The Influence of Government Defenders on Affirmative Civil Rights Enforcement

The focus of this brief Article will be on a conundrum, particularly in the area of civil rights enforcement: the federal government—in particular the DOJ—can be one of the most efficient and powerful vindicators of civil rights, while at the same time one of the most effective advocates for imposing barriers to affirmative civil rights enforcement. At the same time that the DOJ’s Civil Rights Division (CRD) is entering federal court to “vindicat[e] rights and remedy[] inequities,” attorneys in the Civil Division (either from Main Justice or in any number of U.S. Attorney’s offices) are appearing in court to prevent the same. No doubt the same observation applies to certain state governments that have active affirmative civil rights enforcement bodies while also maintaining well-resourced defensive litigation bureaus. For my purposes, this observation has important consequences. It might bear on the professional obligations of the government attorney who appears in a defensive posture, a topic that Bruce Green and others have addressed in many thoughtful articles. I will address some potential ethical implications toward the end of this Article, but it is not my principal focus because I am not convinced that that is where the solution lies. Instead, I want to concentrate on what the observation means for executive branch law enforcement priorities, how the dynamic impacts broad access-to-justice concerns, and the implications for institutional design. I am going to try to do so in four parts. First, this Article contrasts agenda setting in defensive bureaus with agenda setting in the affirmative posture. Part I compares the defensive positions taken in two extremely similar cases—Ashcroft v. Iqbal and Ziglar v. Abbasi—that were litigated by the DOJ across two different presidential administrations. This is to help illustrate (admittedly by anecdote) that, even while affirmative enforcement priorities can change significantly from one administration to the other, defensive litigating positions can remain remarkably stable. Parts II and III turn to showing what consequences this has in the context of civil rights enforcement. Part II starts with the DOJ’s affirmative bureaus themselves, with a focus on the CRD. The goal is to show that the defensive bureaus impact the work of the CRD in at least two ways: (1) by channeling enforcement priorities into areas that will not conflict with defensive litigating positions and (2) by making affirmative enforcement priorities more difficult to secure through the spread of transsubstantive doctrine that suppresses rights enforcement, even in the areas in which there are no conflicts with defensive positions. Part III moves beyond the direct impact on CRD because defensive litigation positions taken by the DOJ can also suppress affirmative rights enforcement by “private attorneys general,” enforcement that nonetheless is consistent with the affirmative priorities of Main Justice. Finally, Part IV offers some thoughts on what lessons we might draw from these observations. For the most part, I devote my attention to how institutional design might ameliorate the tensions I identify in this Article

Darwin and the Body Politic: Schaffle, Veblen, and the Shift of Biological Metaphor in Economics

A long tradition of thought in Western political philosophy compares the body of man to the political body. This traditional cosmological frame of reference was, with the publication of Darwin’s Origin of Species, overcome by the emergence of evolutionary social systems. Albert Schäffle [1831-1903] can fruitfully be considered the last major representative of the old trajectory of thought, and Thorstein Veblen [1853-1929] the first of the new. By comparing and contrasting their uses of biological metaphors and the places these occupied in their larger visions of society and the economy, the author explores some of the tensions generated in late nineteenth century political philosophy by the dramatic change in biological paradigm—in other words by Darwin’s first encounter with the body politic.

Asymptotic behaviour of gossip processes and small world networks

Both small world models of random networks with occasional long range connections and gossip processes with occasional long range transmission of information have similar characteristic behaviour. The long range elements appreciably reduce the effective distances, measured in space or in time, between pairs of typical points. In this paper, we show that their common behaviour can be interpreted as a product of the locally branching nature of the models. In particular, it is shown that both typical distances between points and the proportion of space that can be reached within a given distance or time can be approximated by formulae involving the limit random variable of the branching process.Comment: 30 page

The Relevance of Ragnar Nurkse and Classical Development Economics

In this essay we aim to show, first, how the classical development economics, that of Ragnar Nurkse's (1907-1957) generation, epitomized the best development practices of the past 500 years and crafted them into what Krugman rightly calls high development theory. It is not a coincidence that the post-World-War-II era, when Nurkse and others ruled the development mainstream, is one of exceptionally good performance for many poor countries. Second, we argue that the alleged death of the classical development economics and subsequent rise of the Washington Consensus has to do not so much with increasing modeling in economics, a way of research purposely discarded by many classical development thinkers, but much more with misunderstanding the reasons for East Asia's success and Latin America's demise; we show that the root cause of this misunderstanding - that goes in fact back to 'misreading' key passages in Adam Smith - is the role of technology, or of increasing returns activities, and of finance, in development. Third, we aim to indicate key areas of further research that the current development mainstream should pursue in order to re-learn how to create middle-income economies and middle-class jobs.

