Digital Commons Network^™

Splits In The Rock: The Conflicting Interpretations Of The Seminole Rock Deference Doctrine By The U.S. Courts Of Appeals, Kevin O. Leske

Faculty Scholarship

No abstract provided.

A National Mineral Policy As An International Investment Law Stratagem: The Case Of Tajikistan's Gold Reserves, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The International Sugar Trade And Sustainable Development: Curtailing The Sugar Rush, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

The Restatement (Second) Of Contracts Reasonably Certain Terms Requirement: A Model Of Neoclassical Contract Law And A Model Of Confusion And Inconsistency, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

In Pursuit Of Calmer Waters: Managing The Impact Of Trauma Exposure On Immigration Adjudicators, Kate Aschenbrenner

Faculty Scholarship

No abstract provided.

A Primer On Hobby Lobby: For-Profit Corporate Entities' Challenge To The Hhs Mandate, Free Exercise Rights, Rfra's Scope, And The Nondelegation Doctrine, Terri R. Day, Leticia M. Diaz, Danielle Weatherby

Faculty Scholarship

No abstract provided.

Fertility Preservation For Medical Reasons And Reproductive Justice, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Crimes And Medical Care On Board Cruise Ships: Do The Statistics Fit The Crimes?, Leticia M. Diaz, Barry H. Dubner, Nicole Mckee

Faculty Scholarship

No abstract provided.

Limiting Liberty To Prevent Obesity: Justifiability Of Strong Hard Paternalism In Public Health Regulation, Thaddeus Mason Pope

Faculty Scholarship

Because of the largely self-regarding nature of obesity, many current and proposed public health regulatory measures are paternalistic. That is, these measures interfere with a person’s liberty with the primary goal of improving that person’s own welfare.

Paternalistic public health measures may be effective in reducing obesity. They may even be the only sufficiently effective type of regulation. But many commentators argue that paternalistic public health measures are not politically viable enough to get enacted. After all, paternalism is repugnant in our individualistic culture. It is "wrong" for the government to limit our liberty for our own good.

In this …

Lost In The Cloud: Information Flows And The Implications Of Cloud Computing For Trade Secret Protection, Sharon Sandeen

Faculty Scholarship

As has been noted elsewhere, the advent of digital technology and the Internet has greatly increased the risk that a company’s trade secrets will be lost through the inadvertent or intentional distribution of such secrets. The advent of cloud computing adds another dimension to this risk by placing actual or potential trade secrets in the hands of a third-party: the cloud computing service. This article explores the legal and practical implications of cloud computing as they relate to trade secret protection.

While there are many types of cloud computing services, this article focuses on cloud-based services that offer businesses the …

It's Complicated: Age, Gender, And Lifetime Discrimination Against Working Women - The United States And The U.K. As Examples, Susan Bisom-Rapp, Malcolm Sargeant

Faculty Scholarship

This article considers the effect on women of a lifetime of discrimination using material from both the U.S. and the U.K. Government reports in both countries make clear that women workers suffer from multiple disadvantages during their working lives, which result in significantly poorer outcomes in old age when compared to men. Indeed, the numbers are stark. In the U.S., for example, the poverty rate of women 65 years old and up is nearly double that of their male counterparts. Older women of color are especially disadvantaged. The situation in the U.K. is comparable.

To capture the phenomenon, the article …

When Quacking Like A Duck Is Really A Swan Song In Disguise, Nancy C. Marcus

Faculty Scholarship

United States v. Windsor may, in the views of some, walk and talk like a federalist duck, but upon closer examination, the decision is not a federalist decision at all, but is, rather, a swan song for federalist-based marriage discrimination.

Leading up to Windsor, federalist-based arguments for marriage equality were advocated by the late twentieth-century minimalist movement, which viewed the judiciary as an ineffective agent of social change, and urged the narrowest of constitutional claims, pessimistic about the likelihood of broad individual rights claims to same-sex marriage rights. After Windsor’s release, some have interpreted it as being a federalist decision, …

Confronting The Two Faces Of Corporate Fraud, Miriam H. Baer

Faculty Scholarship

Some criminals engage in meticulous planning. Others commit crimes in the heat of the moment. Corporate fraud incorporates both planned and spur-of-the-moment misconduct. Although law and economics scholars have traditionally viewed corporate fraud as a manifestation of opportunism among the corporation’s agents, a new generation of scholars, influenced by findings in behavioral psychology, has focused on the temporal aspects of corporate misconduct. Wrongdoing comes about, not simply because an agent opportunistically takes advantage of her principal, but also because her short-term self falls prey to temptations and cognitive biases that effectively disable her law-abiding long-term self.

