Digital Commons Network^™

Reforming Copyright Interpretation, Zahr K. Said

Articles

This Article describes two dimensions of largely unacknowledged and unconstrained realms of interpretive complexity that judges face. First, judges make decisions about sources of interpretive authority somewhere on an axis, one end of which would vest interpretive authority entirely in the text and the other entirely in the context, around or beyond the text. This Article terms this spectrum of judicial decision-making the Text/Context axis. Second, judges must decide what interpretive mode to use in approaching the text, and here they make decisions somewhere along an axis where one end represents analysis or exegesis of the works and the other …

Creators, Innovators, And Appropriation Mechanisms, Sean M. O'Connor

Articles

Now that Congress’s House Judiciary Committee has undertaken a review of current copyright law, and the Register of Copyrights, Maria Pallante, has called for the “Next Great Copyright Act,” sides are being drawn by various interest groups. Perhaps following the pitting of information technology firms against bio-chem and pharma firms in the patent reform battles leading to the America Invents Act, some interest groups want to divide the copyright reform debates into “innovators” and “creators.” Much of this seems driven by large tech firms such as Google, along with advocacy groups such as the Electronic Frontier Foundation (“EFF”) who are …

Against Immutability, Jessica A. Clarke

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Courts often hold that antidiscrimination law protects “immutable” characteristics, like sex and race. In a series of recent cases, gay rights advocates have persuaded courts to expand the concept of immutability to include not just those traits an individual cannot change, but also those considered too important for anyone to be asked to change. Sexual orientation and religion are paradigmatic examples. This Article critically examines this new concept of immutability, asking whether it is fundamentally different from the old one and how it might apply to characteristics on the borders of employment discrimination law’s protection, such as obesity, pregnancy, and …

The Contribution Of Phonological Knowledge, Memory, And Language Background To Reading Comprehension In Deaf Populations, Elizabeth A. Hirshorn, Matthew W G Dye, Peter Hauser, Ted R. Supalla

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While reading is challenging for many deaf individuals, some become proficient readers. Little is known about the component processes that support reading comprehension in these individuals. Speech-based phonological knowledge is one of the strongest predictors of reading comprehension in hearing individuals, yet its role in deaf readers is controversial. This could reflect the highly varied language backgrounds among deaf readers as well as the difficulty of disentangling the relative contribution of phonological versus orthographic knowledge of spoken language, in our case ‘English,’ in this population. Here we assessed the impact of language experience on reading comprehension in deaf readers by …

Ecological Perspectives And Children’S Use Of The Internet: Exploring Micro To Macro Level Analysis, Brian O'Neill

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Age-old debates on children’s encounters with media technologies reveal a long, fractured and contentious tradition within communication and media studies. Despite the fact there have been studies of e ects of media use by children since the earliest days of broadcasting, the subject remains under-theorised, poorly represented in the literature and not widely understood in media policy debates. Old debates have intensi ed in relation to the study of children and the internet. Pitted between alarmist accounts of risks, excessive use and harmful e ects on the one hand and the many accounts about „digital natives” and the transformational power …

Knowledge Sharing In Organisations: A Bayesian Analysis Of The Role Of Reciprocity And Formal Structure, Alberto Caimo, Alessandro Lomi

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We examine the conditions under which knowledge embedded in advice relations is likely to reach across intraorganizational boundaries and be shared between distant organizational members. We emphasize boundary-crossing relations because activities of knowledge transfer and sharing across subunit boundaries are systematically related to desirable organizational outcomes. Our main objective is to understand how organizational and social processes interact to sustain the transfer of knowledge carried by advice relations. Using original fieldwork and data that we have collected on members of the top management team in a multiunit industrial group, we show that knowledge embedded in task advice relations is unlikely …

Thinking Outside The Box: Promoting Learning Through Emotional And Social Skills Development, Aiden Carthy, Sinead Mcgilloway

Articles

The European Qualifications Framework provides a useful insight into the kinds of outcomes and abiliti es that are promotedacross the EU. However, beyond arguably vague references to concepts such as ‘integrity’ and ‘autonomy’, this frameworkmakes no reference to the development of students’social and emotional competencies. Based on initial research findings inan Irish context, and when considered against the backdrop of a convincing literature on the importance of emotionalintelligence in academic attainment, there would appear to be considerable scope to modify this framework in order to accommodate more specific reference to the development of emotional and social skills. This paper addresses …

Why Instrumentalism Matters, Kyron Huigens

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No abstract provided.

Facing Terror Together: Public Agents And Civic Worth, Ekow N. Yankah

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No abstract provided.

