Digital Commons Network^™

Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint

Faculty Scholarship

This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.

To Attain “The Just Rewards Of So Much Struggle”: Local-Resident Equity Participation In Urban Revitalization, Barbara L. Bezdek

Faculty Scholarship

Annually, Americans pour out their sympathy for people displaced from their communities by natural disasters such as fires, floods, and hurricanes. We respond, knowing the anchor that the concept of “home” supplies to body, soul, and family; we intuit the toll exacted by the loss of familiar walls, private homes and community-shared places. Yet, redevelopment policy and practice in the U.S. today relies upon the massive relocation of poor people and the destruction of poor people’s neighborhoods with only token recognition of the costs and burdens imposed on the displaced. Although the devastation of community, family, and lives is just …

The Elasticity Of Contract, Martha M. Ertman

Faculty Scholarship

No abstract provided.

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

After discussing how search engines operate, and sketching a normative basis for regulation of the rankings they generate, this piece proposes some minor, non-intrusive legal remedies for those who claim that they are harmed by search engine results. Such harms include unwanted (but high-ranking) results relating to them, or exclusion from high-ranking results they claim they are due to appear on. In the first case (deemed inclusion harm), I propose a right not to suppress the results, but merely to add an asterisk to the hyperlink directing web users to them, which would lead to the complainant's own comment on …

Has Congress Stopped Executives From Raiding The Bank? A Critical Analysis Of I.R.C. §409a, Michael Hussey

Faculty Scholarship

No abstract provided.

Federal Criminal Law And Tribal Self-Determination, Kevin Washburn

Faculty Scholarship

Under the rubric of "tribal self-determination," federal policymakers have shifted federal governmental power and control to tribal governments in nearly all areas of Indian policy. Normatively, this shift reflects an enlightened view about the role of Indian tribes in Indian policy. As a practical matter, it has also improved services to Indians on reservations by placing functions with tribal service providers who are more knowledgeable and more accountable than their federal counterparts. Despite broad adoption of self-determination as the dominant federal policy, felony criminal justice on Indian reservations has remained an exclusive federal function, and a highly ineffective enterprise, according …

Gender And Constitutional Design, Paula A. Monopoli

Faculty Scholarship

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical …

Is It More Difficult To File For Bankruptcy? Consumer Provisions Of The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

Has Congress Slimmed Down The Hogs?: A Look At The Bapcpa Approach To Pre-Bankruptcy Planning, Juliet M Moringiello

Faculty Scholarship

No abstract provided.

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Faculty Scholarship

No abstract provided.

Locational Justice: Race, Class, And The Grassroots Protest Of Property Takings, Judith E. Koons

Faculty Scholarship

No abstract provided.

Balancing The Five Hundred Hats: On Being A Legal Educator/Scholar/Activist, Susan Herman

Faculty Scholarship

No abstract provided.

Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein

Faculty Scholarship

No abstract provided.

Secrecy In Context: The Shadowy Life Of Civil Rights Litigation, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

Acquiring And Managing Identity Interests, Jon M. Garon

Faculty Scholarship

Jon M. Garon, Acquiring and Managing Identity Interests, 1 FLA. ENT. L. REV. 39 (2006). Modern media licenses involving Internet sites, video games, multimedia projects, and independent motion pictures follow the publishing industry’s shifts of power and control. Those acquiring rights have significant leverage at the outset but lose that power as completion deadlines near. Marketing leverage depends significantly on the importance of the participants to the marketing strategy, so that if live appearances are critical to marketing, then those individuals have much more influence than for those projects where the persons involved are excluded from marketing. In addition, these …

Strengthening Auditor Independence: Reestablishing Audits As Control And Premium Signaling Mechanisms, Sean O'Connor

Faculty Scholarship

No abstract provided.

Dunlap’S Very Subjective Reading List For Air Force Judge Advocates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Voices From The Stars? America's Generals And Public Debates, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

When Do Interest Groups Use Electronic Rulemaking?, John M. De Figueiredo

Faculty Scholarship

This paper analyzes how electronic rulemaking is affecting the propensity of interest groups to file comments and replies at the Federal Communications Commission. The paper shows that exogenous events and a handful of issues drive filing behavior. Implications of the analysis are discussed.

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Affirming Michigan’S Action: The Michigan Journal Of Race & Law's Response To Dr. Carcieri's Grutter V. Bollinger And Civil Disobedience, Adam Blumenkrantz, Jason Belmont Conn, Amrita Mallik, Michael Murphy

Faculty Scholarship

No abstract provided.

