Digital Commons Network^™

Tiger Restoration In Asia: Ecological Theory Vs. Sociological Reality, Ronald Tilson, Philip J. Nyhus, Neil Franklin

Faculty Scholarship

No abstract provided.

Mathias De Sousa: Maryland's First Colonist Of African Descent, David S. Bogen

Faculty Scholarship

No abstract provided.

Designated Diffidence: District Court Judges On The Courts Of Appeals Papers Of General Interest, James J. Brudney, Corey Distlear

Faculty Scholarship

Since 1980, District CourtJudges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or …

Regulatory Initiatives And The Internet: A New Era Of Oversight For The Securities And Exchange Commission, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Soul Of A New Political Machine: The Online, The Color Line And Electronic Democracy, Eben Moglen, Pamela S. Karlan

Faculty Scholarship

In this Essay, we want to suggest two ways in which people's experience with the Internet may affect how they think politics ought to be organized, and to consider the consequences for the political aspirations of minority communities. First, the notion of "virtual communities” – that is, communities that affiliate along nongeographic lines – may provide new support for alternatives to traditional geographic districting practices. As Americans become more comfortable with the idea that people can belong to voluntarily created, overlapping, fluid, nongeographically defined communities, which may be as important as the physical communities in which they live, they may …

The Political Economy Of Canada's "Widely Held" Rule For Large Banks, Eric J. Gouvin

Faculty Scholarship

All of the recent changes in foreign access to Canada's banking market have been essentially cosmetic-appearing to make foreign access more liberal while in reality changing the status quo very little. On one point, the so-called widely held rule, Canada does not even bother to pretend that its banking law is friendly to foreign entrants. Under this rule, no person or group may control ten percent or more of a Schedule I bank unless one first obtains the approval of the Minster of Finance. This rule makes foreign acquisition of a Schedule I bank virtually impossible. The widely held rule …

Recurring Problems In Indian Gaming, Kevin Washburn

Faculty Scholarship

This essay briefly summarizes the history and legal framework of Indian gaming, describes the recent growth in the industry, and discusses some of the legal controversies that have been repeated across the country as states and tribes adjust to their respective roles in the Indian gaming industry.

Affordable Housing In Suburbia: The Importance But Limited Power And Effectiveness Of The State Override Tool, Sam Stonefield

Faculty Scholarship

Through this Article the Author offers a brief comparative overview and critique of the four statutes explored at the Western New England College School of Law hosted conference, titled "Increasing Affordable Housing and Mobility in Three New England States and New Jersey: Comparative Perspectives on the Occasion of the Thirtieth Anniversary of the Massachusetts Comprehensive Permit Law." The Author discusses these statutes, which address such major themes as urban decline and suburban growth, racial and economic segregation, and localism versus regionalism. The four state statutes are intertwined with these themes and with other statutes and programs that have helped to …

Regulation Of Securities And Security Exchanges In The Age Of The Internet, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Restrictive Covenants, Employee Training, And The Limits Of Transaction-Cost Analysis, Gillian Lester

Faculty Scholarship

Restrictive covenants are an increasingly common feature of employment, used across a wide range of industries, occupations, and employees. In its most common form, a restrictive covenant prohibits an employee from competing with the employer within a certain geographic area fora specified period of time after departure, usually one or two years. Sometimes these clauses are drawn more narrowly, proscribing specific activities such as continued dealings with former customers. Regardless of scope, the typical remedy when an employee breaches such a covenant is injunctive relief.

A substantial literature within law and economics debates the merits of restrictive covenants from an …

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Competition Among Securities Markets: A Path Dependent Perspective, John C. Coffee Jr.

