Digital Commons Network^™

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.

Antitrust In Zero-Price Markets: Foundations, John M. Newman

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"Zero-price markets," wherein firms set the price of their goods or services at so, have exploded in quantity and variety. Creative content, software, search functions, social media platforms, mobile applications, travel booking, navigation and mapping systems, and myriad other goods and services are now widely distributed at zero prices. But despite the exponential increase in the volume of zero-price products being consumed, antitrust institutions and analysts have failed to provide an adequate response to markets without prices.

Modern antitrust law is firmly grounded in neoclassical economics, which is in turn centered on price theory. Steeped in price theory, preeminent antitrust …

Investment Arbitration In East Asia And The Pacific A Statistical Analysis Of Bilateral Investment Treaties, Other International Investment Agreements And Investment Arbitrations In The Region, Sandra Friedrich, Claudia T. Salomon

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Many countries in the East Asian and Pacific (EAP) region have strengthened their networks of bilateral investment treaties (BITs) and other international investment agreements (IIAs). This growth in investment protection instruments not only illustrates the region's continued attractiveness to foreign investors, but also reflects a shift of several developing EAP countries from having been predominantly recipients of foreign investment in the past, toward becoming important sources of foreign investment abroad. Reflecting trade and investment patterns, as of December 2014, EAP countries concluded a total of at least 712 BITs and 69 other IlAs. On the heels of this development, the …

Agricultural Biotechnology: Drawing On International Law To Promote Progress, J. Janewa Osei-Tutu

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In Bowman v. Monsanto, the Supreme Court declined to apply the principle of exhaustion to limit the patentee's ability to control the reproduction of self-replicating inventions. This decision was justified from a patent law perspective on the basis that a patent holder has a right to prevent others from making the invention. But what happens when we take other perspectives into account? For instance, a farmer might have human rights or other rights that may need to be balanced against the patentee's right. Since globalized intellectual property standards were established through international agreements and much of the resistance to …

The Right To Be Forgotten: Who Decides What The World Forgets, Patricia S. Abril, Jacqueline D. Lipton

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In May 2014, the Court of Justice for the European Union ("CJEU") surprised the global cyberlaw community by holding that search engines like Google are "controllers" of the processing of personal data under the European Union Data Protection Directive. This means that they are obliged in some circumstances to remove links from search results that pertain to information that infringes on an individual's rights under the Directive. This obligation has come to be referred to as an aspect of a digital right to be forgotten." The search results in question related to a mortgage sale of property in a bankruptcy …

Mindful Ethics And The Cultivation Of Concentration, Scott L. Rogers, Jan L. Jacobowitz

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Resistance Songs: Mobilizing The Law And Politics Of Community, Anthony V. Alfieri

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Standing (In) For The Government, Sergio J. Campos

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Redressing Hiv/Aids Discrimination In Nigeria: The Implications Of The Anti-Discrimination Act Of 2015, Ngozi Okidegbe

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

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Why Instrumentalism Matters, Kyron Huigens

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Mos Americanus Or Common Law In Partibus Infidelium, Peter Goodrich

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What Happens If We Call Discrimination A Tort?, Anthony J. Sebok

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Postdefault Interest Rates In Bankruptcy, David G. Carlson

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This Article shows that as Bankruptcy Code section 506(b) is currently written, postdefault interest rates are prohibited when the default is an “ipso facto event” — a filing for bankruptcy or insolvency as the event of a default. Yet some courts have insisted on postdefault interest in situations reinstating a loan agreement and have been ignoring restrictions on pendency interest to permit oversecured creditors from obtaining penalty rates of interest. This Article argues that those holdings violate section 506(b) and Supreme Court precedent. It begins with an analysis of ipso facto defaults, showing that the Bankruptcy Code prohibits ipso facto …

The Case For Evidence-Based Free Exercise Accommodation: Why The Religious Freedom Restoration Act Is Bad Public Policy, Marci A. Hamilton

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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.

Revisiting The Revolution: Reintegrating The Wealth Transmission System, Melanie B. Leslie, Stewart E. Sterk

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Thirty years ago, John Langbein published "The Nonprobate Revolution and the Future of Succession." The article celebrated testators' newfound ability to avoid the expense and delay of the probate court system by holding assets in a variety of non-probate devices, such as retirement and bank accounts with beneficiary designations and revocable trusts. Langbein high-lighted problems the revolution might generate and predicted how they might be resolved. Since then, significant problems have indeed developed. First, wills law doctrines designed to effectuate intent of testators have not been universally extended to non-probate transfers. Second, the fragmentation of the wealth transmission process has …

