Public Law and Legal Theory Commons^™

Digging Into Democracy: Reflections On Ced And Social Change Lawyering After #Ows, Barbara Bezdek

Maryland Law Review Online

No abstract provided.

High-Stakes Interpretation, Ryan D. Doerfler

Michigan Law Review

Courts look at text differently in high-stakes cases. Statutory language that would otherwise be “unambiguous” suddenly becomes “less than clear.” This, in turn, frees up courts to sidestep constitutional conflicts, avoid dramatic policy changes, and, more generally, get around undesirable outcomes. The standard account of this behavior is that courts’ failure to recognize “clear” or “unambiguous” meanings in such cases is motivated or disingenuous, and, at best, justified on instrumentalist grounds.

This Article challenges that account. It argues instead that, as a purely epistemic matter, it is more difficult to “know” what a text means—and, hence, more difficult to regard …

The Holding-Dictum Spectrum, Andrew C. Michaels

Arkansas Law Review

Presumably, the terms holding and dictum have some objective meaning. One would not say, “I do not agree with this statement, so it is dictum.” One might say, “This statement is dictum, so it is not binding.” So what, then, is dictum? More specifically, to what extent does the breadth of a generalization affect its status as holding or dictum?

Fulfilling U.S. Commitment To Refugee Resettlement: Protecting Refugees, Preserving National Security, & Building The U.S. Economy Through Refugee Admissions, Harvard Immigration And Refugee Clinical Program

Texas A&M Law Review

At a time when the U.S. refugee admissions program is under serious threat and the world’s displaced population is at its highest, this Report sets forth extensive recommendations regarding the United States’ role in protecting vulnerable refugees and compliance with its commitments under domestic and international law that together safeguard people fleeing persecution and fearing return to torture. The Report also identifies key national security reasons for supporting and enhancing the refugee program in keeping with U.S. foreign policy priorities. Additionally, the Report provides an in-depth discussion of the robust, multistep security-assessment mechanisms already in place for screening refugees; offers …

Sb 219 - Autonomous Vehicles, W. Perry Hicks, Alan J. Ponce

Georgia State University Law Review

The Act amends Georgia’s Motor Vehicles and Traffic Code to create a legal framework for autonomous vehicles to operate in Georgia. Persons responsible for operating fully autonomous vehicles are exempted from holding a driver’s license. In the event of an accident involving an autonomous vehicle, the vehicle must remain at the scene and the operator of the autonomous vehicle must provide necessary information to law enforcement. Minimum liability insurance requirements for autonomous vehicles will be the same as minimum coverages required for the taxi and limousine industry after January 1, 2020. Minimum coverages are set at 250 percent of those …

Beat It: Tax Reform And Tax Treaties, Reuven S. Avi-Yonah

Law & Economics Working Papers

The Tax Cuts and Jobs Act (TCJA) includes several provisions that may be viewed as potential violations of US tax treaties. However, most of those potential violations, such as new IRC section 951A and to a large extent new IRC section 59A, are covered by the Savings Clause (US model article 1(4)). The only remaining question is whether IRC section 59A (the “Base Erosion Anti-Abuse Tax”, or BEAT) violates the non-discrimination provision (article 24), which is exempted from the Savings Clause. The answer is no, because foreign related parties are not comparable to US related parties receiving interest or royalties.

How Terrible Is The New Tax Law? Reflections On Tra17, Reuven S. Avi-Yonah

Law & Economics Working Papers

Overall, TRA17 is not much worse than TRA86 or TRA14. It increases the deficit, but not by an impossible amount; it is distributionally skewed, but less so than is usually assumed; and its details are not terrible (on the international side they are a big improvement over prior law). There is one big problem, the pass through provisions, and we can only hope that as its horrible implications unfold it will be a prime candidate for repeal.

