Digital Commons Network^™

Extraterritorial Electioneering And The Globalization Of American Elections, Zephyr Teachout

Faculty Scholarship

This Essay explores a fascinating new truth: because of the Internet, governments, corporations, and citizens of other countries can now meaningfully participate in United States elections. They can phone bank, editorialize, and organize in ways that impact a candidate's image, the narrative structure of a campaign, and the mobilization of base support. Foreign governments can bankroll newspapers that will be read by millions of voters. Foreign companies can enlist employees in massive cross-continental email campaigns. Foreign activists can set up offline meetings and organize door-to-door campaigns in central Ohio. They can, in short, influence who wins and who loses. Depending …

Collateral Conflict: Employer Claims Of Rico Extortion Against Union Comprehensive Campaign , James J. Brudney

Faculty Scholarship

The article addresses an important yet largely overlooked issue of statutory meaning and labor relations policy: employers’ aggressive use of civil RICO actions to chill coordinated union efforts in the organizing and bargaining arenas. Over the past 30 years, facing volatile economic conditions and complex corporate relationships, unions have mounted coordinated campaigns (aimed at consumers, public officials, lenders, the media, and the public) in order to help organize new workers and to renew collective bargaining relationships. These often high-profile campaigns have at times been quite successful. In response, employers since the late 1980s have invoked civil RICO’s broad language to …

The Duty To Avoid Wrongful Convictions: A Thought Experiment In The Regulation Of Prosecutors, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

This Article explores the possible role of the attorney disciplinary process in discouraging prosecutorial conduct that contributes to false convictions. It asks what the impact would be, for better or worse, of disciplining prosecutors for incompetence when they fail to exercise reasonable care to prevent the conviction of the innocent. The inquiry provides a new vehicle for thinking about the nature of the disciplinary process, the work of prosecutors, the challenge of preventing erroneous convictions and, ultimately, the complexities of prosecutorial regulation.

The Article demonstrates that it would be plausible to interpret the attorney competence rule as encompassing prosecutorial negligence …

Cognition And Star Trek: Learning And Legal Education, Kate Bloch

Faculty Scholarship

No abstract provided.

Evidence Code Section 802: The Neglected Key To Rationalizing The California Law Of Expert Testimony, David L. Faigman, Edward J. Imwinkelried

Faculty Scholarship

No abstract provided.

Plain Language Patents, Robin Feldman

Faculty Scholarship

No abstract provided.

Burning Shoes And The Spirit World: The Charade Of Neutrality, Frank H. Wu

Faculty Scholarship

No abstract provided.

Israel's Invasion Of Gaza In International Law, George Bisharat, Timothy Crawley, Sar Elturk, Carey James, Rose Mishaan, Akila Radhakrishnan, Anna Sanders

Faculty Scholarship

No abstract provided.

Technology And Uncertainty The Shaping Effect On Copyright Law, Ben Depoorter

Faculty Scholarship

No abstract provided.

What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson

Faculty Scholarship

No abstract provided.

Measuring Insider Trading Damages For A Private Plaintiff, William K.S. Wang

Faculty Scholarship

No abstract provided.

The Challenge Of Democratic Lawyering, Ascanio Piomelli

Faculty Scholarship

No abstract provided.

Participation In Governance From A Comparative Perspective: Citizen Involvement In Telecommunications And Electricity In The United Kingdom, France And Sweden, Dorit Rubinstein Reiss

Faculty Scholarship

No abstract provided.

Reconstructive Feminism: Changing The Way We Talk About Gender And Work Thirty Years After The Pda, Joan C. Williams

Faculty Scholarship

No abstract provided.

Foreseeability And Copyright Incentives, Shyamkrishna Balganesh

Faculty Scholarship

Copyright law’s principal justification today is the economic theory of creator incentives. Central to this theory is the recognition that while copyright’s exclusive rights framework provides creators with an economic incentive to create, it also entails large social costs, and that creators therefore need to be given just enough incentive to create in order to balance the system’s benefits against its costs. Yet, none of copyright’s current doctrines enable courts to circumscribe a creator’s entitlement by reference to limitations inherent in the very idea of incentives. While the common law too relies on providing actors with incentives to behave in …

Greenhouse Gases: Emerging Standards For Impact Review, Michael B. Gerrard

Faculty Scholarship

Numerous federal and state judicial decisions have established that environmental impact statements (EISs) under the National Environmental Policy Act (NEPA) and its state equivalents should examine the impact of proposed projects on emissions of greenhouse gases (GHG), the principal anthropogenic cause of climate change. Administrative agencies and court settlements are now establishing the guidelines for the conduct of these examinations.

What Went Wrong? A Tragedy In Three Acts, John C. Coffee Jr.

Faculty Scholarship

I am going to tell today a simple story of greed, rationalization, and sloth; it is a tragedy in three acts. The first act involves the collapse of what I will call the Great American Housing Bubble. The second act involves the failure of the gatekeepers, in particular; what happened at those credit rating agencies that could lead them to rate everything investment-grade? In the final act, I will turn to the collapse of the investment banks, the failure of securities regulation, and where that leaves us.

