Digital Commons Network^™

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

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Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …

The Challenges Of Calculating The Benefits Of Providing Access To Legal Services, J. J. Prescott

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In this invited essay, I explore how policymakers and other public-interested actors have empirically calculated the benefits of providing low-income access to civil legal services in the past, and how they might improve upon existing methods going forward. My argument proceeds in five parts. First, I briefly explain the optimal approach to allocating public funds from a welfare economics perspective. Second, I introduce the challenges of valuing “benefits” in the context of the public provision of legal services. Third, I summarize and critique existing attempts to quantify the benefits of and need for legal services funding. Specifically, I review, criticize, …

Leveraging Asylum, James C. Hathaway

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I believe that the analysis underlying the leveraged right to asylum is conceptually flawed. As I will show, there is no duty of non-refoulement that binds all states as a matter of customary international law and it is not the case that all persons entitled to claim protection against refoulement of some kind are ipso facto entitled to refugee rights. These claims are unsound precisely because the critical bedrock of a real international legal obligation-namely, the consent of states evinced by either formal commitments or legally relevant actions -does not yet exist.

Litigation Strategies For Dealing With The Indigent Defense Crisis, Eve Brensike Primus

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The indigent defense delivery system in the United States is in a state of crisis. Public defenders routinely handle well over 1,000 cases a year, more than three times the number of cases that the American Bar Association says one attorney can handle effectively. As a result, many defendants sit in jail for months before even speaking to their court-appointed lawyers. And when defendants do meet their attorneys, they are often disappointed to learn that these lawyers are too overwhelmed to provide adequate representation. With public defenders or assigned counsel representing more than 80% of criminal defendants nationwide, the indigent …

Disclosing 'Political' Oversight Of Agency Decision Making, Nina A. Mendelson

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Scholars and courts have divided views on whether presidential supervision enhances the legitimacy of the administrative state. For some, that the President can supervise administrative agencies is key to seeing agency action as legitimate, because of the President's accountability to the electorate. Others, however, have argued that such supervision may simply taint, rather than legitimate, an agency action. The reality is that presidential supervision of agency rulemaking, at least, appears to be both significant and opaque. This Article presents evidence from multiple presidential administrations suggesting that regulatory review conducted by the White House's Office of Management and Budget is associated …

Real Copyright Reform, Jessica D. Litman

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A copyright system is designed to produce an ecology that nurtures the creation, dissemination, and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners, and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this Article, I explore how the current copyright …

Regulating Segregation: The Contribution Of The Aba Criminal Justice Standards On The Treatment Of Prisoners, Margo Schlanger

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Over recent decades, solitary confinement for prisoners has increased in prevalence and in salience. Whether given the label "disciplinary segregation," "administrative segregation," "special housing," "seg," "the hole," "supermax," or any of a dozen or more names, the conditions of solitary confinement share basic features: twenty-three hours per day or more spent alone in a cell, with little to do and no one to talk to, and one hour per day or less in a different, but no less isolated, setting-an exercise cage or a space with a shower. Long-term segregation units operated along these lines are extraordinarily expensive to build …

Reflections On Section 5 Of The Ftc Act And The Ftc's Case Against Intel, Daniel A. Crane

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The Federal Trade Commission’s (“FTC’s”) unprecedented enforcement action against Intel raises profound issues concerning the scope of the FTC’s powers to give a construction to Section 5 of the FTC Act that goes beyond the substantive reach of the Sherman Act. While I have urged the FTC to assert such independence from the Sherman Act, this is the wrong case to make a break. Indeed, if anything, Intel poses a risk of seriously setting back the development of an independent Section 5 power by provoking a hostile appellate court to rebuke the FTC’s effort and cabin the FTC’s powers in …

Outsiders Inside The Beltway: Latcrit Xiv - Critical Outsider Theory And Praxis In The Policy Making Of The New American Regime, Anthony E. Varona

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No abstract provided.

Public Consensus As Constitutional Authority, Richard A. Primus

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Barry Friedman's new book The Will of the People attempts to dissolve constitutional law's countermajoritariand ifficulty by showing that, in practice,t he Supreme Court does only what the public will tolerate. His account succeeds if "the countermajoritarian difficulty" refers to the threat that courts will run the country in ways that contravene majority preference, but not if the "the countermajoritarian difficulty" refers to the need to explain the legitimate sources of judicial authority in cases where decisions do contravene majority preference. Friedman's book does not pursue the second possibility, and may suggest that doing so is unimportant, in part because …

Summary And Recommendations (Symposium On Designing A Federal Vat, Part I), Reuven S. Avi-Yonah

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For the past thirty-five years, the debate on fundamental tax reform in the United States has centered on whether some type of consumption tax would replace all or part of the federal income tax. In my opinion, this debate has now been decided. Given recent budgetary developments and the impending eligibility of the baby boom generation for Social Security and Medicare, we cannot dispense with the revenue from the corporate and individual income tax. Moreover, we will need huge amounts of additional revenue, and most informed observers believe that the only plausible source for such revenues is a federal value-added …

Talk The Talk, But Walk The Walk: A Comment On Joan Williams's Reshaping The Work-Family Debate Crowdsourcing The Work-Family Debate: A Colloquy, Jean Stefancic

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No abstract provided.

