Digital Commons Network^™

Dampening Financial Regulatory Cycles, Brett Mcdonnell

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No abstract provided.

Numerical Half Truths, Human Lies, And Other Distortions Of Truth, Richard W. Painter

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No abstract provided.

Imagining A Same-Sex Marriage Decision Based On Dignity: Considering Human Experience In Constitutional Law, Danieli Evans

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California’s Proposition 8 allows same sex couples to join through civil unions, which grant the legal benefits afforded to married couples but denies them the official label of “marriage.” The lower court eschewed the question of whether Proposition 8 burdens any fundamental right by concluding there is not even a rational basis (the minimum standard for the constitutionality of any law) for this law, as its sole effect is to deny same sex couples the designation of marriage.

We appreciate the lower court’s caution not to extend our fundamentalrights jurisprudence beyond precedent. However, we are positioned to elaborate fundamental constitutional …

Tort Liability In The Age Of The Helicopter Parent, Elizabeth G. Porter

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Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct …

Property, Privacy And Power: Rethinking The Fourth Amendment In The Wake Of U.S. V. Jones, Dana Raigrodski

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This Article seeks to uncover invisible gender, race, and class biases driving modern Fourth Amendment discourse. Unlike traditional theories, which tend to view the Fourth Amendment through the lens of either privacy or property, this Article advances a theory focusing on the real issues of power and control that fuel Fourth Amendment jurisprudence. Specifically, the Article exposes the private/public and home/market dichotomies that are central to the Supreme Court rhetoric as arbitrary and artificial. It finds that current Fourth Amendment discourse protects the interest of white, privileged men and perpetuates male ideology as well as male domination. That focus leaves …

The Modern Corporation Magnified: Managerial Accountability In Financial Services Holding Companies, Anita K. Krug

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This Article's goal is to revisit early and thoughtful commentary on the fundamental problem of the large corporate enterprise--managerial accountability to shareholders-- to show that this fundamental problem is dramatically pronounced--magnified, if you will--in the types of enterprises that were at the center of the financial crisis, whether too big to fail or not. In particular, The Modern Corporation articulated that the evolution of economic organization has separated the beneficial ownership of property from those who control it and that this disjunction has created an irresolvable tension between shareholders and management. Nowhere is that tension more pronounced than in the …

Against Notice Skepticism In Privacy (And Elsewhere), M. Ryan Calo

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What follows is an exploration of innovative new ways to deliver privacy notice. Unlike traditional notice that relies upon text or symbols to convey information, emerging strategies of “visceral” notice leverage a consumer’s very experience of a product or service to warn or inform. A regulation might require that a cell phone camera make a shutter sound so people know their photo is being taken. Or a law could incentivize websites to be more formal (as opposed to casual) wherever they collect personal information, as formality tends to place people on greater guard about what they disclose. The thesis of …

Only Part Of The Picture: A Response To Professor Tushnet's Worth A Thousand Words, Zahr Kassim Said

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Professor Rebecca Tushnet’s recent article Worth a Thousand Words: The Image of Copyright elucidates a number of difficulties in copyright that flow from judicial failures to treat images consistently and rigorously. She argues that courts both assess copyrightability and evaluate potential infringement in ways that rely on a naïve understanding of the way artists create, and indeed, the way viewers receive works of art. The problem is particularly pronounced with respect to what Tushnet calls non-textual works because copyright law’s default to textuality means that the tools and methods that judges use misalign with the objects of their examination.

In …

Fixing Copyright In Characters: Literary Perspectives On A Legal Problem, Zahr K. Said

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This Article argues for the benefits of an interdisciplinary approach to the problem of copyright’s internal inconsistencies. Character jurisprudence under copyright law misaligns with cultural and literary conceptions of character. Intellectual property law has taken insufficient account of important discrepancies among legal, cultural, and literary theories of character. Literature helps articulate what is at work in the doctrinal tensions in copyright’s character jurisprudence over which kind of character, if any, to protect independently, and how much of it, if any, to protect separately from the text.

At the heart of the doctrinal confusion over the proper scope of protection for …

The Psychotherapist Privilege: Privacy And "Garden Variety" Emotional Distress, Helen A. Anderson

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Surprisingly, there is no clear authority on implied waiver of the psychotherapist-patient privilege in federal courts. There is binding authority from the Supreme Court establishing the privilege, but the bold outlines of that decision have been blurred in the confusion about implied waiver.