Why Instrumentalism Matters, Kyron J. Huigens

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Alon Harel argues that the acts of a public official acting with "fidelity of deference," are "necessary," "non-contingent," "intrinsic," "constitutive," integrative," "expressive," or "inherent" features of legal punishment. Accordingly, he calls his argument "noninstrumental." This can be taken as an argument for logical necessity, definition, extension, or modest or immodest conceptual necessity. Only the last interpretation fits Harel's text, but such an argument fails because instrumentality is necessarily present in any event in the natural world, including punishment. Harel does not say which aspects of natural instrumentality he means to exclude from his argument, or how, or why.

The Jury And Criminal Responsibility In Anglo-American History, Thomas A. Green

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Anglo-American theories of criminal responsibility require scholars to grapple with, inter alia, the relationship between the formal rule of law and the powers of the lay jury as well as two inherent ideas of freedom: freedom of the will and political liberty. Here, by way of canvassing my past work and prefiguring future work, I sketch some elements of the history of the Anglo-American jury and offer some glimpses of commentary on the interplay between the jury—particularly its application of conventional morality to criminal judgments—and the formal rule of law of the state. My central intent is to pose questions …

The Child Quasi-Witness, Richard D. Friedman, Stephen J. Ceci

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This Essay provides a solution to the conundrum of statements made by very young children and offered against an accused in a criminal prosecution. Currently prevailing doctrine allows one of three basic outcomes. First, in some cases the child testifies at trial. But this is not always feasible, and when it is, cross-examination is a poor method for determining the truth. Second, evidence of the child's statement may be excluded, which denies the adjudicative process of potentially valuable information. Third, the evidence may be admitted without the child testifying at trial, which leaves the accused with no practical ability to …

Characteristics Of Attorneys Representing Children In Child Welfare Cases, Britany Orlebeke, Andrew Zinn, Xiaomeng Zhou, Donald N. Duquette

Articles

Every day in state and local courts throughout the United States, judges are called upon to decide who should have the responsibility for the immediate and long-term care of neglected and abused children. Federal recognition of the right to independent advocacy for children subject to these proceedings originates with the 1974 Federal Child Abuse Prevention and Treatment Act (CAPTA). As a condition of receiving federal funds for child abuse prevention services through CAPTA, states must provide for the appointment of an appropriately trained guardian ad litem (GAL) for every child whose case results in a judicial proceeding. A guardian ad …

Reflections On Freedom And Criminal Responsibility In Late Twentieth Century American Legal Thought, Thomas A. Green, Merrill Catharine Hodnefield

Articles

It is now a commonplace among historians that American criminal jurisprudence underwent a dramatic change something like two-thirds to three-quarters into the last century. Roughly, this development is understood as a shift (or drift) from a more-or-less pure consequentialism to a "mixed theory" wherein retributivism played a major-at times, dominant-role. As the new paradigm remains intact, now approaching a half-century, the development qualifies as a significant historical fact. The fact applies not only to the history of justification for punishment but also to conceptions of the underlying principle of (basis for) responsibility. The two are rightly distinguished: for many scholars …

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia Narine

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No abstract provided.

Student Attitudes To An Online, Peer-Instruction, Revision Aid In Science Education, Barry Ryan, Aaron Mac Raighne, Morag Casey, Robert Howard

Articles

Peer instruction has been shown to have a positive effect on students’ engagement and learning. However, many of the techniques designed to incorporate peer instruction into the student experience are very heavy on resources. PeerWise is a free, low-maintenance, web-tool designed to allow peer instruction between students within a large class group. Students can write, answer and discuss Multiple Choice Questions (MCQs) based on their work in-class.

In this study, we introduce PeerWise to a wide and varied cohort of science students (N=509) across different disciplines, undergraduate years, levels (certificate to honours degree) and institutes. The attitudes of the students …

Development Of A Methodology For Assessing Safety & Operational Reporting Within Safety Critical Industries, Maria Chiara Leva, Ewan Douglas, Sam Cromie

Articles

Develop a best-practice model based on literature and industrial experience

• Industrial Case Studies to allow a cross industrial comparison

• Develop a suite of techniques that can be used cross-industry to assess the effectiveness of a reporting system

• Propose a theoretical framework for the effective implementation of risk and hazard reporting as an input for safety management

Contract Remedies In Action: Specific Performance, Yonathan A. Arbel

Articles

How is a right to specific performance of a contract used by parties Despite longstanding scholarly interest in the topic this question has been largely left unexplored This Article presents a qualitative study of parties and attorneys involved in specific performance litigation It investigates how parties choose between remedies whether they negotiate after judgment for specific performance if specific performance is implemented and the difficulties involved in its implementationbrbrThe findings reveal important theoretical oversights and challenges to prevailing law In practice many plaintiffs opt out of specific performance This is puzzling as expectation damages are notoriously under compensatory relative to …

Economics, Eq, And Finance: The Next Frontier In Legal Education, Pamela Bucy Pierson

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No abstract provided.

How To Be A Star Performer In The Legal World Jobs, Pamela Bucy Pierson

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No abstract provided.