Brain Science And The Theory Of Juvenile Mens Rea, Jenny E. Carroll

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The law has long recognized the distinction between adults and children A legally designated age determines who can vote exercise reproductive rights voluntarily discontinue their education buy alcohol or tobacco marry drive a car or obtain a tattoo The Supreme Court has repeatedly upheld such agebased restrictions most recently constructing an Eighth Amendment jurisprudence that bars the application of certain penalties to juvenile offenders and a Fourth Amendment jurisprudence that contemplates an adolescentbased standard of reasonableness for the Miranda v Arizona custody analysis In the cases of Roper v Simmons Graham v Florida Miller v Alabama and JDB v North …

The Road To, And Through, Heart Of Atlanta Motel, Alberto B. Lopez

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Against Martdom: A Liberal Argument For Accomodation Of Religion Symposium: Religious Liberty And The Free Society: Celebrating The 50th Anniversary Of Dignitatis Humanae, Paul Horwitz

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

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Civil Protection Orders: Increased Access And Narrowed Enforcement, Courtney K. Cross

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Patent Scope And Enablement In Rapidly Developing Arts, Alan L. Durham

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The claims of a patent and its enabling disclosure must be commensurate in scope However because of the openended nature of most patent claims in fields of rapidlydeveloping technology it is almost inevitable that before the patent has expired the claims will read on embodiments that the specification does not teach The current law on scope enablement is the source of much confusion Because enablement must be judged from a filingdate perspective some cases dismiss later advancements eg a newlydiscovered species within a claimed genus as irrelevant Other cases in contrast hold patent claims invalid because they exceed the scope …

Lessons In Cyclical Fiscal Activism, Mirit Eyal-Cohen

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This Article highlights an anomaly It tells a story of two tax rules that were introduced at the same time to achieve a similar goal Both were meant to be temporary and stimulate economic growth but received dramatically different outcomes The Article reviews the reasons for this paradox It demonstrates that the causes are structural ideological and political It argues that the historical support the two mechanisms received diverged in accordance with their complexity the perceptions they epitomized and their instrumental role in society The Article not only enriches an important and ongoing debate on the role of the tax …

Critical Perspectives On Police, Policing, And Mass Incarceration, Richard Delgado, Jean Stefancic

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Shows that aggressive policing is only one of a number of measures that society uses to control minority groups with whom it is displeased for some reason and that failing to see how the authorities deploy the different measures separately serially or in coordinated fashion is a serious mistake Sketches a new form of policing that is respectful of minority residents and values and provides a framework for reducing excessive incarceration and mitigating some of the cruelties associated with it

When Can A State Sue The United States?, Tara Leigh Grove

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State suits against the federal government are on the rise From Massachusetts' challenge to federal environmental policy to Oregon's confrontation over physicianassisted suicide to Texas's suit over the Obama administration's immigration program States increasingly go to court to express their disagreement with federal policy This Article offers a new theory of state standing that seeks to explain when a State may sue the United States I argue that States have broad standing to sue the federal government to protect state law Accordingly a State may challenge federal statutes or regulations that preempt or otherwise undermine the continued enforceability of state …

King John, Magna Carta And The Origins Of English Legal Rights, Paul M. Pruitt Jr.

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Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski Jr., Johnjerica Hodge, Wesley W. Wintermyer

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This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and "good cause" limitations on the President's removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President's appointment power-and with good reason, given the ubiquity of partisan balance requirements and the executive branch's historical acquiescence to them. However, the Supreme Court's decision in Free …

Fundamental Rights Of States In International Law And The Right To Peaceful Nuclear Energy Ii. Case Studies, Daniel H. Joyner

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This article first discusses the overall theme of this special issue of the Cambridge Journal of International and Comparative Law from a legal theoretical perspective, namely, the concept of the fundamental rights of states in international law. It concludes that fundamental rights of states exist in international law as autonomous juridical principles. The article then proceeds to discuss one such asserted fundamental right of states: the right to peaceful nuclear energy, as codified in the 1968 Nuclear Non-proliferation Treaty. It argues that the right to peaceful nuclear energy is indeed a fundamental right of states, and that it has juridical …

Reconciling Privacy And Speech In The Era Of Big Data: A Comparative Legal Analysis, Ronald J. Krotoszynski Jr.

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In both the United States and the nations of Western Europe, significant constitutional commitments safeguard both expressive freedom (including freedom of speech and of the press) and also a generalized constitutional right of privacy. With some regularity, however, these rights will come into conflict, as the protection of one right can be achieved only at the cost of abridging or denying the other. When a government official or public figure objects to the publication of an embarrassing photograph, perhaps taken by an invasive paparazzo, it is simply not possible to fully vindicate both a newspaper's interest in publishing the photograph …