Digital Commons Network^™

Resolving The Public Pension "Crisis", Jack M. Beermann

Faculty Scholarship

The high profile bankruptcy filing by the City of Detroit, Michigan, has brought to the fore the relationship between pension underfunding and the financial difficulties faced by an increasing number of municipalities and states in the United States. The problem is likely to continue to grow with more municipalities finding it necessary to explore the bankruptcy option or otherwise attempt to reduce pension and other obligations to employees and retirees. This essay is an effort to provoke discussion of the normative issues surrounding pension reform, mainly concerning how public employees and retirees should be treated in municipal bankruptcy. Should pension …

The Scored Society: Due Process For Automated Predictions, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers — or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail — credit — the law focuses on credit history, not the derivation of scores from data.

Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The …

Innovation And Optimal Punishment, With Antitrust Applications, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

This article modifies the optimal punishment analysis by incorporating investment incentives with external benefits. In the models examined, the recommendation that the optimal penalty should internalize the marginal social harm is no longer valid. We focus on antitrust applications. In light of the benefits from innovation, the optimal policy will punish monopolizing firms more leniently than suggested in the standard static model. It may be optimal not to punish the monopolizing firm at all, or to reward the firm rather than punish it. We examine the precise balance between penalty and reward in the optimal punishment scheme.

Still Hazy After All These Years: The Lack Of Empirical Evidence And Logic Supporting Mismatch, William C. Kidder, Angela Onwuachi-Willig

Faculty Scholarship

In the context of reviewing the book "Mismatch" by Sander and Taylor, the authors provide a comprehensive review and synthesis of dozens of social science research studies regarding affirmative action, mismatch, graduation rates and labor market earnings. In addition, the authors look at the recent graduation rates of nearly two hundred thousand black and Latino students at one hundred U.S. research intensive universities (Table 1). The authors conclude that the social science research overall, and particularly the best peer-reviewed studies, do not support the mismatch hypothesis with respect to affirmative action and African American and Latino college graduation rates and …

The Scored Society: Due Process For Automated Predictions, Frank Pasquale, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Faculty Scholarship

No abstract provided.

How Law Schools Are Responding To Decreasing Applications And Job Prospects In The United States, Carol M. Suzuki

Faculty Scholarship

No abstract provided.

Nullification As Law, Jenny E. Carroll

Faculty Scholarship

The rule of law is central to our notion of governance and our legal system. The ideal of a knowable, regular, public law shimmers in the discourse of our democracy. It stands in sharp contrast to the arbitrary and often anarchic law of men, in which those with absolute power rule absolutely. But the devil is always in the details. To move past the idealism is to enter a contested realm where competing theories seek to claim the mantle of the rule of law. While this article cannot claim to resolve the dispute over the precise meaning or construct of …

What The Supreme Court Thinks Of The Press And Why It Matters, Ronnell Andersen Jones

Faculty Scholarship

Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging.

This Essay explores this trend, setting forth evidence of the Court’s changing view of the media—from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the …

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Jason Schultz, Brian Love, James Bessen, Michael J. Meurer

Faculty Scholarship

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

In Territorio Veritas? Bringing Geographical Coherence Into The Ambiguous Definition Of Geographical Indications Of Origin, Irene Calboli

Faculty Scholarship

In this article, I touch upon a topic that remains highly controversial in international intellectual property law—the legal protection of geographical indications of origin (GIs): Chianti wine, Champagne sparkling wine, Gorgonzola cheese, Parma ham, Darjeeling tea, Colombian coffee, and other terms that indicate (or are supposed to indicate, as I will develop in this article) the geographical origin of the products they identify. In line with the theme of this special issue of the WIPO Journal, I focus on the requirement of “geographical origin” upon which the protection of GIs has been historically built and is generally justified. In particular, …

Law And Order Commission Report: “A Roadmap For Making Native America Safer.”, Kevin Washburn

Faculty Scholarship

Testimony of Kevin K. Washburn Assistant Secretary Indian Affairs United States Department of the Interior Before The Senate Committee on Indian Affairs On The Law and Order Commission Report: “A Roadmap for Making Native America Safer.”

The Affordable Care Act, Remedy, And Litigation Reform, Brendan S. Maher

Faculty Scholarship

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue.

