Digital Commons Network^™

In Memory Of Joe E. Anderson (1928-2016), Professor Of Law, St. Mary's University School Of Law, Michael Ariens

Faculty Articles

No abstract provided.

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism, L Wayne Scott

Faculty Articles

No abstract provided.

The Role Of U.S. Technology Companies As Enforcers Of Europe's New Internet Hate Speech Ban, Evelyn Aswad

Faculty Articles

No abstract provided.

Lawyers, Power, And Strategic Expertise, Colleen Shanahan, Anna Carpenter, Alyx Mark

Faculty Articles

This empirical study analyzes the experience of the parties described above, specifically the power, representation, and strategic expertise they bring to a dispute. Our analysis of these factors clarifies how representation may be a solution to the access to justice crisis. We find that a representative helps most parties most of the time. We also find that the other party’s representation and the representative’s strategic expertise are significant factors for understanding representation for civil litigants. This study analyzes a database of 1,700 unemployment insurance appeals in the District of Columbia over a two-year period, the broadest and deepest collection of …

Dependent Disclaimers, Katheleen Guzman

Faculty Articles

No abstract provided.

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Faculty Articles

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those big data records not only store our past, but thanks to data mining they are in many circumstances eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully different …

Agencies And Science-Experiment Risk, Eric E. Johnson

Faculty Articles

There is a curious absence of legal constraints on U.S. govern­ment agencies undertaking potentially risky scientific research. Some of these activities may present a risk of killing millions or even destroying the planet. Current law leaves it to agencies to decide for themselves whether their activities fall within the bounds of acceptable risk. This Article explores to what extent and under what circumstances the law ought to allow private actions against such non­ regulatory agency endeavors. Engaging with this issue is not only interesting in its own right, it allows us to test fundamental concepts of agency competence and the …

Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian Mccall

Faculty Articles

Throughout history, some have questioned whether the authority exercised by some over others is consistent with human nature. Is it possible for a law made by one human being to bind the conscience of another, or is such a claim merely tyranny? If such a power to bind to laws made by humans is justified, what is its scope? The answers to these related questions explored in this Article are both descriptive and normative. This Article explains the nature of authority and the extent of the obligation to obey the law as well as explains how the architecture of natural …

Officer Accountability, Megan Wischmeier Shaner

Faculty Articles

The officer is at the center of modern corporate governance. Wielding immense power and influence, officers’ conduct and decision-making can determine the success or failure of their companies and impact the economy more broadly. Fiduciary duties under state law serve as a vital check on officer power. This article is the third piece in a study of the role of fiduciary duties in regulating officer behavior. It examines an underlying premise in prior scholarship – that officers are rarely being held accountable for their conduct in the traditional fiduciary duty litigation context of state court. This article reviews opinions of …

Complying With The Hipaa Privacy Rule: Problems And Perspectives, Stacey A. Tovino

Faculty Articles

Twenty years ago, President Clinton signed the Health Insurance Portability and Accountability Act of 1996 (HIPAA) into law. Over the past two decades, the federal Department of Health and Human Services (HHS) has published several sets of rules implementing the Administrative Simplification provisions within HIPAA as well as the Health Information Technology for Economic and Clinical (HITECH) Act within the American Recovery and Reinvestment Act (ARRA). These rules include a final rule governing the use and disclosure of protected health information by covered entities and their business associates (Privacy Rule). This Article addresses the question of what it means for …

Of Mice And Men: On The Seclusion Of Immigration Detainees And Hospital Patients, Stacey A. Tovino

Faculty Articles

With a special focus on federal provisions strictly regulating Medicare-participating hospitals' use of seclusion, this Article uses developments in health law as a lens through which the uses and abuses of seclusion in immigration detention centers might be assessed and through which the standards governing detention centers might be improved. In particular, this Article argues that the unenforceable standards governing seclusion in immigration detention, including the most recent version of ICE's Performance-Based National Detention Standards, were incorrectly modeled on correctional standards developed for use in jails and prisons with respect to convicted criminals. This Article asserts that correctional standards are …

Nanotechnology, Environmental Risks, And Regulatory Options, Vincent R. Johnson

Faculty Articles

Nanotechnology today is viewed by many as a great advance in the quest for stronger and lighter materials, more effective pharmaceuticals, and better medicine. The critical question—largely unanswered—is whether this kind of science harbors destructive powers which, if fully understood, would call for restrictions or a ban on the use of certain types of nanotechnology. Current regulations in the United States and Europe cover chemicals that may be produced in nanoform. However, those regimes are not well designed to detect the risks posed by nanotechnology because they often fail to appreciate what is unique about nanomaterials. It is unlikely that …

