Digital Commons Network^™

Unveiling Raphaelle Peale's "Venus Rising From The Sea -- A Deception", Lauren K. Lessing, Mary Schafer

Faculty Scholarship

New technical information uncovered by conservator Mary Schafer has revealed an earlier, unfinished composition beneath the margins of Raphaelle Peale’s circa 1822 trompe l’oeil painting “Venus Rising from the Sea—a Deception.” The earlier version of the painting featured a partial copy of Charles Willson Peale’s 1817 portrait of Raphaelle seemingly concealed behind the same white kerchief that now appears to hide a copy of James Barry’s 1772 painting “The Birth of Venus.” Schafer and art historian Lauren Lessing reinterpret Peale’s painting in light of these findings, describing its complex nature as both a physical object and a dark visual joke.

Employee Fiduciary Duties: One Size Does Not Fit All, Leslie Larkin Cooney

Faculty Scholarship

This article examines the law surrounding the fiduciary duties owed by non-officer employees to their employers and the remedies imposed for a breach of those duties. It is the author's contention that applying the same agency principles to all employees regardless of their level of power or ability to exercise discretion or affect the employer's interests generates an uncalled for advantage to the employer.

Judging The Judges - Daytime Television's Integrated Reality Court Bench, Taunya Lovell Banks

Faculty Scholarship

Critics of reality daytime television court shows remain divided over whether the possible educational benefits of these shows outweigh their distorted images of judicial proceedings. .... few pay much attention to the shifting demographics of the reality court judges.... In 2008, women judges outnumber their male counterparts.... four judges are Latina/o and another four are black. Only Judy Sheindlin of Judge Judy, the best known and most popular reality court judge, and David Young of Judge David Young, an openly gay man, are white. There are no Asian American judges on reality court shows...., nevertheless, the judicial world of daytime …

Toward Procedural Optionality: Private Ordering Of Public Adjudication, Robert J. Rhee

Faculty Scholarship

Private resolution and public adjudication of disputes are commonly seen as discrete, antipodal processes. There is a generally held understanding of the dispute resolution processes. The essence of private dispute resolution is that the parties can arrange the disputed rights and entitlements per agreement and without judicial intervention. In public adjudication, however, the sovereign mandates the substantive and procedural laws to be applied, many of which cannot be changed by either a party’s unilateral decision or both parties’ mutual consent. Neither approach allows a party an option to unilaterally alter important aspects of the process, such as the standards of …

Students Schooling Students: Gaining Professional Benefits While Helping Urban High School Students Achieve Success, Susan P. Leviton, Justin A. Browne

Faculty Scholarship

This article looks at the educational plight of urban low income children and explores the opportunities for success that small urban high schools provide. It then distills commonalities among successful small schools to demonstrate three central points: 1) that small is essential but not sufficient; 2) that small schools offer an opportunity for urban school districts to help improve educational opportunities for disadvantaged students by providing a fertile environment where individualized instruction, more class time, better-trained teachers, and a curriculum that prepares students psychologically and emotionally, as well as intellectually can help them overcome the adverse effects of poverty; and …

Indigenous Peoples And The Law - Ancient Customs: Modern Dilemmas, David S. Bogen

Faculty Scholarship

Indigenous people have a variety of complex relationships to law in nations such as Australia, Canada, New Zealand and the United States where non-indigenous people constitute the majority of the population. Customary law has been recognised in each of these nations as a source of domestic law, but this recognition has created various tensions. For instance, Native Title looks to customary law for its definition, but non-indigenous society demands that Native Title be managed by modern Indigenous institutions created under non-indigenous law. Issues of federalism and international law influence the interaction of Indigenous and non-indigenous law against a background of …

Here Comes The Judge! Gender Distortion On Tv Reality Court Shows, Taunya Lovell Banks

Faculty Scholarship

In the judicial world of television court shows women constitute a majority of the judges and where non-white women and men dominate. In real life most judges are white and male. This essay looks at the gender and racial composition and demeanor of these television reality judges. It asks whether women TV reality judges behave differently from their male counterparts and whether women’s increased visibility as judges on daytime reality court shows reinforces or diminishes traditional negative stereotypes about women, especially non-white women.

Privilege-Wise And Patent (And Trade-Secret)-Foolish?: How The Courts' Misapplication Of The Military And State Secrets Privilege Violates The Constitution And Endangers National Security, Davida H. Isaacs, Robert M. Farley

Faculty Scholarship

It is every inventor's nightmare: a valuable idea, stolen, with no legal recourse. Yet that is precisely what happened in Lucent v. Crater, where the Federal Circuit permitted the Federal Government to defeat the inventors' claims using the military and state secrets privilege. In light of the recent upsurge in the Government's invocation of this privilege, it is time to scrutinize more carefully courts' highly deferential response to its use. There is little question that the executive branch must be able to invoke the privilege in order to ensure that national security is not imperiled by public disclosure of information. …

Recalibrating The Moral Compass: Expanding "Thinking Like A Lawyer" Into "Thinking Like A Leader", Karen H. Rothenberg

Faculty Scholarship

This essay was prepared for the Leadership in Legal Education Symposium IX.