This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Contempt, Status And The Criminalization Of Non-Conforming Girls, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

The Seven Deadly Virtues Of Lobbying, Nick Allard

Faculty Scholarship

No abstract provided.

Public Opinion And The Limits Of State Law: The Case For Federal Usury Caps, Nathalie Martin

Faculty Scholarship

Each year, states pour millions and millions of dollars of taxpayer money into regulating high-cost credit products like payday, title, and installment loans. These loans typically carry interest rates of 400-1,000% per annum. Most Americans are unaware that it is legal to charge these rates in some states. Moreover, most Americans, regardless of political affiliation, favor capping interest on consumer loans at 36% or less. While a number of states do cap interest on all consumer loans at 36% or less, the majority does not; the majority chooses instead to leave these loans unregulated or to use another regulatory approach. …

Metadata: Piecing Together A Privacy Solution, Chris Conley

Faculty Scholarship

Imagine the government is constantly monitoring you — keeping track of every person you call or email, every place you go, everything you buy, and more — all without getting a warrant. And when you challenge them, they claim you have no right to expect this kind of information to be private. Besides, they’re not actually listening to what you say or reading what you write, so what’s the big deal anyhow?

Unfortunately, this scenario is more real than imaginary. Government agencies ranging from the NSA to local police departments have taken advantage of weak or uncertain legal protections for …

Common And Uncommon Families In The American Constitutional Order, Linda C. Mcclain

Faculty Scholarship

This essay reviews Professor Mark E. Brandon’s aptly named book, States of Union: Family and Change in the American Constitutional Order, which challenges the familiar story that the U.S. constitutional and political order have rested upon a particular, unchanging form of family – monogamous, heterosexual, permanent, and reproductive – and on the family values generated by that family form. That story also maintains that such family form and the legal norms that sustained it remained relatively undisturbed for centuries until the dramatic transformation spurred in part, beginning the 1960s, by the U.S. Supreme Court’s constitutionalizing of family and marriage through, …

Habermas's Sociological And Normative Theory Of Law And Democracy: A Reply To Wirts, Flynn, And Zurn, Hugh Baxter

Faculty Scholarship

In "Between Facts and Norms" (1996) Habermas presents the more straightforward normative discourse theory of law and democracy, in terms of contemporary legal orders, and then examines, in terms of social theory, whether the theory is plausible, given the complex nature of today’s conditions. The following article focuses in particular on Habermas’ social theory. It is critical of Habermas’ idea of ‘the lifeworld’ and discusses whether the circulation-of-power model might be mapped onto the system – lifeworld model.

The Inner Dynamical Mass Across Galaxy Morphology: A Weak Scaling With Total Stellar Mass, Stacy S. Mcgaugh

Faculty Scholarship

We compile a sample of dispersion-supported and rotation-supported galaxies for which the dynamical mass enclosed at 500 pc can be measured. We find that this dynamical quantity increases only slowly with stellar mass (Mtotal(500 pc) ? M0.16 stars ) over ?9 decades in baryonic mass and ?3 in length scale, with a sudden upturn at the highest masses (Mstars - 1010 M-). This upturn occurs for the earliest types (S0 and Sa) of disk galaxies, and is consistent with the extra mass within 500 pc being predominantly stellar. This sudden change may be indicative of different bulge formation mechanisms between …

Micro-A-Fluidics Elisa For Rapid Cd4 Cell Count At The Point-Of-Care, Umut A. Gurkan

Faculty Scholarship

HIV has become one of the most devastating pathogens in human history. Despite fast progress in HIV-related basic research, antiretroviral therapy (ART) remains the most effective method to save AIDS patients' lives. Unfortunately, ART cannot be universally accessed, especially in developing countries, due to the lack of effective treatment monitoring diagnostics. Here, we present an inexpensive, rapid and portable micro-a-fluidic platform, which can streamline the process of an enzyme-linked immunosorbent assay (ELISA) in a fully automated manner for CD4 cell count. The micro-a-fluidic CD4 cell count is achieved by eliminating operational fluid flow via “moving the substrate”, as opposed to …

Betty Boop And The Return Of Aesthetic Functionality: A Bitter Medicine Against "Mutant Copyrights"?, Irene Calboli

Faculty Scholarship

This article offers a brief overview of the history and developments of the doctrine of aesthetic functionality in the United States and examines the recent decisions in Fleischer Studios, Inc v AVELA, Inc . In particular, the article argues that the courts in Fleischer added an important element to the interpretation of the doctrine, namely the fact that the courts seemed willing to resort to aesthetic functionality to counter the consequences resulting from the practice of using trade mark law as an additional form of protection for copyrighted, or once copyrighted, creative works.

