Digital Commons Network^™

Unity And Diversity In International Law, William W. Park

Faculty Scholarship

The primordial Greek sea-god Proteus could alter his shape at will, notwithstanding that his divine substance remained the same. Reinventing himself by adapting to new circumstances, Proteus still stayed unchanged in essence.

Unlike the sea-god’s protean nature, the substance of international law may well undergo alterations when examined through the telescope of legal culture, or with predispositions of divergent educational backgrounds. For the thoughtful reader, scholarly speculation on such variations will be triggered by reading Is International Law International?. In that book, Professor Anthea Roberts explores a variety of elements in the teaching and practice of international law, viewed …

Hidden In Plain Sight: A More Compelling Case For Diversity, Jonathan Feingold

Faculty Scholarship

For four decades, the diversity rationale has offered a lifeline to affirmative action in higher education. Yet even after forty years, this critical feature of equal protection doctrine remains constitutionally insecure and politically fraught. Legal challenges persist, the Justice Department has launched a new assault on race-conscious admissions, and an impending shift on the Supreme Court could usher in an era of increased hostility toward the concept of diversity itself. The future of race-conscious admissions arguably hangs in the balance.

In this Article, I argue that the diversity rationale’s present fragility rests, in part, on its defenders’ failure to center …

Retour Sur L’Affaire De L’Alabama: De L’Utilité Et De L’Histoire Pour L'Arbitrage International, William W. Park, Bruno De Fumichon

Faculty Scholarship

For any aficionado of international law and international arbitration, the 1872 Alabama case represents a rich historical landmark, as promising a mine as the wreck of the Confederate Ship Alabama itself, sunk off Cherbourg, in 1864, by the United States Ship Kearsarge. This arbitration represents a turning point in relations between the United States and Great Britain, from repeated conflict to a “Special Relationship” that has grown stronger during the past century and a half. The case also marked the revival of international arbitration, after centuries of uncertainty. Not least, the case introduced long-lasting procedural innovations: the neutral collegial tribunal, …

Immigration Unilateralism And American Ethnonationalism, Robert L. Tsai

Faculty Scholarship

This paper arose from an invited symposium on "Democracy in America: The Promise and the Perils," held at Loyola University Chicago School of Law in Spring 2019. The essay places the Trump administration’s immigration and refugee policy in the context of a resurgent ethnonationalist movement in America as well as the constitutional politics of the past. In particular, it argues that Trumpism’s suspicion of foreigners who are Hispanic or Muslim, its move toward indefinite detention and separation of families, and its disdain for so-called “chain migration” are best understood as part of an assault on the political settlement of the …

The Upside Of Deep Fakes, Jessica Silbey, Woodrow Hartzog

Faculty Scholarship

It’s bad. We know. The dawn of “deep fakes” — convincing videos and images of people doing things they never did or said — puts us all in jeopardy in several different ways. Professors Bobby Chesney and Danielle Citron have noted that now “false claims — even preposterous ones — can be peddled with unprecedented success today thanks to a combination of social media ubiquity and virality, cognitive biases, filter bubbles, and group polarization.” The scholars identify a host of harms from deep fakes, ranging from people being exploited, extorted, and sabotaged, to societal harms like the erosion of democratic …

Manufactured Emergencies, Robert L. Tsai

Faculty Scholarship

Emergencies are presumed to be unusual affairs, but the United States has been in one state of emergency or another for the last forty years. That is a problem. The erosion of democratic norms has led to not simply the collapse of the traditional conceptual boundary between ordinary rule and emergency governance, but also the emergence of an even graver problem: the manufactured crisis. In an age characterized by extreme partisanship, institutional gridlock, and technological manipulation of information, it has become exceedingly easy and far more tempting for a President to invoke extraordinary power by ginning up exigencies. To reduce …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Research Report On Federal Agency Alj Hiring After Lucia And Executive Order 13843, Jack M. Beermann

Faculty Scholarship

This draft report examines federal agency hiring practices for administrative law judges ("ALJs"), who preside over formal agency hearings, in light of the Supreme Court's determination that ALJs are constitutional officers and President Trump's executive order to exempt ALJs from certain statutory competitive-service hiring requirements. The report also provides recommendations for best agency hiring practices. Professors Jack Beermann and Jennifer Mascott co-authored this initial draft report. After Professor Mascott stepped down from the Administrative Conference of the United States to work in the Department of Justice's Office of Legal Counsel, Professor Beermann edited the report and produced its final May …

