, Tammy Gales

Faculty Scholarship

No abstract provided.

The Hostile Poison Pill, A. Christine Hurt

Faculty Scholarship

No abstract provided.

R&D Tax Incentives--Growth Panacea Or Budget Trojan Horse?, Stephen E. Shay, J. Clifton Fleming Jr., Robert J. Peroni

Faculty Scholarship

No abstract provided.

Two Cheers For The Foreign Tax Credit, Even In The Beps Era, J. Clifton Fleming Jr., Robert J. Peroni, Stephen E. Shay

Faculty Scholarship

Reform of the U.S. international income taxation system has been a hotly debated topic for many years. The principal competing alternatives are a territorial or exemption system and a worldwide system. For reasons summarized in this article, we favor worldwide taxation if it is real worldwide taxation – i.e., a non-deferred U.S. tax is imposed on all foreign income of U.S. residents at the time the income in earned. This approach is not acceptable, however, unless the resulting double taxation is alleviated. The longstanding U.S. approach for handling the international double taxation problem is a foreign tax credit limited to …

“Goodness Itself Must Change” – Anthroponomy In An Age Of Socially-Caused, Planetary Environmental Change, Jeremy Bendik-Keymer

Faculty Scholarship

Given the reality of socially-caused, planetary-scaled, environmental change, how – if at all – should our ethical concepts change? It has been a hallmark of environmental literature in recent years to insist that they should or even must. It will be argued that, yes, our ethical concepts should change by exploring the changes needed for the core ethical concept of goodness. Goodness, it will be argued, must change to reflect a change in priority from personal intentions to the right relation between an agent and the collective to which he/she belongs. This relation, which is called herein the civic relation, …

3-D Microwell Array System For Culturing Virus Infected Tumor Cells, Umut A. Gurkan

Faculty Scholarship

Cancer cells have been increasingly grown in pharmaceutical research to understand tumorigenesis and develop new therapeutic drugs. Currently, cells are typically grown using two-dimensional (2-D) cell culture approaches, where the native tumor microenvironment is difficult to recapitulate. Thus, one of the main obstacles in oncology is the lack of proper infection models that recount main features present in tumors. In recent years, microtechnology-based platforms have been employed to generate three-dimensional (3-D) models that better mimic the native microenvironment in cell culture. Here, we present an innovative approach to culture Kaposi’s sarcoma-associated herpesvirus (KSHV) infected human B cells in 3-D using …

Robustness, Flexibility, And Sensitivity In A Multifunctional Motor Control Model, David N. Lyttle, Jeffrey P. Gill, Peter J. Thomas, Hillel J. Chiel

Faculty Scholarship

Motor systems must adapt to perturbations and changing conditions both within and outside the body. We refer to the ability of a system to maintain performance despite perturbations as “robustness,” and the ability of a system to deploy alternative strategies that improve fitness as “flexibility.” Different classes of pattern-generating circuits yield dynamics with differential sensitivities to perturbations and parameter variation. Depending on the task and the type of perturbation, high sensitivity can either facilitate or hinder robustness and flexibility. Here we explore the role of multiple coexisting oscillatory modes and sensory feedback in allowing multiphasic motor pattern generation to be …

Et Tu, Android?: Regulating Dangerous And Dishonest Robots, Woodrow Hartzog

Faculty Scholarship

Consumer robots like personal digital assistants, automated cars, robot companions, chore-bots, and personal drones raise common consumer protection issues, such as fraud, privacy, data security, and risks to health, physical safety, and finances. They also raise new consumer protection issues, or at least call into question how existing consumer protection regimes might be applied to such emerging technologies. Yet it is unclear which legal regimes should govern these robots and what consumer protection rules for robots should look like.

