Digital Commons Network^™

Teaching National Security Law, Scott L. Silliman

Faculty Scholarship

No abstract provided.

Creating Markets For Ecosystem Services: Notes From The Field, James Salzman

Faculty Scholarship

Created by the interactions of living organisms with their environment, ecosystem services support our society in many critical ways, from providing clean air and water, decomposing waste, and pollinating flowers, to regulating climate, and pacifying floodwaters. Interest in ecosystem service markets has recently exploded, with a cover article in The Economist just a few months ago. Scholarship in the field, though, is still quite young. Despite their immense practical value, with rare exception, ecosystem services are neither prized by markets nor explicitly protected by the law. In recent years, an increasing number of initiatives around the world have sought to …

A Prescription For Perilous Times (Reviewing Geoffrey R. Stone, Perilous Times: Free Speech In War Time From The Sedition Act Of 1798 To The War On Terrorism (2004)), Neil S. Siegel

Faculty Scholarship

In this Essay, I argue that Professor Stone has written an important work of constitutional history, not only because of what he has to say, but also because of the time in which he says it. The tragedy of September 11, 2001 generated reactions by every branch of the federal government, as well as by the general public and a host of public-regarding institutions in American society. Each of those reactions has implicated the balance between liberty and security that historically has been tested in this country during times of crisis. 'Perilous Times' lucidly conveys the nation's accumulated lessons of …

Precautionary Regulation In Europe And The United States: A Quantitative Comparison, Jonathan B. Wiener, James K. Hammitt, Brendon Swedlow, Denise Kall, Zheng Zhou

Faculty Scholarship

Much attention has been addressed to the question of whether Europe or the United States adopts a more precautionary stance to the regulation of potential environmental, health, and safety risks. Some commentators suggest that Europe is more risk-averse and precautionary, whereas the US is seen as more risk-taking and optimistic about the prospects for new technology. Others suggest that the US is more precautionary because its regulatory process is more legalistic and adversarial, while Europe is more lax and corporatist in its regulations. The flip-flop hypothesis claims that the US was more precautionary than Europe in the 1970s and early …

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

Synthesis And Mrs Nlo Characterization Of New Triarylmethyl Cations, Guilin Mao, Greg A. Wiggers, Rolfe G. Petschek, Kenneth D. Singer

Faculty Scholarship

We report on the synthesis of new quadripolar triarylmethyl cations related to Crystal Violet and the characterization of their NLO properties by a new hyper Rayleigh scattering (HRS) technique. We have prepared a range of triarylmethyl cations that incorporate one, two or three naphthyl moieties. These structural modifications have a direct influence on the NLO properties that have been determined by the Timed-Correlated Single Photon Counting 45° HRS (TCSP-45-HRS) and also influence absorption properties as seen in the UV-Visible spectra.

Religious Experience In The Age Of Digital Reproduction, Frederick Mark Gedicks, Roger Hendrix

Faculty Scholarship

A religious experience is an extraordinary event that occurs against the backdrop of ordinary life, infusing that life with a meaning it would not otherwise have. Mass culture is now replete with portrayals of such experiences. Spiritually-themed television shows, movies, books, music, and fashion are now common and even popular. This is not necessarily good news for religion and religious experience. What mass culture portrays as sacred may be merely an imitation, resembling more the ubiquitous feel-good self-affirmance of popular psychology than authentic communion with the divine.

On the other hand, the appropriation and portrayal of religious experience by mass …

Four Questions On Critical Race Praxis: Lessons From Two Young Lives In Indian Country, Christine Zuni Cruz

Faculty Scholarship

The Critical Race Lawyering Symposium in New York City brings me from Albuquerque, New Mexico. As I travel the day before the symposium, I reflect on the amount of time it will take. I leave Albuquerque at 8:23 a.m. and I am scheduled to arrive in New York City at 4:05 p.m., via Chicago. Given the two-hour time difference between the East Coast and the Rocky Mountain regions, I begin my day boarding the plane as the sun is rising in the morning sky and end it at my destination where the sun is setting. Even in this day and …

The Gift Of Enron: An Opportunity To Talk About Capitalism, Equality And The Promise Of A North American Charter Of Fundamental Rights, Laura Spitz

Faculty Scholarship

In this Article, Enron is positioned as a promising opening in the debate about economic globalization and the regulation of advanced capitalism in North America. As a contribution to that debate, the author suggests that there are two aspects of advanced capitalism which call for supranational response and regulation. First, advanced capitalism is increasingly transnational (as distinct from international and intranational). This brings unique regulatory challenges to the fore. Second the regulation of advanced capitalism can be usefully understood as a substantive equality issue (as that concept in understood in Canadian law). In the past, this aspect of capitalism-thef act …

A Theory In Search Of A Court, And Itself: Judicial Minimalism At The Supreme Court Bar, Neil S. Siegel

Faculty Scholarship

No abstract provided.