The Hidden Costs Of Dissent, Robert L. Tsai

Faculty Scholarship

This essay appears as part of a symposium dedicated to the book, ROBERT L. TSAI, PRACTICAL EQUALITY: FORGING JUSTICE IN A DIVIDED NATION (W.W. Norton 2019), and published in CONSTITUTIONAL COMMENTARY. In it, I jointly respond to two separate review essays by Franita Tolson and Nelson Tebbe. First, I emphasize that the book presents not a comprehensive theory of equality, i.e., what egalitarianism should look like under ideal conditions, but instead an account of egalitarian ethics and a menu of work-arounds that can be useful to promote egalitarian goals under more trying circumstances. Second, as to the concern that over-reliance …

Intellectual Property Harms: A Paradigm For The Twenty-First Century, Jessica Silbey

Faculty Scholarship

This short essay is part of a larger book project that investigates how contemporary intellectual property debates, especially in the digital age, are taking place over less familiar terrain: fundamental rights and values. Its argument draws from the diverse, personal accounts of interviews from everyday creators and innovators and focuses on descriptions of harms and, as some say “abuses,” they suffer within their practicing communities. The harms are not described are the usual harms that intellectual property law is understood to prevent. Typically, intellectual property injuries are conceived in individual terms and as economic injuries. An infringer is a thief. …

Considerations Of History And Purpose In Constitutional Borrowing, Robert L. Tsai

Faculty Scholarship

This essay is part of a symposium issue dedicated to "Constitutional Rights: Intersections, Synergies, and Conflicts" at William and Mary School of Law. I make four points. First, perfect harmony among rights might not always be normatively desirable. In fact, in some instances, such as when First Amendment and Second Amendment rights clash, we might wish to have expressive rights consistently trump gun rights. Second, we can't resolve clashes between rights in the abstract but instead must consult history in a broadly relevant rather than a narrowly "originalist" fashion. When we do so, we learn that armed expression and white …

Domain Adaptation And Privileged Information For Visual Recognition, Saeid Motiian

Graduate Theses, Dissertations, and Problem Reports (ETD)

The automatic identification of entities like objects, people or their actions in visual data, such as images or video, has significantly improved, and is now being deployed in access control, social media, online retail, autonomous vehicles, and several other applications. This visual recognition capability leverages supervised learning techniques, which require large amounts of labeled training data from the target distribution representative of the particular task at hand. However, collecting such training data might be expensive, require too much time, or even be impossible. In this work, we introduce several novel approaches aiming at compensating for the lack of target training …

Environmental Determinism: Functional Egalitarian Spaces Promote Functional Egalitarian Practices, Katharine B. Silbaugh

Faculty Scholarship

Egalitarian, place-based thinking belongs at the table when considering approaches to improving early childhood. Places connect people’s lives. They also generate patterns that organize, and can re-organize, our social order and behavior. Places can spark and support the development of self-governance and cultivate a political voice grounded in the needs of the same community that place generates. Whether considered as community schools, community centers, or more ambitiously, community housing developments designed to include services that meet the needs of residents, the spatial dimensions of early childhood policy require explicit consideration.

Prairie Imperialists: The Indian Country Origins Of American Empire, Kate Bjork

Hamline Faculty and Staff Books and Publications

Traces the arc of American expansion by showing how the Army's conquests of what its soldiers called "Indian Country" generated a repertoire of actions and understandings that structured encounters with the racial others of America's new island territories following the War of 1898. Bjork follows the colonial careers of three Army officers from the domestic frontier to overseas posts in Cuba and the Philippines. The men profiled - Hugh Lenox Scott, Robert Lee Bullard, and John J. Pershing - internalized ways of behaving in Indian Country that shaped their approach to later colonial appointments abroad. Scott's ethnographic knowledge and experience …

Colony Breeding Structure Of Reticulitermes (Isoptera: Rhinotermitidae) In Northwest Arkansas, Allen Szalanski

