Digital Commons Network^™

The Unconstitutionality Of Urban Poverty, Dawinder S. Sidhu

Faculty Scholarship

This Article argues that the Thirteenth Amendment is a proper federal vehicle for correcting the conditions of the urban underclass. The Amendment, I posit, contemplates federal intervention in the state and local governments' handling of its most troubled areas. Such federal involvement is appropriate because those responsible for these physical areas have not ensured that their residents have the necessary predicates for full and independent participation in society. The Thirteenth Amendment, in other words, supports the federal government's establishment of a minimum floor of economic and educational conditions such that the urban underclass may possess meaningful horizontal and vertical liberty, …

Enron, Doma, And Spousal Privileges: Rethinking The Marriage Plot, Bennett Capers

Faculty Scholarship

No abstract provided.

American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy

Faculty Scholarship

There is a firestorm of political and cultural conflict around environmental issues,including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension,approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and …

Municipal Elder Law: A Minnesota Perspective, A. Kimberley Dayton, Israel (Issi) Doron

Faculty Scholarship

The field of elder law has developed dramatically over the past several decades and is primarily regarded as a creature of state and federal law. This area of law will be of paramount importance in the coming years as the elderly population continues to increase dramatically. Indeed, nearly every community in the United States will undoubtedly be impacted in some way by the influx of older residents. Notably, however, the effect of an aging society will impact each local community differently. For these reasons, Professors Kimberly Dayton and Israel (Issi) Doron sought to examine the role that municipal elder law …

The Evolution Of Law And Policy For Cia Targeted Killing, Afsheen John Radsan

Faculty Scholarship

Many critiques of the Central Intelligence Agency’s alleged use of killer drones depend on law that does not bind the United States or on contestable applications of uncertain facts to vague law. While acknowledging a blurry line between law and policy, we continue to develop a due process for targeted killing. In the real world, intelligence is sometimes faulty, mistakes occur, and peaceful civilians are at risk. International humanitarian law, which applies during armed conflicts, demands very little in the way of process beyond the admonition to take feasible precautions. Even so, the intelligence-driven nature of targeted killing, and the …

Location, Location, Location: Using Cost Of Living To Achieve Tax Equity, James M. Puckett

Faculty Scholarship

All other things being equal, the federal income tax ignores whether the taxpayer lives in a relatively affordable or expensive location. This approach can lead to unfairness; moreover, special deductions for the taxpayer’s actual living expenses, such as home mortgage interest and state and local taxes, do not solve the problem. Tax law scholars have generally been quick to dismiss the equity issues based on assumptions about taxpayer mobility. The existing literature would tax comparable workers equally, regardless of salary and living costs. This approach would unfairly equate differently situated workers. This Article questions the assumption of taxpayer mobility, considers …

Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu

Faculty Scholarship

Now is a particularly important time to consider the relationship between antitrust and innovation. Within the last two years, both the Justice Department and Federal Trade Commission have accumulated an entire docket of antitrust investigations related to the Internet and other high-tech industries. The list of publicly disclosed investigations is lengthy, and includes major players like Google, Apple, Facebook, and Twitter.' The nation's antitrust enforcement authorities are taking a look at the state of competition on the Internet, an inquiry that puts into clear focus the need for antitrust to take seriously its relationship with innovation policy.

That is the …

Drinking Water And Exclusion: A Case Study From California’S Central Valley, Camille Pannu

Faculty Scholarship

The American West is notorious for its water wars, and California’s complex water allocation and governance challenges serve as a bellwether for contemporary water governance across western states. Policy makers and environmental advocates typically represent California’s water woes as a regulatory problem — a failure to balance the needs of growing urban populations with ecological preservation and agricultural irrigation. These debates, however, often elide the issue of water deprivation, and they do not adequately address the concerns of an important constituency: low-income, rural communities.

This Comment argues that a focus on regulation misses a fundamental feature of water inequality: the …

Towards A Communicative Theory Of International Law, Timothy Meyer

Faculty Scholarship

No abstract provided.

Changing The Conversation In Education Law: Political Geography And Virtual Schooling Book Review Essay, Aaron J. Saiger

Faculty Scholarship

In Five Miles Away, A World Apart, James E. Ryan concludes that the educational reforms of the hour, school accountability and school choice, will exacerbate rather than undermine the systematic educational advantages enjoyed by wealthier Americans. Paul Peterson, in his Saving Schools, argues that increasingly centralizing American schools have become sufficiently centralized that, as a labor-intensive industry, few productivity gains are available from governance reform, even as demand escalates for the customization of education to individual needs. Both volumes therefore pin their hopes for change upon political geography-the relationship between people and educational institutions in space. Ryan argues that changing …

Women Religious In A Changing Urban Landscape: The Work Of Catholic Sisters In Metropolitan Cleveland, Robert L. Fischer, Jennifer Bartholomew

