Digital Commons Network^™

Envisioning The Regulatory State: Technocracy, Democracy, And Institutional Experimentation In The 2010 Financial Reform And Oil Spill Statutes, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Virtues Of Common Ownership, Anna Di Robilant

Faculty Scholarship

Professor Michael Sandel's theory of justice is attractive and inspirational for lawyers interested in social change. Sandel's call to go beyond egalitarian liberalism has real and important implications for legal and institutional engineering. However, Sandel's theory of justice is parsimonious of recommendations for medium level institutional design. It offers little detailed guidance to private lawyers called upon to design background rules for the allocation of scarce resources and necessary burdens. This essay will discuss how Sandel's theory of justice may help orient the work of lawyers and policymakers interested in a question that is central to recent property debates: the …

Brand New Law! The Need To Market Health Care Reform, William M. Sage

Faculty Scholarship

The most serious problem with the Patient Protection and Affordable Care Act (ACA) is not its contents but its packaging. Because it requires significant departures from business as usual in health insurance, health care delivery, and health behavior, the ACA is unlikely to succeed unless Americans feel a shared stake in its success. Unfortunately, the new law has been branded only by its opponents. Neither the Obama administration nor its congressional allies have effectively communicated the law’s key elements to the public. Most surprisingly, the groundbreaking program of near-universal health coverage the ACA creates does not even have a name. …

Vat Fraud As A Policy Stimulus: Is The U.S. Watching?, Richard Thompson Ainsworth

Faculty Scholarship

The EU VAT, like most mature tax regimes, is resistant to change. Fraudsters are testing this resilience today, and this may not be such a bad thing for policy-makers. Significant challenges produce significant reforms proposals. If the US is seriously considering a VAT it would do well to observe this dynamic, avoid the known pitfalls, and work to advance the policy debate before it inherits a problem.

The most serious EU VAT frauds include missing trader intra-community fraud (MTIC), its extra-community companion in tradable services (MTEC), and sales suppression (the fraud of manipulating cash register records with Zappers and phantomware). …

Alternative Strategies For Managing Pharmaceutical And Personal Care Products In Water Resources, Gabriel Eckstein, George William Sherk

Faculty Scholarship

In recent decades, concern has grown over the presence of pharmaceutical and personal care products (PPCPs) in water. This concern stems from the possibility that the presence of PPCPs in water supplies may pose a threat to both human and environmental health. Such threats may be both direct (e.g., exposure to endocrine disrupting compounds) and indirect (e.g., emergence of antibiotic resistant bacteria). The water treatment and wastewater treatment community has been especially concerned over PPCPs because of PPCPs ubiquitous nature and their ability to persist or only partially degrade in water and during wastewater treatment. Studies done over the past …

Living Bacterial Sacrificial Porogens To Engineer Decellularized Porous Scaffolds, Umut A. Gurkan

Faculty Scholarship

Decellularization and cellularization of organs have emerged as disruptive methods in tissue engineering and regenerative medicine. Porous hydrogel scaffolds have widespread applications in tissue engineering, regenerative medicine and drug discovery as viable tissue mimics. However, the existing hydrogel fabrication techniques suffer from limited control over pore interconnectivity, density and size, which leads to inefficient nutrient and oxygen transport to cells embedded in the scaffolds. Here, we demonstrated an innovative approach to develop a new platform for tissue engineered constructs using live bacteria as sacrificial porogens. E.coli were patterned and cultured in an interconnected three-dimensional (3D) hydrogel network. The growing bacteria …

Reflections On Rothko And Writing: A Response To Pierre Schlag's Lecture On The State Of Legal Scholarship, Olympia Duhart

Faculty Scholarship

No abstract provided.

The Federal Home Loan Bank System: A Vehicle For Job Creation And Job Retention, Cornelius K. Hurley, Rebecca Hicks Gallup

Faculty Scholarship

This paper discusses three proposals aimed at reorienting the mission of the System and of the FHLBanks: (1) liberalizing the System's collateral requirements to make the use of small business and other job-creation loans a more viable source of collateral for advances; (2) expanding the membership requirements of the FHLBanks to allow those financial institutions that currently lend to small businesses to become members; and (3) creating a job creation program that uses some of the best practices of the System's Affordable Housing Program. Taken together or separately, these proposals utilize the unique structure of the FHLB System as described …

