Digital Commons Network^™

Why It's Called The Affordable Care Act, Nicholas Bagley, Jill R. Horwitz

Articles

The Patient Protection and Affordable Care Act of 2010 (“ACA”) raises numerous policy and legal issues, but none have attracted as much attention from lawyers as Section 1501. This provision, titled “Maintenance of Mini-mum Essential Coverage,” but better known as the “individual mandate,” requires most Americans to obtain health insurance for themselves and their dependents by 2014. We are dismayed that the narrow issue of the mandate and the narrower issue of free riding have garnered so much attention when our nation’s health-care system suffers from countless problems. By improving quality, controlling costs, and extending coverage to the uninsured, the …

Slavery And The Law In Atlantic Perspective: Jurisdiction, Jurisprudence, And Justice, Rebecca J. Scott

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The four articles in this special issue experiment with an innovative set of questions and a variety of methods in order to push the analysis of slavery and the law into new territory. Their scope is broadly Atlantic, encompassing Suriname and Saint-Domingue/Haiti, New York and New Orleans, port cities and coffee plantations. Each essay deals with named individuals in complex circumstances, conveying their predicaments as fine-grained microhistories rather than as shocking anecdotes. Each author, moreover, demonstrates that the moments when law engaged slavery not only reflected but also influenced larger dynamics of sovereignty and jurisprudence.

Paper Thin: Freedom And Re-Enslavement In The Diaspora Of The Haitian Revolution, Rebecca J. Scott

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In the summer of 1809 a flotilla of boats arrived in New Orleans carrying more than 9,000 Saint-Domingue refugees recently expelled from the Spanish colony of Cuba. These migrants nearly doubled the population of New Orleans, renewing its Francophone character and populating the neighborhoods of the Vieux Carre and Faubourg Marigny. At the heart of the story of their disembarkation, however, is a legal puzzle. Historians generally tell us that the arriving refugees numbered 2,731 whites, 3,102 free people of color, and 3,226 slaves. But slavery had been abolished in Saint-Domingue by decree in 1793, and abolition had been ratified …

Best Practices For Hiring And Retaining A Diverse Law Faculty, Kellye Y, Testy

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As with all institutions, the history, character, identity, and accomplishments of each law school are the direct result of its people and their acts. For that simple reason, diversity is critical; it goes to the very core of what the institution is and what it does. With legal institutions, in particular, diversity plays a critical role in shaping the perception of the institution held by persons outside of it. In order for our system of law to function as the bedrock of our democratic society that it aims to be, legal institutions must be perceived as fair and just. If …

Cryptography Using Steganography: New Algorithms And Applications, Jonathan Blackledge

Articles

Developing methods for ensuring the secure exchange of information is one of the oldest occupations in history. With the revolution in Information Technology, the need for securing information and the variety of methods that have been developed to do it has expanded rapidly. Much of the technology that forms the basis for many of the techniques used today was originally conceived for use in military communications and has since found a place in a wide range of industrial and commercial sectors. This has led to the development of certain industry standards that are compounded in specific data processing algorithms together …

Open Robotics, M. Ryan Calo

Articles

Robotics is poised to be the next transformative technology. Robots are widely used in manufacturing, warfare, and disaster response, and the market for personal robotics is exploding. Worldwide sales of home robots—such as iRobot’s popular robotic vacuum cleaner—are in the millions. In fact, Honda has predicted that by the year 2020, it will sell as many robots as it does cars. Microsoft founder Bill Gates believes that the robotics industry is in the same place today as the personal computer (“PC”) business was in the 1970s, a belief that is significant given that there are now well over one billion …

The Empty Tomb: Post-Critical Legal Hermeneutics, Peter Goodrich

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The article argues that the decline of critical legal studies (CLS) stems not only from external challenges like tenure wars but also from internal weaknesses, particularly an affective incapacity and failure of collective desire. To revitalize CLS, the article proposes a return to its original mission of social transformation, emphasizing the spiritual and ethical dimensions of legal understanding. It draws on hermeneutics and art history to explore how legal symbols and images shape power dynamics, advocating for a deeper engagement with the invisible, non-law forces that guide legal administration.

