Digital Commons Network^™

The Transient And The Permanent In Arbitration, William W. Park

Faculty Scholarship

Several years ago, Jan Paulsson observed that Derek Roebuck might substitute for a time machine, providing a way for us to voyage backward with a guide to put everything in context. Indeed, the great Derek Roebuck, to whom we dedicate this set of essays, gave much of his professional life to making sure that by receiving a glimpse of dispute resolution in earlier times, we might have an opportunity better to understand the reality of present-day arbitration.

Can Sandel Dethrone Meritocracy? Comment On M. Sandel's The Tyranny Of Merit, Robert L. Tsai

Faculty Scholarship

This is an invited review essay of Michael Sandel, The Tyranny of Merit: What's Become of the Common Good? (FSG 2020), for the inaugural issue of The American Journal of Law and Inequality (R. Kennedy, M. Minow, C. Sunstein, eds.). Sandel makes three principal arguments: (1) meritocracy is deeply flawed because it worsens inequality and fills meritocracy's winners with hubris and losers with shame; (2) universities should introduce a lottery into the admissions process; and (3) this reform, coupled with increased emphasis on the dignity of labor, will repair the politics of resentment that now roil our country.
/="/">
/="/" …

We're All Pirates Now: Making Do In A Precarious Ip Ecosystem, Jessica Silbey

Faculty Scholarship

Fifteen years after the Piracy Paradox explained how most anti-copying protection is unnecessary for a thriving fashion industry, we face another piracy paradox: with broader and stronger IP laws and a digital economy in which IP enforcement is more draconian than ever, what explains the ubiquity of everyday copying, sharing, re-making and re-mixing practices that are the life blood of the internet's expressive and innovative ecosystems? Drawing on empirical data from a decade of research, this short essay provides two examples of this "new piracy paradox": a legal regime that ostensibly punishes piracy in a culture in which it is …

An Introduction To “Critical Legal Research: The Next Wave”, Ronald E. Wheeler

Faculty Scholarship

This symposium continues and sustains the exchange of ideas initiated at a panel presentation offered at the 2021 American Association of Law Schools (“AALS”) Annual Meeting in January 2021. The panel was titled Critical Legal Research: The Next Wave, and here we advance and extend that conversation with written contributions from the panelists.

The symposium and panel are outgrowths of truly organic collaboration that sprang from the passion for critical legal research felt by both the panel’s honorees—Professors Richard Delgado and Jean Stefancic—and an exceptional group of academic law librarian scholars—Yasmin Sokkar Harker, Julie Krishnaswami, Grace Lo, Nicholas Mignanelli, …

The Color Line: A Review And Reflection For Antiracist Scholars, Jasmine Gonzales Rose

Faculty Scholarship

In The Color Line: A Short Introduction, David Lyons provides a valuable service to students and academics in law, social sciences, and humanities by providing a concise history of the development and maintenance of race and racial order through law, policy, and discrimination in the United States. Lyons effectively outlines how race and racism were developed through these mechanisms in an effort to facilitate and maintain white supremacy.

Paying Americans To Take The Vaccine - Would It Help Or Backfire?, Christopher Robertson, Daniel Scheitrum, K. Aleks Schaefer, Trey Malone, Brandon R. Mcfadden, Kent D. Messer, Paul J. Ferraro

Faculty Scholarship

This research investigates the extent to which financial incentives (conditional cash transfers) would induce Americans to opt for vaccination against COVID-19. We performed a randomized survey experiment with a representative sample of 1,000 American adults in December 2020. Respondents were asked whether they would opt for vaccination under one of three incentive conditions ($1,000, $1,500, or $2,000 financial incentive) or a no-incentive condition. We find that—without coupled financial incentives—only 58% of survey respondents would elect for vaccination. A coupled financial incentive yields an 8-percentage-point increase in vaccine uptake relative to this baseline. The size of the cash transfer does not …

The Need For A Strong And Stable Federal Public Health Agency Independent From Politicians, Jacqueline Salwa, Christopher Robertson

