Digital Commons Network^™

Pregnant Man?: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth F. Emens, Berta E. Hernández-Truyol, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Origin Myths, Contracts, And The Hunt For Pari Passu, Mark C. Weidemaier, Robert E. Scott, G. Mitu Gulati

Faculty Scholarship

Sovereign loans involve complex but largely standardized contracts, and these include some terms that no one understands. Lawyers often account for the existence of these terms through origin myths. Focusing on one contract term, the pari passu clause, this article explores two puzzling aspects of these myths. First, it demonstrates that the myths are inaccurate as to both the clause’s origin and the role of lawyers in contract drafting. Second, the myths often are unflattering, inaccurately portraying lawyers as engaged in little more than rote copying. The article probes this disjunction between the myths and lawyers’ actual practices and explores …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

In Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – debilitaron …

Excuse Doctrine: The Eisenberg Uncertainty Principle, Victor P. Goldberg

Faculty Scholarship

The world is in a bit of a mess. Oil prices soared to more than $140 per barrel and within months plummeted to below $40. The pound fell from $2 to less than $1.40. Housing and stock prices crashed. Foreclosures, bankruptcies, and bailouts became newspaper staples. When things go awry like this, inevitably many people and firms regret having entered into contracts under more favorable circumstances. Many of them will be looking for ways to limit, or better yet, avoid the consequences. A preeminent contracts scholar, Melvin Eisenberg (2009), has provided them with considerable ammunition in a recent paper, arguing …

Cost Awards In International Commercial Arbitration: Proposed Guidelines For Promoting Time And Cost Efficiency, Robert H. Smit, Tyler B. Robinson

Faculty Scholarship

This article offers specific guidelines for awarding costs in international commercial arbitration where the source of the arbitral tribunal’s authority to allocate costs – be it the parties’ arbitration agreement, applicable institutional arbitration rules, or otherwise – vests the tribunal, as is typically the case, with discretion. The guidelines proposed in this article are designed to encourage party choices that enhance international arbitration’s goals of time and cost effectiveness. Predictable (yet flexible) guidelines that serve international arbitration’s unique qualities should in turn serve to maximize the appeal of international commercial arbitration over its alternatives. It is anticipated that these guidelines …

Testimony On H.R. 1924, The Tribal Law And Order Act Of 2009 Before The Subcommittee On Crime, Terrorism And Homeland Security United States House Of Representatives, 111th Congress, 1st Session (December 10, 2009), Barbara L. Creel

Faculty Scholarship

Professor Creel testifies that incarceration alone cannot address the problem of crime in Indian Country and advocates for additional funding and greater access to effective substance abuse treatment programs, education and job training, and culturally-based re-entry programs. Creel's testimony also emphasizes that Native American defendants in tribal court should be afforded the right to counsel, including the right of court appointed counsel, and due process of law. Tribal Law and Order Act 2009: Hearing on H.R. 1924 Before the Subcomm. on Crime, Terrorism and Homeland Security, 111th Cong. (2009) (statement of Barbara Creel, Assistant Professor of Law, University of New …

Policing The Good Guys: Regulation Of The Charitable Sector Through A Federal Charity Oversight Board, Terri Lynn Helge

Faculty Scholarship

Recently, public confidence in the charitable sector has eroded due to a barrage of media reports on scandals and abuses. The principal parties charged with regulation of the charitable sector, the Internal Revenue Service and state attorneys general, are saddled with bureaucratic constraints that make it difficult to enforce the laws governing the fiduciary responsibilities of charity managers. Substantial reform in the regulation of charitable organizations is necessary to curb the reported abuses that have undermined confidence in the charitable sector.

Some advocate expanding private regulation of the charitable sector to improve enforcement of the fiduciary responsibilities of charitable managers. …

My Teaching Philosophy, Marilyn R. Pukkila

Faculty Scholarship

This is my philosophy of teaching and learning, as developed during the ACRL Immersion Intentional Teacher Track in Nashville, TN in December of 2009

A Bright Idea From The Black Canyon: Federal Judicial Review Of Reserved Water Right Settlements, Reed D. Benson

Faculty Scholarship

Under the reserved water rights doctrine, lands the federal government has designated for a particular purpose have rights to sufficient water to fulfill that purpose. Reserved water rights are also known as Winters rights after the doctrine's foundational case, in which the United States Supreme Court held that Congress must have intended to reserve sufficient water to irrigate an Indian reservation although the treaty establishing that reservation said nothing about water.

When Immigration Borders Move, Huyen Pham

Faculty Scholarship

With recent immigration enforcement efforts, we have created a completely new paradigm of moving borders: laws, enacted at all levels of government, that require proof of legal immigration status in order to obtain a driver's license, a job, rental housing, government need-based assistance, and numerous other essential benefits. Unlike the fixed physical border, these laws require proof of immigration status at multiple, moving points within the country's interior and are triggered through everyday transactions; if unable to prove her legal status, a person is denied the restricted benefit. If a person is denied access to multiple essential benefits, then she …

An Information Prescription For Prescription Drug Regulation, Anita Bernstein, Joseph Bernstein

Faculty Scholarship

No abstract provided.

Another Interdisciplinary Collaboration—This Time With A Professor Of German!, Antoinette M. Sedillo Lopez

Faculty Scholarship

The University of New Mexico International Studies Institute has a relationship with the German government in which the Institute runs a summer program at a castle near Dusseldorf known as Schloss-Dyck. In summer 2010, I am going to have the privilege of teaching in the program with a Jason Wilby, a UNM visiting Professor of German. We put a joint proposal together. He will teach about the culture, political environment and constitutional framework right after the Weimar Republic was created as a result of WWI. I will teach about the Nuremberg trials, with a particular focus on the trial of …

The "Principal" Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson

Faculty Scholarship

The Constitution creates very few federal offices. It creates the House and Senate, the Speaker of the House and the President pro tempore of the Senate, the President, the Vice President, and the Supreme Court--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission and who Congress may impeach and remove, but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power and the Vice President's modest voting authority) to “make all Laws which shall be necessary and …

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven A. Dean

Faculty Scholarship

No abstract provided.

More Cooperation, Less Uniformity: Tax Deharmonization And The Future Of The International Tax Regime, Steven A. Dean

Faculty Scholarship

Efforts to foster improved international tax cooperation have become preoccupied with tax harmonization. Deharmonization offers the possibility of harmony without uniformity By exploring two examples of tax deharmonization in practice and considering the origins and limitations of tax harmonization, this Article brings the traditional emphasis on harmonization into question. It then makes the case that deharmonization--cooperation without uniformity--could provide a viable alternative. Achieving tax deharmonization potential would require revisiting some of the most basic elements of our current international tax regime, particularly the benefits principle.

The Brain In Its Body: Motor Control And Sensing In A Biomechanical Context, Hillel J. Chiel

Faculty Scholarship

Although it is widely recognized that adaptive behavior emerges from the ongoing interactions among the nervous system, the body, and the environment, it has only become possible in recent years to experimentally study and to simulate these interacting systems. We briefly review work on molluscan feeding, maintenance of postural control in cats and humans, simulations of locomotion in lamprey, insect, cat and salamander, and active vibrissal sensing in rats to illustrate the insights that can be derived from studies of neural control and sensing within a biomechanical context. These studies illustrate that control may be shared between the nervous system …

Echoes Of The Impact Of Webb V. Mcgowin On The Doctrine Of Consideration Under Contract Law: Some Reflections On The Decision On The Approach Of Its 75th Anniversary, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

What's Race Got To Do With It? Press Coverage Of The Latino Electorate In The 2008 Presidential Primary Season, Laura Gomez

Faculty Scholarship

This article presents a critical analysis of press coverage of Latinos and the presidential election during the Democratic Primary, from January through June 2008. The foundation of this article is a content analysis of 408 articles published in four newspapers about Latinos and the presidential election during the primary season. The four newspapers -- The Los Angeles Times, The New York Times, The Chicago Tribune and The Dallas Morning News -- were selected because they are well respected as newspapers of record and because they represent diverse regions of the country (two from the northeast, two from the southwest). Each …

Kinematic And Photometric Evidence For A Bar In Ngc 2683, Stacy S. Mcgaugh

Faculty Scholarship

We present optical long-slit and SparsePak Integral Field Unit emission line spectroscopy along with optical broadband and near-IR images of the edge-on spiral galaxy NGC 2683. We find a multi-valued, figure-of-eight velocity structure in the inner 45″ of the long-slit spectrum and twisted isovelocity contours in the velocity field. We also find, regardless of wavelength, that the galaxy isophotes are boxy. We argue that taken together, these kinematic and photometric features are evidence for the presence of a bar in NGC 2683. We use our data to constrain the orientation and strength of the bar.

Like Sands Through The Hourglass: How To Develop A Good Legal Research Problem, Susan T. Phillips

Faculty Scholarship

Attorneys have a duty to conduct adequate legal research. Law schools have an obligation to educate students in the standard research techniques. To learn research, students must actually perform research using research problems. Therefore, professors must design appropriate problems for students to learn research skills. The first part of this article discusses the fundamentals of developing a research problem. The second part provides examples of research problems with an explanation of their development.

Healing Relationships And The Existential Philosophy Of Martin Buber, John G. Scott, Kurt C. Stange, Benjamin F. Crabtree

Faculty Scholarship

The dominant unspoken philosophical basis of medical care in the United States is a form of Cartesian reductionism that views the body as a machine and medical professionals as technicians whose job is to repair that machine. The purpose of this paper is to advocate for an alternative philosophy of medicine based on the concept of healing relationships between clinicians and patients. This is accomplished first by exploring the ethical and philosophical work of Pellegrino and Thomasma and then by connecting Martin Buber's philosophical work on the nature of relationships to an empirically derived model of the medical healing relationship. …

Disclosure Of Apoe Genotype For Risk Of Alzheimer's Disease, Peter J. Whitehouse, Melissa Barber Butson

Faculty Scholarship

BACKGROUND: The apolipoprotein E (APOE) genotype provides information on the risk of Alzheimer's disease, but the genotyping of patients and their family members has been discouraged. We examined the effect of genotype disclosure in a prospective, randomized, controlled trial. METHODS: We randomly assigned 162 asymptomatic adults who had a parent with Alzheimer's disease to receive the results of their own APOE genotyping (disclosure group) or not to receive such results (nondisclosure group). We measured symptoms of anxiety, depression, and test-related distress 6 weeks, 6 months, and 1 year after disclosure or nondisclosure. RESULTS: There were no significant differences between the …

Low School Engagement And Sexual Behaviors Among African American Youth: Examining The Influences Of Gender, Peer Norms, And Gang Involvement, Dexter R. Voisin

Faculty Scholarship

This research examined whether negative peer influences (i.e., norms favoring risky sex and drug use and gang involvement) mediated the relationship between school engagement (i.e., grade point averages [GPAs] obtained from school records and student-teacher connectedness) and sexual behaviors (i.e., sexual début, sex without condoms, group sex, and sex while using drugs) among African American high school adolescents, and whether these relationships varied by gender. Five hundred sixty-three high school adolescents (ages 13 to 19) completed self-administered questionnaires that assessed school engagement markers, peer influences, sexual début, and risky sex. Major findings for boys indicate that GPA was negatively associated …

Families Redefined: Kinship Groups That Deserve Benefits, Jane E. Cross, Nan Palmer, Charlene L. Smith

Faculty Scholarship

In Families Redefined: Kinship Groups that Deserve Benefits, the authors examine 1) the nature of kinship families, 2) the benefits accorded to married couples, 3) kinship families that lack protection and benefits, 4) the impact of denying kinship families protection and benefits, 5) the use of contract law in kinship relationships, and 6) using legislation to benefit kinship relationships.

