Digital Commons Network^™

Whistleblowing Speech And The First Amendment, Ronald J. Krotoszynski Jr.

Articles

Alexander Meiklejohn the iconic First Amendment scholar who expounded the democratic selfgovernment theory of the freedom of speech posited that for democratic selfgovernment to function the voters themselves must possess the information necessary to hold the government accountable Yet the information necessary for the citizenry to render wise electoral verdicts not uncommonly belongs to the government itself and government officials often prove highly reluctant to share information that reflects badly on them and their work The lack of critically important information about the government's performance makes it difficult if not impossible for voters to hold government accountable on Election Day …

The Failure Of Sorry: An Empirical Evaluation Of Apology Laws, Health Care, And Medical Malpractice, Benjamin J. Mcmichael

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No abstract provided.

Access To Justice, Rationality And Personal Jurisdiction, Adam N. Steinman

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No abstract provided.

Criminalizing Battered Mothers, Courtney K. Cross

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How a domestic violence survivor responds to the abuse she is experiencing depends on many factors. Some critical considerations include her access to resources, desire to stay in her relationship, and assessment of her own safety. Criminal and civil court systems place enormous pressure on survivors to separate from their abusive partners. Not only are survivors with children pressured to leave, they are punished when they stay. That punishment can come in any combination of diminished custody rights, limited parental rights, and incarceration. Yet a survivor who flees with her children is not immune to these same consequences: if she …

Trade Fraud: The Wild, New Frontier Of White Collar Crime, Pamela Bucy Pierson, Bejamin Patterson Bucy

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No abstract provided.

Retheorizing Actions For Targeted Hate Speech: A Comment On Professor Brown Comments, Richard Delgado, Jean Stefancic

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No abstract provided.

Duty To Protect: Enhancing The Federal Framework To Prevent Childhood Lead Poisoning And Exposure To Environmental Harm, Allyson E. Gold, Emily A. Benfer, Emily Coffey, Mona Hanna-Attisha, Bruce Lanphear, Helen Y. Li, Norton, Ruth Ann;, David Rosner, Kate Walz

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Scientific evidence indisputably demonstrates that lead poisoning causes permanent neurological damage and numerous co-morbidities for children and adults. Exposure to lead hazards irreversibly harms individuals and, left unchecked, can devastate communities into the future. In recognition of these threats, the President's Task Force on Environmental Health Risks and Safety Risks to Children (Task Force) was established by Executive Order in 1997. The original Task Force created the first coordinated federal response to eliminate childhood lead poisoning in the United States and set an ambitious ten-year timeline to achieve its goals of prevention, treatment, research, and progress management. However, the most …

Becoming A Decolonial Feminist Ethnographer: Addressing The Complexities Of Positionality And Representation, Jennifer Manning

Articles

Abstract Organisation and management scholars are often preoccupied with developing, refining and advancing knowledge, and in so doing, the empirical process through which knowledge is advanced can be ignored together with the impact this process can have on participants and scholars. This article draws attention to how management scholars might negotiate the complexities of positionality and representation through an illustrative case: my experience of becoming a decolonial feminist ethnographer. Drawing upon my doctoral research, I share the experience of my ethnographic journey to become a decolonial feminist ethnographer. Developing a decolonial feminist approach to ethnography enabled me to identify positionality …

Informing Quality In Emergency Care: Understanding Patient Experiences, Esmat Swallmeh, Vivienne Byers, Amr Arisha

Articles

Purpose: Assessing performance and quality in healthcare organisations is moving from focussing solely on clinical care measurement to considering the patient experience as critical. Much patient experience research is quantitative and survey based. The purpose of this paper is to report a qualitative study gathering in-depth data in an emergency department (ED).

