Digital Commons Network^™

Bob Dylan's Lawyers, A Dark Day In Luzerne County, And Learning To Take Legal Ethics Seriously, Randy Lee

Faculty Scholarship

No abstract provided.

Mortgaging The Meme: Financing And Managing Disruptive Innovation, Jon M. Garon

Faculty Scholarship

Disruptive innovation can be described as the introduction of a new conceptual idea or meme into an existing system that causes the system to be fundamentally altered. Assembly lines, air conditioning, digital film, and personal computers represent such innovations, all of which led to fundamental paradigm shifts. The convergence of globalization, a networked economy, and digital technologies have made disruptive innovation a threat in almost every industry. Changes to publishing, music, and television distribution – along with the rise of social media – highlight this transformation, but they are not alone; manufacturing, retail, payment systems, transportation and other industries are …

Below Investment Grade And Above The Law: A Past, Present And Future Look At The Accountability Of Credit Rating Agencies, Marilyn Blumberg Cane, Adam Shamir, Tomas Jodar

Faculty Scholarship

This article covers the evolution of the credit rating industry, in particular, the noteworthy shift from purchaser-subscriber to issuer pay model. It then describes the history of SEC CRA regulatory measures, most notably the adoption of SEC Rule 436(g), adopted in 1982, which specifically eliminated liability for the big CRAs (Moody’s, Standard & Poor’s, Fitch’s and Duff and Phelps) as “experts” under Sections 7 and 11 of the Securities Act of 1933. The article then covers the Credit Rating Agency Reform Act of 2006 and the adoption of SEC Rule 17g-5 in an attempt to control conflicts of interest within …

Revolutions And Expatriates: Social Networking, Ubiquitous Media And The Disintermediation Of The State, Jon M. Garon

Faculty Scholarship

This article explores the modern disruption of the state as the territorial control over its citizens and the restructuring of these social structures caused by social media and the unmediated communication of the digital age. Nowhere has this transformation been greater than in the Middle East, a region shaped by arbitrary political expediency and under tremendous popular pressure to redefine itself. But these transformations are not merely the populist uprisings of Tunisia, Egypt, Libya and Syria; they can be seen in economic transformations of Asia and economic harmonizations between Europe and North America. In all political, economic and social spheres, …

Kiss The Book...You're President...: "So Help Me God" And Kissing The Book In The Presidential Oath Of Office, Frederick B. Jonassen

Faculty Scholarship

No abstract provided.

Delaware Dissolves The Glue Of Capitalism: Exonerating From Claims Of Incompetence Those Who Manage Other People's Money, Daniel S. Kleinberger

Faculty Scholarship

Delaware law is the leading source of non-federal law governing U.S. business organizations. Over the past 25 years that law has tilted further and further toward insulating individuals who manage business firms from any liability to the firms’ owners based on claims of misconduct. These developments have occurred both in corporate law and the law of unincorporated organizations.

Although often described as consistent with market principles, these developments actually undercut the proper functioning of a market system. Effective competition among firms does not require a “dog eat dog” mentality within firms. Managerial responsibility is a prerequisite to healthy firms, which …

American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy

Faculty Scholarship

There is a firestorm of political and cultural conflict around environmental issues,including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension,approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and …

Making A Voluntary Greek Debt Exchange Work, Mitu Gulati, Jeromin Zettelmeyer

Faculty Scholarship

Within the next couple of months, the Greek government, is supposed to persuade private creditors holding about EUR 200bn in its bonds to voluntarily exchange their existing bonds for new bonds that pay roughly 50 percent less. This may work with large creditors whose failure to participate in a debt exchange could trigger a Greek default, but may not persuade smaller creditors, who will be told that their claims will continue to be fully serviced if they do not participate in the exchange. This paper proposes an approach to dealing with this free rider problem that exploits the fact that …

Mental Health Care Consumption And Outcomes: Considering Preventative Strategies Across Race And Class, Barak D. Richman, Dan Grossman, Frank A. Sloan, Craig Chepke

Faculty Scholarship

In previous work (Richman 2007), we found that even under conditions of equal insurance coverage and access to mental healthcare providers, whites and high-income individuals consume more outpatient mental health services than nonwhites and low-income individuals. We follow-up that study to determine (1) whether nonwhite and low-income individuals obtain medical substitutes to mental healthcare, and (2) whether disparate consumption leads to disparate health outcomes. We find that nonwhites and low-income individuals are more likely than their white and high-income counterparts to obtain mental health care from general practitioners over mental healthcare providers, and nearly twice as likely not to follow …

Valuing Health Care: Improving Productivity And Quality, Barak D. Richman, Arti K. Rai

Faculty Scholarship

No abstract provided.