Entomology and Plant Pathology Faculty Publications and Presentations

Termites, as social insects, have a complicated life cycle in which the colony breeding structure, that is the number of and origin of reproductives in a colony, can vary in relation to age and environmental factors. In this study, we used genetic methods to characterize the breeding structure of three species of Reticulitermes from three sites in northwest Arkansas and compared two habitats: undeveloped, forested sites and developed, agricultural sites. We found 57.1% of R. flavipes (Kollar) in northwest Arkansas (n = 28) were simple families, 39.3% were extended families and 3.6% were mixed families. Similarly, for R. hageni Banks …

Molecular Survey For The Honey Bee (Apis Mellifera L.) Trypanosome Parasites Crithidia Mellificae And Lotmaria Passim, Allen Szalanski

Entomology and Plant Pathology Faculty Publications and Presentations

Honey bee populations in the United States have been fluctuating in recent years. Although this has not been attributed to any one cause, recent studies have shown that multiple interactions among mircoorganisms may contribute to their decline. Several honey bee internal parasites have been overlooked as probable causes of decline; these include two different species of trypanosomes Crithidia mellificae and Lotmaria passim. Both parasites have been understudied in honey bee populations and could contribute to population disease dynamics. This study explored a molecular diagnostic survey for C. mellificae and L. passim using multiplex-PCR. Honey bee samples from both feral and …

Free Speech And Cheap Talk, Daniel J. Hemel, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them. …

Rethinking Law School Tenure Standards, Adam S. Chilton, Jonathan Masur, Kyle Rozema

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Economic Perspectives On Free Speech, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

The metaphor of a ‘marketplace of ideas’ has long pervaded discussions of free speech in and beyond the United States. For early scholars of law and economics (L&E), the similarities and differences between the metaphorical marketplace for ideas and literal markets for goods and services were subjects of much attention. Aaron Director—the University of Chicago law professor who helped to found the L&E movement but rarely reduced his own ideas to writing— devoted one of his few published papers to the contrast between the laissez-faire approach to speech and command-and-control regulation of other markets in mid-twentieth century America. Ronald Coase, …

What Should Law School Rankings Measure And How Should We Measure It: A Comment On Heald & Sichelman's Rankings, Adam Chilton, Jonathan S. Masur

Coase-Sandor Institute for Law & Economics Research Paper Series

There are obvious benefits to ranking academic departments based on objective measures of faculty research output. However, there are considerable difficulties associated with producing reliable and accurate rankings. In this short comment, we offer an evaluation of Heald and Sichelman's recent foray into the project of ranking law schools. Heald and Sichelman are to be commended for the transparency and rigor of their rankings effort. At the same time, it is important to note that their rankings involve a series of contestable discretionary choices and could give rise to potential counterproductive gaming by law schools seeking to improve their place …

Outside Influence On Democratic Elections, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

The 2019 Indian general election, and especially the enormous amount of money spent on campaigning and befriending voters during the election season, has drawn attention to the question of whether and when “outside” support (in the form of money and other assistance) from companies and persons not directly involved in an election should be forbidden, tolerated, or even encouraged. Common reactions to outside influence are inevitably inconsistent, even if we account for the fact that losers are likely to decry the outside influence that advantaged the winners or, more likely, the incumbent party expected to win. A novel approach, influenced …

A Place For Place In Federal Tax Law, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Drive about 14 miles west from here on Ohio State Route 81 and just when you cross I-75, before entering downtown Lima, you will find that you have arrived in a different capital gains tax regime. The grass may not be greener on the other side of I-75, but the capital gains tax rules surely are. If you sell a capital asset at a gain and plow the proceeds into an investment here in Ada, you will owe capital gains tax today and potentially will owe more tax when you sell the Ada asset in the future. If you put …

Beyond The Marriage Tax Trilemma, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

For decades, the well-known “marriage tax trilemma” has played a central role in discussions of the tax treatment of the family unit. The “trilemma” refers to the mathematical impossibility of constructing a tax system that imposes the same tax liability across all married couples with the same income (couples neutrality), neither encourages nor penalizes marriage (marriage neutrality), and taxes higher income individuals at higher rates (progressivity). Numerous articles have proposed responses to the trilemma that choose two of the legs over a third or that seek to split the difference among the competing neutrality norms that the trilemma casts as …

