Tainted Precedent

We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability, and rule of law, does not treat every case it hears as one of first impression—its justices work through forests of precedent (of variable density) in reaching its decisions. And this presents a problem that Professor Killenbeck has identified in his article—what happens when a reasonable, even valuable, proposition of law is found buried deep within problematic or even odious opinions? Unlike some civil law countries, or even some states, there’s no convention in federal constitutional law that permits someone to simply cite a legal proposition—”racial classifications are subject to strict scrutiny”—completely disentangled from the factual circumstances—or persons—that give voice to the decision. And therein lies the problem. Sometimes the legal proposition from an opinion—strict scrutiny—is besmirched with some fairly obnoxious facts. Indeed, sometimes the authors, facts, reasoning, or results are so reviled, that the opinion—whatever kernels of wisdom it may contain—is considered anti-canonical. What to do with this tainted precedent? This short reflection on Professor Killenbeck’s article offers some thoughts on the topic

Second Amendment Equilibria

Equilibrium-adjustment theory, first articulated by Professor Orin Kerr for Fourth Amendment cases, holds promise for rationalizing Second Amendment doctrine going forward. Like the Fourth Amendment, the Second Amendment suggests an initial equilibrium—or actually, multiple equilibria—between government power to possess, use, and control the implements of violence and private power to do the same. And, like Fourth Amendment doctrine, Second Amendment doctrine must contend with both technological and societal change. These changes—e.g., more deadly and accurate weapons, more public acceptance of concealed carry—can upset whatever initial balance of gun rights and regulation there may have been in the initial state. Although this Essay recognizes factors that make Second Amendment equilibrium-adjustment distinctive and challenging, the theory may nonetheless allow courts and scholars to get some purchase on the problem of change in Second Amendment adjudication and provide a vocabulary to explain the objectives of the emerging doctrine for the right to keep and bear arms

Fungi in the future: interannual variation and effects of atmospheric change on arbuscular mycorrhizal fungal communities

Understanding the natural dynamics of arbuscular mycorrhizal (AM) fungi and their response to global environmental change is essential for the prediction of future plant growth and ecosystem functions. We investigated the long-term temporal dynamics and effect of elevated atmospheric carbon dioxide (CO2) and ozone (O3) concentrations on AM fungal communities. Molecular methods were used to characterize the AM fungal communities of soybean (Glycine max) grown under elevated and ambient atmospheric concentrations of both CO2 and O3 within a free air concentration enrichment experiment in three growing seasons over 5 yr. Elevated CO2 altered the community composition of AM fungi, increasing the ratio of Glomeraceae to Gigasporaceae. By contrast, no effect of elevated O3 on AM fungal communities was detected. However, the greatest compositional differences detected were between years, suggesting that, at least in the short term, large-scale interannual temporal dynamics are stronger mediators than atmospheric CO2 concentrations of AM fungal communities. We conclude that, although atmospheric change may significantly alter AM fungal communities, this effect may be masked by the influences of natural changes and successional patterns through time. We suggest that changes in carbon availability are important determinants of the community dynamics of AM fungi

Aligning laboratory and field compaction practices for asphalt - the influence of compaction temperature on mechanical properties

The approach used to identify a compaction temperature in the laboratory, based on binder viscosity, provides a single compaction temperature whereas, on-site, a roller operates within a temperature window. The effect on the density and mechanical properties of rolling during a temperature window remains unclear. Consequently, asphalt concrete binder mixtures were compacted in different temperature windows in the laboratory using a Roller Sector Compactor, and the observed phenomena were then related to field study observations. The results show that while similar densities can be achieved in a broad range of temperature windows, other mechanical properties such as fracture energy may decline up to 30% if compacted outside the optimum temperature window. These results indicate that a compaction temperature window should form part of mix design and quality control. The paper proposes specifying a compaction window based on temperatures and the resulting mechanical properties rather than a single compaction temperature

A QCD motivated model for soft interactions at high energies

In this paper we develop an approach to soft scattering processes at high energies,which is based on two mechanisms: Good-Walker mechanism for low mass diffractionand multi-Pomeron interactions for high mass diffraction. The pricipal idea, that allows us to specify the theory for Pomeron interactions, is that the so called soft processes occur at rather short distances (r^2 \propto 1 /^2 \propto \alpha'_\pom \approx 0.01 GeV^{-2}), where perturbative QCD is valid. The value of the Pomeron slope \alpha'_\pom was obtained from the fit to experimental data. Using this theoretical approach we suggest a model that fits all soft data in the ISR-Tevatron energy range, the total, elastic, single and double diffractive cross sections, including $t$ dependence of the differential elastic cross section, and the mass dependence of single diffraction. In this model we calculate the survival probability of diffractive Higgs production, and obtained a value for this observable, which is smaller than 1% at the LHC energy range.Comment: 33pp,20 figures in eps file

Influence of temperature gradients on tunnel junction thermometry below 1 K: cooling and electron-phonon coupling

We have studied thermal gradients in thin Cu and AlMn wires, both experimentally and theoretically. In the experiments, the wires were Joule heated non-uniformly at sub-Kelvin temperatures, and the resulting temperature gradients were measured using normal metal-insulator-superconducting tunnel junctions. The data clearly shows that even in reasonably well conducting thin wires with a short ($\sim 10 \mu$m) non-heated portion, significant temperature differences can form. In most cases, the measurements agree well with a model which includes electron-phonon interaction and electronic thermal conductivity by the Wiedemann-Franz law.Comment: J. Low Temp. Phys. in pres