Digital Commons Network^™

Foreword: Introduction To Decentralization And Development, Shitong Qiao, Richard A. Epstein

Faculty Scholarship

On March 14–15, 2017, a group of Asian and American scholars working in the areas of law, economics, and political science gathered at the University of Hong Kong Faculty of Law. There they debated and discussed decentralization and development at a conference co-sponsored by New York University’s Classical Liberal Institute and the University of Hong Kong Faculty of Law’s Centre for Chinese Law. What does decentralization mean? How do we best measure decentralization? Is interjurisdictional competition a race to the bottom or a race to the top? Is decentralization desirable in the context of China and other jurisdictions? This symposium …

Safe Harbors: The Many Benefits Of Marine Monuments And Sanctuaries, John F. Bruno, Whitley Saumweber, Larry B. Crowder, Linwood Pendleton, Stephen E. Roady, Tracy Rouleau, Miyoko Sakashita

Faculty Scholarship

The United States has been at the forefront of marine resource stewardship since the 1970s when Federal officials began to implement a series of national policies aimed at the conservation and management of public trust resources in the ocean. Beginning with the establishment of the National Oceanic and Atmospheric Administration in 1970, soon followed by several pieces of landmark legislation, this era marked the start of a continuing effort to integrate ecosystem science with marine resource management. Among the most important bipartisan legacies of this effort has been the steady expansion of marine managed areas in U.S. coastal and ocean …

Federalism As A Check On Executive Authority: State Public Litigation, Executive Authority, And Political Polarization, Ernest A. Young

Faculty Scholarship

No abstract provided.

An Exempt Status Sorting Hat, Richard Schmalbeck

Faculty Scholarship

No abstract provided.

Reframing Intellectual Property Rights With Fewer Distortions Of The Trade Paradigm, Jerome H. Reichman

Faculty Scholarship

No abstract provided.

Tax Issues In The Sharing Economy: Implications For Workers, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

No abstract provided.

A National Study Of Immigration Detention In The United States, Emily Ryo, Ian Peacock

Faculty Scholarship

Amidst growing reports of abuses and rights violations in immigration detention, the Trump administration has sought to expand the use of immigration detention to facilitate its deportation policy. This study offers the first comprehensive empirical analysis of U.S. immigration detention at the national level. Drawing on administrative records and geocoded data pertaining to all noncitizens who were detained by U.S. Immigration and Customs Enforcement in fiscal year 2015, we examine who the detainees are, where they were held, and what happened to them.

The bulk of the detained population consisted of men (79%) and individuals from Mexico, El Salvador, Guatemala, …

Changing The First Lady's Mystique: Defining The First Lady's Legal Role And Upending Gender Norms, Ashlee A. Paxton-Turner

Faculty Scholarship

This Article explores the lack of formal guidelines governing the First Lady by first considering the history of the role and how the three branches of government have typically dealt with the role. Attention is also given to the possible intersection with the anti-nepotism statute when and if the First Lady acts as an advisor to the President. This Article then goes on to suggest that this lack of formality has allowed gender norms to govern the role. In an era where women’s rights have resurfaced as a central theme in political discourse, this Article concludes by suggesting some possible …

Development Of A Genotype-By-Sequencing Immunogenetic Assay As Exemplified By Screening For Variation In Red Fox With And Without Endemic Rabies Exposure, Michael E. Donaldson, Yessica Rico, Karsten Hueffer, Halie M. Rando, Anna V. Kukekova, Christopher J. Kyle

Computer Science: Faculty Publications

Pathogens are recognized as major drivers of local adaptation in wildlife systems. By determining which gene variants are favored in local interactions among populations with and without disease, spatially explicit adaptive responses to pathogens can be elucidated. Much of our current understanding of host responses to disease comes from a small number of genes associated with an immune response. High-throughput sequencing (HTS) technologies, such as genotype-by-sequencing (GBS), facilitate expanded explorations of genomic variation among populations. Hybridization-based GBS techniques can be leveraged in systems not well characterized for specific variants associated with disease outcome to “capture” specific genes and regulatory regions …