The Rise And Fall Of Social Trustee Professionalism, Michael Ariens

Faculty Articles

Elite lawyers have long urged the private practice bar to account for the interests of more than their clients in their work. A lawyer who served merely as a "mouthpiece" or "hired gun" of clients failed to meet the standards of professionalism, of failing to act, in Roscoe Pound's words, "in the spirit of a public service." Pound's view, expressed in the mid-20th century, was premised on the ideal that the lawyer pursued a public calling that incidentally was remunerative. This ideal required the lawyer to serve as a social trustee, one encumbered by duties for the benefit of society. …

The Magna Carta And The Beginning Of Modern Legal Thought, Vincent R. Johnson

Faculty Articles

As the Magna Carta, England's Great Charter of Liberties, marks its eighth centennial, it is appropriate to ask what's in it. The answer, it turns out, lives up to the legend. What's in the Magna Carta is the beginning of modern legal thought. The Great Charter set the expectations that for 800 years have shaped the development of the law in England, America, and around the globe. Like a blazing light piercing the medieval darkness, the Magna Carta illuminated the importance of legal principles, fair procedures, proportional punishment, official accountability, and respect for human dignity. It was unlike any legal …

What's Coming For Class Actions,, Zoe Niesel

Faculty Articles

A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification.

Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs' attorneys to show issues and damages common to all plaintiffs in the proposed …

Strategic And Tactical Totalization In The Totalitarian Epoch, Adam J. Macleod

Faculty Articles

This article examines the totalization of private law by public authorities. It compares and contrasts the fate of private law in totalitarian regimes with the role of private law in contemporary, non-totalitarian liberal democracies. It briefly examines the Socialist jurisprudence of the former Soviet Union and its treatment of private law. It offers an explanation why private law might be inimical to the jurisprudence of the Soviet Union and totalitarian regimes more generally. It next examines the totalization of law accomplished by segregationist regimes in the mid-twentieth century, comparing and contrasting those regimes with totalitarian regimes. Then it turns to …

The Development Of Legal Rights In The American Legal System, Roberto Rosas

Faculty Articles

This article takes a snapshot of some of the most controversial topics in American society today and the juridical response to these topics by individual states, the United States Congress, and the United States Supreme Court. Although there are numerous legal topics that deserve mention and analysis, this article is limited to the discussion of nine fairly new rights created by state and federal laws. The rights discussed in this article include the following: 1) The right to open carry a firearm; 2) The right to consume marijuana; 3) The right to marry or to civil unions between same-sex couples; …

Forgetting Nature: The Importance Of Including Environmental Flows In International Water Agreements, Amy Hardberger

Faculty Articles

From the moment States created political boundaries to define their territory, they have shared water. There are 263 transboundary lake and river basins worldwide and 300 known transboundary aquifer systems. Whenever sharing is present, the opportunity for conflict is too. Climate change and increasing population are only two factors that may lead to increasing conflict if attention is not given to these situations. Thankfully, sharing water also creates an opportunity for cooperation. Throughout the world, there are increasing examples of conflict and cooperation regarding shared water resources. International water agreements can promote regional peace and security and encourage economic growth. …

Time To Repair The Chain: Void Deeds, Subsequent Purchasers, And The Texas Recording Statutes, Richard E. Flint

Faculty Articles

Throughout the history of Texas jurisprudence, the Texas Supreme Court has often made clear and concise pronouncements that a rule of law was to apply in all cases that fell under the parameters of that rule, as well as exceptions to the application of these legal rules in situations where the application would perpetrate a fraud or would be inequitable. In several situations, Texas courts applied equitable principles to protect a subsequent purchaser in spite of the existence of a void deed in the chain of title. However, the court in Texas Department of Transportation v. A.P.I. Pipe & Supply, …

Opting Out In The Name Of God: Will Lawyers Be Compelled To Handle Same-Sex Divorces?, Bill Piatt

Faculty Articles

In June of 2015, the United States Supreme Court determined by a 5–4 ruling in Obergefell v. Hodges that same-sex couples have a constitutionally guaranteed right to marry. While this represents a momentous victory for homosexuals, many people are still vehemently opposed to the idea. Homosexuality is especially frowned upon in certain religions, including some sects of Christianity. Is it possible that attorneys who decline on religious grounds to provide legal services to same-sex individuals seeking divorces will be ordered to provide that representation? Might those attorneys be sanctioned if they fail to do so? These are both novel and …

