Digital Commons Network^™

Shattering The One-Way Mirror: Discovery In Immigration Court, Geoffrey Heeren

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No abstract provided.

Response: Means, Ends, And Institutions, Charlton C. Copeland

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Beyond Textualism: Why Originalist Theory Must Apply General Principles Of Interpretation To Constitutional Law, Richard A. Epstein

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Treaty Termination And Historical Gloss, Curtis A. Bradley

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The termination of U.S. treaties provides an especially rich example of how governmental practices can provide a “gloss” on the Constitution’s separation of powers. The authority to terminate treaties is not addressed specifically in the constitutional text and instead has been worked out over time through political-branch practice. This practice, moreover, has developed largely without judicial review. Despite these features, Congress and the President—and the lawyers who advise them—have generally treated this issue as a matter of constitutional law rather than merely political happenstance. Importantly, the example of treaty termination illustrates not only how historical practice can inform constitutional understandings …

'A Reflective Conversation: Community And Hei Perspectives On Community-Based Research', Niamh O'Reilly, Catherine Bates

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This paper is a reflective correspondence between a community partner and a community-based research coordinator in a higher education institute (HEI). We asked each other questions about our experience of collaborating on two community-based research (CBR) projects, in order to share our learning from our collaboration, and to relate this to the wider context in order to develop recommendations for others – community partners and HEI staff – who would like to initiate CBR projects in the future.

Performance Of Meshed Tree Protocols For Loop Avoidance In Switched Networks, Kuhu Sharma, Bill Stackpole, Daryl Johnson, Nirmala Shenoy, Bruce Hartpence

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Loop free frame forwarding in layer 2 switched networks that use meshed topologies to provision for link and path redundancy is a continuing challenge. The challenge is addressed through special protocols at layer 2 that build logical trees over the physically meshed topologies, along which frames can be forwarded. The first such protocol was based on the spanning tree. The spanning tree protocol (STP) had high convergence times subsequent to topology changes. Rapid STP and IETF RFC 5556 Transparent Interconnection of Lots of Links (TRILL) on Router Bridges (RBridges) were then developed to reduce the convergence times. RSTP cntinued to …

Self-Regulated Learning And The Role Of Eportfolios In Business Studies, Amparo Soler-Dominguez, Lucia Morales, Valentina Tarkovska

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Through a case study supported by observation techniques, and questionnaires to gather data, we explored the use of ePortfolios as an efficient assessment tool to assist business degree students. Our main focus was a postgraduate course in which finance modules were a major component. We analysed the role of ePortfolios in Higher Education Institutions over a period of four academic years. Our findings suggest that ePortfolios could be used to facilitate and enhance students’ selfregulated learning. The role of the instructor was found to be fundamental in the early stages of the learning process. This role diminished as students became …

A Decade Of Adaptive Governance Scholarship: Synthesis And Future Directions, Barbara Cosens

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Adaptive governance is an emergent form of environmental governance that is increasingly called upon by scholars and practitioners to coordinate resource management regimes in the face of the complexity and uncertainty associated with rapid environmental change. Although the term “adaptive governance” is not exclusively applied to the governance of social-ecological systems, related research represents a significant outgrowth of literature on resilience, social-ecological systems, and environmental governance. We present a chronology of major scholarship on adaptive governance, synthesizing efforts to define the concept and identifying the array of governance concepts associated with transformation toward adaptive governance. Based on this synthesis, we …

Around The World Of Securities Fraud In Eighty Motions To Dismiss, Wendy Gerwick Couture

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Securities Regulation Of Alternative Litigation Finance, Wendy Gerwick Couture

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It's Worth The Hassle Part Ii: How Does The Baby Veronica Case Impact Cases Involving Indian Children?, Elizabeth Brandt

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The Enigma Of The Single Entity, Mark Anderson

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After Recess: Historical Practice, Textual Ambiguity, And Constitutional Adverse Possession, Curtis A. Bradley, Neil S. Siegel

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The Supreme Court’s decision last Term in NLRB v. Noel Canning contains an especially strong and sustained endorsement of the relevance of historical practice to discerning the Constitution’s distribution of authority between Congress and the President.¹ In interpreting the scope of the Recess Appointments Clause,² the Court gave significant attention to how governmental actors had understood and applied the Clause throughout history.The Court did so, moreover, as part of a self-conscious approach to constitutional interpretation.When construing“constitutional provisions regulating the relationship between Congress and the President,” the Court explained, “great weight” should be given to “‘[l]ong settled and established …

Compliance Of The United States With International Labor Law, David Weissbrodt, Matthew Mason

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The article focuses on the U.S. compliance with international labor law in 2014. Topics include the U.S. membership in the International Labour Organization (ILO), the number of labor conventions followed by the U.S. in 2014, and labor laws and legislation in the U.S. in 2014. Information is provided on ILO standards, including the right to organize, the rights of noncitizen workers, and workers' rights of collective bargaining and strikes.

