Digital Commons Network^™

The Role Of Mental Health Professionals In Political Asylum Processing, Karen Musalo, Susan M. Meffert, Akra Osman Abdo

Faculty Scholarship

No abstract provided.

Do Blind People See Race? Social, Legal, And Theoretical Considerations, Osagie K. Obasogie

Faculty Scholarship

No abstract provided.

An Information Prescription For Prescription Drug Regulation, Anita Bernstein, Joseph Bernstein

Faculty Scholarship

No abstract provided.

The "Principal" Reason Why The Pcaob Is Unconstitutional, Gary S. Lawson

Faculty Scholarship

The Constitution creates very few federal offices. It creates the House and Senate, the Speaker of the House and the President pro tempore of the Senate, the President, the Vice President, and the Supreme Court--and that is it. The Constitution clearly contemplates that there will be other federal “Officers,” who the President must commission and who Congress may impeach and remove, but the document does not itself create those positions. Instead, it provides general authorization to Congress (in conjunction with the President's presentment power and the Vice President's modest voting authority) to “make all Laws which shall be necessary and …

The Psychology Of Conflicts Of Interest In Criminal Cases, Tigran W. Eldred

Faculty Scholarship

This article demonstrates that current Sixth Amendment jurisprudence fails to account for how defense lawyers respond to conflicts of interest in criminal cases. Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support. The result has been a confusing doctrinal landscape, which both relies upon and questions the ability of defense lawyers to address and resolve conflicts of interest.

This article fills the gap in existing literature by viewing conflicts of interest in criminal cases through the prism of behavioral economics. The research reveals that defense lawyers are subject to psychological biases that …

Nonpatentability Of Business Methods: Legal And Economic Analysis, Peter Menell, Michael J. Meurer

Faculty Scholarship

In this brief filed in Bilski vs. Kappos, pending before the U.S. Supreme Court, we argue that the "useful Arts" limitation of the the Intellectual Property Clause of the U.S.Constitution restricts the scope of Congress's patent power to technological advances. Beyond this constitutional limitation, Congress has not extended patent protection to business methods. The subject matter provision of the 1952 Patent Act merely codified existing subject matter categories and limitations, including the exclusion of business methods. The First Inventor Defense Act of 1999 did not alter this limitation on patentable subject matter. It did not amend the subject matter provision. …

The Google Book Search Settlement: Ends, Means, And The Future Of Books, James Grimmelmann

Faculty Scholarship

For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

The settlement …

United States Response To Questionnaire, June M. Besek, Jane C. Ginsburg, Caitlin Grusauskas

Faculty Scholarship

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

The Role Of Conversation In Health Care Interventions: Enabling Sensemaking And Learning, Kurt C. Stange

Faculty Scholarship

Background. Those attempting to implement changes in health care settings often find that intervention efforts do not progress as expected. Unexpected outcomes are often attributed to variation and/or error in implementation processes. We argue that some unanticipated variation in intervention outcomes arises because unexpected conversations emerge during intervention attempts. The purpose of this paper is to discuss the role of conversation in shaping interventions and to explain why conversation is important in intervention efforts in health care organizations. We draw on literature from sociolinguistics and complex adaptive systems theory to create an interpretive framework and develop our theory. We use …

Concerning Theory For Performance Studies, Richard Schechner, Timothy K. Beal, William E. Deal

Faculty Scholarship

In 2007, Routledge published Theory for Performance Studies as part of its Theory 4 series, listing Philip Auslander as author. When, in August, The Chronicle of Higher Education revealed that much of the book was lifted word-for-word from the template for the series, Theory for Religious Studies by Timothy K. Beal and William E. Deal, TDR editor Richard Schechner convened via email and phone conversations a “TDR Forum,” asking leaders in the field to respond to the book and the series. Schechner and other respondents address issues of plagiarism, corporate takeovers of academic publishing, and the dumbing down of performance …

Muslims In Canon Law, Ca. 650–1000, David M. Freidenreich

Faculty Scholarship

No abstract provided.

