Digital Commons Network^™

Stakeholder Participation In New Governance: Lessons From Chicago, Lisa T. Alexander

Faculty Scholarship

The efficacy of the public-private partnership as a tool for social reform is the subject of continued scholarly and public debate. New governance theory, an increasingly popular form of jurisprudence, constructs an optimistic vision of stakeholder collaboration in public-private partnerships that justifies the use of the public-private partnership in regulatory reform. New governance scholars contend that recent governance trends such as devolution, deregulation, decentralization, and privatization create opportunities for previously marginalized stakeholders to more fully participate in public problem-solving. New governance scholars expect that both public and private stakeholders, with differing interests, skills and objectives, will effectively collaborate to solve …

Disaggregating The Regional-Multilateral Overlap: The Nafta Looking-Glass, Elizabeth Trujillo

Faculty Scholarship

This short piece explores regionalism through the lens of NAFTA and examines its relationship to the multilateral trade regime and its effects on domestic policy. It tries to better understand the legal paradigm that allows the public aspects of trade law to intersect with the private interests of private investors. The rich jurisprudence of the Chapter 11 investment chapter of NAFTA provides a looking-glass into the complex interplay of state and non-state actors who navigate through the regional and multilateral trade and investment frameworks to further their interests. By disaggregating these overlaps, the paper illuminates this interplay which allows private …

From Here To Beijing: Public/Private Overlaps In Trade And Their Effects On U.S. Law, Elizabeth Trujillo

Faculty Scholarship

Recent news involving contaminated pet food and unsafe toys imported from China makes us question the legal frameworks that facilitated such incidences and stirs anti-globalization sentiment. While consumers wonder about the role of their governments in this context and look for judicial remedies, deeper questions arise regarding the international forces lying beneath the surface of the legal remedial work of our domestic courts. This paper explores the international trade paradigm in place that facilitates the inner workings of private investors and has trickling effects on domestic law. Furthermore, it will show that the trade regime is transnational in nature, consisting …

A Tale Of Two Development Agendas, Peter K. Yu

Faculty Scholarship

In October 2004, Argentina and Brazil introduced a proposal to establish the WIPO Development Agenda. Although scholars have focused primarily on this agenda, as well as the WTO Doha Development Agenda, development agendas have also been established at other international fora, such as those governing public health, human rights, biological diversity, food and agriculture, and information and communications. Interestingly, these development agendas bear strong resemblances to another set of development agendas less developed countries advanced in the 1960s and 1970s. Bringing together these two sets of development agendas, this article examines whether the present agenda can avoid the path of …

Borders And The Environment, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Despite regular acknowledgement of the interconnectedness of global ecosystems, government policies at the national level focus on environmental problems within their borders. As a result, the level of public and private resources expended on environmental protection in rich and poor countries is dramatically different on both a per capita and an absolute basis. While this outcome is readily explained by the politics of environmental issues, in which voters reward governments for domestic expenditures but are skeptical of expenditures outside the jurisdiction, these differences mean that the total amount of environmental quality purchased across nations is lower than it could be. …

The Thin Flat Line: Redefining Who Is Legally Dead In Organ Donation After Cardiac Death, Maxine M. Harrington

Faculty Scholarship

The debate over whether donation after cardiac death (DCD) donors are truly dead is not new but has surfaced mostly in the academic community. In 2008, widespread publicity was given to the indictment of a transplant surgeon in California in connectionwith the alleged administration of excessive and inappropriate medications to a potential donor awaiting cardiac death after removal from a ventilator. This and other reports in the lay press mirror the expanding use of DCD to boost the supply of organs.

