Digital Commons Network^™

How Jurors Evaluate Fingerprint Evidence: The Relative Importance Of Match Language, Method Information, And Error Acknowledgment, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Fingerprint examiners use a variety of terms and phrases to describe a finding of a match between a defendant's fingerprints and fingerprint impressions collected from a crime scene. Despite the importance and ubiquity of fingerprint evidence in criminal cases, no prior studies examine how jurors evaluate such evidence. We present two studies examining the impact of different match phrases, method descriptions, and statements about possible examiner error on the weight given to fingerprint identification evidence by laypersons. In both studies, the particular phrase chosen to describe the finding of a match-whether simple and imprecise or detailed and claiming near certainty-had …

Regulating Shadows: Financial Regulation And Responsibility Failure, Steven L. Schwarcz

Faculty Scholarship

In the modern financial architecture, financial services and products increasingly are provided outside of the traditional banking system—and thus without the need for bank intermediation between capital markets and the users of funds. Most corporate financing, for example, no longer is dependent on bank loans but raised through special-purpose entities, money-market mutual funds, securities lenders, hedge funds, and investment banks. This shift, referred to as “disintermediation” and described as creating a “shadow banking” system, is so radically transforming finance that regulatory scholars need to rethink their assumptions. Two of the fundamental market failures underlying shadow banking—information failure and agency failure—were …

Nonsense And The Freedom Of Speech: What Meaning Means For The First Amendment, Joseph Blocher

Faculty Scholarship

A great deal of everyday expression is, strictly speaking, nonsense. But courts and scholars have done little to consider whether or why such meaningless speech, like nonrepresentational art, falls within “the freedom of speech.” If, as many suggest, meaning is what separates speech from sound and expression from conduct, then the constitutional case for nonsense is complicated. And because nonsense is so common, the case is also important — artists like Lewis Carroll and Jackson Pollock are not the only putative “speakers” who should be concerned about the outcome.

This Article is the first to explore thoroughly the relationship between …

Intuition Versus Algorithm: The Case Of Forensic Authorship Attribution, Lawrence Solan

Faculty Scholarship

No abstract provided.

Staging The Family, Clare Huntington

Faculty Scholarship

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye. These performances of family and familial roles do not simply communicate messages to …

مدخل في نظرية المزج بقلم مارك تورنر، الأزهر الزناد: Elements Of Blending, Mark Bernard Turner

Faculty Scholarship

This is a translation into Arabic by Lazhar Zanned of Elements of Blending by Mark Turner, which presents the basics of the theory of conceptual integration.

What Direction For Legal Reform Under Xi Jinping?, Carl F. Minzner

Faculty Scholarship

In the fall of 2014, Chinese Communist Party authorities made legal reform the focus of their annual plenum for the first time. The Fourth Plenum Decision confirmed a shift away from some of the policies of the late Hu Jintao era, but liberal reforms still remain off the table. The top-down vision of legal reform developing under Xi Jinping’s administration may have more in common with current trends in the party disciplinary apparatus or historical ones in the imperial Chinese censorate than it does with Western rule-of-law norms. This essay attempts to do three things: (1) analyze how and why …

The “Unwritten Constitution” And Unwritten Law, Stephen E. Sachs

Faculty Scholarship

America’s Unwritten Constitution is a prod to the profession to look for legal rules outside the Constitution’s text. This is a good thing, as outside the text there’s a vast amount of law—the everyday, nonconstitutional law, written and unwritten, that structures our government and society. Despite the book’s unorthodox framing, many of its claims can be reinterpreted in fully conventional legal terms, as the product of the text’s interaction with ordinary rules of law and language.

This very orthodoxy, though, may undermine Akhil Amar’s case that America truly has an “unwritten Constitution.” In seeking to harmonize the text with deep …

Trouble With Regulating Microfinance, Anita Bernstein

Faculty Scholarship

No abstract provided.

Towards Engaged Scholarship, Nestor M. Davidson

Faculty Scholarship

No abstract provided.