The Evolving Architecture Of North American Integration, Laura Spitz

Faculty Scholarship

Given its potential significance for democracy, sovereignty, government, governance, and justice in each of Canada, the United States, and Mexico, North American integration qua integration has thus far received surprisingly little attention from legal scholars and social scientists. While an expanding body of research explores the dynamics of continental integration in other contexts (especially Europe) and/or examines the meaning of globalization, regionalism, and multilateral internationalism in a general sense, the specific constitution of an integrated North American space remains largely undertheorized. This Article aims to advance the literature in this area by examining legal discourse as an example of the …

The Warp And Woof Of Statutory Interpretation: Comparing Supreme Court Approaches In Tax Law And Workplace Law, James J. Brudney, Corey Distlear

Faculty Scholarship

Debates about statutory interpretation-and especially about the role of the canons of construction and legislative history-are generally framed in one-size-fits-all terms. Yet federal judges including most Supreme Court Justices-have not approached statutory interpretation from a methodologically uniform perspective. This Article presents the first in-depth examination of interpretive approaches taken in two distinct subject areas over an extended period of time. Professors Brudney and Ditslear compare how the Supreme Court has relied on legislative history and the canons of construction when construing tax statutes and workplace statutes from 1969 to 2008. The authors conclude that the Justices tend to rely on …

Beyond Bidil: The Expanding Embrace Of Race In Biomedical Research And Product Development, Jonathan Kahn

Faculty Scholarship

In 2005 the FDA approved BiDil, the first drug ever to include a race-specific indication on its label - to treat heart failure in a “black” patient. In the aftermath of this controversial approval and subsequent marketing of the drug, many have wondered whether BiDil was an anomaly or a harbinger of things to come. This article moves beyond BiDil to explore how similar yet distinct models are developing for the continuing exploitation of race in biomedical practice and product development. It will explore the tensions embedded in the persistent use of racial categories even as specific genetic variations linked …

Two Decades Of "Alternative Entities": From Tax Rationalization Through Alphabet Soup To Contract As Deity, Daniel S. Kleinberger

Faculty Scholarship

This essay: (i) puts into perspective the past 20 years of developments in the U.S. law of limited liability companies (LLCs), limited liability partnerships (LLPs), and limited liability limited partnerships (LLLPs); (ii) explains how a movement toward tax rationalization has been transformed into a palace coup aimed at fiduciary duty (a fundamental tenet of the U.S. law of closely held businesses); and (iii) criticizes both conceptually and pragmatically efforts to "kill Cardozo" and worship "freedom of contract."

Are You A Boy Or A Girl - Show Me Your Real Id, James Mcgrath

Faculty Scholarship

Although many official documents and forms of identification contain a sex or gender identifier, gender, as a category on these documents, is not very helpful in confirming a person's identity. If the purpose of the inclusion of gender on official documents is to accurately identify an individual, technological advances have given us more accurate methods of ensuring a person's identity. Technologies such as fingerprinting, facial recognition and retinal scans are far superior methods of determining whether a person is who they claim to be. The use of gender or sex on identification cards does little to positively identify individuals, and …

Sticks And Stones, The Words That Hurt: Entrenched Stereotypes Eight Years After 9/11, Sahar F. Aziz

Faculty Scholarship

Notwithstanding the passage of eight years, "post-9/11 discrimination" persists, most profoundly in the workplace. While the volume of cases has seemingly decreased, negative stereotypes of Muslims and Arabs have become entrenched into popular culture and consequently more prevalent in the workplace. One need only recall the 2008 presidential elections where allegations that Barack Obama was a Muslim or Arab were in effect racial slurs and ethnic epithets. Months after Barack Obama's inauguration, anti-Muslim sentiment continues in the form of the growing "Birther" movement challenging the validity of President Obama's Hawaiian birth certificate, and ultimately the legitimacy of his presidency, on …

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Faculty Scholarship

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Judicial Approbation In Building The Civilization Of Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This article describes and assesses the work of three national courts in regard to arbitration. The English experience demonstrates that judicial diffidence toward arbitration and concomitant reverence for the cohesion of substantive law can hamper the acceptance and function of arbitration within the legal system. The French and American experiences attest to a contradistinctive use of judicial authority in regard to arbitration. In both legal systems, the courts have been instrumental to the elaboration of a receptive and accommodating law on arbitration. In these legal systems, legislative enactments are used as a springboard for developing a judicial policy and decisional …

