Digital Commons Network^™

Obama’S Aumf Legacy, Curtis A. Bradley, Jack L. Goldsmith

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In the fifteen years since the Authorization for Use of Military Force (AUMF) was enacted on September 18,2001, the Taliban has been removed from power but not eliminated; Osama Bin Laden has been killed and the senior leaders of Al Qaeda as of 9/11 have been captured,killed, or driven underground, although Al Qaeda remains a threat; numerous Al Qaeda affiliates have sprung up around the globe, most notably in Iraq, Yemen, Syria, and Somalia; and most ominously, the Islamic State has arisen from the ashes of Al Qaeda in Iraq to become what the Director of National Intelligence has described …

Fuel Price Elasticities In The U.S. Combination Trucking Sector, James J. Winebrake, Erin H. Green, Bryan Comer, Chi Li

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This paper estimates fuel price elasticities of combination trucking operations in the United States between 1970 and 2012. We evaluate trucking operations in terms of vehicle miles traveled and fuel consumption for combination trucks. Our explanatory variables include measures of economic activity, energy prices, and indicator variables that account for important regulatory shifts and changes in data collection and reporting in national transportation datasets. Our results suggest that fuel price elasticities in the United States’ trucking sector have shifted from an elastic environment in the 1970s to a relatively inelastic environment today. We discuss the importance of these results for …

A Theory Of Copyright Authorship, Christopher Buccafusco

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The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright may attach to the original, fixed, and minimally creative form or manner …

An Extended Discussion On A High-Capacity Covert Channel For The Android Operating System, Timothy Heard, Daryl Johnson

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In “Exploring a High-Capacity Covert Channel for the Android Operating System” [1], a covert channel for communicating between different applications on the Android operating system was introduced and evaluated. This covert channel proved to be capable of a much higher throughput than any other comparable channels which had been explored previously. This article will expand on the work which was started in [1]. Specifically, further improvements on the initial covert channel concept will be detailed and their impact with regards to channel throughput will be evaluated. In addition, a new protocol for managing connections and communications between collaborating applications purely …

Fuel Price Elasticities For Single-Unit Truck Operations In The United States, James J. Winebrake, Erin H. Green, Bryan Comer, Chi Li

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This paper provides fuel price elasticity estimates for single-unit truck activity, where single-unit trucks are defined as vehicles on a single frame with either (1) at least two axles and six tires; or (2) a gross vehicle weight greater than 10,000 lb. Using data from 1980 to 2012, this paper applies first-difference and error correction models and finds that single-unit truck activity is sensitive to certain macroeconomic and infrastructure factors (gross domestic product, lane miles expansion, and housing construction), but is not sensitive to diesel fuel prices. These results suggest that fuel price elasticities of single unit truck activity are …

Avoiding Decline: Fostering Resilience And Sustainability In Midsize Cities, Barbara Cosens

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Eighty-five percent of United States citizens live in urban areas. However, research surrounding the resilience and sustainability of complex urban systems focuses largely on coastal megacities (>1 million people). Midsize cities differ from their larger counterparts due to tight urban-rural feedbacks with their immediate natural environments that result from heavy reliance and close management of local ecosystem services. They also may be less path-dependent than larger cities due to shorter average connection length among system components, contributing to higher responsiveness among social, infrastructural, and ecological feedbacks. These distinct midsize city features call for a framework that organizes information and …

The Course Source: The Casebook Evolved, Stephen Johnson

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Law students are changing, law practice is changing, law schools are criticized for failing to prepare practice-ready lawyers, and there is nearly universal consensus that legal education must transform. However, the principal tool that many faculty members rely on to prepare their courses, the Langdellian casebook, is ill-suited for such transformation. This prototypical casebook, which is still the standard for many courses today, was designed for the Socratic dialogue and the case method mode of instruction. Although there is still a place for that method in legal education, other methods of instruction—the carriage bolts and lag screws of modern legal …

Financial Stability, Financial Services, And The Single Market, Caroline Bradley

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No abstract provided.

Redundant Public-Private Enforcement, Zachary D. Clopton

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No abstract provided.

Strategic Rulemaking Disclosure, Jennifer Nou, Jed Stiglitz

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No abstract provided.

Beyond Liberty: Toward A History And Theory Of Economic Coercion, Hiba Hafiz

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No abstract provided.

The Supreme Court As A Filter Between International Law And American Constitutionalism, Curtis A. Bradley

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This Essay describes and defends the Supreme Court’s role as a filter between international law and the American constitutional system. In this role,the Court ensures that when international law passes into the U.S. legal system, it does so in a manner consistent with domestic constitutional values. This filtering role is appropriate, the Essay explains, in light of the different processes used to generate international law and domestic law and the different functions served by these bodies of law. The Essay provides examples of this filtering role in four scenarios: the intersection of treaties and individual rights; the relationship between the …

The United Nations Working Group On Arbitrary Detention: Procedures And Summary Of Jurisprudence, David Weissbrodt, Brittany Mitchell

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For nearly twenty-five years, the United Nations Working Group on Arbitrary Detention has provided a well-respected jurisprudence on fundamental human rights, such as: freedom of expression and religion; limits on administrative detention; restrictions on discrimination in detention; and violations of the right to fair trial. The Working Group has amassed a unique collection of legal principles applicable to individuals detained by the United States, including asylum seekers, immigrants, and refugees. The decisions of the Working Group have also applied to non-state actors.