This article explains the practice of donation after cardiac death, examines whether DCD donors are legally dead under the …

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Faculty Scholarship

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau

Faculty Scholarship

Arbitration is not just another trial procedure. It epitomizes a practical understanding of the purpose and value of adjudicatory procedures. It poses a substantial challenge to adversarial litigation by exposing its underlying irrationality and its destructive impact upon society. It guarantees the rule of law domestically and internationally through affordable access, expedited proceedings, expertise, and bridging the gap between national legal systems. It is a valuable institution that should not become a pawn in the tired and unimaginative political discourse that substitutes 'talking points' for genuine reflection and debate. The gravamen of the current attack on arbitration is not the …

Evaluating Legal Activism: A Response To Rosenberg, Dara Purvis

Faculty Scholarship

Earlier this year, Gerald Rosenberg updated his canonical work The Hollow Hope to incorporate the battles over same-sex marriage as, in his opinion, further support for his theory that the backlash of legal activism can subvert the intended goals. This Article examines three of Rosenberg’s central claims and, by questioning their premises with further evidence from the history of the same-sex marriage movement, roils the waters of whether the litigational and political record of the same-sex marriage movement bolsters or weakens Rosenberg’s thesis. The Article first questions Rosenberg’s claim that activists seeking to advance same sex marriage erroneously chose the …

Judicial Independence And Party Politics In The Kelsenian Constitutional Courts: The Case Of Portugal, Sofia Amaral-Garcia, Nuno M. Garoupa, Veronica Grembi

Faculty Scholarship

In this paper we test to what extent the Kelsenian-type of constitutional judges are independent from political parties by studying of the Portuguese Constitutional Court. The results yield three main conclusions. First, constitutional judges in Portugal are quite sensitive to their political affiliations and their political party's presence in government when voting. Second, peer pressure is very relevant. Third, the 1997 reform that was enacted to increase judicial independence has had no robust statistically significant effect.

Dying To Dine: A Story Of The Suicidal Indian Farmers, Srividhya Ragavan

Faculty Scholarship

The realities of the food crisis form the background to the discussion of India’s endeavor to tackle the issues relating to agriculture with special emphasis on the nation’s efforts to promote farmers’ rights under the Protection of Plant Varieties and Farmers’ Rights Act, 2004 (PPVFA). The story of the PPVFA is interesting because the legislation represents India’s fulfillment of its international obligations by introducing breeders’ rights while simultaneously recognizing farmers’ traditional rights. Thus, Part I of this article outlines the steps India took to promote farmers’ rights as part of enacting a legislation to protect breeders’ rights to fulfill its …

Beyond The Wto? An Anatomy Of Eu And Us Preferential Trade Agreements, Henrik Horn, Petros C. Mavroidis, André Sapir

Faculty Scholarship

It is often alleged that PTAs involving the EC and the US include a significant number of obligations in areas not currently covered by the WTO Agreement, such as investment protection, competition policy, labour standards and environmental protection. The primary purpose of this study is to highlight the extent to which these claims are true. The study divides the contents of all PTAs involving the EC and the US currently notified to the WTO, into 14 'WTO' and 38 'WTO-X' areas, where WTO provisions come under the current mandate of the WTO, and WTO-X provisions deal with issues lying outside …

Reforming Family Court: Getting It Right Between Rhetoric And Reality, Jane M. Spinak

Faculty Scholarship

What do we say about the reform work we do, and to what degree is what we say accurate? How does the way in which we talk about family court reform implicate our analysis of what we are achieving? How does our place or role within the system affect our perceptions of reform? What limits our willingness and ability to apply rigorous evaluative techniques to determine whether we are reaching our goals? And if we are failing, can we acknowledge failure and learn from it? Answering these questions may lead to a better understanding of why family court reform is …

Integration, Reconstructed, Olatunde C.A. Johnson

Faculty Scholarship

This article examines Parents Involved for the light it sheds on integration's continuing relevance to educational and social equity. Part I examines the story of school integration in Jefferson County and shows how this largely successful metropolitan integration plan challenges claims of racial integration's futility. Part II puts forward the empirical evidence that plaintiffs in Parents Involved used in seeking to establish that school boards have a compelling interest in promoting racial integration and avoiding the harm of racially isolated schools. This part argues that the empirical case for racial integration, while not without limitations, moves beyond stigmatization, psychological harm, …

Seven Things The New Epa Administrator Should Do, Michael B. Gerrard

Faculty Scholarship

In view of the dramatic shift in the nation's environmental policy that is presaged by the ascension of Barack Obama, I have been asked to suggest several actions that should be undertaken by the new administrator of the Environmental Protection Agency (EPA).

This article was written on Jan. 26, 2009, six days after the inauguration. It is to appear in March. Thus every reader will know something that, today, I don't – what long-pent-up actions were taken by President Obama shortly after he moved into the Oval Office. But I am guessing that by the time this article appears, Lisa …

Comment On Developing A Comprehensive Approach To Climate Change Mitigation Policy In The United States: Integrating Levels Of Government And Economic Sectors, Michael B. Gerrard

Faculty Scholarship

The article by Thomas D. Peterson, Robert B. McKinstry Jr., and John C. Dernbach (PM&D) has two central insights: (1) Any serious national effort to control emissions of greenhouse gases (GHGs) must continue to leave important roles to the states; and (2) It would be a mistake to put too many eggs in the cap-and-trade basket. A portfolio approach that utilizes many different regulatory techniques is important.

I certainly agree with PM&D about these insights, and they are correct that much of the current Congressional debate has given too little attention to these considerations. However, I have serious reservations about …

The Obama Administration's First Environmental Policy Changes, Michael B. Gerrard

Faculty Scholarship

Under President Clinton the U.S. EPA took the position that it had the authority to regulate greenhouse gases (GHGs) from motor vehicles under the Clean Air Act as written, but the Clinton administration did not take affirmative steps to actually employ that authority. When President Bush took office, the General Counsel of EPA took the opposite position, stating that it would need special authorizing legislation in order to architect that regulation. A petition was filed with the EPA by the International Council for Technology Assessment and other organizations asking EPA to impose such regulations. EPA denied the petition. This led …

Secondary Human Rights Law, Monica Hakimi

Faculty Scholarship

In recent years, the United States has appeared before four different treaty bodies to defend its human rights record. The process is part of the human rights enforcement structure: each of the major universal treaties has an expert body that reviews and comments on compliance reports that states must periodically submit. What's striking about the treaty bodies' dialogues with the United States is not that they criticized it or disagreed with it on the content of certain substantive rules. (That was all expected.) It's the extent to which the two sides talked past each other. Each presumed a different set …

What Has To Change For Forests To Be Saved? A Historical Example From The United States, Jedediah S. Purdy

Faculty Scholarship

This article looks at the conservation of American forests in the nineteenth and twentieth centuries to cast light on the prospects for global forest conservation in the twenty-first. At the beginning of the nineteenth century, Americans understood their forests as good only for cutting. By the end of the century a national scheme existed for comprehensive and permanent forest conservation. This new scheme became possible thanks to changes in scientific knowledge, the ideological self-image of the country, political institutions, and the imagination and moral commitments of citizens and social movements. A look at the changes that laid the foundations of …

A Few Questions About The Social-Obligation Norm, Jedediah S. Purdy

Faculty Scholarship

I applaud Gregory Alexander for proposing an innovative view of property, one focused on the obligations of ownership. His project locates what I think of as the liberal aim of personal freedom (meaning both formal autonomy and real opportunity) within a social context of distributive choices and conceptions of mutual obligation. That is, he is asking what counts as a free society, and he is putting property regimes at the center of the answer. I want to set out some questions about where his project goes from here.

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

I wrote this essay after participating in a 2006 workshop on Criminal Law and Cultural Diversity, which discussed, among other subjects, the wisdom of providing a "cultural defense." Uncertain just how far such a defense might expand on defenses already available, I undertook to explore that topic.

The phrase "a cultural defense" suggests an either/or choice that any legal system might make. That matters are much more complex than this is part of the burden of this essay. A "cultural defense" in its most general sense refers to a wide range of ways in which evidence about a defendant's cultural …

Hands Off: When And About What, Kent Greenawalt

Faculty Scholarship

I was very pleased to have the chance to comment on these four thoughtful and challenging papers when they were delivered orally at the Association of American Law Schools (AALS) Convention in January, and I am glad to have the opportunity to share some of my unsystematic thoughts about their published versions. I begin with two general observations before addressing the individual essays in turn.

When I came up with the phrase "Hands Off' to liven the title of my article on judicial resolutions of property disputes generated by splits in religious groups, I had not reflected on the wide …

Environmental Law In 2049: A Look Back, Michael B. Gerrard

Faculty Scholarship

December 22 marks the 40th anniversary of the National Environmental Policy Act, which started the modern era of environmental law, and the 40th anniversary of the Environmental Law Institute, which was founded to monitor the new field and to create a profession around the emerging discipline. To mark this anniversary, we asked a range of luminaries to forecast how environmental law and the profession dedicated to its successful implementation will mature over the next four decades. Will environmental protection still be the product of a social movement, or will it have become incorporated as part of the cost of doing …

Taking Action In New York On Climate Change, Michael B. Gerrard, David Driesen, Veronica Eady Famira, J. Kevin Healy, Katrina Kuh, Edward Lloyd, Eileen Millett, David Paget, Virginia Robbins, Patricia Salkin, James Sevinsky, James Van Nostrand

Faculty Scholarship

The New York State Bar Association (NYSBA) Task Force on Global Warming (the Task Force) has been convened by NYSBA President Bernice Leber to summarize New York’s existing laws and programs regarding climate change and to make specific proposals that the State can implement in a timely and cost-effective fashion to reduce greenhouse gas (GHG) emissions and to prepare for the impacts of climate change. New York has taken many steps to address climate change; however, there is much more that can be done. The Task Force has not attempted to comprehensively suggest every possible action, but rather has selected …

Constitutional Limits On Punitive Damages Awards: An Analysis Of Supreme Court Precedent, Dorothy S. Lund

Faculty Scholarship

Over the last fifteen years, the Supreme Court has formulated new constitutional principles to constrain punitive damages awards imposed by state courts, invoking its authority under the Due Process Clause of the Fourteenth Amendment. This intervention has been controversial from the start, generating dissents from several Justices asserting that the actions of the Court are unwarranted and amount to unjustified judicial activism. Over the ensuing years lower courts and commentators have criticized the Court’s prescription of procedural and substantive limitations, finding them to be vague and unnecessarily restrictive of state common law prerogatives. Some observers with an economic orientation have …

Connected Coordination: Network Structure And Group Coordination, Mathew D. Mccubbins, Ramamohan Paturi, Nicholas Weller

Faculty Scholarship

Networks can affect a group’s ability to solve a coordination problem. We utilize laboratory experiments to study the conditions under which groups of subjects can solve coordination games. We investigate a variety of different network structures, and we also investigate coordination games with symmetric and asymmetric payoffs. Our results show that network connections facilitate coordination in both symmetric and asymmetric games. Most significantly, we find that increases in the number of network connections encourage coordination even when payoffs are highly asymmetric. These results shed light on the conditions that may facilitate coordination in real-world networks.

Describing The Effect Of Adaptation On Settlement, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

No abstract provided.

International Common Law: The Soft Law Of International Tribunals, Andrew T. Guzman, Timothy L. Meyer

Faculty Scholarship

No abstract provided.

Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams

Faculty Scholarship

No abstract provided.

The Law Librarian’S Tool For Fair Compensation In The Best - And Worst - Of Times, Femi Cadmus, Loretta Orndoff

Faculty Scholarship

No abstract provided.