Digital Commons Network^™

The Margin Of Appreciation In International Investment Law, Julian Arato

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Investment treaties tend to say nothing, or only very little, about the appropriate standard of review for arbitrating disputes between sovereign states and foreign investors. Most treaties do not address whether states should be afforded any deference in their own assessment of their treaty obligations. Neither do they specify the converse, that state action must be strictly reviewed. They are simply silent – and their silence has been interpreted in innumerable ways by different tribunals. This interpretive chaos has generated calls for a unified approach – one that would resolve the uncertain and fragmented status quo, while being sufficiently flexible …

The Mold That Shapes Hearsay Law, Richard D. Friedman

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In response to an article previously published in the Florida Law Review by Professor Ben Trachtenberg, I argue that the historical thesis of Crawford v. Washington is basically correct: The Confrontation Clause of the Sixth Amendment reflects a principle about how witnesses should give testimony, and it does not create any broader constraint on the use of hearsay. I argue that this is an appropriate limit on the Clause, and that in fact for the most part there is no good reason to exclude nontestimonial hearsay if live testimony by the declarant to the same proposition would be admissible. I …

Election Law's Lochnerian Turn, Ellen D. Katz

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This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

Who's In Charge Of Global Finance?, Michael S. Barr

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The global financial crisis caused widespread harm not just to the financial system, but also to millions of households and businesses and to the global economy. The crisis revealed substantive, fundamental weaknesses in global financial regulation and raised serious questions about whether national regulators and the international financial regulatory system could ever be up to the task of overseeing global finance. This Article analyzes post-crisis reforms with two questions in mind: First, how can we build an effective international financial architecture with more than one architect? Second, can we build a system that is legitimate and accountable? The Article suggests …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

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This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

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This Article proceeds as follows: Part I provides a background of the system of presidential oversight of regulation through OIRA review. Part II analyzes: (1) the incentives for agencies to cooperate with or avoid OIRA, (2) a broad array of agency avoidance tactics, and (3) corresponding response options (especially in a repeat-player relationship). Part III argues that response options to agency avoidance should not be unquestioningly pursued or rejected. Instead, they should be evaluated using many of the same principles OIRA employs in reviewing agency regulation, including a systematic consideration of the benefits and costs of particular response actions and …

Contemporary Practice Of The United States Relating To International Law, July 2014, Kristina Daugirdas, Julian Davis Mortenson

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United States Negotiates Prisoner Exchange to Secure Release of U.S. Soldier Held in Afghanistan • United States Refuses to Grant Visa to Iranian UN Envoy • Multilateral Naval Code of Conduct Aims to Prevent Unintended Conflict in Contested Areas of East and South China Seas • Senate Approves Treaties to Regulate Fishing • United States Indicts Chinese Military Officials for Economic Espionage • U.S. Supreme Court Declines to Terminate Long-Running Efforts to Force Argentina to Pay Defaulted Sovereign Debt • United States Condemns Uganda’s Antigay Law as Violating Human Rights • President Barack Obama Certifies That U.S. Peacekeepers in Mali …

Toward A Legal Theory On The Responsibility To Protect, Monica Hakimi

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Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights violations—genocides, ethnic cleansings, crimes against humanity, and systemic war crimes—occur with alarming frequency. And the international response is often slow or ineffectual. The most recent development for addressing this problem is the “responsibility to protect,” an idea that has received so much attention that it now goes simply by R2P. Almost all heads of state have endorsed R2P. The U.N. Secretary General has made R2P a top priority and issued multiple reports on …

The Equal Employment Opportunity Commission And Structural Reform Of The American Workplace, Margo Schlanger, Pauline T. Kim

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In one of its most-watched recent cases, the United States Supreme Court struck down a class action alleging that Wal-Mart stores discriminated against female employees in pay and promotion decisions. The plaintiffs alleged that Wal-Mart’s corporate culture and highly discretionary decision-making practices led to sex discrimination on a company-wide basis, and they sought injunctive relief as well as backpay for individual employees. Reversing the Court of Appeals for the Ninth Circuit, the Supreme Court held in Wal-Mart v. Dukes that the proposed class failed to meet the requirements for class action certification under Rule 23 of the Federal Rules of …

How Serious Is The Problem Of Base Erosion And Profit Shifting?, James R. Hines Jr.

