Digital Commons Network^™

A Reexamination And Reformulation Of The Habendum Clause Paying Quantities Standard Under Oil And Gas Leases, Alex Ritchie

Faculty Scholarship

The Koontz standard as originally stated by the Texas Supreme Court has lost its way. It has evolved into a two-prong test that wrongly focuses on past performance based on arbitrary and uncertain accounting calculations rather than future projections. As occurred in the 1980s, a price downturn provides motivation to reexamine provisions such as the two prong paying quantities standard in the habendum clause of the oil and gas lease. This article examines the habendum clause and the evolution of the paying quantities standard which will determine whether a lease continues in effect or terminates automatically. This article also seeks …

New Strategies For Reducing Transportation Emissions And Preparing For Climate Impacts, Gabriel Pacyniak, Kathryn Zyla, Vicki Arroyo

Faculty Scholarship

The transportation sector is becoming the largest source of greenhouse gas ("GHG") emissions in the United States. The Obama Administration put in place federal vehicle and fuel standards that are significantly reducing emissions. However, these regulations will be insufficient to put the United States on track to achieve needed reductions needed long-term. This is especially true if the 2025 standards announced by the Obama Administration are rolled back by the new Trump Administration. Because current federal standards alone will not attain ambitious climate goals and may be rolled back, state and local activity is essential to make progress towards meeting …

The Right To An Independent Judiciary And The Avoidance Of Constitutional Conflict: The Burger Court’S Flawed Reasoning In Chandler V. Judicial Council Of The Tenth Circuit And Its Unfortunate Legacy, Joshua E. Kastenberg

Faculty Scholarship

In 1970, the United States Supreme Court issued Chandler v. Judicial Council of the Tenth Circuit in which five Justices determined that the federal courts of appeals possessed an administrative authority to manage the district court judges within an appellate court’s respective circuit. The decision enabled the Tenth Circuit to decide the fitness of a judge to preside over cases without a formal motion from a litigant. Although Congress had enabled the courts of appeals to oversee basic judicial functions (such as temporarily assigning district court judges to overworked districts), Congress did not intend to grant the power to remove …

Right Scholarship And The Goddesses Of Commercial Law, Nathalie Martin

Faculty Scholarship

This Essay combines many topics about which I am deeply passionate, including religion, sex, yoga philosophy, and the influential works of two women I admire greatly. Hopefully, this brief Essay does not try to do too much at the expense of all of these topics. In Part I of this Essay, I describe the concept of right scholarship through various religious traditions and yoga philosophy’s principles for living known as the yamas. I then describe, through the works of young scholar Shari Motro, scholarship that has gone wrong. Finally, through the psychological concept of flow, I describe how we know …

Crossfertilizing Isds With Trips, Peter K. Yu

Faculty Scholarship

In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.

Written for a symposium on investor-state arbitration, this article focuses on the growing use …

Making Meaning: Towards A Narrative Theory Of Statutory Interpretation And Judicial Justification, Randy D. Gordon

Faculty Scholarship

The act of judging is complex involving finding facts, interpreting law, and then deciding a particular dispute. But these are not discreet functions: they bleed into one another and are thus interdependent. This article aims to reveal-at least in part-how judges approach this process. To do so, I look at three sets of civil RICO cases that align and diverge from civil antitrust precedents. I then posit that the judges in these cases base their decisions on assumptions about RICO's purpose. These assumptions, though often tacit and therefore not subject to direct observation, are nonetheless sometimes revealed when a judge …

The Strange Case Of Dr. Jekyll's Will: A Tale Of Testamentary Capacity, Stephen R. Alton

Faculty Scholarship

Robert Louis Stevenson’s classic novella, The Strange Case of Dr. Jekyll and Mr. Hyde, published in 1886, is the well-known tale of a respected scientist (Dr. Henry Jekyll) who transforms himself into an evil-doer (Mr. Edward Hyde). While the work raises issues of tort and criminal liability, this article analyzes the legal issues presented by one particular and crucial plot device that Stevenson employs—the last will of Dr. Jekyll. This will so obsesses Jekyll’s friend and solicitor, Gabriel John Utterson (through whose eyes the story unfolds), that he is impelled to seek the truth behind his friend’s relationship to Hyde. …

Historical Gloss, Constitutional Conventions, And The Judicial Separation Of Powers, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

Scholars have increasingly focused on the relevance of post-Founding historical practice to discern the separation of powers between Congress and the executive branch, and the Supreme Court has recently endorsed the relevance of such practice. Much less attention has been paid, however, to the relevance of historical practice to discerning the separation of powers between the political branches and the federal judiciary—what this Article calls the “judicial separation of powers.” As the Article explains, there are two ways that historical practice might be relevant to the judicial separation of powers. First, such practice might be invoked as an appeal to …

Corpus Linguistics As A Tool In Legal Interpretation, Lawrence Solan, Tammy Gales

Faculty Scholarship

No abstract provided.

