Digital Commons Network^™

Distorting Legal Principles, Steven L. Schwarcz

Faculty Scholarship

Legal principles enable society to order itself by preserving broadly based expectations. Sometimes, however, parties transact in ways that are so inconsistent with generally accepted principles as to create uncertainty or confusion that undermines the basis for reasoning afforded by the principles. Such a distortion might occur, for example, if a normally mandatory legal rule were unexpectedly treated as a default rule. This article explores the problem of distorting legal principles, initially focusing on rehypothecation, a distortion whose uncertainty and confusion contributed to the downfall of Lehman Brothers and the resulting global financial crisis. But not all distortions are, on …

Pursuing Geoengineering For Atmospheric Restoration, James Salzman, Robert B. Jackson

Faculty Scholarship

Geoengineering is fraught with problems, but research on three approaches could lead to the greatest climate benefits with the smallest chance of unintentional environmental harm. The authors propose a model for thinking about geoengineering based on the concept of restoration, suggesting the term “atmospheric restoration.” Under this model geoengineering efforts are prioritized based on three principles: to treat the cause of the disease itself, to reduce the chance of harm, and to prioritize activities with the greatest chance of public acceptance.

Based on these principles, the authors propose three forms of geoengineering that could provide the greatest climate benefits with …

Korea's Patent Policy And Its Impact On Economic Development: A Model For Emerging Countries?, Jay Erstling

Faculty Scholarship

The purpose of this paper will be to examine Korean patent policy as exemplified by its patent legislation and the activities of Korean Intellectual Property Office (KIPO). Part II will take a brief look at the rationale underpinning Korea's confidence in the power of the patent system to stimulate economic growth. Part III of the paper will look at the Korean Patent Act as an example of strong, comprehensive patent legislation that fully complies with international standards and responds well to the perceived needs of patent applicants. In order to provide a basis of comparison, reference will be made wherever …

People Are Not Bananas: How Immigration Differs From Trade, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Uncertainty And The Advantage Of Collective Settlement Symposium: The Limits Of Predictability And The Value Of Uncertainty: Sixteenth Annual Clifford Symposium On Tort Law And Social Policy, Howard M. Erichson

Faculty Scholarship

Judgments are printed in black and white; reality comes in shades of gray. The settlement palette available to negotiating parties, unlike the adjudication palette available to judges and juries, offers a range of grays to suit the realities of uncertain liability, uncertain causation, and uncertain damages. Settlement thus offers certain advantages over adjudication. I am not referring to process advantages, such as speed, economy, privacy, and relationship preservation. Rather, I am referring to the idea that settlements may offer outcomes that more accurately comport with justice under the relevant facts and law. There is, of course, a long-running debate over …

Reluctance And Remorse: The Covenant Of Good Faith And Fair Dealing With American Employment Law Good Faith And Fair Dealing In The Individual Employment Relationship, James J. Brudney

Faculty Scholarship

The covenant of good faith and fair dealing ("the covenant" or "Good Faith") is now an accepted feature of contractual relations in the United States. Essentially undeveloped until the 1960s, the obligation to act in good faith during contract performance and enforcement gained traction once it was written into the Uniform Commercial Code (UCC) and adopted by state legislatures. The covenant achieved broader recognition when included in 1981 as a new section in the Restatement (Second) of Contracts ("Restatement"). In the employment setting, however, the covenant has not fared nearly so well. The majority of states have declined to apply …

Fau Climate Change Initiative Priority Theme: Research, Engineering, And Adaption To A Change Climate., Leonard Berry, Marguerite Koch, Center For Environmental Studies, Brian Benscoter, Xavier Comas, Donna Devlin, Maria Fadiman, E. Gerstein, Denise L. Herzing, Tobin Hindle, Sarah L. Milton, Anton E. Oleinik, C. Edward Proffitt, Jorge I. Restrepo, Tara L. Root, Jeanette Wyneken,, Zhixiao Xie, Xing-Hai Zhang, Ann-Margaret Esnard, Diana Mitsova, J. Murley, J. Vos, Monica Escaleras, M. Mehallis, Eric H. Shaw, Guillermo John Hardman, Julie Lambert, G. Thomas, Madasamy Arockiasamy, Frederick Bloetscher, G. Carvalho,, Manhar R. Dhanak, George V. Frisk, Evangelos I. Kaisar, Hari Kalva, Daniel E. Meeroff, Jarice Rodriguez, Panagiotis (Pete) D. Scarlatos, Ravi Shankar, Ramesh Teegavarapu, Clifford T. Brown, Francis Mcafee, Patricia Widener, Fraser R. Dalgleish, M. Dennis Hanisak, S. Mcmulloch, Gregory O'Corry-Crowe, Shirley A. Pomponi, John K. Reed, John Scarpa, Joshua Voss, Barry N. Heimlich, R. Alvarez, J. Jolley, A. Edwards, Charles E. Schmidt College Of Science, Harbor Branch Oceanographic Institute, College Of Business, Dorothy F. Schmidt College Of Arts And Letters, College Of Education, College Of Engineering And Computer Science