The Blaming Function Of Entity Criminal Liability, Samuel W. Buell

Faculty Scholarship

Application of the doctrine of entity criminal liability, which had only a thin tort-like rationale at inception, now sometimes instantiates a social practice of blaming institutions. Examining that social practice can ameliorate persistent controversy over entity liability's place in the criminal law. An organization's role in its agent's bad act is often evaluated with a moral slant characteristic of judgments of criminality and with inquiry into whether the institution qua institution contributed to the agent's wrong. Legal process, by lending clarity and authority, enhances the communicative impact, in the form of reputational effects, of blaming an institution for a wrong. …

In Praise Of Contextuality - Justice O'Connor And The Establishment Clause, Marie Failinger

Faculty Scholarship

Among Justice Sandra Day O’Connor’s lasting contributions to Supreme Court Jurisprudence has been her attempt to contextualize Religion Clause jurisprudence, to move the Court in the direction of considering the circumstances surrounding government in assessing its constitutionality. Typical of this contributor has been her two decades of work in Establishment Clause law, in particular, ended by Lynch v. Donnelly, in which she introduced the “non-endorsement” test and one of the Ten Commandment cases, McCreary County, Kentucky v. American Civil Liberties Union, in which it was most recently employed. The non-endorsement test has served as one of the two commonly competing …

Credit Where It’S Due: The Law And Norms Of Attribution, Catherine Fisk

Faculty Scholarship

The reputation we develop by receiving credit for the work we do proves to the world the nature of our human capital. If professional reputation were property, it would be the most valuable property that most people own because much human capital is difficult to measure. Although attribution is ubiquitous and important, it is largely unregulated by law. In the absence of law, economic sectors that value attribution have devised non-property regimes founded on social norms to acknowledge and reward employee effort and to attribute responsibility for the success or failure of products and projects. Extant contract-based and norms-based attribution …

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

Academic Freedom Issues For Academic Librarians, Richard A. Danner, Barbara Bintliff

Faculty Scholarship

Professors Danner and Bintliff argue that understanding academic freedom and faculty tenure is important for academic librarians, both to provide better perspective on the concerns of faculty researchers and teachers, and to highlight matters of common concern to librarians and faculty. The authors discuss the basic tenets of academic freedom and tenure, then compare academic freedom with the intellectual freedom concerns of librarians. The article concludes by introducing several current issues of importance to librarians, faculty, and everyone concerned with academic freedom on university campuses.

Martha Graham, Professor Miller And The Work For Hire Doctrine, Nancy Kim

Faculty Scholarship

The current work for hire doctrine, as embodied by 17 U.S.C. Sections 101 and 201 and interpreted by the judiciary, provides a default rule of copyright ownership in favor of employers where a work is created by an employee in the scope of employment. In the absence of a written agreement, a finding that an engagement is a work for hire under the statute automatically results in all ownership being vested in the employer. This result often contradicts business norms and the understanding of one or both of the parties. In this Article, I advocate abolishing the all-or-nothing concept of …

The Orthodoxy Of Format: Some Sketches On Legal Scholarship, William Aceves, James Cooper, Alejandro Gonzalez, Pedro Egana Marshall

Faculty Scholarship

The idea that legal scholarship should include visual elements is not a new one. Early student work blazed a trail some thirty years ago. More recent contributions have been produced by scholars such as Keith Aoki. And, in 2006, the Center for the Study of the Public Domain at Duke University published a comic book addressing copyright law and the fair use doctrine.

Despite these efforts, there does not appear to be any systematic attempt to use graphic art in legal scholarship. This project makes such an appeal. It challenges the conventional format for legal scholarship that has been used …

Rankings, Reductionism, And Responsibility, Frank Pasquale

Faculty Scholarship

No abstract provided.

Technology Mediated Dispute Resolution (Tmdr): A New Paradigm For Adr, David Allen Larson

Faculty Scholarship

Technology is changing the way that children are communicating (particularly elementary and pre-school aged children), and these changes have significant implications for alternative dispute resolution processes and practices. Although ADR practitioners and theorists are not ignoring technology, we have focused almost exclusively on the question of how we can use technology to enhance our existing practices. We are not paying sufficient attention to the fact that young children are communicating differently than we communicate. Insufficient energy is being dedicated to the question of how those differences in communication inevitably influence the way that those children resolve disputes.

The article analyzes …