Digital Commons Network^™

The California Greenhouse Gas Waiver Decision And Agency Interpretation: A Response To Galle And Seidenfeld, Nina A. Mendelson

Articles

Professors Brian Galle and Mark Seidenfeld add some important strands to the debate on agency preemption, particularly in their detailed documentation of the potential advantages agencies may possess in deliberating on preemption compared with Congress and the courts. As they note, the quality of agency deliberation matters to two different debates. First, should an agency interpretation of statutory language to preempt state law receive Chevron deference in the courts, as other agency interpretations may, or should some lesser form of deference be given? Second, should a general statutory authorization to an agency to administer a program and to issue rules …

A Presumption Against Agency Preemption, Nina A. Mendelson

Articles

Federal agencies are increasingly taking aim at state law, even though state law is not expressly targeted by the statutes the agencies administer. Starting in 2001, the Office of the Comptroller of the Currency (OCC) issued several notices saying that state laws would apply to national bank operating subsidiaries (incorporated under state law) to the same extent as those laws applied to the parent national bank. In 2003, the OCC specifically mentioned state consumer protection laws and took the position that the state laws were preempted and did not apply to mortgage lenders owned by national banks. In December 2006, …

The Upc Authorizes Notarized Wills, Lawrence W. Waggoner

Articles

This article reports on a 2008 amendment to the Uniform Probate Code that permits notarization as a method of will execution.

Mandatory Arbitration: Why It's Better Than It Looks, Theodore J. St. Antoine

Articles

"Mandatory arbitration" as used here means that employees must agree as a condition of employment to arbitrate all legal disputes with their employer, including statutory claims, rather than take them to court. The Supreme Court has upheld the validity of such agreements on the grounds that they merely provide for a change of forum and not a loss of substantive rights. Opponents contend this wrongfully deprives employees of the right to a jury trial and other statutory procedural benefits. Various empirical studies indicate, however, that employees similarly situated do about as well in arbitration as in court actions, or even …

Can Glucksberg Survive Lawrence? Another Look At The End Of Life And Personal Autonomy, Yale Kamisar

Articles

In Washington v. Glucksberg, the Court declined to find a right to physician-assisted suicide ("PAS") in the Constitution. Not a single Justice dissented. One would expect such a ruling to be quite secure. But Lawrence v. Texas, holding that a state cannot make consensual homosexual conduct a crime, is not easy to reconcile with Glucksberg. Lawrence certainly takes a much more expansive view of substantive due process than did Glucksberg. It is conceivable that the five Justices who made up the Lawrence majority-all of whom still sit on the Court-might overrule Glucksberg. For various reasons, …

Pharma's Nonobvious Problem, Rebecca S. Eisenberg

Articles

This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit's nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible …

Noncompliance, Nonenforcement, Nonproblem? Rethinking The Anticommons In Biomedical Research, Rebecca S. Eisenberg

Articles

A decade ago the biomedical research community was sounding alarm bells about the impact of intellectual property (IP) rights on the ability of scientists to do their work. Controversies and delays in negotiating terms of access to patented mice and genes, databases of scientific information, and tangible research materials all pointed toward the same conclusion: that IP claims were undermining traditional sharing norms to the detriment of science. Michael Heller and I highlighted one dimension of this concern: that too many IP rights in "upstream" research results could paradoxically restrict "downstream" research and product development by making it too costly …

Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay

Articles

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons—closed institutions holding an ever-growing disempowered population—most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which …

Of Truth, In Science And In Law, Susan Haack

Articles

No abstract provided.

The Harsh Reality Of Choosing Between Safety And Housing: Solutions For Victims Of Domestic Violence, Jill Barton

Articles

No abstract provided.

Latinos And The Law Symposium Symposium: Latinos And Latinas At The Epicenter Of Contemporary Legal Discourses: Forword, Richard Delgado, Jean Stefancic

Articles

No abstract provided.

The People-Profit Polarity, Donna Dickson, Sara Cegelski

Articles

No abstract provided.

