Digital Commons Network^™

Semenya And Asa V Iaaf: Affirming The Lawfulness Of A Sex-Based Eligibility Rule For The Women’S Category In Elite Sport, Doriane Lambelet Coleman

Faculty Scholarship

No abstract provided.

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 …

State Standing And Cooperative Federalism, Ernest A. Young

Faculty Scholarship

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

Brief Of Public Law Scholars As Amici Curiae In Support Of Petitioners, Chris Dove, Ernest A. Young

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Expropriation In The Name Of Rights: Transferable Development Rights (Tdrs), The Bundle Of Sticks And Chinese Politics, Shitong Qiao

Faculty Scholarship

Through an in-depth empirical investigation, this article discloses for the first time how and why land reform programs in the name of empowering and enriching farmers have been serving the purpose of Chinese local governments to compromise the rights revolution in the Chinese national expropriation regime. The concept of “transferable development rights” (TDRs) is simple: development rights from one parcel of land are lifted up and transferred to another. Upon a detailed examination of land tickets in Chongqing and Chengdu, the southwestern Chinese application of TDRs, this article reveals that local governments in both cities have created schemes of land …

The Design Patent Bar: An Occupational Licensing Failure, Christopher Buccafusco, Jeanne C. Curtis

Faculty Scholarship

Although any attorney can represent clients with complex property, tax, or administrative issues, only a certain class of attorneys can assist with obtaining and challenging patents before the United States Patent & Trademark Office (PTO). Only those who are members of the PTO 's patent bar can prosecute patents, and eligibility for the patent bar is only available to people with substantial scientific or engineering credentials. However much sense the eligibility rules make for utility patents-those based on novel scientific or technical inventions-they are completely irrational when applied to design patents-those based on ornamental or aesthetic industrial design. Nevertheless, the …

The Compliance Process, Veronica Root

Faculty Scholarship

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Combating Silence In The Profession, Veronica Root Martinez

Faculty Scholarship

Members of the legal profession have recently taken a public stance against a wave of oppressive policies and practices. From helping immigrants stranded in airports to protesting in the face of white nationalists, lawyers are advocating for equality within and throughout American society each and every day. Yet as these lawyers go out into the world on behalf of others, they do so while their very profession continues to struggle with its own discriminatory past.

For decades, the legal profession purposefully excluded women, religious minorities, and people of color from its ranks, while instilling a select group of individuals with …

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 …

Legislation And Comment: The Making Of The § 199a Regulations, Shu-Yi Oei, Leigh Osofsky

Faculty Scholarship

In 2017, Congress passed major tax legislation at warp speed. After enactment, it fell to the Treasury Department to write regulations clarifying and implementing the new law. To assure democratic legitimacy in making regulations, administrative law provides that an agency must issue a notice of proposed rulemaking, followed by an opportunity for the public to comment (so-called “notice and comment”). But, after the 2017 tax overhaul, many sophisticated actors did not wait until the issuance of a notice of proposed rulemaking to comment, instead going to the Treasury Department immediately with comments designed to influence the regulations.

In this Article, …

Constituencies And Control In Statutory Drafting: Interviews With Government Tax Counsels, Shu-Yi Oei, Leigh Z. Osofsky

Faculty Scholarship

Tax statutes have long been derided as convoluted and unreadable. But there is little existing research about drafting practices that helps us contextualize such critiques. In this Article, we conduct the first in-depth empirical examination of how tax law drafting and formulation decisions are made. We report findings from interviews with government counsels who participated in the tax legislative process over the past four decades. Our interviews revealed that tax legislation drafting decisions are both targeted to and controlled by experts. Most counsels did not consider statutory formulation or readability important, as long as substantive meaning was accurate. Many held …

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 …

Open Science Precision Medicine In Canada: Points To Consider, Palmira Granados Moreno, Sarah E. Ali-Khan, Benjamin Capps, Timothy Caulfield, Damien Chalaud, Aled Edwards, E. Richard Gold, Vasiliki Rahimzadeh, Adrian Thorogood, Daniel Auld, Gabrielle Bertier, Felix Breden, Roxanne Caron, Priscilla M.D.G. César, Robert Cook-Deegan, Megan Doerr, Ros Duncan, Amalia M. Issa, Jerome Reichman, Jacques Simard, Derek So, Sandeep Vanamala, Yann Joly

Faculty Scholarship

Open science can significantly influence the development and translational process of precision medicine in Canada. Precision medicine presents a unique opportunity to improve disease prevention and healthcare, as well as to reduce health-related expenditures. However, the development of precision medicine also brings about economic challenges, such as costly development, high failure rates, and reduced market size in comparison with the traditional blockbuster drug development model. Open science, characterized by principles of open data sharing, fast dissemination of knowledge, cumulative research, and cooperation, presents a unique opportunity to address these economic challenges while also promoting the public good.

