Digital Commons Network^™

Administrative Procedure For The Twenty-First Century: An Introduction To The 2010 Model State Administrative Procedure Act, John L. Gedid

Faculty Scholarship

No abstract provided.

Bob Dylan's Lawyers, A Dark Day In Luzerne County, And Learning To Take Legal Ethics Seriously, Randy Lee

Faculty Scholarship

No abstract provided.

Next Generation Recycling And Waste Reduction: Building On The Success Of Pennsylvania's 1988 Legislation, John C. Dernbach

Faculty Scholarship

No abstract provided.

Pain As Fact And Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions Of Law, Amanda C. Pustilnik

Faculty Scholarship

Legal statuses, prohibitions, and protections often turn on the presence and degree of physical pain. In legal domains ranging from tort to torture, pain and its degree do important definitional work by delimiting boundaries of lawfulness and of entitlements. The omnipresence of pain in law suggests that the law embodies an intuition about the ontological primacy of pain. Yet, for all the work done by pain as a term in legal texts and practice, it has had a confounding lack of external verifiability. As with other subjective states, we have been able to impute pain’s presence but have not been …

Specific Authorization To File Under Chapter 9: Lessons From Harrisburg, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

Adolescents In Society: Their Evolving Legal Status, Introduction, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

The Justices And News Judgment: The Supreme Court As News Editor, Amy Gajda

Faculty Scholarship

No abstract provided.

Just Intervention: Differential Response In Child Protection, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Accountable Care Organizations In The Affordable Care Act, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Alliance Between Payday Lenders And Tribes: Are Both Tribal Sovereignty And Consumer Protection At Risk?, Nathalie Martin

Faculty Scholarship

This Article explores how tribal sovereign immunity is being used in the context of payday lending to avoid state law and explores the ramifications of this for both consumer-protection regulation and tribes. It discusses payday loans and tribal sovereignty generally, as well as tribal sovereign immunity, then discusses what might be done to address this consumer protection issue. More specifically, we discuss who in society has the power and resolve to dissolve this alliance, identifying tribes themselves, the Supreme Court, Congress, the Federal Trade Commission, and the Consumer Financial Protection Bureau as possibilities. We summarize the debate about whether payday …

Out Of Sight, Out Of Legal Recourse: Interpreting And Revising Title Vii To Prohibit Workplace Segregation Premised On Religion, Dawinder S. Sidhu

Faculty Scholarship

The purpose of this article is to argue that the federal courts’ prevailing interpretation of Title VII with respect to religious attire in the workplace is inconsistent with the law. I maintain that Title VII prohibits employers from either placing employees in the back or refusing to hire individuals with conspicuous articles of faith due to any actual or perceived social discomfort with the employee’s religion-based appearance. I am persuaded of this for two independent reasons. First, placing an employee out of public view does not constitute a “reasonable accommodation” under Title VII because the statute’s general anti-discrimination provision expressly …

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, …

Alive But Irrelevant: The Prior Appropriation Doctrine In Today’S Western Water Law, Reed D. Benson

Faculty Scholarship

The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This Article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the …

Death In Cyberspace - Protecting Digital Estates, Jon M. Garon

Faculty Scholarship

No abstract provided.

Personal Foul...Roughing The Taxpayer: The Irs' Triple Penalty On Hardship Distributions, Michael Flynn, Craig C. Minko

Faculty Scholarship

No abstract provided.

Ptsd And Women Warriors: Causes, Controls, And A Congressional Cure, Olympia Duhart

Faculty Scholarship

Women comprise the fastest growing segment of the veteran population. Among the 1.8 million female veterans, more than 230,000 women have served in Iraq or Afghanistan. More than 750 women have been wounded in action; 137 have been killed. By the military’s own estimates, almost 20 percent of female veterans are returning home with Post Traumatic Stress Disorder (“PTSD”). Research suggests that women veterans returning from Iraq are more likely to report mental health concerns – including PTSD, depression and suicidal thoughts -- than their male counterparts. The prevalence of PTSD among women in the United States Armed Forces is …

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

Faculty Scholarship

No abstract provided.

Finding A Voice Of Challenge: The State Responds To Religious Women And Their Communities, Marie Failinger

Faculty Scholarship

The appropriate response of Western nation-states to the situation of religious women who are caught between democratic norms of gender equality and the demands of their religious community has been a source of tension in many Western nations, including the U.S. This article attempts to give voice to the complex nature of women’s religious conduct as tied to their identities, and to propose alternative ways that the state might further its norms of gender equality besides intrusive regulation of religious communities.

Legal Ethics For The Millennials Avoiding The Compromise Of Integrity, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Stateless Babies & Adoption Scams: A Bioethical Analysis Of International Commercial Surrogacy, Seema Mohapatra

Faculty Scholarship

Truth is often stranger than fiction, and nowhere is this more evident than when examining the real stories related to international commercial surrogacy that have occurred in the last few years. This Article utilizes these recent cases to analyze this industry using a bioethical lens. Bioethicists use stories effectively to demonstrate how theory and normative ideals apply to real world situations. By detailing examples of some of the unique scenarios that have arisen in far-flung cities of India, the United States, and the Ukraine, this Article highlights some of the bioethical dilemmas such stories raise. This Article examines these stories …

Lotteries And Public Policy In American Law, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