Providing Access To Confidential Research Data Through Synthesis And Verification: An Application To Data On Employees Of The U.S. Federal Government, Andrés F. Barrientos, Alexander Bolton, Tom Balmat, Jerome P. Reiter, John M. De Figueiredo, Ashwin Machanavajjhala, Yan Chen, Charley Kneifel, Mark Delong

Faculty Scholarship

Data stewards seeking to provide access to large-scale social science data face a difficult challenge. They have to share data in ways that protect privacy and confidentiality, are informative for many analyses and purposes, and are relatively straightforward to use by data analysts. One approach suggested in the literature is that data stewards generate and release synthetic data, that is, data simulated from statistical models, while also providing users access to a verification server that allows them to assess the quality of inferences from the synthetic data. We present an application of the synthetic data plus verification server approach to …

The Rainy Day Earned Income Tax Credit: A Reform To Boost Financial Security By Helping Low-Wage Workers Build Emergency Savings, Sarah Halpern-Meekin, Sara Sternberg Greene, Ezra Levin, Kathryn Edin

Faculty Scholarship

Financial stability depends on emergency savings. Low-wage workers regularly experience drops in income and unexpected expenses. Households with savings absorb these financial shocks but most low-income Americans lack rainy day savings. Therefore, even a small shock, like car repairs, can result in a cascade of events that throws a low-income family into poverty. Nonetheless, existing policies address emergency savings only indirectly. However, the Earned Income Tax Credit (EITC) already functions as an imperfect, makeshift savings tool. This lump sum refund at tax time gives workers a moment of financial slack, but many EITC recipients lack emergency reserves later in the …

Introduction: Reflections On The Future Of Discovery In Civil Cases, Paul W. Grimm

Faculty Scholarship

No abstract provided.

The Intensification Of The Water Footprint Of Hydraulic Fracturing, Andrew J. Kondash, Nancy Lauer, Avner Vengosh

Faculty Scholarship

Unconventional oil and gas exploration in the United States has experienced a period of rapid growth, followed by several years of limited production due to falling and low natural gas and oil prices. Throughout this transition, the water use for hydraulic fracturing and wastewater production in major shale gas and oil production regions has increased; from 2011 to 2016, the water use per well increased up to 770%, while flowback and produced water volumes generated within the first year of production increased up to 550%. The water-use intensity (that is, normalized to the energy production) increased in all U.S. shale …

Leak-Driven Law, Shu-Yi Oei, Diane Ring

Faculty Scholarship

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom …

Binding Leviathan: Credible Commitment In An Authoritarian Regime, Roderick M. Hills Jr., Shitong Qiao

Faculty Scholarship

The problem of credible commitment dogs every government, whether democratic or authoritarian. Authoritarian bureaucracies face special credible commitment problems. Fear that local officials will build up a local power base has historically induced the leadership of China, Imperial and Communist alike, to frequently transfer local officials among subnational jurisdictions. Such frequent transfers undermine those officials’ capacity to make the credible commitments that officials with more stable tenure can make with ease. Moreover, authoritarian regimes discourage the development of independent institutions—like investor-owned banks or locally elected legislatures—that are independent from local executive officials and that might otherwise act as monitors and …

Rethinking Behavior - Winter 2018, Midwest Symposium For Leadership In Behavior Disorders

ReThinking Behavior Magazine

A magazine for professionals serving children and youth with behavioral needs.