Commentary [On Negligent Infliction Of Emotional Distress], Oscar S. Gray

Faculty Scholarship

These comments question the terminology used in the Third Restatement of Torts for psychological effects, partially on the ground of obsolescence in light of developments in the neurosciences. Instead of the distinction emphasized in the Third Restatement between “physical harm” and “emotional disturbance” (or “distress”), they suggest a distinction between “harm” that constitutes an impairment of functionality, which would be treated as a free-standing basis for liability, like conventional diseases or injuries, and “mere feelings”, which would continue to be compensable in negligence only parasitically. Similarly, the interest protected should be regarded not as an interest in freedom from “disturbance” …

Red Detachment Of Women And The Enterprise Of Making ‘Model’ Music During The Chinese Cultural Revolution, Clare Sher Ling Eng

Faculty Scholarship

Artworks produced with official sanction during periods marked by turmoil and human suffering are challenging subjects for scholars who would like to discuss them in a fair and responsible manner. If they aestheticize the works’ form and political affiliation, how would they be doing justice to these works whose creation and content are so meshed with the politics of their time? On the other hand, can an approach that takes ideology into account be developed that does not appear to ignore, condone or support the odious acts of violence associated with those periods? This article explores the latter question with …

Securities Laws In Soap Operas And Telenovelas: Are All My Children Engaged In Securities Fraud?, Elena Marty-Nelson

Faculty Scholarship

Securities law images are broadcast to millions worldwide through soap operas and telenovelas. Doctors, and professionals in other fields, have recognized the power of dramatic serials. They have generated a rich body of scholarship demonstrating how these mediums of popular culture impart health messages or effect social change. This author describes some of those empirical studies and suggests that legal scholars conduct similar empirical or ethnographic studies, particularly on the impact of portrayals of complex legal issues such as securities fraud in serials. The author explains differences and similarities between telenovelas and soap operas and compares portrayals of legal issues …

Music And Community: Interdependence And Shared Learning In An Undergraduate Elementary Music Methods Course, Lisa Huisman Koops

Faculty Scholarship

In this study, the author investigated the creation of a community of learners in an under- graduate elementary music methods course. Participants included undergraduate students (n = 23) and a professor at a Midwestern liberal arts college. Data consisted of fieldnotes from class observations and interviews with the professor and students. The following priorities and concepts emerged as themes: interdependence, shared learning, personal growth, safe environment, and inclusiveness. The success of the community of learners seemed to be due in part to the professor’s dynamic, student-centered, interdependent approach to the course. Transferable aspects related to the creation of a community …

The Practice Of Ethics, Jeremy Bendik-Keymer

Faculty Scholarship

The point of this talk is not to school you in the practice of ethics, but to raise questions about the practice of ethics. There is a standard picture of the practice of ethics that goes like this:

Ethical theory is done in a classroom. It is divided into normative theory, meta-ethics, and descriptive ethics. Students learn to see how the ethics in their society and community works; they learn how to discover true ethical beliefs and sometimes discover them during class. Through meta-ethics, they understand what it is to have an ethical belief. Then –and here comes the practice …

The Law And The Host Of The Canterbury Tales, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Roger J. Traynor Professorship: John E. Noyes, William J. Aceves

Faculty Scholarship

Introduction to inaugural appointment of John E. Noyes to the Roger J. Traynor Professorship.

Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards On To Unconstitutional Shores, Kenneth S. Klein

Faculty Scholarship

Since the early nineteenth century, the interpretation of the Seventh Amendment preservation of the right to a civil trial by jury has remained static and become increasingly anachronistic. Over the same period of time, the evolution of modern civil procedure pleading standards has been on a collision course with that interpretation. The penultimate 2007 Supreme Court opinion in this field, Bell Atlantic Corp. v. Twombly, raised the specter of an impending impasse between pleading standards and the Seventh Amendment. The 2009 opinion in Ashcroft v. Iqbal is the point of impact. While the Iqbal opinion fails to even acknowledge …

Innovation After The Revolution: Foreign Sovereign Bond Contracts Since 2003, Mitu Gulati, Anna Gelpern

Faculty Scholarship

For over a decade, contracts literature has focused on standardization. Scholars asked how terms become standard, and why they change so rarely. This line of inquiry painted a world where a standard term persists until it is dislodged by another standard term, perhaps after a brief window of ferment before the second term takes hold. It also overshadowed the early insights of boilerplate theories, which described contracts as a mix of standard and customized terms, and asked why the mix might be suboptimal. This article brings the focus back to the mix. It examines the development of selected provisions in …

Historical Practice And The Contemporary Debate Over Customary International Law, Ernest A. Young

Faculty Scholarship

Response to: Anthony J. Bellia, Jr. & Bradford R. Clark, The Federal Common Law of Nations, 109 Colum. L. Rev. 1 (2009).