The Coordination Conundrum, Catherine A. Hardee

Faculty Scholarship

Justice Souter's oft-repeated quote aptly summarizes the function of strict standards of review in constitutional jurisprudence to protect unpopular speech from restrictions based on content-laden value judgments. While strict standards have their advantages, commentators have found fault with their rigidity and have questioned whether any decision-making process can, or should, be free of pragmatic considerations. This doctrinal discussion has been reinvigorated by two recent United States Supreme Court opinions. At the root of both cases was the Court's reliance on the distinction between coordinated and independent speech. This Article examines the validity of this divide and challenges the foundation upon …

Delaware Dissolves The Glue Of Capitalism: Exonerating From Claims Of Incompetence Those Who Manage Other People's Money, Daniel S. Kleinberger

Faculty Scholarship

Delaware law is the leading source of non-federal law governing U.S. business organizations. Over the past 25 years that law has tilted further and further toward insulating individuals who manage business firms from any liability to the firms’ owners based on claims of misconduct. These developments have occurred both in corporate law and the law of unincorporated organizations.

Although often described as consistent with market principles, these developments actually undercut the proper functioning of a market system. Effective competition among firms does not require a “dog eat dog” mentality within firms. Managerial responsibility is a prerequisite to healthy firms, which …

The International Labour Organization And International Labor Standards, Roger Blanpain, Susan Bisom-Rapp, William R. Corbett, Hilary K. Josephs, Michael J. Zimmer

Faculty Scholarship

With the forces of globalization as a backdrop, this casebook develops labor and employment law in the context of the national laws of nine countries important to the global economy - the US, Canada, Mexico, UK, Germany, France, China, Japan and India. These national jurisdictions are highlighted by considering international labor standards promulgated by the International Labor Organization as well as the rulings and standards that emerge from two very different regional trade arrangements - the labor side accord to NAFTA and the European Union. Across all these different sources of law, this book considers the law of individual employment, …

Some Thoughts On The Porous Boundary Between Ordinary And Extraordinary Frauds, Miriam H. Baer

Faculty Scholarship

This is a book review of Tom Baker and Sean Griffith’s 'Ensuring Corporate Misconduct'. Their book provides an exhaustive and illuminating analysis of how corporations contract for director and officer (D&O) liability insurance. Based on extensive interviews with insurance carriers and corporate risk officers, Baker and Griffith conclude that D&O liability insurance has created a moral hazard within the public corporation. Managers, who have incentives to take advantage of shareholders, are inadequately deterred by civil liability for securities fraud because D&O insurance effective shields them from any payout. Accordingly, Baker and Griffith argue for reforms that would reduce this moral …

Application Of Default Rules To Address Financial Conflicts Of Interest In Academic Medical Centers, Joanna K. Sax

Faculty Scholarship

A recent report issued from the Institute of Medicine contains an extensive analysis of financial conflicts of interest (FCOIs) in biomedical science. In brief, an FCOI exists when a profit-seeking motive either unduly influences or appears to influence an academic scientist’s primary obligations. The cornerstone of current policy to address FCOIs at academic medical centers (AMCs) is disclosure; however, disclosure does not appear to appropriately regulate, manage, or eliminate FCOIs.

Although the relationships between intramural scientists and industry and extramural scientists and industry may be structurally different, they both can lead to FCOIs that threaten scientific integrity. Overall, the NIH …

Financial Conflicts Of Interest In Science, Joanna K. Sax

Faculty Scholarship

This article proposes that an analysis of behavior may be utilized to create an effective policy addressing financial conflicts of interest. Importantly, this article focuses on the academics that conduct basic science.

An understanding of the background of the public-private interaction is critical to fully appreciate the rise of the financial conflicts of interest in biomedical science. Part II of this Article describes the rise of financial conflicts of interest and the types of harms that can occur in the absence of effective policy to regulate financial conflicts of interest.

Part III describes the current system addressing conflicts of interest, …

Financing The Future Of Legal Education: "Not What It Used To Be", Steven R. Smith

Faculty Scholarship

This Article will first review the substantial improvements in legal education and track the sources of the funding for these improvements. It will look at whether law school is, and continues to be, a good economic investment for most students. It will then consider the current economic circumstances of legal education and the possible coming disconnect between expectations and reality. It will conclude by considering what could improve the lot of legal education in the future and, to the contrary, what could make matters much worse.

Review Of "The Oceans In The Nuclear Age: Legacies And Risks", John E. Noyes

Faculty Scholarship

The 2011 Fukushima Daiichi nuclear power plant meltdown in Japan, the worst nuclear crisis since Chernobyl, has at least temporarily brought to the forefront of public attention some of the risks associated with nuclear activities. The operation of nuclear plants and waste storage facilities in coastal zones is only one of many nuclear activities affecting the oceans. In this article, the author reviews a book entitled The Oceans in the Nuclear Age. This bookhighlights incidents and statistics that reveal the magnitude of nuclear activities affecting the oceans.

The North American Free Trade Agreement And Its Legacy On The Resolution Of Intellectual Property Disputes, James Cooper

Faculty Scholarship

This essay focuses on NAFTA and the contributions that this regional trade pact made to protect IPR and settle intellectual property (IP) disputes. It also explores the legacy of NAFTA in the context of the eventual WTO, and the rights provided by the TRIPS Agreement that was concluded as part of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations. Section II provides a brief historical background on how NAFTA fit into the world as countries began aligning themselves by creating various trade agreements. Section III surveys the provisions and legacy of NAFTA with respect to …