Digital Commons Network^™

Legislating Racial Fairness In Criminal Justice, Olatunde C.A. Johnson

Faculty Scholarship

Twenty years ago, in McCleskey v. Kemp, the Supreme Court rejected a capital defendant's claim that statistical evidence of racial discrimination in the administration of Georgia's death penalty system constituted a violation of the Eighth and Fourteenth Amendments. Yet, even as McCleskey effectively bars constitutional challenges to racial disparities in the criminal justice system where invidious bias is difficult to establish, the Court invites advocates to pursue legislation as a remedy to racial disparities. Indeed, the McCleskey Court offers as a rationale for its ruling the judiciary's institutional incompetence to remedy these disparities, holding that "McCleskey's arguments are best …

Replacing The Federal Income Tax With A Postpaid Consumption Tax: Preliminary Thoughts Regarding A Government Matching Program For Wealthy Investors And A New Tax Policy Lens, J. Clifton Fleming Jr.

Faculty Scholarship

In recent years, proposals have been made to replace the federal income tax with a postpaid consumption tax - that is, a federal value added tax ("VAT"), a federal retail sales tax ("RST"), or a federal cash-flow (consumed income) tax. Because these taxes can be constructed so that they are indistinguishable at the level of the ultimate consumer in terms of their principal effects, and because a prominent recent proposal is the RST approach, I have written this article in terms of an RST/income tax comparison. The analysis, however, would be mostly the same if the income tax was compared …

Regulating Public Morals And Private Markets: Online Securities Trading, Internet Gambling And The Speculation Paradox, A. Christine Hurt

Faculty Scholarship

No abstract provided.

What Google Can't Teach Us About Ipo Auctions (And What It Can), A. Christine Hurt

Faculty Scholarship

No abstract provided.

Incentivizing And Protecting Informants Prior To Mass Atrocities Such As Genocide: An Alternative To Post Hoc Courts And Tribunals, Eric Talbot Jensen

Faculty Scholarship

International institutions are almost exclusively reactive to violations of international law. There are very few systemic methods of proactively trying to prevent egregious violations such as genocide; rather, international law seems to take punishing violators as its sole approach. In modern times, most of the punishment and post-event enforcement has come through international courts and tribunals. These courts and tribunals are astoundingly expensive and notoriously inefficient. More importantly, the threat of prosecution does not appear to act as an effective deterrent in preventing criminal acts. This is unacceptable. With hundreds of thousands of lives at stake, the international community must …

Blogging While Untenured And Other Extreme Sports, A. Christine Hurt, Tung Yin

Faculty Scholarship

No abstract provided.

Review Essay: Excuse Theory Through A Liberal Lens, Richard C. Boldt

Faculty Scholarship

This essay reviews Excusing Crime, by Jeremy Horder, Reader in Criminal Law and Tutor in Law at Worcester College, Oxford. It describes Horder’s project, which is to build a complex taxonomy of criminal law excuse practices and to use that account of “why things are as they are” to argue, on the basis of his version of liberal theory, against “the restricted range” of excuses in the UK and elsewhere. By virtue of his appreciation that some, but not all, excuses contain justificatory elements, and given his insistence that pure claims of non-responsibility are not excuses, Horder has defined a …

Legitimacy As An Assessment Of Existing Legal Standards: The Case Of The 2003 Iraq War, Charlotte Ku

Faculty Scholarship

The Iraq war was a multiple assault on the foundations and rules of the existing UN-centered world order. It called into question the adequacy of the existing institutions for articulating global norms and enforcing compliance with the demands of the international community. It highlighted also the unwillingness of some key countries to wait until definitive proof before acting to meet the danger of the world's most destructive weapons falling into the hands of the world's most dangerous regimes. It was simultaneously a test of the UN's willingness and ability to deal with brutal dictatorships and a searching scrutiny of the …

Find It Free And Fast On The Net: Strategies For Legal Research On The Web (2006), Michelle Rigual

Faculty Scholarship

This presentation is a guide to researching legal issues on the internet. Basic search topics applicable to any database are discussed as well as specific strategies for finding free or inexpensive legal materials, effectively using new technologies such as blogs, RSS feeds, and podcasts. Additionally, attendees are warned to avoid outdated technologies and sources.

Give Me Equity Or Give Me Death - The Role Of Competition And Compensation In Building Silicon Valley, Richard A. Booth

Faculty Scholarship

In this essay, I argue that the preeminence of Silicon Valley as an incubator of technology companies is attributable to equity compensation. Ronald Gilson, relying on the work of AnnaLee Saxenian and others who have noted the tendency of Silicon Valley employees to job hop, has suggested that California law prohibiting the enforcement of non-compete agreements was a major factor in the rise of Silicon Valley (and the demise of Route 128). I extend this line of thought by suggesting that California employers may have relied on equity compensation as a substitute way to bind employees. I argue further that …

Beijing Court Orders Ministry Of Finance To Rule On Supplier's Complaints, But Skirts Broader Issue Of Schism In China's Procurement Supervision, Daniel J. Mitterhoff

Faculty Scholarship

No abstract provided.

