Do Endowments Predict the Location of Production? Evidence from National and International Data

Examining the relationship between factor endowments and production patterns using international and Japanese regional data, we provide the first empirical confirmation of Ethier's correlation approach to the Rybczynski theorem. Moreover, we find evidence of substantial production indeterminacy. Prediction errors are six to thirty times larger for goods traded relatively freely. A compelling explanation of this phenomenon is the existence of more goods than factors in the presence of trade costs. This result implies that regressions of trade or output on endowments have weak theoretical foundations. Furthermore, since errors are largest in data sets where trade costs are small, we explain why the common methodology of imputing trade barriers from regression residuals often leads to backwards results.

Metabolic network percolation quantifies biosynthetic capabilities across the human oral microbiome

The biosynthetic capabilities of microbes underlie their growth and interactions, playing a prominent role in microbial community structure. For large, diverse microbial communities, prediction of these capabilities is limited by uncertainty about metabolic functions and environmental conditions. To address this challenge, we propose a probabilistic method, inspired by percolation theory, to computationally quantify how robustly a genome-derived metabolic network produces a given set of metabolites under an ensemble of variable environments. We used this method to compile an atlas of predicted biosynthetic capabilities for 97 metabolites across 456 human oral microbes. This atlas captures taxonomically-related trends in biomass composition, and makes it possible to estimate inter-microbial metabolic distances that correlate with microbial co-occurrences. We also found a distinct cluster of fastidious/uncultivated taxa, including several Saccharibacteria (TM7) species, characterized by their abundant metabolic deficiencies. By embracing uncertainty, our approach can be broadly applied to understanding metabolic interactions in complex microbial ecosystems.T32GM008764 - NIGMS NIH HHS; T32 GM008764 - NIGMS NIH HHS; R01 DE024468 - NIDCR NIH HHS; R01 GM121950 - NIGMS NIH HHS; DE-SC0012627 - Biological and Environmental Research; RGP0020/2016 - Human Frontier Science Program; NSFOCE-BSF 1635070 - National Science Foundation; HR0011-15-C-0091 - Defense Advanced Research Projects Agency; R37DE016937 - NIDCR NIH HHS; R37 DE016937 - NIDCR NIH HHS; R01GM121950 - NIGMS NIH HHS; R01DE024468 - NIDCR NIH HHS; 1457695 - National Science FoundationPublished versio

Bolling, Equal Protection, Due Process, and Lochnerphobia

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment\u27s Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.\u27s public schools under the Fifth Amendment\u27s Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court\u27s most controversial decisions. The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices\u27 political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court stands accused of inventing the idea that due process includes a guarantee of equal protection equivalent to that of the Fourteenth Amendment\u27s Equal Protection Clause. A careful analysis of Bolling v. Sharpe, however, reveals some surprises. First, the almost universal portrayal of Bolling as an opinion relying on an equal protection component of the Fifth Amendment\u27s Due Process Clause is incorrect. In fact, Bolling was a substantive due process opinion with roots in Lochner era cases such as Buchanan v. Warley, Meyer v. Nebraska, and Pierce v. Society of Sisters. The Court, however, chose to rely explicitly only on Buchanan because the other cases were too closely associated with Lochner. Another surprise is that the proposition that Bolling has come to stand for, that the Fifth Amendment prohibits discrimination by the Federal Government, was not simply made up by the Supreme Court, but has a basis in longstanding precedent. Finally, Bolling is an important example of the distorting effect of Lochnerphobia on Supreme Court jurisprudence. Bolling would have been a much stronger opinion had it been willing to explicitly rely on Lochner era precedents such as Meyer, and to employ a more explicitly Lochnerian view of the Due Process Clause

The Right of Expressive Association and Private Universities\u27 Racial Preferences and Speech Codes

