Digital Commons Network^™

“Let Those Who Have An Experience Of Prison Speak”: The Critique & Praxis Of The Prisons Information Group (1970-1980), Bernard E. Harcourt

Faculty Scholarship

As the May ’68 revolution reached a boiling point, a remarkable assemblage of philosophers, writers, and incarcerated persons, doctors, nurses, social workers, and sociologists, activists and organizers, and militants in France turned their attention to the problem of the prison. At a time when prisons were mostly hidden from view, practically impenetrable in France to outsiders, at a time long before we recognized mass incarceration in countries like the United States, the Prisons Information Group (the Groupe d’information sur les prisons or the “GIP”) coalesced to spotlight the travesty of justice that is the prison – one that continues unabated …

The Three Permissions: Presidential Removal And The Statutory Limits Of Agency Independence, Jane Manners, Lev Menand

Faculty Scholarship

Seven words stand between the President and the heads of over a dozen “independent agencies”: inefficiency, neglect of duty, and malfea­sance in office (INM). The President can remove the heads of these agencies for INM and only INM. But neither Congress nor the courts have defined INM and hence the extent of agency independence. Stepping into this void, some proponents of presidential power argue that INM allows the President to dismiss officials who do not follow presidential directives. Others contend that INM is unconstitutional because it prevents Presidents from fulfilling their duty to take care that the laws are faithfully …

Why Supervise Banks? The Foundations Of The American Monetary Settlement, Lev Menand

Faculty Scholarship

Administrative agencies are generally designed to operate at arm’s length, making rules and adjudicating cases. But the banking agencies are different: they are designed to supervise. They work cooperatively with banks and their remedial powers are so extensive they rarely use them. Oversight proceeds through informal, confidential dialogue.

Today, supervision is under threat: banks oppose it, the banking agencies restrict it, and scholars misconstrue it. Recently, the critique has turned legal. Supervision’s skeptics draw on a uniform, flattened view of administrative law to argue that supervision is inconsistent with norms of due process and transparency. These arguments erode the intellectual …

Total Plasma Homocysteine And Depressive Symptoms In Older Hispanics, Fernando Castro, Jesus D. Melgarejo, Carlos A. Chavez, Gabriel A. De Erausquin, Joseph D. Terwilliger, Joseph H. Lee, Gladys E. Maestre

School of Medicine Publications

Background: Very few studies have investigated the association between total plasma homocysteine (tHcy) and depressive symptoms in older Hispanics.

Objective: To test the hypothesis that high tHcy associates with depressive symptoms in older Hispanics.

Methods: A total of 1,418 participants .55 years old from the Maracaibo Aging Study (MAS) underwent standardized neurological, neuropsychiatric, and cardiovascular assessments. The Neuropsychiatric Inventory Depression Subscale (NPId) was used to assess the burden of depressive symptoms. The tHcy levels and other biochemical parameters in blood samples were measured. Univariate and multivariate logistic regression models were applied.

Results: Participants with depressive symptoms had higher levels of …

Protein-Functionalized Poly(Ethylene Glycol) Hydrogels As Scaffolds For Monolayer Organoid Culture, Reid L Wilson, Ganesh Swaminathan, Khalil Ettayebi, Carolyn Bomidi, Xi-Lei Zeng, Sarah E Blutt, Mary K Estes, K Jane Grande-Allen

Faculty, Staff and Students Publications

Stem cell-derived, organotypic in vitro models, known as organoids, have emerged as superior alternatives to traditional cell culture models due to their unparalleled ability to recreate complex physiological and pathophysiological processes. For this reason, they are attractive targets of tissue-engineering efforts, as constructs that include organoid technology would be expected to better simulate the many functions of the desired tissue or organ. While the 3D spheroidal architecture that is the default architecture of most organoid models may be preferred for some applications, 2D monolayer arrangements remain the preferred organization for many applications in tissue engineering. Therefore, in this work, we …

