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And They Would Have Gotten Away with It, If Not for Those Meddling Federales: Examining State Responses to Transnational Organized Crime and Developing a Policy Framework
Full text linkTransnational criminal organizations (TCOs) have begun expanding their enterprise into criminal gold mining in South America. This is causing widespread harm from human trafficking, pollution, and disease. These groups exploit vulnerable artisanal miners (ASMs) to provide a foothold in the gold mining industry and avoid the reach of states. This note examines the policy responses that South American countries have taken to this phenomenon and develops a policy framework for state actors moving against TCOs
Revoluntionizing Brain Research Using Portable MRI in Field Settings: Public Perspectives on the Ethical and Legal Challenges
No full textIntroduction
New, highly portable MRI (pMRI) technology promises to revolutionize brain research by facilitating field-based studies that can expand research to new settings beyond the traditional MRI suite in a medical center. At this early stage of development, understanding public knowledge and attitudes about pMRI research is crucial.
Objective In this article we present the first empirical study of the general public’s willingness to participate in pMRI research, and their perceptions of expected benefits and concerns.
Methods & Results
We conducted a nationally representative online survey (N = 2,001) administered Aug. 15-31, 2022. We found that respondents were overwhelmingly willing to participate in pMRI research, with no significant differences between five key demographic sub-groups: rural residents, older adults (65+), Hispanics, non-Hispanic Blacks, and those economically disadvantaged. Respondents saw many potential benefits (e.g., follow-up information about the study’s results) and few concerns (e.g., insufficient payment) associated with participating.
Conclusion
Such high public interest in participating confirms the importance of developing ethical guidance for pMRI research now, before that research rapidly expands. The results speak to the importance of minimizing the therapeutic misconception in pMRI research, as the survey reveals gaps in participant knowledge about the capabilities and limitations of pMRI devices to provide clinically informative scans. Our data showed that a lack of trust in scientists can reduce likelihood of participation, and thus researchers will need to engage participant communities to fully realize the potential of pMRI research to reach remote and historically underrepresented populations
Tribes and Temperament: Two Underappreciated Determinants of Market Actor Behavior, Motivations and Beliefs
No full textThis chapter, written for a volume on Hidden Fallacies in Corporate Law and Financial Regulation, argues that markets and market actors can be better understood by taking into account some neglected determinants of behavior, motivations and beliefs -- and ultimately, by embracing an expanded view of rationality.The neglected determinants are tribes, by which I mean communities with their own norms, rituals, and institutions, and temperament, which I use in its colloquial sense. Deal makers, for instance, can be said to have a community, with norms as to, among other things, ‘what’s market.” Knowing and abiding by the norms conveys information about a person’s willingness and ability to function as a member of the community. The community anoints certain experts who pass muster as experts for purposes of community judgments. Interestingly, the status as anointed expert can be sticky notwithstanding significant disconfirming evidence, as demonstrated by the continuing high market shares of the major rating agencies. Temperament figures in when a less confident investor, even a “sophisticated” institutional investor, rushes to buy “a hot new issue” because it is hot, notwithstanding ample cautionary disclosure. Temperament also figures in when a banker designs a financial instrument or sales strategy that honors the letter of the law while arguably violating its spirit. The chapter discusses temperament on two different dimensions: greater or lesser degrees of confidence in one’s own judgments, including, at the extremes, the least confident and the contrarians, and “regulatory focus,” a concept developed by psychologist and business school professor Tory Higgins, which distinguishes “prevention” focus (more vigilant, hate to lose) from “promotion” focus (less vigilant, love to win).My arguments succeed, or not, by persuasion rather than proof – it’s not clear what proof would look like in any event. Certainly, the personality types I describe are well-known, in the literature and in real life, as are, at some level of generality, the social dynamics I describe, such as herding, and the existence of market communities, broadly construed, that have norms, rituals and institutions. My burden is more to show that taking tribes and temperament into account in analyses of market behavior is feasible and desirable, and that not doing so unnecessarily sacrifices realism.Since around the mid-‘90s, there has been a push to make economics, and law and economics, more realistic. Exploring the neglect of tribes and temperament and how this could be remedied can be an effective means of doing so: rather than characterizing ways in which people are less rational than law and economics assumes them to be, law and economics can instead reconceive what rationality requires. The re-conception of rationality should, in my view, be radical as to economics’ ontology but not as to its conceptual toolbox. Underlying the standard economics worldview is a metaphorical or perhaps literal acceptance of the credo ‘survival of the fittest.’ But an alternative view, advanced by philosopher Daniel Milo, ‘survival of the good enough,’ seems far more plausible. Without the specter of extinction, many more courses of action become viable.Of course, if we try to fully capture the nuances, we will lose all possibility of a tractable theory. But we can do far better than we do now, by taking into account three things: that we live in a world of uncertainty (“unknown unknowns”), not just risk; that our cognitive capacity is limited; and that how people react to uncertainty and cognitive limitations turns on who they are and how they view themselves
Bare Analysis: Prison Visitor Strip and Body-Cavity Searches and Federal Courts\u27 Insufficient Fourth Amendment Analysis
No full textStrip and body-cavity searches are among the most egregious invasions of personal privacy that the government can impose. The Fourth Amendment, as interpreted by the Supreme Court, demands that courts thoroughly analyze these searches. Courts must consider not only the suspicion that warranted the search, but the way the search was performed. But in the prison visitor context, U.S. Courts of Appeals have not done so. Instead of evaluating whether the search in question was conducted reasonably, including reasonableness in scope, courts have considered only whether prison officials possessed reasonable suspicion. This flies in the face of Supreme Court precedent.
This Note advocates for something better. It examines three approaches to Fourth Amendment analysis utilized by U.S. Courts of Appeals in the prison-visitor context. Among these options, this Note advances the Eleventh Circuit’s approach, a totality-of-the-circumstances inquiry that captures the whole picture: the suspicion to warrant the search and the way the search was performed. By adopting this approach, courts can remain faithful to Supreme Court precedent and vindicate the constitutional rights of prison visitors
Filling the Sackett Gap: The Private Governance Option
No full textThe Supreme Court’s decision in Sackett v. EPA reversed fifty years of federal Clean Water Act wetlands protections and removed federal oversight from roughly half of the wetlands in the United States. This Article proposes a viable new conceptual model and tools to close the Sackett Gap—the gap between the wetlands protected before and after Sackett. Scholars have argued for federal measures to fill the Sackett Gap, but these actions face substantial challenges. Congress is unlikely to adopt new wetlands legislation, agencies are constrained by Sackett’s expansive language, the end of Chevron deference, and the 2024 presidential election, and lower federal courts are constrained by the emergence of the major questions doctrine. Recognizing these constraints, scholars have turned to state and local governments, but more than half of the states limit their wetlands requirements to be no more stringent than federal requirements, and many restrict the options of local governments
Lower Your Expectation Damages: BIPA Reforms Amplify Need for Federal Standards in Biometric Data Privacy
No full textI Am Become Meme, Manipulator of Markets: An Analysis of Elon Musk’s Tweets Under the Anti-Manipulation Provisions of U.S. Securities Laws
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