Digital Commons Network^™

Coordinating Cross-Border Bankruptcy: How Territorialism Saves Universalism, Edward Adams, Jason Fincke

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This article explores the difficulties of coordinating cross-border bankruptcies. These difficulties arise from the lack of a binding set of uniform international rules, forcing multinational businesses to look to domestic laws for guidance. The problem is that without coordinated, concurrent insolvency proceedings, an effective reorganization of a multinational corporation is impossible because a multitude of separate judgments ultimately leads to the dismemberment of a debtor's estate.To address this challenge, an increasing number of countries – including the United States and several European countries such as Germany, Poland, Romania, Spain, and the United Kingdom – have enacted a Model Law on …

The Regulation Of Creativity Under The Wipo Internet Treaties, Ruth Okediji

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The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WIPO Internet Treaties) recite a need for a digital copyright framework to facilitate 'adequate solutions to questions raised by new economic, social, cultural and technological developments.' It can hardly be contested that the social and cultural developments to which the Treaties refer do not derive from the cultural or economic conditions (much less technological developments) of the developing and least-developed countries. Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the …

Bailouts: An Essay On Conflicts Of Interest And Ethics When Government Pays The Tab, Richard W. Painter

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This essay, a precursor for a book project on the same topic, addresses ethics problems for government officials who orchestrate bailouts of private companies. These problems include excessive politicization of bailout decisions, the influence of campaign contributions, conflicts of interest when executives from the private sector move in and out of government positions, insider trading on government information about bailouts, and loose regulation of conflicts of interest within private companies that assist with bailouts as government contractors. This essay concludes that government ethics law in its current state is not up to the task and that the United States is …

Equitable Prescription Drug Coverage: Preventing Sex Discrimination In Employer-Provided Health Plans, Stephen F. Befort, Elizabeth C. Borer

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Nearly half of large, employer-sponsored group health plans in the United States do not cover prescription contraceptives used by women. This exclusion contributes to unintended pregnancies, higher out-of-pocket expenses, and adverse social consequences. The federal courts currently are split on whether this exclusion violates Title VII as amended by the Pregnancy Discrimination Act (PDA). In a recent decision that is of first impression at the circuit court level, the Eighth Circuit ruled in In re Union Pacific Railroad Employment Practices Litigation that the lack of contraception coverage in an employee health insurance plan that covered Rogaine and Viagra for men …

From Banners To Youtube: Using The Rear-View Mirror To Look At The Future Of Internet Advertising, Susan Barnes, Neil Hair

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In twelve short years, Internet advertising has evolved from banners to experiential promotions. In the beginning advertisers viewed the Internet in similar ways as they considered traditional media (television, newspaper, magazines). The idea of using a new medium like an older one, was described by McLuhan's concept of the rear view mirror. This article describes the history of Internet advertising from 1994 to 2006 by looking back to understand the future direction of Internet advertising.

Redesigning Consumer Dispute Resolution: A Case Study Of The British And American Approaches To Insurance Claims Conflict, Daniel Schwarcz

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Much of insurance law and regulation is concerned with compensating consumers who have been wrongly denied coverage. But policyholders nonetheless have relatively few realistic options for challenging an insurer's adverse coverage determination. Litigation is often too slow and costly for those who have recently suffered significant financial loss. Meanwhile, the alternative dispute resolution (ADR) options that do exist-such as the conciliation services that insurance regulators offer or the existing variants of insurance arbitration-are generally either ineffective or unavailable for most disputes. This Article proposes a new way forward by looking to the United Kingdom's innovative Financial Ombudsman Service (FOS), which …

Disclosure, Endorsement, And Identity In Social Marketing, William Mcgeveran

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Social marketing is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers can send personalized promotional messages featuring an ordinary customer to that customer's friends. Because they reveal a customer's browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals' ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation-spanning from privacy to trademark and unfair competition to consumer …

Self-Defeating Subsidiarity, Francesco Parisi, Emanuela Carbonara, Barbara Luppi

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In this paper we analyze the factors that should be considered when allocating a given policy function at a particular level of government and how these factors affect the growth and evolution of multi-level governments. After discussing the interplay of economies of scale, economies of scope, and heterogeneity of preferences in determining the optimal level of legal intervention, we show that the subsidiarity principle can have mixed effects as a firewall against progressive centralization. Our economic model of subsidiarity reveals that once some functions become centralized, further centralization becomes easier and often unavoidable. Contrary to its intended function, a piecemeal …