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen L. Norton

Faculty Scholarship

This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

Misogyny, Androgyny And Sexual Harassment: Sex Discrimination In A Gender-Deconstructed World, Meredith Render

Faculty Scholarship

Understanding sexual harassment as a form of discrimination “because of sex” has grown increasingly difficult as our understandings of both gender and sex have grown richer and more complex. This piece offers a new descriptive model for understanding gender bias in the context of sexual harassment law. The piece argues that two separate sets of ideas about gender have intersected to produce a new picture of gender “equality”: one that is separated from a binary model of men and women, but that nonetheless continues to disadvantage women as compared to men. The paper refers to this idea as the androcentric-assimilation …

Some Thoughts On "The Economic Loss Rule" And Apportionment, Oscar S. Gray

Faculty Scholarship

This paper illustrates the process of comments upon and revisions to Restatement drafts, based on successive drafts of the proposed Restatement Third of Torts: Liability for Economic Loss.

Federal Court Self-Preservation And Terri Schiavo, Jack M. Beermann

Faculty Scholarship

If the federal court in Florida had granted preliminary relief to allow itself more time to consider the constitutional claims that Terri Schiavo's parents brought on her behalf, and if, as expected, those claims were ultimately rejected, the federal court would have been placed in the unenviable position of having to be the institution that made the final decision to terminate Terri Schiavo's feeding and other treatment. Although I have no way of knowing whether this fact, which has not been noted in the commentary,' actually entered into the mind of any of the federal judges who considered the case, …

History Of The Courts Of Kentucky, Kurt Metzmeier

Faculty Scholarship

A survey of the history of Kentucky courts from the foundation of the commowealth in 1792 to the ratification in 1891 of the state's fourth constitution.

Comparativa Entre Les Reformes Dels Estatuts D'Autonomia De Catalunya I D'Andalusia [Comparative Analysis Of The Reforms Of The Charters Of Autonomy Of Catalonia And Andalucía], Albert Lamarca-Marquès, Vanessa Casado-Pérez

Faculty Scholarship

En els ordenaments jurídics continentals europeus no és habitual l’admissió d’escrits acadèmics independents adreçats als tribunals de justícia en el marc de procediments de gran importància. En els països del Common Law, especialment en les jurisdiccions nordamericanes, mitjançant el procediment anomenat d’Amicus Curiae es permet d’adreçar aquesta mena d’escrits als tribunals de justícia, que hauran de decidir si els tenen o no en compte. A través de les pàgines d’InDret, hem volgut oferir aquest document de comparació d’ambdós Estatuts per contribuir al debat jurídic en el marc del procés de reforma dels Estatuts d’Autonomia a l’Estat i en relació als …

A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier

Faculty Scholarship

Responding to a confused patchwork of trial courts with overlapping jurisdiction, uneven justice around the state, and a growing backlog of appellate cases, voters in Kentucky went to the polls on November 4, 1975, to approve a sweeping constitutional amendment that radically revised Kentucky’s court system. Although reformers had decried Kentucky’s confusing court system since the 1940s, the real roots of the revision of the judicial article can be found in the failed movement in the late 1960s to replace Kentucky’s 1891 constitution. Unbowed by the defeat, judicial reformers immediately set out to pass a separate amendment reforming the courts, …

The Value Of U.S. Patents By Owner And Patent Characteristics, James Bessen

Faculty Scholarship

This paper uses renewal data to estimate the value of U.S. patents, controlling for patent and owner characteristics. Estimates of U.S. patent value are substantially larger than estimates for European patents, however, the ratio of U.S. patent value to R&D for firms is only about 3%. Patents issued to small patentees are much less valuable than those issued to large corporations, perhaps reflecting imperfect markets for technology. Litigated patents are more valuable, as are highly cited patents. However, patent citations explain little variance in value, suggesting limits to their use as a measure of patent quality.

Duty In Tort Law: An Economic Approach, Keith N. Hylton

Faculty Scholarship

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several …

Worldcat Collection Analysis Service And The Desert States Law Library Consortium, Michelle Rigual

Faculty Scholarship

In November, 2005, the eight libraries of the Desert States Law Library Consortium (University of New Mexico, University of Arizona, Arizona State University, University of Colorado, University of Denver, University of Utah, Brigham Young, and University of Nevada Las Vegas) licensed OCLC's WorldCat Collection Analysis Service (WCA). WCA is designed to provide objective information concerning the makeup of a library's collection, including subject coverage, age of materials, languages of publication and material types and audience level. Multi-institution comparisons provide detail and summary views of how two or more collections overlap or differently specialize, subdivided by subject areas, languages of publication, …

Oclc: Worldcat Collection Analysis Service And The Desert States Law Library Consortium, Michelle Rigual

Faculty Scholarship

Looking and benefits and best practices of WorldCat Collection Analysis in a subject-specific consortium.