This exploration of expanding family law protections to kinship groups addresses a series of interrelated topics. The first two sections of the article explore the characteristics and creation of kinship families in different societies. The third section addresses the legal …

Review Of Outlawed Pigs: Law, Religion, And Culture In Israel, Pnina Lahav

Faculty Scholarship

In "Safe Treyf' (http://soc.qc.cuny.edu/Staff/levine/SAFE-TREYF.pdf), Gaye Tuchman and Harry G. Levine explain how Chinese Food helped New York Jews overcome the Jewish Taboo on eating pork. Chinese Food "disguises the tabooed ingredients by cutting, chopping, and mincing them.... [It] could be adopted by rebellious Jews because the forbidden substances were so disguised that dishes did not reflexively repulse and so undermine their ability to rebel." Daphne Barak-Erez, a professor at the faculty of law at Tel Aviv University, has written a fine book in which she looks at the history of the pork taboo-but from the perspective of Israeli Jews.

This …

Non-Intervention And Neutrality In Cyberspace: An Emerging Principle In The National Practice Of International Law, Joshua E. Kastenberg

Faculty Scholarship

The enforcement of neutrality in cyberspace has not yet occurred, and there appears to be no policy for enforcement. This article suggests a rubric using existing laws for exerting executive authority. Section I of this article discusses the emergence of conflict in cyberspace. This article focuses on the executive branch's authority to enforce neutrality in cyberspace. Section II provides a basic rubric of neutrality rules as applied to conflict in cyberspace. Section III analyzes the most recent cyberconflict, the Georgian-Russian War of 2008, and the potential consequences the United States risked because it lacked a cyber neutral position. Finally, the …

Changing The Paradigm Of Internet Access From Government Information Systems: A Solution To The Need For The Dod To Take Time-Sensitive Action On The Niprnet, Joshua E. Kastenberg

Faculty Scholarship

The DOD is currently lacking sufficient regulatory authority to ensure the availability of access to conduct operations through cyberspace, because the conduct of its members is predicated on a number of false assumptions which are written into outdated or otherwise poorly designed current regulations. This article addresses those assumptions and existing regulations and argues for new guidance to alter the current paradigm of almost unfettered access. This article is divided into three sections. Section I touches on the nature of DOD cyberspace and the potential harms that result from current social behaviors of the department's personnel. Section II analyzes shortcomings …

Cause And Effect: The Origins And Impact Of Justice William O. Douglas’ Anti-Military Ideology From World War Ii To O’Callahan V. Parker, Joshua E. Kastenberg

Faculty Scholarship

The intention underlying this Article is to analyze the sources and effects of Douglas's antipathy for the military's legal construct, especially the practice of trial by courts-martial. Douglas did have an effect on the evolution of the military's legal construct, and he almost succeeded in narrowing the military's jurisdiction over its servicemen to a narrow fraction of what its jurisdictional reach is today. Along with Justices Hugo Black, Earl Warren, Felix Frankfurter, William Brennan, and shorter-tenured justices, he succeeded in judicially mandating due-process rights for servicemen accused of offenses.8 However, in his ultimate goal, the extent to which he succeeded …

When Something Is Not Quite Right: Considerations For Advising A Client To Seek Mental Health Treatment, Carol M. Suzuki

Faculty Scholarship

This Article explores rules of professional responsibility, theory, and reasoning processes related to advising clients to seek mental health treatment. Furthermore, this Article looks at cultural and financial aspects of treatment, and concludes with recommendations on how a lawyer should counsel her client once she determines that mental health treatment is appropriate. Part I discusses humanitarian reasons that support a lawyer's decision to advise her client to seek mental health treatment. Part II of this Article discusses rules of professional conduct relevant to advising a client to seek mental health treatment. Part III sets out a framework for considering how …