Digital Commons Network^™

Monetizing Shame: Mugshots, Privacy, And The Right To Access, Eumi K. Lee

Faculty Scholarship

No abstract provided.

Comparative Law, Geopolitics, And The Conflict In Palestine: Disciplined Disengagement And The Commons Solution, Ugo Mattei

Faculty Scholarship

No abstract provided.

A Spatial Critique Of Intellectual Property Law And Policy, Peter K. Yu

Faculty Scholarship

Although geography has had an important and lasting impact on the development of intellectual property law and policy, at both the domestic and international levels, geographical perspectives and spatial analysis have thus far not attracted much attention from policymakers and commentators. Only recently have we seen greater linkage between these two undeniably connected fields. Even with such linkage, the discussion tends to focus narrowly on specific issues, such as the parallel importation of pharmaceuticals, the protection of geographical indications and the treatment of traditional knowledge and traditional cultural expressions.

This article aims to provide a systematic analysis of the linkage …

Healing Journey: A Qualitative Analysis Of The Healing Experiences Of Americans Suffering From Trauma And Illness, Kurt C. Stange

Faculty Scholarship

Objectives To elucidate pathways to healing for people having suffered injury to the integrity of their function as a human being. Methods A team of physician-analysts conducted thematic analyses of in-depth interviews of 23 patients who experienced healing, as identified by six primary care physicians purposefully selected as exemplary healers. Results People in the sample experienced healing journeys that spanned a spectrum from overcoming unspeakable trauma and then becoming healers themselves to everyday heroes functioning well despite ongoing serious health challenges. The degree and quality of suffering experienced by each individual is framed by contextual factors that include personal characteristics, …

Reconsidering Prejudice In Alternative Dispute Resolution For Black Work Matters, Michael Z. Green

Faculty Scholarship

In the 1985 foundational article Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, Richard Delgado and his co-authors identified major concerns with the growing use of alternative dispute resolution (ADR) to resolve disputes involving people of color. The seminal findings from that article highlighted the power differentials exacerbated by informal dispute resolution, and the article contributed immediately to a surge of robust critiques of the increasing use of alternative dispute resolution for those most vulnerable in our society.

More than thirty years after the Delgado article, a community of respected and prominent ADR and discrimination scholars, …

Initiating Research On Igniting Fires In The Blue Ridge Mountains During The Autumn 2016 Conflagration, Cynthia Twyford Fowler, Cynthia Fowler

Faculty Scholarship

An unprecedented moment in the fire ecology of the Blue Ridge Mountains occurred in Autumn 2016 when severe drought, frequent anthropogenic ignitions, and seasonality in disturbed deciduous forests fueled widespread burning. As the wildfires burned, wildland firefighters from around the U.S. temporarily moved into the region to assist local land managers. As wildfire risks increased and air quality decreased, local residents became increasingly interested in fire ecology. The community shifted continuously as wildfires were extinguished, wildland firefighters returned home, and local residents disengaged. In conducting research during the conflagration, obtaining consent from community members varied depending on whether or not …

The Scholarship Of Resonance In An Era Of Discord, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Religious Freedom As A Technology Of Modern Secular Governance, Peter G. Danchin

Faculty Scholarship

No abstract provided.

A Critique Of The Uniquely Adversarial Nature Of The U.S. Legal, Economic And Political System And Its Implications For Reinforcing Existing Power Hierarchies, James D. Wilets, Areto A. Imoukhuede

Faculty Scholarship

No abstract provided.

White Doors, Black Footsteps: Leveraging "White Privilege" To Benefit Law Students Of Color, Leslie Culver

Faculty Scholarship

Law students of color typically avoid seeking the mentorship of white law professors, largely white males, finding female faculty and faculty of color more approachable and willing to serve as mentors. Yet, according to recent ABA statistics, white people make up eighty-eight percent of the legal profession, with sixty-four percent being male. In addition, relevant scholarship comments that one of the primary privileges of whiteness is having greater access to power and resources than people of color do. It follows then, as recent legal scholarship suggests, that law students of color who fail to develop a cultural competence may be …

From Visualization To Legal Design: A Collaborative And Creative Process, Gerlinde Berger-Walliser, Thomas D. Barton, Helena Haapio

Faculty Scholarship

The digital revolution has prompted a strong and accelerating interest in "visualization"-the use of images, photos, icons, diagrams, charts, or videos to enhance or supplant printed language. Although the law remains predominately focused on the written word, the appeal of images to clarify and persuade suggests that legal visualization will be increasingly explored in research and legal practice in coming years. As Michael D. Murray writes, "socio-epistemic and law and society studies affirm that as modern culture becomes increasingly visual, discourse of every kind must follow suit."