Faculty Scholarship

Globally, sea level rise has the potential to impact two billion people living along coastlines. In South Florida, sea level rise is already a threat to coastal infrastructure and will continue to require new engineering solutions. Research universities, particularly those with strengths in hydrology, engineering, and ocean sciences, will play a major role in human adaptation to a rapidly changing climate; FAU can be one of these institutions with its current interdisciplinary climate change research. FAU’s premier engineering program provides opportunities to develop and apply new technologies to ascertain climate change impacts and develop solutions to assist in adaptation

Access To Medicine In An Era Of Fractal Inequality, Frank Pasquale

Faculty Scholarship

No abstract provided.

Fannie Mae And Freddie Mac: Creatures Of Regulatory Privilege, David Reiss

Faculty Scholarship

No abstract provided.

The Lesson Of The Irish Family Pub: The Elder Clinic Path To A More Thoughtful Practice, Katherine C. Pearson

Faculty Scholarship

In this article, the Director of the Elder Law Clinic at Pennsylvania State University provides insight into the development of Elder Law as a unique discipline by tracking the history and challenges faced by her program as it approaches ten years of operation. A core focus of the Elder Law clinic, beyond practical experience, is to expose its students to the ethical issues confronted in Elder Law practice. Students in the clinic combine classroom discussions with practical experience representing clients, thereby becoming better prepared for their professional futures, while also gaining appreciation for the special concerns of the elderly client. …

Qualitative, Quantitative, And Integrative Conservation, Jamison E. Colburn

Faculty Scholarship

In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called 'critical habitat' are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative …

A Tale Of Election Day 2008: Teaching Storytelling Through Repeated Experiences, Serge A. Martinez, Stefan H. Krieger

Faculty Scholarship

In Part I, we describe our experience supervising our clinic students on Election Day 2008 and our observations of their learning through the repetitive experiences they had representing several clients in rapid succession. In Part II, we discuss cognitive science research into skills learning, including several necessary elements for optimal learning. In Part III, we review existing legal scholarship on teaching storytelling to lawyers and compare it with cognitive science findings. Finally, in Part IV, we apply cognitive science principles to teaching storytelling through experiential learning and describe the necessary elements for creating effective learning situations. We also suggest some …

The Treatment Of Isolationist Minorities, Gabriel Rauterberg

Faculty Scholarship

This Note examines what may be the most radical challenge posed by religious subcultures to the liberal politics of modern industrial nations – that of isolationist, nonliberal ( or even illiberal) religious minorities. These subcultures do not seek to integrate with mainstream society or gain power within it, but to withdraw in order to maintain norms widely discrepant from those that are socially dominant. They often seek to place restrictions upon their own members' freedom or activities, in part to maintain the group's differences from the greater society. These cultures, characterized by features as distinctive as collective property ownership, pacificism, …

Prudentialism In Mcdonald V. City Of Chicago, Neil S. Siegel

Faculty Scholarship

At least two kinds of prudential argument have been identified in the literature on constitutional interpretation: court-centered prudentialism and system-centered prudentialism. Commentators often characterize court-centered prudentialism as animated by concern over the Supreme Court’s preservation of its public legitimacy, which can be undermined when the Justices decide controversial questions in ways that cause backlash. By contrast, system-centered prudentialism asks not only what judicial decision is best for the Court’s effectiveness, but also what response is best for the constitutional system as a whole when the Court’s legitimacy is not at stake.

The Court’s recent decision in McDonald v. City of …

Strengthening Labor Standards Enforcement Through Partnerships With Workers’ Organizations, Janice Fine, Jennifer Gordon

Faculty Scholarship

Structures of employment in low-wage industries, a diminished wage and hour inspectorate, and an unworkable immigration regime have combined to create an environment where violations of basic workplace laws are everyday occurrences. This article identifies four “logics” of detection and enforcement, arguing that there is a mismatch between the enforcement strategies of most federal and state labor inspectorates and the industries in which noncompliance continues to be a problem. In response, the authors propose augmenting labor inspectorates by giving public interest groups like unions and worker centers a formal, ongoing role in enforcement in low-wage sectors. In three case studies, …

Miami Ocean-Dredged Material Disposal Site: Tilefish(Malacanthidae) Habitat Identification And Characterization Study., John K. Reed, J. Seitz

Faculty Scholarship

The USACE Jacksonville District has identified a need to have the 1986 video dataset reviewed and analyzed for the possible presence of species of fisheries management interest. Preliminary review of the video records indicated possible tilefish (Malacanthidae) habitat evidenced by the presence of large burrows in soft substrate. The main objective of this project is to confirm or deny the presence of tilefish or tilefish burrows in the Miami ODMDS based on the 1986 video transects. In the event that the presence of tilefish is confirmed (based on video evidence), analyses will include an estimation of distribution and abundance within …

Deontology, Political Morality, And The State Symposium: Political Theory And Criminal Punishment, Youngjae Lee

Faculty Scholarship

Sometimes the government makes a policy choice, and, as a result, innocent persons die. How should we morally assess such deaths? For instance, is the government’s choice of the reasonable doubt standard or its decision to restrict the death penalty to certain narrow categories responsible for deaths of innocents? If so, does the deontological norm against harming people dictate that the government loosen the evidentiary standard for conviction or widen the availability of capital punishment? This Article argues that the traditional distinctions between intending and foreseeing harm and between causing harm and allowing harm to occur are insufficient to absolve …

Forced Eviction And Resettlement In Cambodia: Case Studies From Phnom Penh, Chi Adanna Mgbako, Rijie Ernie Gao, Elizabeth Joynes, Anna Cave, Jessica Mikhailevich

Faculty Scholarship

This Article culminates a project undertaken by the Walter Leitner International Human Rights Clinic (“Leitner Clinic”) at Fordham Law School to examine the effects of land resettlement on communities that were forcibly evicted or are at risk of forced eviction from their homes, and, in particular, the effects of forced evictions on the Boeung Kak Lake community in central Phnom Penh and on people living with HIV/AIDS (“PLWHA”). This Article is based on field research the Leitner Clinic conducted in Cambodia in the fall of 2008. While in Cambodia, the Leitner Clinic interviewed families from four different communities: resettlement camps …

Speech Platforms Law Review Symposium 2010: Government Speech: The Government's Ability To Compel And Restrict Speech, Abner S. Greene

Faculty Scholarship

The state plays different roles, and free speech doctrine should (and sometimes does) respect these roles. We properly insist (with some categorical exceptions) that the state not regulate private speech based on subject matter or point of view. If private speakers want to praise the Nazis or condemn homosexuality, the state has no place stopping them, even if firmly convinced these ideas are wrong. Why we have such firm protection for speech we abhor is a matter of much debate. To some extent, it's because we don't trust the state to make content-based judgments consistently as a matter of principle; …

Penetrating The Silence In Sierra Leone: A Blueprint For The Eradication Of Female Genital Mutilation, Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad, Helen Shin

Faculty Scholarship

The African grassroots movement to eradicate female genital mutilation (also known as “female genital cutting” and “female circumcision,” hereinafter “FGM”) is widespread. While many African countries and grassroots organizations have made great strides in their efforts to eliminate FGM, Sierra Leone lags behind. In Sierra Leone, FGM is practiced within the bondo secret society, an ancient, all-female commune located in West Africa and also known as the sande. The bondo society’s traditional role was to direct girls’ rites of passage into adulthood. In order to become a member of the bondo, a girl or woman must undergo various rituals, the …

Valuing Intellectual Property: An Experiment, Christopher Buccafusco, Christopher Sprigman

Faculty Scholarship

In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions. …

The Unsettling ‘Well-Settled’ Law Of Freedom Of Association, John D. Inazu

Faculty Scholarship

This article brings historical, theoretical, and doctrinal critiques to bear upon the current framework for the constitutional right of association. It argues that the Supreme Court’s categories of expressive and intimate association first announced in the 1984 decision, Roberts v. United States Jaycees, are neither well-settled nor defensible. Intimate association and expressive association are indefensible categories, but they matter deeply. They matter to the Jaycees. They matter to the Chi Iota Colony of the Alpha Epsilon Pi fraternity, a now defunct Jewish social group at the College of Staten Island that had sought to limit its membership to men. They …

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.