Faculty Scholarship

The COVID-19 pandemic has revealed the precariousness of federal public health institutions in the United States, and how disastrously things can go when those institutions are undermined by political forces. Such institutions can be disbanded, underfunded, populated with incompetent political hacks, manipulated, or sidelined. As a field, public health in particular needs some political space, given that it requires deep scientific expertise and needs to communicate to the public clearly, reliably, and with authority to engender trust. Key public health agencies, such as the Centers for Disease Control and Prevention (CDC) in particular, should be buttressed against future political encroachment, …

Litigation As Education: The Role Of Public Health To Prevent Weaponizing Second Amendment Rights, Michael Ulrich

Faculty Scholarship

Tobacco litigation was unquestionably successful, but it is dangerous to expect that it can be easily duplicated. An unrealistic reliance on litigation as a regulatory measure can blind public health advocates to other mechanisms of change. And that includes litigation as a means of enabling actual regulation. Firearms and the gun violence epidemic provides a useful case study. The Protection of Lawful Commerce in Arms Act (PLCAA) essentially bars litigation as a regulatory tool for firearms. This legislation means every time someone pulls the trigger, they become the party to blame. Soto v. Bushmaster Firearms presents a rare exception based …

Deficit Frame Dangers, Jonathan Feingold

Faculty Scholarship

Civil rights advocates have long viewed litigation as an essential, if insufficient, catalyst of social change. In part, it is. But in critical respects that remain underexplored in legal scholarship, civil rights litigation can hinder short- and long-term projects of racial justice.

Specifically, certain civil rights doctrines reward plaintiffs for emphasizing community deficits—or what I term a “deficit frame.” Legal doctrine, in other words, invites legal narratives that track, activate, and reinforce pernicious racial stereotypes. This dynamic, even in the context of well-intended litigation, risks entrenching conditions that drive racial inequality—including the conditions that litigation is often intended to address. …

Don’T Bring An Army To An Arbitration (England, 1411), David J. Seipp

Faculty Scholarship

The name of our friend Derek Roebuck will always be linked to the long history of arbitration and mediation which he has chronicled so thoroughly in a dozen volumes by my count and many articles and chapters. On a spectrum of dispute resolution methods from formal courtroom litigation to savage brute force, arbitration stands at an interesting intermediate point. In tribute to Derek’s memory, I offer this glimpse of a curious episode at the intersection of due process of law, armed violence and principled arbitration. It reminds us that these three alternatives were not always as widely differentiated as we …

The Transparency Of Quantitative Empirical Legal Research (2018–2020), Jason Chin, Kathryn Zeiler, Natali Dilevski, Alexander Holcombe, Rosemary Gatfield- Jeffries, Ruby Bishop, Simine Vazire, Sarah Schiavone

Faculty Scholarship

Scientists are increasingly concerned with making their work easy to verify and build upon. Associated practices include sharing data, materials, and analytic scripts, and preregistering protocols. This has been referred to as a “credibility revolution”. The credibility of empirical legal research has been questioned in the past due to its distinctive peer review system and because the legal background of its researchers means that many often are not trained in study design or statistics. Still, there has been no systematic study of transparency and credibilityrelated characteristics of published empirical legal research. To fill this gap and provide an estimate of …

Intellectual Property And Ethnography: A Qualitative Research Approach, Jessica Silbey

Faculty Scholarship

This chapter describes the processes of and justifications for qualitative empirical research in intellectual property (IP) as compared to other research methods, such as quantitative empirical approaches and theoretical economic analyses of law. It provides examples of these research methods, explains the reasons for pursuing a qualitative approach, and details a qualitative research agenda in the context of intellectual property law, as well as a step-by-step method of data collection and data analysis.

Understanding University Fee Litigation: A Few Lessons About The Perils Of Imprudence For Higher Ed Plan Sponsors, Maria O'Brien, Calvin Utter

Faculty Scholarship

Beginning in August 2016, a series of class action lawsuits were filed on behalf of participants and beneficiaries of 403(b) employee retirement plans sponsored by major American colleges and universities. These plans are regulated by the 1974 Employee Retirement Income Security Act (“ERISA”), which sets minimum standards to protect the participants and beneficiaries of voluntarily established retirement and health plans. The allegations in the several lawsuits have centered primarily around breaches of fiduciary duties by those charged with administering the plan.