Pioneering visualization studies have been groundbreaking and expansive. Murray provides a helpful overview …

Revising Racial Patents In An Era Of Precision Medicine, Jonathan Kahn

Faculty Scholarship

In 2006, I published an article examining the rising use of racial categories in biomedical patents in the aftermath of the successful completion of the Human Genome Project and the production of the first draft of a complete human genome. Ten years on, it now seems time to revisit the issue and consider it in light of the current era of “Precision Medicine” so prominently promoted by President Obama in his 2015 State of the Union address where he announced a $215 million proposal for the Precision Medicine Initiative as “a bold new research effort to revolutionize how we improve …

Creating A Data Resource: What Will It Take To Build A Medical Information Commons?, Patricia A. Deverka, Mary A. Majumder, Angela G. Villanueva, Margaret Anderson, Annette C. Bakker, Jessica Bardill, Eric Boerwinkle, Tania Bubela, Barbara J. Evans, Nanibaa’ A. Garrison, Richard A. Gibbs, Robert Gentleman, David Glazer, Melissa M. Goldstein, Hank Greely, Crane Harris, Bartha M. Knoppers, Barbara A. Koenig, Isaac S. Kohane, Salvatore La Rosa, John Mattison, Christopher J. O’Donnell, Arti K. Rai, Heidi L. Rehm, Laura L. Rodriguez, Robert Shelton, Tania Simoncelli, Sharon F. Terry, Michael S. Watson, John Wilbanks, Robert Cook-Deegan, Amy L. Mcguire

Faculty Scholarship

National and international public–private partnerships, consortia, and government initiatives are underway to collect and share genomic, personal, and healthcare data on a massive scale. Ideally, these efforts will contribute to the creation of a medical information commons (MIC), a comprehensive data resource that is widely available for both research and clinical uses. Stakeholder participation is essential in clarifying goals, deepening understanding of areas of complexity, and addressing long-standing policy concerns such as privacy and security and data ownership. This article describes eight core principles proposed by a diverse group of expert stakeholders to guide the formation of a successful, sustainable …

The Abortion Closet (With A Note On Rules And Standards), David E. Pozen

Faculty Scholarship

An enormous amount of information and insight is packed into Carol Sanger's About Abortion: Terminating Pregnancy in Twenty-First Century America. The book is anchored in post-1973 American case law. Yet it repeatedly incorporates examples and ideas from popular culture, prior historical periods, moral philosophy, feminist theory, medicine, literature and the visual arts, and more.

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Illiberty Of Contract, Donald J. Smythe

Faculty Scholarship

The term “liberty of contract” is usually associated with the doctrine that the due process clause of the United States Constitution prohibits or should prohibit the State from regulating contracts between private individuals. Many libertarians and free-market advocates embrace the liberty of contract doctrine because they are averse to State interference with private market transactions. But the term is ironic because a contract is only legally binding if courts will enforce it. Since courts derive their authority because they are the third branch of government, they are State actors and contractual enforcement involves the exercise of the State’s powers of …

Working Sex Words, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Color Of Kinship, Robin A. Lenhardt

Faculty Scholarship

This Article addresses the need for family law scholarship that better theorizes and grapples with how race informs American life in the 21st Century. Family law scholars have been instrumental in documenting and advocating for recognition of the “new kinship”—familial relationships and affective ties forged outside of marriage and amidst dramatic demographic shifts. In doing so, though, they have largely ignored race, focusing instead on matters such as gender or class. The assumption is that kinship is raceneutral. But, in fact, kinship has a color. Part II explores this reality by analyzing Cramblett v. Midwest Sperm Banks, LLC, a case …