La Verdad, El Poder, Y La Liberacion, Christine Zuni Cruz

Faculty Scholarship

A Reflection on Margaret Montoya, Mascaras, Trenzas, y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 HARV. WOMENS L. J. 185 (1994), 15 CHICANO-LATINO L. REV. 1 (1994)' Professor Margaret Montoyas Mascaras, Trenzas y Grenas: Un/Masking The Self While Unbraiding Latina Stories and Legal Discourse1 was published during the first year of my entry into the legal academy as a visiting professor. This reflection on her influential article addresses three of the major themes that resonate most strongly for me. The first is the assimilative pull of the legal academic institution, the second is the power …

Staging The Family, Clare Huntington

Faculty Scholarship

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to …

Regulating Resort To Force: Form And Substance Of The Un Charter Regime, Matthew C. Waxman

Faculty Scholarship

Much of the international legal debate about regulating force and self-defence takes place on a substantive axis, focusing on the scope of force prohibitions and exceptions. This article instead focuses on their doctrinal form, or modes of argumentation and analysis through which facts are assessed in relation to legal directives, to illuminate how many of the assumptions about substantive policy goals and risks tend to be coupled with other assumptions about the way international law operates in this field. It shows that the flexible, adaptable standards favoured by some states, scholars, and other international actors and the fixed rules and …

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign …

Government Disapproval Of Religion, Jay D. Wexler

Faculty Scholarship

The Supreme Court’s “Endorsement Test” for evaluating the constitutionality of government sponsored symbols, displays, and messages regarding religion is notoriously controversial and has engendered enormous scholarly attention. In addition to government “endorsement” of religion, however, the test also prohibits the government from sending a message of “disapproval” of religion. The disapproval side of the Endorsement Test has not been subject to almost any scholarly discussion, which is not surprising given that until recently the courts have had no reason to entertain, much less sustain, challenges to alleged government disapproval of religion. In the last few years, however, due to a …

What's On First?: Organizing The Casebook And Molding The Mind, Donald G. Gifford, Joseph L. Kroart Iii, Brian Jones, Cheryl Cortemeglia

Faculty Scholarship

This study empirically tests the proposition that law students adopt different conceptions of the judge’s role in adjudication based on whether they first study intentional torts, negligence, or strict liability. The authors conducted an anonymous survey of more than 450 students enrolled in eight law schools at the beginning, mid-point, and end of the first semester of law school. The students were prompted to indicate to what extent they believed the judge’s role to be one of rule application and, conversely, to what extent it was one of considering social, economic, and ideological factors. The survey found that while all …

Big Data In Small Hands, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

"Big data" can be defined as a problem-solving philosophy that leverages massive data-sets and algorithmic analysis to extract "hidden information and surprising correlations." Not only does big data pose a threat to traditional notions of privacy, but it also compromises socially shared information. This point remains under appreciated because our so-called public disclosures are not nearly as public as courts and policymakers have argued — at least, not yet. That is subject to change once big data becomes user friendly.

Most social disclosures and details of our everyday lives are meant to be known only to a select group of …

The Paradox Of Legal Equivalents And Scientific Equivalence: Reconciling Patent Law's Doctrine Of Equivalents With The Fda's Bioequivalence Requirement, Janet Freilich

Faculty Scholarship

Contrary to popular perception, generic drugs often enter the market before the patents covering their brand name counterparts have expired by making slight changes to the drug to avoid the brand name patent. These generics face a paradox: the U.S. Food and Drug Administration (FDA) requires that the generic "not show a significant difference" from the reference product, while patent law requires that the generic have "substantial differences" as compared to the reference product. The generic must be bioequivalent, but not legally equivalent, to the brand name drug. This paradox occurs frequently in the courts but has never been discussed …

Night Of The Living Dead Hand: The Individual Mandate And The Zombie Constitution, Gary S. Lawson

Faculty Scholarship

If someone had told me on June 27, 2012, that five Justices of the U.S. Supreme Court were about to hold in National Federation of Independent Business v. Sebelius 1 (NFIB) that the individual mandate provision in the Patient Protection and Affordable Care Act 2 (PPACA) was not constitutionally authorized either by the Commerce Clause or the Necessary and Proper Clause, 3 I would have popped a cork. I don't even drink, but I would have popped the cork on principle just to hear the sound (and also to irritate my colleagues, most of whom revere the PPACA the way …

Obscurity By Design, Woodrow Hartzog, Frederic D. Stutzman

Faculty Scholarship

Design-based solutions to confront technological privacy threats are becoming popular with regulators. However, these promising solutions have left the full potential of design untapped. With respect to online communication technologies, design-based solutions for privacy remain incomplete because they have yet to successfully address the trickiest aspect of the Internet — social interaction. This Article posits that privacy-protection strategies such as “Privacy by Design” face unique challenges with regard to social software and social technology due to their interactional nature.

This Article proposes that design-based solutions for social technologies benefit from increased attention to user interaction, with a focus on the …

Language Access Laws And Legal Issues: A Local Official's Guide, David Jung, Noemí O. Gallardo

Faculty Scholarship

No abstract provided.

