Digital Commons Network^™

Thinking Locally: Law, Aging And Municipal Government: Findings From A National Survey, A. Kimberley Dayton, Israel (Issi) Doron

Faculty Scholarship

Municipal law, which has been largely ignored in the body of elder-rights scholarship, often plays a far more important role in the everyday lives of older persons than the principally aspirational concepts of international law. Accordingly, this article examines how well modern cities have fulfilled their potential role in assuring the civil and human rights of older persons. The author concludes, based on the results of a national study, that local law is not currently fulfilling its potential as a means to expand the rights of older citizens. Few cities across the country appear to have taken more than minor …

Physicians And Safe Harbor Legal Immunity, Thaddeus Pope

Faculty Scholarship

Professor Sandra Johnson has identified what she calls physician’s “bad law” claims. In some circumstances, physicians perceive that there is significant legal risk in doing what they think is clinically appropriate. In response, physicians sometimes take a medically inappropriate course of action, because it appears safer. For example, physicians might feel intimidated by aggressively enforced drug control laws. In response, they may under-treat patients’ pain to avoid perceived (and real) threats of investigation, discipline, or criminal prosecution. In short, well-meaning laws sometimes have the unintended side-effect of incentivizing physicians to do “bad” things.

Johnson identifies three responses to physicians’ “bad …

Between Semiotic Democracy And Disobedience: Two Views Of Branding, Culture And Intellectualproperty, Sonia K. Katyal

Faculty Scholarship

Even though most scholars and judges treat intellectual property law as a predominantly content-neutral phenomenon, trademark law contains a statutory provision, section 2(a), that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous.” This provision has raised intrinsically powerful constitutional concerns, which invariably affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a …

“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Michael C. Dorf, Neil S. Siegel

Faculty Scholarship

In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA’s exaction for being uninsured qualifies as a …

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S 'Harm Principle,' And American Social Morality, Jedediah S. Britton-Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, we show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that refusing …

Executive Summary (2012), Gina S. Warren

Faculty Scholarship

2011 was a year full of Energy. One could not open a (virtual) newspaper without seeing an article or commentary on energy-related issues, such as the U.S. Supreme Court's decision in American Electric Power Co. v. Connecticut regarding greenhouse gas ("GHG") regulation, the future of renewable energy, and natural gas extraction via hydraulic fracturing, to list a few. GHG emissions, renewable energy development, and hydraulic fracturing have historically been left to the states to police; however, the Environmental Protection Agency ("EPA") is set to commence regulation of GHG emissions as early as May 2012 and is currently studying hydraulic fracturing …

Denial And Concealment Of Unwanted Pregnancy: "A Film Hollywood Dared Not Do", Susan Ayres, Prema Manjunath

Faculty Scholarship

The actual cases and two films examined in this essay challenge stock narratives of mothers who deny or conceal unwanted pregnancy as a monster, or a victim, and also challenge "legal norms, logic and structures" pertaining to unwanted pregnancy and neonaticide. This essay draws on films because of their influential power to "reach enormous audiences by combining narratives and appealing characters with visual imagery and technological achievement, ... stir deep emotions and leave deep impressions." For these reasons, Orit Kamir asserts that films are more compelling than "theoretical legal texts or even judicial rhetoric."

The two films examined -- Stephanie …

Enforcement, Enforcement, What Enforcement?, Peter K. Yu

Faculty Scholarship

The protection and enforcement of intellectual property rights has been a very hot topic in the past few years. From the introduction of the PROTECT IP Act of 2011 to the adoption of the Anti-Counterfeiting Trade Agreement (ACTA) to a recent U.S.-China dispute before the WTO, the topic has dominated policy debates at both the domestic and international levels. While most policymakers, industry representatives, and commentators have recognized the critical importance of intellectual property enforcement, there has been neither philosophical nor normative consensus on the appropriate norms in this area. Like three blind men trying to describe an elephant, different …

Cartelizing Taxes: Understanding The Oecd's Campaign Against Harmful Tax Competition, Andrew P. Morriss, Lotta Moberg