Faculty Scholarship

Today, there are an estimated 150 securities exchanges trading stocks around the world. Tomorrow (or at least within the reasonably foreseeable future), this number is likely to shrink radically. The two great forces reshaping the contemporary world – globalization and technology – impact the world of securities markets in a similar and mutually reinforcing fashion:

1. they force local and regional markets into more direct competition with distant international markets;
2. they increase overall market capitalization and lower the cost of equity capital, as issuers are enabled to access multiple markets; and
3. they permit order flow and liquidity to migrate quickly from …

Can Copyright Become User-Friendly? Review: Jessica Litman, Digital Copyright (2001), Jane C. Ginsburg

Faculty Scholarship

In this review, I will first briefly address Professor Litman's evocation of the copyright law-making process. Her discussion of legislative history presents a valuable and compelling account, especially for those unfamiliar with copyright law. Nonetheless, it is not a principal focus of this review. For those who read the Columbia Journal of Law & the Arts (many of whom may well be copyright lawyers), the most provocative portions of the book, to which I will devote most attention, are likely to be the chapters in which Professor Litman (a) reviews and challenges various metaphors for copyright policy (Chapter 5, "Choosing …

What The Future Holds: Policy Choices In A Global Marketplace, Maureen A. O'Rourke

Faculty Scholarship

This essay's title is a misnomer. No one knows "What the Future Holds" in the global marketplace. We can, however, make some educated guesses about the issues that will assume particular importance in the next year or so. Thus, the essay might be more accurately titled, "What May or May Not Be the Important Issues in Internet Commerce in the Next Year or So'"-less catchy, admittedly, but closer to the truth.

From Difference To Dominance To Domesticity: Care As Work, Gender As Tradition, Joan C. Williams

Faculty Scholarship

No abstract provided.

On Equality, Bias Crimes, And Just Deserts, Kenneth Simons

Faculty Scholarship

In a recent article, Professors Alon Harel and Gideon Parchomovsky propose to widen the focus of criminal law beyond the culpability of the offender and the wrongdoing he commits. Criminal law, they believe, should also encompass the state's special egalitarian duty to protect the interests of the most vulnerable victims of crime. They offer this suggestion for two reasons - to give a convincing justification of bias crime legislation, which they claim a retributivist approach cannot do; and, more broadly, to remedy retributivism's supposedly inadequate attention to the interests of crime victims.

Although these egalitarian goals are worthy, the authors' …

Crop-Raiding Elephants And Conservation Implications At Way Kambas National Park, Sumatra, Indonesia, Philip J. Nyhus, Sumianto, Ronald Tilson

Faculty Scholarship

Crop raiding by wild elephants is one of the most significant sources of park–people conflict in Sumatra, Indonesia. The distribution, impact and conservation implications of elephant crop-raiding in 13 villages that border Way Kambas National Park in southern Sumatra were studied for 18 months. The data are based on rapid village and field assessments, data logs maintained by village observers and a quantitative household survey. Elephants raided crops year-round at a mean rate of 0.53 elephants per day for the entire study area. The frequency of crop raiding was related to vegetation type along the park border, the size and …

The Challenges Of Globally Accessible Process, Peter L. Strauss

Faculty Scholarship

This chapter embraces the strategic use of the Internet for achieving new forms of transparency and participation in the regulatory cooperation process. It explores ‘the challenges of globally accessible process’ through the use of new information technologies. It holds that the incorporation of these technologies in agency processes at the US federal level has created possibilities for the most transparent, participatory, and broadly deliberative regulatory system in the world to become still more so. The Internet promises not merely to expand access to information about the substance and process of regulation, but also to ‘move the government closer to the …

Market Power Requirement In Antitrust Rule Of Reason Cases: A Rhetorical History, The, Mark R. Patterson

Faculty Scholarship

The requirement that an antitrust plaintiff show market power in rule of reason cases has an uninspiring history and unconvincing justifications. Such a requirement has never been adopted by the Supreme Court, and is currently imposed by only the Seventh and Fourth Circuits. Indeed, the requirement was never imposed very widely, despite frequent claims to the contrary. More significantly, the Seventh Circuit cases that initially established the requirement, and that continue to be cited for it, did so with misleading citations to cases from other circuits. Furthermore, the justifications that have been offered for the requirement have generally been either …

Localism And Regionalism, Richard Briffault

Faculty Scholarship

Localism and regionalism are normally seen as contrasting, indeed conflicting, conceptions of metropolitan area governance. Localism in this context refers to the view that the existing system of a large number of relatively small governments wielding power over such critical matters as local land use regulation, local taxation, and the financing of local public services ought to be preserved. The meaning of regionalism is less clearly defined and proposals for regional governance vary widely, but most advocates of regionalism would shift some authority from local governments, restrict local autonomy, or, at the very least, constrain the ability of local governments …