When Private Property Rights Collide With Growth Management Legislation, Steve P. Calandrillo, Chryssa V. Deliganis, Andrea Woods

Articles

Over the past century, ever-expanding urban and suburban growth in the United States has offered a clear sign of America’s economic vitality, but it has not come without unique challenges of its own. Indeed, efforts to promulgate “smart growth” legislation as an antidote to suburban “sprawl” have proliferated in the past three decades, but it is time we ask ourselves whether their benefits outweigh their unintended consequences. States and local governments that once enthusiastically touted such legislation are beginning to confront unforeseen obstacles–and litigation–that raise the need for immediate reform.

This Article explores the impact of growth management acts on …

The Lost "Art" Of The Patent System, Sean M. O'Connor

Articles

Patent systems emerged in the early modern period of the West to incentivize development and dissemination of skills-based artisanal innovations. This approach appears to have been adopted by the Framers in drafting the Intellectual Property Clause.

Only later, in the Industrial Revolution, did ‘‘science’’ and ‘‘technology’’ begin to displace ‘‘art’’ as the perceived object of the U.S. patent system. This was in large part because of the emergence of the concept of ‘‘technology’’ itself as science-based innovation in artisanal and mechanized production.

The loss of an ‘‘art’’-based concept of the patent system is arguably causing some of the confusion over …

Spatial Brightness, Horizontal Illuminance And Mean Room Surface Exitance In A Lighting Booth, James Duff, Kevin Kelly, C. Cuttle

Articles

This paper presents a pilot study that has investigated the suitability of mean room surface exitance as a predictor of spatial brightness and compared these results with how horizontal illuminance predicts spatial brightness under the same conditions. The experiment took a group of 26 participants and, using a scaled booth, exposed each participant to three levels of mean room surface exitance, each delivered with three different light distributions and three different surface reflectances, resulting in a total of 27 light scenes. Results demonstrated that, under the range of conditions to which participants were exposed, a systematic relationship existed between mean …

Trailmaking Test Performance Contributes To Subjective Judgment Of Visual Efficiency In Older Adults, Annalisa Setti, James Loughman, George Savva, Rose Anne Kenny

Articles

Introduction.

The determinant factors that influence self-reported quality of vision have yet to be fully elucidated. This study evaluated a range of contextual information, established psychophysical tests, and in particular, a series of cognitive tests as potentially novel determinant factors.

Materials &Methods. Community dwelling adults (aged 50+) recruited to Wave 1 of The Irish Longitudinal Study on Ageing, excluding those registered blind, participated in this study (N = 5,021). Self-reports of vision were analysed in relation to visual acuity and contrast sensitivity, ocular pathology, visual (Choice Response Time task; TrailMaking Test) and global cognition. Contextual factors such as having visited …

Using Sequential Mixed Methods In Enterprise Policy Evaluation. Special Mixed Methods Edition., Anthony Paul Buckley

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How might policy instruments contribute to indigenous firm growth and how can the effects of these instruments be evaluated at both firm and policy level? This paper illustrates how a mixed methods research design and data analysis strategy can pragmatically address the research questions outlined above. The advantages and challenges of employing quantitative research methods (what happened?) followed by confirmatory qualitative research methods (how and why did it happen?) in a multiphase sequential explanatory design is explored. The data analysis strategy is firstly to analyse the data generated from a ‘before and after’ quasi-experiment (with statistical controls), then data from …

Teaching Unincorporated Business Associations Through A Simulated Start-Up, Brett Mcdonnell

Articles

This paper describes the Unincorporated Business Associations course taught by the author. The course is organized around a simulated start-up LLC. Students are assigned roles as counsel for one of the founders of the simulated LLC. Over a series of four exercises, students negotiate and draft the provisions of an operating agreement. The course both helps develop important practice skills such as negotiating and drafting, but more fundamentally helps students understand the law of business associations through understanding how that law provides background legal rules for drafting the terms of individual agreements.

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

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Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction allocates power between states in a way that can support or undermine regulatory interests, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and …

Lawyers On Trial: Juror Hostility To Defendants In Legal Malpractice Trials, Herbert M. Kritzer, Neil Vidmar

Articles

In contrast to medical malpractice, legal malpractice is a phenomenon that has attracted little attention from empirically-oriented scholars. This paper is part of a larger study of legal malpractice claiming and litigation. Given the evidence on the frequency of legal malpractice claims, there are surprisingly few legal malpractice cases that result in jury verdicts. There are many possible explanations for this, one of which reflects the perception that lawyers are held in such low esteem by potential jurors that they risk harsh treatment by jurors when they are defendants in legal malpractice trials. Because we could find no empirical evidence …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

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This Article examines both the forces undermining copy ownership and the important functions it serves within the copyright system in order to construct a workable notion of consumer property rights in digital media.

Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach …

Corporate Religious Liberty, Caroline Mala Corbin

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No abstract provided.