The Grass Is Not Always Greener: Congressional Dysfunction, Executive Action, And Climate Change In Comparative Perspective, Hari Osofsky, Jacqueline Peel

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Partisan climate change politics, paired with a legislative branch that is often deeply divided between two parties, has led to congressional gridlock in the United States. Numerous efforts at passing comprehensive climate change legislation have failed, and little prospect exists for such legislation in the foreseeable future. As a result, executive action under existing federal environmental statutes--often in interaction with litigation--has become the primary mechanism for national-level regulation of greenhouse gas emissions from motor vehicles and power plants. Although many observers critique this state of affairs and wish for a legislature more able to act. this essay argues that more …

"Ideology" Or "Situation Sense"? An Experimental Investigation Of Motivated Reasoning And Professional Judgment, Dan M. Kahan, David Hoffman, Danieli Evans, Neal Devins, Eugene Lucci, Katherine Cheng, Katherine Cheng, Katherine Cheng

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This Article reports the results of a study on whether political predispositions influence judicial decisionmaking. The study was designed to overcome the two principal limitations on existing empirical studies that purport to find such an influence: the use of nonexperimental methods to assess the decisions of actual judges; and the failure to use actual judges in ideologically-biased-reasoning experiments. The study involved a sample of sitting judges (n = 253), who, like members of a general public sample (n = 800), were culturally polarized on climate change, marijuana legalization and other contested issues. When the study subjects were assigned to analyze …

Empirical Methods And Critical Race Theory: A Discourse On Possibilities For A Hybrid Methodology, Mario L. Barnes

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No abstract provided.

Branding Taxation, Xuan-Thao Nguyen, Jeffrey A. Maine

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Branding is important not only to businesses,but also to the economy. The intellectual property laws and tax laws should thus further the legitimate goals of encouraging and protecting brand investments while maintaining a sound tax base. Intellectual property protections for branding depend on advertisement and enforcement, both of which demand significant amounts of private investment by firms. Although one would expect similar tax treatments of both categories of investment, the categories are actually treated as vastly different for federal income tax purposes. Additionally, tax distinctions also exist within each category. The result is that some branding investments are expensed and …

Bringing Demonstrative Evidence In From The Cold: The Academy's Role In Developing Model Rules, Maureen A. Howard, Jeffry C. Barnum

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To this day, judges and advocates struggle with the definition and use of "demonstrative evidence." The ambiguity of this term (or its close cousins "illustrative evidence" and evidence offered "for illustrative purposes only") infects the judicial process with uncertainty, hindering advocates when preparing for trial and, in some cases, producing erroneous verdicts. For example, the Seventh Circuit recently reversed a case for improper use of a demonstrative exhibit, and on retrial the result swung from a defense verdict to an $11 million plaintiffs victory. Uncertainty about the admission and use of demonstrative evidence has festered for decades. Lawyers innovate in …

Robots As Legal Metaphors, Ryan Calo

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This Article looks at the specific role robots play in the judicial imagination. The law and technology literature is replete with examples of how the metaphors and analogies that courts select for emerging technology can be outcome determinative. Privacy law scholar Professor Daniel Solove argues convincingly, for instance, that George Orwell's Big Brother metaphor has come to dominate, and in ways limit, privacy law and policy in the United States. Even at a more specific, practical level, whether a judge sees email as more like a letter or a postcard will dictate the level of Fourth Amendment protection she is …

Visual Rulemaking, Elizabeth G. Porter, Kathryn A. Watts

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Federal rulemaking has traditionally been understood as a text-bound, technocratic process. However, as this Article is the first to uncover, rulemaking stakeholders—including agencies, the President, and members of the public—are now deploying politically tinged visuals to push their agendas at every stage of high-stakes, often virulently controversial, rulemakings. Rarely do these visual contributions appear in the official rulemaking record, which remains defined by dense text, lengthy cost-benefit analyses, and expert reports. Perhaps as a result, scholars have overlooked the phenomenon we identify here: the emergence of a visual rulemaking universe that is splashing images, GIFs, and videos across social media …

Controlling Presidential Control, Kathryn A. Watts

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Presidents Reagan and Clinton laid the foundation for strong presidential control over the administrative state, institutionalizing White House review of agency regulations. Presidential control, however, did not stop there. To the contrary, it has evolved and deepened during the presidencies of George W. Bush and Barack Obama. Indeed, President Obama’s efforts to control agency action have dominated the headlines in recent months, touching on everything from immigration to drones to net neutrality.