Faculty Scholarship

Formed in 1961 to promote global economic and social well-being, the Organisation for Economic Co-operation and Development (OECD) has become the collective voice of rich countries on international tax issues. After an initial focus on improving commerce through addressing double taxation issues, the organization shifted to a focus on restricting tax competition and increasing automatic exchanges of tax information. In this paper we analyze the reasons for this shift in policy focus. After describing the history of the OECD's work on taxation, we examine the OECD's project against "harmful tax competition" as it has played out since its launch in …

From The Oppressed To The Terrorist: Muslim-American Women In The Crosshairs Of Intersectionality, Sahar F. Aziz

Faculty Scholarship

In the post-9/11 era, Muslim women donning a headscarf in America find themselves caught at the intersection of bias against Islam, the racialized Muslim, and women. In contrast to their male counterparts, Muslim women face unique forms of discrimination not adequately addressed by Muslim civil rights advocacy organizations, women's rights organizations, or civil liberties advocates.

This paper examines how the September 11th attacks adversely impacted the lives of headscarved Muslim women in ways different than Muslim men. Ten years after 9/11, there is a plethora of literature about what has become known as "post-9/11 discrimination." Most of the discussion focuses …

Reading Ricci And Pyett To Provide Racial Justice Through Union Arbitration, Michael Z. Green

Faculty Scholarship

With the current political climate regarding racial issues, any positive gains in resolving race discrimination claims in the workplace cannot come from new legislation through the Obama administration. Instead, those gains will have to come from within the workplace. Unions and their employee members must work together and with employers to resolve those disputes. Specifically, in this Article, two high-profile employment discrimination cases decided by the Supreme Court during President Obama's first year in office--Ricci v. DeStefano and Penn Plaza LLC v. Pyett--help identify a framework whereby employees with racial discrimination claims against their employers may work with …

Sharing Secrets: Examining Deferred Action And Transparancy In Immigration Law, Shoba S. Wadhia

Faculty Scholarship

This Article is about deferred action and transparency in related immigration cases falling under the jurisdiction of the Department of Homeland Security (DHS). While scholars from other genres have written extensively on the topic of prosecutorial discretion, the subject is largely absent from immigration scholarship, with the exception of early research conducted by Leon Wildes in the late 1970s and early 2000s, and a law review article I published in 2010 outlining the origins of prosecutorial discretion in immigration law and related lessons that can be drawn from administrative law and criminal law. That article ends with specific recommendations for …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Faculty Scholarship

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

In-House Counsel Beware!, Katrice Bridges Copeland

Faculty Scholarship

This Article argues that the prosecution of Lauren Stevens for covering up the alleged crimes of GSK was misguided both as a matter of law and a matter of policy. In particular, this Article contends that the government should not prosecute attorneys for obstruction of justice or other cover-up crimes for actions taken in good faith during a government investigation into a client's conduct. Part I provides background on the Lauren Stevens case and the convergence of the four prosecution trends that led the government to indict her. Part II argues that Lauren Stevens did not obstruct the government's investigation …

Female Law Students, Gendered Self-Evaluation, And The Promise Of Positive Psychology, Dara Purvis

Faculty Scholarship

For the last several decades, studies and surveys have shown that female law students perform worse and feel worse about their experiences in law school than do male students. Hidden in average figures, however, is a subgroup of female students who thrive. Positive psychology, focusing on what traits make people happy rather than how to alleviate depression, provides novel ideas of how to improve legal education for women without making accommodations specifically targeting gender.