Although the law and …

Boilerplate And Consent, Nancy Kim

Faculty Scholarship

In Margaret Jane Radin's book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law, Radin argues that boilerplate is a social problem leading to normative and democratic degradation of important rights. In his review of Radin’s book, Omri Ben-Shahar outlines two approaches to regulation by boilerplate. He labels the first as “autonomism,” which asks “how such one-sided dictation of terms by firms fits within a liberal account of good social order, of democratic control and participation, and of individual autonomy.” Ben-Shahar views Radin as representative of the autonomists. The second way of viewing regulation-by-boilerplate is “to ask …

Two Alternate Visions Of Contract Law In 2025, Nancy Kim

Faculty Scholarship

Part I of this essay examines how businesses have shaped the evolution of contract’s form from the past to the present and ex-plains how courts have responded by reshaping contract law.1 Part II of this essay anticipates changes in the business landscape and explains how these changes might create new challenges for contract law. Part III predicts two alternative visions for contract law in 2025. The first is as a diminished body of law, made nearly irrelevant by other laws and preempted by private rules administered by non-judicial entities. The second vision is that of a robust contract law administered …

The Separation Of Politics And Science, Joanna K. Sax

Faculty Scholarship

This article proposes that scientific inquiry regarding questions of fact should have an autonomous zone that is protected from politics. Although many scholars promote the idea that science is politicized, little empirical data exists to support this conclusion. This article contains an empirical study that demonstrates that the public received inaccurate information in the debate over a highly politicized and controversial area of scientific inquiry, embryonic stem cell research.

This article utilizes the data from the empirical study and public choice theory to explain that there are process defects; this economic model can help explain, but cannot be used to …

The Puzzling Persistence Of Dual Federalism, Ernest A. Young

Faculty Scholarship

This essay began life as a response to Sotirios Barber’s essay (soon to be a book) entitled “Defending Dual Federalism: A Self-Defeating Act.” Professor Barber’s essay reflects a widespread tendency to associate any judicially-enforceable principle of federalism with the “dual federalism” regime that dominated our jurisprudence from the Founding down to the New Deal. That regime divided the world into separate and exclusive spheres of federal and state regulatory authority, and it tasked courts with defining and policing the boundary between them. “Dual federalism” largely died, however, in the judicial revolution of 1937, and it generally has not been revived …

Selling State Borders, Joseph Blocher

Faculty Scholarship

Sovereign territory was bought and sold throughout much of American history, and there are good reasons to think that an interstate market for borders could help solve many contemporary economic and political problems. But no such market currently exists. Why not? And could an interstate market for sovereign territory help simplify border disputes, resolve state budget crises, respond to exogenous shocks like river accretion, and improve democratic responsiveness? Focusing on the sale of borders among American states, this Article offers constitutional, political, and ethical answers to the first question, and a qualified yes to the second.

Responding To Agency Avoidance Of Oira, Nina A. Mendelson, Jonathan B. Wiener

Faculty Scholarship

Concerns have recently been raised that US federal agencies may sometimes avoid regulatory review by the White House Office of Information and Regulatory Affairs (OIRA). In this article, we assess the seriousness of such potential avoidance, and we recommend a framework for evaluating potential responses. After summarizing the system of presidential regulatory oversight through OIRA review, we analyze the incentives for agencies to cooperate with or avoid OIRA. We identify a wider array of agency avoidance tactics than has past scholarship, and a wider array of corresponding response options available to OIRA, the President, Congress, and the courts. We argue …

Kamakahi V. Asrm: The Egg Donor Price Fixing Litigation, Kimberly D. Krawiec

Faculty Scholarship

In April 2011, Lindsay Kamakahi caused an international stir by suing the American Society for Reproductive Medicine (ASRM), the Society for Assisted Reproductive Technology (SART), SART-member fertility clinics, and a number of egg donor agencies on behalf of herself and other oocyte donors. The suit challenged the ASRM-SART oocyte donor compensation guidelines, which limit payments to egg donors to $5,000 ($10,000 under special circumstances), as an illegal price-fixing agreement in violation of United States antitrust laws.

Ensuing discussion of the case has touched on familiar debates surrounding coercion, commodification, and exploitation. It has also revealed many misconceptions about oocyte donation, …

The ‘Competition Of The Market’: “Enter The Elephant!” [A Restatement Of A Most Perplexing First Amendment Conundrum], William W. Van Alstyne

Faculty Scholarship

This short essay revisits the enduring problem of “government propaganda” in the domestic marketplace of “competing ideas.” Drawing his argument from the suggestions and from strongly worded dicta by several famous twentieth century justices (most notably Oliver Wendell Holmes, Jr., Louis Brandeis, Robert Jackson and Hugo Black), Van Alstyne suggests that the First Amendment invests every ordinary citizen with suitable standing (akin to that of a corporate shareholder) to call upon any judge bound by oath of office, as set forth in Article VI, and whose aid is thus appropriately invoked, to enjoin the government from acting as an ideological …

Hawking Hyphens In Compound Modifiers, Joan Ames Magat

Faculty Scholarship

The first principle of legal writing is surely its clarity — visible actors (unless the action matters more), uncluttered syntax, and, of course, logical structure. But the little things can matter to clarity, too — such as deliberate punctuation that signifies. In the language of law, in which compound nouns are rife, the reader can feel adrift as to where modifiers end and the noun begins. (Consider government-subsidized health flexible-spending arrangement without those hyphens.) Hyphens help. Whether an author cares to hyphenate the noun is his call; but hyphenating compound modifiers (also called phrasal adjectives, though they may include adverbs …

Objectivity: A Feminist Revisit, Katharine T. Bartlett

Faculty Scholarship

No abstract provided.

Aligning Incentives In Accountable Care Organizations: The Role Of Medical Malpractice Reform, Laura Hermer

Faculty Scholarship

The Patient Protection and Affordable Care Act (ACA) encourages physicians, hospitals, and other health care providers to deliver better coordinated, high-quality care through the institution of the Medicare Shared Savings Program. Many physicians and other providers moved quickly after the ACA was enacted to enter into arrangements that would allow them to take advantage of the MSSP and similar programs sponsored by private insurers that likely would — and did — arrive on the MSSP’s heels.

Yet despite the initial enthusiasm, it is by no means clear that ACOs will succeed, whether individually or in the greater goal of changing …

Using Egg Freezing To Extend The Biological Clock: Fertility Insurance Or False Hope?, Seema Mohapatra

Faculty Scholarship

No abstract provided.

Swords, Shields, And Shackles: Human And Corporate "Persons" Under The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Faculty Scholarship

No abstract provided.

William Mitchell College Of Law's Hybrid Program For J.D. Study: Answering The Call For Innovation, Eric S. Janus, Gregory M. Duhl, Simon Canick

Faculty Scholarship

In January 2015, William Mitchell College of Law will launch the first American Bar Association (ABA)-approved, on-campus/ online J.D. program to further the college's mission: to provide accessible, experiential, rigorous training for tomorrow's lawyers. Known as the hybrid program, it will offer a legal education to talented, hard-working students who cannot access a traditional J.D. program because of location or family or work commitments. In this article, we explain the origins and pedagogical foundations of the program, as well as give an overview of the program.

Mediator Ethical Breaches: Implications For Public Policy, Sharon Press

Faculty Scholarship

Court-connected mediation, which includes both court mandated and court encouraged mediation, has become a well-established part of the judicial system in the United States. There are many public policy implications of this phenomenon. These include the underlying goals of the development of court-connection mediation and the responsibility to the public once a court-connected mediation program is established to ensure that the public has access to quality providers of mediation services. Once a court-connected mediation program has established qualifications and ethical standards for mediators, there is a public policy obligation for there also to be a mechanism to educate, reprimand or …

Barnacles, Aristocracy And Truth Denial: Three Not So Beautiful Aspects Of Contemporary Mediation, James Coben

Faculty Scholarship

In this article, I examine the themes of self-determination, mediator neutrality, and party empowerment by exploring three separate topics: barnacles, aristocracy and truth denial.

The first topic, barnacles, refers to the surprising and myriad number of ways that mediation has fully integrated (insinuated) itself into the U.S. litigation system. Institutionalization, some might argue, is "beautiful;" indeed, widespread, systematic use of mediation is often offered evidence of success. But I want to explore a different perspective on the same development-how institutionalization leads to rule exploitation and spawns its own unique litigation ironies. The second topic, aristocracy, refers to the documentation and …

The Future Of Medicaid Supplemental Payments: Can They Promote Patient-Centered Care?, Laura Hermer, Merle Lenihan

Faculty Scholarship

Supplemental Medicaid payments such as DSH and UPL are the exception to the financing of specific services to specific patients. Medicaid DSH funds currently finance over 30 percent of hospital care to the uninsured. As a result of the Affordable Care Act (ACA), DSH funds will be substantially reduced. At the same time, their importance will be heightened, especially in states that refuse to take up the ACA’s Medicaid expansion. DSH payments to hospitals have been plagued by a lack of accountability and transparency and an inability to assess whether patients benefit from such payments. Flexibility in the DSH program …