Digital Commons Network^™

Non-Parties: The Negative Externalities Of Regional Trade Agreements In A Private Law Perspective, Daniela Caruso

Faculty Scholarship

In private law theory and in international trade law alike, a new strand of scholarship has emerged in recent years. This strand is characterized by a focus on market actors who are excluded from deals struck by other parties and suffer economic hardship as a result. Scholars have also focused on doctrines and legal concepts apt to identify this type of hardship and to provide non-parties with justiciable claims and remedies. Private-law and trade-law scholars involved in this mode of research are often moved by justice concerns and by the realization that rules based solely on the enforcement of bilateral …

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

Faculty Scholarship

The “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.¹ It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, ^{2 …}

Identifying Patients And Clinical Scenarios For Use Of Long-Acting Injectable Antipsychotics – Expert Consensus Survey Part 1, Martha Sajatovic

Faculty Scholarship

Objective: To assess expert consensus on barriers and facilitators for long-acting injectable antipsychotic (LAI) use and provide clinical recommendations on issues where clinical evidence is lacking, including identifying appropriate clinical situations for LAI use. Methods: A 50-question survey comprising 916 response options was distributed to 42 research experts and high prescribers with extensive LAI experience. Respondents rated options on relative appropriateness/importance using a 9-point scale. Consensus was determined using chi-square test of score distributions. Mean (standard deviation) ratings were calculated. Responses to 29 questions (577 options) relating to appropriate patients and clinical scenarios for LAI use are reported. Results: Recommendations …

Initiating/Maintaining Long-Acting Injectable Antipsychotics In Schizophrenia/Schizoaffective Or Bipolar Disorder – Expert Consensus Survey Part 2, Martha Sajatovic

Faculty Scholarship

Objective: The aim of this study was to provide recommendations on initiating and maintaining long-acting injectable antipsychotics (LAIs) in individuals with schizophrenia/schizoaffective or bipolar disorder. Methods: A 50-question survey comprising 916 response options was completed by 34 expert researchers and high prescribers with extensive LAI experience, rating relative appropriateness/importance on a 9-point scale. Consensus was determined using chi-square test of score distributions. Results of 21 questions comprising 339 response options regarding LAI initiation, maintenance treatment, adequate trial definition, identifying treatment nonresponse, and switching are reported. Results: Experts agreed that the most important LAI selection factor was patient response/tolerability to previous …

Understanding The Scope Of Business Law Clinics: Perspectives From The United Kingdom, Israel And The United States,, Jonathan Askin, Dov Greenbaum, Assaf Ben-David, Victoria Roper, Elaine Campbell

Faculty Scholarship

No abstract provided.

Federal Indian Law, Verónica C. Gonzales

Faculty Scholarship

Introduction to Federal Indian Law, broken down by years: 1492, 1787, 1828, 1887, 1934, 1953, 1968 to the present. Includes major cases and additional resources.

Es Fema El Problema? Hurricane Maria And The Slow Road To Recovery In Puerto Rico, Clifford J. Villa

Faculty Scholarship

A critical and sympathetic look at FEMA's work in post-Hurricane Maria Puerto Rico.

The New Utilities: Private Power, Social Infrastructure, And The Revival Of The Public Utility Concept, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

The History Of Misdemeanor Bail, Shima Baradaran Baughman

Faculty Scholarship

Bail is one of the most consequential decisions in criminal justice. The ability to secure bail often makes the difference between guilt and innocence, retaining employment and family obligations, and keeping a place to live. These implications affect those charged with felonies and this has been the focus for many years, but it affects even more so those charged with misdemeanors. A misdemeanor is theoretically a less serious crime with less serious consequences, but the effects on a defendant’s life are just as serious in the short term. There is a growing body of important empirical work that demonstrates the …

Comment In Support Of Proposal 2018-006 Immigration Status Of Bar Applicants (Rule 15-103(B)(7)), Verónica C. Gonzales, New Mexico Hispanic Bar Association, Board Of Directors