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …

Isolation Of Mitochondrial Dna From Single, Short Hairs Without Roots Using Pressure Cycling Technology, Kathryn A. Harper, Kelly A. Meiklejohn, Richard T. Merritt, Jessica Walker, Constance L. Fisher, James M. Robertson

United States Department of Justice: Publications

Hairs are commonly submitted as evidence to forensic laboratories, but standard nuclear DNA analysis is not always possible. Mitochondria (mt) provide another source of genetic material; however, manual isolation is laborious. In a proof-of-concept study, we assessed pressure cycling technology (PCT; an automated approach that subjects samples to varying cycles of high and low pressure) for extracting mtDNA from single, short hairs without roots. Using three microscopically similar donors, we determined the ideal PCT conditions and compared those yields to those obtained using the traditional manual micro-tissue grinder method. Higher yields were recovered from grinder extracts, but yields from PCT …

A Review And Conceptual Model Of Factors Correlated With Postmortem Root Band Formation, Joseph Donfack, Hilda S. Castillo

United States Department of Justice: Publications

It is generally accepted within the forensic trace evidence community that a postmortem root band (PMRB) can appear in the root of hairs attached to remains during decomposition. Presently, the specific sequences of events and/or exact molecular signals that lead to the formation of a PMRB are not well understood. The published literature addressing the abiotic and biotic factors that correlate with the formation of PMRBs is reviewed and a conceptual model for the formation of PMRBs is proposed.

Science‐Based Interviewing: Information Elicitation, Susan E. Brandon, Simon Wells, Colton Seale

United States Department of Justice: Publications

This article describes an ethical and effective science‐based model of interviewing. An initial planning phase assists the investigative team in separating facts from inferences, decreases the likelihood of errors based on cognitive biases, and prompts careful preparation of the environment. The interview begins with an explanation of why the subject is being questioned. The interviewer then metaphorically hands the interview over to the subject, making him the talker and the interviewer the listener. The interviewer engages in active listening, soliciting as much information from the subject as possible by deploying tactics that enhance memory based on science, including elements of …

Criminal Thinking, Psychiatric Symptoms, And Recovery Attitudes Among Community Mental Health Patients, Nicole R. Bartholomew, Robert D. Morgan, Sean M. Mitchell, Stephanie A. Van Horn

United States Department of Justice: Publications

Research suggests it is important to consider criminogenic needs among individuals with severe mental illness. This study aimed to determine the severity of criminal thinking in community-based clinical samples, understand the association between criminal thinking and psychiatric and criminal justice outcomes, and compare these associations between consumers enrolled in Assertive Community Treatment (ACT) and Forensic Assertive Community Treatment (FACT) programs. Participants (N = 234) were male and female consumers enrolled in ACT and FACT programs in five states. Results revealed no significant differences in criminal thinking when comparing participants by program type or history of criminal justice involvement. There …

Integration Of Paper Spray Ionization High‐Field Asymmetric Waveform Ion Mobility Spectrometry For Forensic Applications, Chia-Wei Tsai, Christopher A. Tipple, Richard A. Yost

United States Department of Justice: Publications

Rationale: Paper spray ionization (PSI) is an attractive ambient ionization source for mass spectrometry (MS) since it allows the combination of surface sampling and ionization. The minimal sample preparation inherent in this approach greatly reduces the time needed for analysis. However, the ions generated from interfering compounds in the sample and the paper substrate may interfere with the analyte ions. Therefore, the integration of PSI with high‐field asymmetric ion mobility spectrometry (FAIMS) is of significant interest since it should reduce the background ions entering the mass analyzer without complicating the analysis or increasing analysis time. Here we demonstrate the integration …

Development And Validation Of A Solid Phase Extraction Sample Cleanup Procedure For The Recovery Of Trace Levels Of Nitro-Organic Explosives In Soil, Jennifer L. Thomas, Christopher C. Donnelly, Erin W. Lloyd, Robert F. Mothershead Ii, Mark L. Miller

United States Department of Justice: Publications

An improved cleanup method has been developed for the recovery of trace levels of 12 nitro-organic explosives in soil, which is important not only for the forensic community, but also has environmental implications. A wide variety of explosives or explosive-related compounds were evaluated, including nitramines, nitrate esters, nitroaromatics, and a nitroalkane. Fortified soil samples were extracted with acetone, processed via solid phase extraction (SPE), and then analyzed by gas chromatography with electron capture detection. The following three SPE sorbents in cartridge format were compared: Empore^TM SDB-XC, Oasis HLB, and Bond Elut NEXUS cartridges. The NEXUS cartridges provided the best …