Optimal Timing Of Legal Intervention: The Role Of Timing Rules, Barbara Luppi, Francesco Parisi

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In a recent article, Gersen and Posner (2007) examined the role of timing rules in promoting the optimal timing of legislative action. In this brief essay, we address the issue of optimal timing of lawmaking through the lens of option theory. We provide a formalization of seven alternative timing rules and evaluate the option value of those legislative strategies. This formalization allows us to evaluate the desirability of alternative timing rules in different regulatory environments.

The Accountable Executive, Heidi Kitrosser

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This Article was written for the 2008 Minnesota Law Review Symposium, Law & Politics in the 21st Century. The Article examines the core functionalist argument typically made to support unitary executive theory: that the theory advances the constitutional principle of accountability by demanding that all executive branch decisions be placed in the hands of a single, nationally elected official. This Article argues that a unitary executive undermines, rather than bolsters, government accountability. The Article also explains that one need not agree with that proposition to conclude that the accountability justification for unitary executive theory is flawed. Rather, one need only …

Bargaining In The Shadow Of The Lawsuit: A Social Norms Theory Of Incomplete Contracts, Claire Hill

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Complex business contracts are notoriously difficult to write and read. Certainly, when litigation arises, courts scarcely have an easy time interpreting them. Indeed, contracts don't look at all as though they are written to tell a court what the parties want. Why can't smart, well-motivated lawyers do a better job? My article argues that they rationally don't try. I argue for a view of contracting in which parties aren't principally trying to set forth an agreement for a court to enforce. Rather, by leaving inartful language and ambiguity in the agreement, parties are bonding themselves not to seek precipitous recourse …

Why Did Anyone Listen To The Rating Agencies After Enron?, Claire Hill

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Enron was rated investment grade by Moody’s, Standard and Poor’s, and Fitch until four days before it declared bankruptcy - scarcely a ringing endorsement of the agencies’ acumen. Even before Enron, the rating agencies had come in for significant criticism. Yet many investors who lost considerable sums in the financial crisis are saying that they relied on the rating agencies. How can this reliance be reconciled with what preceded it? I argue that an adaptive trait - incorporating new data that potentially conflicts with one’s pre-existing worldview so as to preserve as much of that worldview as possible - proved …

Women, Security, And The Patriarchy Of Internationalized Transitional Justice, Fionnuala Ní Aoláin

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In the contemporary global context, transition from conflict to peace and from authoritarian to democratic governance is a critical preoccupation of many states, particularly the United States. In these contexts, accountability for the abuses committed by prior regimes has been a priority for international institutions, states and new governments. Equally, transitional justice goals have expanded to include fashioning new domestic political and legal institutions and a broad range of structural reform in multiple spheres. Whether an expanded or contracted transitional justice paradigm is used to define the perimeters of change, gender concerns have been markedly absent across political contexts and …

Gender And The Rule Of Law In Transitional Societies, Fionnuala Ní Aoláin, Michael Hamilton

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This article examines a unique relationship—specifically, the connection between the rule of law, as it is imported and experienced in post-conflict/post-repression societies, and gender. We assert that some of the most gendered and problematic dimensions of rule of law discourse and practice can arise with intensity in post-conflict or post-repressive societies. In particular, we explore a fundamental contradiction. Transitional societies bring powerful and transformative moments to global attention.

Executive Compensation And The Optimal Penumbra Of Delaware Corporate Law, Claire Hill, Brett Mcdonnell

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Corporate law has done a very bad job on executive pay: executives have been rewarded for stellar performance that turned out to be anything but stellar, and shareholders have had no meaningful recourse. Indeed, there are many other such cases, where there is no breach of the fiduciary duties of care and loyalty, but the board's behavior nevertheless smacks of a classic agency problem known as structural bias. We argue that law on the books and as enforced is not well situated to deal with structural bias. What shows some promise is the marshaling of extra legal forces that effectively …

Professor Bainbridge And The Arrowian Moment: A Review Of The New Corporate Governance In Theory And Practice, Brett Mcdonnell