Faculty Scholarship

In many communities, women religious play a vital role in addressing the needs of the poor, neglected, and vulnerable members of society. Catholic Sisters have long been active in the areas of education, health care, outreach, and advocacy in northeast Ohio. In high-poverty urban areas such as Cleveland, women religious continue to provide essential services, support, and spiritual guidance. The experience in Cleveland is relevant to other cities where the population has shifted from an urban center to suburban areas, leaving inner-city churches with declining membership and support. Survey data collected from 164 Catholic Sisters from fifteen religious orders in …

Do You Have A Conscience?, Jeremy Bendik-Keymer

Faculty Scholarship

“Do you have a conscience?” There was a time when this would have been a question that was immediately intelligible to people, like asking whether a person holding a ball can throw it. For much of the history of philosophy—that ancient Greek invention—the name for what allows one to stay in touch with moral principles in the midst of particular decisions was “conscience” (Langston 2001). To ask whether I have a conscience was tantamount to asking whether I can keep my decisions moral, whether I was capable of being a mature human being. Since morality is the domain of duties …

Illich (Via Cayley) On Prisons, Giovanna Shay

Faculty Scholarship

This Article considers whether, more than a dozen years after publication of Cayley’s book "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.

Radical Reform Of Intercollegiate Athletics: Antitrust And Public Policy Implications, Stephen F. Ross

Faculty Scholarship

Universities operating major intercollegiate athletic programs are heading for, if not already in, a crisis. Corruption continues to affect major football and basketball programs, exacerbated by a failure of imagination and will in identifying and deterring corruption, and by a lack of consensus on what constitutes "corruption" when football and men's basketball stars generate millions of dollars but cannot enjoy a lifestyle commensurate with many peer students. Current levels of spending are nonsustainable at many schools. Even where intercollegiate athletic programs are sustained primarily by football and basketball revenues, otherwise visionary and questioning college presidents have yet to publicly question …

Lines Of Tribe, Christine Zuni Cruz

Faculty Scholarship

It is important to begin by explaining why I take the title of my essay from the statement in President Barack Obama's 2009 Inaugural Address: "the lines of tribe shall soon dissolve." During the address, his words affected me and they remained with me long afterward. President Obama may very well have meant what he said in a metaphoric or figurative sense; I have certainly been provided with many interpretations and assurances by most that a literal meaning was not his intent and that he instead spoke in a good way of the beneficial melting of divisions between us." It …

American Natures: The Shape Of Conflict In Environmental Law, Jedediah S. Purdy

Faculty Scholarship

There is a firestorm of political and cultural conflict around environmental issues, including, but running well beyond, climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world …

After The Great Recession: Regulating Financial Services For Low- And Middle-Income Communities, Ronald J. Mann

Faculty Scholarship

This paper, prepared as a speech at Washington and Lee Law School, discusses regulatory strategies for lending to LMI households after the Great Recession. It argues that the CFPB's emphasis on behavioral economics is likely to lead it astray, especially if it relies on assumptions drawn from experience with middle-class behavior to interfere with the choices made by LMI households that face a different set of opportunities than the middle-class households more familiar to regulators. More generally, the paper suggests that most of the financial distress faced by LMI households is a result of broader social and institutional problems, and …

Hidden Costs? Malpractice Allegations And Defensive Medicine Among Cardiac Surgeons, Barak D. Richman, Marco Huesch

Faculty Scholarship

This article evaluates the impact of private allegations of malpractice against cardiac surgeons on their patients’ outcomes and characteristics. While tort law may impact observable physician costs, malpractice allegations also impose hidden costs that could also affect physician behavior. We employ a large and multi-year panel dataset and patient-level analysis to ascertain whether malpractice allegations influence a surgeon’s practicing behavior. Using a generalized difference-in-difference model that controls for unobserved patient heterogeneity, clustering of patients within surgeon offices, contemporaneous expected risk, and other patient variables, we measure whether an allegation of malpractices affects a physician’s service intensity and use of healthcare …

A Current Assessment Of Some Extraterritorial Impacts Of The Dodd-Frank Act With Special Focus On The Volcker Rule And Derivatives Regulation, Lawrence G. Baxter

Faculty Scholarship

As the world struggles to emerge from the Global Financial Crisis the vision of a harmonious framework of global financial regulation seems as distant as ever. Important progress made by international committees such as the Basel Committee on Banking Supervision and the Financial Stability Board notwithstanding, there seem to be increasing signs of unilateral, extraterritorial action by major jurisdictions, including the United States. This paper reviews the framework created by the US financial reforms, in particular anti money laundering provisions, the Volcker Rule and the proposed OTC derivatives margin requirements, and considers some of the dilemmas presented by modern global …

Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis

Faculty Scholarship

Drugs, crime and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop. We use a case-control design to identify the effects of living in one of New York …

On The American Paradox Of Laissez Faire And Mass Incarceration, Bernard E. Harcourt

Faculty Scholarship

In The Illusion of Free Markets (Harvard 2011), Professor Bernard Harcourt analyzes the evolution of a distinctly American paradox: in the country that has done the most to promote the idea of a hands-off government, we run the single largest prison complex in the entire world. Harcourt traces this paradox back to the eighteenth century and demonstrates how the presumption of government incompetence in economic affairs has been coupled with that of government legitimacy in the realm of policing and punishing. Harcourt shows how these linked presumptions have fueled the expansion of the carceral sphere in the nineteenth and twentieth …