This paper argues that the FTC's grant of authority and existing jurisprudence are well-suited for protecting consumers who buy and interact …

Designing And Improving A System Of Proactive Management-Based Regulation To Help Lawyers And Protect The Public, Susan Saab Fortney

Faculty Scholarship

Increasingly, lawyers and decision-makers are recognizing the limitations and consequences of current approaches to attorney regulation. Inspired by developments in other countries, regulators in the United States and Canada have started the process of exploring innovative approaches, including proactive management-based regulation. The term, proactive-management regulation (PMBR), was first used by Professor Ted Schneyer to refer to a regulatory approach designed to promote ethical law practice by assisting lawyers with practice management.

The seed for PMBR was first planted in the Australian state of New South Wales (NSW). It grew out of the legislation that allowed limited liability and non-lawyer ownership …

The Interplay Between Plasticity And Evolution In Response To Human-Induced Environmental Change, Sarah E. Diamond, Ryan A. Martin

Faculty Scholarship

Some populations will cope with human-induced environmental change, and others will undergo extirpation; understanding the mechanisms that underlie these responses is key to forecasting responses to environmental change. In cases where organisms cannot disperse to track suitable habitats, plastic and evolved responses to environmental change will determine whether populations persist or perish. However, the majority of studies consider plasticity and evolution in isolation when in fact plasticity can shape evolution and plasticity itself can evolve. In particular, whether cryptic genetic variation exposed by environmental novelty can facilitate adaptive evolution has been a source of controversy and debate in the literature …

Bacterial Colonization And Antibiotic Resistance In A Prospective Cohort Of Newborn Infants During The First Year Of Life, Sharon B. Meropol, Kurt C. Stange, Michael R. Jacobs, Judith K. Weiss, Saralee Bajaksouzian, Robert A. Bonomo

Faculty Scholarship

Background. Infants are virtually sterile at birth and frequently use antibiotics; our objective was to (1) characterize the longitudinal colonization with bacterial pathogens and associated antibiotic resistance in a cohort of community-dwelling infants in Northeast Ohio and (2) describe longitudinal concurrent antibiotic and daycare exposures. Methods. For 35 newborns, nasopharyngeal swabs were cultured for Streptococcus pneumoniae, anterior nasal for Staphylococcus aureus, and perirectal for extended-spectrum beta-lactamase (ESBL)-producing Gram-negative enteric bacteria, at 3-month intervals for 12 months. Infant and household antibiotics and daycare exposure were assessed longitudinally. Results. Thirteen infants received perinatal or nursery antibiotics. By 3 months, at least 22 …

Conviction By Prior Impeachment, Anna Roberts

Faculty Scholarship

No abstract provided.

Minding Ps And Qs: The Political And Policy Questions Framing Health Care Spending, William M. Sage

Faculty Scholarship

Tracing the evolution of political conversations about health care spending and their relationship to the formation of policy is a valuable exercise. Health care spending is about science and ethics, markets and government, freedom and community. By the late 1980s the unique upward trajectory of post-Medicare U.S. health care spending had been established, recessions and tax cuts were eroding federal and state budgets, and efforts to harness market forces to serve policy goals were accelerating. From the initial writings on “managed competition,” through the failed Clinton health reform effort in the early 1990s, to the passage of the Affordable Care …

Legislative Exactions And Progressive Property, Timothy M. Mulvaney

Faculty Scholarship

Exactions — a term used to describe certain conditions that are attached to land-use permits issued at the government’s discretion — ostensibly oblige property owners to internalize the costs of the expected infrastructural, environmental, and social harms resulting from development. This Article explores how proponents of progressive conceptions of property might respond to the open question of whether legislative exactions should be subject to the same level of judicial scrutiny to which administrative exactions are subject in constitutional takings cases. It identifies several first-order reasons to support the idea of immunizing legislative exactions from heightened takings scrutiny. However, it suggests …

Inefficient Efficiency: Crying Over Spilled Water, Vanessa Casado-Pérez

Faculty Scholarship

As the drought in Western states worsens, the agricultural sector is being criticized for failing to adopt technical responses, such as shifting to less water-demanding crops and state-of-the-art irrigation systems, in a timely manner. However, these responses can have the reverse effect: they can increase water consumption. Technological responses alone are insufficient to reduce water consumption if unaccompanied by changes in how the law defines and allocates water rights. This paper proposes a redefinition of water rights to ensure that changes in crops or irrigation techniques are socially efficient.

