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2014

Faculty Scholarship

Discipline
Institution
Keyword

Articles 1 - 30 of 824

Full-Text Articles in Law

Cyber Sovereignty: The Way Ahead, Eric Talbot Jensen Dec 2014

Cyber Sovereignty: The Way Ahead, Eric Talbot Jensen

Faculty Scholarship

The last few years are full of reports of cyber incidents, some of which have caused significant damage. Each of these cyber events raise important questions about the role and responsibility of States with respect to cyber incidents. The answer to these questions revolves in large part around the international law doctrine of sovereignty. The extent to which nations exercise sovereignty over cyberspace and cyber infrastructure will provide key answers to how much control States must exercise and how much responsibility States must accept for harmful cyber activities when they fail to adequately do so. This article argues that States ...


Future War And The War Powers Resolution, Eric Talbot Jensen Dec 2014

Future War And The War Powers Resolution, Eric Talbot Jensen

Faculty Scholarship

Since its passage in 1973 over the veto of then-President Nixon, the War Powers Resolution (WPR) has been laden with controversy. Labeled as everything from ineffective to unconstitutional, the WPR has generally failed in its design to require notification and consultation to Congress by the President. Despite numerous proposals to amend the WPR, it continues to languish in the twilight of Executive war powers, and its future is bleak. With emerging technologies such as drones, cyber tools, nanotechnology, and genomics, the ineffectiveness of the WPR will prove even more profound. The WPR’s reliance on “armed forces” and “hostilities” as ...


The Duty To Manage Risk, A. Christine Hurt Dec 2014

The Duty To Manage Risk, A. Christine Hurt

Faculty Scholarship

No abstract provided.


When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl Dec 2014

When Helpers Hurt: Protecting Taxpayers From Preparers, Michelle Lyon Drumbl

Faculty Scholarship

None available.


Privacy Doesn't Exist In A Vacuum, Dawinder S. Sidhu Dec 2014

Privacy Doesn't Exist In A Vacuum, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.


Deterrence And Antitrust Punishment: Firms Versus Agents, Keith Hylton Dec 2014

Deterrence And Antitrust Punishment: Firms Versus Agents, Keith Hylton

Faculty Scholarship

Antitrust enforcement regimes rely on two types of penalties for deterrence: penalties against the violating firm and penalties against the agents of the violating firm. In this paper I examine the economics of punishing agents versus firms. My area of application is antitrust, but the argument applies generally to other fields in which the government has the choice between punishing the agent, the firm, or both. This analysis suggests that whenever the firm has an incentive, given existing penalties, to engage in some illegal act that may result in relatively modest punishment for its agents, it can almost always induce ...


Toward A Patent Exhaustion Regime For Sustainable Development, 32 Berkeley J. Int'l Law. 330 (2014), Benjamin Liu Dec 2014

Toward A Patent Exhaustion Regime For Sustainable Development, 32 Berkeley J. Int'l Law. 330 (2014), Benjamin Liu

Faculty Scholarship

This Article argues that the current exhaustion doctrine, when applied to the refurbishing industry, fails to balance its mandate of promoting technological progress with the broader program of sustainable development and is therefore unsuitable for countries on the modernization path. First, what constitutes an infringing “making” remains underdetermined. Second, the evidentiary hurdle for proving legal refurbishment is too onerous for the low margin and under-resourced refurbishing industry. Finally, the all-or-nothing approach to judging infringement fails to account for the nuanced cost-benefit nexus that exists between patentees, refurbishers, and society at large and discourages private ordering. To recalibrate the balance between ...


Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck Dec 2014

Foreign Investments And The Market For Law, Erin O'Hara O'Connor, Susan D. Franck

Faculty Scholarship

In this Article, Professors O’Hara O’Connor and Franck adapt and extend Larry Ribstein’s positive framework for analyzing the role of jurisdictional competition in the law market. Specifically, the authors provide an institutional framework focused on interest group representation that can be used to balance the tensions underlying foreign investment law, including the desire to compete to attract investments and countervailing preferences to retain domestic policymaking discretion. The framework has implications for the respective roles of BITs and investment contracts as well as the inclusion and interpretation of various foreign investment provisions.


Technical Services Going Mobile, Ning Han Dec 2014

Technical Services Going Mobile, Ning Han

Faculty Scholarship

The article discusses how technical services librarians can benefit from integrating mobile technologies and devices into their daily workflow.