Although this is a tragedy, it is not a Shakespearian tragedy because Shakespearian …

Subsidizing Creativity Through Network Design: Zero Pricing And Net Neutrality, Robin S. Lee, Tim Wu

Faculty Scholarship

Today, through historical practice, there exists a de facto ban on termination fees – also referred to as a “zero-price” rule (Hemphill, 2008) – which forbids an Internet service provider from charging an additional fee to a content provider who wishes to reach that ISP’s customers. The question is whether this zero-pricing structure should be preserved, or whether carriers should be allowed to charge termination fees and engage in other practices that have the effect of requiring payment to reach users. This paper begins with a defense of the de facto zero-price rule currently in existence. We point out that …

Contracts, Orphan Works, And Copyright Norms: What Role For Berne And Trips?, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses the extremes of private ordering, and the extent to which the principal multilateral copyright instruments, the Berne Convention and the TRIPs Accord, limit the range of State responses to the problems encountered at the far ends of the copyright-contract spectrum. At one end, we encounter private ordering at its most aggressive, in which private parties enter into agreements (or, more likely, the stronger party coerces the weaker parties, who may be mass market consumers) to protect subject matter or rights excluded from the ambit of copyright's exclusivity. At the other end, the difficulties arise not from overweening …

Contracting For Innovation: Vertical Disintegration And Interfirm Collaboration, Ronald J. Gilson, Charles F. Sabel, Robert E. Scott

Faculty Scholarship

Rapidly innovating industries are not behaving the way theory expects. Conventional industrial organization theory predicts that, when parties in a supply chain have to make transaction-specific investments, the risk of opportunism will drive them away from contracts and toward vertical integration. Despite the conventional theory, however, contemporary practice is moving in the other direction. Instead of vertical integration, we observe vertical disintegration in a significant number of industries, as producers recognize that they cannot themselves maintain cutting-edge technology in every field required for the success of their products. In doing this, the parties are developing forms of contracting beyond the …

On The Origins Of Originalism, Jamal Greene

Faculty Scholarship

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. Ifocus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common law adjudicative norm, but whose political and legal cultures less readily assimilate judicial restraint to constitutional historicism. I offer …

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Faculty Scholarship

The Iraq war rekindled debate – debate now further inflamed in discussions of Iran and North Korea-about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Coinciding with this debate is the stark fact that intelligence about allegedly hostile states' WMD capabilities is and will remain limited.

This Article aims to develop more fully how an objective reasonableness approach to WMD capability assessments would work, and more generally how the law governing use of force should guide capability assessments. It begins in Part I …

Revealing Choices: Using Taxpayer Choice To Target Tax Enforcement, Alex Raskolnikov

Faculty Scholarship

People pay their taxes for many different reasons. Some choose to game the system, paying only when the cost of noncompliance outweighs its benefits. Others comply out of habit, a sense of duty or reciprocity, a desire to avoid feelings of guilt or shame, and for many other reasons. Our tax enforcement system has ignored this variety of taxpaying motivations for decades. It continues to rely primarily on audits and penalties, at least where information reporting and withholding are impossible. Fines and audits deter those rationally playing the tax compliance game, but are wasteful or even counterproductive when applied to …

Media Subpoenas: Impact, Perception, And Legal Protection In The Changing World Of American Journalism, Ronnell Andersen Jones

Faculty Scholarship

Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change—albeit on a different trajectory—as …

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, …

Disestablishing Environmentalism, Andrew P. Morriss, Benjamin D. Cramer

Faculty Scholarship

The debate over environmental policy is increasingly conducted in language with strong religious overtones. Both proponents and opponents of various environmental policies appeal to religious doctrine to support their positions: Those who question human-caused global warming are labeled "heretics, " while appeals for environmental "stewardship" echo Biblical texts. Religious groups play an important role in defining environmental policy issues, and both supporters and critics of specific environmental policy views have labeled particular sets of beliefs about the environment a "religion." In this Article we engage in a thought experiment, arguing that there are valuable lessons to be learned from treating …

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 …

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 …

Symbol Or Substance: An Empirical Assessment Of State Responses To Kelo, Andrew P. Morriss

Faculty Scholarship

The Kelo decision provoked considerable legislative activity as 46 states adopted legislation on eminent domain in its aftermath. Only about half adopted restrictions that were more than symbolic, however. This paper examines those responses using a logistic regression analysis and finds that all else equal: (1) states where legislatures were more constrained by tax and expenditure limits were less likely to adopt substantive restrictions; (2) a larger number of Republicans in the state legislature made a state more likely to adopt a substantive restriction; (3) overall Republican strength (as measured by gubinatorial [sic] elections) made states less likely …

Kairos And Safe Havens: The Timing And Calamity Of Unwanted Birth, Susan Ayres

Faculty Scholarship

It is impossible to know the number of infants killed or illegally abandoned at birth. No official reporting requirements exist, but conservative estimates claim that in the United States, 150-300 infants are killed within twenty-four hours of life and that over 100 infants are illegally abandoned. Beginning in 1999, in an effort to stem the problem of neonaticide and illegal abandonment, states began enacting laws to legalize abandonment. By 2008, all fifty states had enacted safe haven laws, which allow parents to anonymously abandon newborns by delivering them to designated providers, such as hospitals. This article provides a practical and …