The Means Principle, Larry Alexander

Faculty Scholarship

Michael Moore believes there are deontological constraints on actors’ pursuit of good consequences. He believes these constraints are best conceived of as agent-relative prohibitions such as “you must not intentionally kill, batter, rape, steal, etc.” I, joined in recent years by Kimberly Ferzan, believe that the best interpretation of deontological constraints — the interpretation that best accounts for our intuitions about certain stock cases — is that they are constraints on the causal means by which good consequences may be achieved. We believe those constraints can be unified under a single deontological principle, what we call the “means principle.” It …

The Drug Quality And Security Act - Mind The Gaps, Kevin Outterson

Faculty Scholarship

After the compounding pharmacy disaster at New England Compounding Center, Congress had an opportunity to assure that all compounded medicines were safe and effective. The Drug Quality and Safety Act, despite its name, fell short of that mark.

Steady Increment Of Immature Platelet Fraction Is Suppressed By Irradiation In Single-Donor Platelet Components During Storage, Hong Hong, Wenbin Xiao, Robert W. Maitta

Faculty Scholarship

Circulating immature platelet fraction (IPF) reflects real-time thrombopoiesis and correlates with platelet recovery from thrombocytopenic presentations. To understand the dynamics of IPF in platelet transfusions, we quantified the %-IPF in single-donor platelet components (SDP) during prolonged storage. %-IPF significantly increased from baseline by day 5 post-donation. Absolute IPF counts (A-IPC) had similar significant increments. However, gamma-irradiation suppressed the increments of %-IPF and A-IPC by >50%. Ultrastructural analysis of SDP units at day 10 showed well preserved morphology of immature platelets. Our findings suggest that IPF might actively expand ex-vivo and may have a longer shelf life than their mature counterparts. …

Forrest Gerard’S Legacy Is Self-Determination For Tribes, Kevin Washburn

Faculty Scholarship

The passing of Albuquerque resident and former Assistant Secretary of Indian Affairs, Forrest J. Gerard, on Dec. 28 provides an opportunity to take stock of the important federal Indian policies he championed and his contributions to Native Americans across the country deserve to be celebrated.

Transfer Pricing: Un Practical Manual – China, Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

Any contemporary Chinese transfer pricing assessment needs to consider the United Nation (UN) Practical Manual on Transfer Pricing for Developing Countries released in May 2013. In particular, Chapter 10 discusses Country Practices and presents China’s most up to date transfer pricing policy statement.

China is not an Organization for Economic Cooperation and Development (OECD) member nor has it formally adopted the OECD’s Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations. Chapter 10 makes it very clear that China is charting a different transfer pricing course in at least nine important areas. China believes that: 1. significant comparability adjustments are …

Judicial Modesty In The Wartime Context, Dawinder S. Sidhu

Faculty Scholarship

“The most important thing we do is not doing,” Justice Louis D. Brandeis noted of the Supreme Court. At the height of the Civil War, the Supreme Court in Roosevelt v. Meyer claimed that it could not review, and therefore let stand, a state court decision upholding the Legal Tender Act (“Act”), a critical wartime measure designed to stabilize the Union economy and fund the Union’s war efforts. In this essay, I suggest that this oft-overlooked case warrants the legal community’s consideration because it implicates a question fundamental to our constitutional system: should the courts decline judicial review—or, “not do”—in …

A Primer On The Use Of Dangerous Trial Exhibits, Robert M. Jarvis

Faculty Scholarship

It sometimes is necessary at trial to introduce a dangerous exhibit-such as a bomb, gun, or knife-to bolster a client's story, discredit an opposing witness, or give the jury a clearer picture of the underlying events. Doing so, however, requires care and planning. Not only do many courts have specific rules regarding how such exhibits are to be noticed, handled, and displayed, but there are also numerous practical and tactical considerations that must be weighed. In this Article, the author presents the first comprehensive discussion regarding dangerous trial exhibits and offers suggestions for their successful use.

The Law School Admiralty Exam, Robert M. Jarvis

Faculty Scholarship

No abstract provided.