Digital Commons Network^™

The Regulatory Void Of Contingent Work, Stephen F. Befort

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No abstract provided.

When Quitting Is Fitting: The Need For A Reformulated Sexual Harassment/Constructive Discharge Standard In The Wake Of Pennsylvania State Police V. Suders, Stephen F. Befort, Sarah J. Gorajski

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The legal landscape with respect to constructive discharges resulting from sexually harassing conduct has been mired in confusion for the past two decades. Courts generally have applied a multi-step analysis that requires plaintiffs to establish both the existence of severe or pervasive sexual harassment as well as additional aggravating factors warranting an employee's resignation. The courts, however, have had a difficult time in defining the contours of the separate harassment and constructive discharge tests. The Supreme Court has weighed in on several occasions, but rather than opt for clarity, the Court has created new tests and new terminology that have …

Modern Public Trust Principles: Recognizing Rights And Integrating Standards, Alexandra B. Klass

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The public trust doctrine has a long history from its beginnings as an obligation on states to hold lands submerged under navigable waters in trust for the public, to its resurgence in the 1970s as a protector of natural resources, to its influence on state statutory and constitutional law as the public embraced environmental protection principles. However, many have argued that the public trust doctrine has not lived up to its potential as a major player in environmental and natural resources law. This article proposes a new framework for the public trust doctrine as a state tool for environmental protection …

Foreword: Daimlerchrysler V. Cuno, Daimlerchrysler V. Cuno And The Constitutionality Of State Tax Incentives For Economic Development, Kristin E. Hickman, Sarah L. Bunce

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In 2004, in Cuno v. DaimlerChrysler, Inc., 386 F.3d 738 (6th Cir. 2004), the Sixth Circuit invalidated the Ohio investment tax credit on dormant Commerce Clause grounds while upholding a property tax waiver by the City of Toledo and local school boards against a similar challenge. The Supreme Court granted DaimlerChrysler's petition for certiorari on the Ohio investment tax credit issue only while ordering the parties to brief whether the Cuno plaintiffs have standing to sustain their challenge. The Cuno plaintiffs' petition for certiorari on the property tax waiver issue remains pending. On October 7, 2005, scholars and other experts …

The Role Of Status Quo Bias And Bayesian Learning In The Creation Of New Legal Rights, Francesco Parisi, Robert L. Scharff

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We consider the role of status quo bias and Bayesian learning on the creation of new legal rights utilizing a model of legal evolution in which judges have limited discretion to create new precedent based on personal values, but, in the long run, are constrained by efficiency criteria. Our model demonstrates that status quo bias may effectively transform an ex ante inefficient rule into an ex post efficient rule. Because these legal rights are internalized over time through a process of Bayesian learning, new precedent is vulnerable to reversal until the new right has been sufficiently recognized and accepted.

Institutional Review Boards, Regulatory Incentives, And Some Modest Proposals For Reform, Dale Carpenter

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It is time to rethink the role of Institutional Review Boards (IRBs) in approving social science research. While most law professors conduct their research in an almost unregulated environment - pouring through cases, statutes, and each other's articles, all without the kind of human interaction subject to IRB regulation - their colleagues elsewhere in the university have been coping for decades with an increasingly intrusive bureaucracy that sometimes undermines basic academic values. Three things seem very clear. First, there are a lot of IRBs - at least 4,000 - and their numbers are growing. Second, they have recently "increased their …

The Need For Mead: Rejecting Tax Exceptionalism In Judicial Deference, Kristin Hickman

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This Article takes the controversial position that Treasury regulations are entitled to judicial deference under the Chevron doctrine, as clarified by the Supreme Court in the more recent Mead case, whether those regulations are promulgated pursuant to specific authority delegated in a substantive provision of the Internal Revenue Code or in the exercise of general authority granted in Code Section 7805(a). The Article attributes the unwillingness to concede Chevron's applicability to tax exceptionalism, the erroneous perception of many scholars that tax is different from other areas of the law, which in the context of this Article translates into the idea …

How Did We Get Here Anyway?: Considering The Standing Question In Daimlerchrysler V. Cuno, Kristin Hickman

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n granting certiorari in the case of DaimlerChrysler Corp. v. Cuno, the Supreme Court asked the parties to brief whether respondents have standing to challenge Ohio's investment tax credit. Looking at the posture of the case, this essay argues that the Supreme Court is likely sending a signal that it hopes to overturn the Sixth Circuit decision on standing grounds and avoid the more difficult question of whether the tax credit is unconstitutional based on the dormant Commerce Clause. This essay applies modern standing doctrine to the Cuno case and concludes that the Cuno plaintiffs do not have standing to …

Domestic Violence Matters: The Case For Appointed Counsel In Protective Order Proceedings, Beverly Balos

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A conventional reading of United States Supreme Court rulings on the right to counsel in civil cases would conclude that petitioners in protective order proceedings would have no right to appointed counsel. This article challenges this view and shows how Supreme Court jurisprudence, in fact, supports the conclusion that due process requires victims of domestic violence to have the benefit of appointed counsel.