Robustness, Flexibility, And Sensitivity In A Multifunctional Motor Control Model, David N. Lyttle, Jeffrey P. Gill, Peter J. Thomas, Hillel J. Chiel

Faculty Scholarship

Motor systems must adapt to perturbations and changing conditions both within and outside the body. We refer to the ability of a system to maintain performance despite perturbations as “robustness,” and the ability of a system to deploy alternative strategies that improve fitness as “flexibility.” Different classes of pattern-generating circuits yield dynamics with differential sensitivities to perturbations and parameter variation. Depending on the task and the type of perturbation, high sensitivity can either facilitate or hinder robustness and flexibility. Here we explore the role of multiple coexisting oscillatory modes and sensory feedback in allowing multiphasic motor pattern generation to be …

The Interplay Between Plasticity And Evolution In Response To Human-Induced Environmental Change, Sarah E. Diamond, Ryan A. Martin

Faculty Scholarship

Some populations will cope with human-induced environmental change, and others will undergo extirpation; understanding the mechanisms that underlie these responses is key to forecasting responses to environmental change. In cases where organisms cannot disperse to track suitable habitats, plastic and evolved responses to environmental change will determine whether populations persist or perish. However, the majority of studies consider plasticity and evolution in isolation when in fact plasticity can shape evolution and plasticity itself can evolve. In particular, whether cryptic genetic variation exposed by environmental novelty can facilitate adaptive evolution has been a source of controversy and debate in the literature …

Bacterial Colonization And Antibiotic Resistance In A Prospective Cohort Of Newborn Infants During The First Year Of Life, Sharon B. Meropol, Kurt C. Stange, Michael R. Jacobs, Judith K. Weiss, Saralee Bajaksouzian, Robert A. Bonomo

Faculty Scholarship

Background. Infants are virtually sterile at birth and frequently use antibiotics; our objective was to (1) characterize the longitudinal colonization with bacterial pathogens and associated antibiotic resistance in a cohort of community-dwelling infants in Northeast Ohio and (2) describe longitudinal concurrent antibiotic and daycare exposures. Methods. For 35 newborns, nasopharyngeal swabs were cultured for Streptococcus pneumoniae, anterior nasal for Staphylococcus aureus, and perirectal for extended-spectrum beta-lactamase (ESBL)-producing Gram-negative enteric bacteria, at 3-month intervals for 12 months. Infant and household antibiotics and daycare exposure were assessed longitudinally. Results. Thirteen infants received perinatal or nursery antibiotics. By 3 months, at least 22 …

The Candidate Cluster And Protocluster Catalog (Ccpc). Ii. Spectroscopically Identified Structures Spanning 2 < Z < 6.6, J. R. Franck, Stacy S. Mcgaugh

Faculty Scholarship

The Candidate Cluster and Protocluster Catalog (CCPC) is a list of objects at redshifts z > 2 composed of galaxies with spectroscopically confirmed redshifts that are coincident on the sky and in redshift. These protoclusters are identified by searching for groups in volumes corresponding to the expected size of the most massive protoclusters at these redshifts. In CCPC1 we identified 43 candidate protoclusters among 14,000 galaxies between 2.74 < z < 3.71. Here we expand our search to more than 40,000 galaxies with spectroscopic redshifts z > 2.00, resulting in an additional 173 candidate structures. The most significant of these are 36 protoclusters with overdensities δ gal > 7. We also identify three large proto-supercluster candidates containing multiple protoclusters at z …

Juvenile Competency And Pretrial Due Process: A Call For Greater Protections In Massachusetts For Juveniles Residing In Procedural Purgatory, Mark Rapisarda, Wendy J. Kaplan

Faculty Scholarship

While juvenile courts continue to balance and reevaluate the dual goals of community safety and rehabilitation of youth, juveniles who are not competent to stand trial have been left without sufficient procedural protections. This paper examines Massachusetts’ approach to juvenile competency, due process, and pretrial procedure, within a national context. The inadequacies of the Massachusetts juvenile competency laws are not unique. Currently there are nineteen states that either entirely lack juvenile-specific competency legislation or merely incorporate inapposite adult criminal statutes and standards into the juvenile context—making it difficult or impossible for those juvenile courts to dismiss or divert a delinquency …