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In recent years, the problem of base erosion and profit shifting (BEPS) by multinational corporations has entered the public consciousness as a potentially important impediment to tax collections. The purpose of this article is to identify the nature of BEPS, consider empirical evidence of its magnitude, and evaluate proposed policy responses. There is considerable evidence that multinational firms arrange their affairs in a tax-sensitive manner, from which it is easy—indeed, perhaps a little too easy—to infer that beps is a serious problem. There are journalistic accounts of apparently spectacular international tax-avoidance schemes used by multinational corporations, though these stories commonly …

Corporate Taxation And Corporate Social Responsibility, Reuven S. Avi-Yonah

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This Article will address the question of whether publicly traded U.S. corporations owe a duty to their shareholders to minimize their corporate tax burden through any legal means, or if instead, strategic behaviors like aggressive tax-motivated transactions are inconsistent with corporate social responsibility (“CSR”). I believe the latter holds true, regardless of one’s view of the corporation. Under the “artificial entity” view, such behavior undermines the constitutive relationship between the corporation and the state. Under the “real view,” such behavior runs contrary to the normal obligation of citizens to comply with the law (even absent effective enforcement). And under the …

Hobby Lobby And The Pathology Of Citizens United, Ellen D. Katz

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Four years ago, Citizens United v. Federal Election Commission held that for-profit corporations possess a First Amendment right to make independent campaign expenditures. In so doing, the United States Supreme Court invited speculation that such corporations might possess other First Amendment rights as well. The petitioners in Conestoga Wood Specialties Corp. v. Sebelius are now arguing that for-profit corporations are among the intended beneficiaries of the Free Exercise Clause and, along with the respondents in Sebelius v. Hobby Lobby Stores, that they also qualify as “persons” under the Religious Freedom Restoration Act (RFRA). Neither suggestion follows inexorably from Citizens United, …

Photocatalytic Activity Indicator Inks For Probing Awide Range Of Surfaces, Andrew Mills, James Hepburn, David Hazafy, Christopher O'Rourke, Nathan Wells, Josef Krysa, Michal Baudys, Martin Zlamal, Hana Bartkova, Claire Hill, Kim Winn, Morten Simonsen, Erik Sogaard, Swagata Banerjee, Rachel Fagan, Suresh Pillai

Articles

tThree photocatalyst inks based on the redox dyes, Resazurin (Rz), Basic Blue 66 (BB66) and Acid Violet 7(AV7), are used to assess the photocatalytic activities of a variety of different materials, such as commercial paint, tiles and glass and laboratory made samples of sol–gel coated glass and paint, which collectively exhibit a wide range of activities that cannot currently be probed by any one of the existing ISO tests.Unlike the ISO tests, the ink tests are fast (typicallymin), simple to employ and inexpensive. Previous work indicates that the Rz ink test at least correlates linearly with other photocatalytic tests such …

Roll Back "Prison Nation", Donna Coker

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No abstract provided.

Compliance And Claim Funding: Testing The Borders Of Lawyers' Monopoly And The Unauthorized Practice Of Law, Michele M. Destefano

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No abstract provided.

Epoxy Resin Monomers With Reduced Skin Sensitizing Potency, Niamh F. O'Boyle, Ida B. Niklasson, Ali R. Tehrani-Bagda, Tamara Delaine, Krister Holmberg, Kristina Luthman, Ann-Therese Karlberg

Articles

Epoxy resin monomers, including diglycidyl ethers of bisphenol A and F (DGEBA and DGEBF), are extensively used as building blocks for thermosetting polymers. However, they are known to cause widespread contact allergy. This research describes a number of alternative epoxy resin monomers, designed with the aim of reducing the skin sensitizing potency whilst maintaining the ability to form thermosetting polymers. The compounds were designed, synthesized, assessed for skin sensitizing potency using the in vivo murine local lymph node assay, and tested for technical applicability using thermogravimetric analysis and differential scanning calorimetry. All the novel epoxy resin monomers had decreased skin …

