Digital Commons Network^™

Judging Innocence, Brandon L. Garrett

Faculty Scholarship

This empirical study examines for the first time how the criminal justice system in the United States handled the cases of people who were subsequently found innocent through postconviction DNA testing. The data collected tell the story of this unique group of exonerees, starting with their criminal trials, moving through levels of direct appeals and habeas corpus review, and ending with their eventual exonerations. Beginning with the trials of these exonerees, this study examines the leading types of evidence supporting their wrongful convictions, which were erroneous eyewitness identifications, forensic evidence, informant testimony, and false confessions. Yet our system of criminal …

Global Climate Change: Water Supply Risks And Water Management Opportunities, Brian E. Gray

Faculty Scholarship

No abstract provided.

Climate Change And Environmental Assessment Law, Dave Owen

Faculty Scholarship

No abstract provided.

Coverage Advice: The Missing Piece Of The Cumis Puzzle, Leo P. Martinez

Faculty Scholarship

No abstract provided.

The Political Balance Of Power Over The Military: Rethinking The Relationship Between The Armed Forces, The President, And Congress, Geoffery S. Corn, Eric Talbot Jensen

Faculty Scholarship

Recent events related to the planning and execution of the war in Iraq, most notably the perceived 2003 "firing" of then Army Chief of Staff Eric Shinseki, have raised concerns over the effect of Executive Branch dominance of the military and how that dominance impacts the ability of Congress to obtain timely and important information. Such actions, perceived to discourage members of the military from providing candid views to Congress when they differ with the Administration, even if implied instead of express, strike at the very core of the founder's intent to balance military power within the national government. The …

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Faculty Scholarship

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

Commentary On The U.N. International Law Commission's Draft Articles On The Law Of Transboundary Aquifers, Gabriel E. Eckstein

Faculty Scholarship

Ground water is the most extracted natural resource in the world. It provides more than half of humanity's freshwater for everyday uses such as drinking, cooking, and hygiene, as well as twenty percent of irrigated agriculture. Despite our increasing reliance, ground water resources have long been the neglected stepchild of international water law; regulation and management of and information about ground water resources are sorely lacking, especially in the international context. Presently, there is no international agreement squarely addressing ground water resources that traverse an international boundary. Moreover, there is only one treaty in the entire world pertaining to the …

Testimony On Law Enforcement In Indian Country Before The United States Senate Committee On Indian Affairs, 110th Congress, 1st Session, Kevin Washburn

Faculty Scholarship

Public safety and criminal justice on Indian reservations are better served when Indian tribes play a central role in these functions. Most of the successes of law enforcement in Indian country have involved careful cooperation and coordination between law enforcement agencies of different sovereigns. Even informal cooperation can be highly effective in improving public safety. Lack of cooperation undermines public safety.

Tigers, Wolves, And Moose, Oh My: Challenges And Opportunities For Promoting Undergraduate Research In Environmental Studies With Gis, Philip J. Nyhus, F Russell Cole, David H. Firmage

Faculty Scholarship

No abstract provided.

An Analysis Of Attendance At Major League Baseball Spring Training Games, Michael R. Donihue, David Findlay, Peter Newberry

Faculty Scholarship

This paper examines the determinants of game-day attendance during Major League Baseball’s 2002 spring training season in Florida. Our model of game-day attendance includes location, quality of game, and time and weather variables. A censored Tobit estimation procedure is used to estimate our model. Our results indicate that the quality of the game, average ticket price, and several location-specific factors affect attendance. Specifically, our results suggest that changes in income have no effect on attendance while increases in ticket prices cause reductions in attendance. Furthermore, the estimated price elasticity of demand for Major League Baseball during the spring training season …

Tackling Biocomplexity With Meta-Models For Species Risk Assessment, Philip J. Nyhus, Robert C. Lacy, Francis R. Westley, Philip S. Miller, Harrie Harrie Vredenburg, Paul C. Paquet, John Pollak

Faculty Scholarship

We describe results of a multi-year effort to strengthen consideration of the human dimension into endangered species risk assessments and to strengthen research capacity to understand biodiversity risk assessment in the context of coupled human-natural systems. A core group of social and biological scientists have worked with a network of more than 50 individuals from four countries to develop a conceptual framework illustrating how human-mediated processes influence biological systems and to develop tools to gather, translate, and incorporate these data into existing simulation models. A central theme of our research focused on (1) the difficulties often encountered in identifying and …

Judicial Deference To Administrative Agencies And Its Limits, Graham G. Martin, David A. Super

Faculty Scholarship

No abstract provided.