Faculty Scholarship

This letter to the New Mexico Supreme Court supports of Proposal 2018-006, proposing to amend Rule 15-103(B)(7) NMRA governing admission to the State Bar of New Mexico without regard to lawful presence for these reasons: 1) Increased admissions, particularly from underrepresented groups such as undocumented individuals, can improve access to justice; 2) Consideration of undocumented, but otherwise qualified, individuals for admission to the State Bar should be based on individual circumstances rather than fundamental misconceptions; 3) Equal access to the legal profession, and consequently equal access to justice, hinges on admission to the State Bar without regard to status.

Tyrannick Faith: Martyr Drama, The Heroic Mode, And Dryden’S Tyrannick Love, Geremy Carnes

Faculty Scholarship

Religious uniformity (as promulgated under the 1662 Act of Uniformity and later renewals of the act) was Restoration England’s chief strategy for addressing the nation’s deep religious divisions. The ultimate failure of the Stuart monarchy may be attributed in part to the failure of this strategy, which kept alive the wounds of the Civil War and amplified political dissent. Recognizing the dangers that uniformity posed to their reigns, the Stuart kings often pursued other strategies, including toleration (which they attempted to grant in 1660, 1672, and 1687, with increasingly disastrous results). As their poet laureate, John Dryden also explored the …

Federalism And The State Police Power: Why Immigration And Customs Enforcement Must Stay Away From State Courthouses, George Bach

Faculty Scholarship

The Trump Administration’s rhetoric and increased immigration enforcement actions have raised the level of fear in immigrant communities. The increased enforcement has included having United States Immigrant and Customs Enforcement (ICE) agents appear at state and local courthouses to detain undocumented immigrants when they arrive for court. This presence has had an adverse effect on domestic violence victims who are immigrants, as they fear encountering immigrations officials at the courthouse. In El Paso, for example, agents detained a woman who was bringing a case of domestic violence against her abuser. There were claims that ICE was tipped off about the …

Revenge Against Robots, Christina Mulligan

Faculty Scholarship

No abstract provided.

A Half-Century Of Scholarship On The Chinese Intellectual Property System, Peter K. Yu

Faculty Scholarship

The first modern Chinese intellectual property law was established in August 1982, offering protection to trademarks. Since then, China adopted the Patent Law in 1984, the Copyright Law in 1990 and the Anti-Unfair Competition Law in 1993. In December 2001, China became a member of the World Trade Organization, assuming obligations under the TRIPS Agreement. In the past decade, the country has also actively participated in the negotiation of bilateral, regional and plurilateral trade agreements, including most notably the Regional Comprehensive Economic Partnership.

Today, the Chinese intellectual property system has garnered considerable global policy and scholarly attention. To help develop …

The Thin Blue Line From Crime To Punishment, Alice Ristroph

Faculty Scholarship

No abstract provided.

Hls 200: A Latina's Story About The Bicentennial, Margaret E. Montoya

Faculty Scholarship

This essay sketches an arc from my childhood to being an Harvard Law School student to my academic work and professional commitments as a law professor and an alumna of Harvard Law School, working to increase access and success in the legal and medical professions for students and faculty of color. I compare aspects of legal and medical education using demographic data as well as some observations about how diverse faculty have transformed the two professions in their respective approaches to and rationales for diversifying the professions and examine the work being done by diverse faculty in law and health. …

Property Provisions Of The Joint Operating Agreement: An Update For The New 2015 Form Joa, Alex Ritchie, Gary B. Conine

Faculty Scholarship

The joint operating agreement (JOA) in the oil and gas industry helps coordinate joint operation efforts that facilitate exploration and unitization of tracts, and conservation of a depleting resource. Professor Conine’s 1988 article expanded, limited, and defined the property interests of the parties both inside and outside the contract area. This article is an update to those prior works with greater emphasis on the 1989 Form JOA, cases and developments since its publication, and the implications of the revisions to the JOA in the new 2015 Form JOA published by the American Association of Professional Landmen (AAPL).

