Digital Commons Network^™

The Ppaca In Wonderland, Gary S. Lawson, David B. Kopel

Faculty Scholarship

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …

The Private And Social Costs Of Patent Trolls, James Bessen, Jennifer Ford, Michael J. Meurer

Faculty Scholarship

The emergence of nonpracticing entities (NPEs) — firms that purchase and hold patent rights but neither innovate themselves nor use the patents in the production of goods — is supposed to incentivize innovation by providing a ready market for innovators. We test this idea empirically and find that NPEs produce little returns for innovators or for their own shareholders, but they place significant costs on productive firms that violate patents inadvertently. Indeed, it appears that NPEs — often disparagingly called “patent trolls” — discourage productive firms from innovating for fear that they will then be subject to a patent troll …

Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff

Faculty Scholarship

The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to …

The Politics Of Class Action Arbitration: Jurisdictional Legitimacy And Vindication Of Contract Rights, William W. Park

Faculty Scholarship

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States.

The 'Justice Deficit' Debate In Eu Private Law: New Directions, Daniela Caruso

Faculty Scholarship

This essay outlines the ongoing debate on the justice deficit of EU private law – the ‘social justice’ debate – and then points at an underexplored avenue of inquiry that is essential for this debate to stay meaningful and constructive. Future research should aim to calibrate EU private law to the socio-economic asymmetries of the EU market, and to counterbalance the uneven weight of uniform rules, where they appear desirable, with proper compensatory mechanisms.

Is Strict Criminal Liability In The Grading Of Offenses Consistent With Retributive Desert?, Kenneth Simons

Faculty Scholarship

Notwithstanding the demands of retributive desert, strict criminal liability is sometimes defensible when the strict liability pertains, not to whether conduct is to be criminalized at all, but to the seriousness of the actor’s crime. Suppose an actor commits an intentional assault or rape, and accidentally brings about a death. Punishing the actor more seriously because the death resulted is sometimes justifiable, even absent proof of his independent culpability as to the death. But what punishment is proportionate for such an actor? Should he be punished as harshly as an intentional or knowing killer?

Statistical Knowledge Deconstructed, Kenneth Simons

Faculty Scholarship

The law frequently distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., driving through an intersection while aware that one’s automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., proceeding with a large construction project that one confidently predicts will result in worker injuries). Under tort and criminal law doctrine, acting with individualized knowledge is ordinarily much more difficult to justify, and, if unjustified, much more culpable, than acting with statistical knowledge. Yet the …

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Articles

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary Scholars have thus overlooked the important and surprising role that the executive branch has played in these jurisdictional struggles I seek to fill that void Drawing on two strands of social science research I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdictionstripping measures Notably this structural argument has considerable historical support The executive branch has repeatedly opposed jurisdictionstripping proposals in Congress That has been true even when the …

The Fractal Geometry Of Invention, Alan L. Durham

Articles

Fractals are geometric objects of inexhaustible detail. Fractal structures have been found in the contours of mountain ranges, the patterns of veins on a leaf, and the fluctuations of the Dow Jones Industrial Average. The endeavor of inventing new technologies, consisting of a hierarchical network of practical inquiries, exhibits fractal properties as well. Among these are multiplicity, latency, and self-similarity. Multiplicity means that a single inventive idea may lead to an immense and diverse array of technological artifacts. Latency means that the potential of an inventive idea to yield practical embodiments only reveals itself in time, and may never be …

What Is Christian Legal Thought, William S. Brewbaker Iii

Articles

No abstract provided.

Anomalous Centrality Evolution Of Two-Particle Angular Correlations From Au-Au Collisions At √ˢᴺᴺ = 62 And 200 Gev, G. Agakishiev, M. M. Aggarwal, S. Bueltmann, I. Koralt, D. Plyku, Star Collaboration