Post-Polymerization Modifications Of Polymeric Monolithic Columns: A Review, Sinead Currivan, Pavel Jandera

Articles

The vast cache of methods used in polymeric monolithic column modification is presented herein, with specific attention to post-polymerization modification reactions. The modification of polymeric monolithic columns is defined and can include the modification of pre-existing surface groups, the addition of polymeric chains or indeed the addition of structures such as nano-particles and nano-structures. The use of these modifications can result in the specific patterning of monoliths, useful in microfluidic device design or in the investigation of modification optimization.

Universalism And Civil Rights (With Notes On Voting Rights After Shelby), Samuel R. Bagenstos

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After the Supreme Court’s decision in Shelby County v. Holder, voting rights activists proposed a variety of legislative responses. Some proposals sought to move beyond measures that targeted voting discrimination based on race or ethnicity. They instead sought to eliminate certain problematic practices that place too great a burden on voting generally. Responses like these are universalist, because rather than seeking to protect any particular group against discrimination, they formally provide uniform protections to everyone. As Bruce Ackerman shows, voting rights activists confronted a similar set of questions—and at least some of them opted for a universalist approach—during the campaign …

The Unrelenting Libertarian Challenge To Public Accommodations Law, Samuel R. Bagenstos

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There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in “place[s] of public accommodation,” was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Article begins by discussing the controversy in the Reconstruction and Civil Rights Eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the …

Shifting The Fat-Tailed Distribution Of Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael

Articles

The distribution of blockbuster punitive damages awards has fat tails similar to the distributions of losses from natural disasters Extremely large awards occur more often and are more difficult to predict than if blockbuster awards were distributed normally The size and predictability of awards are important factors in the US Supreme Court's decisions on punitive damages This article examines the effect of the Court's decision in iState Farm v Campbelli on blockbuster punitive damages awards iState Farmi shifts the fat tail of the distribution of blockbuster awards down or "thins" the tail which is consistent with a restraining effect on …

Finding Hidden Treasures: Research Help In The Library And Archives, Joan M. Naturale, Diana Moore

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At the 2009 Deaf History International Conference, Ulf Hedberg spoke on the preservation of Deaf materials. The objective was to promote the preservation of Deaf materials by individuals, institutions, and organizations and to encourage the donation of Deaf materials to libraries, archives, museums, or organizations. In this chapter our objective is to identify the numerous resources at the Gallaudet University Library Deaf Collections and Archives and the Rochester Institute of Technolo-gy’s (RIT) Wallace Library, which are now on the Internet. The resources discussed here contain biographical materials that relate to this book’s theme of telling Deaf lives. Since the year …

Graduate Teaching Assistants; Critical Colleagues Or Casual Components In The Undergraduate Learning Laboratory? An Exploration Of The Role Of The Postgraduate Teacher In The Sciences., Barry Ryan

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Laboratory training is key to many science subjects and those that teach the practical laboratory skills maintain a pivotal role in undergraduate science training. Graduate Teaching Assistants (GTAs) are regularly used in higher education institutes to teach these practical lab skills. The GTA can be involved in both laboratory teaching and assessing all levels of undergraduates. This varied and challenging role requires support from the institute and if appropriately provided the learning experience can be rewarding not only for the undergraduate, but also for the GTA. In this review, the critical role of the laboratory GTA will be examined, their …

Actavis, The Reverse Payment Fallacy, And The Continuing Need For Regulatory Solutions, Daniel A. Crane

Articles

The Actavis decision punted more than it decided. Although narrowing the range of possible outcomes by rejecting the legal rules at the extremes and opting for a rule of reason middle ground, the opinion failed to grapple with the most challenging issues of regulatory policy raised by pharmaceutical patent settlements. In particular, it failed to clearly delineate the social costs of permitting and disallowing patent settlements, avoided grappling with the crucial issues of patent validity and infringement, and erroneously focused on “reverse payments” as a distinctive antitrust problem when equally or more anticompetitive settlements can be crafted without reverse payments. …

