Digital Commons Network^™

Visionary Pragmatism And The Value Of Privacy In The Twenty-First Century, Danielle Keats Citron, Leslie Meltzer Henry

Faculty Scholarship

Despite extensive scholarly, legislative, and judicial attention to privacy, our understanding of privacy and the interests it protects remains inadequate. At the crux of this problem is privacy’s protean nature: it means “so many different things to so many different people” that attempts to articulate just what it is, or why it is important, generally have failed or become unwieldy. As a result, important privacy problems remain unaddressed, often to society’s detriment.

In his newest book, Understanding Privacy, Daniel J. Solove aims to reverse this state of affairs with a pluralistic conception of privacy that recognizes the societal value …

The Decline Of Investment Banking: Preliminary Thoughts On The Evolution Of The Industry 1996-2008, Robert J. Rhee

Faculty Scholarship

In this paper, I provide a basic, preliminary financial analysis of several prominent, independent investment banks: Goldman Sachs, Morgan Stanley, Merrill Lynch, Lehman Brothers, and Bear Stearns. I provide the following data: (1) segmentation of net revenue by products and services, (2) return on average equity, (3) leverage ratio, and (4) debt to equity ratio. Although the data analysis here is very basic, it still tells an interesting narrative of the evolution of the investment banking industry. The investment banking industry has undergone significant change in the twelve-year period 1996 to 2008. In the mid-1990s, banks had a balance mix …

Fiduciary Exemption For Public Necessity: Shareholder Profit, Public Good, And The Hobson's Choice During A National Crisis, Robert J. Rhee

Faculty Scholarship

This Article is written as two discrete, independently accessible topical sections. The first topical section, presented in Part I of this Article, is a case study of Bank of America’s acquisition of Merrill Lynch and the impact of a flawed merger execution on the board’s subsequent decisions. The second topical section, presented Parts II-IV of this Article, advances a theoretical basis for fiduciary exemption during a public crisis. The financial crisis of 2008 was the worst economic disaster since the Great Depression. It nearly resulted in a collapse of the global capital markets. A key event in the history of …

Government Speech 2.0, Helen L. Norton, Danielle Keats Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Extraordinary Justice, David C. Gray

Faculty Scholarship

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

Case Study Of The Bank Of America And Merrill Lynch Merger, Robert J. Rhee

Faculty Scholarship

This is a case study of the Bank of America and Merrill Lynch merger. It is based on the article, Fiduciary Exemption for Public Necessity: Shareholder Profit, Public Good, and the Hobson’s Choice during a National Crisis, 17 Geo. Mason L. Rev. 661 (2010). The case study analyzes the controversial events occurring between the merger signing and closing. It reviews in depth the circumstances under the federal government threatened to fire the board and management of Bank of America unless it consummated the Merrill Lynch acquisition. Among other issues, this case study raises the questions: (1) what is the role …

Beyond Innovation And Competition: The Need For Qualified Transparency In Internet Intermediaries, Frank Pasquale

Faculty Scholarship

Internet service providers and search engines have mapped the web, accelerated e-commerce, and empowered new communities. They also pose new challenges for law. Individuals are rapidly losing the ability to affect their own image on the web - or even to know what data are presented about them. When web users attempt to find information or entertainment, they have little assurance that a carrier or search engine is not biasing the presentation of results in accordance with its own commercial interests.

Technology’s impact on privacy and democratic culture needs to be at the center of internet policy-making. Yet before they …

Trusting (And Verifying) Online Intermediaries' Policing, Frank A. Pasquale

Faculty Scholarship

All is not well in the land of online self-regulation. However competently internet intermediaries police their sites, nagging questions will remain about their fairness and objectivity in doing so. Is Comcast blocking BitTorrent to stop infringement, to manage traffic, or to decrease access to content that competes with its own for viewers? How much digital due process does Google need to give a site it accuses of harboring malware? If Facebook censors a video of war carnage, is that a token of respect for the wounded or one more reflexive effort of a major company to ingratiate itself with the …

Privacy As Product Safety, James Grimmelmann

Faculty Scholarship

Online social media confound many of our familiar expectaitons about privacy. Contrary to popular myth, users of social software like Facebook do care about privacy, deserve it, and have trouble securing it for themselves. Moreover, traditional database-focused privacy regulations on the Fair Information Practices model, while often worthwhile, fail to engage with the distinctively social aspects of these online services.

Instead, online privacy law should take inspiration from a perhaps surprising quarter: product-safety law. A web site that directs users' personal information in ways they don't expect is a defectively designed product, and many concepts from products liability law could …

Some Skepticism About Search Neutrality, James Grimmelmann

Faculty Scholarship

In the last few years, some search-engine critics have suggested that dominant search engines (i.e. Google) should be subject to “search neutrality” regulations. By analogy to network neutrality, search neutrality would require even-handed treatment in search results: It would prevent search engines from playing favorites among websites. Academics, Google competitors, and public-interest groups have all embraced search neutrality.