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The New Corporate Governance in Theory and Practice, a new book by Stephen Bainbridge, pulls together the leading arguments for director primacy that Bainbridge has made in a series of articles. In his core argument, Bainbridge uses theoretical work by Kenneth Arrow to explain the attractions of the separation of ownership and control with a centralized hierarchy headed by a board of directors. Bainbridge posits that achieving an optimal tradeoff between authority and accountability is the central problem of corporate law. He uses a key passage from Arrow to argue that in making this tradeoff, lawmakers should always make a …

Irb Guidance: The No Man's Land Of Tax Code Interpretation, Kristin Hickman

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This Symposium Essay compares current patterns and practices surrounding IRS utilization of IRB guidance (revenue rulings, revenue procedures, and notices) with administrative law doctrine concerning informal agency guidance documents. In administrative law jurisprudence, the distinction between legislative and interpretative rules (and thus whether the Administrative Procedure Act requires public notice and comment procedures) and the determination of whether Chevron or Skidmore provides the appropriate evaluative standard on judicial review both ultimately turn on whether the agency legal interpretation at issue carries the force and effect of law. The precise contours of the force of law concept are unclear, as is …

Ross And Olivecrona On Rights, Brian H. Bix

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Scandinavian legal realism was a movement of the early and middle decades of the 20th century, which paralleled the American legal realist movement, while presenting a more skeptical challenge to legal reasoning and discourse. The present paper was written for a forthcoming Oxford University Press collection on the Scandinavian realists. The approach to jurisprudence of Scandinavian realists Alf Ross and Karl Olivecrona was simultaneously simple and radical: they wanted to rid our thinking about law of all the mystifying references to abstract concepts and metaphysical entities. This paper offers a critical overview of Ross's and Olivecrona's views on legal rights, …

Staying Alive: Public Interest Law In Contemporary Latin America, Stephen Meili

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This paper explores the current state of public interest lawyering in three Latin American countries: Argentina, Brazil and Chile. Based on a series of open-ended interviews with lawyers, judges and social movement activists, it compares public interest lawyering in these countries now with how it was practiced when the author interviewed some of the same individuals in the early to mid 1990s. Its analysis is set within the context of important geopolitical and socio-legal phenomena: the current global economic crisis and the judicialization of politics and constitutionalization of rights that has swept across the region over the past two decades. …

Jim Crow Ethics And The Defense Of The Jena Six, Anthony V. Alfieri

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This Article is the second in a three-part series on the 2006 prosecution and defense of the Jena Six in LaSalle Parish, Louisiana. The series, in turn, is part of a larger, ongoing project investigating the role of race, lawyers, and ethics in the American criminal-justice system. The purpose of the project is to understand the race-based, identity-making norms and practices of prosecutors and defenders in order to craft alternative civil rights and criminal-justice strategies in cases of racially-motivated violence. To that end, this Article revisits the prosecution and defense of the Jena Six in the hope of uncovering the …

The First Amendment Right Against Compelled Listening, Caroline Mala Corbin

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This Article argues for a new First Amendment right: the right against compelled listening. Free speech jurisprudence - which already recognizes the right to speak, the right to listen, and the right against compelled speech - is incomplete without the right against compelled listening. The same values that underlie the other free speech rights also lead to this right. Furthermore, this claim holds true regardless of whether one conceives of the primary purpose of the Free Speech Clause as creating a marketplace of ideas, enhancing participatory democracy, or promoting individual autonomy. The Article starts by examining the protection afforded to …

Improving Efficiency In A Campus Chilled Water System Using Exergy Analysis, Justin M. Harrell, James A. Mathias

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This paper evaluates the central chilled water system of the Southern Illinois University Carbondale (SIUC) campus using exergy-based cost accounting to quantify the magnitudes and cost impacts of internal losses with the goals of maximizing chiller capacity utilization and minimizing the unit cost of delivered chilled water. Two independent systems, each comprised of a primary-secondary-tertiary distribution network and cooled by a 12,300 kW (3,500 RT) steam-turbine driven centrifugal chiller, were modeled as control volume networks using steady-state rate balances for energy, exergy, and cost. An extensive set of measurements, collected over the 2006 cooling season, was used as the input …

Music Score Approval Plans In Research Libraries: A Survey Of Librarian Satisfaction With And Without Approval Plans, Elizabeth J. Cox, Roger Cross, John Ballestro

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In this study, the researchers submitted a music score approval plan survey to all ARL libraries. Two surveys were created, one for libraries with music score approval plans, one for those without. Forty-four surveys were returned. The authors’ purpose was to analyze and discuss the survey results, incorporating elements of the scholarly work preceding this study. Discussions, roundtables, and listservs participated in by music librarians over the years formed the basis of the topic at hand. The goal was to ascertain whether these discussions and underlying assumptions of approval plans held true to the real world.