Sentencing: Learning From, And Worrying About, The States, Gerard E. Lynch

Faculty Scholarship

The Columbia Law Review's Symposium on sentencing, which took place less than two weeks after the Supreme Court's dramatic semi-invalidation of the federal sentencing guidelines, was certainly timely. Nevertheless, it is critical to understanding the Symposium's purposes to realize that it was not planned in response to United States v. Booker, or even to Blakely v. Washington. The Symposium was conceived before either case was decided, as a very conscious attempt to steer the discussion of sentencing away from Congress and the federal guidelines and toward states' experiences. The vast majority of criminals are sentenced in state …

In The Shadow Of Delaware - The Rise Of Hostile Takeovers In Japan, Curtis J. Milhaupt

Faculty Scholarship

Despite longstanding predictions to the contrary, hostile takeovers have arrived in Japan. This Essay explains why and explores the implications of this phenomenon, not only for Japanese corporate governance, but also for our understanding of corporate law development around the world today. Delaware law figures prominently in the recent Japanese events. A highprofile battle for corporate control has just generated a judicial standard for takeover defenses that might be called a Unocal rule with Japanese characteristics. Meanwhile, ministy-endorsed takeover guidelines have been formulated that are heavily influenced by the familiar "threat" and "proportionality" tests under Delaware law, along with many …

Corporate Misbehavior By Elite Decision-Makers Symposium - Perspectives From Law And Social Psychology: Introduction, James A. Fanto

Faculty Scholarship

No abstract provided.

Collapsing Spheres: Joint Terrorism Task Forces, Federalism, And The War On Terror, Susan Herman

Faculty Scholarship

No abstract provided.

How Much Does Money Matter In A Direct Democracy?, John M. De Figueiredo

Faculty Scholarship

No abstract provided.

The Many Faces Of Overcriminalization: From Morals And Mattress Tags To Overfederalization, Sara Sun Beale

Faculty Scholarship

No abstract provided.

The Promise Of Internet Intermediary Liability, Ronald J. Mann, Seth R. Belzley

Faculty Scholarship

The Internet has transformed the economics of communication, creating a spirited debate about the proper role of federal, state, and international governments in regulating conduct related to the Internet. Many argue that Internet communications should be entirely self-regulated because such communications cannot or should not be the subject of government regulation. The advocates of that approach would prefer a no-regulation zone around Internet communications, based largely on the unexamined view that Internet activity is fundamentally different in a way that justifies broad regulatory exemption. At the same time, some kinds of activity that the Internet facilitates undisputedly violate widely shared …

Justice And Fairness In The Protection Of Crime Victims, George P. Fletcher

Faculty Scholarship

In this Article, Professor Fletcher discusses the crucial distinction between justice and fairness-as well as its effect on the shifting "boundaries of victimhood "-from a comparative viewpoint by examining the approaches that various human rights instruments take to the problem of victims' rights. While the European Convention on Human Rights represents an evolving "middle ground" in the treatment of victims' rights (such recent cases as X. & Y. v. The Netherlands, A. v. United Kingdom, and M.C. v. Bulgaria are examined), only the Rome Statute of the International Criminal Court gives real priority to victims of crime with …

Copyright Norms And The Problem Of Private Censorship, Wendy J. Gordon

Faculty Scholarship

Copyright policy must resolve intelligently the tension between upstream and downstream creators, between incentives to create and incentives to use. Downstream at1thors who copy and transform others' images or words as an input to new creativity have. obvious free speech concerns. So do simple copiers in those many instances where even non-creative copying is essential for expressing one's ideas or allegiances.

Part of the tension is economic. Because virtually every author :needs access to predecessor texts, a legislature that increases copyright protection for ·today's creators simultaneously increases tomorrow's costs of creation ¹ or use. But the issue goes far beyond …

Family Privacy And Death: Antigone, War, And Medical Research, George J. Annas

Faculty Scholarship

Death ends the doctor–patient relationship, and legally the patient's right of privacy dies with the patient. Other privacy interests survive, the most central of which are those of the patient's family to bury the body and to prevent the disclosure of some personal information, such as medical information, about the deceased relative. Just what privacy interests encompass and when they can be overridden by other interests — such as freedom of speech or the claims of public policy or medical research — are evolving.1 Family privacy concerning a family member who has died is at the forefront of a …

Even Non-Extremists Get The Blues: The Rhetoric Of Copyright, Wendy J. Gordon, Lois Wasoff

Faculty Scholarship

The participants in this dialogue are Wendy Gordon and Lois Wasoff. Each is an intellectual property expert who has immersed herself in copyright law and policy for over twenty years. Neither sits at an extreme end of the policy spectrum, yet the two disagree over a wide range of issues. The editors of this volume thought their discussions could prove useful to others struggling with copyright dilemmas. Accordingly, Gordon and Wasoff sat down with a tape recorder for us. In edited form, their dialogue follows here.