The Failed Promise Of Language Rights: A Critique Of The International Language Rights Regime, Moria Paz

Faculty Scholarship

Major international legal instruments commit international law to protect language rights absolutely, irrespective of counter-pressures toward linguistic uniformity. This unconditional commitment to language rights is echoed in the writings of prominent human rights scholars, who argue that language is a constitutive element of cultural identity. This article contrasts the ideals of language rights with the actual record of their enforcement. It presents a detailed analysis of the 133 cases that have come before the European Court of Human Rights, the U.N. Human Rights Committee, and the Inter-American Court of Human Rights dealing with language issues as they arise in (i) …

Check, Pleas: Toward A Jurisprudence Of Defense Ethics In Plea Bargaining, Hadar Aviram, Deanna Dyer, S. C. Thomas

Faculty Scholarship

No abstract provided.

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Faculty Scholarship

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Maryland V. King: Per Se Unreasonableness, The Golden Rule, And The Future Of Dna Databases, David H. Kaye

Faculty Scholarship

In Maryland v. King, the Supreme Court applied a balancing test to uphold a Maryland statute mandating preconviction collection and analysis of DNA from individuals charged with certain crimes. The DNA profiles are limited to an inherited set of DNA sequences that are not known to be functional and that are tokens of individual identity. This invited online essay examines two aspects of an article on the case by Professor Erin Murphy. I question the claim that the case is pivotal in a conceivable abandonment of the per se rule that warrantless, suspicionless searches are unconstitutional unless they fall …

Dog Woman And The Complexities Of The Maternal Instinct In Jeanette Winterson's Sexing The Cherry, Heather Brown Hudson

Faculty Scholarship

In Sexing the Cherry, Jeanette Winterson’s Dog Woman is a gigantesque weapon yielding force to be reckoned with. As the title teases with the notion of gendering within language, both her physical appearance and actions beg for a reevaluation of what has been defined as both maternal and instinctual. She is at once a stable and loving, yet in order to protect her son from harm, she revolts against the powers that be and oscillates between time and place in both a self-made utopia as well as a force-fed dystopia. To her son, she is shelter, to her enemies, menacing …

Rhetoric, Referential Communication, And The Novice Writer, Barbara P. Blumenfeld

Faculty Scholarship

Classical rhetoric is integral to teaching legal writing, and this essay argues that its use must be enhanced with audience awareness. This is so rhetoric can be successfully applied to teaching and the practice of legal writing.

This essay begins with a very brief overview of the relationship of rhetoric to legal writing and how audience awareness is a key factor in both. This overview leads to a definition of two distinct tasks that must be incorporated into the writing process: first, learning about and understanding specific audiences; second, learning how to implement writing that works for that audience.

A …

Health Insurance And Federalism-In-Fact, Radha A. Pathak, Brendan S. Maher

Faculty Scholarship

The constitutional legitimacy of the Patient Protection and Affordable Care Act (“ACA”) received substantial attention. Less examined has been the legislation’s sub-constitutional effect on the regulatory power that states can and might exercise. Regarding a state's ability to promulgate "sickness rules," (those legal rules pertaining to the conditions or treatment an insurance policy covers) and "non-sickness" rules (those legal rules pertaining to insurance other than sickness rules), we scrutinize the ACA itself and contrast it with the other most significant statute governing private health insurance, the Employee Retirement Income Security Act of 1974 (“ERISA”). The authors would like to thank …

Patent Infringement In The Context Of Follow-On Biologics, Janet Freilich

Faculty Scholarship

This Article fills a gap in the literature by conducting a comprehensive analysis of patent infringement in the context of follow-on biologics. Patent infringement is an important topic because, like small molecule generic drugs, follow-on biologics are likely to begin their life facing infringement suits. Because it is tremendously expensive to develop a follow-on biologic, it is vital that there be consistency in how they are treated in the courts once the inevitable patent infringement suits arrive. If follow-on biologics companies cannot predict how their product will be received in court, they may decide it is not worth the risk …

Vat Fraud In The Customer Chain - The German Perfect Storm Cases, Richard Thompson Ainsworth

Faculty Scholarship

German civil and criminal courts have not always agreed over whether to allow a taxpayer to zero-rate intra-Community supplies when the taxpayer making the supply knew (or should have known) that his buyer in the other Member State intended to fraudulently evade VAT as a missing trader. This is no longer the case. Zero-rating of intra-community supplies is now being denied in German civil and criminal courts.

This paper considers how far Germany appears to be extending the law in this area. In 2011 six cases were heard by the Bundesfinanzhof (German Supreme Tax Court) that demonstrate both (a) the …