Despite this sudden interest, the case for search neutrality is too muddled to be convincing. While “neutrality” is an appealing-sounding principle, it lacks a clear definition. This essay explores no fewer than eight different meanings that search-neutrality advocates have given the term. …

Introduction, Michael R. Dimino, Tonya M. Evans-Walls, Nicole M. Santo

Faculty Scholarship

No abstract provided.

A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli

Faculty Scholarship

In classical social movement theory, scholars have identified the advocates of change as elements of agitation and the establishment as the entity that responds in an attempt to control the agitators. This classical approach has assumed that the establishment is a generally monolithic entity that responds in a unified manner to the efforts of the advocates of change. While this approach may accurately characterize some rhetorical situations, it does not necessarily have to characterize all such situations. For example, one could describe the judiciary as a part of the establishment because judges are well-connected and powerful individuals who, in many …

Breaking Up Is Hard To Do: Should Financial Conglomerates Be Dismantled?, James A. Fanto

Faculty Scholarship

No abstract provided.

Wiki Authorship, Social Media And The Curatorial Audience, Jon M. Garon

Faculty Scholarship

Wikis have become an important source of information and a go-to destination on the Internet. The shared authorship and social editing represents an increasingly influential model for content creation and dissemination which will continue growing in prominence for education, training, news gathering and entertainment. Wiki authors undertake their participation based on their agreements regarding the ownership, attribution and integrity of the copyrighted material they contribute. To accomplish the goals of the wiki, both copyright law and contractual licenses are needed allow unlimited republication, editing (or creation of derivative works), and waiver of control (or integrity) over the resulting publication. Wikis …

Searching Inside Google: Cases, Controversies And The Future Of The World's Most Provocative Company, Jon M. Garon

Faculty Scholarship

For a company whose motto is "Do No Evil," Google certainly has its share of detractors. The company is at the center of numerous controversies that will determine how people use the Internet, find information, and communicate with each other. Professor Jon Garon explores the cases that will shape Google’s future and the implications for copyright and trademark owners, including: the latest AdWords’ case Rescuecom v. Google, the proposed Book Search settlement, the Viacom v. YouTube copyright infringement case, and looming antitrust investigations. He also will speculate about the future of Google as it consolidates its control over online search …

Content, Control, And The Socially Networked Film, Jon M. Garon

Faculty Scholarship

The influences of digital distribution of content have begun to redefine the music industry in a highly-visible battle between record producers and consumers which has left musicians standing at the sidelines. Given the high cost of production and relatively limited number of theatrically distributed feature films each year, motion picture producers are exposed to much greater risk from digital piracy than other media. At the same time, changing technology has created new opportunities for film producers, filmmakers and audiences to interact. These same trends may grow to subsume the traditional notion of prime-time television entertainment as well. All the parties …

Sexting And Teenagers: Omg R U Going 2 Jail???, Catherine Arcabascio

Faculty Scholarship

No abstract provided.

American Airpower In The 21st Century: Reconciling Strategic Imperatives With Economic Realities, Charles J. Dunlap Jr.

Faculty Scholarship

“Vexing” is certainly the right word to describe the state of resource allocation in the national security community. Despite still sizable defense budgets, serious economic constraints combine with a wide range of complicated threats to create extremely difficult choices for policy makers. To help them work through the decision-making process, Congress mandates Quadrennial Defense Reviews (QDRs). QDRs “are intended to guide the services in making resource allocation decisions when developing future budgets.” The 2010 QDR rightly insists that “America’s interests and role in the world require armed forces with unmatched capabilities.”6 Recent resource decisions, however, do not provide much comfort …

Pregnant Man: A Conversation, Darren Rosenblum, Noa Ben-Asher, Mary Anne Case, Elizabeth Emens, Berta E. Hernandez-Truyol,, Vivian M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, Beth Jones

Faculty Scholarship

I'm a law professor who works on gender, sexuality, and culture in the international and comparative context. That's my head working. In "real" life, my partner, Howard, and I have been engaged in having a baby together for several years, a project that came to fruition with the birth of our daughter Melina. Of course, such a project evokes intensely complex feelings and thoughts. Beyond a simple transposition of the personal onto the political, I feel so fortunate to have engaged in myriad conversations with a variety of friends and colleagues who think much more carefully about the family and …

Declaratory Relief After Medimmune, David I. Levine, Charles E. Belle

Faculty Scholarship

No abstract provided.

Crimes Without Punishment: Violence Against Women In Guatemala, Karen Musalo, Elisabeth Pellegrin, S. Shawn Roberts

Faculty Scholarship

No abstract provided.