Property As Modularity, Thomas W. Merrill

Faculty Scholarship

Professor Henry Smith’s Property as the Law of Things urges a return to an older conception of property as rights with respect to things – and justifies this in terms of a very new conception of property based on modularity. Throughout, he highlights the importance of information costs in determining the structure of property law, starting with a baseline of in rem rights of exclusion supplemented by governance rules to deal with exceptional situations. I fully agree with his emphasis on the centrality of things in the law of property, the in rem nature of property, the primacy of exclusion …

Teaching For Lifelong Learning: Improving The Metacognitive Skills Of Law Students Through More Effective Formative Assessment Techniques, Anthony Niedwiecki

Faculty Scholarship

With the recent criticisms that law schools do not do enough to prepare students for the practice of law, law schools are beginning to develop ways to better prepare their students. These criticisms have focused on the lack of teaching students to be lifelong learners. In fact, a recent report by the Carnegie Foundation stated that law schools need to teach students to be more "metacognitive about their learning." Generally, metacognition refers to having both an awareness of and control over one’s learning and thinking. Put simply, it is thinking about thinking.

The way law schools currently assess their students …

Obama Reelection Clears Path For Numerous New Epa Regulations, Michael B. Gerrard

Faculty Scholarship

The reelection of President Barack Obama means that a long list of new regulations will be issued by the Environmental Protection Agency (EPA) in the coming months. Some had been held up because of their political sensitivity, and others were still in process, but many will soon be ready for further action.

The election results also mean that major new environmental legislation is very unlikely for the next two years. The House of Representatives is still firmly controlled by the Republicans, and their leadership has not signaled any major change from the last Congress’ stance of opposition to many EPA …

The Case For Original Intent, Jamal Greene

Faculty Scholarship

This Article seeks to situate the constitutional culture's heavy reliance on the Convention debates within an academic environment that is generally hostile to original intent arguments. The Article argues that intentionalist-friendly sources like the Convention records and The Federalist remain important not because they supply evidence of original meaning but rather because the practice of advancing historical arguments is best understood as a rhetorical exercise that derives persuasive authority from the heroic character of the Founding generation. This exercise fits within a long tradition of originalist argument and need not be abandoned in the quest for a more perfect originalism.

Deductions For Drug Ads? The Constitution Does Not Require Congress To Subsidize Direct-To-Consumer Prescription Drug Advertisements, Shoshana Speiser, Kevin Outterson

Faculty Scholarship

The First Amendment protects lawful, non-misleading advertising as commercial speech, which constrains Congressional attempts to regulate direct-to-consumer advertising (DTCA) of prescription drugs. But the Constitution does not require the federal government to subsidize advertising through the Tax Code. Congress could revoke the legislative gift of tax deductions for DTCA without running afoul of regulating speech. While DTCA proponents maintain that DTCA increases disease awareness and leads to more doctor-patient conversations, Congress could find that these purported benefits are outweighed by other negative consequences, including excessive prescribing.

China In Africa: What The Policy Of Nonintervention Adds To The Western Development Dilemma, Madison Condon

Faculty Scholarship

Chinese investment activity in Africa has skyrocketed in recent years, outpacing every other nation except South Africa. China finances more infrastructure projects in Africa than the World Bank and provides billions of dollars in low-interest loans to the continent’s emerging economies. These loans and investments are typically made in exchange for securing access to natural resources. Based on its principles of nonintervention and respect for sovereignty, China gives this money with little or no strings attached. The West, which typically conditions its loans on initiatives like democracy promotion and corruption reduction, has labeled China a “rogue donor,” whose actions will …

Do Female “Firsts” Still Matter?: Why They Do For Women Of Color, Amber Shanahan-Fricke, Angela Onwuachi-Willig

Faculty Scholarship

This Article argues that diversifying the federal judiciary with more women and men of color, but particularly with more women of color, is essential to moving forward and strengthening this country’s democracy. Specifically, this Article responds to arguments by prominent feminists that having female “firsts” on the bench is not as critical as having the “right” women on the bench—“right” meaning those women who are invested in and supportive of what are traditionally viewed as women’s issues. In so responding, this Article acknowledges the appeal of such arguments regarding judicial service from the “right” women, but contends that, while achieving …