The Death Of State Sovereignty? An Empirical Exploration, Dawn L. Rothe, Christopher W. Mullins

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As academics have become increasingly interested in globalization, scholars in many fields have turned their attention to theorizations of the state and state power. Admittedly, most criminologists have paid relatively attention to theories of the state, its function, role, or issues of sovereignty (save for Barak, 1991; Chambliss and Zatz, 1993; Friedrichs, 1992; Michalowski and Kramer, 1987; Mullins and Rothe, 2008; Rothe and Mullins, 2006, 2007, 2008). With the growing criminological interest in and focus on transnational crimes (Friedrichs, 2007), crimes of globalization (Friedrichs and Friedrichs, 2002; Rothe, Mullins, and Muzzatti, 2006; Rothe, Mullins and Sandstrom, 2008), and crime of …

The Civilizing And Sportization Of Gaelic Football In Ireland: 1884–2009, John Connolly, Paddy Dolan

Articles

Over the course of the last 125 years the sport of Gaelic football in Ireland has undergone a sportization and civilizing process as the rules governing the sport became stricter and players developed greater levels of self-control. However, the civilizing of Gaelic football was a particularly fragile and uneven process. The growing social desire to diminish displays of violence was moderated by ambivalence towards violence. Gradually the external social controls on players increased and, greater and more stable levels of internalization occurred reflected by more advanced levels of player self-restraint in the control of violence. At the same time the …

National Security And The Article Ii Shell Game, Heidi Kitrosser

Articles

This essay considers the important but under-explored link between politics and constitutional interpretation in the realm of national security. The school of constitutional interpretation at which it looks is “presidential exclusivity,” which has gone from relative obscurity to prominence in the political branches and in public debate over the past several decades. Exclusivists deem the President to have substantial discretion under Article II of the Constitution to override statutory limits that he believes interfere with his ability to protect national security. The first question that this essay takes up is why exclusivity has come so far over the past several …

Testing Democracy: Marriage Equality, Citizen-Lawmaking And Constitutional Structure, Francisco Valdes

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No abstract provided.

Race, Sex, And The Division Of Labor: A Comment On Joan Williams's Reshaping The Work-Family Debate Crowdsourcing The Work-Family Debate: A Colloquy, Richard Delgado

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No abstract provided.

Law And The Social Control Of American Capitalism, William J. Novak

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This Essay is part of a larger, ongoing investigation of the role of law in the creation of a modern American state from 1877 to 1932. That project charts the decline of an early nineteenth-century world of local, common law self government (what I called in a previous work a “well-regulated society”) and the rise of a distinctly modern administrative regulatory state in the United States. This new legal-political regime was rooted in three interlinked developments: the centralization of public power; the individualization of private right; and the constitutionalization of the rule of law. Beginning soon after the Civil War, …

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.

Populist Retribution And International Competition In Financial Services Regulation, Adam C. Pritchard

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The pattern of regulatory reform in financial services regulation follows a predictable pattern in democratic states. A hyperactive market generates a bubble, the bubble deflates, and much financial pain ensues for those individuals who bought at the top of the market. The financial mess brings the scrutiny of politicians, who vow "Never again!" A political battle ensues, with representatives of the financial services industry fighting a rearguard action to preserve its prerogatives amidst cries for the bankers' scalps. Regulations, carefully crafted to win the last war, are promulgated. Memories fade of the foolish enthusiasm that fed the last bubble. Slowly, …

“We Are Going To Rape You And Taste Tutsi Women”: Rape During The 1994 Rwandan Genocide, Christopher W. Mullins

Articles

Over the past decades, scholars have paid greater attention to sexual violence, in both theorization and empirical analysis. One area which has been largely ignored, however, is the sexual violence during times of armed conflict. This paper examines the nature and dynamics of sexual violence as it occurred during the 1994 Rwandan genocide. Drawing upon testimonies given to the International Criminal Tribunal for Rwanda (ICTR), descriptions of rapes--both singular and mass—were qualitatively analyzed. In general, three broad types of assaults were identified: opportunistic, assaults which seemed to be a product of the disorder inherent within the conflict; episodes of sexual …

Run Out Of The Gallery: The Changing Nature Of Irish Political Journalism, Kevin Rafter

Articles

THIS ARTICLE EXAMINES THE evolution of parliamentary and political reporting in Ireland and builds on earlier work by Foley (1993) and Horgan (2001). It considers the changing nature of Irish political journalism and the loss of influence of the Parliamentary Press Gallery and its constituent part, the Political Correspondents Group. This analysis takes place against a backdrop of continuing very high interest in politics in Ireland. During the 2007 general election, the television debate between Bertie Ahern and Enda Kenny, the leaders of the two main political parties, had an average audience of 941000 – a national audience share of …

Free Speech And National Security, Geoffrey R. Stone

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No abstract provided.

“He Would Kill Me With His Penis”: Genocidal Rape In Rwanda As A State Crime, Christopher W. Mullins

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Only recently have critical criminologists begun a systematic exploration of genocide, war crimes and crimes against humanity as state crimes (Kramer and Michalowski 2005; Mullins and Rothe 2008; Haveman and Smeulers 2008). This paper contributes to that growing literature through examining the nature and dynamics of sexual violence as it occurred during the 1994 Rwandan genocide. It draws upon empirical examination of events depicted in transcripts of trials held before the International Criminal Tribunal for Rwanda. It qualitatively examines the role of leaders in producing mass sexual assaults. It explores how sexual mutilations were more intense expressions of what the …

The Suspension Theory: Hurricane Katrina Looting, Property Rights, And Personhood Comment, Casey E. Faucon

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No abstract provided.

