Digital Commons Network^™

Historical American Perspectives On International Law, Harlan G. Cohen

Scholarly Works

The United States’ relationship with international law, although oft-discussed, is poorly understood. Depictions of the relationship are often little more than caricatures. Depending on when the caricature is drawn, the United States may be a longstanding “champion” of international law, an “exceptionalist” defender of American values, or a hypocritical opponent of international governance. Many traditional histories do little to complicate these views. Focused primarily on foreign affairs law and constitutional war powers, these histories highlight moments of tension between the United States and international law. Missing from these histories of American diplomacy and warcraft, foreign affairs caselaw and doctrinal development …

Sustainable Commerce: Public Health Law And Environmental Law Provide Tools For Industry And Government To Construct Globally-Competitive Green Economies, T. Rick Irvin, Peter A. Appel

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This Article examines the legal mechanics underlying the sustainable commerce private/public governance paradigm whereby industry and government create sustainable commerce initiatives which coordinately grow local/state economies and employment, enhance local/state competitiveness in the global marketplace, and at the same time substantially improve local/state public health and environmental infrastructure. This includes an examination of the legal foundation for state/local sustainable commerce initiatives drawn from existing public health and environmental law and a review of two specific local/state sustainable commerce initiatives which have followed this paradigm with impressive results over a two-to-four year timeframe. Part II of this Article examines how public …

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

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The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …

Regulation And Reform Of The Mortgage Market And The Nature Of Mortgage Loans: Lessons From Fannie Mae And Freddie Mac, Thomas E. Plank

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No abstract provided.

Concentrated Media Is Something We Can't Ignore: A Response To Speaker Pelosi, Maurice Stucke

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This essay briefly responds to a request that the U.S. Department of Justice should give San Francisco Bay Area newspapers more leeway under the federal antitrust laws to merge or consolidate their business operations. The essay agrees with House Speaker Nancy Pelosi's concerns that a strong, free, and independent press is vital to our democracy and in informing our citizens, especially news organizations that devote resources to gathering news. As the essay explains, the antidote is not to weaken the antitrust laws to enable large media conglomerates to become even bigger. Instead, the health of the marketplace of ideas depends …

Common Roots, Divergent Evolution: Insider Trading Doctrine In The United States, Japan, And Germany, Joan Macleod Heminway

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Many nations ostensibly use (or at least credit) U.S. insider trading doctrine under Rule 10b-5 as the model for their own regulation of insider trading. This phenomenon has occurred in part because of historical and political factors and in part because the United States is seen as (and has wielded regulatory power as) a market leader — an early adopter of regulation with both (a) a well established supervisory and policy-oriented regulatory and enforcement agency and (b) a well developed, disaggregated, public securities market. As a result, the laws of many countries now prohibit identified classes of persons from trading …

Oral Argument And Impression Management: Harnessing The Power Of Nonverbal Persuasion For A Judicial Audience, Michael J. Higdon

Scholarly Works

In essence, my article utilizes social science research on the topic of nonverbal communication in order to advance our understanding of what makes for effective oral advocacy. Currently, there are no articles that 1) give a comprehensive summary of the relevant social science research within the area of nonverbal persuasion and 2) apply that research specifically to the area of oral argument. My article attempts to fill both of these needs.

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person's facial …

Soft Law As Delegation, Timothy L. Meyer

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This article examines one of the most important trends in international legal governance since the end of the Second World War: the rise of "soft law," or legally non-binding instruments. Scholars studying the design of international agreements have long puzzled over why states use soft law. The decision to make an agreement or obligation legally binding is within the control of the states negotiating the content of the legal obligations. Basic contract theory predicts that parties to a contract would want their agreement to be as credible as possible, to ensure optimal incentives to perform. It is therefore odd that …

Last Best Chance For The Great Writ: Equitable Tolling And Federal Habeas Corpus, Anne R. Traum

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This Article examines an important unsettled question in federal habeas law: whether equitable tolling is available under the statute of limitations applicable to federal habeas petitions filed by state prisoners. The answer to this question will determine access to federal judicial review of thousands of prisoners’ claims that their convictions resulted from violations of their federal constitutional rights in state courts. In twelve cases reviewing the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Supreme Court has curtailed the availability of statutory tolling of the limitations period. Equitable tolling of the statute of …

Health Care Reform: Beyond Ideology, David Orentlicher

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No abstract provided.

Justifying Religious Freedom: The Western Tradition, E. Gregory Wallace

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No abstract provided.

Socrates, Syllogisms, And Sadistic Transactions: Challenges To Mastering U.C.C. Article 9 Through Deductive Reasoning, Timothy R. Zinnecker

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No abstract provided.

From “Preferred Position” To “Poor Relation:” History, Wilkie V. Robbins, And The Status Of Property Rights Under The Takings Clause, Michael B. Kent Jr.

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This article discusses the status of constitutional property rights in light of the Supreme Court’s 2007 decision in Wilkie v. Robbins. In Wilkie, the Court rejected a property owner’s claim that he had been retaliated against by federal officials for exercising his right to resist an uncompensated taking of his property, notwithstanding its prior precedents recognizing similar claims in the context of other constitutional rights. This article suggests that Wilkie reveals an attitude among the Justices that property rights are less worthy of judicial protection than other rights guaranteed by the Constitution. Moreover, the article contrasts this attitude with that …

Public Utilities, Eminent Domain, And Local Land Use Regulations: Has Texas Found The Proper Balance?, Michael B. Kent Jr.

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No abstract provided.

Confessions Of A Dean: Barriers And Breakthroughs To Communication, Melissa A. Essary

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No abstract provided.