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray

Faculty Scholarship

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …

Rethinking Work And Citizenship, Jennifer Gordon, Robin A. Lenhardt

Faculty Scholarship

This Article advances a new approach to understanding the relationship between work and citizenship that comes out of research on African American and Latino immigrant low-wage workers. Media accounts typically portray African Americans and Latino immigrants as engaged in a pitched battle for jobs. Conventional wisdom suggests that the source of tension between these groups is labor competition or the racial prejudice of employers. While these explanations offer useful insights, they do not fully explain the intensity and longevity of the conflict. Nor has relevant legal scholarship offered a sufficient theoretical lens through which this conflict can be viewed. In …

A Moratorium On Intersex Surgeries?: Law, Science, Identity, And Bioethics At The Crossroads, Laura Hermer

Faculty Scholarship

Should the law prevent all parents and guardians from requesting and consenting to cosmetic genital surgeries on children with certain intersex conditions before the children are mature enough to decide the matter for themselves? While such surgeries ought not to be encouraged, banning the surgeries altogether, as some advocate, would hobble, if not eliminate, the burgeoning scientific investigation of the best treatment practices for different intersex conditions. It would also remove a surgical option that, according to data in a number of studies, has resulted in subjectively satisfactory outcomes for many patients.

Just Until Payday, Ronald J. Mann, Jim Hawkins

Faculty Scholarship

The growth of payday lending markets during the last fifteen years has been the focus of substantial regulatory attention both in the United States and abroad, producing a dizzying array of initiatives by federal and state policymakers. Those initiatives have had conflicting purposes – some have sought to remove barriers to entry while others have sought to impose limits on the business. As is often the case in banking markets, the resulting patchwork of federal and state laws poses a problem when one state is able to dictate the practices of a national industry. For most of this industry's life, …

The Twail Discourse: The Emergence Of A New Phase, Madhav Khosla

Faculty Scholarship

One of the most important discourses to have emerged in opposition to mainstream international law has been the third world approaches to international law (TWAIL). This discourse may be divided into two historical phases: TWAIL I and TWAIL II. While TWAIL I was characterised by a focus on colonization and the hegemonic use of international law by powerful nations, TWAIL II has concentrated on international institutions and the impact of globalisation. It is posited that the TWAIL discourse is in the process of entering into a new phase post 9/11. This phase can be understood as one in which TWAIL …

New Frameworks For Racial Equality In The Criminal Law, Jeffery Fagan, Mukul Bakhshi

Faculty Scholarship

This Symposium, " Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McClesky v. Kemp," was conceived and inspired by Theodore Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, Inc. Ted Shaw and his staff worked with Columbia Law School Professor Jeffrey Fagan to recruit an outstanding group of scholars and activists who met on March 2-3, 2007 to hear and comment on the articles appearing in this Symposium. In addition to the authors whose work appears in this issue, many others made important contributions to the Symposium through their commentaries and presentations. These …

Race-Ing Patents/Patenting Race: An Emerging Political Geography Of Intellectual Property In Biotechnology, Jonathan Kahn

Faculty Scholarship

This article applies insights from critical race theory to examine an emerging phenomenon in biotechnology research and product development. The strategic use of race as a genetic category to obtain patent protection and drug approval. A dramatic rise in the use of race in biotechnology patents indicates that researchers and affiliated commercial enterprises are coming to see social categories of race as presenting opportunities for gaining, extending, or protecting monopoly market protection for an array of biotechnological products and services. Racialized patents are also providing the basis for similarly race-based clinical trial designs, drug development, capital raising and marketing strategies …

In Memoriam: Clark Byse, Stephen G. Breyer, Elena Kagan, Andrew L. Kaufman, Todd D. Rakoff, Peter L. Strauss, Richard K. Willard

Faculty Scholarship

The editors of the Harvard Law Review respectfully dedicate this issue to Professor Clark Byse.

The Geography Of Family Privacy, David D. Meyer

Faculty Scholarship

No abstract provided.

