Digital Commons Network^™

In Memoriam: Charles Alan Wright, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Pledged To Public Service, Rory K. Little

Faculty Scholarship

No abstract provided.

Enlarging The Administrative Polity: Administrative Law And The Changing Definition Of Pluralism, 1945-1970, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

U.S. Taxation Of Profits From Internet Software Sales - An Electronic Commerce Case Study, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

Getting Serious About Curtailing Deferral Of Us Tax On Foreign Source Income, Robert J. Peroni, J. Clifton Fleming Jr., Stephen E. Shay

Faculty Scholarship

When a U.S. person conducts business or investment activity abroad through a foreign corporation in a country that imposes only low rates of tax, the so-called deferral privilege allows the U.S. taxpayer to defer substantial amounts of U.S. tax at the cost of only a small foreign levy. Hence, the deferral privilege operates as a tax subsidy of sorts for U.S. persons with operations in low tax foreign countries and provides a major incentive for U.S. persons to shift their business operations and investments to foreign countries that impose little or no tax on the earnings of the foreign corporations.To …

Regulating Through Information: Disclosure Laws And American Health Care, William M. Sage

Faculty Scholarship

Efforts to reform the American health care system through direct government action have failed repeatedly. Nonetheless, an alternative strategy has emerged from these experiences: requiring insurance organizations and health care providers to disclose information to the public. In this Article, Professor Sage assesses the justifications for this type of regulation and its prospects. In particular, he identifies and analyzes four distinct rationales for disclosure. He finds that the most commonly articulated goal of mandatory disclosure laws-improving the efficiency of private purchasing decisions by giving purchasers complete information about price and quality- is the most complicated operationally. The other justifications-which he …

Succession By Estoppel: Hong Kong's Succession To The Iccpr, Peter K. Yu

Faculty Scholarship

This Article argues that Hong Kong succeeded to the ICCPR and the reporting obligations under the Covenant. Part I of the Article traces the development of the ICCPR in Hong Kong before 1997. This development is important because the Joint Declaration provides only for the continuation of the ICCPR as applied to Hong Kong before the transition. Parts II and III examine whether Hong Kong succeeded to the ICCPR. Since the Covenant is ambiguous as to whether the contracting parties are limited to sovereign states, Part II evaluates whether Hong Kong satisfies the membership requirement as stipulated in Article 48(1) …

Protecting Digital Works: Copyright Or Contract, Glynn Lunney

Faculty Scholarship

Since at least 1586, proponents of copyright have pointed to the tremendous ease with which competitors can copy works of authorship as the central justification for copyright protection. Because such works can be easily copied, a competitor could, in the absence of copyright, copy a work, and thereby avoid a large part of the original author's expense. This copying would allow competitors to undercut the original author's price for the work, and would deprive the original author of a fair wage for the labor and creativity she invested in the work. Faced with the threat of such competition, many would-be …

Standards Of Care And Standard Form Contracts: Distinguishing Patient Rights And Consumer Rights In Managed Care, Wendy K. Mariner

Faculty Scholarship

There is hardly a legislature in the country that is not currently debating the issue of patient rights in managed care. Not surprisingly, legislators, as well as reporters covering the debate, have called upon George J. Annas, Edward R. Utley Professor of Health Law and Chair of the Health Law Department at Boston University, for information and advice. Professor Annas has earned the title of "father of patient rights" for his decades of research, writing, and advocacy on behalf of individuals who need health care and deserve justice.

Today, however, one might ask whether patient rights are compatible with managed …

Engaging With The State About Domestic Violence: Continuing Dilemmas And Gender Equality, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

"Quadrupolar" Molecular Nonlinear Optics, V. Ostroverkhov, O. Ostroverkhova, Kenneth D. Singer, L. Sukhomlinova, R. J. Twieg

Faculty Scholarship

Quadrupolar and octupolar invariants may be used as methods to attain noncentrosymmetric materials for application in second order nonlinear optics. The structure-property relationships for the J = 2, or quadrupole rotational invariant, are investigated. Proper citation for the Technical Digest CD-ROM should be written in the following format: Ostrovekhov V., Ostroverkhova O., Petschek R.G., Singer K.D., Sukhomlinova L., Twieg R.J., “`Quadrupolar' molecular nonlinear optics,” in the Conference on Lasers and Electro-Optics (CLEO)/The International Quantum Electronics Conference (IQEC) (Optical Society of America, Washington, DC, 2009), Proceedings, 8-9

Still In The Dark: Disappointing Images Of Women Lawyers In The Movies, Stacy Caplow

Faculty Scholarship

No abstract provided.

Reinventing Environmental Regulation Through The Government Performance And Results Act: Are The States Ready For The Devolution?, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Toward A Global Critical Feminist Vision: Domestic Work And The Nanny Tax Debate, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Gagged But Not Bound: The Ineffectiveness Of The Rules Governing Judicial Campaign Speech, Max J. Minzner

Faculty Scholarship

This article argues that while the text and the history of the gag rule would seem to indicate that implied commitments are prohibited, candidates have a wide variety of methods available to signal voters how they might decide cases if they reach the bench. Courts have failed to recognize the importance of limiting speech other than traditional policy promises due to a failure to adequately consider the most important motivating factor behind the gag rule: providing litigants impartial adjudication. Because courts have not made this the primary consideration in the gag rule cases, speech occurs in campaigns that would otherwise …

Social And Legal Repercussions Of Latinos' Colonized Mentality, Laura M. Padilla

Faculty Scholarship

This essay begins by defining internalized oppression and racism and exposing the harms they cause. It dissects the reasons we engage in internalized racism and explains how once exposed, it will be easier to engage in a conscious effort to eradicate internalized racism. It will then describe how the intersectionality of internalized oppression and racism is expressed in the Latino community. The essay will then re-imagine Latino identity without internalized oppression and racism. It will include ideas on how to overcome internalized oppression and racism generally, both at the corporate and individual levels. The essay concludes that exposing internalized oppression …

Supervisory Liability In Section 1983 Cases, Kit Kinports

Faculty Scholarship

The topic of this presentation is supervisory liability in Section 1983 cases. Assume for present purposes that a plaintiff's constitutional rights have been violated - that some state official has acted in violation of the Constitution. The question to be addressed here is whether that state official's supervisors can be held liable for damages stemming from the constitutional violation.

Bringing Dignity Back To Light: Publicity Rights And The Eclipse Of The Tort Of Appropriation Of Identity, Jonathan Kahn

Faculty Scholarship

Over the years, the privacy-based tort of appropriation has become eclipsed by its flashier cousin, publicity. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. When celebrities are perpetually trading on their names and images in the open market, it may seem quaint, at best, to invoke a dignity as a basis for protecting personal identity. But this is exactly what happens. In case after case, even as they demand restitution for the converted monetary value of their names and images, celebrities also invoke dignitary concerns as a prime motivation …

Five Modern Notions In Search Of An Author: The Ideology Of The Intimate Society In Constitutional Speech Law, Marie Failinger

Faculty Scholarship

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant …

Arbitration And Beyond: Avoiding Pitfalls In Drafting Dispute Resolution Clauses In Employment Contracts, Nancy A. Welsh

Faculty Scholarship

Article Extract:

You've just helped a mid-sized company, Allwell Corp., to reach a settlement in an action brought by a disgruntled former employee. The CEO turns to you and says, "Even though I still believe that we didn't do anything wrong, I'm glad this lawsuit is over. I can't believe how much money and time we've wasted in defending ourselves. Now, how can we keep this from happening in the future? I've been reading about companies putting arbitration clauses in all kinds of contracts. I want to know whether we can require our employees to arbitrate and maybe even require …

Beyond Backyard Environmentalism, Archon Fung, Charles F. Sabel, Bradley C. Karkkainen

Faculty Scholarship

From California habitats to Massachusetts toxics, the United States is in the midst of a fundamental reorientation of its environmental regulation, one that is as improbable as it is unremarked Minimally, the new forms of regulation promise to improve the quality of our environment At a maximum, they suggest a novel form of democracy that combines the virtues oflocalism and decentraliz.ation with the discipline of national coordination.