Pavesich, Property And Privacy: The Common Origins Of Property Rights And Privacy Rights, Michael B. Kent Jr.

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No abstract provided.

Cultural Inversion And The One-Drop Rule: An Essay On Biology, Racial Classification, And The Rhetoric Of Racial Transcendence, Deborah W. Post

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No abstract provided.

Supporting Attorney’S Personal Skills, Marjorie A. Silver

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No abstract provided.

Sprawl In Europe And America, Michael Lewyn

Scholarly Works

Defenders of suburban sprawl assert that sprawl is inevitable in affluent societies, based on trends in Western Europe. According to supporters of this Inevitability Theory, European cities have decentralized and become more car-dependent, thus proving that even where governments are more aggressively anti-sprawl than American government, anti-sprawl policies will be futile.

This Article compares Western Europe to the United States, and criticizes the Inevitabilty Theory on the grounds that:

(1) Europe is in fact far less automobile-dependent than the United States;
(2) Europe has not, contrary to the Inevitability Theory's claims, become more car-dependent and suburbanized in recent years; and …

A Quiet Crisis In America: Meeting The Affordable Housing Needs Of The Invisible Low-Income Healthy Seniors, Patricia E. Salkin

Scholarly Works

Part I of this article discusses population statistics in greater detail, exploring available financial demographics of seniors and showing that many seniors are likely to be in need of affordable housing today, and that many more will likely join this group in the future. Part II discusses the role of the federal and state governments in providing affordable senior housing and concludes that these programs have typically failed to yield effective results on a wide enough basis. Part III focuses on the impact that local governments can have immediately in helping to address the affordable senior housing crisis through the …

Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves

Scholarly Works

Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under …

The Effects Of Asymmetric Vs. Symmetric Probability Of Targets Following Probe And Irrelevant Stimuli In The Complex Trial Protocol For Detection Of Concealed Information With P300, J. Peter Rosenfeld, Monica Tang, John B. Meixner Jr., Michael Winograd, Elena Labkovsky

Scholarly Works

The complex trial protocol (CTP, [J.P. Rosenfeld, E. Labkovsky, M. Winograd, M.A. Lui, C. Vandenboom & E. Chedid (2008), The complex trial protocol (CTP): a new, countermeasure-resistant, accurate P300-based method for detection of concealed information. Psychophysiology, 45, 906–919.]) is a sensitive, new, countermeasure-resistant, P300-based concealed information protocol in which a first stimulus (Probe or Irrelevant) is followed after about 1.4–1.8 s by a Target or Non-Target second stimulus within one trial. It has been previously run with a potentially confounding asymmetric conditional probability of Targets following Probes vs. Irrelevants. This present study compared asymmetric vs. symmetric conditional probability groups and …

Assigned Versus Random Countermeasure-Like Responses In The P300-Based Complex Trial Protocol For Detection Of Deception: Task Demand Effects, John B. Meixner Jr., Alexander Haynes, Michael Winograd, Jordan Brown, J. Peter Rosenfeld

Scholarly Works

The Concealed Information Test (CIT) is a credibility assessment protocol of an entirely different nature than the traditional lie detector test. Instead of attempting to detect actual lying (the goal of the commonly used Control Question Test), the goal of the CIT is to determine whether an individual possesses knowledge of specific details of a crime or event. For example, if a murder was committed at 800 Church Avenue using a .38 caliber revolver, the CIT seeks to determine whether a suspect recognizes the address and type of weapon.

The CIT presents subjects with various stimuli, one of which is …

Remarks: Neuroscience, Gender, And The Law, Stacey A. Tovino

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These remarks, delivered at the Neuroscience, Law, and Government Symposium held at the University of Akron School of Law in 2009, explore how stakeholders are using advances in the neuroscience of three gender-specific and gender-prevalent conditions (the postpartum mood disorders, premenstrual dysphoric disorder, and eating disorders) to secure health care benefits under group health plans and individual health insurance policies and to push for the inclusion of these conditions in mental health parity legislation.

A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch

Scholarly Works

This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …

Principled Pluralism And Contract Remedies, C. Scott Pryor

Scholarly Works

Critiques leading accounts for judicial vindication of the expectation interest in contracts and proffers an account drawn from Christian doctrines of the dominion mandate, creation of humanity in the image of God, and sin.

Transactional Skills Training: Contract Drafting — The Basics, George Kuney

Scholarly Works

This article describes the fundamentals of contract drafting. It begins by discussing the basic elements of a curriculum and then reviews elements of the foundation of contract drafting. Among the other topics covered are the following:

* The deal lawyer’s analytical skill known as the translation skill. * Basic techniques for drafting terms. * Layout of a contract. * How to avoid ambiguity and unintentional vagueness. * Boilerplate. * Representations and warranties. * Covenants. * Conditions. * Discretionary authority. * Declarations.

Pedagogic Techniques: Multi-Disciplinary Courses, Annotated Document Review, Collaborative Work & Large Groups, George Kuney

Scholarly Works

No abstract provided.

Protecting A Business Entity Client From Itself Through Loyal Disclosure, Paula Schaefer

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No abstract provided.

Saving Law Reviews From Political Scientists: A Defense Of Lawyers, Law Professors, And Law Reviews, Benjamin H. Barton

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This essay reviews Robert J. Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning, and argues that it fails on two fronts. First, I offer a defense of lawyers, law professors, and law reviews. Second, I show that Spitzer's own book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship.

For example, in each of his three examples of wayward theorizing Spitzer insists that his reading of the Constitution and its history is so clearly correct that his opponents' scholarship is not only wrong …