Sroi In The Pay For Success Context: Are They At Odds?, Robert L. Fischer, Francisca García Cobián Richter

Faculty Scholarship

The Pay For Success (PFS) and Social Impact Bond (SIB) movements to date have focused heavily on shorter-term outcomes that can be monetized and show clear savings to government entities. In part, this focus derives from the need to specify contract payments based on a narrow set of well measured outcomes (e.g., avoided days in jail and foster care, decreased use of behavioral health services). Meanwhile efforts to measure the social return on investment (SROI) of interventions have sought to expand the view of relevant outcomes to include domains that lend themselves less clearly to monetization. This paper explores the …

Prevalence And Incidence Of Neurological Disorders Among Adult Ugandans In Rural And Urban Mukono District; A Cross-Sectional Study, Michael Devereaux, Anthony Furlan, Martha Sajatovic

Faculty Scholarship

Background: The burden of neurological diseases is increasing in developing countries. However, there is a prominent scarcity of literature on the incidence of neurological diseases in sub-Saharan Africa. This study was therefore undertaken to determine the prevalence and incidence of neurological diseases in this setting to serve as a baseline for planning and care for neurological disorders in Uganda. Methods: The study was conducted within rural and urban Mukono district, east of Kampala city of Uganda, central region. Over a period of six months, a cross sectional survey was conducted and screening was performed using a standardized questionnaire. All subjects …

Brief Of Amici Curiae Naacp Legal Defense & Educational Fund, Inc.; Legal Aid Society — Employment Law Center; Professor D. Wendy Greene; And Professor Angela Onwuachi-Willig In Support Of Plaintiff/Appellant's Petition For Rehearing En Banc, Angela Onwuachi-Willig, D. Wendy Greene

Faculty Scholarship

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a nonprofit legal organization that has fought to achieve racial justice and ensure that America fulfills its promise of equality for all. Since 1964, LDF has worked to enforce Title VII of the Civil Rights Act (“Title VII”) by representing individual plaintiffs and plaintiff classes in challenges to discriminatory employment practices engaged in by employers in such cases as Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975); and Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971). …

Restoring Hope For Heirs Property Owners: The Uniform Partition Of Heirs Property Act, Thomas W. Mitchell

Faculty Scholarship

For well over 125 years, many Americans have lost their tenancy-in-common property involuntarily in various legal proceedings. For example, courts throughout this country have often resolved partition actions, a legal proceeding in which a tenant in common seeks to exit a tenancy in common, by ordering a forced, partition sale of the property even when these courts could have ordered a remedy that would have preserved the property rights of the tenants in common. Though partition sales have negatively impacted a broad cross section of people in this country, the sales have particularly impacted poor and disadvantaged African-Americans, Hispanics, white …

Cnn Money Interviews Serge Martinez, My Chipotle Nightmare, Serge A. Martinez

Faculty Scholarship

Article on low-wage quoting professor Serge Martinez on low-wage workers.

Detrending Changes The Temporal Dynamics Of A Semantic Fluency Task, Steven Lenio, Frances M. Lissemore, Martha Sajatovic, Kathleen A. Smyth, Curtis Tatsuoka, Wojbor A. Woyczynski, Alan J. Lerner

Faculty Scholarship

Objective: To study the dynamics of clustering semantic fluency responses and switching between clusters. Methods: We conducted a cross-sectional study of participants (N = 60) in a study of patient reported outcomes who were given the Saint Louis University Mental Status test. Sixty-second animal naming tests were scored for the timing of responses as well as the clustering of responses into semantic categories. Time scores were detrended to correct for exponential exhaustion and normalize the time scale across individuals. Results: Grouped by number of responses given, low performers (LP; Carter et al., 2012) switched between clusters fewer times than medium …

Brief For Professors, Czyzewski V. Jevic Holding Corp. As Amicus Curiae, Laura Spitz

Faculty Scholarship

We urge that the decision of the Circuit Court should be affirmed because Petitioners were not injured or prejudiced by the settlement--they are not worse off than if the settlement had been rejected. Aside from that, the remaining issue is whether the bankruptcy court had discretion to approve the instant settlement even though it did not strictly follow the priority rule. We believe that the courts correctly decided not to apply the absolute priority rule under the circumstances of this case. We urge that the Rule need not be followed by a bankruptcy court in approving a settlement. Alternatively, if …

