Digital Commons Network^™

Dead Hand Arguments And Constitutional Interpretation, Adam M. Samaha

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This Article attempts to reset the relationship between theories of constitutional authority and methods of constitutional interpretation. Several scholars assert that our reasons for respecting the United States Constitution as law-despite its imperfection and dead authors-strongly influence the proper method of interpretation for that text. The "why" of authority supposedly drives the "how" of interpretation. But this relationship can be better understood. To the extent an authority theory is distinguishable from interpretive method, it is true that the former will identify what counts as law to be interpreted. Beyond that, the asserted relationship fades. First, some authority theories actually depend …

Judicial Transparency In An Age Of Prediction, Adam M. Samaha

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The Empirical Legal Studies (ELS) movement is making strides toward understanding judicial behavior, and ELS models could become the foundation for more accurate prediction of judicial decisions. This essay raises two questions. First, what would an age of predictable judicial behavior look like? Second, would satisfying the informational needs of ELS prediction models also exhaust the demands for 'judicial transparency"? The essay concludes that a state of predictable judicial behavior, if somehow stable, would leave almost no litigation to observe; and that a prediction-oriented information policy would nearly meet the demands of today's transparency advocates. One shortfall involves the intrinsic …

Soft Law: Lessons From Congressional Practice, Jacob Gersen, Eric A. Posner

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Soft law consists of rules issued by lawmaking bodies that do not comply with procedural formalities necessary to give the rules legal status yet nonetheless influence the behavior of other lawmaking bodies and of the public. Soft law has been much discussed in the literatures on international law, constitutional law, and administrative law, yet congressional soft-lawmaking, such as the congressional resolution, has received little attention. Congressional soft law affects behavior by informing the public and political institutions about the intentions and policy preferences of Congress, which are informative about future hard law as well as of Congress's view of the …

Self-Execution And Treaty Duality, Curtis A. Bradley

Articles

Pursuant to Article II of the Constitution, the President has the power to make treaties with the advice and consent of two-thirds of the Senate, and these treaties uncontroversially become binding on the United States as a matter of international law. The status of such treaties within the U.S. legal system is less clear. The Supremacy Clause states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the"supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v Neilson, however, it has been understood …

Learning From The Limitations Of Deterrence Research, Michael Tonry

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No abstract provided.

The Other Famous Marks Doctrine, Xuan-Thao Nguyen

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Debates on protection for famous trademarks often center around state and federal antidilution laws. Both the old Federal Trademark Dilution Act of 1995 and the new Trademark Dilution Revision Act of 2006 have generated many law review articles and numerous symposia. The dilution law focuses on trademarks deemed famous within U.S. boundaries. A debate on protection for famous trademarks today is incomplete without a discussion of the other famous marks doctrine. The other famous marks doctrine recognizes marks famous in other countries without actual use in the country where a user adopts the trademark on similar goods and services.

In …

The Influence Of Law On Sea Power Doctrines: The New Maritime Strategy And The Future Of The Global Legal Order, Craig H. Allen

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For much of the 2006-07 academic year, elements of the US Naval War College facilitated an elaborate process designed to provide the intellectual foundations for the Chief of Naval Operations (CNO) and his staff to draw upon in drafting a new maritime strategy. The process brought together experts from throughout the world to take part in workshops, strategic foundation "war" games, conferences and listening sessions.

It was my privilege as the Charles H. Stockton Chair of International Law to serve as legal advisor throughout the process. This article summarizes the contributions of the Naval War College International Law Department (ILD) …

The Dangers Of The Digital Millennium Copyright Act: Much Ado About Nothing?, Steve P. Calandrillo, Ewa A. Davison

Articles

In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), a landmark piece of legislation aimed at protecting copyright holders from those who might manufacture or traffic technology capable of allowing users to evade piracy protections on the underlying work. At its core, the DMCA flatly prohibits the circumvention of “technological protection measures” in order to gain access to copyrighted works, but provides no safety valve for any traditionally protected uses.