These cases are all class action lawsuits brought on behalf of the participants and beneficiaries of the plans in …

Zn Orbifolds Of Vertex Operator Algebras, Daniel Graybill

Electronic Theses and Dissertations

Given a vertex algebra V and a group of automorphisms of V, the invariant subalgebra V^G is called an orbifold of V. This construction appeared first in physics and was also fundamental to the construction of the Moonshine module in the work of Borcherds. It is expected that nice properties of V such as C2-cofiniteness and rationality will be inherited by V^G if G is a finite group. It is also expected that under reasonable hypotheses, if V is strongly finitely generated and G is reductive, V^G will also be strongly finitely generated. This is an analogue …

A Performance Guide To Prokofiev: Romeo And Juliet For Solo Tuba, John Christopher Dicesare

Graduate Theses, Dissertations, and Problem Reports (ETD)

As the most recent brass instrument to be added to the standard orchestra, the tuba’s solo repertoire is relatively new compared to other orchestral instruments. Ralph Vaughan Williams composed the first major concerto for tuba in 1954, over 100 years after the tuba’s creation in 1835 by Wilhelm Friedrich Wieprecht and Johann Gottfried Moritz. Though many composers — including Bruce Broughton, Eric Ewazen, Paul Hindemith, Gunther Schuller, and John Williams — have written solos for the tuba since Vaughan Williams, performers rely on arrangements and transcriptions of existing works to fill gaps in the repertoire. In 2011, Chicago Symphony Orchestra’s …

Evaluation Of Various Separation Techniques For The Removal Of Actinides From A Rare Earth-Containing Solution Generated From Coarse Coal Refuse, Deniz Talan

Graduate Theses, Dissertations, and Problem Reports (ETD)

Rare earth elements have emerged as a vital commodity due to their significance in the production of high-tech devices as well as their utilization in defense and military systems. They are deemed critical due to potential scarcity, supply constraints, and the lack of minable concentrations. Therefore, alternative sources are needed to meet the demand and continue manufacturing rare earth-required products. Coal and coal by-products, in that regard, have presented a significant opportunity and proven to contain a considerable amount of rare earths. However, toxic elements such as thorium and uranium are frequently seen in the same mineralization as rare earths. …

The Effect Of Natural Fractures On The Mechanical Behavior Of Limestone Pillars: A Synthetic Rock Mass Approach Application, Mustafa Can Süner

Graduate Theses, Dissertations, and Problem Reports (ETD)

In general, underground limestone mines have inherently strong rock and experience good ground stability. Also, modern pillar design guidelines developed by National Institute for Occupational Safety and Health (NIOSH) have improved the design of stable layouts for modern limestone mines. However, ground control-related incidents are still an important problem. In underground limestone mines, previously mined sections stay open for the life of the mine which may be many years, and it is possible for travel ways to working faces to pass through these old sections. In a recent massive pillar collapse in an old section of a mine in Pennsylvania …

“Sir, We Have The Honour Most Respectfully To Submit Our Humble Petition”: Voices In Ink And The Politics Of Petitions In Colonial Igboland, Nigeria, 1892-1960, Bright Chiazam Alozie

Graduate Theses, Dissertations, and Problem Reports (ETD)

With limited access to the traditional sources that historians typically use to document their work, it has become necessary to find new ways to explore the voices of local peoples who have been historically “denied a voice.” One way is through the study of petitions. Indeed, scholars of history have sparingly used petitions in some way while few have made systematic use of them. Even so, historians of colonial Africa have largely overlooked petitions in their studies, despite the important role that these sources played in negotiating African-European relations. This dissertation revolves around the hundreds of selected petitions, dubbed “voices …

Effects Of Multiple Stressors On Aquatic Macroinvertebrate Communities In A Mixed-Land-Use Watershed, Joellen Stivala

Graduate Theses, Dissertations, and Problem Reports (ETD)