Human Rights Standards Concerning Transnational Corporations And Other Business Entities, David Weissbrodt

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The rapid expansion of transnational economic activity and corresponding growth in power of transnational corporations and other business entities have prompted renewed international discourse and action over the past decade to address the human rights abuses committed by businesses. 2 The responsibility of businesses to respect human rights has been at the heart of the discussion. The Universal Declaration of Human Rights (UDHR), adopted in 1948, states that "every individual and every organ of society ... shall strive by teaching and education to promote respect for these rights and freedoms and ... to secure their universal and effective recognition and …

Testing, Diversity, And Merit: A Reply To Dan Subotnik And Others, Andrea A. Curcio, Carol L. Chomsky, Eileen Kaufman

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The false dichotomy between achieving diversity and rewarding merit frequently surfaces in discussions about decisions on university and law school admissions, scholarships, law licenses, jobs, and promotions. “Merit” judgments are often based on the results of standardized tests meant to predict who has the best chance to succeed if given the opportunity to do so. This Article criticizes over-reliance on standardized tests and responds to suggestions that challenging the use of such tests reflects a race-comes-first approach that chooses diversity over merit. Discussing the firefighter exam that led to the Supreme Court decision in Ricci v. DiStefano, as well as …

Taking Images Seriously, Elizabeth G. Porter

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Law has been trapped in a stylistic straitjacket. The Internet has revolutionized media and communications, replacing text with a dizzying array of multimedia graphics and images. Facebook hosts 150 billion photos. Courts spend millions on trial technology. But those innovations have barely trickled into the black-and-white world of written law. Legal treatises continue to evoke Blackstone and Kent; most legal casebooks are facsimiles of Langdell’s; and legal journals resemble the Harvard Law Review circa 1887. None of these influential forms of disseminating the law has embraced — or even nodded to — modern, image-saturated communication norms. Litigants, scholars and courts …

Pivoting To Progressivism: Justice Stephen J. Chadwick, The Washington Supreme Court And Change In Early Twentieth Century Judicial Reasoning And Rhetoric, Hugh D. Spitzer

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Relatively little attention has been paid to the part played by state judges in upholding progressive legislation in the early twentieth century in a period when the United States Supreme Court often overturned reform measures on constitutional grounds. In contrast, between 1910 and 1913, the Washington State Supreme Court rapidly changed its doctrinal analysis and its stance on judicial deference to elected lawmakers, aligning the state’s constitutional law with the public’s new views on the responsibility of government in addressing social and economic challenges. A fascinating window on the progressive period and changes in judicial reasoning and rhetoric is provided …

Ethics Issues In Representing Intergovernmental Entities, Hugh D. Spitzer

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The creation and operation of intergovernmental entities raise special professional responsibility issues for the lawyers involved in the formation and the long-term activities of multi-governmental bodies. It is particularly important for attorneys to pay attention to conflicts of interest that arise from giving simultaneous assistance to several governments, or from representing one entity in negotiations with other governments the attorney or firm represents. This paper briefly reviews various categories of interlocal entities in Washington State, as an example. It points out the distinctly different dynamics during the formation period and the operations period of an intergovernmental body. It then analyzes …

China’S Apologetic Justice: Lessons For The United States?, Xuan-Thao Nguyen

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Many scholars have criticized Congressional apology resolutions for slavery as inadequate and ineffective. Ironically, Congress may look to China’s apologetic justice in intentional intellectual property infringements to learn valuable lessons about apologies and how to incorporate them into righting wrongs. China requires that the wrongdoer who intentionally harms or infringes the intellectual property rights of another make a public apology in a newspaper or trade journal, in addition to stopping the harm and paying for compensatory damages and costs. If the wrongdoer does not timely make the public apology, the infringed party will draft and publish the public apology in …

Communications Privacy For And By Whom?, Ryan Calo

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A response to Professor Orin Kerr's The Next Generation Communications Privacy Act, which makes a series of quiet assumptions, however, that readers may find controversial.

First, the Article reads as though ECPA exists only to protect citizens from public officials. According to its text and to case law, however, ECPA also protects private citizens from one another in ways any new act should revisit.

Second, the Article assumes that society should address communications privacy with a statute, whereas specific experiences with ECPA suggest that the courts may be better suited to address communications privacy—for reasons Professor Kerr himself offers. …

Code, Nudge, Or Notice?, Ryan Calo

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Regulators are increasingly turning to means other than law to influence citizen behavior. This Essay compares three methods that have particularly captured the imagination of scholars and officials in recent years. Much has been written about each method in isolation. This Essay considers them together for the first time in order to generate a novel normative insight about the nature of regulatory choice.