While hailed as a victory by the software and entertainment industries, the academic and scientific communities ties have been far less enthusiastic. The DMCA’s goal of combating piracy is …

A "New Approach" To Standards And Consumer Protection, Jane Winn, Nicolas Jondet

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As consumer use of information and communication technology (ICT) products grows, the importance of ICT standards in consumer markets also grows. While standards for manufactured products were once developed at the national level in formal standards bodies, standards for ICT products today are more likely to be developed by informal standards bodies that target global markets, creating new challenges for national consumer protection laws.

As part of the process of creating a single market, the EU developed an innovative and successful form of “coregulation” known as the “New Approach” that coordinated the work of legislators and standards developers to reduce …

Real Collaborative Context: Opinion Writing And The Appellate Process, Tom Cobb, Sarah Kaltsounis

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Several questions motivated us to begin experimenting with new and more ambitious forms of collaboration in our teaching. We aimed to infuse the classroom with what might be called “real collaborative context.” We looked for instances of collaboration that actually occur in the legal process and asked students to participate in those processes in order to gain a better understanding of the social aspects of legal practice and jurisprudence.

Our hope is that students will experience collaboration not so much as a classroom performance whose main goal is to assist in learning something else that could also be taught in …

Rethinking Trademark Fair Use, William Mcgeveran

Articles

The ever-expanding scope and strength of trademark rights has caused justifiable fears of a threat to free expression. Until now, however, concerned scholars generally focused on perfecting the substance of legal rules that balance free speech against other goals. This effort is misplaced because most cases raising these issues in recent years ended in judicial decisions that favored speech. The real danger arises from the procedural structure of trademark law's various fair use doctrines, which generate excessive ambiguity and prolong litigation before ever reaching such positive outcomes. Resulting administrative costs discourage speakers from using trademarks expressively in the first place, …

Congressional Oversight Of National Security Activities: Improving Information Funnels, Heidi Kitrosser

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This article, which was prepared for a spring 2007 conference at Cardozo Law School on "The Domestic Commander in Chief," considers constitutional and policy questions regarding congressional oversight of national security activities. The article focuses on what I call an "information funnel" approach. Such an approach involves funneling information only to discrete groups of people. For example, statutory provisions require that intelligence programs be shared with the congressional intelligence committees. Other statutory provisions permit certain narrowly defined covert actions to be reported only to the congressional leadership. The intended benefits of funneling are intuitive. Funneling plainly is directed toward balancing …

Investigation Of Optimal Heating And Cooling Systems In Residential Buildings, Angela L. Bolling, James A. Mathias

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This article compares four heating and cooling systems. The systems are: a high efficiency furnace and electric air conditioner; a ground source heat pump; an absorption air conditioner and direct heating; and a thermally driven heat pump; the last two systems use solar thermal energy and backup non-renewable energy. A comprehensive program was developed that predicted the entire life cycle cost, energy usage, exergetic efficiency, and exergy destruction, of all four systems operating in the same home figuratively placed in the cities of Louisville, KY; Houston, TX; Minneapolis, MN; Sacramento, CA; and Phoenix, AZ. The results showed that the vertical …

Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger

Articles

The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost- rather than liabilityminimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as …

When Should Original Meanings Matter?, Richard A. Primus

Articles

Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.