The reaction to Boy Scouts of America v. Dale has divided along ideological lines. Conservatives generally support Dale because in their eyes it prevents the government from taking sides in the culture wars. Progressives, including many liberals who otherwise have strong civil libertarian instincts, oppose Dale because it inhibits the enforcement of antidiscrimination laws in some contexts. The underlying issue in Dale was whether a private, nonprofit expressive association has a First Amendment right to discriminate to prevent dilution of its message. Despite the ideological rancor over Dale, this right does not favor groups with any particular perspective, but protects any group when its right to expressive association is threatened by an antidiscrimination law. Indeed, despite general liberal opposition to Dale, the opinion may protect some of the left\u27s favorite causes. Dale recognizes that private, nonprofit expressive associations have a First Amendment right to discriminate when necessary to prevent dilution of their message. For example, to the chagrin of civil rights activists, both white and black racist and racialist groups will have a right to exclude members of other races from membership and events sponsored by the groups. However, Professor Bernstein asserts that the most significant nonprofit organizations with an ideological commitment to discrimination are not racist organizations, but elite private universities that engage in racial preferences in favor of minority applicants. Private universities faced with reverse discrimination lawsuits may find constitutional respite in the right to expressive association if they are willing to admit that they engage in racial preferences. More generally, Dale stands for a robust right of expressive association. One way organizations protect their ability to express a particular message is by banning their opponents from speaking in their organizations. California\u27s Leonard Law makes university speech codes illegal, and several state constitutions arguably do the same. Professor Bernstein concludes that private university speech codes--a cause typically favored by elements on the political left-are protected against hostile regulations by the expressive association right recognized in Dale

Expressive Association after Dale

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of expressive association against the competing claims of an antidiscrimination law. The right to expressive association had languished in obscurity for more than two decades after the Supreme Court articulated it in the late 1950s and early 1960s in the course of protecting civil rights activists from racist Southern governments. Controversy over constitutional protection of expressive association arose in the 1980s, when private associations claimed that it protected their right to discriminate when necessary to pursue the associations\u27 goals. The Supreme Court seemed aghast that the expressive association right was being used as a tool of those who would seek to use its protection of their associative status in order to discriminate. In a series of opinions in the mid to late 1980s, the Court both narrowly defined the circumstances in which expressive association rights are impinged, and suggested that antidiscrimination laws are always compelling government interests sufficient to override these rights. The right of expressive association had been significantly weakened. Dale, however, dramatically revived the right of expressive association. The Court found that the Boy Scouts had an expressive association right to exclude gay scoutmasters even though the Scouts\u27 anti-homosexual activity policy was neither well-publicized nor especially central to its mission. Moreover, the Court rejected New Jersey\u27s claim that the law was justified by the state\u27s compelling interest in eradicating discrimination against homosexuals. The essay examines the right of expressive association and the consequences of its reinvigoration by the Supreme Court in Dale. Part I recounts the ups and downs of the right from its inception in civil rights cases, to its low ebb in the 1980s, to its reinvigoration in Dale. Part II discusses some of the scholarly commentary on Dale and concludes that the right to expressive association after Dale will continue to be a broad one, with some limitations. Part III discusses some of the post-Dale decisions that support the interpretation of Dale as expounding a broad-based expressive association right fully applicable to a variety of situations. Finally, Part IV looks at some of the untapped potential uses of the right. In particular, Dale will often shield religious associations from intrusive antidiscrimination laws

Antidiscrimination Laws and the Administrative State: A Skeptic\u27s Look at Administrative Constitutionalism

This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression. To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ Obama-era attempts to use Title IX to strip university students accused of sexual assault of due process protection and to impose broad speech codes on universities, the U.S. Department of Housing and Urban Development’s (“HUD”) efforts in the 1990s to penalize neighborhood activists for lobbying against projects HUD deemed protected by the Fair Housing Act, local human rights commissions’ threats to punish individuals for otherwise protected speech deemed to cause a hostile environment, and state and local agencies’ willingness to prosecute individuals who discriminate in their choice of roommate. Part II of this Article discusses the reasons why agencies that enforce antidiscrimination laws tend to be oblivious or hostile to constitutionally protected liberties in general and freedom of speech in particular. Part II begins with a discussion of institutional factors common to administrative agencies that tend to lead agencies to expand their power and neglect countervailing constitutional considerations. First, agencies increase their budget and authority by expanding, not contracting, the scope of the laws they enforce. Second, “purposivism,” or the notion that ambiguities in statutes should be resolved to further the laws’ underlying purposes, encourages agencies to resolve statutory interpretation disputes in favor of broad interpretations of agency authority. Third, antidiscrimination agencies attract employees ideologically committed to their agencies’ missions. Fourth, and concomitantly, agency staff (unlike generalist courts) generally do not see enforcing constitutional limitations on government power, or protecting freedom of speech specifically, as their job. Part II concludes with a discussion of political and ideological factors specific to agencies charged with enforcing antidiscrimination laws that make them especially prone to neglect constitutional restraints on their authority. Part III of this Article suggests solutions that may at least mitigate administrative neglect of civil liberties in the context of antidiscrimination law. Most of these solutions involve broad reforms that would have ramifications well beyond mitigating the problem addressed in this Article. A more limited and therefore practical reform would be for agencies that enforce antidiscrimination legislation to establish an internal watchdog office charged with advocating within the agencies for compliance with the First Amendment and other constitutional constraints

