Digital Commons Network^™

Segregating Workplaces By Religion, Dawinder S. Sidhu

Faculty Scholarship

Many employers use dress codes to keep visibly religious employees out of sight. Now, the Supreme Court has a chance to end the practice.

Obama's Looming Legal Trap In Afghanistan, Dawinder S. Sidhu

Faculty Scholarship

The president may create another Guantanamo -- in Afghanistan. Here's why it could backfire on him in a big way.

How The Über-Wealthy Benefit From Investing Outside Retirement Plans (And How You Can Too), Sergio Pareja

Faculty Scholarship

Current law incentivizes the use of traditional retirement plans, but those plans may not actually produce the best long-term tax situation for the taxpayer. The stepped-up basis at death does not apply to what is known as “income in respect of a decedent” (IRD). Generally, IRD is income that cannot be assigned from one person to another for income tax purposes. This includes pre-tax income set aside in a traditional employer-sponsored retirement plan, such as a 401(k) plan, as well as contributions to a deductible individual retirement account (IRA). Thus, stock held within a traditional employer-sponsored retirement plan or a …

Virtuous Billing, Randy D. Gordon, Nancy B. Rapoport

Faculty Scholarship

Aristotle tells us, in his Nicomachean Ethics, that we become ethical by building good habits and we become unethical by building bad habits: “excellence of character results from habit, whence it has acquired its name (êthikê) by a slight modification of the word ethos (habit).” Excellence of character comes from following the right habits. Thinking of ethics as habit-forming may sound unusual to the modern mind, but not to Aristotle or the medieval thinkers who grew up in his long shadow. “Habit” in Greek is “ethos,” from which we get our modern word, “ethical.” In Latin, habits are moralis, which …

Openness In International Adoption, Malinda L. Seymore

Faculty Scholarship

After a long history of secrecy in domestic adoption in the United States, there is a robust trend toward openness. That is, however, not the case with international adoption. The recent growth in international adoption has been spurred, at least in part, by the desire of adoptive parents to return to closed, confidential adoptions where the identity of the birth mother is secret and there is no ongoing contact with her. There is, however, an emergent interest in increased openness in international adoption, spurred by the success of domestic open adoptions, health concerns when an adoptee's genetic history is important, …

Earned Income Tax Credit Portability: Respecting The Autonomy Of American Families, Mary Leto Pareja

Faculty Scholarship

The Earned Income Tax Credit (EITC) was a key component of the welfare reform movement that began in the 1970s and expanded in the 1990s. Politicians and the public saw the EITC as a helping hand to working families -- a way to make work pay.' The EITC today is the single largest federal anti-poverty program in the United States. Although the EITC clearly is targeted at families with children, it is not optimally structured to improve child welfare. The current rules limit EITC eligibility to a taxpayer who lives with a child more than six months of the year, …

Trade And History: The Case Of Eu-Algeria Relations, Daniela Caruso, Joanna Geneve

Faculty Scholarship

The recent centennial of Albert Camus’s birth has had little resonance in EU legal scholarship. Yet Camus’s work is a natural entry point into the EU’s trade relations with the global south, and Algeria’s case is a particularly salient one, given the oft-ignored fact that for five years the Algerian nation was a part of the European Economic Community. The onset of a free trade regime between the EU and the former colonies or territories of its member states is often touted as the culminating point in a line of constant progress, from dependency to autonomy and from asymmetry to …

Brief For National Association Of Criminal Defense Lawyers As Amici Curiae, Fortino Alvarez V. Randy Tracy, Barbara L. Creel, Verónica C. Gonzales

Faculty Scholarship

Amici’s brief is relevant because it squarely addresses the central issue of whether a tribal exhaustion rule ought to apply in habeas proceedings filed under 25 U.S.C. § 1303, and if so, what standards and exceptions apply to allow federal review of a tribal order of detention. Amici offer substantial experience in the field of federal habeas corpus, and criminal law in Indian country.

