Digital Commons Network^™

The Public Domain: Enclosing The Commons Of The Mind, James Boyle

Faculty Scholarship

Our music, our culture, our science and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In his award-winning book, The Public Domain: Enclosing the Commons of the Mind (Yale University Press) James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, …

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean O'Connor

Faculty Scholarship

No abstract provided.

In Supreme Judgment Of The Poor: The Role Of The United States Supreme Court In Welfare Law And Policy, Bridgette Baldwin

Faculty Scholarship

This Article examines the major Supreme Court rulings since the late 1960s that have directly addressed Aid to Families with Dependent Children (AFDC), commonly known as welfare. The Supreme Court decided cases, such as King v. Smith, Shapiro v. Thompson, and Goldberg v. Kelly, in favor of welfare recipients. The outcomes of these cases suggest that while the Supreme Court viewed welfare policy as a negotiation between federal and state governments, it reserved a special role for the judicial branch in protecting equal rights. The judicial understanding of the relationship between federal and state government power within welfare policy ranged …

"Think Glocal, Act Glocal": The Praxis Of Social Justice Lawyering In The Global Era, Lauren Carasik

Faculty Scholarship

Millions of people in the world struggle to survive in extreme economic deprivation, and deteriorating conditions have highlighted the failure of international development policies to "lift all boats." The complex and globalized context of poverty compels social justice lawyers to innovate transnational advocacy strategies, expanding human rights norms as part of those efforts. This Article suggests a cross-border, collaborative advocacy model for clinical education. The model is premised on theories of global interconnectedness that integrate progressive lawyering, social change theory and anti-poverty work in the global era, thereby contributing to the discourse about and praxis of combating international economic injustice. …

Asterisk Revisited: Debating A Right Of Reply On Search Results, Frank Pasquale

Faculty Scholarship

No abstract provided.

Partnership Tax Allocations And The Internalization Of Tax-Item Transactions, Bradley T. Borden

Faculty Scholarship

No abstract provided.

In Re Annandale And The Disconnections Between Minnesota And Federal Agency Deference Doctrine, Mehmet K. Konar-Steenberg

Faculty Scholarship

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments …

The Next Generation Of Mobile Source Regulation, Andrew P. Morriss

Faculty Scholarship

In the U.S. we have reached the point where further reductions in per-mile emissions from individual mobile sources of criteria pollutants will be both tiny and expensive. In addition, as population grows, total mobile source emissions in developed countries are likely to increase as our ability to engineer reductions on a vehicle-by-vehicle basis reaches its technological limit and is overwhelmed by the rising numbers of miles driven. Mobile source emissions world-wide will climb as greater wealth in the developing world fuels the demand for mobility. This article examines the demand for transportation and the regulation of transportation fuels and then …

Bootleggers, Baptists, And Televangelists, Andrew P. Morriss

Faculty Scholarship

The history of tobacco regulation includes quite a few episodes of bootleggers-and-Baptists coalitions in the 1960s and 1970s. While there were sporadic efforts to suppress tobacco use almost from the time it appeared in Europe-- James I of England published A Counter-Blaste to Tobacco in 1604, denouncing smoking as "a custom loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lung, and the black stinking fume thereof, nearest resembling the horribly Stygian smoke of the pit that is bottomless"-- serious regulatory efforts appeared in the United States only in the 1960s. Prior to then, …

Bootleggers, Baptists &(And) Televangelists: Regulating Tobacco By Litigation, Bruce Yandle, Joseph A. Rotondi, Andrew P. Morriss, Andrew Dorchak

Faculty Scholarship

The bootleggers and Baptists public choice theory of regulation explains how durable regulatory bargains can arise from the tacit collaboration of a public-interest-minded interest group (the Baptists) with an economic interest (the bootleggers). Using the history of tobacco regulation, this Article extends the bootleggers and Baptists theory of regulation to incorporate the role of policy entrepreneurs like the state attorneys general and private trial lawyers who joined forces to regulate tobacco by litigation. We denominate these actors televangelists and demonstrate that they play a pernicious role in regulation.

The Article begins by showing how tobacco regulation through the 1980s fit …

Shortchanging The Joint Fight? An Airman’S Assessment Of Fm 3-24 And The Case For Developing Truly Joint Coin Doctrine, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Radiative Forcing: Climate Policy To Break The Logjam In Environmental Law, Jonathan B. Wiener

Faculty Scholarship

This article recommends the key design elements of US climate law. Much past environmental law has suffered from four design problems: fragmentation, insensitivity to tradeoffs, rigid prescriptive commands, and mismatched scale. These are problems with the design of regulatory systems, not a rejection of the overall objective of environmental law to protect ecosystems and human health. These four design defects raised the costs, reduced the benefits, and increased the countervailing risks of many past environmental laws. The principal environmental laws successfully enacted since the 1990s, such as the acid rain trading program in the 1990 Clean Air Act (CAA) Amendments …

Claiming Innocence, Brandon L. Garrett

Faculty Scholarship

The advent of DNA testing technology almost two decades ago transformed how courts review claims of innocence. Our system discarded many of the rules of finality that traditionally barred most postconviction claims of innocence. In recent years almost every state enacted post-conviction DNA statutes, which I survey here. Yet our criminal system still remains at a crossroads and meritorious claims of innocence continue to face great obstacles. State statutes typically exclude entire categories of convicts who might convincingly prove their innocence and state courts often deny access to DNA testing. Meanwhile, the Supreme Court has yet to adopt a constitutional …