Intended Parents And The Problem Of Perspective, Dara Purvis

Faculty Scholarship

When asked to identify the legal parents of a child, traditional family law principles look backwards in time, primarily to biology and to marriage. People using assisted reproductive technologies such as surrogacy, however, seek to manifest their intent to become parents with a forward-looking temporal perspective, before a child is conceived and born. Of the existing doctrines used to identify parentage – marital presumption, biology, functional theories, and intent – only intent facilitates a forward-looking perspective. Intent through time, however, is not treated consistently. A woman, for example, may donate an egg, and may place a baby up for adoption, …

A Female Disease: The Unintentional Gendering Of Fibromyalgia Social Security Claims, Dara Purvis

Faculty Scholarship

Social Security disability claims are not supposed to be decided based on the gender of the applicant. Reliance on the apparently neutral mechanism of clinical medical evidence, however, has a disproportionate impact on women bringing disability claims based on fibromyalgia. Recognizing and identifying disability has been delegated by Congress and the Social Security Administration almost entirely to physicians, based upon a misguided and mistaken belief that clinical medical evidence evaluated by a trained physician will answer with certainty whether an individual claimant is capable of working. Fibromyalgia, a diffuse syndrome characterized by excess pain that is overwhelmingly diagnosed in women …

Freedom And Governance In U.S. Arbitration Law, Thomas E. Carbonneau

Faculty Scholarship

Arbitration has long served as a contractual substitute for judicial litigation. It provided a workable and effective form of adjudication in ancient societies and among religious groups, much as it does in contemporary times. Its long-standing appeal resides in enabling parties to choose a private adjudicatory mechanism based upon expertise and expedition that delivers fair, affordable, and enforceable outcomes. Arbitral adjudication effectively intermediates between the need for functional trial procedures and the imperative of safeguarding legal rights. Rights cannot be vindicated if the applicable hearing mechanisms are inaccessible and inefficient. The protracted puffery of lawyers is not a feasible solution …

Enforcing Integrity, Katrice Bridges Copeland

Faculty Scholarship

Over the past several years, the marketing practices of large pharmaceutical companies have come under intense scrutiny. The government spends years investigating and building cases against pharmaceutical manufacturers that engage in illegal promotional activities to promote their drugs but does not prosecute them. Instead, the government enters into Corporate Integrity Agreements (CIAs) with the pharmaceutical giants. As a result, the pharmaceutical manufacturers are able to avoid the collateral consequences of conviction, such as exclusion from Medicare and Medicaid. Participation in Medicare and Medicaid is crucial for a pharmaceutical manufacturer because the government spends over $60 Billion per year through those …

Location, Location, Location: Using Cost Of Living To Achieve Tax Equity, James M. Puckett

Faculty Scholarship

All other things being equal, the federal income tax ignores whether the taxpayer lives in a relatively affordable or expensive location. This approach can lead to unfairness; moreover, special deductions for the taxpayer’s actual living expenses, such as home mortgage interest and state and local taxes, do not solve the problem. Tax law scholars have generally been quick to dismiss the equity issues based on assumptions about taxpayer mobility. The existing literature would tax comparable workers equally, regardless of salary and living costs. This approach would unfairly equate differently situated workers. This Article questions the assumption of taxpayer mobility, considers …

Experimentalist Governance, Charles F. Sabel, Jonathan Zeitlin

Faculty Scholarship

This article discusses the concept of the so-called experimentalist governance. It explains that the experimentalist architecture in regulation is well illustrated by the European Union Water Framework Directive (WFD) and its Common Implementation Strategy. The article suggests that experimentalism appears particularly well suited to transnational domains, where there is no overarching sovereign with the authority to set common goals even in theory, and where the diversity of local conditions and practices makes the adoption and enforcement of uniform fixed rules even less feasible than in domestic settings.

Chimeric Criminals, David H. Kaye

Faculty Scholarship

According to the book Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties — described as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases,” “a series of measured arguments,” and “a touchstone for debates about the spread of DNA profiling” — an obscure genetic condition known as chimerism “could undermine the very basis of the forensic DNA system” and force a reconsideration of “the entire project of forensic DNA.” This conclusion is as unfounded as it is unnerving. Chimerism is a consideration in, but not a real obstacle to DNA identification. This essay explains …