This Article explores one aspect of that confusion: the popular "garden variety" approach, which favors plaintiffs with what the court deems garden variety, or "normal," mental distress. Although a few other scholars have written on the confusion in the law of implied waiver, this is the first article to look closely at the garden variety approach, which …

Neuroscience, Mental Privacy, And The Law, Francis X. Shen

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Will brain science be used by the government to access the most private of spaces — our minds — against our wills? Such scientific tools would have tremendous privacy implications if the government suddenly used brain science to more effectively read minds during police interrogations, criminal trials, and even routine traffic stops. Pundits and scholars alike have thus explored the constitutional protections that citizens, defendants, and witnesses would require to be safe from such mind searching. Future-oriented thinking about where brain science may lead us can make for great entertainment and can also be useful for forward-thinking policy development. But …

The Gender/Class Divide: Reproduction, Privilege, And The Workplace, June Carbone, Naomi Cahn

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This article evaluates the relationship between workplace equality and the technology of egg freezing, which allows women to “bank” their eggs until they are ready to use them. As the workplace increasingly rewards education and career investment, middle class women postpone family formation until they have attained a measure of financial security and the maturity to balance dual earner arrangements. Yet, as they age, their reproductive potential diminishes dramatically. By contrast, women who do not complete college (and aren’t even thinking about graduate school) bear children at different times in their life cycles, with less leverage with employers, and different …

Online Reading Informs Classroom Instruction And Promotes Collaborative Learning, Leslie Kate Wright, Sacha Zyto, David R. Karger, Dina L. Newman

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Web-based collaborative annotation tools can facilitate communication among students and their instructors through online reading and communication. Collaborative reading fosters peer interaction and is an innovative way to facilitate discussion and participation in larger enrollment courses. It can be especially powerful as it creates an environment where all students are able to ask questions and contribute to a discussion about science. An online annotation tool, Nota Bene (NB), was tested in two biology courses: intermediate-level Molecular Biology (89 students) and upper level Cancer Biology (26 students). Student participation in these graded reading assignments ranged from 79% to 93%. A typical …

Data Mining And Machine Learning Techniques For Extracting Patterns In Students’ Evaluations Of Instructors, Ernest Fokoue, Necla Gündüz

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No abstract provided.

Bedside Bureaucrats: Why Medicare Reform Hasn't Worked, Nicholas Bagley

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Notwithstanding its obvious importance, Medicare is almost invisible in the legal literature. Part of the reason is that administrative law scholars typically train their attention on the sources of external control over agencies’ exercise of the vast discretion that Congress so often delegates to them. Medicare’s administrators, however, wield considerably less policy discretion than the agencies that feature prominently in the legal commentary. Traditional administrative law thus yields slim insight into Medicare’s operation. But questions about external control do not—or at least they should not—exhaust the field. An old and often disregarded tradition in administrative law focuses not on external …

Appraisal Theory: Old And New Questions, Phoebe C. Ellsworth

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I describe my current thinking on two old questions—the causal role of appraisals and the relationship of appraisal theories to basic emotions theories and constructivist theories, and three (sort of) new questions—the completeness of appraisals, the role of language, and the development of automaticity in emotional responses.

A Taxonomy Of Massive Data For Optimal Predictive Machine Learning And Data Mining, Ernest Fokoue

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No abstract provided.

On The Predictive Analytics Of The Probit And Logit Link Functions, Necla Gunduz, Ernest Fokoue

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Researchers and practitioners have long held that the probit and logit link functions generally yield the same performance in binary classification. Despite this widespread recognition of the strong similarities between these two link functions, very few (if any) researchers have dedicated time to carry out a formal study aimed at establishing and characterizing firmly all the aspects of the similarities and differences. This paper proposes a definition of both structural and predictive equivalence link functions-based binary regression models, and provides both a theoretical and computational justification of the long held claim that probit and logit are indeed very similar. From …

Risks And Safety On The Internet: Comparing Brazilian And European Children, Alexander Barbosa, Brian O'Neill, Cristina Ponte, Simões Simões, Tatiana Jereissati

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A child’s home and school are the most frequently reported locations of internet use in Brazil: 60% of Brazilian children aged 9 to 16 who used the internet claimed to access it from home, and 42% from school, whereas in Europe this proportion is 87% for home access and 63% for schools.

However, when it comes to accessing the network from publicly sponsored internet access centres such as Local Area Network (LAN) Houses or cybercafés, the value in Brazil is considerably higher when compared to Europe, 35% against 12% respectively. Access from public libraries is far more popular in Europe …

Learning From Learning Groups, Mike Murphy, S. M. Chance, Gavin Duffy, Brian Bowe

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Collaborative learning is a key, and complementary, component of student-centred enquiry-based pedagogy. Today, many educators understand that students learn effectively when working together with their peers to construct new knowledge. Many teachers are working to help their students develop such ability. Teachers do this to help students better understand the relevance of new content, connect new ideas into existing frameworks of understanding, and construct new neurological pathways and connect synapses in their brains. In addition, group learning has been shown to increase students’ critical thinking skills, creativity, collaborative behaviours, understanding of ethics, and the like. In the literature, attention has …

Law Firm Malpractice Disclosure: Illustrations And Guidelines, Anthony V. Alfieri

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No abstract provided.

Barriers And Solutions To Recruitment Strategies Of Students Into Post-Secondary Agricultural Education Programs: A Focus Group Approach, Jennifer Calvin, Seburn L. Pense

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This qualitative study utilized focus group interviews of secondary Illinois agricultural education teachers to investigate the continuing problem of student recruitment into teacher preparation pro-grams of agricultural education. Using signal theory, image theory and person-organization fit theory, the researchers identified five themes relating to recruitment issues: time, the economy, family, technology and image. Each theme is described through the words of the participants and solutions are suggested for improving recruitment.

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension, Christopher Buccafusco, Paul J. Heald

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The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …

Well-Being Analysis Vs. Cost-Benefit Analysis, John Bronsteen, Christopher Buccafusco, Jonathan S. Masur

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No abstract provided.

Conservation Easements As Charitable Property: Fiduciary Duties And The Limits Of Charitable Self-Regulation, Melanie B. Leslie

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No abstract provided.

Conservation Easements As Charitable Property: Fiduciary Duties And The Limits Of Charitable Self-Regulation, Melanie B. Leslie

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No abstract provided.

The Constitutionality Of Consumer Privacy Regulation, Felix T. Wu

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The article argues for enhanced consumer privacy protections through improved notices and restrictions on data sharing, while addressing potential First Amendment concerns by emphasizing the commercial nature of the entities involved. It suggests that regulating commercial data practices differs from restricting individual free speech and should not face the same legal hurdles.

Legal Positivism And Russell's Paradox, David G. Carlson

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In this Article, I argue that legal positivism is subject to the same paradox as was engendered by Frege's set theory-a paradox that has come to be known as Russell's Paradox. Basically, Frege tried to define what a set is. Russell showed that, because of self-reference, any attempt to define the word "set" led to formal condition. I argue that Russell's analysis can be applied to legal positivism, if "legal positivism" is defined to mean that a complete and closed rule of recognition for law is a logical possibility. I also argue that, to the extent legal positivism claims that …

Effect Precedes Cause: Kant And The Self-In-Itself, David G. Carlson

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This article describes the metaphysics of Kant, according to which we never know the Thing In Itself but only the appearance of it. When applied to selfhood (which is a “thing”), Kant implies that we never know what motivates us to do what we do. Our reasons are after-the-fact apologies to justify our acts. For that reason the “cause” of our deed always (that is to say, our reasons) follows the deed itself. Effect precedes cause, on Kantian metaphysics.

Gender And New Wars, Christine M. Chinkin, Mary Kaldor

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War plays an important role in the construction of gender, or the social roles of men and women. This article analyzes the gendered experience of what Kaldor calls "new wars." It shows that new wars are largely fought by men in the name of a political identity that usually has a significant gender dimension. They use tactics that involve deliberate attacks on civilians, including systematic rape as a weapon of war, and are financed by predatory economic activities that tend to affect women more than men. The article describes the ways in which laws relating to gendered violence have been …