The Centre of …

Systematic Regulation Of Systemic Risk, Steven L. Schwarcz

Faculty Scholarship

A decade after the financial crisis, regulators worry that the regulation enacted to help stabilize the financial system may be insufficient to prevent another crisis. Examining that regulation with the benefit of hindsight, this Article finds that much has been accomplished but much remains to be done. Most of the existing regulation is ad hoc, providing “tools” rather than a coherent framework. It also is unduly entity-based, largely ignoring markets and other critical elements of the financial system. Furthermore, some of that entity-based regulation is punitive and misguided, responding to the human intuition to assign blame for harm. Financial stability …

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. …

Detention As Deterrence, Emily Ryo

Faculty Scholarship

Does immigration detention deter unauthorized migration? This is a pressing question with critical policy implications given that the U.S. government has detained tens of thousands of migrants in reliance on this deterrence rationale. Briefly described, the federal government has argued that “one particular individual may be civilly detained for the sake of sending a message” to others “who may be considering immigration. In recent times, the potential migrants to whom the federal government has sought to send such a message are, by and large, from Mexico and Central America. Emerging empirical research, however, provides little to no evidence that detention …

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.

Judging Risk: The Use Of Risk Assessment In Sentencing, Brandon L. Garrett, John Monahan

Faculty Scholarship

No abstract provided.

Do Heads Roll?: An Empirical Analysis Of Ceo Turnover And Pay When The Corporation Is Federally Prosecuted, Brandon L. Garrett, Nan Li, Shivaram Rajgopal

Faculty Scholarship

Does the criminal prosecution of a corporation affect the CEO? Or do criminal actions directed at the organization itself pose few consequences for the individuals at the top, and the CEO in particular? While CEO’s are rarely themselves prosecuted, organizations could discipline CEO’s through paycuts or outright replacing the CEO in response to a criminal prosecution. We sought to examine whether and how that occurs. We focus our analysis on a dataset of public companies that settled criminal cases brought by federal prosecutors from 2001 to 2014. We compared those companies to a matched control group, focusing on CEO compensation …

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 …

Introduction To The Symposium On Transnational Futures Of International Labor Law, Adelle Blackett, Laurence R. Helfer

Faculty Scholarship

The centenary of the international organization whose constitution proclaims that social justice is indispensable for universal and lasting peace is too pivotal to go unnoticed. Established during the Paris Peace Conference of 1919, the International Labour Organization (ILO) was once a paradigmatic subject of study by international legal scholars and international relations theorists. A uniquely tripartite institution whose governance structure comprises workers, employers, and governments, the ILO survived the beleaguered League of Nations to become the first United Nations specialized agency in 1946. Its staff narrowly escaped the rise of fascism in Europe and settled into a wartime home at …

Rethinking Behavior - Winter 2019, Midwest Symposium For Leadership In Behavior Disorders

ReThinking Behavior Magazine

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

Winter 2019, Volume 2, Issue 2

Reports Of The Aaai 2019 Spring Symposium Series, Ioana Baldini, Clark Barrett, Antonio Chella, Carlos Cinelli, David Gamez, Leilani H. Gilpin, Knut Hinkelmann, Dylan Holmes, Takashi Kido, Murat Kocaoglu, William F. Lawless, Alessio Lomuscio, Jamie C. Macbeth, Andreas Martin, Ranjeev Mittu, Evan Patterson, Donald Sofge, Prasad Tadepalli, Keiki Takadama, Shomir Wilson

Computer Science: Faculty Publications

Applications of machine learning combined with AI algorithms have propelled unprecedented economic disruptions across diverse fields in industry, military, medicine, finance, and others. With the forecast for even larger impacts, the present economic impact of machine learning is estimated in the trillions of dollars. But as autonomous machines become ubiquitous, recent problems have surfaced. Early on, and again in 2018, Judea Pearl warned AI scientists they must "build machines that make sense of what goes on in their environment," a warning still unheeded that may impede future development. For example, self-driving vehicles often rely on sparse data; self-driving cars have …

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax …

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Faculty Scholarship

The notion of a “living Constitution” often rests on an implicit assumption that important constitutional values will “grow” in such a way as to make the Constitution more attractive over time. But there are no guarantees: What can grow can also wither and die. This essay, presented as the 2018 Robert F. Boden Lecture at Marquette University Law School, marks the sesquicentennial of the Fourteenth Amendment’s ratification as a powerful charter of liberty and equality for black Americans. But for much of its early history, the Fourteenth Amendment’s meaning moved in reverse, overwhelmed by the end of Reconstruction, the gradual …