Unanimously Wrong, Dale Carpenter

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The Supreme Court was unanimously wrong in Rumsfeld v. FAIR. Though rare, it's not the first time the Court has been unanimously wrong. Its most notorious such decisions have come, like FAIR, in cases where the Court conspicuously failed even to appreciate the importance of the constitutional freedoms under attack from legislative majorities. In these cases, the Court's very rhetoric exposed its myopic vision in ways that now seem embarrassing. Does FAIR, so obviously correct to so many people right now, await the same ignominy decades away? FAIR was wrong in tone, a dismissive vox populi, adopted by a Court …

A Cognitive Theory Of Trust, Claire Hill, Erin O'Hara O'Connor

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Interpersonal trust is currently receiving widespread attention in the academy. Many legal scholars incorrectly assume that interpersonal trust is an unmitigated good (or bad) and that legal policy should therefore be crafted to maximize (or minimize) trust. A more nuanced understanding of trust indicates instead that it should be promoted or discouraged, depending on the context. Such an understanding needs to reflect the fact that trust and distrust can, and often do, coexist. In most relationships, the parties trust one another with regard to some matters and yet distrust one another with regard to other matters. More specifically, developing a …

Diverging Perspectives On Electronic Contracting In The U.S. And Eu, Jane K. Winn, Brian H. Bix

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Electronic Contracting - understood broadly to include both the Internet downloading of free or purchased software and the use of rolling contracts (shrink-wrap or terms in the box) in the sale of computers or the lease of software - has raised problems, based in part on the novelty of the transactional forms, and in part on the now-standard issue of unread terms in standardized contracts. This article, part of a conference relating to the legal regulation of new property and new technologies, offers an overview of the distinctly different approaches to Electronic Contracting of the U.S. and the European Union. …

Forty Years Of Codification Of Estates And Trusts Law: Lessons For The Next Generation, Mary Louise Fellows, Gregory S. Alexander

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In this paper we develop two theses. First, we argue that uniform law proposals that ask courts and practitioners to abandon revered legal traditions and ways of thinking about estates and trusts, even when they are intent-furthering proposals, face resistance until in time the glories of the past and the risks of a new legal regime fade in importance in legal thought. Second, we argue that, especially within an environment in which states seek to gain competitive advantage over their counterparts in other states, the glories of the past and the risks of a new legal regime fade fastest when …

Extraordinary Rendition And The Torture Convention, David Weissbrodt, Amy Bergquist

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Extraordinary Rendition and the Convention Against Torture examines the U.S. policy of abducting terror suspects abroad and transferring them to third countries where they are likely to be subjected to torture and other forms of ill-treatment. The article notes that extraordinary rendition has evolved from a process by which persons were brought to the U.S. to stand trial, into a means of incapacitating suspects while keeping them out of reach of the U.S. legal system. Part I of this Article describes the Convention Against Torture and its provisions, and then examines the scope of the prohibition on torture under U.S. …

Junking The Junk Science Law: Reforming The Information Quality Act, Stephen M. Johnson

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In addition, the law contributes to the ossification of rulemaking agencies; encourages agencies to make decisions informally through guidance documents and policies rather than rules; and encourages agencies to avoid using electronic dialogues and disseminating information to the public. This Article examines the problems created by the IQA suggests repeal of the law or some reforms to address those problems.

Part II of this Article examines the shift in environmental policymaking from command and control regulation to information disclosure programs and economic based programs. It also examines the strengths limitations of information disclosure programs. Part III reviews the and the …

Fta And The City: Imagineering Sustainable Urban Development, John Ratcliffe, Elzbieta Krawczyk, Ruth Kelly

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This paper argues that urban planners and policy-makers lack an effective future-oriented approach enabling them to comprehend current complexity, anticipate impending change and shape a preferred future condition. In doing so it: - reviews the performance of contemporary city planning; - examines the need to chart and navigate the city technosphere by reference to city capital; - explores ways in which planning can benefit from a futures studies approach; - describes generally how futures-oriented thinking can produce effective city prospective; and, - poses specifically a number of questions regarding the concept of the intelligent city’. The paper concludes by calling …

Smart Growth: A Buffer Zone Between Decentrist And Centrist Theory?, Dorothy Stewart, Lorcan Sirr, Ruth Kelly

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The context for planning at the turn of the 19th century, in a newly industrialized world, was based on the need to find solutions to overcrowding and dire urban conditions. Planning decisions made in the post-World War II period were primarily motivated by the desire to reconstruct war torn cities. The forces of influence for planning and development in modern advanced capitalist societies are arguably set within the context of sustainable development. Many developed countries have witnessed a dramatic change in their territorial structures. Urban centres are extending into rural areas and surrounding hinterland, where large tracts of land are …