As urbanization continues, there is a need to identify and understand environmental stressors that impact stream condition in mixed-land-use watersheds. This study analyzed four years of aquatic macroinvertebrate community and environmental data collected from ten sites located at the mouths of first-order tributaries and along the main stem creek of a 23-km², mixed-land-use watershed in central Appalachia. The main objectives were to 1) determine stream ecological integrity by analyzing stream macroinvertebrate taxonomic and trait-based composition and 2) assess which of 23 environmental variables explained significant variability in common community composition metrics (WVSCI, GLIMPSS, Biotic Index, % clingers, etc.). …

Exploring Early Signaling Associated With Complex Stressors, Julia A. Penatzer

Graduate Theses, Dissertations, and Problem Reports (ETD)

Humans are constantly exposed to a vast number of stressors in our everyday lives from social interactions to physical activity to chemical exposures, to name a few. These stressors have significant impacts on an individual, from the cellular to whole organismal level. The body contains an intricate communication system that elicits a number of both biological and physiological responses as it attempts to maintain homeostasis. Observing these responses to stressors, can offer insight into a number of outcomes, which can be beneficial (increasing life longevity) or detrimental (leading to a disease state). By measuring specific biological adaptations at particular time …

Covid-19 Vaccine Rollout: Examining Covid-19 Vaccination Perceptions And Intention Among Nurses, Emilee T. Austin

Graduate Theses, Dissertations, and Problem Reports (ETD)

Nurses’ COVID-19 vaccination rates have been reportedly low for being among the first prioritized for vaccination. To understand and potentially explain uptake barriers, this thesis utilized the 5c Model, the Integrative Model, the Extended Parallel Process Model, Uncertainty Management Theory, and the Theory of Motivated Information Management. This project used an online survey with a convenience sample recruited through the WV Nurses Association. Specifically, there were 328 nurses recruited, then screened for fully vaccinated participants leaving an analytic sample of 174 West Virginia nurses who had not yet been vaccinated. Participants were asked about their nursing role, threat perceptions, susceptibility …

Independent, Semi-Automated Classification Of Petrographic Features In Volcanic Rocks Using Fiji And Weka, Holly Danielle Pettus

Graduate Theses, Dissertations, and Problem Reports (ETD)

Traditional methods of collecting quantitative petrographic data from thin sections (modal mineralogy, size distribution, shapes, etc.) are time- and labor-intensive, and rarely have sample sizes adequate to statistically describe complex rocks (i.e. volcanic rocks). Although manual counting and measurements are now routinely supplemented by digital image analysis, the majority of quantitative petrographic studies still go through a manual digitization stage where object classes are traced before further analyses. This is a major rate-limiting step that reproduces the same problems of small n-values resulting from significant effort. We have valuated the potential and limitations of using the Trainable Weka Segmentation (TWS) …

Using Zebrafish To Elucidate The Expression And Gene Regulatory Network Of The Genomic Screen Homeobox Transcription Factors And Bring Innovative Science Learning Experiences To West Virginia, Rebecca Ann Coltogirone

Graduate Theses, Dissertations, and Problem Reports (ETD)

Central nervous system (CNS) development requires a code of regionally expressed transcription factors that impart initial neuronal cell identity, connectivity, and function. The absence of a transcription factor code would eliminate the neurodevelopmental logic producing diverse cell types in the CNS. Furthermore, early disruptions in transcription factor expression can affect later connectivity and function of neuronal circuits mediating sensory processing, defects in which are often observed as comorbid with various neurodevelopmental disorders (NDDs). Characterizing transcription factor expression and function is therefore an essential step in discerning the molecular mechanisms underlying human NDDs. genomic screen homeobox 1 and 2 (gsx1 …

Identification Of Reticulitermes Subterranean Termites (Blattodea: Rhinotermitidae) In The Eastern United States Using Inter-Simple Sequence Repeats, Allen Szalanski

Entomology and Plant Pathology Faculty Publications and Presentations

In the eastern United States, there are nine species of subterranean termites in three genera: Reticulitermes (six species), Coptotermes (two species), and Prorhinotermes (one species). These species serve as important ecological players by decomposing cellulose material, and some are important structural pests. Many of these species are difficult to discriminate morphologically and require examining the reproductive or soldier castes, which can be difficult to collect. While some genetic tools have been developed for species identification, they are often expensive and time-consuming. To help facilitate identification, we developed a more cost-effective and rapid genetic method to identify Reticulitermes species by screening …