Corporate Confessions, Brandon L. Garrett

Faculty Scholarship

In corporate crime investigations, when prosecutors pursue charges against both employees and corporations, confessions raise several novel questions without clear answers in constitutional criminal procedure. First, corporations confess. The firm, a target of a criminal investigation, may itself admit to crimes by employees as part of a settlement agreement with prosecutors. While useful to study in their impact and form, as a constitutional matter such confessions can not be coerced, the Supreme Court has adopted a "collective entity rule" that corporate persons may not invoke Fifth Amendment privilege. Second,before itself confessing, the firm may encourage employees to provide statements to …

A Sanctuary In The Jungle: Terry Lynn Nichols And His Oklahoma City Bombing Trial, Michael E. Tigar, James E. Coleman Jr.

Faculty Scholarship

No abstract provided.

Irrevocable Proxies, Deborah A. Demott

Faculty Scholarship

This short article explores the circumstances under which the power to vote shares owned by another may be made irrevocable. Irrevocable proxies often serve as integral ingredients within corporate governance arrangements because they serve as mechanisms that enable alliances among shareowners or enhance the holder’s voting power in disproportion to the holder’s residual economic interest in the corporation. The rights and duties of holders of irrevocable proxies are best understood against a background of common-law agency relationships, in which agent and principal always have the power–albeit having contracted otherwise–to terminate their relationship and the agent’s actual authority. Courts in the …

Which States Have The Best (And Worst) High Courts?, Mitu Gulati, Stephen J. Choi, Eric A. Posner

Faculty Scholarship

This paper ranks the high courts of the fifty states, based on their performance during the years 1998-2000, along three dimensions: opinion quality (or influence as measured by out-of-state citations), independence (or non-partisanship), and productivity (opinions written). We also discuss ways of aggregating these measures. California and Delaware had the most influential courts; Georgia and Mississippi had the most productive courts; and Rhode Island and New York had the most independent courts. If equal weight is given to each measure, then the top five states were: California, Arkansas, North Dakota, Montana, and Ohio. We compare our approach and results with …

The New Innovation Frontier? Intellectual Property And The European Court Of Human Rights, Laurence R. Helfer

Faculty Scholarship

This article provides the first comprehensive analysis of the intellectual property case law of the European Court of Human Rights ("ECHR"). Within the last three years, the ECHR has issued a trio of intellectual property rulings interpreting the right of property protected by the European Convention on Human Rights. These decisions, which view intellectual property through the lens of fundamental rights, have important consequences for the region's innovation and creativity policies. The cases are also emblematic of a growing number of controversies in domestic and international law over the intersection of human rights, property rights, and intellectual property. The article …

The Constitutive And Entrenchment Functions Of Constitutions: A Research Agenda, Ernest A. Young

Faculty Scholarship

No abstract provided.

Trading Votes For Reasoning: Covering In Judicial Opinions, Mitu Gulati, Stephen J. Choi

Faculty Scholarship

No abstract provided.

Technology Mediated Dispute Resolution Can Improve The Registry Of Interpreters For The Deaf Ethical Practices System: The Deaf Community Is Well Prepared And Can Lead By Example, David Allen Larson, Paula Gajewski Mickelson

Faculty Scholarship

The work of American Sign Language (ASL)/English interpreters is filled with complex interpersonal, linguistic and cultural challenges. The decisions and ethical dilemmas interpreters face on a daily basis are countless and the potential for disagreement regarding those decisions is great. Technology Mediated Dispute Resolution (TMDR) processes can be particularly helpful when misunderstandings and conflicts arise. Technology Mediated Dispute Resolution is a more inclusive phrase than Online Dispute Resolution (ODR) and includes cellular telephones, radio frequency devices, and satellite communication systems. The Deaf Community has learned to adapt and rely upon a variety of technologies and, because many Deaf individuals already …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

Early Resident Experiences At A New Mixed-Income Development In Chicago, Mark L. Joseph

Faculty Scholarship

Mixed-income development is an increasingly popular poverty deconcentration strategy in the United States but there have been few in-depth studies about the experiences of residents once they move in to the new housing developments. This article explores the early experiences of residents of all income levels who have moved into a new mixed-income development on the south side of Chicago. In-depth interviews have been conducted with 46 residents of the development, including 23 former public housing residents. Interviews were also conducted with a comparison group of 69 public housing residents who did not move to the development. I find that …

Reclaiming Egalitarianism In The Political Theory Of Campaign Finance Reform, Frank Pasquale

Faculty Scholarship

No abstract provided.

Gonzalez V. Carhart And The Hazards Of Muddled Scrutiny, David D. Meyer

Faculty Scholarship

No abstract provided.

Cross Dressing And The Criminal, Bennett Capers

Faculty Scholarship

No abstract provided.

The Role Of Financial Regulation In Private Financial Firms: Risk Management And The Limitations Of The Market Model, James A. Fanto

Faculty Scholarship

No abstract provided.

The Continuing Need For Broker-Dealer Professionalism In Ipos, James A. Fanto

Faculty Scholarship

No abstract provided.

Internet Challenges To Business Innovation, Nancy Kim

Faculty Scholarship

No abstract provided.

Shadow War Scholarship, Indigenous Legal Tradition, And Modern Law In Indian Country, Christine Zuni Cruz

Faculty Scholarship

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Laws electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista's engagement of …