The first alternative method, known colloquially as architecture or “code,” occurs when regulators change a physical or digital environment to make undesirable conduct difficult. Speed bumps provide a classic example. The second method, libertarian paternalism or “nudging,” …

Digital Market Manipulation, Ryan Calo

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In 1999, Jon Hanson and Douglas Kysar coined the term “market manipulation” to describe how companies exploit the cognitive limitations of consumers. For example, everything costs $9.99 because consumers see the price as closer to $9 than $10. Although widely cited by academics, the concept of market manipulation has had only a modest impact on consumer protection law.

This Article demonstrates that the concept of market manipulation is descriptively and theoretically incomplete, and updates the framework of the theory to account for the realities of a marketplace that is mediated by technology. Today’s companies fastidiously study consumers and, increasingly, personalize …

Crowdfunding's Impact On Start-Up Ip Strategy, Sean M. O'Connor

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This Paper proceeds in Part I by reviewing the crowdfunding landscape and its potential benefits for start-ups, especially with regard to IP strategies. Part II examines the provisions of the JOBS Act and argues that the disclosure requirements of the CROWDFUND Act title will make the latter less attractive than other start-up financing options and may negatively affect start-ups’ IP strategies, in part by risking the disclosure of enabling aspects of patentable inventions.

Part III explores issues arising from the widespread involvement of many potentially unsophisticated investors who have no connection to the start-up. This contrasts with current unsophisticated investors …

Beyond Contrastive Rhetoric: Helping International Lawyers Use Cohesive Devices In U.S. Legal Writing, Elizabeth R. Baldwin

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This Article attempts to use linguistics, specifically text analysis and pragmatics, to help explain how and why lawyers who are non-native speakers of English (NNS) struggle with cohesion in their U.S. legal writing. Then in light of that discussion, it offers a four-step, receptive and productive exercise to engage students in contrastive analysis of cohesive features across languages and cultures.

It begins by distinguishing coherence (top-down flow related to rhetorical preferences and organization of content and argument) from cohesion (bottom-up flow related to the surface features that exhibit connections between clauses). As background, it explores the role of cohesion in …

Transparently Opaque: Understanding The Lack Of Transparency In Insurance Consumer Protection, Daniel Schwarcz

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Consumer protection in most domains of financial regulation centers on transparency. Broadly construed, transparency involves making relevant information available to consumers as well as others who might act on their behalf, such as academics, journalists, newspapers, consumer organizations or other market watchdogs. By contrast, command and control regulation that affirmatively limits financial firms’ products or pricing is relatively uncommon. This Article describes a remarkable inversion of this pattern: while state insurance regulation frequently employs aggressive command and control consumer protection regulation, it typically does little or nothing to promote transparent markets. Rather, state lawmakers routinely either completely ignore transparency-oriented reforms …

Hybrid Energy Governance, Hari M. Osofsky, Hannah J. Wiseman

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This Article develops a novel theory of energy governance and uses it to assess how institutional innovation can help meet critical challenges. Energy law is substantively complex and deeply fragmented. Each energy sector - including fuel extraction and pipelines, electricity generation and transmission, and transportation - has its own legal regime and federalism approach; confusion often exists at moments of crisis about how much authority federal, state, and local regulators have in these areas. The complexity and fragmentation of energy law are particularly problematic because the energy system faces major transitions due to emerging technology, more unpredictable and extreme weather …

Essential Health Benefits And The Affordable Care Act: Law And Process, Nicholas Bagley, Helen Levy

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Starting in 2014, the Affordable Care Act (ACA) will require private insurance plans sold in the individual and small-group markets to cover a roster of "essential health benefits." Precisely which benefits should count as essential, however, was left to the discretion of the Department of Health and Human Services (HHS). The matter was both important and controversial. Nonetheless, HHS announced its policy by posting on the Internet a thirteen-page bulletin stating that it would allow each state to define essential benefits for itself. On both substance and procedure, the move was surprising. The state-by-state approach departed from the uniform, federal …

Contemporary Practice Of The United States Relating To International Law, January 2014, Kristina Daugirdas, Julian Davis Mortenson

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• Progress Is Made Implementing U.S.-Russia Framework for Eliminating Syrian Chemical Weapons • United States Advocates for Syrian Peace Conference • United States Extends Deadline for Signing of Bilateral Security Agreement with Afghanistan • China Announces New Air Defense Identification Zone over East China Sea, Prompting U.S. Response • United States and Six Other States Reach Interim Agreement on Iranian Nuclear Program

An Approach To Engaging Students In The Assessment Process, Henry Etlinger, Rajendra K. Raj

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Haden, Antinori and Carr (2013) described an approach to engage faculty in the assessment process at Long Island University. Here we briefly describe a complementary approach to assessment that we have begun to experiment with at RIT: the active engagement of students in their own assessment.