The brief is desirable because it will provide the Court the benefit of the research, legal analysis and experience amici bring to this important issue. The NACDL includes a Native American Justice Committee that is concerned …

Judging Opportunity Lost: Assessing The Viability Of Race-Based Affirmative Action After Fisher V. University Of Texas, Austin, Mario L. Barnes, Erwin Chemerinsky, Angela Onwuachi-Willig

Faculty Scholarship

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to …

Incorporating Legal Claims, Maya Steinitz

Faculty Scholarship

Recent years have seen an explosion of interest in commercial litigation funding. Whereas the judicial, legislative, and scholarly treatment of litigation finance has regarded litigation finance first and foremost as a form of champerty and sought to regulate it through rules of legal professional responsibility (hereinafter, the "legal ethics paradigm"), this Article suggests that the problems created by litigation finance are all facets of the classic problems created by "the separation of ownership and control" that have been a focus of business law since the advent of the corporate form. Therefore, an "incorporation paradigm," offered here, is more appropriate. "Incorporating …

Holt V. Hobbs: Does A Muslim Prisoner’S Case Foreshadow The End Of Affirmative Action?, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

A Synthesis Of 20 Years Of Research On Sexual Risk Taking Among Asian/Pacific Islander Men Who Have Sex With Men In Western Countries, Dexter R. Voisin

Faculty Scholarship

Over the past two decades, there has emerged a body of literature documenting a number of risk factors associated with Asian/Pacific Islander men who have sex with men’s unsafe sexual behaviors. This study aims to systematically review existing empirical studies and synthesize research results into a social–ecological framework using a mixed research synthesis. Empirical research articles published in peer-reviewed journals between January 1990 and June 2013 were identified in six databases, including PubMed, Ovid MEDLINE, PsycINFO, Social Work Abstract, CINAL, and Web of Knowledge. Both quantitative and qualitative studies were included. Two analysts independently reviewed the articles, and findings were …

Making It In Maine: Stories Of Jewish Life In Small-Town America, David M. Freidenreich

Faculty Scholarship

There are countless stories of Jewish life in Maine, stretching back 200 years. These are stories worth telling not only for their enjoyment value but also because we can learn a great deal from them. They reflect the challenges that confronted members of an immigrant community as they sought to become true Mainers, as well as the challenges this ethnic group now faces as a result of its successful integration. The experiences of Jews in Maine, moreover, encapsulate in many ways the experiences of small-town Jews throughout New England and the United States. Their stories offer glimpses into the changing …

Teaching And Assessing Professional Communication Skills In Law School, Denitsa R. Mavrova Heinrich

Faculty Scholarship

No abstract provided.

Are We There Yet? Aligning The Expectations And Realities Of Gaining Competency In Legal Writing, Sherri Lee Keene

Faculty Scholarship

No abstract provided.

The Virtues Of Moderation, James Grimmelmann

Faculty Scholarship

TL;DR—On a Friday in 2005, the Los Angeles Times launched an experiment: a “wikitorial” on the Iraq War that any of the paper’s readers could edit. By Sunday, the experiment had ended in abject failure: vandals overran it with crude profanity and graphic pornography. The wikitorial took its inspiration and its technology from Wikipedia, but missed something essential about how the “the free encyclopedia that anyone can edit” staves off abuse while maintaining its core commitment to open participation.

The difference is moderation: the governance mechanisms that structure participation in a community to facilitate cooperation and prevent abuse. Town meetings …

Colorism Among South Asians: Title Vii And Skin Tone Discrimination, Taunya L. Banks

Faculty Scholarship

In 2013 Nina Davuluri, an Asian Indian from Syracuse, NY, became the first South Asian-American Miss America. The largely congratulatory comments from South Asian bloggers while reveling in the significance of her win, also commented on her skin tone, characterizing the new Miss America as dark brown, some adding that Davuluri would have never won the Miss Indian America USA title because she is “too dark.” Early discussions of colorism, skin tone bias, by legal scholars focus on how the practice impacts black Americans or other persons with some African ancestry. Yet the comments from South Asians about Davuluri’s skin …

