Digital Commons Network^™

Brief For Professors As Amicus Curiae, Husky International Electronics Inc. V. Daniel Lee Ritz Jr., Laura Spitz

Faculty Scholarship

The amici submit that asking whether a misrepresentation is an essential element of an “actual fraud” under section 523(a)(2)(A) disguises Petitioner’s false presupposition, namely, that a debt arising from a transfer made to hinder, delay or defraud creditors is capable of being within the scope of section 523(a)(2)(A)’s “actual fraud” provision and thus excepted from a discharge later received by a chapter 7 debtor under section 727(a). That false presupposition leads to an unnecessary inquiry whether a misrepresentation is required for a fraudulent transfer to constitute an “actual fraud” under section 523(a)(2)(A). The amici would avoid that entire inquiry. They …

Economic Espionage As Reality Or Rhetoric: Equating Trade Secrecy With National Security, Rochelle Cooper Dreyfuss, Orly Lobel

Faculty Scholarship

In the last few years, the Economic Espionage Act (EEA), a 1996 statute that criminalizes trade secrecy misappropriation, was amended twice, once to increase the penalties and once to expand the definition of trade secrets and the types of behaviors that are illegal. Recent developments also reveal a pattern of expansion in investigation, indictments, and convictions under the EEA as well as the devotion of large resources by the FBI and other agencies to warn private industry against the global threats of trade secret theft. At the international level, the United States government has been advocating enhanced levels of trade …

Adsorption And Unfolding Of A Single Protein Triggers Nanoparticle Aggregation, Lydia Kisley

Faculty Scholarship

The response of living systems to nanoparticles is thought to depend on the protein corona, which forms shortly after exposure to physiological fluids and which is linked to a wide array of pathophysiologies. A mechanistic understanding of the dynamic interaction between proteins and nanoparticles and thus the biological fate of nanoparticles and associated proteins is, however, often missing mainly due to the inadequacies in current ensemble experimental approaches. Through the application of a variety of single molecule and single particle spectroscopic techniques in combination with ensemble level characterization tools, we identified different interaction pathways between gold nanorods and bovine serum …

Poor Drug Adherence And Lack Of Awareness Of Hypertension Among Hypertensive Stroke Patients In Kampala, Uganda: A Cross Sectional Study Neurology, Martha Sajatovic, Cathy Sila, Michael Degeorgia

Faculty Scholarship

Background: Raised blood pressure (BP) remains an important risk factor for cardiovascular diseases such as stroke. Adherence to therapeutic recommendations especially antihypertensive drugs is important in BP control. The aim of the study was to assess the stroke risk factors and levels of adherence among hypertensive patients with stroke in Kampala Uganda. Methods: In a cross-sectional study we describe 112 hypertensive subjects with stroke from two Kampala city hospitals. A standardized pre-tested questionnaire was used to collect medical history, clinical details, radiological findings and laboratory data. Results: A total of 112 hypertensive subjects with stroke were enrolled between May 2013 …

How Criminal Law Can Help Save The Environment, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

The New Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Patented Electric Guitar Pick-Ups And The Creation Of Modern Music Genres, Sean O'Connor

Faculty Scholarship

No abstract provided.

The Patent Attorney In Popular Culture, Robert Jarvis

Faculty Scholarship

Popular culture is filled with lawyers.

Promoting Mental Health And Preventing Mental Illness In General Practice, Kurt C. Stange

Faculty Scholarship

This paper calls for the routine integration of mental health promotion and prevention into UK General Practice in order to reduce the burden of mental and physical disorders and the ensuing pressure on General Practice. The proposals & the resulting document (https://ethicscharity. files.wordpress.com/2015/09/rcgp_keymsg_150925_v5.pdf) arise from an expert ‘Think Tank’ convened by the London Journal of Primary Care, Educational Trust for Health Improvement through Cognitive Strategies (ETHICS Foundation) and the Royal College of General Practitioners. It makes 12 recommendations for General Practice: (1) Mental health promotion and prevention are too important to wait. (2) Work with your community to map risk …

Non-Contentious Jurisdiction And Consent Decrees, Michael T. Morley

Faculty Scholarship

No abstract provided.

Fair Use And The New Transformative, Brian Sites

Faculty Scholarship

No abstract provided.