Hearts, Minds, Hands: A Dream Team For Mental Health, Julianne Gold Brunson, Judy Molner, Miriam Nathan Lerner

Articles

Interpreting in a mental health setting with hearing staff members and deaf clientele, the ethical situations fly fast and furious, providing the interpreter with a wealth of war stories with which to regale neophyte students of this dynamic profession. Much has been written to improve the many and varied mental health services being extended to deaf populations. The most commonly described dyads are that of hearing therapist and deaf patient. However, consider the case of a deaf psychologist treating hearing clients. In this instance, the interpreter becomes the liaison between the deaf professional and the hearing patient. When an interpreter …

Novel Functions Of Acyl-Coa Thioesterases And Acyltransferases As Auxiliary Enzymes In Peroxisomal Lipid Metabolism., Mary Hunt, Stefan Alexson

Articles

Peroxisomes are single membrane bound organelles present in almost all eukaryotic cells, and to date have been shown to contain approximately 60 identified enzymes involved in various metabolic pathways, including the oxidation of a variety of lipids. These lipids include very long-chain fatty acids, methyl branched fatty acids, prostaglandins, bile acid precursors, and xenobiotics that are either β-oxidized or α-oxidized in peroxisomes. The recent identification of several acyl-CoA thioesterases and acyltransferases in peroxisomes has revealed their various functions in acting as auxiliary enzymes in α- and β-oxidation in this organelle. To date, 9 functional acyl-CoA thioesterases and acyltransferases have been …

Editorial: Nutrition Research Reviews, Katherine Younger

Articles

We are all familiar with the dietary guideline exhorting us to eat so many portions of oily fish per week in order to boost our intakes of n-3 long-chain PUFA, but it is perhaps not so widely realised that the fish must themselves be provided with dietary n-3 long-chain PUFA or, possibly, their precursors (though, as in humans, the ability of carnivorous fish to elongate and desaturate n-3 PUFA appears to be limited).

Book Review J. Mann & A. S. Truswell (Editors). Essentials Of Human Nutrition., Daniel Mccartney

Articles

Essentials of Human Nutrition is the third edition of this excellent text originally published in 1998. This comprehensively updated version contains many chapters that have been completely rewritten since the last volume in 2002, while the others have been meticulously revised. The content is presented in a readily accessible manner and addresses the issues of greatest pertinence to contemporary nutritional science and therapeutics, with sections covering foods, macro- and micronutrients, nutrition-related disorders, public health nutrition and clinical nutrition. Eminent researchers and teachers from around the world have been commissioned to write these specialist chapters, with the judicious editorial style permitting …

Craft And Power, Carl E. Schneider

Articles

Oliver Wendell Holmes-a great judge-said that "the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees." Appellate courts command that force in ways that principle and practicalities leave little fettered. Judges must fetter themselves, not least by honoring the judicial duty of craftsmanship. That duty obliges courts to respect procedural rules, for they keep courts within their bounds and promote fair and sound decisions. That duty obliges courts to analyze legal authority scrupulously, since judicial legitimacy …

Advocating For The Constitutional Rights Of Nonresident Fathers, Vivek Sankaran

Articles

Months after a child welaare case is petitioned, a nonresident father appears in court and requests custody of his children who are living in foster care. Little is known about the father, and immediately, the system-judge, caseworkers, and attorneys view him with suspicion and caution, inquiring about his whereabouts and his prior involvement in the children's lives. Those doubts, in turn, raise complicated questions about his legal rights to his children. As a practioner working in the child welfare system, you're likely to face this scenario. The largest percentage of child victims of abuse and neglect come from households headed …

Law, Higher Law, And Human Making Theology And The Higher Law, William S. Brewbaker Iii

Articles

No abstract provided.

Egypt's Supreme Constitutional Court: Managing Constitutional Conflict In An Authoritarian, Aspirationally Islamic State, Clark B. Lombardi

Articles

No abstract provided.

“Whites Only Tree,” Hanging Nooses, No Crime?: Limiting The Prosecutorial Veto For Hate Crimes In Louisiana And Across America, Tamara F. Lawson

Articles

News coverage of three nooses hanging from the "whites only tree" at Jena High School, in Jena, Louisiana, created public outcry. Criticism rose as the public learned that District Attorney Reed Walters exercised his prosecutorial discretion to decline to press charges against the white students that admitted hanging the nooses, yet over zealously charged black students with attempted murder for conduct normally considered a battery or a school-yard-fight. The apparent lack of equity in the exercise of prosecutorial discretion became the focus of heated debate. Although the Jena High School incidents occurred in 2006, the Jena story is unpleasantly reminiscent …

The Other Famous Marks Doctrine, Xuan-Thao Nguyen

Articles

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 …

Time Well Spent: An Economic Analysis Of Daylight Saving Time Legislation, Steve P. Calandrillo, Dustin E. Buehler

Articles

Several nations implemented daylight saving time legislation in the last century, including the United States. The United States briefly experimented with year-round daylight saving time twice—during World War II and the energy crises in the 1970s. Agency studies and congressional hearings from the 1970s show several benefits of year-round daylight saving time, along with potential disadvantages. These studies are dated, and much has changed in the last thirty years. While congressional efforts to extend daylight saving time in 2007 have again focused on the energy savings this legislation would produce, far more meaningful benefits have been largely ignored.