A Textual And Historical Case Against A Global Constitution, Andrew Kent

Faculty Scholarship

he emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

Do You See What I See - Reflections On How Bias Infiltrates The New York City Family Court - The Case Of The Court Ordered Investigation, Leah A. Hill

Faculty Scholarship

That the Family Court is ill-equipped to address the needs of the hundreds of thousands of cases handled therein is not news. Exploding caseloads, complex problems, and minimal resources are just a few of the ingredients that combine to undermine the Court's ability to fulfill its promise. What has been given less attention until very recently is the extent to which the Family Court's failures disproportionately impact low-income families of color. Any analysis of the Court's impact or efficacy must consider the context I have described in my observations of the Court- the images of black and brown litigants hurrying …

Property Outlaws, Eduardo Moises Peñalver, Sonia K. Katyal

Faculty Scholarship

Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a "wrongdoer" comports with the status of property rights within our characteristically individualist, capitalist, political culture. This reflexively dim view of property lawbreakers is also shared, to a large degree, by property theorists, many of whom regard property rights as a relatively fixed constellation of entitlements that collectively produce stability and efficiency through an orderly system of ownership. In this Article, Professors Peihalver and Katyal seek partially to rehabilitate the reviled character of the intentional property …

Why De Minimis?, Matthew D. Adler

Faculty Scholarship

De minimis cutoffs are a familiar feature of risk regulation. This includes the quantitative individual risk thresholds for fatality risks employed in many contexts by EPA, FDA, and other agencies, such as the 1-in-1 million lifetime cancer risk cutoff; extreme event cutoffs for addressing natural hazards, such as the 100 - year - flood or 475 - year - earthquake; de minimis failure probabilities for built structures; the exclusion of low - probability causal models; and other policymaking criteria. All these tests have a common structure, as I show in the Article. A de minimis test, broadly defined, tells the …

Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero

Faculty Scholarship

Any system for selecting judges must be legitimate, and it will not be perceived as legitimate if it excludes certain members of the bar or if it makes it difficult for different groups to get its members on the bench. For an appointive system1 to be perceived as legitimate, it must ensure that diversity is considered in nominating candidates and in appointing judges. This Article will examine the different measures that states, with a particular focus on New Mexico, have adopted in order to enhance diversity in their appointive systems and then propose ways to structure an appointive system that …

To Condone Or Condemn? Regional Enforcement Actions In The Absence Of Security Council Authorization, Monica Hakimi

Faculty Scholarship

The U.N. Charter establishes that regional arrangements may not take enforcement actions without authorization from the Security Council. Yet the international community does not always enforce this Charter rule. Major international actors repeatedly tolerate deviations from it even as they assert that it allows no exceptions. This Article examines that practice, arguing that two different legal systems govern enforcement actions taken by regional arrangements. One system is reflected in the Charter text and publicly endorsed by major international actors. The second, more nebulous system is based on expectations and demands in the absence of Security Council authorization. Under this second …

Race, Redistricting, And Representation, Guy-Uriel Charles

Faculty Scholarship

This Essay, which was written for the Ohio State Law Journal's symposium on Election Law and the Roberts Court, examines the Court's decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority's worry in LULAC and that the case is the first application of Justice Kennedy's representation rights concept first introduced in Vieth.

The Lawyer Is Not The Protagonist: Community Campaigns, Law, And Social Change, The Symposium: Race, Economic Justice, And Community Lawyering In The New Century: Concluding Essay, Jennifer Gordon

Faculty Scholarship

Stories about law and social change can have a sameness to them. Yet in many ways, the tales told in this volume stand out from the crowd. Each story is shaped around a campaign undertaken by a community organization or coalition deeply engaged in the struggle for racial and economic justice. Attorneys appear as supporting players rather than main characters, seeking to help organizations build the power needed to achieve their goals. These lawyers translate information about the law into lay language, pressure opponents, defend the organization, open up spaces for community voice and action, and seek to establish new …

Law And The Market: The Impact Of Enforcement, John C. Coffee Jr.

Faculty Scholarship

Are the U.S. capital markets losing their competitiveness? A fascinating question, but what does it mean and how can it be intelligently assessed? This Article will explore the newly popular thesis that draconian enforcement and overregulation are injuring the United States and will offer a sharply contrasting interpretation: higher enforcement intensity gives the U.S. economy a lower cost of capital and higher securities valuations. This higher intensity attracts some foreign listings, but deters others.

This Article will proceed by first mapping the marked variation in the intensity of enforcement efforts by securities regulators in selected nations and then relating these …