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Secularism, Religion, And Liberal Democracy In The United States, Kent Greenawalt

Faculty Scholarship

This essay is divided into three categories: some brief remarks about forms of secularism, an outline of American constitutional law as it relates to religion, and a discussion from the standpoint of political philosophy of the proper place of religion (and other similar perspectives) in making political decisions within liberal democracies. Because the audience for whom the oral comments from which the essay is derived was mainly non-American, the middle part of the essay sets out many propositions familiar to anyone acquainted with this branch of constitutional law. And because of the informal nature of the original presentation, I offer …

A Convenient Constitution? Extraterritoriality After Boumediene, Christina Duffy Ponsa-Kraus

Faculty Scholarship

Questions concerning the extraterritorial applicability of the Constitution have come to the fore during the "war on terror." In Boumediene v. Bush, the Supreme Court held that noncitizens detained in Guantánamo have the right to challenge their detention in federal court. To reach this conclusion, the Court used the "impracticable and anomalous" test, also known as the 'functional" approach because of its reliance on pragmatic or consequentialist considerations. The test first appeared in a concurring opinion over fifty years ago; in Boumediene, it garnered the votes of a majority.

This Article argues that the Boumediene Court was right …

Conversations With Renowned Professors On The Future Of Copyright, James Boyle, Elizabeth Townsend Gard

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Comparative Law As A Bridge Between The Nation-State And The Global Economy: An Essay For Herbert Bernstein, Richard M. Buxbaum

Faculty Scholarship

Professor Richard M. Buxbaum delivered the Fourth Annual Herbert L. Bernstein Memorial Lecture in Comparative Law in 2005 and this article is based on his remarks. The article is included in the inaugural volume of CICLOPs that collects the first six Bernstein lectures. In this paper, Richard Buxbaum is primarily concerned with the potential of comparative law as a method to bridge the disparities between the laws of nation-states and the needs of the globalized economy. Buxbaum investigates three separate roles for comparative law in closing this gap: First, he discusses the potential uses of comparative law with regard to …

Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett

Faculty Scholarship

Discrimination in today’s workplace is largely implicit, making it ambiguous and often very difficult to prove. Employment discrimination scholars have proposed reforms of Title VII to make implicit discrimination easier to establish in court and to expand the kinds of situations to which liability attaches. The reform proposals reflect a broad consensus that strong legal norms are crucial to addressing the problem. Yet it is mistaken to assume that strengthening plaintiffs’ hands in implicit discrimination cases will necessarily achieve the long-term goal of reducing its occurrence. This Article brings together several strands of social science research showing that (1) implicit …

Instant (Gender) Messaging: Expression-Based Challenges To State Enforcement Of Gender Norms, Taylor Flynn

Faculty Scholarship

Most challenges to state enforced conformity with gender norms are almost solely status-based equality claims. Given that a common term deployed by members of the trans community and in antidiscrimination laws is "gender identity and expression," situating such challenges in expression may, at first glance, appear to be little more than linguistic legerdemain. An understanding of gender as expressive, however, helps capture an often unarticulated, yet central aspect, of the harm enforced conformity inflicts on trans persons---compelled expression of the state's gender message over their profound objection. Consider governmental insistence that a trans student or employee present herself, through dress …

The Interpretation Of Multilingual Statutes By The European Court Of Justice, Lawrence Solan

Faculty Scholarship

No abstract provided.

This Right Is Not Allowed By Governments That Are Afraid Of The People: The Public Meaning Of The Second Amendment When The Fourteenth Amendment Was Ratified , Clayton E. Cramer, Nicholas J. Johnson, George A. Moscary

Faculty Scholarship

The lingering question following the U.S. Supreme Court's decision in District of Columbia v. Heller is whether the Court will employ the Fourteenth Amendment to incorporate the newly confirmed right to keep and bear arms as a limitation on states. The answer will hinge substantially on the Court's assessment of the intent and purpose of the Fourteenth Amendment with regard to the right to keep and bear arms. Discerning such intent requires detailed evaluation of the context within which the amendment emerged and the understanding of the right to keep and bear arms at the time. This Essay pursues in …

Policing, Place, And Race, Bennett Capers

Faculty Scholarship

No abstract provided.