National Security Federalism In The Age Of Terror, Matthew C. Waxman

Faculty Scholarship

National security law scholarship tends to focus on the balancing of security and liberty, and the overwhelming bulk of that scholarship is about such balancing on the horizontal axis among branches at the federal level. This Article challenges that standard focus by supplementing it with an account of the vertical axis and the emergent, post-9/11 role of state and local government in American national security law and policy. It argues for a federalism frame that emphasizes vertical intergovernmental arrangements for promoting and mediating a dense array of policy values over the long term. This federalism frame helps in understanding the …

Evaluating The Palestinians’ Claimed Right Of Return, Andrew Kent

Faculty Scholarship

This Article takes on a question at the heart of the longstanding Israeli-Palestinian dispute: did Israel violate international law during the conflict of 1947-49 either by expelling Palestinian civilians or by subsequently refusing to repatriate Palestinian refugees? Palestinians have claimed that Israel engaged in illegal ethnic cleansing, and that international law provides a "right of return" for the refugees displaced during what they call al-Nakbah (the catastrophe). Israel has disagreed, blaming Arab aggression and unilateral decisions by Arab inhabitants for the refugees' flight, and asserting that international law provides no right of the refugees to return to Israel. Each side …

Efficient Enforcement In International Law, Anu Bradford, Omri Ben-Shahar

Faculty Scholarship

Enforcement is a fundamental challenge for international law. Sanctions are costly to impose, difficult to coordinate, and often ineffective at accomplishing their goals. Rewards are likewise costly and domestically unpopular. Thus, efforts to address pressing international problems-such as reversing climate change and coordinating monetary policy-often fall short. This Article offers a novel approach to international enforcement and demonstrates the advantages of such an approach over traditional sanctions or rewards. It develops a mechanism of Reversible Rewards, which combines sticks and carrots in a unique, previously unexplored way. Reversible Rewards require that a sum of money be offered as a reward …

The Role Of Statutory And Local Rules In Allocating Water Between Large- And Small-Scale Irrigators In An African River Catchment, Hans Komakech, Madison Condon, Pieter Van Der Zaag

Faculty Scholarship

This paper presents a case study of large- and small-scale irrigators negotiating for access to water from Nduruma River in the Pangani River Basin, Tanzania. The paper shows that despite the existence of a formal statutory water permit system, all users need to conform to the existing local rules in order to secure access to water. The spatial geography of Nduruma is such that smallholder farmers are located upstream and downstream, while large-scale irrigators are in the midstream part of the sub-catchment. There is not enough water in the river to satisfy all demands. The majority of the smallholder farmers …

Direct Concern In Regional Policy: The European Court Of Justice And The Southern Question, Daniela Caruso

Faculty Scholarship

For a few years, the European Court of Justice (ECJ) has declared inadmissible, for lack of direct concern, a number of annulment actions initiated by sub-state actors in the context of regional policy. This article compares the ECJ's holdings with the General Court's more generous application of the ‘direct concern’ standard in some of the same disputes, and argues in favour of the General Court's approach. The cases hereby analysed pertain to the implementation of structural funds in Southern Italy. Relating regional policy to the historical unfolding of the ‘Southern Question’, this article examines the unexpected opportunity for civic and …

The Law School Firm, Bradley T. Borden, Robert J. Rhee

Faculty Scholarship

No abstract provided.

Reconceiving The Patent Rocket Docket: An Empirical Study Of Infringement Litigation 1985-2010, Saurabh Vishnubhakat

Faculty Scholarship

This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication.

By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and …

Hip-Hop And Housing: Revisiting Culture, Urban Space, Power, And Law, Lisa T. Alexander

Faculty Scholarship

U.S. housing law is finally receiving its due attention. Scholars and practitioners are focused primarily on the subprime mortgage and foreclosure crises. Yet the current recession has also resurrected the debate about the efficacy of place-based lawmaking. Place-based laws direct economic resources to low-income neighborhoods to help existing residents remain in place and to improve those areas. Law-and-economists and staunch integrationists attack place-based lawmaking on economic and social grounds. This Article examines the efficacy of place-based lawmaking through the underutilized prism of culture. Using a sociolegal approach, it develops a theory of cultural collective efficacy as a justification for place-based …

Who Are The Beneficiaries Of Fisk University's Stieglitz Collection?, Alan L. Feld

Faculty Scholarship

Most fiduciary relationships determine with specificity the beneficiaries of the fiduciary's activities. Not-for-profit entities, however, serve a class of unspecified beneficiaries and can exercise discretion in determining who to serve and how to serve them. This paper explores the limits of discretion that recent litigation established for Fisk University in balancing its educational mission and its administration of a valuable art collection donated decades earlier. The paper analyzes the case as it addresses respect for donor conditions, changes in circumstance, standing issues, the doctrine of cy pres and the designation of the appropriate class of public beneficiaries. Race and geography …