Same Sex Marriage And Its Implications For Employee Benefits: Proceedings Of The 2005 Meeting Of The Association Of American Law Schools Sections On Employee Benefits, And Sexual Orientation And Gender Identity Issues, Maria O'Brien, Constance Hiatt, Shannon Minter, Teresa S. Collett

Faculty Scholarship

Professor Maria O'Brien Hylton*: Welcome to this session on "Same Sex Marriage and its Implications for Employee Benefits." I'm Maria Hylton and I will introduce our speakers and moderate the program.

Our first speaker is Constance Hiatt, who is a partner with the Hanson Bridgett law firm here in San Francisco. She represents mostly large employers and large employee benefit plans, including the State of California's 401(k) and 457 plans as well as the University of California's benefits office. So, she has extensive experience in the employee benefits area and she came to us, to me really, through several …

Expanding Our Classroom Walls: Enhancing Teaching And Learning Through Technology, Kristin B. Gerdy, Jane H. Wise, Alison Craig

Faculty Scholarship

The authors examine the reasons why law faculty should implement technology into the legal education experience, provide a brief overview of the learning theory supporting technology, discuss the thoughtful use of technology, and describe four specific projects they have used in their classrooms to aid in student learning.

Suitability Claims And Unrecommended Securities Purchases: An Agency Theory Of Broker-Dealer Liability, Frederick Mark Gedicks

Faculty Scholarship

It is well-established that full-service broker-dealers have an obligation to recommend to their customers only the purchase of securities that are "suitable" to the customer's investment objectives and financial situation. There seems to be widespread agreement, however, that a broker-dealer cannot incur liability on suitability grounds unless it first recommends a securities purchase to a customer.

Accordingly, discount broker-dealers argue they are necessarily immune from liability on suitability claims because they act as "order clerks" who merely execute unsolicited customer orders; online discounters have adopted the same position. Full-service broker-dealers similarly argue that although they owe a suitability obligation for …

Privacy And The Criminal Arrestee Or Suspect: In Search Of A Right, In Need Of A Rule, Sadiq Reza

Faculty Scholarship

Criminal accusation stigmatizes. Merely having been accused of a crime lasts in the public eye, damaging one's reputation and threatening current and future employment, relationships, social status, and more. But vast numbers of criminal cases are dismissed soon after arrest, and countless accusations are unfounded or unprovable. Nevertheless, police officers and prosecutors routinely name criminal accusees to the public upon arrest or suspicion, with no obligation to publicize a defendant's exoneration, or the dismissal of his case, or a decision not to file charges against him at all. Other individuals caught up in the criminal process enjoy protections against the …

Falling On Deaf Ears: Is The "Fail-Safe" Triennial Exemption Provision In The Digital Millennium Copyright Act Effective In Protecting Fair Use?, Woodrow Hartzog

Faculty Scholarship

This Article examines whether the "fail-safe" triennial exemption provision of the DMCA is effective for its intended purpose: to serve as a countermeasure to the DMCA's anti-circumvention provisions by protecting the ability of the public to engage in non-infringing uses of copyrighted works. Ultimately, this Article concludes that there are too many faults in both the structure and the execution of the rule-making provision to meaningfully counteract the adverse effects of the anti-circumvention provisions of the DMCA. Specifically, the rule-making procedure explicitly prohibits exemptions to a class based on the use of the work. This amounts to a rejection of …

“Culture Of Life” Politics At The Bedside: The Case Of Terri Schiavo, George J. Annas

Faculty Scholarship

For the first time in the history of the United States, Congress met in a special emergency session on Sunday, March 20, to pass legislation aimed at the medical care of one patient — Terri Schiavo. President George W. Bush encouraged the legislation and flew back to Washington, D.C., from his vacation in Crawford, Texas, so that he could be on hand to sign it immediately. In a statement issued three days earlier, he said: “The case of Terri Schiavo raises complex issues. . . . Those who live at the mercy of others deserve our special care and concern. …

Turning From Damage Caps To Information Disclosure: An Alternative To Tort Reform, Kathryn Zeiler

Faculty Scholarship

Medical malpractice damage caps are among the most popular instruments of tort reform at the state level. Recently the Bush administration proposed a federal damage cap on non-economic damages to quell the rise of medical malpractice insurance premiums despite the paucity of empirical evidence demonstrating that damage caps actually decrease premiums. This Case Study argues that imposing statutory caps on medical malpractice damages is not an effective method of remedying the medical malpractice insurance crisis: therefore, policymakers should consider alternatives to damage caps. In particular, evidence suggests that implementing mandatory disclosure of the contract terms between managed care organizations and …

I Want To Live: Medicine Betrayed By Ideology In The Political Debate Over Terri Schaivo, George J. Annas

Faculty Scholarship

The public's view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians-one carrying a saw, another an I.V. pole-with the caption, "Coming Soon to a Sickbed Near You . .. [tihe United States Congress." The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were …

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …