Rethinking Anti-Aggregation Doctrine

The article focuses on a new strategy to anti-aggregation agreements, contractual provisions which prohibit parties to participate in class action. It discusses the U.S. Supreme Court\u27s decision in AT&T Mobility LLC v. Concepcion, suggesting that such agreements should be based on actual regulatory compliance. It mentions that anti-aggregation agreements are applied by default, but in case there will be an irreversible harm occurring to party, such agreements will not be applicable

Administrative Sabotage

Government can sabotage itself. From the president’s choice of agency heads to agency budgets, regulations, and litigating positions, presidents and their appointees have undermined the very programs they administer. But why would an agency try to put itself out of business? And how can agencies that are subject to an array of political and legal checks sabotage statutory programs? This Article offers an account of the “what, why, and how” of administrative sabotage that answers those questions. It contends that sabotage reflects a distinct mode of agency action that is more permanent, more destructive, and more democratically illegitimate than more-studied forms of maladministration. In contrast to an agency that shirks its statutory duties or drifts away from Congress’s policy goals, one engaged in sabotage aims deliberately to kill or nullify a program it administers. Agencies sabotage because presidents ask them to. Facing pressure to dismantle statutory programs in an environment where securing legislation from Congress is difficult and politically costly, presidents pursue retrenchment through the administrative state. Building on this positive theory of administrative sabotage, this Article considers legal responses. The best response, this Article contends, is not reforms to the cross-cutting body of administrative law that structures most agency action. Rather, the risk of sabotage is better managed through changes to how statutory programs are designed. Congress’s choices about agency leadership, the concentration or dispersal of authority to implement statutory programs, the breadth of statutory delegations, and other matters influence the likelihood that sabotage will succeed or fail. When lawmakers create or modify federal programs, they should design them to be less vulnerable to sabotage by the very agencies that administer them

Federal Rules of Private Enforcement

The Federal Rules of Civil Procedure were made for a different world. Fast approaching their hundredth anniversary, the Rules reflect the state of litigation in the first few decades of the twentieth century and the then-prevailing distinction between substantive rights and the procedure used to adjudicate them. The role of procedure, the rulemakers believed, was to resolve private disputes fairly and efficiently. Today, a substantial portion of litigation in federal court is brought under regulatory statutes that deploy private lawsuits to enforce public regulatory policy. This type of litigation, which scholars refer to as private enforcement, is the engine for statutory regimes governing the workplace, the consumer economy, securities markets, the environment, civil rights, and more. Yet while the nature of federal court litigation has changed dramatically in the decades since the Rules were first promulgated, the Rules and the institutions through which they are made never adapted. The Rules thus perform a role--providing the infrastructure for a litigation landscape dominated by private enforcement--far different from the one they initially performed.This Article unearths the history of how the Federal Rules of Civil Procedure became federal rules of private enforcement but were never adapted for their new task. It then explores how that transformation challenges foundational assumptions of federal civil procedure. In delegating authority to prescribe general rules of practice and procedure, Congress does not only charge the judiciary with making rules to resolve disputes, but also with making rules that enable privately enforced regulatory regimes to function. The Rules and the court rulemaking process, however, continue to be driven by assumptions inherited from the founding era of federal court rulemaking. We trace how the disconnect between the Rules\u27 original design and their modern function explains many of the most significant pathologies in federal court rulemaking today. We further argue that acknowledging this disconnect--and rethinking the Rules to support their private enforcement function--points the way to a reinvigorated rulemaking system for the modern litigation state. By recasting the relationship between the Rules and private enforcement, our account supplies fresh rationales for court rulemaking, sheds new light on the functions today\u27s rulemakers perform, and justifies reforms that would align the rulemaking process and the Rules themselves with the laws they enforce. This Article thus seeks to update the Federal Rules of Civil Procedure in light of the function they have taken on in the near-century since they came into effect--and, in doing so, seeks to make them a modern, enduring achievement

Blue State Exodus?

American businesses and families are leaving Blue states in record numbers for destinations like Texas, Florida, and Georgia. This migration of people, businesses, and tax dollars has prompted claims of a “Blue state exodus” prompted by “leftist politicians imposing leftist ideology.” As expressed by Utah’s Senator Mike Lee, the “exodus” proves that “the Left’s policies don’t work.” But does the movement of taxpayers from Blue to Red states really signal a rejection of progressive policies? This Essay argues that, before accepting that interpretation, we should consider another possibility. Perhaps Blue states aren’t overly progressive, but insufficiently so. Paralyzed by political dynamics that keep them from offering affordable housing and addressing police violence, and prevented by the Supreme Court from taking aggressive action on gun violence and public health, Blue states are losing taxpayers and unable to attract Red state refugees seeking to escape punishing anti-Black, anti-choice, and anti-LGBTQ+ policies, in large measure because they’re unable to offer a sufficiently meaningful alternative to life in Red America to justify their higher cost of living. This account of the Blue state exodus has very different implications from Lee’s. It suggests that, rather than tacking to the center, Blue states should redouble efforts to prioritize affordability, stop subsidizing Red states, and position themselves to insist on a new national settlement—one in which civil rights, economic justice, and sound public administration are respected across the nation