Physics Faculty Publications

We present two-dimensional (2D) two-particle angular correlations measured with the STAR detector on relative pseudorapidity η and ϕ for charged particles from Au-Au collisions at √ˢᴺᴺ = 62 and 200 GeV with transverse momentum p_t ≥ 0.15 GeV/c, │η│ ≤ 1, and 2 π in azimuth. Observed correlations include a same-side (relative azimuth <π/2) 2D peak, a closely related away-side azimuth dipole, and an azimuth quadrupole conventionally associated with elliptic flow. The same-side 2D peak and away-side dipole are explained by semihard parton scattering and fragmentation (minijets) in proton-proton and peripheral nucleus-nucleus collisions. Those structures follow N-N binary-collision scaling in Au-Au collisions until midcentrality, where a transition to a qualitatively different centrality trend occurs within one 10% centrality bin. Above the transition point the number of same-side and away-side correlated pairs increases rapidly relative to binary-collision scaling, the η width of the same-side 2D peak also increases rapidly (η elongation), and the ϕ width actually decreases significantly. Those centrality trends are in marked contrast with conventional expectations for jet quenching in a dense medium. The observed centrality trends are compared to perturbative QCD predictions computed in HIJING, which serve as a theoretical baseline, and to the expected trends for semihard parton scattering and fragmentation in a thermalized opaque medium predicted by theoretical calculations and phenomenological models. We are unable to reconcile a semihard parton scattering and fragmentation origin for the observed correlation structure and centrality trends with heavy-ion collision scenarios that invoke rapid parton thermalization. If the collision system turns out to be effectively opaque to few-GeV partons the present observations would be inconsistent with the minijet picture discussed here.

Inclusive Charged Hadron Elliptic Flow In Au + Au Collisions At √ˢᴺᴺ = 7.7-39 Gev, L. Adamczyk, G. Agakishiev, S. Bültmann, I Koralt, D. Plyku, Star Collaboration

Physics Faculty Publications

A systematic study is presented for centrality, transverse momentum p_T, and pseudorapidity (η) dependence of the inclusive charged hadron elliptic flow v₂ at midrapidity (|η| < 1.0) in Au + Au collisions at √ˢᴺᴺ = 7.7, 11.5, 19.6, 27, and 39 GeV. The results obtained with different methods, including correlations with the event plane reconstructed in a region separated by a large pseudorapidity gap and four-particle cumulants (v₂{4}), are presented to investigate nonflow correlations and v₂ fluctuations. We observe that the difference between v₂{2} and v₂{4} is smaller at the lower collision energies. Values of v₂, scaled by the initial coordinate space eccentricity, v₂/ϵ, as a function of p_T are larger in more central collisions, suggesting stronger collective flow develops in more central collisions, similar to the results …

Delineating Sexual Dangerousness, Fredrick E. Vars

Articles

Only “dangerous” individuals may be indefinitely detained. Is a one percent chance of a future crime clear and convincing evidence of dangerousness? For sex offenders, fear and uncertainty in case law leave open this passage to limbo. This Article closes it. The due process balancing test used to evaluate standards of proof provides the framework. This Article explains the relationship between the standard of proof and the definition of “dangerous” and argues that only an approach combining the two is consistent with the Constitution. Applying decision theory with assumptions favoring the government, this Article calculates a minimum likelihood of recidivism …

Correspondents' Reports, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2012.

The Conscience And Culture Of Prosecution: An Introduction, Anna Offit

Faculty Journal Articles and Book Chapters

No abstract provided.

Confrontation Control, Pamela R. Metzger

Faculty Journal Articles and Book Chapters

After Crawford v. Washington, 541 U.S. 36, 42 (2004), face-to-face confrontation between accused and accuser is the constitutionally normative mode of presentation for testimonial evidence. Yet, eight years into the Crawford revolution, courts routinely hold that counsel can waive a defendant's confrontation rights without even discussing the matter with the defendant. Why? Because counsel, not client, has the authority to decide whether to confront and cross-examine government witnesses.

