Digital Commons Network^™

Taking Stock Ten Years In: Coin, Casualties, And Costs In The Long War — An Introduction, Robert D. Sloane

Faculty Scholarship

On October 7, 2001, almost exactly a decade prior to the date of the conference from which the following symposium contributions derive, former President George W. Bush ordered airstrikes on Kabul and Kandahar,' inaugurating hostilities in what has become the longest war in U.S. history. By early December 2001, the Taliban had lost effective control over any significant part of Afghanistan's territory and with it any plausible claim to represent Afghanistan's government under traditional principles of international law.2 President Bush formally declared victory on June 15, 2004, during a speech in which he praised Afghanistan's interim leader and now President …

Direct-To-Consumer Genetic Testing: Learning From The Past And Looking Toward The Future, Stephanie Bair

Faculty Scholarship

A decade after the complete sequencing of the human genome, we have seen a proliferation of genetic testing services marketed directly to the consumer and purporting to use genetic information to generate individualized health information. These tests have been subject to only minimal regulation, despite the fact that scientists and policymakers have serious concerns about both the clinical effectiveness of the tests and the safety of releasing certain types of health information to the public without the supervision of a health care professional. Proponents of minimal regulation argue that the tests allow for patient autonomy and privacy of genetic information, …

Intended Parents And The Problem Of Perspective, Dara Purvis

Faculty Scholarship

When asked to identify the legal parents of a child, traditional family law principles look backwards in time, primarily to biology and to marriage. People using assisted reproductive technologies such as surrogacy, however, seek to manifest their intent to become parents with a forward-looking temporal perspective, before a child is conceived and born. Of the existing doctrines used to identify parentage – marital presumption, biology, functional theories, and intent – only intent facilitates a forward-looking perspective. Intent through time, however, is not treated consistently. A woman, for example, may donate an egg, and may place a baby up for adoption, …

Thirteenth Amendment Optimism, Jamal Greene

Faculty Scholarship

Thirteenth Amendment optimism is the view that the Thirteenth Amendment may be used to reach doctrinal outcomes neither specifically intended by the Amendment's drafters nor obvious to contemporary audiences. In prominent legal scholarship, Thirteenth Amendment optimism has supported constitutional rights to abortion and health care and constitutional powers to prohibit hate speech and domestic violence, among other things. This Essay examines the practical utility of Thirteenth Amendment optimism in the face of dim prospects for adaption by courts. The Essay argues that Thirteenth Amendment optimism is most valuable, both historically and today, as a means of motivating the political process …

Networks, Dialogue Or One-Way Traffic? An Empirical Analysis Of Cross-Citations Between Ten European Supreme Courts, Martin Gelter, Mathias Siems

Faculty Scholarship

No abstract provided.

The Influence Of Rudolf Von Jhering On Karl Llewellyn, Julie E. Grise, Martin Gelter, Robert Whitman

Faculty Scholarship

No abstract provided.

Neuroscience And The Child Welfare System, Clare Huntington

Faculty Scholarship

A growing body of research by neuroscientists demonstrates that a child’s early life experiences and environment literally shape the child’s brain architecture, with lifelong consequences that are very difficult to reverse. Children’s relationships with their primary caregivers are at the core of this brain development, but when this relationship is severely deficient, the developing child’s brain is deeply affected. This research has not gained sufficient recognition in policy debates about the child welfare system because much of the work is complex and hard for non-neuroscientists to decipher with nuance. This essay brings a family law scholar’s perspective to understanding the …

Is Europe Headed Down The Primrose Path With Mandatory Mediation, Jacqueline Nolan-Haley

Faculty Scholarship

No abstract provided.

Marriage Fraud, Kerry Abrams

Faculty Scholarship

This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework …

Making Sense Of Intellectual Property Law, Christopher Buccafusco

Faculty Scholarship

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested …

Towards A Communicative Theory Of International Law, Timothy Meyer

Faculty Scholarship

No abstract provided.