In the West, which uses the doctrine of prior appropriation to …

The Candidate Cluster And Protocluster Catalog (Ccpc). Ii. Spectroscopically Identified Structures Spanning 2 < Z < 6.6, J. R. Franck, Stacy S. Mcgaugh

Faculty Scholarship

The Candidate Cluster and Protocluster Catalog (CCPC) is a list of objects at redshifts z > 2 composed of galaxies with spectroscopically confirmed redshifts that are coincident on the sky and in redshift. These protoclusters are identified by searching for groups in volumes corresponding to the expected size of the most massive protoclusters at these redshifts. In CCPC1 we identified 43 candidate protoclusters among 14,000 galaxies between 2.74 < z < 3.71. Here we expand our search to more than 40,000 galaxies with spectroscopic redshifts z > 2.00, resulting in an additional 173 candidate structures. The most significant of these are 36 protoclusters with overdensities δ gal > 7. We also identify three large proto-supercluster candidates containing multiple protoclusters at z …

Regulating Off-Label Promotion — A Critical Test, Christopher Robertson, Aaron S. Kesselheim

Faculty Scholarship

In 2012, the U.S. Court of Appeals for the Second Circuit handed down a landmark decision in the case of pharmaceutical sales representative Alfred Caronia. The Food and Drug Administration (FDA) had approved sodium oxybate (Xyrem) for treating narcolepsy, but Caronia promoted it for a wide range of nonapproved (off-label) indications, including insomnia, Parkinson’s disease, and fibromyalgia. Off-label use is common, especially in specialties such as oncology, in which it may even be considered the standard of care. However, surveys have revealed that supporting evidence is lacking for a majority of off-label uses of medical products.1 The uses Caronia …

Defining Hate Speech, Andrew Sellars

Faculty Scholarship

There is no shortage of opinions about what should be done about hate speech, but if there is one point of agreement, it is that the topic is ripe for rigorous study. But just what is hate speech, and how will we know it when we see it online? For all of the extensive literature about the causes, harms, and responses to hate speech, few scholars have endeavored to systematically define the term. Where other areas of content analysis have developed rich methodologies to account for influences like context or bias, the present scholarship around hate speech rarely extends beyond …

Juvenile Competency And Pretrial Due Process: A Call For Greater Protections In Massachusetts For Juveniles Residing In Procedural Purgatory, Mark Rapisarda, Wendy J. Kaplan

Faculty Scholarship

While juvenile courts continue to balance and reevaluate the dual goals of community safety and rehabilitation of youth, juveniles who are not competent to stand trial have been left without sufficient procedural protections. This paper examines Massachusetts’ approach to juvenile competency, due process, and pretrial procedure, within a national context. The inadequacies of the Massachusetts juvenile competency laws are not unique. Currently there are nineteen states that either entirely lack juvenile-specific competency legislation or merely incorporate inapposite adult criminal statutes and standards into the juvenile context—making it difficult or impossible for those juvenile courts to dismiss or divert a delinquency …

The Trauma Of The Routine: Lessons On Cultural Trauma From The Emmett Till Verdict, Angela Onwuachi-Willig

Faculty Scholarship

Cultural traumas are socially mediated processes that occur when groups endure horrific events that forever change their consciousness and identity. According to cultural sociologists, these traumas arise out of shocks to the routine or the taken for granted. Understanding such traumas is critical for developing solutions that can address group suffering. Using the African American community’s response to the not guilty verdict in the Emmett Till murder trial as a case study, this article extends cultural trauma theory by explicating how cultural traumas can arise not only when routines are disrupted but also when they are maintained and reaffirmed in …

The Privacy Policymaking Of State Attorneys General, Danielle K. Citron

Faculty Scholarship

Accounts of privacy law have focused on legislation, federal agencies, and the self-regulation of privacy professionals. Crucial agents of regulatory change, however, have been ignored: the state attorneys general. This article is the first in-depth study of the privacy norm entrepreneurship of state attorneys general. Because so little has been written about this phenomenon, I engaged with primary sources — first interviewing state attorneys general and current and former career staff, and then examining documentary evidence received through FOIA requests submitted to AG offices around the country.