Winter 2018, Volume 1, Issue 2

International Corporate Prosecutions, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

The Reliable Application Of Fingerprint Evidence, Brandon L. Garrett

Faculty Scholarship

In November 2017, a state appellate court did something almost unprecedented: It held that a trial judge made an error by admitting testimony on latent fingerprinting. In State v. McPhaul, the North Carolina appellate panel found error in admitting expert testimony, based on the lack of evidence that the expert reliably reached conclusions about the fingerprint evidence. The panel did not reverse the defendant's conviction, however, finding the error to be harmless. The ruling has broader significance for as-applied challenges to the forensic testimony commonly used in criminal cases, in which judges have often not carefully examined reliability either for …

Introduction: Forensic Fail, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

A Pioneer In Forensic Science Reform: The Work Of Paul Giannelli, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Judicial Intervention As Judicial Restraint, Guy-Uriel Charles, Luis E. Fuentes-Rohwer

Faculty Scholarship

This paper examines the Court's decision in Gil v. Whitford. It advances two claims. First, it provides a comprehensive account of the Court's skepticism of judicial supervision of democratic politics, an account that we call the narrative of nonintervention. It situates Gill within that account and argues that the Court's reluctance to intervene is a function of the Court's institutional calculus that it ought to protect its legitimacy and institutional capital when it engages in what look like political fights. Second, the paper provides an instrumentalist account for judicial intervention. It argues that the Court should intervene to prevent partisan …

Maduro Bonds, G. Mitu Gulati, Ugo Panizza

Faculty Scholarship

No abstract provided.

Brief Of Professor Ernest A. Young As Amicus Curiae In Support Of Plaintiff Appellant Urging Reversal, Ernest A. Young

Faculty Scholarship

No abstract provided.

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 …

Individual Autonomy In Corporate Law, Elisabeth De Fontenay

Faculty Scholarship

The field of corporate law is riven with competing visions of the corporation. This Article seeks to identify points of broad agreement by negative implication. It examines two developments in corporate law that have drawn widespread criticism from corporate law scholars: the Supreme Court's recognition of corporate religious rights in Burwell v. Hobby Lobby and the Nevada legislature's decision to eliminate mandatory fiduciary duties for corporate directors and officers. Despite their fundamental differences, both resulted in expanding individual rights or autonomy within the corporation-for shareholders and managers, respectively.

The visceral critiques aimed at these two developments suggest a broadly shared …

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Faculty Scholarship

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, such as enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland v. Kraft Foods illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to empirically measure …

The Trafficking Victim Protection Act: The Best Hope For International Human Rights Litigation In The U.S. Courts?, Sara Sun Beale

Faculty Scholarship

The article focuses on uses Alien Tort Statute as a vehicle for litigating human rights abuses in both civil and criminal prosecutions in the U.S. Topics discussed include developments in International Criminal Law in addressing human rights violations; judicial attitudes that could affect the interpretation of the Trafficking Victim Protection Act; and Sosa v. Alvarez-Machain court case on the same.

Evidence-Informed Criminal Justice, Brandon L. Garrett

Faculty Scholarship

The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national research strategy, with an independent national criminal justice research institute, along …

Seeking An Objective For Regulating Insider Trading Through Texas Gulf Sulphur, James D. Cox

Faculty Scholarship

Data summarized in the opening of this article document that inside trading is a growth industry. And, as deals get ever bigger, the growth curve becomes steeper as more the data confirms intuition that the more who know about a good thing the more who will seek to harvest its benefits. Even though insider trading appears to have thrived during the fifty years after Texas Gulf Sulphur, we gather in this symposium to celebrate the decision. But why? As developed below, the Second Circuit’s landmark decision gave way to the Supreme Court’s erection of a fiduciary framework that this article …

Determining An Asset's Tax Basis In The Absence Of A Meaningful Transfer Tax Regime, Jay A. Soled, Richard L. Schmalbeck

Faculty Scholarship

Until recently, in those circumstances where there was a valuation range with respect to a particular asset, executors faced a choice: among estates subject to the estate tax, declaring a high value would increase the estate tax liability; however, due to the Internal Revenue Code's "basis equal to fair market value" rule applicable at death, declaring a low value would expose heirs to a greater capital gains tax on subsequent asset disposition. Because the estate tax rates were higher and that tax was immediate (as opposed to deferred until a later sale by the heir), executors typically minimized asset values, …