This Article …

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

Articles

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 …

Biodiversity, Baking And Boiling, Endangered Species Act Turning Down The Heat, Anna T. Moritz, Kassie R. Siegel, Brendan R. Cummings, William H. Rodgers, Jr.

Articles

Today the Earth faces an extinction event on a scale second only to Earth's largest mass extinction, the Permian-Triassic event, which occurred 250 million years ago. Upwards of 70 percent of the Earth's species could be at risk of extinction with a 3.5°C (6.3°F) rise in temperature, which could occur by the end of this century.

The driver is global warming, caused by anthropogenic greenhouse gas emissions. As such, a rational climate policy is needed immediately to prevent the complete collapse of biodiversity. Yet, the United States—the world's largest cumulative contributor to emissions—is in a state of paralysis when it …

A Model Compound Study: The Ecotoxicological Evaluation Of Five Organic Contaminants With A Battery Of Marine Bioassays, Ailbhe Macken, Michelle Giltrap, Barry Foley, Evin Mcgovern, Brendan Mchugh, Maria Davoren

Articles

This paper describes the ecotoxicological evaluation of five organic contaminants frequently detected in marine sediments (tributyltin, triphenyltin, benzo[a]pyrene, fluoranthene, and PCB 153) using three marine species (Vibrio fischeri, Tetraselmis suecica, and Tisbe battagliai). The sensitivity of each species varied for all compounds. The triorganotins were consistently the most toxic to all species. The applicability of each test system to assess the acute toxicity of environmental contaminants and their use in Toxicity Identification Evaluation (TIE) is discussed. Suitability of the Microtox and T. battagliai tests for employment in TIE studies were further assessed through spiking experiments with tributyltin. Results demonstrated that …

Proposal For Using A Studio Format To Enhance Institutional Advancement, Shannon Chance

Articles

Universities today need to become quicker on their toes. They must continually scan the environment and seize emerging opportunities – and institutional advancement must lead this effort. An unfortunate number of institutional advancement operations are ill equipped for the task at hand. Many suffer from high staff turnover and overly hierarchical systems that refl ect excessive fragmentation and compartmentalization. They inadvertently perpetuate stifl ing and unnecessary bureaucracy. Organizing advancement efforts around the metaphor of the design studio or creative workshop promises to (a) pool talent, (b) cultivate collaboration, and (c) align diverse but related interests in order to promote fruitful …

Analysis Of Financial Data Using Non-Negative Matrix Factorization, Ruairí De Fréin, Konstantinos Drakakis, Scott Rickard, Andrzej Cichocki

Articles

We apply Non-negative Matrix Factorization (NMF) to the prob-lem of identifying underlying trends in stock market data. NMF is arecent and very successful tool for data analysis including image andaudio processing; we use it here to decompose a mixture a data, thedaily closing prices of the 30 stocks which make up the Dow Jones In-dustrial Average, into its constitute parts, the underlying trends which govern the financial marketplace. We demonstrate how to impose ap-propriate sparsity and smoothness constraints on the components of thedecomposition. Also, we describe how the method clusters stocks to-gether in performance-based groupings which can be used for …

When Deterrence And Death Mitigation Fall Short: Fantasy And Fetishes As Gap-Fillers In Border Regulation, Mary D. Fan

Articles

Drawing on fieldwork and political theory with Lacanian psychoanalytic influences, this article analyzes how fantasy and fetishes help sustain strategies shown to be no solution to U.S. border control problems. More than a decade after the official launch of the border control paradigm of "prevention through deterrence," predicated on the assumption that ramping up walls, barriers, policing, and the human costs of border crossing would deter, there has been scant evidence of deterrence and much evidence of diversion of migrants to more dangerous crossing points where death rates have soared. Attempts to mitigate the cost to life have also proved …

Transitioning The Family Business, Dwight Drake

Articles

By any measure, family-dominated businesses are the backbone of the American economy. Although a large majority of family businesses are managed by senior family members who are older than age 55 and more than 80 percent of such senior family members claim that they want the business to remain in the family, less than 30 percent of such businesses have tackled the challenge of developing a plan for transitioning the business to the next generation.

For over 90 percent of such families, this planning challenge is aggravated by the fact that they have no diversified wealth: the family’s wealth is …