Potential Effects Of Ionizing Radiation On The Evidentiary Value Of Dna, Latent Fingerprints, Hair, And Fibers: A Comprehensive Review And New Results, Keith L. Monson, Sherine Ali, Michael D. Brandhagen, Martine C. Duff, Constance L. Fisher, Karen K. Lowe, Carna E. Meyer, Maria A. Roberts, Kyle R. Tom, Aaron L. Washington Ii

United States Department of Justice: Publications

An extensive literature review and new post-irradiation experimental results are presented of genotyping blood stains and hair, and physical examinations of latent fingerprints, hairs, and fibers. Results indicate that successful development of nuclear short tandem repeat (STR) and mitochondrial DNA sequence profiles from human blood and hair evidence is possible—up to a point—following exposure to gamma, neutron, beta, and alpha radiation at several levels that would most likely be present at this type of crime scene (i.e., a “dirty bomb,” etc.). Commencing at gamma radiation levels between 90 and 900 kGy, DNA analysis using conventional DNA techniques was unsuccessful. In …

A Protocol For Obtaining Dna Barcodes From Plant And Insect Fragments Isolated From Forensic-Type Soils, Kelly A. Meiklejohn, Megan L. Jackson, Libby A. Stern, James M. Robertson

United States Department of Justice: Publications

Soil is often collected from a suspect’s tire, vehicle, or shoes during a criminal investigation and subsequently submitted to a forensic laboratory for analysis. Plant and insect material recovered in such samples is rarely analyzed, as morphological identification is difficult. In this study, DNA barcoding was used for taxonomic identifications by targeting the gene regions known to permit discrimination in plants [maturase K (matK) and ribulose 1,5-biphosphate carboxylase (rbcL)] and insects [cytochrome oxidase subunit I (COI)]. A DNA barcode protocol suitable for processing forensic-type biological fragments was developed and its utility broadly tested with …

Use Of The Lus In Sequence Allele Designations To Facilitate Probabilistic Genotyping Of Ngs-Based Str Typing Results, Rebecca S. Just, Jodi A. Irwin

United States Department of Justice: Publications

Some of the expected advantages of next generation sequencing (NGS) for short tandem repeat (STR) typing include enhanced mixture detection and genotype resolution via sequence variation among non-homologous alleles of the same length. However, at the same time that NGS methods for forensic DNA typing have advanced in recent years, many caseworking laboratories have implemented or are transitioning to probabilistic genotyping to assist the interpretation of complex autosomal STR typing results. Current probabilistic software programs are designed for length-based data, and were not intended to accommodate sequence strings as the product input. Yet to leverage the benefits of NGS for …

The Proposed New Federal Impact Assessment Act (Iaa) Under Bill C-69: Assessment & Reform Proposals, Meinhard Doelle

Research Papers, Working Papers, Conference Papers

This working paper starts with an overview of the proposed Canadian Impact Assessment Act (CIAA), introduced in Parliament in February 2018 as part of Bill C-69. The Bill was introduced following a multi-year consultation effort by the federal government on how to improve the federal assessment and decision-making process in Canada to regain public trust in the process and federal project decisions. Following a general overview of the key changes, the paper offers a detailed assessment of three key elements of the proposed reforms, the Review Panel process, public participation, follow-up, and the role of strategic and regional assessments under …

Deliberative Public Engagement With Science: An Empirical Investigation, Lisa M. Pytlikzillig, Myiah J. Hutchens, Peter Muhlberger, Frank J. Gonzalez, Alan Tomkins

Lisa PytlikZillig Publications

The purpose of this book is to share some results and the data from four studies in which we used experimental procedures to manipulate key features of deliberative public engagement to study the impacts in the context of deliberations about nanotechnology. In this chapter, we discuss the purpose of this book, which is to advance science of public engagement, and the overarching question motivating our research: What public engagement methods work for what purposes and why? We also briefly review existing prior work related to our overarching goal and question and introduce the contents of the rest of the book. …

Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron

University of Michigan Journal of Law Reform

When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?

Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …

A Theory Of Constructive Interpretation For Customary International Law Identification, Nadia Banteka

Michigan Journal of International Law

Scholars and judicial practice have long debated the nature of customary international law (“CIL”) as a source of international law, including its normative identification. Existing approaches to CIL identification largely follow the methods of induction and deduction. However, these methods are only two ends of a spectrum, and international law has yet to engage systematically with other methodological approaches that lay within this spectrum. This Article introduces a mid-spectrum approach by applying the theory of constructive interpretation to CIL identification. The Article introduces the guiding principles of constructive interpretation, examines the process of constructive interpretation in the abstract, and applies …

La Méthode Comparative En Droit Public, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

Pilot Testing The Daily Activities List For Inmates (Dali): Item Evaluation And Content Validity, Philip R. Magaletta, Rokas Perskaudas, Christina J. Connors, Marc W. Patry, Jarrod Reisweber

United States Department of Justice: Publications

Scheduling enjoyable daily activities is a Cognitive Behavioral Therapy intervention used in the treatment of depression and substance abuse disorders that are prevalent disorders among inmates. To effectively use this intervention with inmates, an activities list with items ecologically sensitive to the correctional setting needs to be created. The purpose of this study was to develop and evaluate items; thus, establishing a content valid Daily Activities List for Inmates (DALI). Fifteen corrections professionals representing a wide range of disciplines and managerial backgrounds served as subject matter experts (SMEs). Each SME evaluated 403 daily activity items that were aggregated from 4 …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Michigan Law Review

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

The Consensus Myth In Criminal Justice Reform, Benjamin Levin

Michigan Law Review

It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the purported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society.

The Article maps two prevailing, but fundamentally distinct, critiques of criminal law: (1) the quantitative approach (what I call the “over” frame); and …

Women And Guns, Elaine Craig

Articles, Book Chapters, & Popular Press

In Gun Control and Women’s Rights in Context: Reflections of the Applicant on Barbra Schlifer Commemorative Clinic v Canada, Amanda Dale not only provides the reader with an embodied account of law that exemplifies the limits of legal discourse, she also offers a compelling (and disheartening) explication of how and why the Stephen Harper government’s repeal of the long-gun registry threatens the lives of women.

As Dale points out, gun control in Canada is different from that in the United States. Canadian gun control laws are, of course, much more robust. For example, restricted weapons, such as handguns, have been …

Fiscal Pressures And Discriminatory Policing: Evidence From Traffic Stops In Missouri, Allison P. Harris, Elliott Ash, Jeffrey A. Fagan

Faculty Scholarship

This paper provides evidence of racial variation in traffic enforcement responses to local government budget stress using data from policing agencies in the state of Missouri from 2001 through 2012. Like previous studies, we find that local budget stress is associated with higher citation rates; we also find an increase in traffic-stop arrest rates. However, we find that these effects are concentrated among White (rather than Black or Latino) drivers. The results are robust to the inclusion of a range of covariates and a variety of model specifications, including a regression discontinuity examining bare budget shortfalls. Considering potential mechanisms, we …

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Cornell Law Faculty Publications

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered — Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are …

Getting Local Governments Where They Need To Go Without Taking Taxpayers For A Ride: "Cabs," Why They Are Used, And What Can Be Done To Prevent Their Misuse, Heather G. White

St. Mary's Law Journal

Abstract forthcoming

The Unanswered Conundrum: Inconclusive Record And The Burden Of Proof For Immigration Relief, Yanie Yuan

Law Student Publications

In 2017, the Ninth Circuit Court of the United States decided a case of an undocumented noncitizen that went against United States Su- preme Court precedent. The appellant in Marinelarena v. Sessions was removed despite the fact that she had not been convicted of any crimes. This comment examines the arguments and strategies of the case that the judges relied upon in their opinion.