From Simple Statements To Heartbreaking Photographs And Videos: An Interdisciplinary Examination Of Victim Impact Evidence In Criminal Cases, Mitchell J. Frank

Faculty Scholarship

No abstract provided.

Closing A Parol Evidence Rule Loophole: The Consideration Exception And The Preexisting Duty Rule, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

When Lightning Strikes: Hadley V. Baxendale's Probability Standard Applied To Long-Shot Contracts, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Reasonable Standards For Contract Interpretations Under The Cisg, Donald J. Smythe

Faculty Scholarship

The United Nations ("UN") Convention on Contracts for the International Sale of Good ("CISG") offers the promise of harmonizing international sales law and facilitating international trade and global commerce. But there is a "homeward trend bias" that may encourage domestic courts to construe the gaps in the CISG broadly and fill them with non-uniform domestic legal rules. Questions about contract interpretation under the CISG raise the same concerns about a homeward trend bias as questions about the interpretation of express CISG provisions. The CISG has express provisions governing contract interpretation but their application may not provide an unambiguous interpretation. This …

St. Louis As Historical Hub, Jeffrey Smith

Faculty Scholarship

In May 2011, the Missouri legislature adjourned without passing an economic stimulus bill that included an “Aerotropolis” at Lambert Airport in St. Louis. The idea behind it was to create a hub for international trade, particularly with China, through a series of tax credits for those forwarding goods to foreign destinations and incentives for those building the facilities to support that commerce.1 On the surface, it seemed like a bold innovation to connect Missouri, located in the center of the United States, with the global trade far from its borders by envisioning St. Louis as a “gateway zone” for goods. …

Constructions Of Arbitration’S Informalism: Autonomy, Efficiency, And Justice, Hiro Aragaki

Faculty Scholarship

No abstract provided.

Regional Federal Administration, Dave Owen

Faculty Scholarship

No abstract provided.

Bar, Bench, And Civic Culture, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

The Meming Of Substantive Due Process, Jamal Greene

Faculty Scholarship

Substantive due process is notoriously regarded as a textual contradiction, but it is in fact redundant. The word "due" cannot be honored except by inquiring into the relationship between the nature and scope of the deprived interest and the process-whether judicial, administrative, or legislative-that attended the deprivation. The treatment of substantive due process as an oxymoron is what this Essay calls a constitutional meme, an idea that replicates through imitation within the constitutional culture rather than (necessarily) through logical persuasion. We might even call the idea a "precedent," in the nature of other legal propositions within a common law system. …

A Nonoriginalism For Originalists, Jamal Greene

Faculty Scholarship

Originalism is an ideology, not a practice. It is a brand, an affiliation, a set of background principles, an often unstated set of restorative commitments. As James Fleming says in his book, Fidelity to Our Imperfect Constitution, originalism is an "ism." As an "ism," Fleming writes, originalism did not exist before the 1970s: "Constitutional interpretation in light of original understanding did exist, but original understanding was seen as merely one source of constitutional decision-making among several-not as a general theory of constitutional interpretation, much less the exclusive legitimate theory."

This brief Comment on Fleming's book takes the practice Fleming identifies---"constitutional …

The Common Law Of Contract And The Default Rule Project, Alan Schwartz, Robert E. Scott

Faculty Scholarship

The common law developed over centuries a small set of default rules that courts have used to fill gaps in otherwise incomplete contracts between commercial parties. These rules can be applied almost independently of context: the market damages rule, for example, requires a court only to know the difference between market and contract prices. When parties in various sectors of the economy write sales contracts but leave terms blank, courts fill in the blanks with their own rules. As a consequence, a judicial rule that many parties accept must be "transcontextual": parties in varied commercial contexts accept the courts' rule …

Value And The Weight Of Practical Reasons, Joseph Raz

Faculty Scholarship

Assuming that the value of options (actions, activities, or omissions) constitutes the proximate reason for pursuing them, this chapter considers whether we have reason to promote or maximise value. A proper argument would require establishing a negative, but raising doubts is less demanding — explaining some aspects of the relation between values and reasons that enable us to dispense with the doubtful thesis by illustrating alternative relations between values and reasons. Theses that value should be promoted are accompanied by a way of determining the strength of reasons (the stronger reason promotes more value). This chapter develops theoretical doubts about …