Sentencing: Where Case Theory And The Client Meet, Kimberly A. Thomas

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Criminal sentencing hearings provide unique opportunities for teaching and learning case theory. These hearings allow attorneys to develop a case theory in a context that both permits understanding of the concept and, at the same time, provides a window into the difficulties case theory can pose. Some features of sentencing hearings, such as relaxed rules of evidence and stock sentencing stories, provide a manageable application of case theory practice. Other features of sentencing hearings, such as the defendant's allocution, require an attorney to contend with competing "case theories," and as a result, to face the ethical and counseling challenge of …

International Standards For Detaining Terrorism Suspects: Moving Beyond The Armed Conflict-Criminal Divide, Monica Hakimi

Articles

Although sometimes described as war, the fight against transnational jihadi groups (referred to for shorthand as the "fight against terrorism") largely takes place away from any recognizable battlefield. Terrorism suspects are captured in houses, on street comers, and at border crossings around the globe. Khalid Shaikh Mohammed, the high-level Qaeda operative who planned the September 11 attacks, was captured by the Pakistani government in a residence in Pakistan. Abu Omar, a radical Muslim imam, was apparently abducted by U.S. and Italian agents off the streets of Milan. And Abu Baker Bashir, the spiritual leader of the Qaeda-affiliated group responsible for …

Billowing White Goo, Jessica D. Litman

Articles

The title of this symposium is the question: "Fair Use: "Incredibly Shrinking" or Extraordinarily Expanding?" I'd argue that the answer to the question is "no." Fair use isn't doing either. The size of the fair use footprint has stayed remarkably constant over the past 30 or even 50 years. What has expanded, extraordinarily, is the size of rights granted by the copyright law. It may seem as if fair use is either expanding or shrinking, because the greater reach of copyright has made a bunch of uses potentially fair that weren't even potentially infringing 50 years ago. In order to …

A Cumulus Project: Design And Implementation, Lizhe Wang, Gregor Von Laszewski, Marcel Kunze

Articles

The Cloud computing becomes an innovative computing paradigm, which aims to provide reliable, customized and QoS guaranteed computing infrastructures for users. This paper presents our early experience of Cloud computing based on the Cumulus project for compute centers. In this paper, we introduce the Cumulus project with its various aspects, such as design pattern, infrastructure, and middleware.

Learning To Live With League Tables And Ranking: The Experience Of Institutional Leaders, Ellen Hazelkorn

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This paper draws on the results of an international survey of HE leaders and senior managers which was supported by the OECD Programme on Institutional Management of Higher Education (IMHE) and the International Association of Universities (IAU). It focuses on how HEIs are responding to league tables and rankings (LTRS), and what impact or influence – positive or perverse – they are having on institutional behaviour, decision-making and actions. The growing body of academic research and journalist reportage is referenced to contextualise this international experience. The paper shows that while HE leaders are concerned about the impact of rankings, they …

A Low Polarization Sensitivity All-Fiber Wavelength Measurement System, Ginu Rajan, Yuliya Semenova, Gerald Farrell, Qian Wang, Pengfei Wang

Articles

A low polarization-sensitive all-fiber wavelength measurement system using a twisted macro-bend fiber edge filter together with polarization-insensitive (PI) 3-dB coupler is presented. Eliminating the polarization-dependent loss (PDL) is essential when macro-bending single-mode fiber is utilized as an edge filter. A new bending configuration to eliminate the PDL of a fiber edge filter is proposed in this letter by twisting the fiber by 90deg between two bending sections with equal length. The PDL of this configuration retains a low value even while the bending length is increased to achieve a steeper response for the edge filter. This configuration together with a …

Dual Frequency Dual Circularly-Polarised Patch Antenna With Wide Beamwidth, Xiulong Bao, Max Ammann

Articles

A dual-frequency dual-circularly polarised patch antenna with wide beamwidth is proposed. The two-layer structure comprises circular patches with offset circular slots connected to rectangular slots. They provide orthogonal perturbations realising RHCP and LHCP for the lower and upper bands, respectively. The wide beamwidth is realised by extending the substrate beyond the groundplane. Measurements show a maximum beamwidth of 180deg and gains of 3.9 and 0.5 dBic for zenith and 10deg elevation, respectively, for the upper band. The measured beamwidth for the low band is 130deg with a maximum gain of 3.9 and -0.7 dBic for zenith and 10deg elevation, respectively. …

Ratiometric Wavelength Monitor Based On Singlemode-Multimode-Singlemode Fiber Structure, Agus Hatta, Gerald Farrell, Qian Wang, Ginu Rajan, Pengfei Wang, Yuliya Semenova

Articles

An all-fiber ratiometric wavelength monitor for optical wavelength measurement is proposed and is investigated theoretically and experimentally. Two edge filters with opposite slope spectral responses based on singlemode-multimode-singlemode (SMS) fiber structures are developed. A ratiometric wavelength measurement system employing the developed SMS edge filters demonstrates a high discrimination range of 20.41 dB and a potential wavelength measurement resolution of 10 pm over a wavelength range from 1530 to 1560 nm.

The New Engineer: Between Employability And Social Responsibility, Eddie Conlon

Articles

The reasons behind the demand for what is sometimes called the New Engineer are critically examined and it is argued that a focus on employability alone is not sufficient to prepare socially responsible engineers. By examining issues around work organisation and sustainability it is proposed that engineers need to understand the wider social context in which they work. It is argued that the focus of ethics education should be broadened to focus on the social structure and the way it both enables and constrains socially responsible conduct. There is a call to refocus engineers’ attitudes towards the systems of regulation …

Evaluation Of A Naive Model For Square Wave Voltammetry At A Microelectrode, Patrick Enright, John Cassidy, Tony Betts

Articles

A square wave voltammetric waveform ( SWV) was applied to an inlaid microdisk electrode in a solution of K4[Fe(CN)6]. A simple model relying on the assumption of steady state current throughout the scan was used to model the current potential behaviour. However, experimental peak current magnitudes were between 30% and 50% greater than those predicted by the model. The model predicts an increase of peak current and peak width at half height with pulse height Esw and no effect of the parameters frequency, f and step height, ΔEs. Experimental peak current magnitudes and peak current magnitudes predicted by the model …

Application Of The Fractal Market Hypothesis For Modelling Macroeconomic Time Series, Jonathan Blackledge

Articles

This paper explores the conceptual background to financial time series analysis and financial signal processing in terms of the Efficient Market Hypothesis. By revisiting the principal conventional approaches to market analysis and the reasoning associated with them, we develop a Fractal Market Hypothesis that is based on the application of non-stationary fractional dynamics using an operator of the type
∂² / ∂x² − σ^q(t) * ∂ ^q(t)/ ∂t^q(t)

where σ⁻¹ is the fractional diffusivity and q is the Fourier dimension which, for the topology considered, (i.e. the one-dimensional case) is related to the Fractal …

Planning In The Irish Healthcare System; Legislative Strategy Or Administrative Control?, Vivienne Byers

Articles

Although strategic planning in healthcare has been in evidence in many OECD countries since the 1970s, it did not emerge in Ireland until the advent of legislatively mandated service planning in the 1990s. This occurred in the context of significant managerial, organisational and environmental change. One of the central mechanisms of the Strategic Management Initiative is the devolution of accountability and responsibility from the centre to the periphery. Service planning in the health sector in Ireland is seen as part of this strategic planning ethos. This paper reports on part of a wider study that examined both the intent and …

Enabling Location-Based Services In Data Centers, Krishna Kant, Neha Udar, R. Viswanathan

Articles

In this article, we explore services and capabilities that can be enabled by the localization of various assets in a data center or IT environment. We also describe the underlying location estimation method and the protocol to enable localization. Finally, we present a management framework for these services and present a few case studies to assess benefits of location-based services in data centers.

Thinking About Civil Discovery In Alabama: Using The Federal Rules Of Civil Procedure As A Thinking Tool Essay: Alabama Legal Issues Series, Carol Rice Andrews

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No abstract provided.

When American Small Business Hot The Jackpot: Taxes, Politics And The History Of Organizational Choice In The 1950'S, Mirit Eyal-Cohen

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No abstract provided.