Contemporary Practice Of The United States Relating To International Law, April 2014, Kristina Daugirdas, Julian Davis Mortenson

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• Another Mexican National Executed in Texas in Defiance of Avena Decision • Manhattan Arrest of Indian Consular Official Sparks Public Dispute Between the United States and India • United States Questions Claims Based on China’s “Nine-Dash Line” in the South China Sea • United States Takes Steps to Combat Illegal Trade in Wildlife • U.S. Compromises Facilitate Agreement on World Trade Organization’s Bali Package; Question Remains Whether Bali Package Requires Congressional Approval • Destruction of Syrian Chemical Arms Delayed • Iran Nuclear Agreement Is Implemented Notwithstanding Expressions of Distrust by Iran and the U.S. Congress

Rate Of False Conviction Of Criminal Defendants Who Are Sentenced To Death, Samuel R. Gross, Barbara O'Brien, Chen Hu, Edward H. Kennedy

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The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. There is no systematic method to determine the accuracy of a criminal conviction; if there were, these errors would not occur in the first place. As a result, very few false convictions are ever discovered, and those that are discovered are not representative of the group as a whole. In the United States, however, a high proportion of false convictions that do come to light and produce exonerations are concentrated among the tiny minority of cases in which defendants are sentenced to …

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by a …

'Quack Corporate Governance' As Traditional Chinese Medicine – The Securities Regulation Cannibalization Of China's Corporate Law And A State Regulator's Battle Against Party State Political Economic Power, Nicholas C. Howson

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From the start of the People’s Republic of China’s (PRC) “corporatization ” project in the late 1980s, a Chinese corporate governance regime subject to increasingly enabling legal norms has been determined by mandatory regulations imposed by the PRC securities regulator, the China Securities Regulatory Commission (CSRC). Indeed, the Chinese corporate law system has been cannibalized by all - encompassing securities regulation directed at corporate governance, at least for companies with listed stock. This Article traces the path of that sustained intervention and makes a case — wholly contrary to the “quack corporate governance” critique much aired in the United States …

After Search Neutrality: Drawing A Line Between Promotion And Demotion, Daniel A. Crane

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The Federal Trade Commission's (“FTC” or “the commission”) January 3, 2013 decision to close its longstanding investigation of Google1 brings to a close a flurry of discussion over the possibility that Google could become subject to a “search neutrality” principle in the United States. Although the Commission found against Google on several grounds, it rejected petitions from Google's critics to create a search neutrality principle as a matter of antitrust law. This essay briefly analyzes what remains of U.S. antitrust scrutiny of Internet search bias after the Google settlement. In particular, it suggests that a sensible line can be drawn …

Material Falsity In Defamation Cases: The Supreme Court's Call For Contextual Analysis, Charles D. Tobin, Leonard M. Niehoff

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In the book The Phantom Tollbooth, one of the characters, Milo, declares that he comes from a faraway land called Context. After a circuitous journey through many strange cities, bearing names that have meanings Milo struggles to understand, he finds himself back at home in his bedroom.

Context, by and large, is the home base for courts in defining the boundaries between actionable and nonactionable speech. Often, after circuitous travels through precedent and logic, courts meander back to the simple notion that the meaning and legal significance of words are determined by their context.

Clinical Collaborations: Going Global To Advance Social Entrepreneurship, Deborah Burand, Susan R. Jones, Jonathan Ng, Alicia E. Plerhoples

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In the summer of 2012, transactional law clinics from three U.S. law schools: George Washington University; Georgetown University; and the University of Michigan launched a collaboration to serve a common client — Ashoka, a global nonprofit organization that supports close to 3,000 social entrepreneurs across 76 countries. While clinic collaborations within universities happen occasionally, clinic collaborations across universities are unusual. This essay focuses on the motivations, operations, lessons, and next steps of this cross-university, clinical collaboration aimed at advancing social entrepreneurship globally. Specifically, this essay examines why the collaboration was launched, how the collaboration is structured, what the collaboration offers …