Inactivation Of Escherichia Coli By Ozone Treatment Of Apple Juice At Different Ph Levels, Sonal Patil, Vasilis Valdramidis, Patrick J. Cullen, Jesus Maria Frias, Paula Bourke

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This research investigated the efficacy of gaseous ozone for the inactivation of Escherichia coli ATCC 25922 and NCTC 12900 strains in orange juice. Orange juice inoculated with E. coli (10⁶ CFU mL^-1) as a challenge microorganism was treated with ozone at 75-78µg mL^-1 for different time periods (0-18 min). The efficacy of ozone for inactivation of both strains of E. coli was evaluated as a function of different juice types: model orange juice, fresh unfiltered juice, juice without pulp, and juice filtered through 500mm or 1mm sieves. Fast inactivation rates for total reduction of E. coli …

Process Optimization For The Developmenht Of A Functional Beverage Based On Lactic Acid Fermentation Of Oats, Shilpi Gupta, Sabrina Cox, Nissreen Abu-Ghannam

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Oats (Avena sativa) have received considerable interest for their high content of soluble and insoluble fibre and for their high fermentability upon applying probiotic lactic acid bacteria (LAB). In the present study, Box–Behnken optimization design was used to optimize three different levels of oat, sucrose and starter culture concentration on the final viable cell population of Lactobacillus plantarum for the development of a fermented drink. A second-order polynomial response surface equation was developed indicating the effect of the studied variables on L. plantarum growth. Contour maps generated using the response surface equation showed that the experimental variables significantly affected the …

In Memoriam: David P. Leonard, Richard D. Friedman

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In all significant respects but longevity, David Leonard was - and I am confident that he believed himself to be - a lucky man. Saddened as I am that our association was cut so terribly short, I feel lucky that we had it for as long as we did. And I am sure that his family, his students, his colleagues, and those in the wider legal world who were graced not only by his wisdom but also by his essential goodness, feel the same way.

What Scribner Wrought: How The Invention Of Modern Dialysis Shaped Health Law And Policy, Sallie Thieme Sanford [email protected]

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In March 1960, Clyde Shields, a machinist dying from incurable kidney disease, was connected to an "artificial kidney" by means of a U-shaped Teflon tube that came to be known as the Scribner shunt. By facilitating long-term dialysis, Dr. Belding Scriber’s invention changed chronic kidney failure from a fatal illness to a treatable condition. This medical advance has, in turn, had a profound impact on key areas of health law and policy. This paper focuses on the historical roots and current context of three interrelated areas: ethical allocation of scarce medical resources; public financing of expensive health care; and decisions …

Dynamic Federalism And Patent Law Reform, Xuan-Thao Nguyen

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Patent law is federal law, and the normative approach to patent reform has been top down, looking to Congress and the Supreme Court for changes to the broken and complex patent system. The normative approach thus far has not yielded satisfactory results. This Article challenges the static approach to patent reform and embraces the dynamic-federalism approach that patent reform can be an overlapping of both national and local efforts. Patent reform at the local level is essential as locales can serve as laboratories for changes, vertically compete with national government to reform certain areas of the patent system, and become …

Baseball's Moral Hazard: Law, Economics, And The Designated Hitter Rule, Dustin E. Buehler, Steve P. Calandrillo

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No subject prompts greater disagreement among baseball fans than the designated hitter rule, which allows teams to designate a player to hit for the pitcher. The rule increases the number of hit batsmen, and some have suggested this effect is a result of "moral hazard," which recognizes that persons insured against risk are more likely to engage in dangerous behavior. Because American League pitchers do not bat, they allegedly are not deterred by the full cost of making risky, inside pitches—namely, retribution during their next at bat.

Using a law-and-economics approach, this Article concludes that the designated hitter rule creates …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law And Economics, Steve P. Calandrillo

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The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution's Due Process Clause presumptively …

In Vitro Mammalian Cytotoxicological Study Of Pamam Dendrimers -Towards Quantitative Structure Activity Relationships, Sourav Prasanna Mukherjee, Maria Davoren, Hugh Byrne

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Dendritic polymer nanoparticles such as polyamidoamine dendrimers (PAMAM) show exciting potential for biomedical applications. While the potential commercial applications of such dendrimers have received considerable attention, little is known about their possible adverse effects on both humans and the environment. In this study, the in vitro cytotoxicocity of full generation PAMAM dendrimers to two mammalian cell lines was investigated. Generations G4, G5 and G6 were chosen. Metabolic, lysosomal and mitochondrial activities were evaluated after 24 h exposure. Long term toxicity was evaluated using the clonogenic assay. Particle size and zeta potential were measured in all media. In culture medium, the …