Release as Remedy for Excessive Punishment

Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from custody, or a reduction in sentence, for certain kinds of Eighth Amendment violations is the best way to make fully operational this Eighth Amendment principle. Put simply, the problem is this: there are three different remedial schemes for an Eighth Amendment violation, based on both the type of Eighth Amendment violation challenged and the timing of the violation. When a prisoner challenges a sentence prior to its imposition through proportionality analysis, courts have the power to strike the sentence down and order the release of an offender. When a prisoner challenges conditions of confinement that are ongoing in nature, the court has the power to order the cessation of those conditions or, in extreme cases, to order the release of prisoners. But when a prisoner challenges the infliction of past punishment, the prisoner may obtain only monetary damages. This Article argues that if discrete instances of abuse are considered punishment and the Eighth Amendment prohibits the imposition of disproportionate or inhumane punishment, then there is no logical or doctrinal reason to limit the remedy for past violations to damages only. Some punishments, even if inflicted on only one occasion, can be so horrific so as to themselves amount to unconstitutional punishment. To continue to incarcerate an offender in that instance is to subject the prisoner to a total amount of punishment that is unconstitutional. When the State has no legitimate authority to impose additional punishment on the prisoner, the remedy of release, or a commensurate reduction in total length of imprisonment, should be considered

Low-Energy Scale Excitations in the Spectral Function of Organic Monolayer Systems

Using high-resolution photoemission spectroscopy we demonstrate that the electronic structure of several organic monolayer systems, in particular 1,4,5,8-naphthalene tetracarboxylic dianhydride and Copper-phtalocyanine on Ag(111), is characterized by a peculiar excitation feature right at the Fermi level. This feature displays a strong temperature dependence and is immediatly connected to the binding energy of the molecular states, determined by the coupling between the molecule and the substrate. At low temperatures, the line-width of this feature, appearing on top of the partly occupied lowest unoccupied molecular orbital of the free molecule, amounts to only $\approx 25$ meV, representing an unusually small energy scale for electronic excitations in these systems. We discuss possible origins, related e.g. to many-body excitations in the organic-metal adsorbate system, in particular a generalized Kondo scenario based on the single impurity Anderson model.Comment: 6 pages, 3 figures, accepted as PRB Rapid Communication

Iron concentrations in neurons and glial cells with estimates on ferritin concentrations

BACKGROUND: Brain iron is an essential as well as a toxic redox active element. Physiological levels are not uniform among the different cell types. Besides the availability of quantitative methods, the knowledge about the brain iron lags behind. Thereby, disclosing the mechanisms of brain iron homeostasis helps to understand pathological iron-accumulations in diseased and aged brains. With our study we want to contribute closing the gap by providing quantitative data on the concentration and distribution of iron in neurons and glial cells in situ. Using a nuclear microprobe and scanning proton induced X-ray emission spectrometry we performed quantitative elemental imaging on rat brain sections to analyze the iron concentrations of neurons and glial cells. RESULTS: Neurons were analyzed in the neocortex, subiculum, substantia nigra and deep cerebellar nuclei revealing an iron level between [Formula: see text] and [Formula: see text]. The iron concentration of neocortical oligodendrocytes is fivefold higher, of microglia threefold higher and of astrocytes twofold higher compared to neurons. We also analyzed the distribution of subcellular iron concentrations in the cytoplasm, nucleus and nucleolus of neurons. The cytoplasm contains on average 73 of the total iron, the nucleolus-although a hot spot for iron-due to its small volume only 6 of total iron. Additionally, the iron level in subcellular fractions were measured revealing that the microsome fraction, which usually contains holo-ferritin, has the highest iron content. We also present an estimate of the cellular ferritin concentration calculating [Formula: see text] ferritin molecules per [Formula: see text] in rat neurons. CONCLUSION: Glial cells are the most iron-rich cells in the brain. Imbalances in iron homeostasis that lead to neurodegeneration may not only be originate from neurons but also from glial cells. It is feasible to estimate the ferritin concentration based on measured iron concentrations and a reasonable assumptions on iron load in the brain

The shortest distance in random multi-type intersection graphs

Using an associated branching process as the basis of our approximation, we show that typical inter-point distances in a multi-type random intersection graph have a defective distribution, which is well described by a mixture of translated and scaled Gumbel distributions, the missing mass corresponding to the event that the vertices are not in the same component of the graph. © 2010 Wiley Periodicals, Inc