The Challenge Of Flexible Intelligence For Models Of Human Behavior, Mathew D. Mccubbins, Mark Turner, Nicholas Weller

Faculty Scholarship

Game theoretic predictions about equilibrium behavior depend upon assumptions of inflexibility of belief, of accord between belief and choice, and of choice across situations that share a game-theoretic structure. However, researchers rarely possess any knowledge of the actual beliefs of subjects, and rarely compare how a subject behaves in settings that share game-theoretic structure but that differ in other respects. Our within-subject experiments utilize a belief elicitation mechanism, roughly similar to a prediction market, in a laboratory setting to identify subjects’ beliefs about other subjects’ choices and beliefs. These experiments additionally allow us to compare choices in different settings that …

The Mythology Of Game Theory, Mathew D. Mccubbins, Mark Turner, Nick Weller

Faculty Scholarship

Non-cooperative game theory is at its heart a theory of cognition, specifically a theory of how decisions are made. Game theory's leverage is that we can design different payoffs, settings, player arrays, action possibilities, and information structures, and that these differences lead to different strategies, outcomes, and equilibria. It is well-known that, in experimental settings, people do not adopt the predicted strategies, outcomes, and equilibria. The standard response to this mismatch of prediction and observation is to add various psychological axioms to the game-theoretic framework. Regardless of the differing specific proposals and results, game theory uniformly makes certain cognitive assumptions …

The Theory Of Minds Within The Theory Of Games, Mathew D. Mccubbins, Mark Turner, Nicholas Weller

Faculty Scholarship

Classical rationality as accepted by game theory assumes that a human chooser in a given moment has consistent preferences and beliefs and that actions result consistently from those preferences and beliefs, and moreover that these preferences, beliefs, and actions remain the same across equal choice moments. Since, as is widely found in prior experiments, subjects do not follow the predictions of classical rationality, behavioral game theorists have assumed consistent deviations from classical rationality by assigning to subjects certain dispositions— risk preference, cognitive abilities, social norms, etc. All of these theories are fundamentally cognitive theories, making claims about how individual human …

Judges And Wrongful Convictions, Brandon L. Garrett

Faculty Scholarship

No abstract provided.

Marginalizing Risk, Steven L. Schwarcz

Faculty Scholarship

A major focus of finance is reducing risk on investments, a goal commonly achieved by dispersing the risk among numerous investors. Sometimes, however, risk dispersion can cause investors to underestimate and under-protect against risk. Risk can even be so widely dispersed that rational investors individually lack the incentive to monitor it. This Article examines the market failures resulting from risk dispersion and analyzes when government regulation may be necessary or appropriate to limit these market failures. The Article also examines how such regulation should be designed,including the extent to which it should limit risk dispersion in the first instance.

From Multiculturalism To Technique: Feminism, Culture And The Conflict Of Laws Style, Karen Knop, Ralf Michaels, Annelise Riles

Faculty Scholarship

The German chancellor, the French president and the British prime minister have each grabbed world headlines with pronouncements that their state’s policy of multiculturalism has failed. As so often, domestic debates about multiculturalism, as well as foreign policy debates about human rights in non-Western countries, revolve around the treatment of women. Yet there is also a widely noted brain drain from feminism. Feminists are no longer even certain how to frame, let alone resolve, the issues raised by veiling, polygamy and other cultural practices oppressive to women by Western standards. Feminism has become perplexed by the very concept of “culture.” …

In-House Counsel’S Role In The Structuring Of Mortgage-Backed Securities, Steven L. Schwarcz, Shaun Barnes, Kathleen G. Cully

Faculty Scholarship

The authors introduce the financial crisis and the role played by mortgage-backed securities. Then describe the controversy at issue: whether, in order to own and enforce the mortgage loans backing those securities, a special-purpose vehicle “purchasing” mortgage loans must take physical delivery of the notes and security instruments in the precise manner specified by the sale agreement. Focusing on this controversy, the authors analyze (i) the extent, if any, that the controversy has merit; (ii) whether in-house counsel should have anticipated the controversy; and (iii) what, if anything, in-house counsel could have done to avert or, after it arose, to …

