Digital Commons Network^™

The Lost History Of The Political Question Doctrine, Tara Leigh Grove

Articles

This Article challenges the conventional narrative about the political question doctrine Scholars commonly assert that the doctrine which instructs that certain constitutional questions are "committed" to Congress or to the executive branch has been part of our constitutional system since the early nineteenth century Furthermore scholars argue that the doctrine is at odds with the current Supreme Court's view of itself as the "supreme expositor" of all constitutional questions This Article calls into question both claims The Article demonstrates first that the current political question doctrine does not have the historical pedigree that scholars attribute to it In the nineteenth …

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 …

What Patients With Disability Teach Us About The Everyday Ethics Of Healthcare, Elizabeth Pendo

Articles

In Healers: Extraordinary Clinicians at Work, by David Schenck and Dr. Larry Churchill, and in What Patients Teach: The Everyday Ethics of Health Care, their follow-up with Joseph Fanning, the authors look at the everyday experience of health care and the relationships that shape it. They call attention to the ethical dimensions of the clinical encounter and the hope for, and desirability of, a genuine human engagement between the clinician and the patient. In their view, healers are clinicians who cultivate a therapeutic relationship with their patients. They identify a set of skills that accomplish this, including welcoming …

Labor Activism In Bankruptcy, Andrew B. Dawson

Articles

This article analyzes the role of labor unions in corporate reorganizations and argues that labor union participation can improve corporate governance in the bankruptcy context. Generally, when a unionized corporation seeks to reorganize in bankruptcy, it does so with an eye towards obtaining concessions from its labor unions. The Bankruptcy Code permits corporate debtors to reject their collective bargaining agreements and to impose reduced wages and benefits, thus placing labor unions in a position of bargaining over concessions in bankruptcy. Such concession bargaining is vitally important to the labor union and to the debtor's reorganization efforts; however, the focus on …

College Sports And The Antitrust Analysis Of Mystique, Sherman J. Clark

Articles

In this response to Marc Edelman’s Article, The District Court Decision in O’Bannon v. National Collegiate Athletic Association: A Small Step Forward for College-Athlete Rights, and a Gateway for Far Grander Change, 71 WASH. & LEE L. REV. 2319 (2014), I highlight a set of conceptual issues that must be confronted if courts are to craft a coherent and stable body of law governing the NCAA’s treatment of student-athletes. First, the value of the product at issue here—college sports—is intimately connected with the nature of the labor used to create it. Second, the nature of that value is amorphous, contingent, …

Beyond Max Weber: The Need For A Democratic (Not Aristocratic) Theory Of The Modern State, William J. Novak

Articles

We cannot wish (or think) away the modern state any more than the postwar generation could wish away atomic power. And we cannot ignore the state in our efforts to come to terms with modern economy and society any more than we can ignore equally difficult concepts like modern capitalism or modern law. Attempts to try to reckon with modernity in lieu of hard thinking about such abstract concepts will probably end up deploying some overdetermined and cartoonish causation of a mainly biographical or interest-group sort. Or, like libertarianism, neoliberalism, or other popular anti-statist credos, they will leave us with …

Beyond Stateless Democracy, Stephen W. Sawyer, William J. Novak, James T. Sparrow

Articles

Pierre Bourdieu began his posthumously published lectures “On the State” by highlighting the three dominant traditions that have framed most thinking about the state in Western social science and modern social theory. On the one hand, he highlighted what he termed the “initial definition” of the state as a “neutral site” designed to regulate conflict and “serve the common good.” Bourdieu traced this essentially classical liberal conception of the state back to the pioneering political treatises of Thomas Hobbes and John Locke.1 In direct response to this “optimistic functionalism,” Bourdieu noted the rise of a critical and more “pessimistic” alternative—something …

It's The Autonomy, Stupid!' A Modest Defense Of Opinion 2/13 On Eu Accession To The Echr, And The Way Forward, Daniel Halberstam

Articles

The Court of Justice of the European Union has arrived! Gone are the days of hagiography, when in the eyes of the academy and informed observers the Court could do no wrong. The pendulum has finally swung the other way. The judicial darling, if there is one today, is Strasbourg, not Luxembourg. Not hours had passed before the Court's 258-paragraph long Opinion 2/13 on the Draft Agreement on EU Accession to the European Convention on Human Rights was condemned as “exceptionally poor.” Critical voices have mounted steadily ever since, leading to nothing short of widespread “outrage.”

Campbell At 21/Sony At 31, Jessica D. Litman

Articles

When copyright lawyers gather to discuss fair use, the most common refrain is its alarming expansion. Their distress about fair use’s enlarged footprint seems completely untethered from any appreciation of the remarkable increase in exclusive copyright rights. In the nearly forty years since Congress enacted the 1976 copyright act, the rights of copyright owners have expanded markedly. Copyright owners’ demands for further expansion continue unabated. Meanwhile, they raise strident objections to proposals to add new privileges and exceptions to the statute to shelter non-infringing uses that might be implicated by their expanded rights. Copyright owners have used the resulting uncertainty …

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

Articles

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 Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

Articles

According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …

Who Invented The Single Tax Principle?: An Essay On The History Of Us Treaty Policy, Reuven S. Avi-Yonah

Articles

In 1997, I wrote an article on the international tax challenges posed by the then-nascent electronic commerce, in which I suggested that the international tax regime is based on two principles: the benefits principle and the single tax principle. The benefits principle states that active (business) income should be taxed primarily by the country of source, and passive (investment) income should be taxed primarily by the country of residence. This is the famous compromise reached by the four economists at the foundation of the regime in 1923 and is not particularly controversial. It is embodied in every one of the …

The Disability Cliff, Samuel R. Bagenstos

Articles

We’re pretty good about caring for our disabled citizens—as long as they’re children. It’s time to put equal thought into their adulthoods.

Implementing Symmetric Treatment Of Financial Contracts In Bankruptcy And Bank Resolution, E. J. Janger, John A.E. Pottow

Articles

Financial contracts come in many forms and serve many functions in both the financial system and the broader economy. Repos secured by U.S. Treasury securities act as money substitutes and can play an important role as part of the money supply, while similarly structured repos, secured by more volatile collateral, may be used as speculative devices or hedges. Swaps can be used to insure against various types of market risk, from interest rates to oil prices, or they can operate as vehicles for highly leveraged investments. The parties to these instruments are sometimes major financial institutions and, other times, ordinary …

Cancellation Of Debt And Related Transactions, Douglas A. Kahn, Jeffrey H. Kahn

Articles

If a taxpayer borrows money, the borrowed funds are not included in the taxpayer's gross income. That treatment is proper even though the taxpayer has increased his assets by the amount he borrowed because he also has created a corresponding liability to pay back the loan. The taxpayer's net: wealth has not increased. 'The more difficult and interesting questions arise when the taxpayer fails to repay the loan. At first blush, it would appear that upon cancellation of a loan, the taxpayer should have income for the amount that was cancelled. However, the current tax treatment is not that simple. …

Conditional Pricing And Monopolization: A Reflection On The State Of Play, Daniel A. Crane

Articles

Conditional pricing practices--including bundled discounting, loyalty rebating, and market share discounts--are not new phenomena in the U.S. market. Their potentially exclusionary consequences were raised in antitrust cases decades ago. But unlike trying or exlcusive dealing--which have a rich hsitory of case law and scholarly converage--conditioanl pricing practices did not emerge as salient to the antitrust community until a little over a decade ago. Two federal appellate decisions in the early 2000s--Concord Boar on market share rebates adn LePage's on bundled discounting--sparked a period of intensive interest and activity on these topics in teh antitrust agencies, courts, bench, and legal …

Non-Refoulement In A World Of Cooperative Deterrence, Thomas Gammeltoft-Hansen, James C. Hathaway

Articles

Developed states have what might charitably be called a schizophrenic attitude towards international refugee law. Determined to remain formally engaged with refugee law and yet unwavering in their commitment to avoid assuming their fair share of practical responsibilities under that regime, wealthier countries have embraced the politics of non-entrée, comprising efforts to keep refugees away from their territories but without formally resiling from treaty obligations. As the early generation of non-entrée practices — visa controls and carrier sanctions, the establishment of “international zones,” and high seas deterrence — have proved increasingly vulnerable to practical and legal challenges, new forms of …

The Uncertain Effects Of Senate Confirmation Delays In The Agencies, Nina A. Mendelson

Articles

As Professor Anne O’Connell has effectively documented, the delay in Senate confirmations has resulted in many vacant offices in the most senior levels of agencies, with potentially harmful consequences to agency implementation of statutory programs. This symposium contribution considers some of those consequences, as well as whether confirmation delays could conceivably have benefits for agencies. I note that confirmation delays are focused in the middle layer of political appointments—at the assistant secretary level, rather than at the cabinet head—so that formal functions and political oversight are unlikely to be halted altogether. Further, regulatory policy making and even agenda setting can …

Reconciling Intellectual And Personal Property, Aaron Perzanowski, Jason Schultz

Articles

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 …

The Rise And Fall Of The Consumption Tax, Reuven S. Avi-Yonah

Articles

The year 1974 was an eventful one in U.S. history. For the first time, a president resigned under threat of impeachment. Watergate and the Vietnam War shook Americans’ faith in their government. The economy was reeling from the first oil embargo, and the United States’ prospects seemed bleak. In that context, Professor William Andrews of Harvard Law School published an article that would revolutionize tax scholarship. Against the backdrop of widespread dissatisfaction with the government in general and the income tax in particular, Andrews suggested replacing the income tax with a consumption tax. That suggestion was ironic for anyone familiar …