Nowhere To Run To, Nowhere To Hide, Praveen Kosuri, Lynnise E. Pantin

Faculty Scholarship

As the COVID-19 global pandemic ravaged the United States, exacerbating the country’s existing racial disparities, Black and brown small business owners navigated unprecedented obstacles to stay afloat. Adding even more hardship and challenges, the United States also engaged in a nationwide racial reckoning in the wake of the murder of George Floyd resulting in wide-scale protests in the same neighborhoods that initially saw a disproportionate impact of COVID-19 and harming many of the same Black and brown business owners. These business owners had to operate in an environment in which they experienced recurring trauma, mental anguish and uncertainty, along with …

William P. Alford: Kindness, Integrity, And Insight, Benjamin L. Liebman

Faculty Scholarship

In the summer of 1988, travelling from Dengshikou, in the center of Beijing, to the Xiyuan Hotel, just across from the Beijing Zoo, seemed like travelling to the outer edge of Beijing. I was back in Beijing visiting my host family at the end of the summer, and they were worried about me travelling so far on my own. But I had an invitation to dinner with an American professor, and my host family reluctantly let me travel across Beijing on the electric trolley bus to attend the dinner.

The Critique And Praxis Of Rights, Bernard E. Harcourt

Faculty Scholarship

The critique of rights has played a crowning role in critical philosophy. From Hegel to Marx, to Foucault and beyond – Duncan Kennedy, Christoph Menke, the contributors to this Symposium – the critique of rights has always represented an essential and inescapable step in the critique of modern Western society. The reason is plain: conceptions of natural rights, human rights, and civil rights have been central to the founding of modern political thought (from Hobbes, Locke, and Wollstonecraft forward), to the birth and flourishing of legal and political liberalism (in Rawls and Habermas), to the establishment of regimes of civil …

Regulating Antitrust Through Trade Agreements, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Antitrust law is one of the most commonly deployed instruments of economic regulation around the world. To date, over 130 countries have adopted a domestic antitrust law. These countries comprise developed and developing nations alike, and combined produce over 95 percent of the world’s GDP. Most of the countries that have adopted an antitrust law have done so since 1990. This period of significant proliferation of antitrust laws also coincides with a notable expansion of international trade agreements, including the creation of the World Trade Organization (WTO) in 1995 and the negotiation of numerous bilateral and multilateral trade agreements. These …

The Healthcare System And Pandemics: Where Is The Market Failure?, Sophia S. Helland, Edward R. Morrison

Faculty Scholarship

Barak D. Richman and Steven L. Schwarcz argue that healthcare providers played a central – and failing – role in stemming the fallout from the COVID-19 pandemic. Analogizing to the financial crisis of 2008, they view our healthcare system as a collection of providers, each maximizing returns to its own stakeholders in a laissez-faire regulatory environment that ignored the essential interconnectedness of providers. Because neither hospitals nor regulators were attuned to this interconnectedness, our healthcare system was unprepared for the pandemic, resulting in a reduced standard of care. Just as Dodd-Frank and related legislation view financial institutions as part of …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente

Faculty Scholarship

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …

Theorizing Beyond "The Code Of Capital": A Reply, Katharina Pistor

Faculty Scholarship

In this reply, I respond to and elaborate on the critique of my book “The Code of Capital” published in this special issue. The common thread of the critiques is the call for more theorizing of the themes the book addresses, especially the conception of state power, of resources, social relations and questions of knowledge and access to knowledge about the law, or epistemology. This reply is only a first response to issues that do require further analysis and I am hoping to follow suit on at least some of them in the near future.

The Code Of Capital: How The Law Creates Wealth And Inequality – Core Themes, Katharina Pistor

Faculty Scholarship

In this brief introduction, I summarize the core themes of my book “The Code of Capital: How the Law Creates Wealth and Inequality”. Capital, I argue, is coded in law – predominantly in a handful of private law institutions. By relying on legal coding techniques, asset holders invoke the right to enforce claims against others, if necessary with the help of the state’s coercive power.