A.J. Bellia and Brad Clark have performed a valuable service for other scholars interested in foreign relations law and federal jurisdiction by collecting and illuminating—with their usual care and insight—the historical practice of both English and early American courts with respect to the law of nations. Their recent Article, The Federal Common Law of Nations, demonstrates that, while American courts have not generally treated customary international law (CIL) as supreme federal law, they have applied such law where …

Blowing The Whistle On Mandatory Arbitration Unconscionability As A Signaling Device, Charles L. Knapp

Faculty Scholarship

No abstract provided.

The Author's Place In The Future Of Copyright, Jane C. Ginsburg

Faculty Scholarship

Vesting copyright in Authors – rather than exploiters – was an innovation in the 18th century. It made authorship the functional and moral center of the system. But all too often in fact, authors neither control nor derive substantial benefits from their work. In the copyright polemics of today, moreover, authors are curiously absent; the overheated rhetoric that currently characterizes much of the academic and popular press tends to portray copyright as a battleground between evil industry exploiters and free-speaking users. If authors have any role in this scenario, it is at most a walk-on, a cameo appearance as victims …

Our Twenty-First Century Constitution, Peter L. Strauss

Faculty Scholarship

Accommodating our Eighteenth Century Constitution to the government that Congress has shaped in the intervening two and a quarter centuries, Professor Strauss argues, requires accepting the difference between the President’s role as “Commander in Chief” of the Nation’s military, and his right to seek written opinions from those Congress has empowered to administer domestic laws under his oversight. Thus, the question for today is not whether the PCAOB offends Eighteenth Century ideas about government structure, but the question asked by Professors Bruff, Lawson, and Pildes – whether the relationships between PCAOB and SEC, SEC and President meet the constitutional necessity …

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

The 60th Anniversary Of The Prc: A Retrospective On The Chinese Legal System – Introduction, Benjamin L. Liebman

Faculty Scholarship

Since its establishment in 1987, the Columbia Journal of Chinese Law and its successor, the Columbia Journal of Asian Law, have played an important role in publishing English language scholarship about the law of China and Asia. An important part of this mission has been the publication of scholarship not only by scholars in the United States and Europe, but also by scholars from China and elsewhere in Asia. I am delighted that this special edition of the Journal, marking the sixtieth anniversary of the establishment of the People's Republic of China and thirty years of legal reforms in China, …

Agency And Luck, Joseph Raz

Faculty Scholarship

Advancing an account of responsibility which is based on the functioning of our rational capacities, the paper revisits some central aspects of the moral luck puzzle. It proposes a new variant of Williams’ agent-regret, but concludes that its scope does not coincide with cases of moral luck. It then distinguishes different ways in which the factors beyond our control feature in our engagement with the world which show how the guidance principle (we are responsible for actions guided by our rational powers) recognises a narrower range of situations of moral luck than is often supposed, allowing to distinguish between responsibility …

Using Patents To Protect Traditional Knowledge, Jay Erstling

Faculty Scholarship

The role that intellectual property can play in the protection of traditional knowledge (TK) has been on the international agenda for more than ten years, with little to show for it. For example, the World Intellectual Property Organization (WIPO) has provided a forum for international policy debate on the subject since 1998, and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has held meetings on draft provisions for the protection of TK against misappropriation and misuse since 2001. Similarly, since 1999 the World Trade Organization (WTO) has been examining the most effective means …

Tribal Hunting And Fishing Lifeways & Tribal-State Relations In Idaho, Angelique Eaglewoman

Faculty Scholarship

This article will explore the treaty hunting and fishing rights issues that have arisen in the state of Idaho with the Tribal Nations in the area. First, the background on the area Tribal Nations’ territories will be detailed. Second, the creation of the state of Idaho will be sketched within the framework of federal Indian law. Third, the case law that has developed in Idaho and in the Pacific Northwest regarding the exercise of treaty hunting and fishing rights will be examined. Next, the Rapid River case in Idaho in the late 1970s will serve as an illustration of this …

Finessing Well-Plead Derivative Lawsuits: The Implications Of The Minnesota Supreme Court's Selection Of Auerbach Over Zapata, James F. Hogg

Faculty Scholarship

This article begins with the factual background and subsequent procedural history of the UnitedHealth Group Inc. shareholder derivitve litigation, as an instance where Minnesota courts effectively disposed of the factual allegations in a well-pleaded derivative action, directed at the behavior and actions of members of a board of directors, without reviewing finding of facts or reasoning behind the SLC's report or conclusions. The purpose of this article is to understand how a board-appointed committee can convince a court to dismiss and settle a derivative suit without showing detailed justification, and this is achieved by reviewing the statutes, case law, and …

International Developments In Consumer Financial Services Law 2007-2008, Gregory M. Duhl

Faculty Scholarship

This Survey reviews international consumer financial services law developments in 2007 and 2008 (through August 15, 2008) in the areas of payment systems, the European Convention of Human Rights, insolvency laws, and consumer privacy. This review makes the contrast between the European and U.S. approaches to consumer regulation apparent, in particular the EU preference for direct regulation as compared to the tradition of private remedies in the United States.

Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Faculty Scholarship

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …