Digital Commons Network^™

From Harmelin To Graham - Justice Kennedy Stakes Out A Path To Proportional Punishment, Eva Nilsen

Faculty Scholarship

Graham v. Florida³ is a groundbreaking decision because it revives punishment doctrine on two issues that have lain dormant since Harmelin v. Michigan⁴: proportionality and individualized sentencing. Although it doesn't overrule Harmelin, by recognizing the continued vitality of Weems⁵ and Solem ⁶ the Graham decision appears to acknowledge that the Court's approach to proportionality since Harmelin may be too restrictive for the U.S. justice system today. In Solem, the Court affirmed its Constitutional role in ensuring just punishment; in Graham, the Court reaffirms that role.

Harmelin has had an enormous and regrettable impact …

A Small Nation Goes To War: Israel's Cabinet Authorization Of The 1956 War, Pnina Lahav

Faculty Scholarship

The Suez War had long term ramifications for Israel's status in the Middle East and for its relations with the U.S., Europe, and the USSR. This article is a first segment in the examination of the interplay between military and diplomatic means deployed by Israel in its quest to consolidate the gains of the 1948 war and secure its sovereignty. It provides a detailed analysis of the Israeli cabinet deliberations as it reached the decision to authorize war. The article examines the cabinet's opinions on the language of the motion to go to war, the list of casus belli offered, …

Health Insurance Politics In Federal Court, Wendy K. Mariner, George J. Annas

Faculty Scholarship

Having been outmaneuvered in Congress with the passage of the Patient Protection and Affordable Care Act (“Affordable Care Act,” or ACA), Republicans have taken their case to federal court, arguing that the law's key provision, the individual mandate to purchase health insurance, is unconstitutional. This argument has been made most prominently by attorneys general from 20 states in a Florida federal court and by the Commonwealth of Virginia in a Virginia federal court. In early August, federal district court judge Henry Hudson decided that the Virginia challenge deserves a hearing,1 thereby giving the constitutional argument an aura of respectability …

B-Vitamins And Fatty Acids In The Prevention And Treatment Of Alzheimer's Disease And Dementia: A Systematic Review, Peter J. Whitehouse

Faculty Scholarship

The increasing worldwide prevalence of dementia is a major public health concern. Findings from some epidemiological studies suggest that diet and nutrition may be important modifiable risk factors for development of dementia. In order to evaluate the strength of the available evidence of an association of dietary factors with dementia including Alzheimer's disease (AD), we systematically searched relevant publication databases and hand-searched bibliographies up to end July 2007. We included prospective cohort studies which evaluated the association of nutrient levels with the risk of developing dementia and randomized intervention studies examining the treatment effect of nutrient supplementation on cognitive function. …

Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain

Faculty Scholarship

The UN Convention on the Rights of the Child (CRC) recently began its third decade. Why has the United States still not ratified the CRC, celebrated as the most widely ratified international human rights treaty in history? Once again, this question is on the table: Congressional resolutions that President Obama should not transmit the CRC to the Senate for advice and consent rapidly followed intimations that the Obama Administration had some qualms about the U.S. keeping company only with Somalia in not ratifying it. Some scholars contend that enlisting the unique resources of religions would help to ground a culture …

Out From Under The Shadow Of The Federal Constitution: An Overlooked American Constitutionalism, Christian G. Fritz

Faculty Scholarship

Most scholars of constitutional law and history equate American constitutionalism with the Federal constitution. This spotlight on the Federal constitution rests on a series of modern assumptions that elevate the status of the Federal constitution over the rich history of state constitutions, and inevitably neglect the central constitutional tenet of the American Revolution - the sovereignty of the people. Viewing American constitutionalism from the perspective of the constitutional legacy of the Revolution suggests a modified paradigm in which state constitutions play a critical role in our understanding the full meaning of American constitutionalism. The idea of a collective sovereign introduced …

Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding

Faculty Scholarship

This article presents the following model of two regulatory classes of financial institutions interacting in financial and political markets to spur deregulation and riskier lending and investment, which in turn contributes to the severity of a financial crisis: 1) Regulation creates two categories of financial institutions. The first class faces greater restrictions in lending or investment activities but enjoys regulatory subsidies, such as an explicit or implicit government guarantee, while the second class is more loosely regulated and can make riskier loans or investments and earn additional profits. 2) These additional profits leads to calls for deregulation to enable the …

Prediction And Testing Of Biological Networks Underlying Intestinal Cancer, Vishal N. Patel, Gurkan Bebek, Mark R. Chance

Faculty Scholarship

Colorectal cancer progresses through an accumulation of somatic mutations, some of which reside in so-called "driver" genes that provide a growth advantage to the tumor. To identify points of intersection between driver gene pathways, we implemented a network analysis framework using protein interactions to predict likely connections - both precedented and novel - between key driver genes in cancer. We applied the framework to find significant connections between two genes, Apc and Cdkn1a (p21), known to be synergistic in tumorigenesis in mouse models. We then assessed the functional coherence of the resulting Apc-Cdkn1a network by engineering in vivo single node …

Gift Giving To Biobanks, Leonard H. Glantz, Patricia Roche, George J. Annas

Faculty Scholarship

We agree with Mark Rothstein's goal of giving tissue donors control over their donated tissues. But we think using the research model as the basis for attaining this goal, while widely employed and accepted, should be abandoned.

The research regulations were originally adopted to deal with interventions on living human beings, not on the tissue of human beings. The Nuremberg Code (a reaction to concentration camp experiments), the Willowbrook experiment, the Tuskegee syphilis experiment, and the other examples of the abuse of research subjects that provided the rationale for regulating research on human subjects clearly had nothing to do with …

From Ship To Shore: Reforming The National Contingency Plan To Improve Protections For Oil Spill Cleanup Workers, Rebecca Bratspies, Alyson Flournoy, Thomas Mcgarity, Sidney A. Shapiro, Rena I. Steinzor, Matthew Shudtz

Faculty Scholarship

Eleven workers died on April 20, 2010, when the Deepwater Horizon oil drilling platform exploded beneath them. Since then, tens of thousands of workers have toiled under difficult conditions to stop the leak and clean up the mess. For these workers, the spill is more than an environmental and economic disaster; it poses straightforward and serious risks to their health and safety. Oil is toxic, as are the dispersants used liberally by BP to contain it. BP’s foul up is not the first significant oil spill in the nation’s history, nor even the first in the Gulf. The oil companies …

Structural Characterization Of Hiv Gp41 With The Membrane-Proximal External Region, Wuxian Shi, Jen Bohon, Mark R. Chance

Faculty Scholarship

Human immunodeficiency virus, type 1 (HIV-1) envelope glycoprotein (gp120/gp41) plays a critical role in virus infection and pathogenesis. Three of the six monoclonal antibodies considered to have broadly neutralizing activities (2F5, 4E10, and Z13e1) bind to the membrane-proximal external region (MPER) of gp41. This makes the MPER a desirable template for developing immunogens that can elicit antibodies with properties similar to these monoclonal antibodies, with a long term goal of developing antigens that could serve as novel HIV vaccines. In order to provide a structural basis for rational antigen design, an MPER construct, HR1-54Q, was generated for x-ray crystallographic and …

Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter

Faculty Scholarship

This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.

This Article analyzes specific budget cuts from various states and …

Killing The Microphone: When Broadcast Freedom Should Yield To Genocide Prevention, Carol Pauli

Faculty Scholarship

When powerful radio broadcasts exhort listeners to kill their neighbors, may outside nations or international organizations legally interrupt the signals to prevent genocide? International law has no legal framework for assessing and responding to such broadcasts. This Article attempts to create one. The Article draws on empirical research in the field of communication to identify conditions in which media messages become so powerful that they can mobilize audience members. Using this research, it constructs a framework for determining when speech constitutes incitement to genocide such that it loses any protection under international law and perhaps even triggers an affirmative duty …

Cy Pres Relief And The Pathologies Of The Modern Class Action: A Normative And Empirical Analysis, Martin H. Redish, Peter Julian, Samantha Zyontz

Faculty Scholarship

Since the mid 1970s, federal courts have taken the doctrine of cy pres relief from the venerable law of trusts and adapted it for use in the modern class action proceeding. In its original context, cy pres was utilized as a means of judicially designating a charitable recipient when, for whatever reason, it was no longer possible to fulfill the original goal of the maker of the trust. The purpose of cy pres was to provide “the next best relief” by finding a recipient who would resemble the original donor’s recipient as much as possible. In the context of class …

See No Evil - Revisiting Early Visions Of The Social Responsibility Of Business: Adolf A. Berle's Contribution To Contemporary Conversations, Erika George

Faculty Scholarship

This Article situates Adolf A. Berle's contribution to the field of corporate law in the context of current debates over the alleged complicity of multinational corporations in international human rights violations. Specifically, this Article revisits some central insights offered by Berle and Gardiner C. Means in The Modern Corporation and Private Property and reconsiders what conducting business consciously across borders requires in the context of a governance gap generated by economic globalization. Further, this Article considers how both ownership and control are well situated to ensure that business conduct becomes better aligned with a growing consciousness that business organizations must …

Wto Jurisprudence & Its Critiques: The Appellate Body's Anti-Constitutional Resistance, William Magnuson

Faculty Scholarship

In a time of financial crisis and rising demand for economic protectionism, the World Trade Organization, promoting free trade and economic growth, has never been more important. Enforcement of the WTO’s provisions has grown increasingly contentious and high-stakes, and the Appellate Body empowered to rule on violations of the treaty has received harsh criticism. Three elements of WTO jurisprudence, in particular, stand out. First, the court’s excessive use of narrow textualist argument tends to lead to short-sighted decisions that give little guidance to member states. Second, the court’s decisions have increasingly interfered with sensitive democratic processes in sovereign countries. Third, …

Long Range Interactions In Nanoscale Science, Roger H. French

Faculty Scholarship

Our understanding of the “long range” electrodynamic, electrostatic, and polar interactions that dominate the organization of small objects at separations beyond an interatomic bond length is reviewed. From this basic-forces perspective, a large number of systems are described from which one can learn about these organizing forces and how to modulate them. The many practical systems that harness these nanoscale forces are then surveyed. The survey reveals not only the promise of new devices and materials, but also the possibility of designing them more effectively.

The Statute Of Frauds And Oral Promises Of Job Security The Tenuous Distinction Between Performance And Excusable Nonperformance, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Laying To Rest An Ancien Régime: Antiquated Institutions In Louisiana Civil Law And Their Incompatibility With Modern Public Policies, Christopher K. Odinet

Faculty Scholarship

Man faces unprecedented challenges as he barrels through the twenty-first century. The world is now approaching a population of seven billion people, concentrated largely in crowded, overdeveloped urban centers. Global climate change is predicted to cause massive population displacement related to the disappearance of coastal lands and to create dire food shortages within the coming decade. Increasingly, societies are forced to make systemic adaptations to handle the strain of these modern-day crises. Governments must be innovative and adaptive in their efforts to protect the public. When the fundamental goals and objectives of society alter, the law should be modified to …

Holding The World Bank Accountable For The Leakage Of Funds From Africa’S Health Sector, Fatma E. Marouf

Faculty Scholarship

This article explores the accountability of international financial institutions (IFIs), such as the World Bank, for human rights violations related to the massive leakage of funds from sub-Saharan Africa’s health sector. The article begins by summarizing the quantitative results of Public Expenditure Tracking Surveys performed in six African countries, all showing disturbingly high levels of leakage in the health sector. It then addresses the inadequacy of good governance and anticorruption programs in remedying this problem. After explaining how the World Bank’s Inspection Panel may serve as an accountability mechanism for addressing the leakage of funds, discussing violations of specific Bank …

Book Review: Responsible Business: Self-Governance And Law In Transnational Economic Transactions Edited By Olaf Dilling, Martin Herberg And Gerd Winter, Laura M. Spitz

Faculty Scholarship

No abstract provided.

Human Coronaviruses Are Uncommon In Patients With Gastrointestinal Illness, Frank Esper, Zhen Ou, Yung T. Huang

Faculty Scholarship

BACKGROUND: Coronaviruses infect numerous animal species causing a variety of illnesses including respiratory, neurologic and enteric disease. Human coronaviruses (HCoV) are mainly associated with respiratory tract disease but have been implicated in enteric disease. OBJECTIVES: To investigate the frequency of coronaviruses in stool samples from children and adults with gastrointestinal illness by RT-PCR. STUDY DESIGN: Clinical samples submitted for infectious diarrhea testing were collected from December 2007 through March 2008. RNA extraction and RT-PCR was performed for stools negative for Clostridium difficile using primer sets against HCoV-229E, HCoV-OC43, HCoV-NL63, and HCoV-HKU1. Clinical data from samples positive for coronaviruses were reviewed …

Fulfilling Government 2.0'S Promise With Robust Privacy Protections, Danielle K. Citron

Faculty Scholarship

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers.

To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and …

The Taxation Of Cause-Related Marketing, Terri Lynn Helge

Faculty Scholarship

With the economy in turmoil, charitable organizations are looking to nontraditional sources of financing to supplement contributions and fee-based revenues. One potentially lucrative source of revenue stems from cause-related marketing. Cause-related marketing is the public association of a for-profit company with a charitable organization to promote the company’s product or service in order to raise money for the charitable organization. Introduced almost twenty-five years ago, cause-related marketing has now become a $1 billion a year industry. Cause-related marketing has evolved beyond mere use of a charitable organization’s name to an apparent union for the purpose of promoting products that carry …

Conceptualizing Disability Discrimination, Michael C. Harper

Faculty Scholarship

In a series of law review articles written over the past decade, Professor Bagenstos has established himself as the preeminent academic voice on disability discrimination law. Indeed, the transferable utility of the conceptual insights developed and applied in these articles, in my view, warrants a claim for Bagenstos as the most important scholar of the decade in the general field of employment discrimination law. Anyone with a serious intellectual interest in discrimination law who has not read Bagenstos’s articles should take the occasion of the publication of this pithy and trenchant little volume to familiarize themselves with Bagenstos’s analysis of …

Defining And Measuring The Patient-Centered Medical Home, Kurt C. Stange, Susan A. Flocke

Faculty Scholarship

The patient-centeredmedical home(PCMH) is four things: 1) the fundamental tenets of primary care: first contact access, comprehensiveness, integration/coordination, and relationships involving sustained partnership; 2) new ways of organizing practice; 3) development of practices' internal capabilities, and 4) related health care system and reimbursement changes. All of these are focused on improving the health of whole people, families, communities and populations, and on increasing the value of healthcare. The value of the fundamental tenets of primary care is well established. This value includes higher health care quality, better whole-person and population health, lower cost and reduced inequalities compared to healthcare systems …

Respecting Working Mothers With Infant Children: The Need For Increased Federal Intervention To Develop, Protect, And Support A Breastfeeding Culture In The United States, Heather M. Kolinsky

Faculty Scholarship

The author argues that the benefits of breastfeeding are overwhelming and that more needs to be done to ensure that all women have a viable option to continue breastfeeding upon returning to work, particularly the working poor and minorities. Those least likely to breastfeed are more likely to be part of an at risk population in terms of health. Most significantly, the lack of a cohesive policy in the workplace has had a disparate impact on the most vulnerable populations of breastfeeding mothers and their children. The lack of federal protection and a patchwork of protection in the states have …

Unpaid Furloughs And Four-Day Work Weeks: Employer Sympathy Or A Call For Collective Employee Action, Michael Z. Green

Faculty Scholarship

In these tough economic times, employers have responded by pursuing four-day work weeks and other mechanisms that change the components of the standard five-day work week. Although four-day work weeks provide some savings in the form of reduced operating and energy costs and have received recent notice for also being family-friendly and environmentally friendly, current dismal economic prospects have inspired employers to pursue other work week changes to achieve further savings. Furloughs, also referred to as unpaid days off, represent a form of a reduced work week as employees do not work during their furloughed time and receive no income …

Compassion-Focused Reappraisal, Benefit-Focused Reappraisal, And Rumination After An Interpersonal Offense: Emotion-Regulation Implications For Subjective Emotion, Linguistic Responses, And Physiology, Charlotte Witvliet, Ross W. Knoll, Nova G. Hinman, Paul Deyoung

Faculty Scholarship

This repeated measures psychophysiology experiment studied three responses to a past interpersonal offense (38 females and 33 males). We compared rumination with two offense reappraisal strategies. Compassion-focused reappraisal emphasized the offender's humanity, and interpreted the transgression as evidence of the offender's need for positive transformation. Benefit-focused reappraisal emphasized insights gained or strengths shown in facing the offense. Supporting the manipulations, compassion-focused reappraisal stimulated the most empathy and forgiveness, whereas benefit-focused reappraisal prompted the most benefit language and gratitude. Both reappraisals decreased aroused, negative emotion, and related facial muscle tension at the brow (corrugator). Both reappraisals increased happiness and positive emotion …

Multihospital Outbreak Of Clostridium Difficile Infection, Cleveland, Ohio, Usa, Robin L.P. Jump, Ajay K. Sethi, Curtis J. Donskey

Faculty Scholarship

To determine whether a multihospital Clostridium difficile outbreak was associated with epidemic strains and whether use of particular fl uoroquinolones was associated with increased infection rates, we cultured feces from C. difficile-infected patients. Use of fl uoroquionolones with enhanced antianaerobic activity was not associated with increased infection rates.