The purposes of …

Batson's Appellate Appeal And Trial Tribulations, Jonathan Abel

Faculty Scholarship

Batson v. Kentucky is widely regarded as a failure. In the thirtyplus years since it was decided by the Supreme Court, the doctrine has been subjected to unrelenting criticism for its inability to stop the discriminatoy use of peremptory challenges. The scholarly literature is nearly unanimous: Batson is broken. But this Article approaches Batson from a different perspective, focusing on Batson's appellate virtues rather than its trial shortcomings. This change in focus reveals a number of ways in which the Batson doctrine provides opportunities on appeal that do not exist at trial. In short, this Article argues that appellate Batson …

Planning For Excellence: Insights From An International Review Of Regulators’ Strategic Plans, Adam M. Finkel, Daniel E. Walters, Angus Corbett

Faculty Scholarship

What constitutes regulatory excellence? Answering this question is an indispensable first step for any public regulatory agency that is measuring, striving towards, and, ultimately, achieving excellence. One useful way to answer this question would be to draw on the broader literature on regulatory design, enforcement, and management. But, perhaps a more authentic way would be to look at how regulators themselves define excellence. However, we actually know remarkably little about how the regulatory officials who are immersed in the task of regulation conceive of their own success.

In this Article, we investigate regulators’ definitions of regulatory excellence by drawing on …

Brief For Professors, Lamar, Archer & Cofrin, Llp V. R. Scott Appling As Amicus Curiae, Laura Spitz

Faculty Scholarship

This brief is concerned with the Petitioner’s misinterpretation of §523(a)(2) of the United States Bankruptcy Code, 11 U.S.C. §101, et seq., which wrongly maintains that a false oral statement describing a single asset gives rise to a non-dischargeable debt. This brief shows Congress understood that §523(a)(2) simply re-enacted statutory language already having a completely settled understanding that a statement about a single asset was a “statement respecting financial condition” which must be in writing in order to give rise to a nondischargeable debt. This brief also submits that even if, arguendo, Petitioner were correct that a statement respecting financial condition …

An Analytical Framework For The Steady State Impact Of Carbonate Compensation On Atmospheric Co2, Anne Willem Omta

Faculty Scholarship

The deep-ocean carbonate ion concentration impacts the fraction of the marine calcium carbonate production that is buried in sediments. This gives rise to the carbonate compensation feedback, which is thought to restore the deep-ocean carbonate ion concentration on multimillennial timescales. We formulate an analytical framework to investigate the impact of carbonate compensation under various changes in the carbon cycle relevant for anthropogenic change and glacial cycles. Using this framework, we show that carbonate compensation amplifies by 15–20% changes in atmospheric CO2resulting from a redistribution of carbon between the atmosphere and ocean (e.g., due to changes in temperature, salinity, or nutrient …

Brief For Southwest Indian Law Clinic As Amici Curiae, United States V. Smith, Verónica C. Gonzales, Barbara L. Creel

Faculty Scholarship

Prior cases, have assumed, without analysis that the ACA applies to Indian Country. This review of the ACA failed to consider and incorporate clearly established Indian law principles and foundational tenets of criminal law in the analysis of its applicability to Indians and Indian Country. Most importantly, the precedent and the Court below failed to understand the racial component involved in the analysis. These failures to understand the principles of Indian law and criminal law, have rendered haphazard and incoherent decisions.

Amici seek to bring clarity to the complex jurisdictional interplay and provide a practical framework for the proper analysis …

Using Empirical Studies As A Basis For Updating Intestacy Laws, Sergio Pareja

Faculty Scholarship

The principal goal of any intestacy statute is to determine the probable intent of individuals who die without a will. Professor Wright and Ms. Sterner analyze 493 wills that were probated in Escambia and Alachua Counties, Florida, in 2013. This blog post reviews their study as well as Wright and Sterner's final analysis. Pareja adds, new statutes, if properly considered, should pay attention to gender, race, and class differences that surfaced in the authors’ study

Differential Degradation Patterns Of Photovoltaic Backsheets At The Array Level, Yu Wang, Laura S. Bruckman

Faculty Scholarship

There are relatively few field studies on the degradation of non-fluoropolymer-based backsheets, and understanding their in-field behavior is critical for further development of such products. In this study, backsheet degradation of modules with one of these new types of backsheets (polyethylene naphthalate (PEN)-based) was documented at a four-year old utility-scale array located in Maryland (USA). Visual inspection, colorimetry, glossimetry, and Fourier-transform infrared spectroscopy (FTIR) revealed highly varied properties depending on module position within the array. Specifically, modules near the edge of the array and with higher mounting elevations underwent greater amounts of backsheet degradation, as indicated by yellowing and gloss-loss. …

Searchlight New Mexico Interviews Maryam Ahranjani On The Prisonization Of America's Public Schools, Maryam Ahranjani, Sara Solovitch

Faculty Scholarship

Maryam Ahranjani writes about personal experiences with mass school shootings in "The Prisonization of America's Public Schools," published in October 2017 in Hofstra Law Review. The article takes a critical stance against what Ahranjani terms the growing "criminal infrastructure" metal detectors, surveillance cameras and police officers within our nation's schools. Searchlight New Mexico asked Ahranjani what kind of national response makes sense in the wake of the Parkland mass shooting.

Risk And Anxiety: A Theory Of Data Breach Harms, Daniel Solove, Danielle K. Citron

Faculty Scholarship

In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus …

The Network For Justice: Pursuing A Latinx Civil Rights Agenda, Luz E. Herrera, Pilar M. Hernández-Escontrías

Faculty Scholarship

This article explores the need to develop a Latinx-focused network that advances law and policy. The Network for Justice is necessary to build upon the existing infrastructure in the legal sector to support the rapidly changing demographic profile of the United States. Latinxs are no longer a small or regionally concentrated population and cannot be discounted as a foreign population. Latinxs reside in every state in our nation and, in some communities, comprise a majority of the population. The goal of the Network for Justice is to facilitate and support local and statewide efforts to connect community advocates to formal …

Invisible Adjudication In The U.S. Courts Of Appeals, Michael Kagan, Rebecca Gill, Fatma Marouf

Faculty Scholarship

Non-precedent decisions are the norm in federal appellate courts, and are seen by judges as a practical necessity given the size of their dockets. Yet the system has always been plagued by doubts. If only some decisions are designated to be precedents, questions arise about whether courts might be acting arbitrarily in other cases. Such doubts have been overcome in part because nominally unpublished decisions are available through standard legal research databases. This creates the appearance of transparency, mitigating concerns that courts may be acting arbitrarily. But what if this appearance is an illusion? This Article reports empirical data drawn …

Adr And Access To Justice: Current Perspectives, Ellen E. Deason, Michael Z. Green, Donna Shestowsky, Rory Van Loo, Ellen Waldman

Faculty Scholarship

Extract:

I want to give you a roadmap for our program. We will not be delivering individual papers but, rather, hope to have a discussion. We are planning to spend thirty minutes on introductions for the purpose of allowing you to identify the source of each panelist's perspectives. We will then use an hour, more or less, for a discussion among the panel. That will leave fifteen minutes for audience questions and participation. Because we will be publishing an edited transcript, we ask that you hold your questions until the end.

Access to justice is a broad topic, and we …

The Drug Debate: Data Exclusivity Is The New Way To Delay Generics, Srividhya Ragavan

Faculty Scholarship

The article discusses the protection regime for clinical trial data internationally and outlines the applicable protection regime. In doing so, this article outlines how the data exclusivity regime can operate in parallel with the patent regime to add a layer of protection for the data. Such protection operates at a regulatory level to delay the entry of generic medications. Internationally, the data exclusivity regime, which has become an important contemporary tool in trade negotiations with poorer nations, works to detrimentally affect access to medication