Digital Commons Network^™

The Volk Of New Jersey? State Identity, Distinctiveness, And Political Culture In The American Federal System, Ernest A. Young

Faculty Scholarship

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and …

More Than Decisions: Reviews Of American Law Reports In The Pre-West Era, Richard A. Danner

Faculty Scholarship

In the early nineteenth century, both general literary periodicals and the first American legal journals often featured reviews of new volumes of U.S. Supreme Court and state court opinions, suggesting their importance not only to lawyers seeking the latest cases, but to members of the public. The reviews contributed to public discourse through comments on issues raised in the cases and the quality of the reporting, and were valued as forums for commentary on the law and its role in American society, particularly during debates on codification and the future of the common law in the 1820s. James Kent saw …

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Faculty Scholarship

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

Coming Into The Anthropocene, Jedediah Purdy

Faculty Scholarship

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …

Wealth And Democracy, Jedediah Purdy

Faculty Scholarship

The renewed debate over inequality has highlighted a set of deficits in much of the last fifty-plus years of thinking on the topic. The late twentieth-century tradition of thinking about distributive justice largely assumed (1) that market dynamics would produce stable and tolerable levels of inequality; and (2) that a relatively powerful, competent, and legitimate state could effectively redistribute to mitigate what inequality did arise. What was largely overlooked in this thought and has since risen to central attention is the prospect that (1) accelerating levels of market-produced inequality will (2) undermine the legitimacy and efficacy of the state and …

Double Remedies In Double Courts, Sungjoon Cho, Thomas H. Lee

Faculty Scholarship

This Article uses an ongoing trade controversy litigated in U.S. courts and the World Trade Organization dispute resolution system as a vehicle for exploring different models to deal with parallel adjudications in different legal systems between the same or related parties on the same issue. In lieu of more traditional models of subordination or first-to-decide sequencing, the Article proposes an engagement model as a solution to the double courts, single issue problem.

Dictionaries 2.0: Exploring The Gap Between The Supreme Court And Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

The remarkable rise in dictionary usage by the Supreme Court since themid-1980s has been a subject of considerable scholarly and media interest. Wepublished an article in November 2013 that explored the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. In a Yale Law Journal Note one year later, John Calhoun embraced some of our findings, criticized others, and—importantly—broadened the inquiry to identify asizeable gap in overall frequency of citation to dictionaries between the Supreme Court and the federal courts of appeals.

This gap in dictionary usage is our primary focus here. Previously we analyzed nearly 700 Supreme …

Less Is More In International Private Law, Susan Block-Lieb, Terence C. Halliday

Faculty Scholarship

No abstract provided.

Children’S Health In A Legal Framework, Clare Huntington, Elizabeth S. Scott

Faculty Scholarship

The interdisciplinary periodical Future of Children has dedicated an issue to children’s health policy. This contribution to the issue maps the legal landscape influencing policy choices. The authors demonstrate that in the U.S. legal system, parents have robust rights, grounded in the Constitution, to make decisions concerning their children’s health and medical treatment. Following from its commitment to parental rights, the system typically assumes the interests of parents and children are aligned, even when that assumption seems questionable. Thus, for example, parents who would limit their children’s access to health care on the basis of the parents’ religious belief have …

Test Unrest: New York City's Examination High Schools, Aaron J. Saiger

Faculty Scholarship

New York City bases admissions to its eight “specialized” high schools entirely upon scores on a single standardized test. This policy, hotly contested when it was codified by state law in 1971, faces renewed political and legal attacks today. Single-test admissions consistently result in alarmingly low levels of African-American and Hispanic enrollment at the most sought-after specialized schools. This brief essay compares today’s debate to that of 1971. It notes two major developments since then. The City now has eight test-only high schools, not three. Moreover, the eight schools now function in the larger context of New York’s system of …

China After The Reform Era, Carl F. Minzner

Faculty Scholarship

China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime's stability in the …

Protecting River Flows For Fun And Profit: Colorado's Unique Water Rights For Whitewater Parks, Reed D. Benson