This Essay, written as part of the Texas Tech Sixth Amendment Symposium, explores this peculiar and perplexing rule. If confrontation is essential to a constitutionally valid criminal trial, how can defense …

Cell Cycle Arrest Associated With Anoxia-Induced Quiescence, Anoxic Preconditioning, And Embryonic Diapause In Embryos Of The Annual Killifish Austrofundulus Limnaeus, Camie Lynn Meller, Robert Meller, Roger P. Simon, Kristin M. Culpepper, Jason E. Podrabsky

Biology Faculty Publications and Presentations

Embryos of the annual killifish Austrofundulus limnaeus can enter into dormancy associated with diapause and anoxia-induced quiescence. Dormant embryos are composed primarily of cells arrested in the G1/G0 phase of the cell cycle based on flow cytometry analysis of DNA content. In fact, most cells in developing embryos contain only a diploid complement of DNA, with very few cells found in the S, G2, or M phases of the cell cycle. Diapause II embryos appear to be in a G0-like state with low levels of cyclin D1 and p53. However, the active form of pAKT is high during diapause II. …

Introduction: The Politics Of Hate, Robert L. Tsai

Faculty Scholarship

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …

Uvrd Participation In Nucleotide Excision Repair Is Required For The Recovery Of Dna Synthesis Following Uv-Induced Damage In Escherichia Coli, Kelley Nicole Newton, Charmain T. Courcelle, Justin Courcelle

Biology Faculty Publications and Presentations

UvrD is a DNA helicase that participates in nucleotide excision repair and several replication-associated processes, including methyl-directed mismatch repair and recombination. UvrD is capable of displacing oligonucleotides from synthetic forked DNA structures in vitro and is essential for viability in the absence of Rep, a helicase associated with processing replication forks. These observations have led others to propose that UvrD may promote fork regression and facilitate resetting of the replication fork following arrest. However, the molecular activity of UvrD at replication forks in vivo has not been directly examined. In this study, we characterized the role UvrD has in processing …

Introduction: The Politics Of Hate, Robert L. Tsai

Journal of Hate Studies

The interdisciplinary study of hatred, as a distinctive social phenomenon, is relatively new to the academy. In the past, one could expect the political ramifications of hate to be subsumed, and often dissipated, within the separate disciplinary machinery exerted upon the subjects of study. This special volume brings politics front and center. It does so by collecting essays that assess the psychology, motivations, organization, tactics, and ends of hate. The weight of the essays suggests that hatred possesses a deeply instrumental genesis, structure, and operation. Collectively, the articles insist that, whatever its origins or precise psychological mechanism, hate is driven …

Blood On The Tongue: Reading Abjection In Nationalist Blood Libels From Nazi Germany To Hamas And The British National Party, Damon T. Berry

Journal of Hate Studies

The blood libel is usually known as the Medieval European legend about Jews killing Christians to consume their blood or otherwise use it in rituals. However, in this paper I explore more recent instances of the blood libel that have emerged in nationalist contexts. What I call the nationalist blood libel is more overtly politicized than its predecessors, as there is a relationship between the accusatory portrayals of groups signified as alien and what Arjun Appadurai in Fear of Small Numbers (2006) called an “anxiety of incompletion” inherent in the modern nation-state as a result of the political discourses of …

Who Bears The Cost Of Excessive Executive Compensation (And Other Corporate Agency Costs)?, David I. Walker

Faculty Scholarship

Managerial agency costs are ubiquitous in the modern public corporation. Agency costs arise from the separation of ownership and control and reflect the divergence between share-value-maximizing actions of managers and managers’ actual actions, plus the monitoring and bonding expenditures (including contracting costs) undertaken to reduce that divergence. Agency costs vary firm by firm, but regulatory actions and even business practices can have a systematic impact on agency costs. For example, increased or decreased enforcement of insider trading rules can affect agency costs across a wide spectrum of companies. Who bears the burden of corporate agency costs? Who gains or suffers …

Agents Without Principals: Regulating The Duty Of Loyalty For Non Profit Corporations Through The Intermediate Sanctions Tax Regulations, Carly B. Eisenberg, Kevin Outterson

Faculty Scholarship

Delaware corporate law imposes a duty of loyalty on officers and directors as a mechanism to regulate and deter self-dealing transactions. In nonprofit corporations, however, there are generally no shareholders with direct financial incentives to monitor against self-dealing. In the absence of shareholders and other principals, Congress and the IRS have articulated duty of loyalty rules for nonprofits that reach far beyond those applied to the for-profit world--most prominently the § 4958 intermediate sanctions. This article identifies the persons who owe a duty of loyalty to a nonprofit corporation, the applicable fiduciary standards for violating the duty of loyalty, and …

Regulating Compounding Pharmacies After Necc, Kevin Outterson

Faculty Scholarship

Food and Drug Administration (FDA) rules are often forged in crisis. After the 1937 sulfanilamide disaster that killed more than 100 people, Congress passed the Food, Drug, and Cosmetic Act (FDCA),requiring drugs to be safe and properly labeled. In 1962, a requirement was introduced for proof of drug efficacy through “adequate and well-controlled investigations,” partly in response to the thalidomide tragedy. Rules protecting human-research subjects owe a debt to Tuskegee and Nuremberg.