Design/methodology/approach: The authors used empirical data from seven focus groups to understand patient experience as participants progressed through a major teaching hospital in an Ireland ED. A convenience sampling technique was used, and 42 participants were invited to share their perceptions and outline key factors affecting their journey. …

The Use, Integration And Perceived Value Of Performance Analysis To Professional And Amateur Irish Coaches, Denise Martin, Alan Swanton, Jonathan Bradley, Denise Mcgrath

Articles

Research into the perceptions, practices and engagement of coaches with performance analysis is fundamental to informing the continued development of the discipline and its practitioners. The aim of this study was to survey a large sample of coaches of varying profiles, regarding their use and integration of performance analysis, to explore its perceived value and barriers to its use. Survey data were analysed from 538 Irish coaches qualified at Level 1 and above (82% male), from 37 sports. A spectrum of coaches’ engagement with performance analysis, ranging from no formal performance analysis (49%), to coaches doing their own analysis (coach-as-analyst, …

The Culture Of Misdemeanor Courts, Jessica A. Roth

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The misdemeanor courts that preside over the majority of criminal cases in the United States represent the “front porch” of our criminal justice system. These courts vary in myriad ways, including size, structure, and method of judicial appointment. Each also has its own culture – i.e., a settled way of doing things that reflects deeper assumptions about the court’s mission and its role in the community – which can assist or impede desired policy reforms. This Article, written for a Symposium issue of the Hofstra Law Review, draws upon the insights of organizational culture theory to explore how leaders can …

Cardozo's "Law And Literature": A Guide To His Judicial Writing Style, Richard H. Weisberg

Articles

The article discusses Benjamin N. Cardozo's essay "Law and Literature," which emphasizes the essential unity of style and substance in legal writing. Cardozo argues against the notion that law and literature are separate domains, asserting that effective legal communication requires a harmonious integration of form and function. He advocates for a judicial writing style that prioritizes clarity, precision, and the "magisterial" approach, which eschews ornamentation in favor of substance.

Countering Untouchability: The Stories Of Mātaṅga, Chandrabhan P. Yadav

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Excerpt:

"In the Jātakas we get description of the Caṇḍālas which is rare as far as traces about this class from the early Indian past is concerned. In around eight stories we get description of the Caṇḍālas.1 Amongst those the Mātaṅ gaJātaka (No.497) is the most important story because of its sheer description which is comparatively more elaborate than the other stories. In this essay I shall not only be examining this particular story to see the everyday lives of the Caṇḍālas in the early historic period, but most importantly, I shall also be exploring those processes through which these …

Service Charge Collection In Multi-Unit Developments, Adele Mckeown, Lorcan Sirr

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Multi-unit developments (MUDs) – typically developments of apartments, or apartments and houses, but also sometimes including a commercial component – differ from traditional housing as they have three distinct characteristics: individual ownership of a unit, shared ownership of common property, and collective membership of a corporate body that assumes responsibility for the management of the development (Christudason, 2004). In the Irish case, this corporate body is known as the owners’ management company (OMC). The legal framework for ownership in MUDs is based on leasehold, which means that the purchaser owns the property but not the land on which it is …

Legal Realism And The Controversy Over Campus Speech Codes, Richard Delgado

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No abstract provided.

Adminization: Gatekeeping Consumer Contracts, Yonathan A. Arbel

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Large companies and debt collectors frequently file unmeritorious claims against consumers Recent highprofile actions brought by the Consumer Financial Protection Bureau "CFPB" against JP Morgan Citibank and large debt collectors illustrate the breadth and importance of this phenomenon Due to the limited financial power of individuals consumers often do not defend against such baseless claims which results in the entry of millions of default judgments every year To combat this problem policymakers and scholars have explored a variety of courtbased solutions that would make it easier for consumers to defend in court but these prove ineffectualTo solve the problem of …

Regulating By Example, Susan C. Morse, Leigh Osofsky

Articles

Agency regulations are full of examples. Regulated parties and their advisors parse the examples to develop an understanding of the applicable law and to determine how to conduct their affairs. However, the theoretical literature contains no study of regulatory examples or of how they might be interpreted. Courts differ about whether examples serve as an independent source of law. There is uncertainty about the proper role of this frequently used regulatory tool.

In this Article, we argue that regulatory examples make law. Our claim is that, as a default rule, the legal content offered by regulatory examples is coequal with, …

Dispute Settlement Under The Next Generation Of Free Trade Agreements, Kathleen Claussen

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No abstract provided.

Justice Beyond Dispute, Mary Anne Franks

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No abstract provided.

Happy Birthday Siri! Dialing In Legal Ethics For Artificial Intelligence, Smartphones, And Real Time Lawyers, Jan L. Jacobowitz, Justin Ortiz

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No abstract provided.

