Digital Commons Network^™

From Outsider Status To Insider And Outsider Again: Interest Convergence Theory And Normalization Of Lgbt Identity, Alexander Nourafshan, Angela Onwuachi-Willig

Faculty Scholarship

After the Supreme Court’s decision in United States v. Windsor, which declared the federal Defense of Marriage Act (DOMA) unconstitutional,and after the granting of certiorari in Obergell v. Hodges, where the Supreme Court will decide whether the Fourteenth Amendment requires states to provide a marriage license to same-sex couples, national marriage equality seems like a legal inevitability.However, Windsor and Obergell, along with other state-level advances toward marriage equality, are not equally promising for all members of the lesbian and gay community. Although Windsor and the revolution of cases that have led to Obergell hold significant promise for one privileged subset …

Trafficked? Aids, Criminal Law And The Politics Of Measurement, Aziza Ahmed

Faculty Scholarship

Since early in the HIV epidemic, epidemiologists identified individuals who transact sex as a high-risk group for contracting HIV. Where the issue of transacting sex has been framed as sex work, harm-reduction advocates and scholars call for decriminalization as a primary legal solution to address HIV. Where the issue is defined as trafficking, advocates known as abolitionists argue instead for the criminalization of the purchase of sex.

Global health governance institutions are porous to these competing ideas and ideologies. This article first historicizes the contestation between harm-reduction and abolition in global governance on health. The paper then turns to a …

Challenges For People With Disabilities Within The Health Care Safety Net, Michael Ulrich

Faculty Scholarship

Medicare and Medicaid were passed to serve as safety nets for the country's most vulnerable populations, yet, the disabled community continues to be one whose health care needs are not being met. This group is all too frequently left to suffer health disparities due to cultural incompetency, stigma and misunderstanding, and an inability to create policy changes that covers the population as a whole and their acute and long-term needs.

The Universality Of Medicaid At Fifty, Nicole Huberfeld

Faculty Scholarship

This essay, written for the Yale Law School symposium on The Law of Medicare and Medicaid at 50, explores how the law of Medicaid after the ACA creates a meaningful principle of universalism by shifting from fragmentation and exclusivity to universality and inclusivity. The universality principle provides a new trajectory for all of American health care, one that is not based on individual qualities that are unrelated to medical care but rather grounded in non-judgmental principles of unification and equalization (if not outright solidarity). This essay examines the ACA's legislative reformation, which led to universality, and its quantifiable effects. The …

The Volk Of New Jersey? State Identity, Distinctiveness, And Political Culture In The American Federal System, Ernest A. Young

Faculty Scholarship

The legal literature on federalism has long taken for granted that Americans no longer meaningfully identify with, or feel strong loyalties to, their states. This assumption has led some scholars to reject federalism altogether; others argue that federalism must be reoriented to serve national values. But the issue of identity and loyalty sweeps far more broadly, implicating debates about the political safeguards of federalism, the ability of states to check national power, and the likelihood that states will produce policy innovations or good opportunities for citizen participation in government. The ultimate question is whether American federalism lacks the cultural and …

Against Game Theory, Gale M. Lucas, Mathew D. Mccubbins, Mark Turner

Faculty Scholarship

People make choices. Often, the outcome depends on choices other people make. What mental steps do people go through when making such choices? Game theory, the most influential model of choice in economics and the social sciences, offers an answer, one based on games of strategy such as chess and checkers: the chooser considers the choices that others will make and makes a choice that will lead to a better outcome for the chooser, given all those choices by other people. It is universally established in the social sciences that classical game theory (even when heavily modified) is bad at …

"We're Cool" Statements After Omnicare: Securities Fraud Suits For Failures To Comply With The Law, James D. Cox

Faculty Scholarship

As part of a symposium celebrating the multiple contributions of the late Alan Bromberg, this article examines implications flowing from the Supreme Court’s recent decision in Omnicare Inc. v. Laborers District Council Construction Industry Pension Fund. Because Omnicare lands so squarely on the Court’s earlier opaque opinion in Virginia Bankshares, Inc. v. Sandberg addressing the treatment of the materiality of opinion statements, Omnicare is the new currency in the realm that will have far-reaching implications. In Virginia Bankshares, the Supreme Court quickly concluded shareholders would attach significance to the board of directors’ statement that the cash-out merger …

The Importance Of The Right To Food For Achieving Global Health, Emilie K. Aguirre

Faculty Scholarship

The Framework Convention on Global Health (FCGH) represents a significant opportunity to realize the right to health globally. However, in order to succeed the FCGH must be carefully considered: it must take a new evidence-based approach that departs meaningfully from past shortcomings in realizing the right to health. Central to this approach is recognizing, formally incorporating, and operationalizing the right to adequate food. This right should be correctly interpreted as a right to a standard of nutritional quality and not as a right to a minimum number of calories. Because nutrition is critical to the achievement and maintenance of good …

Preliminary Cruise Report. 2015 Hboi-Fau Cruise. Mesophotic And Deepwater Reef Ecosystems- Rov/Auv Surveys Of Sw Florida Shelf Including Northern Pulley Ridge And Howell Hook Regions. May 7-20, 2015., John K. Reed, Stephanie Farrington, Shirley A. Pomponi, Melissa Price, Harbor Branch Oceanographic Institute

Faculty Scholarship

The primary focus of the Mesophotic Reef Project is to advance NOAA OER goals while complementing the management objectives of NOAA’s Mesophotic Reef Ecosystems program, NOAA’s Deep Sea Coral Research and Technology Program, NOAA’s Sanctuaries Program, NOAA Fisheries, and Regional Fishery Management Councils (Gulf of Mexico, GOM). A major goal of the CIOERT project is to characterize mesophotic and deepwater reef ecosystems across a variety of sites in the GOM off the west Florida shelf, targeting northern Pulley Ridge and adjacent shelf-edge banks and hard bottom habitat that are prospective Essential Fish Habitat (EFH), and prospective MPA sites. This will …

South Atlantic Mpas And Deepwater Coral Hapcs: Characterization Of Fish Communities, Benthic Habitat, And Benthic Macrobiota. Final Report For 2012-2014 Noaa Cruises. A Noaa Cioert Report., Stacey Harter, John K. Reed, Stephanie Farrington, Andrew David, Harbor Branch Oceanographic Institute

Faculty Scholarship

The South Atlantic Fishery Management Council (SAFMC) and Department of Commerce through the Magnuson-Stevens Fishery Management Act have established eight deepwater Marine Protected Areas (MPAs) and five deepwater Coral Habitat Areas of Particular Concern (CHAPCs) in addition to the Oculina Coral HAPC along the outer continental shelf off the southeastern U.S. This project proposed to document and characterize the benthic habitat, benthic sessile biota, and fish populations within some of these protected areas and within the jurisdiction of the SAFMC. In February 2009, the SAFMC implemented eight Type II MPAs between Cape Hatteras, NC and the Florida Keys to protect …

Athletic Compensation For Women Too? Title Ix Implications Of Northwestern And O'Bannon, Erin E. Buzuvis

Faculty Scholarship

The NCAA has been relying on Title IX requirements to defend its polices prohibiting compensation for college athletics; it argues that paying athletes in revenue sports, coupled with the commensurate obligation under Title IX to pay female athletes, would be prohibitively expensive.

As a response to the NCAA’s argument, the Author seeks to advance two positions: first, that Title IX would, as argued by the NCAA, require payment of female athletes using some measure of equality; and second, that it is not Title IX that renders the prospect of athlete compensation cost prohibitive, but rather, the fact that college athletics …

When The Story Is Too Good To Be True: A Lawyer's Role In Resisting The Lure Of Narrative, Jeanne Kaiser, Scott Brown

Faculty Scholarship

Storytelling is important in legal persuasion. The power of a good story is why an attorney strives to mold the facts of a case into a tale with clear heroes and villains. High profile bullying stories and the reaction to those stories by prosecutors, legislators, and the legal academy provide examples of lawyers’ susceptibility to the power of an emotional narrative. This Article explores how social problems, like those relating to Phoebe Prince, Tyler Clementi, and Meagan Meiers, are likely to seem more real and pressing when presented in human terms as opposed to the abstract consequences.

The Law Of Police, Richard H. Mcadams, Dhammika Dharmapala, Nuno Garoupa

Faculty Scholarship

Some Fourth Amendment doctrines distinguish between searches executed by police and others, being more demanding of the former. We explore these distinctions by offering a simple theory for how "police are different," focusing on self-selection. Those most attracted to the job of policing include those who feel the most intrinsic satisfaction from facilitating the punishment of wrongdoers. Thus, we expect police to have more intensely punitive preferences, on average, than the public or other governmental actors. Some experimental evidence supports this prediction. In turn, stronger punishment preferences logically lower one's threshold of doubt --the perceived probability of guilt at which …

Expectant Fathers, Abortion, And Embryos, Dara Purvis

Faculty Scholarship

One thread of abortion criticism, arguing that gender equality requires that men be allowed to terminate legal parental status and obligations, has reinforced the stereotype of men as uninterested in fatherhood. As courts facing disputes over stored pre-embryos weigh the equities of allowing implantation of the pre-embryos, this same gender stereotype has been increasingly incorporated into a legal balancing test, leading to troubling implications for ART and family law.

Vaccines, Measles And Rights, Dorit Rubenstein Reiss

Faculty Scholarship

No abstract provided.

From Contract To Status: Collaboration And The Evolution Of Novel Family Relationships, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The past decade has witnessed dramatic changes in public atti- tudes about and legal status for same-sex couples who wish to marry. These changes demonstrate that the legal conception of the family is no longer limited to traditional marriage. They also raise the possibility that other relationships – cohabiting couples and their children, voluntary kin groups, multigenerational groups, and polygamists – might gain legal recognition as families. This Article probes the challenges faced by aspiring families and the means by which they could attain their goal. It builds on the premise that the state remains committed to social-welfare criteria for …

Agencies, Polarization, And The States, Gillian E. Metzger

Faculty Scholarship

Political polarization is all the rage. Yet administrative agencies are strikingly absent from leading accounts of contemporary polarization. To the extent they appear, it is largely as acted-upon entities that bear the fallout from the congressional-presidential confrontations that polarization fuels, or as the tools of presidential unilateralism. This failure to incorporate administrative agencies into polarization accounts is a major omission. Agencies possess broad grants of preexisting authority that they can use to reshape governing policy and law, often at presidential instigation, thereby putting pressure on Congress to respond. In the process, they can construct new alliances and arrangements that have …

The Federal Reserve: A Study In Soft Constraints, Kathryn Judge

Faculty Scholarship

In response to the greatest financial crisis since the Great Depression, the Federal Reserve (the Fed) took a number of unprecedented steps to try to minimize the adverse economic consequences that would follow. From providing liquidity injections to save companies like Bear Stearns and American International Group (AIG) to committing to a prolonged period of exceptionally low interest rates and buying massive quantities of longer-term securities to further reduce borrowing costs, the Fed's response to the 2007 through 2009 financial crisis (the Crisis) has been creative and aggressive. These actions demonstrated that the Fed is uniquely powerful among federal agencies, …

Limiting Tax Expenditures, David M. Schizer

Faculty Scholarship

The federal government devotes over a trillion dollars each year to tax provisions that pursue "nontax" goals, such as the deduction for mortgage interest and the exclusion for employer-provided health insurance. Scaling back these "tax expenditures" should be a high priority, as many have urged. Yet too often, the same limit is suggested for a broad range of tax expenditures. In the 2013 budget deal, for instance, Congress revived a single limit on all itemized deductions called the "Pease rule." In 2012, both presidential candidates proposed their own one-size-fits-all limit. In the same year, the United Kingdom imposed a single …

The Struggle For Administrative Legitimacy, Jeremy K. Kessler

Faculty Scholarship

Nearly forty years ago, Professor James 0. Freedman described the American administrative state as haunted by a "recurrent sense of crisis." "Each generation has tended to define the crisis in its own terms," and "each generation has fashioned solutions responsive to the problems it has perceived." Yet "a strong and persisting challenge to the basic legitimacy of the administrative process" always returns, in a new guise, to trouble the next generation. On this account, the American people remain perennially unconvinced that administrative decisionmaking is "appropriate, proper, and just," entitled to respect and obedience "by virtue of who made the decision" …

Reforming The Law Of Reputation, Frank Pasquale

Faculty Scholarship

No abstract provided.

Four Futures Of Legal Automation, Frank Pasquale, Glyn Cashwell

Faculty Scholarship

No abstract provided.

Academic Duty And Academic Freedom, Amy Gajda

Faculty Scholarship

No abstract provided.

Religion And Marriage Equality Statutes, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Hiv Infrastructure Study Jackson, Mississippi, Susan S. Reif, Elena Wilson, Carolyn Mcallaster, Miriam Berger

Faculty Scholarship

No abstract provided.

A Sentencing Commission For The Administrative State?, Max J. Minzner

Faculty Scholarship

Since the 1980s, oversight of punishment in the federal criminal system has been centralized. A single body, the Sentencing Commission, regulates criminal punishment through the Sentencing Guidelines. The Guidelines are designed to bring consistency and transparency to criminal punishment, but come with the inevitable cost of a loss of case-by-case judicial discretion. In contrast, punishment in the federal administrative state is almost completely decentralized. No single body oversees agency punishment practices. The administrative model makes the opposite choice of the criminal model. It favors individualized punishment determinations over the benefits of consistency and transparency. In this Essay, I consider the …

Equity By The Numbers: Measuring Poverty, Inequality, And Injustice, Matthew D. Adler

Faculty Scholarship

Can we measure inequity? Can we arrive at a number or numbers capturing the extent to which a given society is equitable or inequitable? Sometimes such questions are answered with a “no”: equity is a qualitative, non-numerical consideration.

This Article offers a different perspective. The difficulty with equity measurement is not the impossibility of quantification, but the overabundance of possible metrics. There currently exist at least four families of equity-measurement frameworks, used by scholars and, to some extent, governments: inequality metrics (such as the Gini coefficient), poverty metrics, social-gradient metrics (such as the concentration index), and equity-regarding social welfare functions. …

Coming Into The Anthropocene, Jedediah Purdy

Faculty Scholarship

This essay reviews Professor Jonathan Cannon’s Environment in the Balance. Cannon’s book admirably analyzes the Supreme Court’s uptake of, or refusal of, the key commitments of the environmental-law revolution of the early 1970s. In some areas the Court has adapted old doctrines, such as Standing and Commerce, to accommodate ecological insights; in other areas, such as Property, it has used older doctrines to restrain the transformative effects of environmental law. After surveying Cannon’s argument, this review diagnoses the historical moment that has made the ideological division that Cannon surveys especially salient: a time of stalled legislation, political deadlock, and …

Wealth And Democracy, Jedediah Purdy

Faculty Scholarship

The renewed debate over inequality has highlighted a set of deficits in much of the last fifty-plus years of thinking on the topic. The late twentieth-century tradition of thinking about distributive justice largely assumed (1) that market dynamics would produce stable and tolerable levels of inequality; and (2) that a relatively powerful, competent, and legitimate state could effectively redistribute to mitigate what inequality did arise. What was largely overlooked in this thought and has since risen to central attention is the prospect that (1) accelerating levels of market-produced inequality will (2) undermine the legitimacy and efficacy of the state and …

Law Firm Selection And The Value Of Transactional Lawyering, Elisabeth De Fontenay

Faculty Scholarship

Following the contraction in demand for law firms’ services during the Great Recession, “Big Law” was widely diagnosed as suffering from several maladies that would spell its ultimate demise, including excessive fees, excessive size, increased competition from in-house counsel, the commoditization of legal work, and the decline in demand for “relationship firms.” While each of these market pressures is only too real for certain segments of the law-firm population, their threat to the most elite U.S. law firms has been largely misunderstood. Even as many firms reduce their fees and contract in size, we should expect certain firms to continue …