The Origin Of Efficient Triplet State Population In Sulfur-Substituted Nucleobases, Marvin Pollum, Nicholas Dunn, Carlos E. Crespo-Hernández

Faculty Scholarship

Elucidating the photophysical mechanisms in sulfur-substituted nucleobases (thiobases) is essential for designing prospective drugs for photo-and chemotherapeutic applications. Although it has long been established that the phototherapeutic activity of thiobases is intimately linked to efficient intersystem crossing into reactive triplet states, the molecular factors underlying this efficiency are poorly understood. Herein we combine femtosecond transient absorption experiments with quantum chemistry and nonadiabatic dynamics simulations to investigate 2-thiocytosine as a necessary step to unravel the electronic and structural elements that lead to ultrafast and near-unity triplet-state population in thiobases in general. We show that different parts of the potential energy surfaces …

Readings On L2 Reading: Publications In Other Venues 2015–2016, Shenika Harris, Carolina Bernales, Gabriela Romero-Ghiretti, Haley Dolosic, Huan Liu, Tracy Van Bishop

Faculty Scholarship

This feature offers an archive of articles published in other venues during the past year and serves as a valuable tool to readers of Reading in a Foreign Language (RFL). It treats any topic within the scope of RFL and second language reading. The articles are listed in alphabetical order, each with a complete reference as well as a brief summary. The editors of this feature attempt to include all related articles that appear in other venues. However, undoubtedly, this list is not exhaustive.

Sales Suppression: The International Dimension, Richard Thompson Ainsworth

Faculty Scholarship

Sales transaction taxes are highly susceptible to technology fraud, which is an inevitable result of today’s widespread reliance on technology to document taxed transactions. Technology can be (and is) manipulated to defeat the collection of these taxes. Both the U.S. retail sales tax (RST) and the European value added tax (VAT) are vulnerable to technology-based fraud. This Article concerns sales suppression — intentionally not recording sales — in the RST, and at the final stage of the VAT, the retail stage, when tax is collected from final consumers.

The modern electronic cash register (ECR)/point of sale (POS) system is vulnerable …

Body Of Preemption: Health Law Traditions And The Presumption Against Preemption, Elizabeth Mccuskey

Faculty Scholarship

Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress's intent by applying substantive canons of statutory interpretation, including presumptions against preemption.

This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the "tradition presumption." Unlike the general presumption against preemption on federalism grounds, courts base this …

The Quest For A User-Friendly Copyright Regime In Hong Kong, Peter K. Yu

Faculty Scholarship

The quest for a user-friendly copyright regime began a decade ago when the Hong Kong government launched a public consultation on "Copyright Protection in the Digital Environment" in December 2006. Although this consultation initially sought to address Internet-related challenges, such as those caused by peer-to-peer file-sharing technology, the reform effort quickly evolved into a more comprehensive digital upgrade of the Hong Kong copyright regime.

A decade later, however, Hong Kong still has not yet amended its Copyright Ordinance. Thus far, three consultation exercises have been launched in December 2006, April 2008 and July 2013. Two bills have also been introduced …

Why Are We Doing This? Cognitive Science And Nondirective Supervision In Clinical Teaching, Serge A. Martinez

Faculty Scholarship

In this article, I examine the idea of nondirective supervision in clinical education in theory and practice in light of recent findings in educational research. In Part I, I examine the theory and practice of nondirective supervision in clinical education. In Part II, I explore the history of nondirective supervisory pedagogy and how it may have developed in clinical education. In Part III, I look at the latest evidence and theories from educational research, where a large body of empirical evidence supports the value of explicit guidance for novice learners in certain settings. Finally, in Part IV, I apply this …

Correlative Obligation In Patent Law: The Role Of Public Good In Defining The Limits Of Patent Exclusivity, Srividhya Ragavan

Faculty Scholarship

In light of the recent outrageous price-spiking of pharmaceuticals, this Article questions the underlying justifications for exclusive rights conferred by the grant of a patent. Traditionally, patents are defined as property rights granted to encourage desirable innovation. This definition is a misfit as treating patents as property rights does a poor job of defining the limits of the patent rights as well as the public benefit goals of the system. This misfit gradually caused an imbalance in the rights versus duties construct within patent law. After a thorough analysis of the historical and philosophical perspectives of patent exclusivity, this Article …

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 …

Consumer Preferences For Performances Defaults, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These "majoritarian" …