Guidelines For Avoiding Pitfalls When Drafting Juvenile Curfew Laws: A Legal Analysis, Elyse R. Grossman, Kathleen S. Hoke

Faculty Scholarship

Curfew laws seek to provide general protection to youth and adults by restricting the times that children of certain ages are allowed to occupy public places or streets. These laws often contain exemptions for youth accompanied by an adult, responding to an emergency, or traveling to or from school, work, or a religious service, among others. However, the actual language used and exemptions included vary by locality. As a result, courts have reached different results—several courts upheld curfew laws as constitutional, while others overturned these laws. Although not the original reason behind juvenile curfew enactment, several studies have found that …

Defining Power Property Expectations, Michael Pappas

Faculty Scholarship

To date, most government efforts to promote distributed solar energy have involved incentivizing property owners to undertake voluntary installations. However, that approach is changing, as government actors move to increase distributed solar generation capacity not only through incentive programs, but also through requirements. Such a change from voluntary to mandatory measures represents a seismic shift in the approach to encouraging distributed solar generation, and it may raise objections about interference with property expectations.

The Comment addresses those concerns by exploring the nature of property expectations in the energy context and analyzing how courts and legislatures have balanced property expectations against …

Spokeo V. Robins And The Constitutional Foundations Of Statutory Standing, Maxwell Stearns

Faculty Scholarship

In Spokeo v. Robins, the Supreme Court granted certiorari to address the following question: Does Congress have the power to confer standing upon an individual claiming that a privately owned website violated its federal statutory obligation to take specified steps designed to promote accuracy in aggregating and reporting his personal and financial data even if the resulting false disclosures did not produce concrete harm? This somewhat arcane standing issue involves congressional power to broaden the scope of the first of three constitutional standing requirements: injury in fact, causation, and redressability. Although the case does not directly address the prudential …

HarperOoning, GRoeIng And BrownIng The First Amendment, Mark A. Graber

Faculty Scholarship

No abstract provided.

Poor, Black And "Wanted": Criminal Justice In Ferguson And Baltimore, Michael Pinard

Faculty Scholarship

No abstract provided.

The Lost “Art” Of The Patent System, Sean O'Connor

Faculty Scholarship

No abstract provided.

Prove Me Wrong Cases And Consideration Theory, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

People Of The Book: Judaism’S Influence On American Legal Scholarship, My Journey From Judaism To Jewish Law, Donna Litman

Faculty Scholarship

My personal study of the Torah and the Talmud as an adult has enhanced my legal scholarship and helped shape my current thinking on legal theory. At the same time, my professional legal training and experience as a law professor has shaped my understanding of Judaism and provided a legal terminology and a lens by which to view the array of Jewish laws. A confluence of events helped shape my personal and professional journey.

Preparing The Periphery For A Subsequent Behavior: Motor Neuronal Activity During Biting Generates Little Force But Prepares A Retractor Muscle To Generate Larger Forces During Swallowing In Aplysia, Hui Lu, Jeffrey M. Mcmanus, Miranda J. Cullins, Hillel J. Chiel

Faculty Scholarship

Some behaviors occur in obligatory sequence, such as reaching before grasping an object. Can the earlier behavior serve to prepare the musculature for the later behavior? If it does, what is the underlying neural mechanism of the preparation? To address this question, we examined two feeding behaviors in the marine mollusk Aplysia californica, one of which must precede the second: biting and swallowing. Biting is an attempt to grasp food. When that attempt is successful, the animal immediately switches to swallowing to ingest food. The main muscle responsible for pulling food into the buccal cavity during swallowing is the I3 …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Faculty Scholarship

No abstract provided.

Under Containment: Preempting State Ebola Quarantine Regulations, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Prosecuting Generals For War Crimes The Shifting Sands Of Accomplice Liability In International Criminal Law, Mark A. Summers

Faculty Scholarship

No abstract provided.

Remedial Equilibration And The Right To Vote Under Section 2 Of The Fourteenth Amendment, Michael T. Morley

Faculty Scholarship

No abstract provided.