Closing Gaps In The Estate And Gift Tax Base, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

Three transfer tax minimization mechanisms—zeroed-out grantor retained annuity trusts (GRATs), intentionally defective grantor trusts (IDGTs), and family-controlled entities with steep valuation discounts—significantly shrink the federal estate and gift tax base. This white paper explains how Congress can close all three loopholes. We estimate that these actions—along with complementary base-protecting and base-expanding proposals—would raise more than $65 billion over the fiscal year 2022 to fiscal year 2031 window (and possibly much more than $65 billion). They also would enhance the progressivity of the federal tax system and bolster the long-term revenue-raising capacity of the estate and gift taxes. To summarize key …

Taxing Buybacks, Daniel J. Hemel, Gregg D. Polsky

Coase-Sandor Institute for Law & Economics Research Paper Series

A recent rise in the volume of corporate share repurchases has prompted calls for changes to the rules governing stock buybacks. These calls for reform are animated by concerns that buybacks enrich corporate executives at the expense of productive investment. This emerging antibuyback movement includes prominent politicians as well as academics and Republicans as well as Democrats. The primary focus of buyback critics has been on securities-law changes to deter repurchases, with only passing mention of potential tax-law solutions.

This Article critically examines the policy arguments against buybacks and arrives at a mixed verdict. On the one hand, claims that …

Regulation And Redistribution With Lives In The Balance, Daniel J. Hemel

Coase-Sandor Institute for Law & Economics Research Paper Series

A central question in law and economics is whether non-tax legal rules should be designed solely to maximize efficiency or whether they also should account for concerns about the distribution of income. This question takes on particular importance in the context of cost-benefit analysis. Federal agencies apply cost-benefit analysis when writing regulations that generate multibillion dollar impacts on the US economy and profound effects on millions of Americans’ lives. In the past, agency cost-benefit analyses typically have ignored the income-distributive consequences of those regulations. That may soon change: On his first day in office, President Biden instructed his Office of …

Visibility And Indivisibility In Resource Arrangements, Lee Anne Fennell

Coase-Sandor Institute for Law & Economics Research Paper Series

Projects like highways, bridges, pipelines, and wildlife corridors exhibit indivisibilities—we need the whole thing to have anything of value. Many environmental and social goals have a similar all-or-nothing character: staying above or below a certain critical threshold can make all the difference. This essay focuses on the role of visibility in addressing resource dilemmas that have this structure. I examine how two kinds of visibility can help avoid catastrophic consequences and advance desirable ones. The first involves recognizing when an indivisibility is present—that is, appreciating the vulnerability of resources to thresholds and cliff effects before it is too late. The …

Equalizing The Tax Treatment Of Stock Buybacks And Dividends, Daniel J. Hemel, Gregg D. Polsky

Coase-Sandor Institute for Law & Economics Research Paper Series

his policy brief highlights flaws in the current federal tax treatment of stock buybacks and proposes to address those flaws by equalizing the tax treatment of buybacks and dividends. (We explore the proposal in greater detail in Hemel & Polsky, Taxing Buybacks, 38 Yale J. on Reg. 246 (2021), https://ssrn.com/abstract=3764112.) Stock buybacks allow foreign shareholders to avoid U.S. withholding tax on corporate cash distributions. Stock buybacks also allow U.S. taxable investors to reduce or eliminate shareholder-level tax on corporate cash distributions through a combination of deferral, loss harvesting, and stepped-up basis at death. Our proposal—based on an idea first suggested …

The Law Of Restitution For Mistaken Payments: An Economic Analysis, Dhammika Dharmapala, Nuno Garoupa

Coase-Sandor Institute for Law & Economics Research Paper Series

The law of restitution and unjust enrichment has emerged as an important and independent branch of private law globally, but has attracted relatively little economic analysis. The aim of this paper is to develop a general conceptual framework for the economic analysis of the core example of restitution - mistaken payments. We develop a formal model in a parsimonious setting with two buyer-seller pairs, with low (high) transaction costs within (across) pairs. This model generates several novel insights, based on the idea that mistaken payments to strangers impose a “transaction tax” on contracting parties. It sheds new light on distortions …