Trading Pharma Goods The Wto Legal Framework, Neeraj Rajan Sabitha, Petros C. Mavroidis

Faculty Scholarship

Trading of pharma goods has attracted widespread global attention in the wake of the COVID-19 pandemic. The Agreement on Trade in Pharmaceutical Products (“Pharma Agreement”) – a sectoral agreement between a handful of WTO members – was concluded in 1994 and aimed to eliminate duties on various pharmaceutical products. Nevertheless, this is all that the Pharma Agreement does: it eliminates duties and does not touch upon the regulatory aspects relating to marketing of pharmaceutical goods. WTO members remain sovereign to decide on this score, but must observe the WTO Licensing Agreement as well as nondiscrimination. Thus, while the intensity of …

An Efficiency Analysis Of Defensive Tactics, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

For thirty five years, courts and scholars have divided over the effects of defensive tactics in the market for corporate control. Strong defensive tactics locate authority to accept a hostile bid in the target’s board. The board can bargain for a higher takeover price than uncoordinated shareholders could realize but high takeover prices may reduce shareholder returns by reducing the likelihood of receiving a bid. The Delaware Courts themselves disagree. The Delaware Chancery Court would locate ultimate decision authority in the target’s shareholders, while the Supreme Court, by permitting strong defensive tactics, allocates extensive power to the target’s board. Though …

Distributional Arguments, In Reverse, Alex Raskolnikov

Faculty Scholarship

This Article contends that the government should consider – rather than ignore – distributional consequences both in the design of legal rules and during legal transitions. This does not mean that the distributional effect of every legal rule should be measured and taken into account in the rule’s design. But if the likely distributional effects are unintended, large, and objectionable, if the efficiency of the legal rule is doubtful, if the compensating tax-and-transfer adjustment is not forthcoming (or has not occurred), policymakers should take distribution into account. One way of doing so is to choose among several alternative legal rules …

The Association Of Pre-Kidney Transplant Dialysis Modality With De Novo Posttransplant Heart Failure, Colin R Lenihan, Sai Liu, Medha Airy, Carl Walther, Maria E Montez-Rath, Wolfgang C Winkelmayer

Faculty, Staff and Students Publications

BACKGROUND: Heart failure (HF) after kidney transplantation is a significant but understudied problem. Pretransplant dialysis modality could influence incident HF risk through differing cardiac stressors. However, whether pretransplant dialysis modality is associated with the development of posttransplant HF is unknown.

METHODS: We used the US Renal Data System to assemble a cohort of 27,701 patients who underwent their first kidney transplant in the USA between the years 2005 and 2012 and who had Medicare fee-for-service coverage for >6 months preceding their transplant date. Patients with any HF diagnosis prior to transplant were excluded. Detailed baseline patient characteristics and comorbidities were …

National Trends For Peripheral Artery Disease And End Stage Renal Disease From The National Inpatient Sample Database, Frank De Stefano, Luis H. Paz Rios, Brian Fiani, Jawed Fareed, Alfonso Tafur

Student Publications

Peripheral artery disease (PAD), and subsequent chronic limb-threatening ischemia (CLTI), are frequently encountered among patients with end-stage renal disease (ESRD). Their coexistence is less favorable in comparison to patients with ESRD alone. We sought to investigate trends, comorbidities, determinants for cost, and prognostic outcomes in patients with concomitant ESRD and PAD. A retrospective analysis was performed using data from the National Inpatient Sample database from the years 2005-2014. ICD-9 codes were used to identify patients with diagnoses of PAD, CLTI, and ESRD. Pearson's Chi-square, T-test, ANOVA, and multivariate binary logistic regression were used in this analysis. 7,214,843 patients with ESRD …

The Big Data Regulator, Rebooted: Why And How The Fda Can And Should Disclose Confidential Data On Prescription Drugs And Vaccines, Christopher J. Morten, Amy Kapczynski