An Improvement To Mathon’S Cyclotomic Ramsey Colorings, Xiaodong Xu, Stanislaw Radziszowski

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In this note we show how to extend Mathon’s cyclotomic colorings of the edges of some complete graphs without increasing the maximum order of monochromatic complete subgraphs. This improves the well known lower bound construction for multicolor Ramsey numbers, in particular we obtain R3(7) ≥ 3214.

Teaching Multiple Skills In Drafting & Simulation Courses, Karen J. Sneddon

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Good morning. I am really excited to be at this conference as a transactional lawyer who never drafted anything before she went into practice and had very, very little experience with any of the other transactional skills that I would be using on a daily basis. I am really excited to hear about the number of courses and opportunities that students have now. Of course, I am thrilled to speak about the opportunities that I offer the students in my courses.

What I do is provide two opportunities to learn about counseling. Every student at Mercer University School of Law …

Reflection Contributions To The Dispersion Artefact In Ftir Spectra Of Single Biological Cells., Paul Bassan, Hugh Byrne, Joe Lee, Franck Bonnier, Colin Clarke, Paul Dumas, Ehsan Gazi, Michael Brown, Noel Clarke, Peter Gardner

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Fourier transform infrared spectra of a single cell in transflection geometry are seen to vary significantly with position on the cell, showing a distorted derivative-like lineshape in the region of the optically dense nucleus. A similar behaviour is observable in a model system of the protein albumin doped in a potassium bromide disk. It is demonstrated that the spectrum at any point is a weighted sum of the sample reflection and transmission and that the dominance of the reflection spectrum in optically dense regions can account for some of the spectral distortions previously attributed to dispersion artefacts. Rather than being …

Reinventar La Esclavitud, Garantizar La Libertad: De Saint-Domingue A Santiago A Nueva Orleáns, 1803-1809, Rebecca J. Scott

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From French and Creole to Spanish, the domain of the Napoleonic Empire to the king of Spain, crossing the strait separating the French colony of Saint-Domingue and the Spanish colony of Cuba entailed a change of language and government. Some 18,000 people made that transition between the spring and summer of 1803 during the Revolutionary War in Saint-Dominque. Six years later, many crossed the Gulf of Mexico from Cuba to New Orleans and the recently acquired Louisiana Territory under the authority of a territorial governor and the United States Congress. What would these crossings lead to for those who had …

She...Refuses To Deliver Up Herself As The Slave Of Your Petitioner': Émigrés, Enslavement, And The 1808 Louisiana Digest Of The Civil Laws (Symposium On The Bicentennial Of The Digest Of 1808--Collected Papers), Rebecca J. Scott

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Philosophically and juridically, the construct of a slave-a "person with a price"--contains multiple ambiguities. Placing the category of slave among the distinctions of persons "established by law," the 1808 Digest of the Civil Laws Now in Force in the Termtoiy of Orleans recognized that "slave" is not a natural category, inhering in human beings. It is an agreement among other human beings to treat one of their fellows as property. But the Digest did not specify how such a property right came into existence in a given instance. The definition of a slave was simply ostensive, pointing toward rather than …

The United Nations, The European Union, And The King Of Sweden: Economic Sanctions And Individual Rights In A Plural World Order, Daniel Halberstam, Eric Stein

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In the last decade, economic sanctions have become a major instrumentality of the UN Security Council in the struggle against terrorism and lawless violence endangering peace. It is not surprising that innocents would be ensnarled, along with culprits, in the nets of the so-called "smart" or "targeted" sanctions, which are directed against named individuals and groups (as opposed to delinquent States). In such rare cases, as the individual concerned searches for a legal remedy, significant issues of fundamental human rights may arise at the levels of the international, regional, and national legal orders. This essay explores these issues. After examining …

“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 …