Faculty Scholarship

Since 2001, Colorado has recognized a special type of water right for whitewater parks, which are constructed within a river channel to provide play features for kayakers and other boaters. These water rights, called "recreational in-channel diversions, " are unique to Colorado, even though whitewater parks exist in several western states. This Article addresses some of the underlying reasons that recreational in-channel diversions were established in Colorado, and traces the controversy surrounding their recognition by that state's courts and legislature. Over the last decade, however, the controversy has largely died away, and whitewater park rights have now become an accepted …

Brief For The Albuquerque Peace And Justice Center, Hispano Round Table De Nuevo Mexico, Los Jardines Institute, Martin Luther King Memorial Center, New Mexico Forum As Amicus Curiae For Youth In Community, New Mexico League Of Latin American Citizens, New Mexico Old Lesbians Organized For Change, And Southwest Organizing Project In United States Of American V. The City Of Albuquerque, Alfred Dennis Mathewson

Faculty Scholarship

The United States Department of Justice released a Findings Letter in connection with its investigation of the use of force by the Albuquerque Police Department from 2009 to early 2013. It found that APD had engaged in a pattern or practice of using excessive force, both lethal and non-lethal. The parties reached an agreement on October 31, 2014 and the Complaint and Settlement Agreement were filed in the United States District Court for the District of New Mexico for approval. This amicus brief was filed on behalf of The Albuquerque Peace and Justice Center, Hispano Round Table De Nuevo Mexico, …

Once More Unto The Breach?, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Giving Credit Where Credit Is Due: What We Can Learn From The Banking And Credit Habits Of Undocumented Immigrants, Nathalie Martin

Faculty Scholarship

Undocumented immigrants currently make up more than 5% of the U.S. labor force and 7% of school-age children. Numbering over eleven million, undocumented immigrants unquestionably comprise a significant segment of the population, yet most lack financial security and stability on multiple fronts. In addition to the everyday risk of deportation, many risk being taken advantage of on the basis of their immigration status, in both employment and debtor–creditor relationships. While some of these financial conditions are well chronicled, this Article describes the first empirical study of the debtor–creditor relationships of undocumented immigrants. Through live interviews of undocumented immigrants in New …

Global Medical Education Partnerships To Expand Specialty Expertise: A Case Report On Building Neurology Clinical And Research Capacity, Marco A. Costa, Anthony Furlan, Chris T. Longenecker, Shirley Moore, Svetlana Pundik, Daniel I. Smith, Kathleen A. Smyth, Martha Sajatovic

Faculty Scholarship

Background: Neurological disorders are a common cause of morbidity and mortality in sub-Saharan African, but resources for their management are scarce. Collaborations between training institutions in developed and resource-limited countries can be a successful model for supporting specialty medical education and increasing clinical and research capacity. Case report: This report describes a US National Institutes of Health (NIH) funded Medical Education Partnership Initiative (MEPI) to enhance expertise in neurology, developed between Makerere University College of Health Sciences in Kampala, Uganda, and Case Western Reserve University School of Medicine in Cleveland, OH, USA. This collaborative model is based on a successful …

A Randomized Noninferiority Trial Of Condensed Protocols For Genetic Risk Disclosure Of Alzheimer's Disease, Peter J. Whitehouse, Melissa Barber Butson

Faculty Scholarship

Introduction Conventional multisession genetic counseling is currently recommended when disclosing apolipoprotein E (APOE) genotype for the risk of Alzheimer's disease (AD) in cognitively normal individuals. The objective of this study was to evaluate the safety of brief disclosure protocols for disclosing APOE genotype for the risk of AD. Methods A randomized, multicenter noninferiority trial was conducted at four sites. Participants were asymptomatic adults having a first-degree relative with AD. A standard disclosure protocol by genetic counselors (SP-GC) was compared with condensed protocols, with disclosures by genetic counselors (CP-GC) and by physicians (CP-MD). Preplanned co-primary outcomes were anxiety and depression scales …