Resonant Mie Scattering (Rmies) Correction Of Infrared Spectra From Highly Scattering Biological Samples Analyst, Paul Bassan, Achim Kohler, Harald Martens, Joe Lee, Hugh Byrne, Paul Dumas, Ehsan Gazi, Michael Brown, Noel Clarke, Peter Gardner

Articles

Infrared spectra of single biological cells often exhibit the “dispersion artefact” observed as a sharp decrease in intensity on the high wavenumber side of absorption bands, in particular the Amide I band at ~1655 cm-1, causing a downward shift of the true peak position. The presence of this effect makes any biochemical interpretation of the spectra unreliable. Recent theory has shed light on the origins of the ‘dispersion artefact’ which has been attributed to resonant Mie scattering (RMieS). In this paper a preliminary algorithm for correcting RMieS is presented and evaluated using simulated data. Results show that the ‘dispersion artefact’ …

Customary Practice And Community Governance In Implementing The Human Right To Water--The Case Of The Acequia Communities Of Colorado's Rio Culebra Watershed, Gregory A. Hicks, Devon G. Peña

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This paper offers commentary on the appropriateness of viewing, as a human right, the authority to manage water and to participate meaningfully in watershed governance, and it takes as an example the community of Hispano farmers of the Rio Culebra watershed of Southern Colorado in the headwaters of the Upper Rio Grande. In earlier work, the authors have written about the uneasy relationship between the formal system of appropriative water rights under Colorado law and the enduring set of local water norms practiced within acequias—the traditional water governance institutions and irrigation systems of the Culebra's Hispano farmers. The present …

A Post-Race Equal Protection?, Mario L. Barnes, Erwin Chemerinsky, Trina Jones

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No abstract provided.

From Chevron To Massachusetts: Justice Stevens's Approach To Securing The Public Interest, Kathryn A. Watts

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During the past three decades, one Supreme Court justice— John Paul Stevens—has authored two of the most significant administrative law decisions that speak to the judiciary’s role in checking agency interpretations of the statutes that they administer. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., Justice Stevens’s landmark 1984 decision unanimously upheld the EPA’s construction of a term found in the Clean Air Act. Subsequently, in Massachusetts v. EPA, Justice Stevens’s 2007 opinion for a five-justice majority handed a major win to global environmental security by ordering the EPA to reconsider its refusal to regulate greenhouse …

Shared Understanding Or Consensus-Masked Disagreement? The Anti-Torture Framework In The Convention On The Rights Of Persons With Disabilities, Janet E. Lord

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No abstract provided.

Lessons From The Experience Of U.N. Convention On The Rights Of Persons With Disabilities: Addressing The Democratic Deficit In Global Health Governance, Janet E. Lord, David Suozzi, Alyn L. Taylor

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No abstract provided.

A Study Of The Effect Of The Position Of An Edge Filter Within A Ratiometric Wavelength Measurement System, Qiang Wu, Pengfei Wang, Yuliya Semenova, Gerald Farrell

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The effect of the position of an edge filter within a ratiometric wavelength measurement system was investigated based on three cases: (1) the reflected fibre Bragg grating (FBG) signal passes through both the reference arm and the edge filter arm, (2) the reflected FBG signal is connected directly to the edge filter arm and does not pass through the reference arm, (3) the edge filter sits in line with the FBG and thus the source power is filtered prior to reaching the FBG. Both numerical simulations and experimental results show that cases 1 and 2 have similar system performance whilst …

An Optical Machine Vision System For Applications In Cytopathology, Jonathan Blackledge, Dmitry Dubovitskiy

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This paper discusses a new approach to the processes of object detection, recognition and classification in a digital image focusing on problem in Cytopathology. A unique self learning procedure is presented in order to incorporate expert knowledge. The classification method is based on the application of a set of features which includes fractal parameters such as the Lacunarity and Fourier dimension. Thus, the approach includes the characterisation of an object in terms of its fractal properties and texture characteristics. The principal issues associated with object recognition are presented which include the basic model and segmentation algorithms. The self-learning procedure for …

Drug-Eluting Stents For Coronary Artery Disease: A Review, David Martin, Fergal Boyle

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Over the past decade the introduction of drug-eluting stents (DESs) has revolutionised the treatment of coronary artery disease. However, in recent years concern has arisen over the long-term safety and efficacy of DESs due to the occurrence of late adverse clinical events such as stent thrombosis. With this concern in mind, research and development is currently centred on increasing the long-term safety and efficacy of DESs. The aim of this paper is to provide a thorough review of currently approved and promising investigational DESs. With dozens of companies involved in the development of new and innovative anti-restenotic agents, polymeric coatings …

Space, Time And The Constitution Of Subjectivity: Comparing Elias And Foucault, Paddy Dolan

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The work of Foucault and Elias has been compared before in the social sciences and humanities, but here I argue that the main distinction between their approaches to the construction of subjectivity is the relative importance of space and time in their accounts. This is not just a matter of the “history of ideas,” as providing for the temporal dimension more fully in theories of subjectivity and the habitus allows for a greater understanding of how ways of being, acting and feeling in different spaces are related but largely unintended. Here I argue that discursive practices, governmental operations and technologies …