Rights and Retrenchment in the Trump Era

Our aim in this Article is to leverage the archival research, data, and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, to illuminate the prospects for retrenchment in the current political landscape. In the book, we documented how an outpouring of rights-creating legislation from Democratic Congresses in the 1960s and 1970s, much of which contained provisions designed to stimulate private enforcement, prompted the conservative legal movement within the Republican Party to devise a response. Recognizing the political infeasibility of retrenching substantive rights, the movement’s strategy was to weaken the infrastructure for enforcing them. Although largely a failure in the elected branches and only modestly successful in the domain of court rulemaking, the project flourished in the federal courts. In both the book and this Article, we focus exclusively on law that bears on opportunities and incentives for private enforcement of federal rights. Our decision to limit the project in that way was based on considerations that are both practical and theoretical. It was fortified by evidence from our archival research that the counterrevolution started in the first Reagan administration as an ideological campaign against private litigation as a tool of federal policymaking and by our empirical data showing that the effort to retrench private enforcement of federal law preceded tort reform on both the administration’s and the legislative agenda during the Reagan years

Primordial Gravitational Wave Detectability with Deep Small-sky Cosmic Microwave Background Experiments

We use the Bayesian estimation on direct T - Q - U cosmic microwave background (CMB) polarization maps to forecast errors on the tensor-to-scalar power ratio r, and hence on primordial gravitational waves, as a function of sky coverage f_sky. This map-based likelihood filters the information in the pixel-pixel space into the optimal combinations needed for r detection for cut skies, providing enhanced information over a first-step linear separation into a combination of E, B, and mixed modes, and ignoring the latter. With current computational power and for typical resolutions appropriate for r detection, the large matrix inversions required are accurate and fast. Our simulations explore two classes of experiments, with differing bolometric detector numbers, sensitivities, and observational strategies. One is motivated by a long duration balloon experiment like Spider, with pixel noise ∝ √f_sky for a specified observing period. This analysis also applies to ground-based array experiments. We find that, in the absence of systematic effects and foregrounds, an experiment with Spider-like noise concentrating on f_sky ~ 0.02-0.2 could place a 2σ_r ≈ 0.014 boundary (~95% confidence level), which rises to 0.02 with an ℓ-dependent foreground residual left over from an assumed efficient component separation. We contrast this with a Planck-like fixed instrumental noise as f_sky varies, which gives a Galaxy-masked (f_sky = 0.75) 2σ_r ≈ 0.015, rising to ≈0.05 with the foreground residuals. Using as the figure of merit the (marginalized) one-dimensional Shannon entropy of r, taken relative to the first 2003 WMAP CMB-only constraint, gives –2.7 bits from the 2012 WMAP9+ACT+SPT+LSS data, and forecasts of –6 bits from Spider (+ Planck); this compares with up to –11 bits for CMBPol, COrE, and PIXIE post-Planck satellites and –13 bits for a perfectly noiseless cosmic variance limited experiment. We thus confirm the wisdom of the current strategy for r detection of deeply probed patches covering the f_sky minimum-error trough with balloon and ground experiments

Pre-avalanche instabilities in a granular pile

We investigate numerically the transition between static equilibrium and dynamic surface flow of a 2D cohesionless granular system driven by a continuous gravity loading. This transition is characterized by intermittent local dynamic rearrangements and can be described by an order parameter defined as the density of critical contacts, e.g. contacts where the friction is fully mobilized. Analysis of the spatial correlations of critical contacts shows the occurence of ``fluidized'' clusters which exhibit a power-law divergence in size at the approach of the stability limit. The results are compatible with recent models that describe the granular system during the static/dynamic transition as a multi-phase system.Comment: 9 pages, 6 figures, submitted to Phys. Rev. Let

Stress-strain behavior and geometrical properties of packings of elongated particles

We present a numerical analysis of the effect of particle elongation on the quasistatic behavior of sheared granular media by means of the Contact Dynamics method. The particle shapes are rounded-cap rectangles characterized by their elongation. The macroscopic and microstructural properties of several packings subjected to biaxial compression are analyzed as a function of particle elongation. We find that the shear strength is an increasing linear function of elongation. Performing an additive decomposition of the stress tensor based on a harmonic approximation of the angular dependence of branch vectors, contact normals and forces, we show that the increasing mobilization of friction force and the associated anisotropy are key effects of particle elongation. These effects are correlated with partial nematic ordering of the particles which tend to be oriented perpendicular to the major principal stress direction and form side-to-side contacts. However, the force transmission is found to be mainly guided by cap-to-side contacts, which represent the largest fraction of contacts for the most elongated particles. Another interesting finding is that, in contrast to shear strength, the solid fraction first increases with particle elongation, but declines as the particles become more elongated. It is also remarkable that the coordination number does not follow this trend so that the packings of more elongated particles are looser but more strongly connected.Comment: Submited to Physical Review

The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of judicial decisions, despite the counterrevolution’s struggles in landscapes of democratic politics. This perspective also highlights normative concerns that arise when changes bearing on the fate of rights enforcement are not the result of public deliberation and democratic politics — indeed, when they may not be noticed by the public at all. In this article, we explore further the theoretical underpinnings of our intuitions concerning public awareness of the relevant judicial decisions, and, for the first time, seek to determine whether they have empirical support. To that end, we explore relationships among the Supreme Court’s turn against rights enforcement, public understanding, and public preferences by analyzing an original dataset that comprises news coverage of (1) Supreme Court opinions ruling on substantive rights, and (2) opinions adjudicating opportunities and incentives to enforce those rights, such as standing, damages, fees, and the class action. Drawing on both theory and this empirical evidence, we argue that the Court’s decisions on rights enforcement, because of their lower public visibility, are less constrained by public opinion and therefore less tethered to democratic governance. We suggest, further, that the relatively subterranean quality of law affecting private enforcement of rights may help to explain why it has become even more ideologically divisive on the Court than substantive rights themselves