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There is increasing concern that most current published research findings are false. The probability that a research claim is true may depend on study power and bias, the number of other studies on the same question, and, importantly, the ratio of true to no relationships among the relationships probed in each scientific field. In this framework, a research finding is less likely to be true when the studies conducted in a field are smaller; when effect sizes are smaller; when there is a greater number and lesser preselection of tested relationships; where there is greater flexibility in designs, definitions, outcomes, and analytical modes; when there is greater financial and other interest and prejudice; and when more teams are involved in a scientific field in chase of statistical significance. Simulations show that for most study designs and settings, it is more likely for a research claim to be false than true. Moreover, for many current scientific fields, claimed research findings may often be simply accurate measures of the prevailing bias. In this essay, I discuss the implications of these problems for the conduct and interpretation of research.


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Over time, defendants, sentenced to mandatory terms of imprisonment for drug-related offenses, have challenged Congress's legislative authority to authorize them and the government's constitutional authority to enforcement. The challenges have met with scant success. Generally, courts have concluded that the provisions fall within congressional authority under the Commerce, Necessary and Proper, Treaty, and Territorial Clauses of the Constitution. By and large, courts have also found no impediment to imposition of mandatory minimum sentences under the Due Process, Equal Protection, or Cruel and Unusual Punishment Clauses, or the separation-of-powers doctrine.


Possession with Intent to Distribute or Dispense: The government may satisfy the possession element with evidence of either actual or constructive possession.50 "Actual possession is the knowing, direct, and physical control over a thing."51 "Constructive possession exists when a person knowingly has the power and intention at a given time to exercise dominion and control over an object either directly or through others."52


Section 924(c) has two alternative firearm-nexus elements: (a) possession in furtherance and (b) carrying or use.127 The possession-in-furtherance version of the offense requires that the defendant "(1) committed a drug trafficking crime; (2) knowingly possessed a firearm; and (3) possessed the firearm in furtherance of the drug trafficking crime [or other predicate offense]."128 The "possession" component may take the form of either actual or constructive possession. "Constructive possession exists when a person does not have possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others."129


The federal government is a creature of the Constitution; it enjoys only such powers as can be traced to the Constitution.251 Among the powers which the Constitution bestows upon Congress are the powers to define and punish felonies committed upon the high seas, to exercise exclusive legislative authority over certain federal territories and facilities, to make rules governing the Armed Forces, to regulate interstate and foreign commerce, and to enact legislation necessary and proper for the execution of those and Congress's other constitutionally granted powers.252 It also grants Congress authority to enact legislation necessary and proper to the execution of those powers which it vests in any officer or department of the federal government.253


Many of the federal laws with mandatory minimum sentencing requirements were enacted pursuant to Congress's legislative authority over crimes occurring on the high seas or within federal enclaves,254 or to its power to regulate commerce.255 When a statute falls for want of legislative authority, the penalties it would impose fall with it. This has yet to occur in the area of mandatory minimum sentences relating to controlled substances.


"The Congress shall have Power ... To regulate Commerce with Foreign Nations, and among the several States, and with Indian Tribes."256 This clause vests Congress with authority to regulate three broad categories of interstate commerce. In the words of United States v. Lopez, "[f]irst, Congress may regulate the use of the channels of interstate commerce.... Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities.... Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce."257


Applying these standards, the Lopez Court concluded that the Commerce Clause did not authorize Congress to enact a particular statute which purported to outlaw possession of a firearm on school property. Because the statute addressed neither the channels nor instrumentalities of interstate commerce, its survival turned upon whether it came within Congress's power to regulate activities that have a substantial impact on interstate commerce.258 Here, the statute was found wanting. "[B]y its terms" it had "nothing to do with commerce or any sort of economic enterprise."259 It "contain[ed] no jurisdictional element which would ensure, through case-by-case inquiry, that the firearm possession in question affect[ed] interstate commerce."260 Its impact on commerce was so remote that to credit it would envision a virtually boundless power and one reserved to the states, the Court explained.261


A few years later, the Court in United States v. Morrison262 reiterated "that Congress may [not] regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is truly national and what is truly local."263 Yet purely intrastate activities may have a sufficient impact on interstate commerce to bring them within the reach of Congress's Commerce Clause power. So it is in the case of the Controlled Substances Act. The Court concluded in Gonzales v. Raich that:


The Constitution grants the President authority to negotiate treaties and the Senate the authority to approve them in the exercise of its advice and consent prerogatives.265 Almost a century ago, the Court observed that "[i]f the treaty is valid there can be no dispute about the validity of the statute under Article I, 8, as a necessary and proper means to execute the powers of the Government."266 The Controlled Substances Act might be considered implementation of various treaties of the United States relating to controlled substances.267 In fact, the Controlled Substances Act begins with the congressional finding and declaration that "[t]he United States is a party to the Single Convention on Narcotic Drugs, 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances."268 Congress was even more explicit in the Psychotropic Substances Act of 1978 when it declared, "[i]n implementing the Convention on Psychotropic Substances, the Congress intends that, consistent with the obligations of the United States under the Convention, control of psychotropic substances in the United States should be accomplished within the framework of the procedures and criteria for classification of substances provided in the Comprehensive Drug Abuse Prevention and Control Act of 1970."269


The Constitution empowers Congress "to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations."270 The courts have held that the Maritime Drug Law Enforcement Act (MDLEA), which includes mandatory minimum sentencing requirements, constitutes a valid exercise of Congress's authority under the High Seas Felonies Clause.271


"The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."272 It has never been thought that the Necessary and Proper Clause empowers only those laws that are absolutely necessary. Instead, "[l]et the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist[ent] with the letter and spirit of the constitution, are constitutional."273 Thus, the Necessary and Proper Clause makes possible those statutes that are rationally related to the implementation of another constitutional power.274 350c69d7ab


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