Tryptophan 207 Is Crucial To The Unique Properties Of The Human Voltage-Gated Proton Channel, Hhv1, Vladimir V. Cherny, Deri Morgan, Boris Musset, Susan M. E. Smith

Faculty Articles

Part of the “signature sequence” that defines the voltage-gated proton channel (HV1) is a tryptophan residue adjacent to the second Arg in the S4 transmembrane helix: RxWRxxR, which is perfectly conserved in all high confidence HV1 genes. Replacing Trp207 in human HV1 (hHV1) with Ala, Ser, or Phe facilitated gating, accelerating channel opening by 100-fold, and closing by 30-fold. Mutant channels opened at more negative voltages than wild-type (WT) channels, indicating that in WT channels, Trp favors a closed state. The Arrhenius activation energy, Ea, for channel opening decreased to 22 kcal/mol from 30–38 kcal/mol for WT, confirming that Trp207 …

Selective C1 Lesioning Slightly Decreases Angiotensin Ii Type I Receptor Expression In The Rat Rostral Ventrolateral Medulla (Rvlm)., Erick A Bourassa, Kristen A Stedenfeld, Alan F Sved, Robert Charles Speth

Faculty Articles

Cardiovascular homeostasis is regulated in large part by the rostral ventrolateral medulla (RVLM) in mammals. Projections from the RVLM to the intermediolateral column of the thoracolumbar spinal cord innervate preganglionic neurons of the sympathetic nervous system causing elevation of blood pressure and heart rate. A large proportion, but not all, of the neurons in the RVLM contain the enzymes necessary for the production of epinephrine and are identified as the C1 cell group. Angiotensin II (Ang II) activates the RVLM acting upon AT1 receptors. To assess the proportion of AT1 receptors that are located on C1 neurons in the rat …

Glass Half Full: The Decline And Rebirth Of The Legal Profession (Book Review), Michael S. Ariens

Faculty Articles

No abstract provided.

Toward Politically Stable Nlrb Lawmaking: Rulemaking Vs. Adjudication, Charlotte Garden

Faculty Articles

For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators academics, lawyers, judges, and politicians have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking …

The End Of The Cold War: Can American Constitutionalism Survive Victory?, Stephen Matthew Feldman

Faculty Articles

The nations Cold War battle against the Soviet Union pervasively influenced American law and society as numerous scholars have observed The Cold War for instance spurred the strengthening of civil rights and the capitalist economy The federal government needed to protect civil rights at least symbolically to deflect Soviet denunciations of democracyMeanwhile the ostentatious exhibition and use of American consumer products contrasted American economic prosperity with Soviet struggles Thus during the Cold War the government and the capitalist leaders were bonded together in a struggle against the communist enemy The overriding desire for Cold War victory tempered potential political demands …

Denying The Dyad: How Criminalizing Pregnant Use Harms The Baby, Taxpayers And Vulnerable Women, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

Daimler And The Jurisdictional Triskelion, Zoe Niesel

Faculty Articles

No abstract provided.

Post-9/11 Veterans: Welcoming Them Home As Colleagues And Clients, Patricia E. Roberts

Faculty Articles

No abstract provided.

Symmetry And The Arrow Of Time In Theoretical Black Hole Astrophysics, David Garofalo

Faculty Articles

While the basic laws of physics seem time-reversal invariant, our understanding of the apparent irreversibility of the macroscopic world is well grounded in the notion of entropy. Because astrophysics deals with the largest structures in the Universe, one expects evidence there for the most pronounced entropic arrow of time. However, in recent theoretical astrophysics work it appears possible to identify constructs with time-reversal symmetry, which is puzzling in the large-scale realm especially because it involves the engines of powerful outflows in active galactic nuclei which deal with macroscopic constituents such as accretion disks, magnetic fields, and black holes. Nonetheless, the …

Bank Loan Agreement And Ceo Compensation, Amine Khayati, Donald L. Ariail

Faculty Articles

Contrary to other forms of outside financing, the announcement of a bank loan agreement prompts a positive and significant market return. Throughout the literature, bank loans are deemed special and unique due to multiple benefits accruing to bank borrowers. The short-term positive market reaction is however inconsistent with the long-term underperformance of borrowing firms (Billet et al., 2006). We find that unlike shareholders, CEOs gain from the bank loan relation over the long-term. Specifically, we find that bank loan agreement elicits a significant increase in total compensation through an increase in non-performance based compensation components such as salary, bonus and …