Prosecutors And Bargaining In Weak Cases: A Comparative View, Jenia I. Turner

Faculty Journal Articles and Book Chapters

One of the most controversial uses of prosecutorial discretion in plea bargaining concerns cases involving weak evidence of guilt. When a prosecutor bargains about the charges or even the facts in a case with weak evidence, at least three problems may arise. First, if the charge bargain is generous, it may coerce an innocent defendant to plead guilty. Second, such a bargain may let a guilty defendant off too easily, thus disserving the public and victim’s interests. Third, if the parties bargain about the facts, the result may distort the truth of the case.

In this book chapter, I examine …

Misbehavior And Mistake In Bankruptcy Mortgage Claims: Some Caveats Regarding The Porter Study, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

This Article reviews the comprehensive empirical study of the bankruptcy mortgage foreclosure process conducted by Professor Katherine Porter and subsequently published in 2008 in the Texas Law Review. The results of her study, which analyzed 1,768 proof of claim submissions filed in a sample of 1,733 Chapter 7 bankruptcy proceedings, strongly suggest that there is a pervasive failure on the part of mortgage creditors to meet all of the formal documentation requirements for filing such bankruptcy claims. This documentation failure arguably impedes many mortgage debtors or bankruptcy trustees from reviewing these claims for their accuracy.

Porter's conclusion that the itemization …

'Other Spaces' In Legal Pedagogy, Lolita Buckner Inniss

Faculty Journal Articles and Book Chapters

There is an increasing focus upon the material and metaphoric spatial dimensions of various academic disciplines, including law. This essay considers the spatial dimensions of legal pedagogy, focusing on Critical Race Theory (CRT). The essay first explains the “critical program” in law and how CRT grows out of it. The essay then suggests that the critical program, and especially CRT, is as much a human geographic or spatial construct as it is a social, political or historic one, and briefly describes the nature of human geography and legal geography. It next considers how metaphors for understanding CRT’s position in legal …

Proximate Retribution, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

An essential element of the theory of retribution has been missing from courts’ and legal scholars’ analyses. While they have outlined a number of varieties of the theory and fleshed out their nuances, courts and scholars have largely neglected to examine which harms flowing from a criminal offender's conduct should be considered in determining that offender’s desert. The more remote harms caused by an offender’s conduct, such as the effects of his offenses on the families and friends of his victims or the effects of criminal conduct on society in general, are pervasive in communities across the nation. This Article …

Good News In A Bad Economy: Service Acquiesces On Pro-Taxpayer Application Of Passive Activity Loss Rules To Limited Liability Companies, Orly Mazur

Faculty Journal Articles and Book Chapters

After nearly two decades with no guidance addressing the correct characterization of a limited liability company’s activities under the passive activity loss rules, investors are finally receiving the answer they have patiently sought. Several courts, the Service’s acquiescence and newly issued proposed regulations have recently clarified that ownership interests in limited liability companies are not all treated as presumptively passive limited partnership interests. Instead, the more lenient general passive activity loss rules set forth in the temporary regulations are used to determine the active or passive nature of many activities. These decisions have been accurately hailed as a significant taxpayer …

The Bizarre Law & Economics Of 'Business Roundtable V. Sec', Grant M. Hayden, Matthew T. Bodie

Faculty Journal Articles and Book Chapters

Corporations are legal entities designed to foster certain kinds of collective economic activity. The decisionmaking power within a corporation ultimately rests with a board of directors elected by shareholders. Shareholders, however, do not use anything like a conventional ballot in these elections; instead, they fill out a “proxy ballot,” delivered to them by the incumbent board. This proxy ballot lists only the incumbent board’s chosen nominees, very often the board members themselves. If a shareholder wants to run for director or propose another nominee for the board, she needs to provide all other shareholders with a separate proxy ballot — …