In substance and spirit, this new approach to regulation grows out of the tradition of backyard environmentalism. For two decades, residents of Woburn, Love Canal, and countless other communities across the country have …

Impeachment As A Technique Of Parliamentary Control Over Foreign Affairs In A Presidential System, Lori Fisler Damrosch

Faculty Scholarship

The central inquiry for this essay is the proper use of the impeachment tool in foreign relations contexts, including war powers. In Part I, the essay begins with a brief review of British impeachment practice (limited to war and foreign policy concerns) known to the Founding generation and reflected in certain fundamental texts of the Founding; this treatment does not betoken any originalist orientation on my part (au contraire) but will set the context for later developments. Part II then turns to the travails of President Andrew Johnson as seen through the eyes of Walter Bagehot, the author of …

Copyright Legislation For The "Digital Millennium", Jane C. Ginsburg

Faculty Scholarship

In October 1998, Congress passed two major copyright bills, the "Digital Millennium Copyright Act" [DMCA], and the "Sonny Bono Copyright Term Extension Act." Moreover, the Senate ratified U.S. accession to the WIPO Copyright and Performances and Phonograms Treaties. The DMCA implements the obligations set forth in articles 11 and 12 of the WIPO Copyright Treaty [WCT] (and articles 18 and 19 of the WIPO Performances and Phonograms Treaty [WPPTI) to protect technological measures against circumvention, and to protect "copyright management information" against removal or alteration that facilitates infringement. The DMCA also includes a chapter on the liability of online service …

Public Funding And Democratic Elections, Richard Briffault

Faculty Scholarship

Our existing federal campaign finance system – the product of Watergate Era legislation and the Supreme Court's 1976 decision in Buckley v. Valeo – is in a state of disarray. The system is no longer capable of accomplishing the goals pursued by Congress and embraced by the Court a quarter-century ago: full disclosure of the sources of campaign money; limitations on large contributions by individuals; prohibitions on the use of corporate and union treasury funds; and voluntary, partial public funding, with spending limits, in the Presidential election. Indeed, the current law may actually have negative consequences, with unindexed contribution limits …

So Much For Savages: Navajo 1, Government 0 In Final Moments Of Play, Eben Moglen

Faculty Scholarship

Dame i gospodo, uvaˇzene kolege, poˇcastvovan sam vaˇsim pozivom da prisustvujem ovom znaˇcajnom skupu. Danas ´cu govoriti o ograniˇcenjina baziranim na ustavnim pravima regulacije naˇse komunikacije, od strane vlade, a u interesu signorsti. Ali na kraju, kao ˇsto ´cete i vi sami shvatiti nemo puno toga da se kaˇze, samo na osnovu toga ˇsto je na´cin komunikacije nov. Pre svega treba se reˇsiti pitanje jezika. After all, every act of linguistic communication occurs in a social context. And the single most important choice that we make when we communicate with one another is the choice of the language in which …

Organized Violence And The Future Of International Law: A Practitioner's View Of The Emerging Issues, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Stepping Into The Same River Twice: Rapidly Changing Facts And The Appellate Process, Stuart M. Benjamin

Faculty Scholarship

No abstract provided.

Technology And The 21st Century Battlefield: Recomplicating Moral Life For The Statesman And The Soldier, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Regulating Risk In A Managed Care Environment: Theory Vs. Practice, The Minnesota Experience, Barbara Colombo, Robert P. Webber

Faculty Scholarship

The purpose of this Article is to illustrate the challenges state regulators face when attempting to translate theory into practice in the context of health care risk regulation. Section I reviews the evolution of the risk-bearing market in health care, recognizing that while risk is an inherent part of everyday life, it takes on a delicate meaning when used in the context of health care. Cost and demographic data will be discussed to provide a compelling rationale for the ongoing forceful movement toward cost containment strategies embodied in managed care strategies, as well as the need to develop the next …

The Contribution Of The Fund Profile To Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.