Digital Commons Network^™

Miranda, Please Report To The Principal's Office, Meg Penrose

Faculty Scholarship

The age of an alleged criminal offender undoubtedly affects his or her ability to appreciate the consequences of confessing to criminal behavior. Courts have long accepted that youth and inexperience impact an individual's ability to make a voluntary confession. Accordingly, this Article addresses whether Miranda v. Arizona--the seminal Fifth Amendment decision providing procedural rights to those enduring custodial interrogation--should apply to students interrogated by school officials during school hours. To answer this difficult question, this Article first provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school …

The Strategy Of Boilerplate, Robert B. Ahdieh

Faculty Scholarship

Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.

Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, …

Identification Of Critical Determinants On Ace2 For Sars-Cov Entry And Development Of A Potent Entry Inhibitor, Dong P. Han, Adam Penn-Nicholson, Michael W. Cho

Faculty Scholarship

Severe acute respiratory syndrome (SARS) is caused by a novel coronavirus, SARS-CoV. Virus entry into cells is mediated through interactions between spike (S) glycoprotein and angiotensin-converting enzyme 2 (ACE2). Alanine scanning mutagenesis analysis was performed to identify determinants on ACE2 critical for SARS-CoV infection. Results indicated that charged amino acids between residues 22 and 57 were important, K26 and D30, in particular. Peptides representing various regions of ACE2 critical for virus infection were chemically synthesized and evaluated for antiviral activity. Two peptides (a.a. 22–44 and 22–57) exhibited a modest antiviral activity with IC(50) of about 50 μM and 6 μM, …

Autonomy Suspended: Using Female Patients To Teach Intimate Exams Without Their Consent, Robin Fretwell Wilson

Faculty Scholarship

Recent reports of medical students performing pelvic exams for training purposes on anesthetized women without their consent have produced a firestorm of controversy. Peter Ubel and colleagues found that 90% of medical students performed such exams during their obstetrics/gynecology rotations. A series of 2003 reports focused a white-hot spotlight on this teaching practice and resulted in Federal Trade Commission and Department of Justice hearings and action by the American Association of Medical Colleges and the American College of Obstetrics and Gynecology. In this article, Professor Wilson examines the merits of the defenses and justifications for using female patients for pelvic …

Congressional Administration, Jack M. Beermann

Faculty Scholarship

In recent years, at least since President Reagan's precedent-setting Executive Order 12291, the phenomenon of direct presidential supervision of agencies has received significant attention in legal scholarship. Congress's involvement has been much less thoroughly examined, and, although most people are familiar with congressional hearings and oversight, the dominant image as a legal matter is that once Congress legislates, it loses control over how its laws are administered unless it chooses to legislate again. In the political science/public policy literature, the understanding of Congress's role in monitoring agencies has evolved from despair that Congress is not sufficiently engaged to a recognition …

Understanding The Ex Parte Communications Ban In Employment Disputes, Michael Z. Green

Faculty Scholarship

One of the biggest issues with ex parte communications in the employment setting involves the question of whether a plaintiff's attorney may have ex parte communications with employees of a defendant corporate entity without violating ethical rules. See generally Ellen J. Messing & James S. Weliky, Contacting Employees of an Adverse Corporate Party: A Plaintiff's Attorney's View," 19 Lab. Law. 353 (2004). However, this article focuses on the situation in which the employee or employer, as clients of an attorney in a legal dispute, attempt to contact adverse represented parties or persons.

Critical Essay: Musings On The Need To Convince Some People With Disabilities That End-Of-Life-Decision-Making-Advocates Are Not Out To Get Them, Kathy L. Cerminara

Faculty Scholarship

Kathy Cerminara, Critical Essay: Musings on the Need to Convince Some People with Disabilities That End-of-Life-Decision-Making Advocates are Not Out to Get Them, 37 Loyola University of Chicago Law Journal 343 (2006). As others have noted, the importance of the Terri Schiavo case is not legal; the various Schiavo opinions broke no new legal ground other than the constitutional questions raised when legislatures began intervening to attempt to change the outcome of the end-of-life decision-making rulings. Rather, it was activism by certain disability rights and vitalist groups that so caught the attention of the public, the politicians and the …

Minimum Contacts In A Borderless World: Voice Over Internet Protocol And The Coming Implosion Of Personal Jurisdiction Theory, Danielle Keats Citron

Faculty Scholarship

Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A nonresident’s “minimum contacts” with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state’s exercise of sovereignty over her. At the same time, the nonresident’s “purposeful availment” of opportunities within the state is seen as implying her agreement to that state’s jurisdiction in exchange for the protection of its laws. This theory presumes that a nonresident directs voice communications to known places by dialing a telephone number’s area code. Voice over Internet Protocol (“VoIP”) …

Connecting Theory And Reality: Teaching Gideon And Indigent Defendants' Non-Right To Counsel At Bail, Douglas L. Colbert

Faculty Scholarship

In my article, I critique criminal procedure textbooks' and law professors' limited treatment of the constitutional right to counsel at the bail stage. While explaining that casebook authors usually praise the Supreme Court's landmark decisions in Gideon v. Wainwright and Argersinger v. Hamlin for guaranteeing trial counsel to indigent state defendants, I suggest that they shed minimal light on Gideon's irrelevance to most state defendants when they first appear before a judicial officer. Reviewing leading criminal procedure casebooks, I demonstrate that it is the rare text which informs law students that accused defendants should not expect to find a defense …

To Attain “The Just Rewards Of So Much Struggle”: Local-Resident Equity Participation In Urban Revitalization, Barbara L. Bezdek

Faculty Scholarship

Annually, Americans pour out their sympathy for people displaced from their communities by natural disasters such as fires, floods, and hurricanes. We respond, knowing the anchor that the concept of “home” supplies to body, soul, and family; we intuit the toll exacted by the loss of familiar walls, private homes and community-shared places. Yet, redevelopment policy and practice in the U.S. today relies upon the massive relocation of poor people and the destruction of poor people’s neighborhoods with only token recognition of the costs and burdens imposed on the displaced. Although the devastation of community, family, and lives is just …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2005-2006, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

This article analyzes the judicial decisions involving Internet and other electronic contracts during the period from July 1, 2005 to June 30, 2006. The authors explain that this year's cases show a maturation of the common law of electronic contracts in that the judges are beginning to recognize the realities of electronic communications and to apply traditional contract principles to those communications unless the realities of the technology justifies a different result.

Human Rights Enforcement In The Twenty-First Century, Douglas L. Donoho

Faculty Scholarship

The international human rights system enters the twenty-first century facing a profound anomaly. Despite remarkable normative and institutional developments since the system's inception, the world remains mired in widespread violations of human dignity. Genocidal episodes have repeatedly scarred the consciousness of humankind since World War ll. Floods of refugees and simmering ethnic conflicts continually challenge the international community's capacity to respond, and grotesque forms of physical abuse, such as torture and summary execution, remain commonplace Despite a promising trend toward democratic governance around the world, basic civil liberties for countless millions remain only an empty promise.' Most disheartening of all, …

Survey Of The Law Of Cyberspace: Electronic Contracting Cases 2005-2006, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

No abstract provided.

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Faculty Scholarship

No abstract provided.

Probability Misestimates In Medical Care, Bailey Kuklin

Faculty Scholarship

No abstract provided.

As A Last Resort, Ask The Students: What They Say Makes Someone An Effective Law Teacher, James B. Levy

Faculty Scholarship

No abstract provided.

A Privacy Right To Public Recognition Of Family Relationships - The Cases Of Marriage And Adoption, David D. Meyer

Faculty Scholarship

No abstract provided.

When Do Interest Groups Use Electronic Rulemaking?, John M. De Figueiredo

Faculty Scholarship

This paper analyzes how electronic rulemaking is affecting the propensity of interest groups to file comments and replies at the Federal Communications Commission. The paper shows that exogenous events and a handful of issues drive filing behavior. Implications of the analysis are discussed.