Faculty Scholarship

Medicines and vaccines are complex products, and it is often extraordinarily difficult to know whether they help or hurt. The Food and Drug Administration (FDA) holds an enormous reservoir of data that sheds light on that precise question, yet currently releases only a trickle to researchers, doctors, and patients. Recent examples show that data secrecy can be deadly, and existing laws such as the Freedom of Information Act (FOIA) cannot solve the problem. We present here a wealth of new evidence about the urgency of the problem and argue that the FDA must “reboot” its rules to proactively disclose all …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

Dpp-Iv Inhibitor-Associated Angioedema In Patient With Known History Of Ace Inhibitor Angioedema, Chidinma Ejikeme, Chinedu Nwachukwu, John Luis Viechweg, Ifunanya Ejikeme, Michael Brescia

Student Publications

The patient is a 69-year-old male with a past medical history of intellectual disability, hypertension, type 2 diabetes mellitus, and angiotensin-converting enzyme (ACE) inhibitor-associated angioedema who presented to the emergency department with difficulty breathing. On physical examination, the patient had significant facial edema. Nasal fiber-optic visualization revealed extensive airway edema involving the supraglottic region and the arytenoids. The patient was successfully intubated through the collective teamwork of ENT, anesthesia, and critical care teams. He was managed in the intensive care unit until recovery. Workup for markers for allergic causes of angioedema were within normal limits. Further investigation revealed that symptoms …

Redesign Of The Jefferson Lab -300 Kv Dc Photo-Gun For High Bunch Charge Operations, S.A.K. Wijethunga, J. Benesch, Jean R. Delayen, C. Hernandez-Garcia, Geoffrey A. Krafft, Gabriel Palacios-Serrano, M.A. Mamun, M. Poelker, R. Suleiman

Physics Faculty Publications

Production of high bunch charge beams for the ElectronIon Collider (EIC) is a challenging task. High bunch charge (a few nC) electron beam studies at Jefferson Lab using an inverted insulator DC high voltage photo-gun showed evidence of space charge limitations starting at 0.3 nC, limiting the maximum delivered bunch charge to 0.7 nC for beam at -225 kV, 75 ps (FWHM) pulse width, and 1.64 mm (rms) laser spot size. The low extracted charge is due to the modest longitudinal electric field (Ez) at the photocathode leading to beam loss at the anode and downstream beam pipe. To reach …

Privacy Asymmetries: Access To Data In Criminal Defense Investigations, Rebecca Wexler

Faculty Scholarship

This Article introduces the phenomenon of “privacy asymmetries,” which are privacy statutes that permit courts to order disclosures of sensitive information when requested by law enforcement but not when requested by criminal defense counsel. In the U.S. adversarial criminal legal system, defense counsel are the sole actors tasked with investigating evidence of innocence. Law enforcement has no constitutional, statutory, or formal ethical duty to seek out evidence of innocence. Therefore, statutes that selectively suppress defense investigations selectively suppress evidence of innocence. Privacy asymmetries form a recurring, albeit previously unrecognized, pattern in privacy statutes. They likely arise from legislative oversight and …

Privacy As Privilege: The Stored Communications Act And Internet Evidence, Rebecca Wexler

Faculty Scholarship

This Article exposes a profound and growing injustice that major technology companies have propagated through every level of the judiciary under the guise of protecting data privacy. The Supreme Court has repeatedly proclaimed: “In our judicial system, the public has a right to every [person’s] evidence.” Yet, for over a decade, Facebook, GitHub, Google, Instagram, Microsoft, and Twitter have leveraged the Stored Communications Act (SCA) — a key data privacy law for the internet — to bar criminal defendants from subpoenaing the contents of another’s online communications, even when those communications could exonerate the wrongfully accused. Every appellate court to …

The Practice And Pedagogy Of Carceral Abolition In A Criminal Defense Clinic, Nicole Smith Futrell

