Digital Commons Network^™

Is Fracking An Inflammatory Word?, Blake Watson

School of Law Faculty Publications

Hydraulic fracturing is a method of oil and gas extraction. It involves the pumping of a mixture of proppants, chemicals, and large amounts of water into wells to exert pressure and fracture rock formations, thereby allowing otherwise “trapped” gas and oil to flow more freely. See Railroad Commission of Texas v. Citizens for a Safe Future and Clean Water, 336 S.W.3d 619, 621 (Tex. 2011) (describing the “fracing” process). With the development of horizontal drilling and more effective lubricants, it is now possible to remove “unconventional” sources of oil and gas located in shale and other dense substrata. Positive …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

High Expectations And Some Wounded Hopes: The Policy And Politics Of A Uniform Statute On Videotaping Custodial Interrogations, Andrew E. Taslitz

School of Law Faculty Publications

Much has been written about the need to videotape the entire process of police interrogating suspects. Videotaping discourages abusive interrogation techniques, improves police training in proper techniques, reduces frivolous suppression motions because facts are no longer in dispute, and improves jury decision making about the voluntariness and accuracy of a confession. Despite these benefits, only a small, albeit growing, number of states have adopted legislation mandating electronic recording of the entire interrogation process. In the hope of accelerating legislative adoption of this procedure and of improving the quality of such legislation, the Uniform Law Commission (ULC), formerly the National Conference …

Confessing In The Human Voice: A Defense Of The Privilege Against Self-Incrimination, Andrew E. Taslitz

School of Law Faculty Publications

ABSTRACT OF CONFESSING IN THE HUMAN VOICE: A DEFENSE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION

By Andrew E. Taslitz

The privilege against self-incrimination has fallen on hard times. Miranda rights shrink, as do those more traditional “core” aspects of the privilege. Partly this is due to an implicit skepticism by the courts about the value of the privilege, despite their occasional explicit words of praise for its role in our constitutional scheme. Scholars largely, though not uniformly, agree that the privilege cannot be justified as a philosophical matter, viewing it as an unfortunate burden we are stuck with because of its …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

Mutual Recognition Based On Substituted Compliance: An Integral Component Of The Sec’S Mandate, Cheryl C. Nichols

School of Law Faculty Publications

The U.S. Securities and Exchange Commission (“SEC”) must utilize mutual recognition based on substituted compliance to maintain American preeminence in the global securities market. In fact, mutual recognition based on substituted compliance facilitates the SEC’s ability to fulfill its statutory mandate-- to protect investors; maintain fair, orderly, and efficient markets; and facilitate capital formation. Currently, all US investors may have access to foreign exchanges in the global securities market without the protection of the U.S. federal securities laws; at a minimum, the SEC must take action to fulfill the first prong of its statutory mandate--to protect investors. In addition, maintaining …

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

School of Law Faculty Publications

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

Emergency Alert: This Is Not A Test! An International Disaster Relief Plan For Protecting Children And Families, Cynthia R. Mabry

School of Law Faculty Publications

There are more than 132,000,000 orphans worldwide. As a result of recent natural disasters in the United States and other countries, the number of orphans has increased. Recent events in the Gulf Coast in the United States, Haiti and Japan showed that thousands of children become separated from their parents or guardians when disasters strike. Family members were scattered during these tragedies. Many children were reunited with their families; but some children were sent to orphanages while others waited in classrooms for their family members to come for them. Many Haitian children were sent to foreign countries far from their …

Once More Unto The Breach: An Analysis Of Legal, Technological And Policy Issues Involving Data Breach Notification Statutes, Dana J. Lesemann

School of Law Faculty Publications

Once More Unto the Breach: An Analysis of Legal, Technological, and Policy Issues Involving Data Breach Notification Statutes

Dana J. Lesemann

Companies facing the loss of a laptop or a compromised server have long waged battles on several fronts: investigating the source of the breach, identifying potentially criminal behavior, retrieving or replicating lost or manipulated data, and putting better security in place, to name a few generalized steps. As recently as seven years ago, the broader consequences of a data breach were largely deflected from the party on whose resource the data resided and instead rested essentially on those whose …

Preventing Juror Misconduct In A Digital World: A Comparative Analysis, Thaddeus A. Hoffmeister

School of Law Faculty Publications

This article examines the reform efforts employed by common law countries to address internet-related juror misconduct, which generally arises when jurors use technology to improperly research or discuss a case. The three specific areas of reform are (1) punishment, (2) oversight, and (3) education. The first measure can take various forms ranging from fines to public embarrassment to incarceration. The common theme with all punishments is that once imposed, they make citizens less inclined to want to serve as jurors. Therefore, penalties should be a last resort in preventing juror misconduct.

The second reform measure is oversight, which occurs in …

Making Sense Of Extraterritoriality: Why California’S Progressive Global Warming And Animal Welfare Legislation Does Not Violate The Dormant Commerce Clause, Jeffrey M. Schmitt

School of Law Faculty Publications

The dormant Commerce Clause’s extraterritoriality doctrine has long baffled courts and legal scholars. Rather than attempt to make sense of the doctrine, most scholars have instead argued that it should be abandoned as unnecessary and unworkable. Such scholarship, however, is of little use to the lower courts struggling with extraterritoriality issues. The federal courts in California, for example, have recently been forced to rule on challenges to California’s landmark carbon emissions and animal welfare legislation. Plaintiffs in these cases argue that California is regulating extraterritorially by telling ethanol producers and farmers in other states how to run their businesses. In …

Global Income Inequality And The Potential For Global Democracy: A Functionalist Analysis, Andrew L. Strauss

School of Law Faculty Publications

The thesis that I wish to develop in this chapter is that a functionalist view of the development of global institutions suggests that the structural inequalities in global income that were a primary cause of the global economic crisis of 2008, and that continue to endanger the world economy, have the potential to provide the political preconditions for a global regime that can help redress those inequalities. To do so, however, such a regime must empower the less economically well off through representation, and the regime itself must have the practical ability to influence global economic policy. Such a regime, …

The Federal Right To Recover Fugitive Slaves: An Absolute But Self-Defeating Property Right, Jeffrey M. Schmitt

School of Law Faculty Publications

A key insight of modern property scholarship is that property rights are limited by the rights of others. In the antebellum era, slave owners’ property rights in fugitive slaves who escaped into the North existed in tension with the rights of free blacks who might be wrongfully claimed. At first, the Fugitive Slave Act of 1793, as supplemented by the law in most Northern states, limited a slave owner’s property rights by providing limited legal protections to free blacks against being erroneously claimed as slaves. As attitudes towards slavery changed, however, state laws in the North became increasingly protective of …