Defensive Force Against Non-State Actors: The State Of Play, Monica Hakimi

Articles

This article assesses the implications of the current Syria situation for the international law on the use of defensive force against non-State actors. The law in this area is highly unsettled, with multiple legal positions in play. After mapping the legal terrain, the article shows that the Syria situation accentuates three preexisting trends. First, the claim that international law absolutely prohibits the use of defensive force against non-State actors is increasingly difficult to sustain. States, on the whole, have supported the operation against the so-called Islamic State in Syria. Second, States still have not coalesced around a legal standard on …

Regional-Scale Simulations Of Fungal Spore Aerosols Using An Emission Parameterization Adapted To Local Measurements Of Fluorescent Biological Aerosol Particles, M. Hummell, C. Hoose, M. Gallagher, D. A. Healy, J. A. Huffmann, David O'Connor, U. Poschl, C. Pohlker, N. H. Robinson, M. Schnaiter, J. R. Sodeau, M. Stengel, E. Toprak, H. Vogel

Articles

Fungal spores as a prominent type of primary biological aerosol particles (PBAP) have been incorporated into the COSMO-ART (Consortium for Small-scale Modelling- Aerosols and Reactive Trace gases) regional atmospheric model. Two literature-based emission rates for fungal spores derived from fungal spore colony counts and chemical tracer measurements were used as a parameterization baseline for this study. A third, new emission parameterization for fluorescent biological aerosol particles (FBAP) was adapted to field measurements from four locations across Europe. FBAP concentrations can be regarded as a lower estimate of total PBAP concentrations. Size distributions of FBAP often show a distinct mode at …

Teaching The Skilled International Lawyer, Kenneth M. Rosen

Articles

No abstract provided.

O'Connor's Canons: The Professional Responsibility Jurisprudence Of Justice Sandra Day O'Connor, Steven H. Hobbs

Articles

No abstract provided.

Self-Defense Against Gun Suicide, Fredrick E. Vars

Articles

Around twenty-thousand Americans each year commit suicide using a gun. Many would survive if it were more difficult to obtain the gun. The proposal here is not for gun control, but self control. Specifically, this article proposes allowing individuals to confidentially put their names into the existing federal background check system to prevent or delay their own future firearm purchases. Empowering people to restrict their own access to guns has the potential to save many lives, is supported by other self-binding regimes, and poses no serious constitutional concerns.

Cooperation Before Consolidation In Investor Protection Symposium: The Promise And Perils Of Convergence In Financial Regulation And Consumer Protection, Kenneth M. Rosen

Articles

No abstract provided.

Balancing As Well As Separating Power: Congress's Authority To Recognize New Legal Rights, Heather Elliott

Articles

In Spokeo Inc v Robins the Supreme Court faced the question "whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm and who therefore could not otherwise invoke the jurisdiction of a federal court by authorizing a private right of action based on a bare violation of a federal statute" Put more simply can Congress recognize legal injuries that are not predicated on injuries in fact As this Essay demonstrates the Court would abuse the language of Article III would transgress on congressional authority and would exceed its own role in the constitutional structure by …

Integrating Emerging Cryptographic Engineering Research And Security Education, Mehran Mozaffari Kermani, Reza Azarderakhsh

Articles

Unlike traditional embedded systems such as secure smart cards, emerging secure deeply embedded systems, e.g., implantable and wearable medical devices, have larger “attack surface”. A security breach in such systems which are embedded deeply in human bodies or objects would be life-threatening, for which adopting traditional solutions might not be practical due to tight constraints of these often-battery-powered systems. Unfortunately, although emerging cryptographic engineering research mechanisms have started solving this critical problem, university education (at both graduate and undergraduate level) lags comparably. One of the pivotal reasons for such a lag is the multi-disciplinary nature of the emerging security bottlenecks …

Communication: Analytic Continuation Of The Virial Series Through The Critical Point Using Parametric Approximants, Nathaniel S. Barlow, Andrew J. Schultz, Steven J. Weinstein, David A. Kofke

Articles

The mathematical structure imposed by the thermodynamic critical point motivates an approximant that synthesizes two theoretically sound equations of state: the parametric and the virial. The former is constructed to describe the critical region, incorporating all scaling laws; the latter is an expansion about zero density, developed from molecular considerations. The approximant is shown to yield an equation of state capable of accurately describing properties over a large portion of the thermodynamic parameter space, far greater than that covered by each treatment alone.

Jack Sammons As Therapist, Jospeh Vining

Articles

Jack Sammons is well known as a pioneer in making the practice of law a field of academic study and teaching. He is also an original and penetrating analyst of law as such. This essay comments on his recent work, especially his putting the way we understand law and the way we understand music side by side and drawing out the parallels between them. Many will find his work a revelation.