Much as Justice Louis Brandeis imagined states as laboratories of the law, offices …

Social Interaction In Mixed-Income Developments: Relational Expectations And Emerging Reality, Mark L. Joseph

Faculty Scholarship

In many cities, public housing has come to exemplify concentrated urban poverty and the social problems associated with it. One major policy response to addressing these problems is the demolition and redevelopment of public housing complexes as mixed-income communities. Several theoretical propositions that lie behind this policy are based on assumptions about the ways in which living among higher-income residents can lead to relationships and interactions that may benefit poor people. Based on in-depth qualitative research in two mixed-income developments in Chicago, this paper explores the dynamics of social interaction in an effort to better understand the processes and factors …

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …

Sroi In The Pay For Success Context: Are They At Odds?, Robert L. Fischer, Francisca García Cobián Richter

Faculty Scholarship

The Pay For Success (PFS) and Social Impact Bond (SIB) movements to date have focused heavily on shorter-term outcomes that can be monetized and show clear savings to government entities. In part, this focus derives from the need to specify contract payments based on a narrow set of well measured outcomes (e.g., avoided days in jail and foster care, decreased use of behavioral health services). Meanwhile efforts to measure the social return on investment (SROI) of interventions have sought to expand the view of relevant outcomes to include domains that lend themselves less clearly to monetization. This paper explores the …

Prevalence And Incidence Of Neurological Disorders Among Adult Ugandans In Rural And Urban Mukono District; A Cross-Sectional Study, Michael Devereaux, Anthony Furlan, Martha Sajatovic

Faculty Scholarship

Background: The burden of neurological diseases is increasing in developing countries. However, there is a prominent scarcity of literature on the incidence of neurological diseases in sub-Saharan Africa. This study was therefore undertaken to determine the prevalence and incidence of neurological diseases in this setting to serve as a baseline for planning and care for neurological disorders in Uganda. Methods: The study was conducted within rural and urban Mukono district, east of Kampala city of Uganda, central region. Over a period of six months, a cross sectional survey was conducted and screening was performed using a standardized questionnaire. All subjects …

Mond Prediction For The Velocity Dispersion Of The "Feeble Giant" Crater Ii, Stacy S. Mcgaugh

Faculty Scholarship

Crater II is an unusual object among the dwarf satellite galaxies of the Local Group in that it has a very large size for its small luminosity. This provides a strong test of MOND, as Crater II should be in the deep MOND regime (g in ≈ 34 km2 s-2 kpc-1 ≪ a 0 = 3700 km2 s-2 kpc-1). Despite its great distance (≈120 kpc) from the Milky Way, the external field of the host (g ex ≈ 282 km2 s-2 kpc-1) comfortably exceeds the internal field. Consequently, Crater II should be subject to the external field effect, a feature …

Sparc: Mass Models For 175 Disk Galaxies With Spitzer Photometry And Accurate Rotation Curves, Federico Lelli, Stacy S. Mcgaugh

Faculty Scholarship

We introduce SPARC (Spitzer Photometry and Accurate Rotation Curves): a sample of 175 nearby galaxies with new surface photometry at 3.6 μm and high-quality rotation curves from previous H I/Hα studies. SPARC spans a broad range of morphologies (S0 to Irr), luminosities (∼5 dex), and surface brightnesses (∼4 dex). We derive [3.6] surface photometry and study structural relations of stellar and gas disks. We find that both the stellar mass-H I mass relation and the stellar radius-H i radius relation have significant intrinsic scatter, while the H I mass-radius relation is extremely tight. We build detailed mass models and quantify …