Constitutional Evasion and the Confrontation Puzzle

One of the most notable developments in contemporary constitutional law is the breakdown of jurisprudence interpreting the Sixth Amendment’s Confrontation Clause following the U.S. Supreme Court’s 2004 decision in Crawford v. Washington. There, the Court promised doctrine that faithfully applied the Clause’s original meaning, was simple to administer, and protected criminal defendants against convictions secured through suspect evidence. Post-Crawford case law has not delivered on these promises. This Article argues that Crawford’s failure reflects an unsuccessful attempt to regulate evasion of the Confrontation Clause. Though justified by the Court on originalist grounds, the rule of Crawford, holding that “testimonial” evidence triggers a right to confront the responsible “witness,” is best understood as an attempt to regulate governmental evasion of the basic Sixth Amendment right to confront witnesses who give live testimony in legal proceedings. The need for doctrine that performs this function results from the transformation in evidence between the framing and present day. The Crawford Court, however, did not acknowledge the need to regulate evasion of the basic confrontation right, nor did it grapple with important policy questions a legal policymaker regulating evasion of the law must address. This account: (1) suggests a reorientation of confrontation doctrine that would permit the Court to overcome the uncertainty that plagues post-Crawford jurisprudence; (2) suggests a decision tree for courts considering whether and how to regulate seemingly evasive activities; and (3) contributes new data to the long-running debate between “pragmatist” and “doctrinalist” scholars over the utility of identifying a separate category of doctrine that implements constitutional norms as opposed to elaborating the Constitution’s textual and historical meaning

Application of unsteady aeroelastic analysis techniques on the national aerospace plane

A presentation provided at the Fourth National Aerospace Plane Technology Symposium held in Monterey, California, in February 1988 is discussed. The objective is to provide current results of ongoing investigations to develop a methodology for predicting the aerothermoelastic characteristics of NASP-type (hypersonic) flight vehicles. Several existing subsonic and supersonic unsteady aerodynamic codes applicable to the hypersonic class of flight vehicles that are generally available to the aerospace industry are described. These codes were evaluated by comparing calculated results with measured wind-tunnel aeroelastic data. The agreement was quite good in the subsonic speed range but showed mixed agreement in the supersonic range. In addition, a future endeavor to extend the aeroelastic analysis capability to hypersonic speeds is outlined. An investigation to identify the critical parameters affecting the aeroelastic characteristics of a hypersonic vehicle, to define and understand the various flutter mechanisms, and to develop trends for the important parameters using a simplified finite element model of the vehicle is summarized. This study showed the value of performing inexpensive and timely aeroelastic wind-tunnel tests to expand the experimental data base required for code validation using simple to complex models that are representative of the NASP configurations and root boundary conditions are discussed

A Comparison of Culture- and PCR-Based Methods to Detect Six Major Non-O157 Serogroups of Shiga Toxin-Producing Escherichia coli in Cattle Feces

Citation: Noll, L. W., Shridhar, P. B., Dewsbury, D. M., Shi, X. R., Cernicchiaro, N., Renter, D. G., & Nagaraja, T. G. (2015). A Comparison of Culture- and PCR-Based Methods to Detect Six Major Non-O157 Serogroups of Shiga Toxin-Producing Escherichia coli in Cattle Feces. Plos One, 10(8), 12. doi:10.1371/journal.pone.0135446Culture-based methods to detect the six major non-O157 (O26, O45, O103, O111, O121 and O145) Shiga toxin-producing E. coli (STEC) are not well established. Our objectives of this study were to develop a culture-based method to detect the six non-O157 serogroups in cattle feces and compare the detection with a PCR method. Fecal samples (n = 576) were collected in a feedlot from 24 pens during a 12-week period and enriched in E. coli broth at 40 degrees C for 6 h. Enriched samples were subjected to immunomagnetic separation, spread-plated onto a selective chromogenic medium, and initially pooled colonies, and subsequently, single colonies were tested by a multiplex PCR targeting six serogroups and four virulence genes, stx1, stx2, eae, and ehxA (culture method). Fecal suspensions, before and after enrichment, were also tested by a multiplex PCR targeting six serogroups and four virulence genes (PCR method). There was no difference in the proportions of fecal samples that tested positive (74.3 vs. 77.4%) for one or more of the six serogroups by either culture or the PCR method. However, each method detected one or more of the six serogroups in samples that were negative by the other method. Both culture method and PCR indicated that O26, O45, and O103 were the dominant serogroups. Higher proportions (P < 0.05) of fecal samples were positive for O26 (44.4 vs. 22.7%) and O121 (22.9 vs. 2.3%) serogroups by PCR than by the culture method. None of the fecal samples contained more than four serogroups. Only a small proportion of the six serogroups (23/640; 3.6%) isolated carried Shiga toxin genes. The culture method and the PCR method detected all six serogroups in samples negative by the other method, highlighting the importance of subjecting fecal samples to both methods for accurate detection of the six non-O157 STEC in cattle feces