There’S A Problem With Buybacks, But It’S Not What Senators Think, Daniel J. Hemel, Gregg D. Polsky

Coase-Sandor Institute for Law & Economics Research Paper Series

In a deeply divided Washington, one of the few issues on which leading lawmakers on both sides of the aisle appear to agree is that corporations should be discouraged from buying back their stock from shareholders. Earlier this month, top-ranking Democratic Sen. Charles E. Schumer of New York, along with Vermont independent Sen. Bernie Sanders, unveiled the outline of a proposal that would bar companies from buying back their shares until they pay all workers at least $15 an hour and offer a suite of healthcare, sick leave, and retirement benefits. On February 12, Florida Republican Sen. Marco Rubio— who …

Taxing Wealth In An Uncertain World, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

An annual wealth tax, a mark-to-market income tax, and a retrospective capital gains tax are three approaches to capital taxation that yield roughly equivalent outcomes under certain conditions. The three approaches differ starkly, however, in their exposure to uncertainty of various types. This essay seeks to highlight the effect of uncertainty on the implementation and operation of alternative capital taxation regimes. An annual wealth tax is highly vulnerable to valuation uncertainty and constitutional uncertainty, but less so to political uncertainty. A retrospective capital gains tax, by contrast, minimizes valuation uncertainty and effectively eliminates constitutional uncertainty but remains highly exposed to …

Slices And Lumps: Division And Aggregation In Law And Life (Intro + Ch 1), Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

No abstract provided.

Tort Liability And The Risk Of Discriminatory Government, Enud Guttel, Ariel Porat

Coase-Sandor Institute for Law & Economics Research Paper Series

When individuals and firms fail to invest in adequate care, the government often steps in, taking costly measures to restore safety or mitigate harm. Under such circumstances, a question arises as to whether the government can demand recovery for its costs. For many years, the answer has been negative; tort law has persistently refused to render negligent individuals and firms liable for governmental expenditures. Yet recently, the law changed markedly. Recognizing that the no-liability regime subsidizes faulty behavior, an increasing number of jurisdictions have established the right of public entities to sue for reimbursement of costs. Against this backdrop, this …

Piece Problems: Component Valuation In Marketing And In Patent And Tort Law, Saul Levmore

Coase-Sandor Institute for Law & Economics Research Paper Series

The problems referred to in the title of this chapter concern evaluating a given variable when it is one of several that have combined to bring about a result. In some cases, there is an easy market solution. Imagine that you contract to buy a house and then the beautiful kitchen stove, one of many things that attracted you to the property, is destroyed before you close the transaction or occupy the property. How much should the price now be reduced? Here there is an upper limit based on the cost of a comparable replacement appliance. A more precise valuation …

Small-C Constitutional Rights, Adam Chilton, Mila Versteeg

Coase-Sandor Institute for Law & Economics Research Paper Series

Although constitutions lay out the fundamental principles by which countries are governed, identifying exactly which legal materials are considered constitutional is not a straightforward task. This is for two reasons. First, there is no systematic evidence about the relative importance of countries’ formal, written constitutions—the “Large-C” constitution— versus their broader body of constitutional law derived from sources like judicial decisions, treaties, and conventions—the “small-c” constitution. Second, it is often difficult to establish which legal materials are definitively part of a country’s small-c constitution. We investigated the nature and relative importance of small-c constitutional rights protections by fielding a global expert …

Mn Food (In)Security: Are Anti-Hunger Interventions In The Twin Cities Perpetuating Food Insecurity And Poverty?, Emma Kiley

Departmental Honors Projects

While anti-hunger organizations across the nation have been doing important work to address this issue, we have yet to see a significant decrease in food insecurity or poverty. This project uses a literature review and interviews with Twin Cities anti-hunger organizations to answer the following questions: How are anti-hunger interventions and the root causes of food insecurity mismatched? And what would it look like if anti-hunger organizations who are heavily engaged in the ‘feeding movement’ shifted their understanding to see food insecurity as a symptom of poverty, rather than an isolated issue? Working through themes of food charity models, privatized …