Faculty Scholarship

Current social and racial justice movements have helped to advance deeper interest in the long-standing work of carceral abolitionists. Abolitionists understand that the criminal legal process ineffectively uses state-sanctioned violence, surveillance, punishment, and exclusion to address, and counterproductively perpetuate, the underlying problems that produce violence and harmful behavior in our communities. Abolition focuses on dismantling our current carceral systems and finding completely new, restorative, and collaborative ways of addressing harmful social behaviors. While abolitionist thought has long existed in organizing and non-legal academic spaces, law students and legal scholars are increasingly considering how a carceral abolitionist perspective can inform legal …

A Brief History Of Lake Okeechobee: A Narrative Of Conflict, Alanna L. Lecher

Faculty and Staff Publications & Presentations

Lake Okeechobee is Florida’s largest lake, the largest lake in the Southeast United States, and the second largest lake contained entirely within the United States. The history of this inland sea is marked both by natural processes, and more recently human development and intervention. Adventurers can explore this behemoth of a waterway via the Lake Okeechobee Scenic Trail that enriches it, a part of the Florida National Scenic Trail. This paper synthesizes major natural and human-induced perturbations that shaped the lake and ultimately the trail that encircles it to create a narrative of Florida’s great lake. The story of Lake …

Why You’Re Not Worthy: The Superiority Theory Of Humor, Sophia A. Stone

Faculty and Staff Publications & Presentations

No abstract provided.

Presidential Commission On The Supreme Court Of The United States Final Report, Michelle Adams, Kate Andrias, Jack Balkin, William Baude, Bob Bauer, Elise Boddie, Guy-Uriel E. Charles, Andrew Manuel Crespo, Walter Dellinger, Justin Driver, Richard Fallon Jr., Caroline Fredrickson, Heather Gerken, Nancy Gertner, Thomas B. Griffith, Tara Leigh Grove, Bert I. Huang, Sherrilyn Ifill, Olatunde C.A. Johnson, Michael S. Kang, Alison L. Lacroix, Margaret H. Lemos, David F. Levi, Trevor W. Morrison, Richard H. Pildes, Michael D. Ramsey, Cristina M. Rodríguez, Kermit Roosevelt, Bertrall Ross, David A. Strauss, Laurence H. Tribe, Michael Waldman, Adam White, Keith E. Whittington

Faculty Scholarship

On April 9, 2021, President Joseph R. Biden, Jr. issued Executive Order 14023 establishing this Commission, to consist of “individuals having experience with and knowledge of the Federal judiciary and the Supreme Court of the United States.” The Order charged the Commission with producing a report for the President that addresses three sets of questions. First, the Report should include “[a]n account of the contemporary commentary and debate about the role and operation of the Supreme Court in our constitutional system and about the functioning of the constitutional process by which the President nominates and, by and with the advice …

Procedures For The Enforcement Of New York Convention Awards, George A. Bermann

Faculty Scholarship

Article III of the New York Convention expresses the Contracting States’ core obligation under the Convention, namely the obligation to enforce Convention awards, absent a basis in the Convention for declining to do so. At the same time, the Convention drafters chose not to prescribe the manner in which such enforcement should take place. Article III expressly reserved the matter to the law of the place where enforcement under the Convention is sought.

Enforcement was to be achieved “in accordance with the rules of procedure of the territory where the award is relied upon.” The only limitations on the freedom …

Authoring The Law, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law denies protection to legal texts through a rule known as the “government edicts doctrine”. Entirely a creation of nineteenth century courts, the government edicts doctrine treats expression produced by lawmakers in the exercise of their lawmaking function as altogether uncopyrightable. Despite having been in existence for over a century, the doctrine remains shrouded in significant mystery and complexity. Lacking statutory recognition, the doctrine has come to be seen as driven by open-ended considerations of “public policy” that draw on the overarching importance of public access to laws. In its decision in Georgia v. Public.Resource.Org., Inc., the Supreme …