Despite the entrenchment of presidential control over the modern regulatory state, administrative law has yet to adapt. To date, the most pervasive response both inside and outside the …

On Legal Scholarship: Questions For Judge Harry T. Edwards, Ronald K.L. Collins

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The life of Judge Harry T. Edwards is one very much steeped in writing. His passion dates back at least to his years at Uniondale High School when he was the editor of the school newspaper. In the legal realm, that passion traces back to 1964 and his days on the Michigan Law Review when he published two student Notes. In the half-century since then, Judge Edwards has authored six books and more than 90 scholarly articles or essays. As a lawyer, educator, administrator, arbitrator, and now jurist, Harry Edwards has put his ideas into print concerning an array of …

The Business Of Treaties, Melissa J. Durkee

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Business entities play important and underappreciated roles in the production of international treaties. At the same time, international treaty law is hobbled by state-centric presumptions that render its response to business ad hoc and unprincipled.

This Article makes three principal contributions. First, it draws from case studies to demonstrate the significance of business participation in treaty production. The descriptive account invites a shift from attention to traditional lobbying at the domestic level and private standard-setting at the transnational level to the ways business entities have become autonomous international actors, using a panoply of means to transform their preferred policies into …

Copyright's Illogical Exclusion Of Conceptual Art That Changes Over Time, Zahr K. Said

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This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection.

There are of course both normative and descriptive questions around the …

Patented Electric Guitar Pickups And The Creation Of Modern Music Genres, Sean M. O'Connor

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This Essay provides an overview of how patents played a core role in developing world-changing musical genres. This may be surprising, as normally copyright law is associated with incentivizing advances in the creative arts. But as this Conference’s theme [The IP Platform: Supporting Invention and Inspiration] and presentations emphasize, the whole range of intellectual property (“IP”), especially when viewed as a platform, supports innovation across the spectrum of human ingenuity and creativity.

This Essay is also intended to be read in conjunction with a viewing of the live-music demonstration of how pickups transformed popular music, delivered at the Conference and …

Applying Kouzes & Posner's Leadership Concepts To Poverty Alleviation Work In The Developing World, John Oliphant

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Many people in the developing world struggle with significant poverty. People who feel trapped in a cycle of poverty often describe feeling inferior and powerless. Those who are relatively wealthy and in leadership roles may suffer from a different pathology that some have described as a “god- complex” in which a sense of superiority may develop, leading to the belief that they have been chosen to decide what is best for the poor. As the leaders of organizations that do poverty alleviation work in the developing world contemplate what approach to take when formulating their leadership style, they would do …

Identification Of A Parameter In Fourth-Order Partial Differential Equations By An Equation Error Approach, Nathan Bush, Baasansuren Jadamba, Akhtar A. Khan, Fabio Raciti

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The objective of this short note is to employ an equation error approach to identify a variable parameter in fourth-order partial differential equations. Existence and convergence results are given for the optimization problem emerging from the equation error formulation. Finite element based numerical experiments show the effectiveness of the proposed framework.

Remaking Energy: The Critical Role Of Energy Consumption Data, Alexandra Klass, Elizabeth Wilson

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This Article explores the public policy benefits associated with increased access to energy consumption data as well as the legal and institutional barriers that currently prevent such access. As state and local governments as well as electricity users attempt to improve the efficiency of their buildings, reduce greenhouse gas emissions, and realize the promises of improved demand side management of energy resources, the need for electricity and other energy-related data becomes even more pressing. But the current law that balances making energy consumption data available against any privacy or confidentiality interests in the data is underdeveloped. Thus, this Article draws …

No Longer A Neutral Magistrate: The Foreign Intelligence Surveillance Court In The Wake Of The War On Terror, Robert Stein, Walter Mondale, Caitlinrose Fisher

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Since the founding of our nation, the executive, judicial, and legislative branches of government have struggled with maintaining an appropriate balance between gathering intelligence for national security purposes and protecting the civil liberties of United States citizens. This difficulty is compounded by the uniquely challenging separation of powers issues national security problems present. In 1978, after the scale tipped too far toward “security” at the expense of personal liberties, the United States Senate formed the United States Select Committee to Study Governmental Operations with Respect to Intelligence Activities (Church Committee) to investigate executive overreach and recommend structural and statutory changes …

Inclusivity In Corporate Scholarship, June Carbone, Afra Afsharipour, Naomi Cahn, Darren Rosenblum

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For the past two decades, a growing number of women, people of color, and LGBTQ+ scholars have reshaped corporate law scholarship. This Essay, prepared for the UMKC Law Review "Now. Women, Equality, and the Legal Academy" symposium, explores how their contributions have challenged dominant narratives in corporate law. While these contributions span a wide range of issues, three central themes emerge. First, much of this scholarship contributes to long-standing debates in corporate law by critically examining existing governance structures and introducing new perspectives that challenge conventional views on corporate purpose, power, and value. Second, and strongly connected to the first …