Is It Fair To Discriminate In Favor Of Pensioners In A Chapter 11 Plan?, Summer B. Chandler Dec 2014

Is It Fair To Discriminate In Favor Of Pensioners In A Chapter 11 Plan?, Summer B. Chandler

Faculty Scholarship

“A number of U.S. cities are plagued with debt obligations that cannot be met. As municipalities1 have turned to chapter 9 protection to ease their financial burdens, various creditor constituencies have found themselves pitted against each other as they realize that they might be forced to share a finite amount of assets and funds that are insufficient to cover all of the a municipality’s debts. The ultimate goal of a chapter 9 filing is the confirmation of an adjustment plan that implements a feasible and comprehensive restructuring of a municipality’s obligations. A municipality’s proposed plan ...


The State As Witness: Windsor, Shelby County, And Judicial Distrust Of The Legislative Record, Bertrall L. Ross Ii Dec 2014

The State As Witness: Windsor, Shelby County, And Judicial Distrust Of The Legislative Record, Bertrall L. Ross Ii

Faculty Scholarship

More than ever, the constitutionality of laws turns on judicial review of an underlying factual record, assembled by lawmakers. Some scholars have suggested that by requiring extensive records, the Supreme Court is treating lawmakers like administrative agencies. The assumption underlying this metaphor is that if the state puts forth enough evidence in the record to support the law, its action will survive constitutional scrutiny. What scholars have overlooked, however, is that the Court is increasingly questioning the credibility of the record itself Even in cases where the state produces adequate evidence to support its action, the Court sometimes invalidates the ...


Answering The "Serious Constitutional Question": Ensuring Meaningful Review Of All Constitutional Claims, George Bach Dec 2014

Answering The "Serious Constitutional Question": Ensuring Meaningful Review Of All Constitutional Claims, George Bach

Faculty Scholarship

In 2012, the Supreme Court in Elgin v. Department of the Treasury clarified the standard that should apply when a federal statute purports to remove judicial review of all constitutional claims. The Court confirmed that, if a statute only channels judicial review of a constitutional claim into a specific avenue (for example, through administrative review and then the Federal Circuit Court of Appeals), then Congressional intent to do so need only be fairly discernible.' Alternatively, if a statute precludes all judicial review of a constitutional claim, there must be 'clear Congressional intent.' The Court explained that the reason for these ...


California Constitutional Law: The Guarantee Clause And California's Republican Form Of Government, David A. Carrillo, Stephen M. Duvernay Dec 2014

California Constitutional Law: The Guarantee Clause And California's Republican Form Of Government, David A. Carrillo, Stephen M. Duvernay

Faculty Scholarship

No abstract provided.


Substance And Procedure In The Reform Of Criminal Sentencing, Franklin E. Zimring Dec 2014

Substance And Procedure In The Reform Of Criminal Sentencing, Franklin E. Zimring

Faculty Scholarship

No abstract provided.


Reforming The Division Of Juvenile Justice, Barry Krisberg Dec 2014

Reforming The Division Of Juvenile Justice, Barry Krisberg

Faculty Scholarship

No abstract provided.


Overlooking Equality On The Road To Griswold, Melissa Murray Dec 2014

Overlooking Equality On The Road To Griswold, Melissa Murray

Faculty Scholarship

No abstract provided.


Tax Credit School Scholarship Plans, Stephen D. Sugarman Dec 2014

Tax Credit School Scholarship Plans, Stephen D. Sugarman

Faculty Scholarship

No abstract provided.


The Greenback, The Humpback, And The Silverback: How A Third Wave Of Federal Water Policy Could Benefit The West, Reed D. Benson Dec 2014

The Greenback, The Humpback, And The Silverback: How A Third Wave Of Federal Water Policy Could Benefit The West, Reed D. Benson

Faculty Scholarship

Proposing any major new federal initiative regarding water in the western United States might seem preposterous, given conventional wisdom and entrenched positions on state control of water resources. But there is a strong rationale, and a growing imperative, for a new federal water .policy for the West. Many river basins face serious problems as limited water supplies are over-allocated, demands continue to increase, and climate change promises to exacerbate the West's perennial problems of scarcity and variability. Solutions to such problems are likely to be expensive and will need to address national interests as well as state and local ...


Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim Dec 2014

Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim

Faculty Scholarship

No abstract provided.