Health Reform: What's Insurance Got To Do With It? Recognizing Health Insurance As A Separate Species Of Insurance, Wendy K. Mariner

Faculty Scholarship

Health insurance can be, and to a large extent already is, a separate species of insurance. This article describes the different views of insurance that made health reform contentious. It argues that the goals of health reform are incompatible with conventional views of insurance. Nonetheless, reforming health insurance to achieve those goals does not require as dramatic shift as some might think, because health insurance has already become primarily a means of paying for health care, rather than a simple risk spreading device for specified losses.

Blind Expertise, Christopher Robertson

Faculty Scholarship

The United States spends many billions of dollars on its system of civil litigation, and expert witnesses appear in a huge portion of cases. Yet litigants select and retain expert witnesses in ways that create the appearance of biased hired guns on both sides of every case, thereby depriving factfinders of a clear view of the facts. As a result, factfinders too often arrive at the wrong conclusions, thus undermining the deterrence and compensation functions of litigation. Court-appointment of experts has been widely proposed as a solution, yet it raises legitimate concerns about accuracy and has failed to gain traction …

Will Americans Embrace Single-Payer Health Insurance: The Intractable Barriers Of Inertia, Free Market And Culture, Susan A. Channick

Faculty Scholarship

In a country that prides itself on equality of opportunity, why is there so little equality when it comes to healthcare? Why does the value of equality of opportunity not translate into social solidarity? This Article seeks answers to these questions. Risking the label of socialist, I posit that the most cost-effective, efficacious, and efficient solution to the health care mess that the United States is in is universal single-payer reform with the federal government as that payer.

Part I examines the United States' current climate as it affects health care reform. In Part II, this Article scrutinizes recent state …

Teaching Interdisciplinary Collaboration: Theory, Practice, And Assessment, Linda Morton, Howard Taras, Vivian Reznik

Faculty Scholarship

In this article, we offer our own theory-based methodology for teaching interprofessional collaboration to law students and we present our preliminary data on its effectiveness. Part I explicates the definition and development of interdisciplinary collaboration. Part II describes how we have grounded our course in current theory, and Part III explains the extent to which our efforts have been successful. Finally, in Part IV, we offer additional thoughts regarding the teaching of interdisciplinary collaboration and pose questions and ideas for future data collection.

Following The Money – The Chaotic Kerfuffle Over Residential Insurance Proceeds That Simultaneously Are The Only Rebuild Funds And The Only Mortgage Collateral, Kenneth S. Klein

Faculty Scholarship

In an average year in the United States, 30,000 homes are lost to fire, flood, or another similar disaster. In 2003, one of those homes was mine. Since that time, I have spent literally thousands of hours counseling hundreds of survivors of other disasters (including wildfires, Hurricane Katrina, and the crash of a military jet into a residential neighborhood) on the unique set of emotional, financial, and legal challenges that define their road to recovery. One of the recurring and yet repetitively unanticipated challenges is the tug of war between homeowners and their mortgage lender/mortgage servicer over money. That challenge …

The Complicated Relationship: A Snapshot Of The U.S.-Mexico Border, James Cooper

Faculty Scholarship

This report will detail some of the major issues concerning the U.S.-Mexico border and the interconnected nature of the problems. It first examines the violence between narcotraficantes, that which has resulted in the crackdown against them by the Mexican Government through mobilization of the military. The resulting violence and kidnappings have brought about minimal confidence in civilian authorities, the administration of justice, and democratic governance. This report discusses the resulting public insecurity that has afflicted Mexico in the last few years. This report explores the economic contours along the U.S. border, and the reactions of the U.S. Government to what …

Reasonable Expectations In Socio-Cultural Context, Nancy Kim

Faculty Scholarship

Under the objective theory of contract, courts interpret the intent of the parties in adopting a particular contractual term according to the reasonable meaning of that term, or the meaning that a reasonable person would assign to that term. Courts adopt the objective theory to determine all aspects of the understanding between the parties-from the determination of contract formation, to an evaluation of the meaning of written or spoken terms, to an assessment of contract performance. In a series of articles, Professor Melvin Eisenberg explained how modern contract law evolved from the will theory to the classical model, and from …

"And I Don't Know Why It Is That You Threw Your Life Away": Abolishing Life Without Parole, The Supreme Court In Graham V. Florida Now Requires States To Give Juveniles Hope For A Second Chance, Leslie Culver

Faculty Scholarship

Terrance Graham pled guilty to armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. He was sentenced to prison for the rest of his life. Like Roe v. Wade made history by forcing this country to consider the morality of abortion, so too will the United States Supreme Court's decision in Graham v. Florida make history by challenging the morality of sentencing juveniles for the rest of their lives. After firmly abolishing the death penalty for all juvenile offenders under the age of eighteen, as a violation of the Eighth Amendment's Cruel and …

The California Public Defender: Its Origins, Evolution And Decline, Laurence A. Benner

Faculty Scholarship

No abstract provided.