The Supreme Court's Renewed Focus On Inefficiently Structured Joint Ventures, Stephen F. Ross

Faculty Scholarship

Antitrust courts and commentators have long appreciated that joint ventures among rival firms have the potential to provide benefits to consumers and the economy through synergies and economies of scale, but also raise the potential of lessening competition among the venture principals. The case law and academic literature have often ignored, however, the potential harm that befalls consumers when joint ventures with market power are structured in a manner that gives the principals the ability to direct policy and a strategy in a manner that advances their parochial self-interest, rather than the interests of the venture-as-a-whole. The Supreme Court's recent …

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Faculty Scholarship

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …

The Return Reducing Ripple Effects Of The Carried Interest Tax Proposals, Heather M. Field

Faculty Scholarship

No abstract provided.

Alive But Irrelevant: The Prior Appropriation Doctrine In Today’S Western Water Law, Reed D. Benson

Faculty Scholarship

The Prior Appropriation Doctrine has long been the foundation of laws governing water allocation and use in the American West, but it has been under pressure from forces both external and internal to the western states. Twenty years ago, Prior Appropriation was pronounced dead in a provocative essay by Charles Wilkinson. Other scholars argued that it was still alive, but it now appears to have lost its force as the controlling doctrine of western water law. This Article analyzes three recent cases upholding state laws that undermine a fundamental Prior Appropriation principle, then considers the water policy implications of the …

Public Funding Programs For Environmental Water Acquisitions: Origins, Purposes, And Revenue Sources, Reed D. Benson

Faculty Scholarship

No abstract provided.

Environmental Law, Civil Rights And Sustainability: Three Frameworks For Environmental Justice, Eileen Gauna

Faculty Scholarship

This article focuses on the domestic context, where the issues have more concretely crystallized around viewing environmental justice issues from a civil rights framework, and also from a competing environmental law framework. The article will begin with a discussion of the limitations of each of these frameworks, and will then explore the current "disconnect" between these two models, ending with an exploration of how the principles of sustainability fit into the picture. As to the latter point, sustainability is a double-edged sword. It might be used to maintain the inequity of the status quo; and, particularly in light of climate …

Performance Isn't Everything: The Importance Of Conceptual Competence In Outcome Assessment Of Experiential Learning, Serge A. Martinez, Stefan H. Krieger

Faculty Scholarship

This article scrutinizes—and ultimately rejects—the recommendations of the Carnegie Report for outcome assessments in experiential legal education. The Carnegie Report argues that practical education should focus on teaching students to mimic the actions of expert lawyers by encouraging students to follow expert protocols, procedures, rules, and checklists that can enable them to deal effectively with lawyering situations. To the contrary, however, an extensive body of cognitive science and neuroscienceresearch on the development of expertise questions the theoretical underpinnings of the Carnegie Report and suggests that educators should focus not on what experts are doing but on what they are thinking …

Jumpstarting The Stalled Gender Revolution: Justice Ginsburg And Reconstructive Feminism, Joan C. Williams

Faculty Scholarship

No abstract provided.

Critical Habitat And The Challenge Of Regulating Small Harms, Dave Owen

Faculty Scholarship

No abstract provided.

The Mono Lake Case, The Public Trust Doctrine, And The Administrative State, Dave Owen

Faculty Scholarship

No abstract provided.

Moore Is Less: Why The Development Of Induced Pluripotent Stem Cells Might Radically Upend Property Law Concerning Human Tissues As We Know It, Osagie K. Obasogie, Helen Theung

Faculty Scholarship

No abstract provided.

The Evil Technology Hypothesis: A Deep Ecological Reading Of International Law, Ugo Mattei, Luigi Russi

Faculty Scholarship

No abstract provided.

Do You Have A Conscience?, Jeremy Bendik-Keymer

Faculty Scholarship

“Do you have a conscience?” There was a time when this would have been a question that was immediately intelligible to people, like asking whether a person holding a ball can throw it. For much of the history of philosophy—that ancient Greek invention—the name for what allows one to stay in touch with moral principles in the midst of particular decisions was “conscience” (Langston 2001). To ask whether I have a conscience was tantamount to asking whether I can keep my decisions moral, whether I was capable of being a mature human being. Since morality is the domain of duties …