Privacy Doesn't Exist In A Vacuum, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Reading The Tea Leaves In Singapore: Who Will Be Left Holding The Bag For Secondary Trademark Infringement On The Internet, Irene Calboli

Faculty Scholarship

This Article explores the issue of secondary liability in Singapore trademark law, with particular attention to intermediaries on the Internet, including Internet service providers (ISPs), e-commerce companies, search engines, website operators, online financial service providers and social media sites. Section 27(5) of the Singapore Trade Marks Act attributes liability to those who use a mark "knowing or having reasons to believe" that such use is not authorized by the trademark owner or licensee. More precisely, the provision excludes trademark liability for those "persons" who use a trademark in the course of trade, namely "for labelling or packaging goods" or as …

The Case For An International Court Of Civil Justice, Maya Steinitz

Faculty Scholarship

We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. 1 The only way to provide a fair and legitimate process for both victims and corporations is to create an International Court of Civil Justice (ICCJ). This Essay seeks to start a conversation about this novel institutional solution. It lays out both a justice case, from the plaintiffs' viewpoint, and an efficiency case, from a corporate defendant's viewpoint, for why …

Answering The "Serious Constitutional Question": Ensuring Meaningful Review Of All Constitutional Claims, George Bach

Faculty Scholarship

In 2012, the Supreme Court in Elgin v. Department of the Treasury clarified the standard that should apply when a federal statute purports to remove judicial review of all constitutional claims. The Court confirmed that, if a statute only channels judicial review of a constitutional claim into a specific avenue (for example, through administrative review and then the Federal Circuit Court of Appeals), then Congressional intent to do so need only be fairly discernible.' Alternatively, if a statute precludes all judicial review of a constitutional claim, there must be 'clear Congressional intent.' The Court explained that the reason for these …

The Greenback, The Humpback, And The Silverback: How A Third Wave Of Federal Water Policy Could Benefit The West, Reed D. Benson

Faculty Scholarship

Proposing any major new federal initiative regarding water in the western United States might seem preposterous, given conventional wisdom and entrenched positions on state control of water resources. But there is a strong rationale, and a growing imperative, for a new federal water .policy for the West. Many river basins face serious problems as limited water supplies are over-allocated, demands continue to increase, and climate change promises to exacerbate the West's perennial problems of scarcity and variability. Solutions to such problems are likely to be expensive and will need to address national interests as well as state and local concerns. …

Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

The Use And Abuse Of Labor's Capital, David H. Webber

Faculty Scholarship

The recent financial crisis has jeopardized the retirement savings of twenty-seven million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds invest against the economic interests of their own participants and beneficiaries, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant — and flawed — interpretation of the fiduciary duty of loyalty, public pension trustees …

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

How Copyright Law May Affect Pop Music Without Our Knowing It, Peter K. Yu

Faculty Scholarship

Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy?

It is …

Manifestations And Implications Of Uncertainty For Improving Healthcare Systems: An Analysis Of Observational And Interventional Studies Grounded In Complexity Science, Kurt C. Stange

Faculty Scholarship

BACKGROUND: The application of complexity science to understanding healthcare system improvement highlights the need to consider interdependencies within the system. One important aspect of the interdependencies in healthcare delivery systems is how individuals relate to each other. However, results from our observational and interventional studies focusing on relationships to understand and improve outcomes in a variety of healthcare settings have been inconsistent. We sought to better understand and explain these inconsistencies by analyzing our findings across studies and building new theory.METHODS: We analyzed eight observational and interventional studies in which our author team was involved as the basis of our …

Deportations Violate U.S., Global Laws, Jennifer Moore

Faculty Scholarship

The detention and summary deportation of these moms and kids is in violation of U.S. and international law.

Molecular Approaches To Chromatography Using Single Molecule Spectroscopy, Lydia Kisley

Faculty Scholarship

No abstract provided.

We Don't Need A "Right To Be Forgotten." We Need A Right To Evolve, Dawinder S. Sidhu

Faculty Scholarship

The sad symptom of a judgmental culture