A Dose Threshold For A Medium Transfer Bystander Effect For A Human Skin Cell Line, Zhengfeng Liou, Carmel Mothersill, Fiona Mcneill, Fiona Lyng, Soo Hyun Byun, Colin Seymour, William Prestwich

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The existence of radiation-induced bystander effects mediated by diffusible factors is now accepted but the mechanisms and precise behavior at low doses remain unclear. We exposed cells to gamma doses in the range 0.04 mGy – 5 Gy, harvested the culture medium and transferred it to unirradiated reporter cells. Calcium fluxes and clonogenic survival were measured in the recipients. We show evidence for a dose threshold around 2 mGy for the human skin cell line used with a suggestion of increased survival below that dose. Similar experiments using direct gamma irradiation showed no reduction in survival until the dose exceeded …

Including Embodied Energy Considerations At The Conceptual Stage Of Building Design, Y. Yohanis, Brian Norton

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Elevated operating temperatures reduce the solar to electrical conversion efficiency of building integrated photovoltaic devices (BIPV). Phase change materials (PCM) can be used to passively limit this temperature rise although their effectiveness is limited by their low thermal conductivities and by crystallization segregation during solidification. This paper presents an experimental evaluation of the effects of convection and crystalline segregation in a PCM as a function of efficiency of heat transfer within the finned PV/PCM system. The thermal performances of bulk PCM with crystallization segregation for different internal fin arrangements are presented. It is noted that the addition of internal fins …

Inheritance Law In Tanzania: The Impoverishment Of Widows And Daughters, Tamar Ezer

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No abstract provided.

The Locus Of Corporate Scienter, Patricia S. Abril, Ann M. Olazabal

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No abstract provided.

Scientific Secrecy And "Spin": The Sad, Sleazy Saga Of The Trials Of Remune, Susan Haack

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No abstract provided.

Child Marriage And Guardianship In Tanzania: Robbing Girls Of Their Childhood And Infantilizing Women, Tamar Ezer, Kate Kerr, Kara Major, Aparna Polavarapu, Tina Tolentino

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No abstract provided.

Weighing And Reweighing Eminent Domain's Political Philosophies Post-Kelo, Alberto B. Lopez

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No abstract provided.

You Are Living In A Gold Rush Ideas, Richard Delgado

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No abstract provided.

Foreword [To Boilerplate: Foundations Of Market Contracts Symposium], Omri Ben-Shahar

Articles

It is tempting to open this symposium with yet another "boilerplate" salute to the challenge that standard-form contracts pose for contract law doctrine. You may have seen many tributes to this fundamental problem. If I were to offer my own variation on this familiar introduction, I would have perhaps tried to come up with an original spin to induce you to read forward another paragraph or two. I would probably have talked about a major divide within contract law between the "law of negotiations" and "product regulation." The former is the body of doctrines that determine the legal consequences of …

Videotaping Investigative Interviews Of Children In Cases Of Child Sexual Abuse: One Community's Approach, Frank E. Vandervort

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Legal scholars have long debated the efficacy and necessity of videotaping investigative interviews with children when allegations of child sexual abuse have surfaced. This debate has been advanced from the perspectives of adversaries in the criminal justice system, prosecutors and defense advocates. Absent from this debate has been the perspective of the broader community. This debate has failed to consider how other investigative tools might be used in conjunction with videotaping to advance the interests of the community. Moreover, the debate about videotaping has taken place with little actual data. This Article seeks to accomplish two goals. First, it seeks …

Second Best Damage Action Deterrence, Margo Schlanger

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Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …

The Three Goals Of Taxation, Reuven S. Avi-Yonah

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The current debate in the United States about whether the income tax should be replaced with a consumption tax has been waged on the traditional grounds for evaluating tax policy: efficiency, equity, and administrability. For example, Joseph Bankman and David Weisbach recently argued for the superiority of an ideal consumption tax over an ideal income tax on three grounds: First, that the consumption tax is more efficient because it does not discriminate between current and future consumption,' while both income and consumption taxes have identical effect on work effort. Second, that the consumption tax is at least as good at …

Antimicrobial Resistance In Non-Typhoidal Salmonella From Food Sources Colombia: Evidence For An Unusual Plasmid Located Class 1 Integron In Serotypes Typhimurium And Anatum, Ciara Walsh, Rebecca O'Mahoney, Teresa Quinn, Denise Drudy, Paul Whyte, Salim Matar, Seamus Fanning

Articles

Seventy-two isolates representing 18 serotypes recovered from various food samples collected in Colombia were tested for antimicrobial susceptibilities. The collection was further characterized for extended-spectrum cephalosporin, aminoglycoside, and tetracycline resistance markers. Multidrug resistant (MDR) isolates were further investigated for class 1 integrons and were evaluated for the presence of conjugative plasmids along with a determination of the incompatibility group by polymerase chain reaction (PCR). Antibiogram analysis showed that the incidence rate of ceftiofur resistance was moderately high (15%). A similar level of resistance to neomycin and oxytetracycline (11% and 10%, respectively) was also observed. There was a high prevalence of …