The Prosecutor's Ethical Duty To Seek Exculpatory Evidence In Police Hands: Lessons From England, Stanley Z. Fisher

Faculty Scholarship

The Supreme Court in Kyles v. Whitley affirmed the prosecutor's duty under Brady v. Maryland to disclose exculpatory evidence to the defense, even if the police have not revealed the evidence to the prosecutor. According to the Court, prosecutors are responsible for ensuring that police communicate relevant evidence to her office. How should prosecutors implement that responsibility? Both England and the United States require prosecutors to disclose exculpatory evidence known to the police, but they take radically different approaches to implementing the prosecutor's duty. The English have legislated a comprehensive regulatory framework for police record keeping and revelation of case …

Civic Discourse Amid Cultural Transformation, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Book Review, When Giants Walked The Earth (Reviewing Ken Gormley, Archibald Cox: Conscience Of A Nation (1997)), Randy Lee

Faculty Scholarship

No abstract provided.

Introduction: Latcrit Theory: Mapping It's Intellectual And Political Foundations And Future Self-Critical Directions, Margaret E. Montoya

Faculty Scholarship

The third annual gathering of LatCrit scholars has resulted in this cluster of essays and articles that continue the work of defining the foundations and the future directions of this legal scholarship movement. As described in some of the articles within this cluster, LatCrit has had the benefit of learning valuable lessons from other slightly older schools of critical legal theory, most particularly from the Critical Race Theory ("CRT") Workshop. The LatCrit movement has been strengthened because scholars identified primarily with CRT working with and alongside scholars identified primarily with LatCrit have struggled to recognize, name and address the hetero-normativity …

Disestablishing Local School Districts As A Remedy For Educational Inadequacy Note, Aaron J. Saiger

Faculty Scholarship

Most state constitutions recognize a right to education, but courts have been hard pressed to respond to violations of that right. Some state courts have imposed financial and substantive reforms, only to see their implementation miscarry as educational deficiencies stubbornly persist. Other state courts, fearing such outcomes, instead treat education claims as nonjusticiable political questions; in these states, public education is a right with no remedy. This Note argues that courts should instead base remedies on state statutes that permit states to disestablish-i.e., to withdraw authority from-deficient school districts. Disestablishment, like other structural remedies, is largely self-implementing and avoids judicial …

Five Modern Notions In Search Of An Author: The Ideology Of The Intimate Society In Constitutional Speech Law, Marie Failinger

Faculty Scholarship

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant …

Unplanned Career Paths: The Role Of Serendipity (Part 2), Jim Hambleton, Louis Calvert

Faculty Scholarship

Starting a new position, for whatever reason, means remaining open to new people and new procedures. While it may not be evident, almost every procedure in a library has a historical reason for being. The challenge is to take the time to understand why something is done the way that it is, then evaluate whether the underlying basis still is valid. People often do things "because that's the way it's always been done" without comprehending the underlying reason for the existing procedure. But if the underlying reason still is valid, procedures shouldn't be changed haphazardly.

Understanding the culture of the …

International Secured Transactions And Revised Ucc Articles 9, Neil B. Cohen, Edwin E. Smith

Faculty Scholarship

No abstract provided.

Tribute To Curt Berger, Joan C. Williams

Faculty Scholarship

No abstract provided.

The Legal Infrastructure Of High Technology Industrial Districts: Silicon Valley, Route 128, And Covenants Not To Compete, Ronald J. Gilson

Faculty Scholarship

In recent years, scholars and policymakers have rediscovered the concept of industrial districts – spatial concentrations of firms in the same industry or related industries. In this Article, Professor Gilson examines te relationship between high-technology industrial districts and legal infrastructure by comparing the legal regimes of California's Silicon Valley and Massachusetts's Route 128. He contends that legal rides governing employee mobility influence the dynamics of high technology industrial districts by either encouraging rapid employee movement between employers and to startups, as in Silicon Valley, or discouraging such movement, as in Route 128. Because California does not enforce post-employment covenants not …