After The Golden Victory: Still Lost At Sea, Victor P. Goldberg

Faculty Scholarship

In The Golden Victory the House of Lords held that when determining damages for a repudiatory breach, in a conflict between the compensatory principle and finality, the former trumped. The decision was recently ratified by the Supreme Court in Bunge SA v. Nidera BV. The claim in this paper is that this was a mistake; properly conceived, there is no conflict. The contract should be viewed as an asset and compensation would entail determining the decline in value of that asset at the time of the breach. The value of the contract at that moment would reflect the possible effects …

Gateway-Schmateway: An Exchange Between George Bermann And Alan Rau, Alan Scott Rau, George Bermann

Faculty Scholarship

What role do national courts play in international arbitration? Is international arbitration an “autonomous dispute resolution process, governed primarily by non-national rules and accepted international commercial rules and practices” where the influence of national courts is merely secondary? Or, in light of the fact that “international arbitration always operates in the shadow of national courts,” is it not more accurate to say that national courts and international arbitration act in partnership? On April 27, 2015, the Pepperdine Law Review convened a group of distinguished authorities from international practice and academia to discuss these and other related issues for a symposium …

The Gang That Couldn't Shoot Straight: The Not So Magnificent Seven Of The Wto Appellate Body, Petros C. Mavroidis

Faculty Scholarship

The WTO Appellate Body (AB) has produced a volume-wise important body of case law, which is often difficult to penetrate, never mind classify. Howse (2016) has attempted a very lucid taxonomy of the case law using the standard of review as benchmark for it. His conclusion is that the AB is quite cautious when facing nondiscriminatory measures, especially measures relating to the protection of human life and health, while it has adopted a more intrusive (into national sovereignty) standard when dealing with trade measures (like antidumping), which are by definition discriminatory as they concern imports only. In my response, I …

Constitutional Rhetoric, Jamal Greene

Faculty Scholarship

For close to a century, students of judicial behavior have suggested that what judges think is not altogether the same as what they say. Within the legal academy, this claim has long been associated with legal realists who have argued that the formal legal rules explicated in judicial opinions are at least partly epiphenomenal, masking the influence that the personal characteristics and dispositions of adjudicators exercise over legal outcomes. Political scientists have argued, variously, that such outcomes are determined by ideology, social background, or political, professional, or other institutional constraints.

The notion that at least some “extralegal” factors influence judicial …

Does International Human Rights Law In African Courts Make A Difference, Daniel Abebe

Faculty Scholarship

Is international human rights law effective in Africa? Extant studies assess effectiveness fry focusing on the potential of individual African regional and sub-regional courts to promote human rights and influence domestic actors. However, few if any studies actually evaluate the entire human rights jurisprudence of the five major African courts with jurisdiction to hear human rights claims. In this Article, I examine the entire human rights caseload of these courts from 1988 through 2015 along four important dimensions of effectiveness: (1) court structure; (2) volume of cases; (3) compliance rate; and (4) funding and independence. The Article finds that African …

Coming Into The Anthropocene, Jedediah S. Purdy

Faculty Scholarship

Cannon’s debut book, Environment in the Balance, sets itself an ambitious task: to overcome this division by showing that environmental law, much as it may appear dry and dull, is deeply infused with conflicts over values. Cannon’s project is to reveal the green ghost in the gray machine, the soul of disagreement that lends shape to arguments that may otherwise seem aridly technical. He does this by carefully reading thirty major Supreme Court decisions in environmental law and teasing out the differences in worldview that animate the Justices’ reasoning – divisions that are not simply over abstract legal questions, …

Chevron Bias, Philip A. Hamburger

Faculty Scholarship

This Article takes a fresh approach to Chevron deference. Chevron requires judges to defer to agency interpretations of statutes and justifies this on a theory of statutory authorization for agencies. This Article, however, points to a pair of constitutional questions about the role of judges – questions that have not yet been adequately asked, let alone answered.

One question concerns independent judgment. Judges have a constitutional office or duty of independent judgment, under which they must exercise their own independent judgment about what the law is. Accordingly, when they defer to agency interpretations of the law, it must be asked …