Antidiscrimination Laws and the First Amendment

Part I of this Article discusses the development of Supreme Court doctrine regarding First Amendment challenges to the enforcement of antidiscrimination laws. Part II discusses attempted justifications by courts and academics for applying the toothless compelling interest test in conflicts between the First Amendment and antidiscrimination laws. Rationales have ranged from Congress’ purported intent to eradicate discrimination by passing Title VII of the 1964 Civil Rights Act to the anti-caste attributes of the Reconstructions Amendments. All of these arguments fail. Also examined is the threat reliance on the compelling interest test posed to the rights of speech, expressive association, and the free exercise of religion. Boy Scouts of America v. Dale, discussed in detail in Part III, reversed this trend. The Court affirmed what should be obvious under our constitutional system: that free speech and associated rights protected by the First Amendment trump statutory antidiscrimination provisions. As Part IV of this Article explains, Dale’s holding signals a new willingness by the Court to take the First Amendment seriously when antidiscrimination laws are at stake. However, Dale applies directly only to non-profit, primarily expressive associations. Religious associations will especially benefit from Dale. Dale will ensure that their ability to convey their values will not be undermined by religious dissenters who try to force themselves on religious associations via antidiscrimination laws. Dale should also end the worrisome spectacle of courts and government agencies neglecting freedom of speech in deference to antidiscrimination laws

Learning the Wrong Lessons from An American Tragedy : A Critique of the Berger-Twerski Informed Choice Proposal

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears that a pharmaceutical manufacturer could be held liable for failure to provide informed choice: (a) even when there was never any sound scientific evidence suggesting that the product caused the harm at issue, and there was an unbroken consensus among leading experts in the field that the product did not cause such harm; (b) when the product prevented serious harm to a significant number of patients, and prevented substantial discomfort to a much greater number, even when there were no available alternative products; (c) when a plaintiff claims that she would not have taken the product had she been informed of an incredibly remote and completely unproven risk; and (d) when the defendant is unable to prove a negative - that the product in question definitely did not cause the claimed injury. No rational legal system would allow such a tort. Putting the Bendectin example aside, the informed choice proposal has the following additional weaknesses: (1) it invites reliance on unreliable junk science testimony; (2) it ignores the fact that juries are not competent to resolve subtle risk assessment issues; (3) it reflects an unwarranted belief in the ability of juries to both follow limiting instructions and ignore their emotions; (4) it ignores the problems inherent to multiple trials---even if defendants were to win most informed choice cases, safe products could still be driven off the market by a minority of contrary verdicts; (5) it ignores the inevitable costs to medical innovation as pharmaceutical companies scale back on researching product categories that would be particularly prone to litigation; (6) to preempt litigation, pharmaceutical companies would overwarn, rendering more significant warnings less useful; and (7) FDA labeling requirements would arguably preempt the proposed cause of action

Learning the Wrong Lessons from An American Tragedy : A Critique of the Berger-Twerski Informed Choice Proposal

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new informed choice cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize an informed choice cause of action that would allow plaintiffs claiming injury from pharmaceutical products to recover damages for deprivation of informed choice when (1) the causal relationship between the toxic agent and plaintiff\u27s harm is unresolved at the time of litigation and will likely remain unresolved; (2) the drug is not therapeutic but rather its purpose is to avoid discomfort or to improve lifestyle; (3) it is almost certain that a patient made aware of the risk that is alleged to be associated with consumption of the drug would have refused to take it; and (4) defendant drug company was aware of the potential risk or should have undertaken reasonable testing to discover the risk and failed to provide the requisite information to the physician or patient. These guidelines, however, are rather vague. Whether they are meant to apply broadly or narrowly means the difference between a cause of action that would open a Pandora\u27s Box of litigation and one that would be available only in limited, perhaps even extraordinary, circumstances. Apparently, Berger and Twerski intend the scope of the informed choice action to be broad indeed. So broad, in fact, that if adopted it could lead to an unprecedented wave of litigation against pharmaceutical manufacturers, including lawsuits involving products that are completely safe and effective