Digital Commons Network^™

All That Glitters Isn't Gold, Osagie K. Obasogie, Troy Duster

Faculty Scholarship

No abstract provided.

Fair Trespass, Ben Depoorter

Faculty Scholarship

No abstract provided.

The Internal Revenue Code And Latino Realities: A Critical Perspective, Leo P. Martinez, Jennifer M. Martinez

Faculty Scholarship

No abstract provided.

A Strategic Approach For Managing Conflict In Hospitals: Responding To The Joint Commission Leadership Standard, Part 1, Debra Gerardi, Charity Scott

Faculty Scholarship

No abstract provided.

A Strategic Approach For Managing Conflict In Hospitals: Responding To The Joint Commission Leadership Standard, Part 2, Debra Gerardi, Charity Scott

Faculty Scholarship

No abstract provided.

Equal Opportunity For Arbitration, Hiro Aragaki

Faculty Scholarship

Despite talk of a “federalism revival,” state law is quietly losing ground in the U.S. Supreme Court, and the arbitration area is no exception. For as currently interpreted by the lower courts, the Federal Arbitration Act (FAA) is on course to preempt a vast array of legislation that serves important public interests but that is only tenuously related to arbitration. The Court has implicitly endorsed this trajectory in AT&T Mobility LLC v. Concepcion (decided as this Article went to press), leading many to abandon hope of a principled judicial response to this mounting problem of overpreemption. In this Article, I …

Arbitration’S Suspect Status, Hiro Aragaki

Faculty Scholarship

No abstract provided.

How (Not) To Regulate Arts: Lessons From Octomom, Radhika Rao

Faculty Scholarship

No abstract provided.

Regulating Compensation, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Petals: Proteomic Evaluation And Topological Analysis Of A Mutated Locus' Signaling, Gurkan Bebek, Vishal Patel, Mark R. Chance

Faculty Scholarship

Background: Colon cancer is driven by mutations in a number of genes, the most notorious of which is Apc. Though much of Apc's signaling has been mechanistically identified over the years, it is not always clear which functions or interactions are operative in a particular tumor. This is confounded by the presence of mutations in a number of other putative cancer driver (CAN) genes, which often synergize with mutations in Apc.Computational methods are, thus, required to predict which pathways are likely to be operative when a particular mutation in Apc is observed.Results: We developed a pipeline, PETALS, to predict and …

Imperfect Alternatives: Networks, Salience, And Institutional Design In Financial Crises, Robert B. Ahdieh

Faculty Scholarship

With the benefit of hindsight — and some aspiration to foresight — it is useful to consider the type of regulatory regime that might best address financial crises. What could policymakers have done to prevent the recent crisis? And once the crisis started, what interventions might have alleviated it? These questions have been widely debated, with an eye to both substantive policy and the design of effective regulatory institutions. This Article speaks to the latter project — one of comparative institutional analysis — though with a framework that implicates our substantive policy choices as well. It begins with an account …

Framing Franchise Antitrust Litigation: The Legacy Of Kodak And Queen City Pizza, Randy D. Gordon

Faculty Scholarship

A decade ago, many antitrust commentators were predicting a “revival” of franchise antitrust claims flowing in the wake of Eastman Kodak Co. v. Image Technical Services, Inc. The thinking was that Kodak’s recognition of a claim for monopolization of an “aftermarket” for parts and services separate from each other and from a primary product might be extended to cover franchise relationships in which the franchisee is required to purchase fungible products from its franchisor, even though those products could be purchased elsewhere on more favorable terms. Fairly quickly, though, the Third Circuit decided Queen City Pizza, Inc. v. Domino’s Pizza, …

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Faculty Scholarship

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

Freedom Of Contract Vs. Free Alienability: An Old Struggle Emerges In A New Context, Neil B. Cohen, William H. Henning

Faculty Scholarship

This article addresses a contemporary reigniting of an ages-old conundrum in Anglo-American law. The conundrum results from the collision of two concepts that are usually thought of as mainstays of the law--freedom of contract and free alienability of property--in the context of assignments of receivables.

The Distortionary Effect Of Evidence On Primary Behavior, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Erisa & Uncertainty, Brendan S. Maher, Peter K. Stris

Faculty Scholarship

In the United States, retirement income and health insurance are largely provided through private promises made incident to employment. These “benefit promises” are governed by a statute called ERISA, which many healthcare and pension scholars argue is the cause of fundamental problems with our nation’s health and retirement policy. Inevitably, however, they advance narrowly tailored proposals to amend the statute. This occurs because of the widely-held view that reform should leave undisturbed the underlying core of the statute. This Article develops a theory of ERISA designed to illustrate the unavoidable need for structural reform.