The Roberta Mitchell Lecture: Structuring Responsibility In Securitization Transactions, Steven L. Schwarcz

Faculty Scholarship

In this Lecture, Professor Schwarcz examines how complex securitization transactions may have created a “protection gap,” the conundrum that transaction parties may be unable to purchase or might not want to pay the price for full protection. As a result, they sometimes choose or are forced to assume the good faith of the other parties to the transaction and the consistency and completeness of protections provided in the transaction documents.

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …

Law Of War Manuals And Warfighting: A Perspective, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

A Neurological Foundation For Freedom, Nita A. Farahany

Faculty Scholarship

No abstract provided.

Incriminating Thoughts, Nita A. Farahany

Faculty Scholarship

The neuroscience revolution poses profound challenges to current selfincrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to …

Brief Of Amici Curiae, Neil Vidmar Et Al., Connecticut V. Guilbert, Neil Vidmar, Theresa A. Newman

Faculty Scholarship

No abstract provided.

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

The Cumulative Impact Of Unemployment On Risks Of Acute Myocardial Infarction, Guangya Liu, Matthew E. Dupree, Linda K. George, Eric D. Peterson

Faculty Scholarship

Background: Employment instability is a major source of strain affecting an increasing number of adults in the United States. Little is known about the cumulative effect of multiple job losses and unemployment on the risks for acute myocardial infarction (AMI).

Methods: We investigated the associations between different dimensions of unemployment and the risks for AMI in US adults in a prospective cohort study of adults (N=13 451) aged 51 to 75 years in the Health and Retirement Study with biennial follow-up interviews from 1992 to 2010. Unadjusted rates of age-specific AMI were used to demonstrate observed differences by employment status, …

Pluralism On Appeal, Paul Gugliuzza

Faculty Scholarship

In a thoughtful response to my article, Rethinking Federal Circuit Jurisdiction, Ori Aronson notes that judges “work in context, be it social, cultural, or...institutional,” and that “context matters” to their decisions. Indeed, the primary aim of my article was to spur a conversation about the context in which the judges of the Federal Circuit — who have near plenary control over U.S. patent law — decide cases. That context includes many matters in narrow areas of law that bear little relation to the innovation and economic concerns that should animate patent law. To inject those concerns into the court’s province, …

A Conceptual Learner-Centered E-Learning Framework, Fletcher H. Glancy, Susan K. Isenberg

Faculty Scholarship

e-Learning has increased rapidly in higher education. Most online education attempts to mirror the traditional face-to-face (FtF) classroom with less than favourable results. This paper proposes a conceptual e-learning framework based on andragogy theory, transformative learning theory, and media synchronicity theory. The conceptual e-learning framework supports the self-directed learning. e-learning based on this framework has the potential to out-perform not only current learning management systems such as Blackboard, but also traditional FtF learning for adult education and with different and better outcomes. Results of early testing of the concept showed increased learner’s online activity, innovation, and creativity.

The Benefits Of Opt-In Federalism, Brendan S. Maher

Faculty Scholarship

The Affordable Care Act (“ACA”) is a controversial and historic statute that mandates people make insurance bargains. Unacknowledged is an innovative mechanism ACA uses to select the law that governs those bargains: opt-in federalism.

Opt-in federalism – in which individuals choose between federal and state rules – is a promising theoretical means to make and choose law. This Article explains why, and concludes that the appeal of opt-in federalism is independent of ACA. Whatever the statute’s constitutional fate, future policymakers should consider opt-in federalist approaches to answer fundamental but exceedingly difficult questions of health and retirement law.

The Taxonomy Of Civil Recourse, Andrew S. Gold

Faculty Scholarship

No abstract provided.