Nonprofit Executive Pay As An Agency Problem: Evidence From U.S. Colleges And Universities, David Walker, Brian D. Galle Dec 2014

Nonprofit Executive Pay As An Agency Problem: Evidence From U.S. Colleges And Universities, David Walker, Brian D. Galle

Faculty Scholarship

We analyze the determinants of the compensation of private college and university presidents from 1999 through 2007. We find that the fraction of institutional revenue derived from current donations is negatively associated with compensation and that presidents of religiously-affiliated institutions receive lower levels of compensation. Looking at the determinants of contributions, we find a negative association between presidential pay and subsequent donations. We interpret these results as consistent with the hypotheses that donors to nonprofits are sensitive to executive pay and that stakeholder outrage plays a role in constraining that pay. We discuss the implications of these findings for the ...


The Use And Abuse Of Labor's Capital, David Webber Dec 2014

The Use And Abuse Of Labor's Capital, David Webber

Faculty Scholarship

The recent financial crisis has jeopardized the retirement savings of twenty-seven million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds invest against the economic interests of their own participants and beneficiaries, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant — and flawed — interpretation of the fiduciary duty of loyalty, public pension trustees owe their ...


Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Danielle K. Citron, Frank Pasquale Dec 2014

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Danielle K. Citron, Frank Pasquale

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.


Windsor, Surrogacy, And Race, Khiara Bridges Dec 2014

Windsor, Surrogacy, And Race, Khiara Bridges

Faculty Scholarship

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor ...


States And Status: A Study Of Geographical Disparities For Immigrant Youth, Laila Hlass Dec 2014

States And Status: A Study Of Geographical Disparities For Immigrant Youth, Laila Hlass

Faculty Scholarship

This article looks at the legal and practical challenges arising out of a particular immigration protection for abandoned, abused, and neglected child migrants called “Special Immigrant Juvenile Status” (SIJS). This benefit, which is a pathway to legal permanent residence and citizenship, is the only area within federal immigration law that requires a state court to take action in order for immigration authorities to consider an individual’s eligibility for relief. Using an original data set of roughly 12,000 SIJS applications from the Department of Homeland Security in June 2013, this article describes trends over time and by state regarding ...


Deportations Violate U.S., Global Laws, Jennifer Moore Nov 2014

Deportations Violate U.S., Global Laws, Jennifer Moore

Faculty Scholarship

The detention and summary deportation of these moms and kids is in violation of U.S. and international law.


We Don't Need A "Right To Be Forgotten." We Need A Right To Evolve, Dawinder S. Sidhu Nov 2014

We Don't Need A "Right To Be Forgotten." We Need A Right To Evolve, Dawinder S. Sidhu

Faculty Scholarship

The sad symptom of a judgmental culture


The United Nations Watercourses Convention On The Dawn Of Entry Into Force, Ryan Stoa Nov 2014

The United Nations Watercourses Convention On The Dawn Of Entry Into Force, Ryan Stoa

Faculty Scholarship

The United Nations Convention on the Law of the Non- Navigational Uses of International Watercourses (Watercourses Convention) entered into force in August 2014. Despite overwhelming support when signed in 1997, the ratification process has been slow. As a binding treaty, the Watercourses Convention provides hope that its provisions will articulate legal principles of transboundary water management capable of promoting cooperation and regional agreements. Despite entry into force, however, global support for the Watercourses Convention is weak, concurrent efforts to develop treaty regimes governing water resources create competition for resources and may obscure understandings of international water law, and the foundational ...


Typography Matters: Document Design, Tenielle Fordyce-Ruff Nov 2014

Typography Matters: Document Design, Tenielle Fordyce-Ruff

Faculty Scholarship

This month, I am turning to what I hope is [a] ... helpful topic: document design. Sit back and enjoy learning more about spaces after periods, cueing devices, point size, justification, and paragraph breaks. [excerpt]


The Permit Power Revisited: The Theory And Practice Of Regulatory Permits In The Administrative State, Eric Biber, J.B. Ruhl Nov 2014

The Permit Power Revisited: The Theory And Practice Of Regulatory Permits In The Administrative State, Eric Biber, J.B. Ruhl

Faculty Scholarship

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the "permit power," under which legislatures prohibit a specified activity by statute and delegate to administrative agencies the discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Accurately describing the permit power as an "enormous power in the state," Epstein bemoaned that it had "received scant attention in the academic literature." He sought to fill that gap. Centered on the premise that the permit power represents "a complete inversion of ...


Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann Nov 2014

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Faculty Scholarship

This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely ...