Digital Commons Network^™

Waiting For Hohfeld: Property Rights, Property Privileges, And The Physical Consequences Of Word Choice, Jerrold A. Long

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An important part of our institutional and cultural history is our understanding of a system of property interests. The most common trajectory of land-use regulation appears consistent with a property rights meta-narrative that informs multiple academic disciplines and levels of human interaction. This meta-narrative suggests that all land-use decisions begin with an assumption about the nature and extent of property rights held by potentially affected landowners, and that the ultimate end of any land-use regime is to "protect" those assumed property rights from unwarranted or unjustified intrusion by government. Because the law is a distinct linguistic environment in which word …

Overcoming Neoliberal Hegemony In Community Development: Law, Planning, And Selected Lamarckism, Jerrold A. Long

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No abstract provided.

Forfeitures Revisited: Bringing Principle To Practice In Federal Court, David Pimentel

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No abstract provided.

Criminal Child Neglect And The Free Range Kid: Is Overprotective Parenting The New Standard Of Care?, David Pimentel

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No abstract provided.

Conservation Reliant-Species, Dale Goble

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A species is conservation reliant when the threats that it faces cannot be eliminated, but only managed. There are two forms of conservation reliance: population- and threat-management reliance. We provide an overview of the concept and introduce a series of articles that examine it in the context of a range of taxa, threats, and habitats. If sufficient assurances can be provided that successful population and threat management will continue, conservation-reliant species may be either delisted or kept off the endangered species list. This may be advantageous because unlisted species provide more opportunities for a broader spectrum of federal, state, tribal, …

Regulatory Moratoria, Kathryn A. Watts

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Despite significant scholarly attention given to tools that the political branches use to exert control over the administrative state, one emerging tool has gone largely unnoticed: regulatory moratoria. Regulatory moratoria, which stem from legislative or executive action, aim to freeze rulemaking activity for a period of time.

As this Article demonstrates, regulatory moratoria have worked their way into the political toolbox at both the federal and state levels. For example, at least fifteen federal bills proposing generalized regulatory moratoria were introduced in the first session of the 112th Congress, and from 2008 to 2011 alone, no fewer than nine states …

Anticompetitive Product Design In The New Economy, John M. Newman

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Claims alleging anticompetitive product design and redesign lie at the very core of one of antitrust law's most challenging dilemmas: the intersection between innovation and regulation, invention and intervention. For over three decades, courts and scholars have struggled to determine the proper analytical framework within which to address such cases. Meanwhile, the very industries in which challenged conduct occurs have been undergoing fundamental changes.

As demonstrated by the ongoing and recent antitrust litigation involving high technology firms Apple, Intel, and Microsoft, distinctive features characterize most product markets in what has been called the 'New Economy'"--and what increasingly has become simply …

Whistleblowers And Rogues: An Urgent Call For An Affirmative Defense To Corporate Criminal Liability, Marcia Narine

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No abstract provided.

The Mindful Law School: An Integrative Approach To Transforming Legal Education, Scott L. Rogers

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Debate: The Contraception Mandate And Religious Freedom, Steven D. Smith, Caroline Mala Corbin

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The Problem Of Trans-National Libel, Lili Levi

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Forum shopping in trans-national libel cases-"libel tourism"- - has a chilling effect on journalism, academic scholarship, and scientific criticism. The United States and Britain (the most popular venue for such cases) have recently attempted to address the issue legislatively. In 2010, the United States passed the SPEECH Act, which prohibits recognition and enforcement of libel judgments from jurisdictions applying law less speech-protective than the First Amendment. In Britain, consultation has closed and the Parliamentary Joint Committee has issued its report on a broad-ranging libel reform bill proposed by the Government in March 2011. This Article questions the extent to which …

More Than One Lane Wide: Against Hierarchies Of Helping In Progressive Legal Advocacy, Rebecca Sharpless

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Progressive legal scholars and practitioners have created a hierarchy within social justice lawyering. Direct service attorneys-nonprofit attorneys who focus on helping individuals in civil cases-sit at the bottom. In the 1960s, progressive theorists advanced a negative portrayal of direct service attorneys as a class. This discourse has continued through different phases in the development of progressive legal theory. Direct service work is done primarily by women in the service of women, has the aesthetic of traditional women's work, and can be understood as embodying the thesis that women have a greater existential and psychological connection to others than men. Like …

Public Choice And Law's Either/Or Inclination (Reviewing Leo Katz, Why The Law Is So Perverse (2011)), Saul Levmore

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No abstract provided.

Talk About Talking About Constitutional Law, Adam M. Samaha

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Constitutional theory branches into decision theory and discourse theory. The former branch concentrates on how constitutional decisions are or should be made, the latter on how constitutional issues are or should be discussed, For its part, originalism initially was promoted as a method for resolving constitutional disagreement, but it has spread into discourse theory as well. Jack Balkin's "living originalism" illustrates this extension. This Article examines inclusive versions of originalism like Balkin's that permit many different answers to constitutional questions. The Article then suggests pathologies associated with loose constitutional discourse in general. For instance, a large domain for constitutional discourse …

Judicial Engagement With The Affordable Care Act: Why Rational Basis Analysis Falls Short, Richard A. Epstein

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No abstract provided.

Applying International Human Rights Standards To The Restraint And Seclusion Of Students With Disabilities, David Weissbrodt, Willy Madeira, Daniel Stewart, William Dikel

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No federal law in the United States prohibits school administrators from physically restraining or secluding students. 1 State laws diverge widely. 2 Unlike in medical, psychiatric, and law enforcement settings, where strict national standards govern the use of physical restraint and seclusion, many schools may have no, or inconsistent, guidelines to follow in deciding when the use of force upon students is appropriate. 3 This lack of industry-approved protocol and standardized training of school personnel makes restraint and seclusion susceptible to misapplication and abuse. 4

Cognitive Warfare And Young Black Males In America, Perry L. Moriearty, William Carson

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The result was a veritable feedback loop whose cognitive output, the mental imprint of "morally impoverished" "super- predators,"14 continually fed its input. [...]even as crime rates among black youth have dropped steadily since the mid-1990s, these selfreinforcing associations and dissociations have prompted lawmakers and their constituents to continue to support laws and policies that they know disproportionately punish and incapacitate young black males. [...]is the apparent extent to which even subliminal racial primes can influence our perceptions of individuals.

Crawford V. Washington: What Would Justice Thomas Do?, Brad Clary

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Bankers Behaving Badly? The Limits Of Regulatory Reform, Claire Hill

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We may finally be emerging from a "Great Recession." But the economy remains quite fragile. What bankers did was an important cause of the recession. They structured, sold and bought "toxic" securities, taking excessive risks with other people's money. Sometimes they did so recklessly, because they did not sufficiently understand the securities. Other times, they did understand the securities, and sold them to those who didn't, sometimes omitting much relevant information. Some evidence suggests that bankers knew the quality of mortgages being securitized was plummeting; indeed, given the dramatically increasing volume of mortgages being securitized, they had to at least …

Litigation's Role In The Path Of U.S. Federal Climate Change Regulation: Implications Of Aep V. Connecticut, Hari M. Osofsky

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This symposium analyzes the role of litigation in climate change regulation, with a particular focus on the U.S. Supreme Court's June 2011 decision in American Electric Power Co. v. Connecticut ("AEP"). 1 This Essay adds to that conversation by exploring the significance of AEP for U.S. federal legal approaches to regulating climate change.

Deidentification And Reidentification In Returning Individual Findings From Biobank And Secondary Research: Regulatory Challenges And Models For Management, William Mcgeveran, Leili Fatehi, Pari Mcgarraugh

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No abstract provided.

Advancing Feminist Positioning In The Field Of Transitional Justice, Fionnuala Ní Aoláin

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No abstract provided.

Siblings In Law, Jill Elaine Hasday

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No abstract provided.

Families Now: What We Don't Know Is Hurting Us, Judith T. Younger

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No abstract provided.

Temptations Of The Sirens: Ethical Issues In Libraries, Herbert Cihak, Joan Howland

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No abstract provided.

The Constitutional Dimension Of Unilateral Change In Public-Sector Collective Bargaining, Stephen F. Befort

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During cycles of public sector budgetary crises, governmental entities frequently undertake efforts to reduce workforce costs. Sometimes these efforts have gone beyond layoffs and furloughs to include modifications to the terms of existing collective bargaining agreements. In the private sector, such a unilateral alteration would be an unlawful breach of contract and an unfair labor practice. But, unilateral change is more prevalent in the public sector, particularly due to the constitutional structure of state government. This article examines two of these constitutional dimensions. The article first discusses diffused management authority resulting from the separation of powers with particular reference to …

Public-Sector Employment Under Siege, Stephen F. Befort

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This article was prepared for a symposium at Indiana University Maurer School of Law on Labor and Employment Law under the Obama Administration. The article analyzes the current spate of attacks on public employees with particular reference to three sub-topics: teacher tenure and evaluation “reform,” the periodic cycles of public sector fiscal crises, and the unilateral modification of public sector collective bargaining agreements. The article concludes with the assessment that cyclical attacks on public sector workers reflect a skewed viewpoint that public employees owe first-class obligations but possess only second-class rights.

Renewable Energy And The Public Trust Doctrine, Alexandra B. Klass

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This Article explores the role of the public trust doctrine in current efforts to site large-scale wind and solar projects on public and private lands. Notably, both proponents and opponents of such renewable energy projects have looked to the public trust doctrine to advance their goals. Proponents of large-scale renewable energy projects point to the environmental and climate change benefits associated with renewable energy development and argue that the use of public lands and large tracts of private lands to facilitate such projects are both in the public interest and consistent with the public trust doctrine. At the same time, …

Cercla, State Law, And Federalism In The 21st Century, Alexandra B. Klass

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This essay discusses the continuing role of state statutory and common law remedies for remediating contaminated property at a time where federal liability under the Comprehensive Response, Compensation, and Liability Act (“CERCLA”) has, after thirty years, become an established part of the legal and business landscape. In recent years, a growing number of courts have struggled with the extent to which CERCLA does or should preempt or displace state statutory or common law governing claims for recovering costs associated with contaminated property. This essay begins with the premise that the language of CERCLA as well as general principles of federalism …

Interstate Transmission Challenges For Renewable Energy: A Federalism Mismatch, Alexandra Klass, Elizabeth Wilson

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This Article discusses current challenges to siting new electric transmission infrastructure to facilitate the growth of renewable energy. In doing so, this Article focuses on recent legal and policy developments at the federal, state, and regional levels with a specific emphasis on states with significant wind energy potential west of the Mississippi River. In many of these jurisdictions, there has been a strong emphasis on increasing renewable energy resources in recent years, particularly wind power. Each state and regional jurisdiction, however, has taken a different approach to connecting those new renewable resources to the transmission grid that is determined by …