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Faculty Scholarship

Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

The States "Race" With The Federal Government For Stem Cell Research, Joanna K. Sax

Faculty Scholarship

The goal of this paper is to analyze and explain the impact of state legislation and funding on the future of stem cell research. Without federal law regulating stem cell research, funding by states and private organizations may spur competition to attract and retain leading scientists and industry in individual states. Alternatively, state-funded stem cell research may incite the federal government to react either positively or negatively to pre-empt state and private action. Traditionally, most support for scientific research comes in the form of grants from the National Institutes of Health (NIH). Due to the practical ban on stem cell …

Comment, Saving Toby: Extortion, Blackmail, And The Right To Destroy, Stephen E. Sachs

Faculty Scholarship

On the website SaveToby.com, one may find many endearing pictures of Toby, the cutest little bunny on the planet. Unfortunately, on June 30, 2005, the lovable Toby was scheduled to be butchered and eaten - unless the website's readers sent $50,000 to save his life. Though Toby's owner has since granted him a temporary reprieve - until Nov. 6, 2006 - the threat raises a fascinating issue of law. Extortion statutes prohibiting threats to destroy property generally do not prohibit threats to destroy one's own property. The law thus provides insufficient protection to a variety of resources on which others …

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

Academic Freedom Issues For Academic Librarians, Richard A. Danner, Barbara Bintliff

Faculty Scholarship

Professors Danner and Bintliff argue that understanding academic freedom and faculty tenure is important for academic librarians, both to provide better perspective on the concerns of faculty researchers and teachers, and to highlight matters of common concern to librarians and faculty. The authors discuss the basic tenets of academic freedom and tenure, then compare academic freedom with the intellectual freedom concerns of librarians. The article concludes by introducing several current issues of importance to librarians, faculty, and everyone concerned with academic freedom on university campuses.

From Sec Enforcement Attorney To Commissioner, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Morality Of Evolutionarily Self-Interested Rescues, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Justice In The Balance: An Evaluation Of One Clinic's Ability To Harmonize Teaching Practical Skills, Ethics And Professionalism With A Social Justice Mission, Lauren Carasik

Faculty Scholarship

A number of developments have firmly established the role of clinics in legal education, allowing law school clinicians greater latitude in designing programs consistent with law school curricular values and priorities. Consequently, current law school clinical offerings are comprised of richly varied structures and goals. A myriad of goals fall under the general rubric of clinical legal education. Among the most widely cited goals are providing practical skills training in a real world context, instilling a public interest ethos in students, advancing social justice, encouraging the critique of the law and legal institutions, inculcating high standards of ethics and professionalism …

Rulemaking In The Ages Of Globalization And Information: What America Can Learn From Europe, And Vice Versa, Peter L. Strauss

Faculty Scholarship

This Article stems from a project on European Union Administrative Law undertaken by the American Bar Association's Section on Administrative Law and Regulatory Practice. It explores the generation of normative texts by the Commission of the European Union, its executive body, from the perspective of Americans familiar with notice and comment rulemaking. Legislative drafting (an exclusive responsibility of the Commission), subordinate measures corresponding to American rules and regulations, and soft law generated by the Commission are all considered In creating legislative proposals, the Commission uses techniques quite like American rulemaking, but with consultative practices (including electronic consultations) that seem more …

On Public Versus Private Provision Of Corporate Law, Gillian K. Hadfield, Eric L. Talley

Faculty Scholarship

Law in modern market societies serves both democratic and economic functions. In its economic function, law is a service, a means of enhancing the value of transactions and organizations. Yet modern market economies continue to rely on the state, rather than the market, to provide this service. This paper investigates whether private provision of law may be superior to public provision. We look in particular at corporate law, where there is a substantial literature exploring the efficiency implications of "regulatory competition" and compare this competition with market competition between private providers. Drawing from the well-known framework of spatial models of …

Inducers And Authorisers: A Comparison Of The Us Supreme Court's Grokster Decision And The Australian Federal Court's Kazaa Ruling, Jane C. Ginsburg, Sam Ricketson

Faculty Scholarship

On June 27, 2005, the US Supreme Court announced its much-awaited decision in MGM Studios, Inc. v. Grokster Ltd. A few months after this, the Federal Court of Australia handed down its decision at first instance in relation to parallel litigation in that country concerning the KaZaa file sharing system. Both decisions repay careful consideration of the way in which the respective courts have addressed the relationship between the protection of authors' rights and the advent of new technologies, particularly in relation to peer-to-peer networks.

In the Grokster case, songwriters, record producers and motion picture producers alleged that two popular …