Nature Or Nurture? Judicial Lawmaking In The European Court Of Justice And The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

Are international courts power-seeking by nature, expanding the reach and scope of international rules and the courts’ authority where permissive conditions allow? Or, does expansionist lawmaking require special nurturing? We investigate the relative influences of nature versus nurture by comparing expansionist lawmaking in the European Court of Justice (ECJ) and the Andean Tribunal of Justice (ATJ), the ECJ’s jurisdictional cousin and the third most active international court. We argue that international judges are more likely to become expansionist lawmakers where they are supported by substate interlocutors and compliance constituencies, including government officials, advocacy networks, national judges, and administrative agencies. This …

Collective Management Of Copyrights And Human Rights: An Uneasy Alliance Revisited, Laurence R. Helfer

Faculty Scholarship

This essay analyzes the “creators’ rights” provisions of the International Covenant on Economic Social and Cultural Rights (ICESCR) in the context of the collective administration of copyright and neighboring rights and the policies and practices of collective management organizations (CMOs). It also addresses other human rights treaties and international court rulings relevant to collective rights management. The essay begins with an overview of the ICESCR Committee’s General Comment on ICESCR Article 15(1)(c), “the right of everyone to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the …

Trading-Off Reproductive Technology And Adoption: Does Subsidizing In Vitro Fertilization Decrease Adoption Rates And Should It Matter?, Daniel L. Chen, I. Glenn Cohen

Faculty Scholarship

For those facing infertility, using assisted reproductive technology to have genetically related children is a very expensive proposition. In particular, to produce a live birth through in vitro fertilization (IVF) will cost an individual (on average) between $66,667 and $114,286 in the U.S. If forced to pay these prices out of pocket, many would be unable to afford this technology. Given this reality, a number of states have attempted to improve access to reproductive technology through state-level insurance mandates that cover IVF. Several scholars, however, have worried that increasing access in this way will cause a diminution in adoptions and …

Clarion Call Or False Alarm: Why Proposed Exemptions To Equal Marriage Statutes Return Us To A Religious Understanding Of The Public Marketplace, Taylor Flynn

Faculty Scholarship

This Article discusses the problematic issues arising from proposed religious exemptions to equal marriage statutes. In the Author's view these exemptions would create the societal framework in which lesbians, bisexuals, and gay men can be refused service in virtually all aspects of life, whether fundamental or mundane—from healthcare to housing, from employment to flower-buying. This would all be accomplished with the express permission of the state. The Author believes that these proposals could permit widespread discrimination on a multitude of protected bases. The proposals appear to have been crafted to seize on cultural and religious anxiety and fears concerning same-sex …

Stratification Of The Welfare Poor: Intersections Of Gender, Race & "Worthiness" In Poverty Discourse And Policy, Bridgette Baldwin

Faculty Scholarship

This Article analyzes the historical, cultural and legal treatments and representations of poor black women from Progressive Era philanthropic aid to early "work-to-welfare" reform protocol. When black women serve as the case study for a larger examination of social policy issues we see that welfare was rarely meant to remedy the structural crunch of poverty. Working class black women have been at the center of the construction of the poor and serve as the designation to determine which people deserve to be compensated for being poor.

Furthermore, the Author discusses both the ramifications and rationale of why the government never …

Race And Healthcare In America: Foreword, Barbara A. Noah

Faculty Scholarship

In all four of the articles that form this Symposium, the authors identify troubling disparities and injustices in our healthcare system and suggest strategies to ameliorate these problems. Sadly, the reforms of the Obama administration will probably do little to address these issues directly. The mandated insurance coverage requirement, for example, applies to U.S. citizens and legal residents, but not, unsurprisingly, to undocumented immigrants? Similarly, the legislation expands public programs but does nothing directly to support the burden of EMT ALA's unfunded mandate on hospitals. And, as the evidence has long demonstrated, insurance coverage alone fails to guarantee equal medical …

The Cross-Dressing Case For Bathroom Equality, Jennifer Levi, Daniel Redman

Faculty Scholarship

This Article offers a new set of arguments for transgender equality based on a little-known series of cases in which courts declined to enforce cross-dressing laws against transgender defendants. As shown below, the arguments brought by the defenders of these laws closely mirror the arguments brought today in favor of bathroom discrimination. The Authors discuss both the bathroom and cross-dressing debates in historical context, draw out the underlying reasoning in the two sets of cases,and argue that the reasoning that supports bathroom discrimination is as flawed as the reasoning behind criminal cross-dressing laws. The analysis also suggests that, just as …