Mainstreaming Privacy Torts, Danielle K. Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Preventing Accidents In Offshore Oil And Gas Operations: The U.S. Approach And Some Contrasting Features Of The Norwegian Approach, Michael S. Baram

Faculty Scholarship

This working paper deals with the U.S. approach for governing the safety of offshore oil and gas operations and preventing major accidents during exploratory drilling and production. It evaluates the statutory and regulatory framework, and agency implementation and reliance on industrial standards, and then suggests reforms to improve the efficacy of this governance system. References are made to the blowout at the drilling rig operated by British Petroleum to support the evaluation and reforms. References are also made to Norwegian laws and regulations governing oil and gas operations in the North Sea. As one of the world’s largest sources of …

Should The Patient Conquer?, William M. Sage

Faculty Scholarship

In 1596, Robert Bainbridge carved “The patient shall conquer” into the wall of his cell in the Tower of London. It is highly unlikely that Bainbridge was an early advocate for recipients of medical care, imprisoned perhaps by a cruel sheriff denied his payroll taxes or by a domineering barber refused his fee. But its unintended meaning would immediately provoke sympathy from many health care reformers. As we confront the critical challenges of implementing national health-care reform, however, whether the patient should conquer is a legitimate topic for debate. Does the patient’s conquest risk the collapse of the health-care system …

Resolving The Dilemma Of Nonjusticiable Causation In Failure-To-Warn Litigation, Neil B. Cohen, Aaron Twerski

Faculty Scholarship

No abstract provided.

Resolving The Dilemma Of Non-Justiciable Causation In Failure To Warn Litigation, Aaron D. Twerski, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Strategic Enforcement, Alex Stein, Margaret H. Lemos

Faculty Scholarship

No abstract provided.

It's All In A Day's Work: Managing The Institutional Repository, Pamela Bluh

Faculty Scholarship

An overview of the decision to select the Digital Commons as the platform for the institutional repository and comments on why library technical services is well suited to manage the repository.

Distributive Justice Through Tort (And Why Sociolegal Scholars Should Care), Anita Bernstein

Faculty Scholarship

No abstract provided.

After The Fall: Financial Crisis And The International Order, Robert B. Ahdieh

Faculty Scholarship

Recent years have challenged the international order to a degree not seen since World War II — and perhaps the Great Depression. As the U.S. housing crisis metastasized into a financial and economic crisis of grave proportions, and spread to nearly every corner of the globe, the strength of our international institutions — the International Monetary Fund, the World Trade Organization, the Group of Twenty, the Basel Committee on Banking Supervision, and others — was tested as never before. Likewise tested, were the limits of our national commitment to those institutions, to our international obligations, and to global engagement more …

The Civil Judicial Subsidy, Brendan S. Maher

Faculty Scholarship

American society does not require civil litigants to bear the actual cost of using the court; those costs are borne almost entirely by the taxpayer (i.e., the “civil judicial subsidy”). In this Article I ask: is that right? Or is there a more desirable way to apportion court usage costs between the state and litigants?

I develop an evaluative framework that facilitates analysis of the purpose, contours, and cost of the current judicial subsidy. We subsidize court use because, in theory, there are certain “social positives” associated with public adjudication. To date the unspoken assumption has been that these social …

The Dispute Settlement Process Of The Wto: A Normative Structure To Achieve Utilitarian Objectives, Brian Manning, Srividhya Ragavan

Faculty Scholarship

The paper posits that the World Trade Organization (WTO) has failed to efficiently promote mutually advantageous global relationships. The authors contend that the structure and the functioning of the Dispute Settlement Body have contributed to the failure of the WTO. The DSB’s approach to interpreting the WTO agreements has been normative, as opposed to a realistic. Consequently, decisions from the DSB have resulted in strict interpretation of WTO agreements without appropriately balancing member’s national realities. Thus, the overall goals of the organization have been compromised to reinforce existing global power structures rather than promote cooperative governance.

The authors examine two …

Locating The Regulation Of Data Privacy And Data Security, Edward J. Janger

Faculty Scholarship

No abstract provided.

Reaching Equilibrium In Tobacco Litigation, Aaron D. Twerski, James A. Henderson, Jr.

Faculty Scholarship

No abstract provided.

Locating The Regulation Of Data Privacy And Data Security, Edward J. Janger

Faculty Scholarship

No abstract provided.