In November, 2005, the eight libraries of the Desert States Law Library Consortium (University of New Mexico, University of Arizona, Arizona State University, University of Colorado, University of Denver, University of Utah, Brigham Young, and University of Nevada Las Vegas) licensed OCLC's WorldCat Collection Analysis Service (WCA). WCA is designed to provide objective information concerning the makeup of a library's collection, including subject coverage, age of materials, languages of publication and material types and audience level. Multi-institution comparisons provide detail and summary views of how two …

Biometrics, Certified Software Solutions, And The Japanese Consumption Tax: A Proposal For The Tax Commission, Richard Thompson Ainsworth

Faculty Scholarship

Significant change is anticipated in the Japanese Consumption Tax. The Japanese Tax Commission is recommending that the rate should double, multiple rates should be employed, and the "bookkeeping method" of accounting should be abandoned in favor of the European "invoice method."

The Tax Commission faces a tax policy dilemma. The aging population drives the need for a tax increase (making the Consumption Tax an obvious target for revenue enhancement) at exactly the same time the population is shrinking in overall size, thereby reducing the number of working-consumers who can pay the higher tax.

These are dramatic changes for the Japanese …

Graded Interface Models For More Accurate Determination Of Van Der Waals-London Dispersion Interactions Across Grain Boundaries, Roger H. French

Faculty Scholarship

Attractive van der Waals–London dispersion interactions between two half crystals arise from local physical property gradients within the interface layer separating the crystals. Hamaker coefficients and London dispersion energies were quantitatively determined for Σ5 and near-∑13 grain boundaries in SrTiO3 by analysis of spatially resolved valence electron energy-loss spectroscopy (VEELS) data. From the experimental data, local complex dielectric functions were determined, from which optical properties can be locally analyzed. Both local electronic structures and optical properties revealed gradients within the grain boundary cores of both investigated interfaces. The results show that even in the presence of atomically structured grain boundary …

Japanese North Americans, War, And Communal Healing Through Literature: Internment Memory As An Ascent In Meaning And Beauty, Chikako D. Kumamoto

Faculty Scholarship

To define ourselves as Americans, we often like to invoke the still-potent idea, inherited from the Puritans, of a "city upon a hill." Steeped in a mythic discourse on our earliest conception of America as an elect nation, this phrase envisions the community at large as "the pilot society for the world" engaged in a noble experiment of innocence, consensus, justice, and freedom for all, while driving to achieve myriad forms of greatness. But when this community at large is found fallen from the ideal conception of itself and conducts itself contrarily to its communal responsibilities towards its smaller communities …

Yes, Virginia: The President Can Deploy Federal Troops To Prevent The Loss Of A Major American City From A Devastating Natural Catastrophe, Michael Greenberger

Faculty Scholarship

As a direct response to the lackadaisical and much criticized federal handling of Hurricane Katrina, a critical provision within the Fiscal Year 2007 Defense Authorization Act amended in October 2006 the Insurrection Act to allow the President to deploy Federal troops to respond to catastrophic natural disasters and other major domestic emergencies without a prior request from affected state or local governments. This amendment was passed over universal and bipartisan opposition by the Nation's governors, all of whom claimed that this provision upends the delicate balance between Federal and state responsibilities for responding to natural disasters. In fact, this amendment …

Public Safety And Criminal Justice, Kevin Washburn

Faculty Scholarship

Conference Transcript from The New Realism: The Next Generation of Scholarship in Federal Indian Law

A Quantitative Study Of Styles And Achenes Of Terminal And Basal Flowers Of Schoenoplectus Hallii (Cyperaceae), A Rare Plant Species Of Transient Wetland Habitats, Marian Smith, Sara Ammann, Nancy Parker, Paige Mettler-Cherry

Faculty Scholarship

Schoenoplectus hallii (A. Gray) S.G. Smith (Cyperaceae), a rare plant restricted to wetland habitats, is of conservation concern throughout its range. Taxonomy of the species recently has been clarified; however, quantitative descriptions of achene and flower morphology are incomplete and life history information is lacking. Because of its scarcity and the transient nature of populations, any large-scale study of the species will require the recovery of achenes from bulk soil samples and the identification and separation of the dimorphic achenes. The objectives of this study were to separate, identify and photograph the two achene types; to quantify the size and …

Sublicensing From A Distressed Company: Are You Placing Your Future In The Debtor's Hands?, Michelle M. Harner, David A. Beck

Faculty Scholarship

No abstract provided.

Stress Evolution In Nanocrystalline Diamond Films Produced By Chemical Vapor Deposition, Hao Li, Brian W. Sheldon, Abhishek Kothari, Zhigang Ban, Barbara L. Walden

Faculty Scholarship

Nanocrystalline diamond films were grown on silicon substrates by microwave plasma enhanced chemical vapor deposition with 1% methane, 2%–10% hydrogen, and argon. High resolution transmission electron microscope images and selected area electron diffraction patterns confirm that the films consist of 10–20 nm sized diamond grains. The residual and intrinsic stresses were investigated using wafer curvature. Intrinsic stresses were always tensile, with higher H₂ concentrations generally leading to higher stresses. Annealing the films in a hydrogen plasma significantly increased these stresses. These hydrogen induced changes also appear to alter stress levels and stress gradients during the growth process itself. Raman …