The New Separability, Lili Levi

Articles

In Star Athletica v. Varsity Brands, the Supreme Court recently unveiled a new approach to separability. Because copyright law protects expression, not function, aesthetic features of useful articles are eligible for copyright protection only if they are separable from the functional work in which they are incorporated. But the Copyright Actdoes not define separability, and Star Athletica is the latest judicial effort to try to fill that void. Unfortunately, the new separability is open to a wide range of critiques. Relatively low-hanging fruit are the vagueness and indeterminacy of the new test, the Court's unsatisfactory attempts to avoid defining "function," …

Real "Fake News" And Fake "Fake News", Lili Levi

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No abstract provided.

Modularity In Cross-Border Insolvency, Andrew B. Dawson

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No abstract provided.

Beyond Norms: Using International Economic Tools To Deter Malicious State-Sponsored Cyber Activities, Kathleen Claussen

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In thinking about strategy and doctrine for cyberspace, one cannot ignore either the cyber domain's interaction with other domains or the applicability of existing legal tools to address cyberspace issues. This Comment focuses on the latter and argues that any discussion regarding deterrence and a playbook for consequences for cyber incidents by state actors ought necessarily to include a careful examination of existing plays, particularly where those incidents have an economic component as many do. Focusing on multilateral institutions, regional and bilateral trade and investment agreements, and unilateral tariff and non-tariff trade and investment tools, this Comment maintains that current …

The Law Firm Chief Innovation Officer: Goals, Roles, And Holes, Michele M. Destefano

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No abstract provided.

Adminization: Gatekeeping Consumer Contracts, Yonathan A. Arbel

Articles

Large companies and debt collectors frequently file unmeritorious claims against consumers. Recent high-profile actions brought by the Consumer Financial Protection Bureau against J.P. Morgan, Citibank, and other large debt collectors illustrate the breadth and importance of this phenomenon. Due to the limited financial power of individuals, consumers often do not defend against such baseless claims, which results in the entry of millions of default judgments every year. To combat this problem, policymakers and scholars have explored a variety of court-based solutions that would make it easier for consumers to defend in court, but these prove ineffectual.

To solve the problem …

Big Data: Destroyer Of Informed Consent, A. Michael Froomkin

Articles

The 'Revised Common Rule' took effect on January 21, 2019, marking the first change since 2005 to the federal regulation that governs human subjects research conducted with federal support or in federally supported institutions. The Common Rule had required informed consent before researchers could collect and use identifiable personal health information. While informed consent is far from perfect, it is and was the gold standard for data collection and use policies; the standard in the old Common Rule served an important function as the exemplar for data collection in other contexts. Unfortunately, true informed consent seems incompatible with modern analytics …

The Myth Of Free, John M. Newman

Articles

Myths matter. This Article is the first to confront a powerful myth that pervades modern economic, technological, and legal discourse: the Myth of Free. The prevailing view is that consumers capture massive welfare surplus from a flood of innovative new products that are offered free of charge. Economists, legal scholars, and industry stakeholders created an origin story-a myth-to explain how these products became "Free."

But that orthodox origin story is fatally flawed. This Article formalizes, then debunks, the Myth of Free and its underlying assumptions. The Myth is riddled with internal inconsistencies, logical errors, and factual. inaccuracies. In their place, …

Severe Brain Injury, Disability, And The Law: Achieving Justice For A Marginalized Population, Megan S. Wright, Nina Varsava, Joel Ramirez, Kyle Edwards, Nathan Gueveremont, Tamar Ezer, Joseph J. Fins

Articles

Thousands of persons with severe brain injury who are minimally conscious or "locked in" are wrongly treated as if they are unconscious. Such individuals are unable to advocate for themselves and are typically segregated from society in hospitals or nursing homes. As a result, they constitute a class of persons who often lack access to adequate medical care, rehabilitation, and assistive devices that could aid them in communication and recovery. While this problem is often approached from a medical or scientific point of view, here we frame it as a legal issue amenable to legal remedies. This Article comprehensively explores …

Strategic Litigation To Advance Public Health, Tamar Ezer, Priti Patil

Articles

The HIV movement has relied on strategic litigation as an important tool to develop and enforce legal protections critical to health. This experience contains lessons on the potential of strategic litigation to advance public health more generally. Beyond impacting laws and policies, strategic litigation can change practice, breathing life into existing legal rules never implemented. While cases may target a particular law, policy, or practice, indirect impacts beyond a particular court decision on future cases, other branches of government, and the public record may be just as important. Each case is only one step towards change, and a judgment can …