Federalism As A Safeguard Of The Separation Of Powers, Jessica Bulman-Pozen

Faculty Scholarship

States frequently administer federal law, yet scholars have largely overlooked how the practice of cooperative federalism affects the balance of power across the branches of the federal government. This Article explains how states check the federal executive in an era of expansive executive power and how they do so as champions of Congress, both relying on congressionally conferred authority and casting themselves as Congress's faithful agents. By inviting the states to carry out federal law, Congress, whether purposefully or incidentally, counteracts the tendency of statutory ambiguity and broad delegations of authority to enhance federal executive power. When states disagree with …

Obama Reelection Clears Path For Numerous New Epa Regulations, Michael B. Gerrard

Faculty Scholarship

The reelection of President Barack Obama means that a long list of new regulations will be issued by the Environmental Protection Agency (EPA) in the coming months. Some had been held up because of their political sensitivity, and others were still in process, but many will soon be ready for further action.

The election results also mean that major new environmental legislation is very unlikely for the next two years. The House of Representatives is still firmly controlled by the Republicans, and their leadership has not signaled any major change from the last Congress’ stance of opposition to many EPA …

Death In Our Life, Joseph Raz

Faculty Scholarship

This is the text of the Annual Lecture of the Society for Applied Philosophy, delivered in Oxford on 22-5-12. I kept the talk style of the paper. It examines a central aspect of the relations between duration and quality of life by considering the moral right to voluntary euthanasia, and some aspects of the moral case for a legal right to euthanasia. Would widespread acceptance of a right to voluntary euthanasia lead to widespread changes in attitude to life and death? Many of its advocates deny that seeing it as a narrow right enabling people to avoid ending their life …

"Becker On Ewald On Foucault On Becker": American Neoliberalism And Michel Foucault's 1979 Birth Of Biopolitics Lectures, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; …

Taking Innovation Seriously: Antitrust Enforcement If Innovation Mattered Most, Tim Wu

Faculty Scholarship

Now is a particularly important time to consider the relationship between antitrust and innovation. Within the last two years, both the Justice Department and Federal Trade Commission have accumulated an entire docket of antitrust investigations related to the Internet and other high-tech industries. The list of publicly disclosed investigations is lengthy, and includes major players like Google, Apple, Facebook, and Twitter.' The nation's antitrust enforcement authorities are taking a look at the state of competition on the Internet, an inquiry that puts into clear focus the need for antitrust to take seriously its relationship with innovation policy.

That is the …

Intuition And Feminist Constitutionalism, Suzanne B. Goldberg

Faculty Scholarship

In any constitutional system, we must ask, as a foundational inquiry, when and why a government may distinguish between groups of constituents for purposes of allocating benefits or imposing penalties. For feminists and others with a stake in challenging inequalities, the rationales that a society deems acceptable for justifying these classifications are centrally important. Heightened scrutiny jurisprudence for sex-based and other distinctions may help capture some of the rationales that rest on stereotypes and outmoded biases. However, at the end of the day, whatever level of scrutiny is applied, the critical question at any level of review is whether, according …

Why Marriage?, Suzanne B. Goldberg

Faculty Scholarship

In a well-known New Yorker cartoon, a man and a woman sit together on a couch, clearly in the midst of a conversation about marriage for gay and lesbian couples. “Haven't they suffered enough?” one of them asks. Although the cartoon characters jest, the question of why gay people are fighting so hard for the right to marry is a serious one. After all, marriage rates have been dropping steadily in the United States and in much of the world, and divorce rates remain high. Why, then, are lesbians and gay men fighting so hard to join an institution that …

Microinsurance: A Case Study Of The Indian Rainfall Index Insurance Market, Xavier Giné, Lev Menand, Robert W. Townsend, James Vickery

Faculty Scholarship

Efforts have been made in India and other countries in recent years to develop formal insurance markets to improve diversification of weather-related income shocks. This article aims to survey the features of one of these markets, the Indian rainfall index insurance market. “Index insurance” refers to a contract whose payouts are linked to a publicly observable index; in this case, the index is cumulative rainfall recorded on a local rain gauge during different phases of the monsoon season. This form of insurance is now available at a retail level in many parts of India, although these markets are still in …