Constructing An International Community, Monica Hakimi

Faculty Scholarship

What unites states and other global actors around a shared governance project? How does the group — what I will call an “international community” — coalesce and stay engaged in the enterprise? A frequent assumption is that an international community is cemented by its members’ commonalities and depleted by their intractable disagreements. This article critiques that assumption and presents, as an alternative, a theory that accounts for the combined integration and discord that actually characterize most global governance associations. I argue that conflict, especially conflict that manifests in law, is not necessarily corrosive to an international community. To the contrary, …

Property And Sovereignty, Information And Audience, Thomas W. Merrill

Faculty Scholarship

Morris Cohen’s classic essay, Property and Sovereignty, correctly discerned that political sovereignty and private property are alternative forms of government. Where it failed was in suggesting that the choice between these modes of governance is a matter of dialing one up and the other down. The relationship between political sovereignty and property is complex, and varies depending on the audience of property we have in view. With respect to some audiences – strangers and transactors – those who favor a strong system of property will want to enlist a generous measure of assistance from the political sovereign. With respect to …

Heuristic Interventions In The Study Of Intellectual Property, Jessica Silbey

Faculty Scholarship

In this Essay, I review and elaborate on Dan's Burk's On the Sociology of Patenting with three "heuristic interventions" for the study of intellectual property law. These interventions derive from sociology and anthropology, and to some extent also from critical literary theory. Unoriginal in the social sciences, these heuristic interventions remain largely original to the study of law within law schools and traditional legal scholarship (as opposed to the study of law from within the social sciences and humanities). Burk joins a small but growing group of legal scholars, reaching beyond legal doctrinal analysis and the economic analysis of law …

Before Interpretation, Anya Bernstein

Faculty Scholarship

What is it that a judge interprets in a statutory interpretation case? This Article shows that the answer to this question is surprisingly complex. First, the text that a judge interprets is not simply given. Rather, judges must select texts to interpret. Second, the background against which a judge views that text is also not given. Rather, judges situate the texts they interpret within unique, case-specific contexts that they construct from a diverse and unpredictable variety of factors. Selecting and situating: these form the infrastructure of interpretation. Each requires judges to exercise creativity and choice. But opinions tend to present …

The Cold War And Comparative Law: A Reflection On The Politics Of Intellectual Discipline, Ugo Mattei, Alessandra Quarta

Faculty Scholarship

No abstract provided.

Law Against The People/The Empire Strikes Back, George Bisharat

Faculty Scholarship

No abstract provided.

Law And Economics: Contemporary Approaches, Frank Pasquale, Martha T. Mccluskey, Jennifer Taub

Faculty Scholarship

No abstract provided.

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Faculty Scholarship

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news …

A Call For Strengthening The Role Of Comparative Legal Analysis In The United States, Irene Calboli

Faculty Scholarship

This Essay highlights the importance of comparative legal analysis with particular emphasis on the role that this methodology could play for intellectual property scholarship in the United States. In particular, this Essay suggests that U.S. scholars could consider turning with more frequency to comparative legal analysis as an additional methodology to use in their research. Yet, the objective of this Essay is not to suggest that U.S. scholars should engage in comparative legal analysis in lieu of other types of research methodologies. Instead, this Essay simply supports that comparative legal analysis could play a larger role compared to the one …

Lotteries As A Voluntary And "Painless" Tax In American Gaming Law And The Prospect Of Creating A Federal Lottery To Reduce The Federal Deficit In The Era Of Billion Dollar Jackpots, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Assumed Sane, Fatma Marouf

Faculty Scholarship

In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S-that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …

Big Questions Comparative Law, Anna Di Robilant

Faculty Scholarship

This essay reflects on Ran Hirschl’s book "Comparative Matters." Feeling that historical comparative law methodologies have been found wanting it looks to newer methods. For example, the critical approach to comparative law relies on comparison to expose the implicit biases and assumptions of the observer’s own system and to denounce the illusory and ideological nature of “legalism,” namely, the claim that law is both neutral and necessary. Comparative law and economics seeks to explain in precise terms the convergence of legal rules by using efficiency as a key metric. Comparative law and economics also gives a comparative twist to the …