Tax Reform In The (Multi)National Interest, Reuven S. Avi-Yonah

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This letter will attempt to raise some proposals for U.S. corporate and international tax reform. It will begin by asking why we need to tax corporations at all, since the rationale for the corporate tax is important for assessing reform proposals. It will then discuss options for corporate and international tax reform, beginning with long-term options (a 10-year horizon), continuing with the medium term (2-5 years), and concluding with short-term options like the Obama proposals (1-2 years).

Translating Unocal: The Expanding Web Of Liability For Business Entities Implicated In International Crimes, Anita Ramasastry, Robert C. Thompson, Mark B. Taylor

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The Ninth Circuit ruled that a corporation could be held liable under the federal Alien Tort Claims Act for its complicity in a violation of international criminal law occurring outside the U.S. (Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002)). Since then, litigants have filed increasing numbers of such cases. These cases raise two questions: (1) Is the United States the only country that provides judicial accountability for business entities involved in international crimes abroad? and (2) How are other countries "translating" the basic kinds of accountability that Unocal recognized into their own legal systems? This Article …

Professionalizing Moral Deference, Michael Hatfield

Articles

As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the "torture memoranda" to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently …

Are "Better" Security Breach Notification Laws Possible?, Jane K. Winn

Articles

This Article will evaluate the provisions of California's pioneering security breach notification law (SBNL) in light of "better regulation" or "smart regulation" criteria in order to highlight the costs of taking a narrowly focused, piecemeal approach and the benefits of taking a more comprehensive perspective to the problems of identity theft and information security. Just as the basic structure of SBNLs was borrowed from environmental law, this Article will borrow from decades of analysis of the impact of environmental regulation to evaluate the likely impact of SBNLs.

Just as environmental laws can be used to reduce externalities created through the …

The Future Of American Labor And Employment Law: Hopes, Dreams, And Realities, Theodore J. St. Antoine

Articles

In many respects the US is a deeply conservative country. Unique among the major industrial democracies of the world, it imposes the death penalty, provides no national health insurance, fixes a high legal drinking age, and subscribes to the doctrine of employment at will. Perhaps not surprisingly, its labor movement is also one of the most conservative on earth, eschewing class warfare and aiming largely at the bread-and-butter goal of improved wages, benefits, and working conditions. Yet American employers have generally never been as accepting of unionization as their counterparts in other countries (Bok 1971; Freeman and Medoff 1984). Over …

Russia Fires Shot Across Bows Of Eu, Us And Nato, Tom Clonan

Articles

As both houses of the Russian parliament call upon President Medvedev to support Abkhazia and South Ossetia’s right to self determination, Russian military commanders would appear to be consolidating a so-called ‘buffer zone’ within Georgia proper. According to Moscow, a battalion of 272 Russian troops will occupy eight ‘forward’ positions up to 15km within Georgia proper along its borders with Abkhazia and South Ossetia. A further 250 Russian troops are set to be deployed to the rear of these positions to perform ‘logistics, engineering and support’ functions. As Russia consolidates its foothold in Georgia, serious questions arise as to the …

Plea Bargaining And The Death Penalty, Albert Alschuler

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No abstract provided.

Studying The Exclusionary Rule: An Empirical Classic, Albert Alschuler

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No abstract provided.

Multi-Algorithmic Cryptography Using Deterministic Chaos With Applications To Mobile Communications, Jonathan Blackledge

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In this extended paper, we present an overview of the principal issues associated with cryptography, providing historically significant examples for illustrative purposes as part of a short tutorial for readers that are not familiar with the subject matter. This is used to introduce the role that nonlinear dynamics and chaos play in the design of encryption engines which utilize different types of Iteration Function Systems (IFS). The design of such encryption engines requires that they conform to the principles associated with diffusion and confusion for generating ciphers that are of a maximum entropy type. For this reason, the role of …

Negative Dimensions Of Identity: A Research Agenda For Law And Public Policy, Avner Ben-Ner, Claire Hill

Articles

Legal scholarship has long concerned itself with race, gender, and other core identities. Economics, and law and economics, is now turning its attention to other dimensions of identity. What is identity? Identity is "a person's sense of self."' Identity has genetic, cultural and neural bases grounded in an evolutionary process.' Identity helps individuals make sense of themselves and provides a feeling of grounding or belonging. There are many potential identity dimensions, including gender, facial features, and height, as well as religion, ethnicity, social-group affiliation, sports-team loyalty, family, profession, artistic preferences, culinary preferences, and place of origin. The significance of different …