Contracts As Organizations, D. Gordon Smith, Brayden G. King

Faculty Scholarship

Empirical studies of contracts have become more common over the past decade, but the range of questions addressed by these studies is narrow, inspired primarily by economic theories that focus on the role of contracts in mitigating ex post opportunism. We contend that these economic theories do not adequately explain many commonly observed features of contracts, and we offer four organizational theories to supplement-and in some instances, perhaps, challenge-the dominant economic accounts. The purpose of this Article is threefold: first, to describe how theoretical perspectives on contracting have motivated empirical work on contracts; second, to highlight the dominant role of …

Johnson-Sea-Link Submersibles Tools For Research And Discovery: Summary Of Users, Publications, Documentaries And Testimonials., John K. Reed, Tamara M. Frank

Faculty Scholarship

This document was compiled by various scientists and users of the Johnson-Sea-Link (JSL) submersibles. This document is not inclusive but presents some highlights of major discoveries, publications, and grants made possible by use of Harbor Branch Oceanographic Institution's (HBOI) research submersibles. The Johnson-Sea-Link submersibles were the cornerstone of Harbor Branch when Edwin Link invented and built the submersibles at HBOI (Harbor Branch Foundation) nearly 40 years ago. The Johnson-Sea-Link submersibles have resulted in international acclaim for Harbor Branch from recent research discoveries to Discovery Channel documentaries. The ocean going and deep-water capabilities of HBOI have been a core strength of …

The Need For Faculty Status And Uniform Tenure Requirements For Law Librarians, Carol A. Parker

Faculty Scholarship

Various statuses, tenure tracks, and performance review standards exist in law librarian tenure or continuous appointment policies. Professor Parker argues that law library leaders should insist on faculty status for librarians, develop uniform performance review standards for retention and promotion policies, and support scholarship with workshops and time off from administrative duties to write. Winner of the "AALL LexisNexis Call for Papers Open Division Award" for 2010.

Proposed Exactions, Timothy M. Mulvaney

Faculty Scholarship

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …

Governance And Biosecurity: Strengthening Security And Oversight Of The Nation's Biological Agent Laboratories, Michael Greenberger, Talley Kovacs, Marita Mike

Faculty Scholarship

Since the advent of the Anthrax attacks in the fall of 2001, the United States has been confronted with a serious policy conundrum. On the one hand, we have strengthened programs that encourage the use of our best scientific resources to develop countermeasures to the weaponization of highly dangerous biopathogens. On the other hand, research on those countermeasures requires the use of the very biopathogens we seek to defeat. There have been many mishaps in the handling of those pathogens, which raises the frightening prospect that the research may be as (or more) dangerous than bioterrorist acts themselves. Indeed, the …

Dominant Search Engines: An Essential Cultural & Political Facility, Frank Pasquale

Faculty Scholarship

When American lawyers talk about "essential facilities," they are usually referring to antitrust doctrine that has required certain platforms to provide access on fair and nondiscriminatory terms to all comers. Some have recently characterized Google as an essential facility. Antitrust law may shape the search engine industry in positive ways. However, scholars and activists must move beyond the crabbed vocabulary of competition policy to develop a richer normative critique of search engine dominance.

In this chapter, I sketch a new concept of "essential cultural and political facility," which can help policymakers recognize and address situations where a bottleneck has become …

Restoring Transparency To Automated Authority, Frank Pasquale

Faculty Scholarship

Leading finance, health care, and internet firms shroud key operations in secrecy. Our markets, research, and life online are increasingly mediated by institutions that suffer serious transparency deficits. When a private entity grows important enough, it should be subject to transparency requirements that reflect its centrality. The increasing intertwining of governmental, business, and academic entities should provide some leverage for public-spirited appropriators and policymakers to insist on more general openness.

However well an "invisible hand" coordinates economic activity generally, markets depend on reliable information about the practices of core firms that finance, rank, and rate entities in the rest of …

The Hippocratic Myth: Why Doctors Are Under Pressure To Ration Care, Practice Politics, And Compromise Their Promise To Heal, Frank Pasquale

Faculty Scholarship

Not many policymakers or scholars can write with the authority of Gregg Bloche. Bloche is not only a law professor, but a physician, who knows his way around a hospital. Throughout The Hippocratic Myth, Bloche cements his authority in the mind of the reader by relating stories of his experience as a clinician. In each of these stories, his humane and insightful approach as psychiatrist shines through. I do not say this to imply that Bloche uses his book to brag about his own abilities. Rather, these fluently-written passages strike one as the work of one of those rare practitioners …

Energy Efficiency And Conservation: New Legal Tools And Opportunities, John C. Dernbach, Robert B. Mckinstry, Darin Lowder

Faculty Scholarship

No abstract provided.

Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth

Faculty Scholarship

No abstract provided.

The Work Made For Hire Doctrine Revisited: Startup And Technology Employees And The Use Of Contracts In A Hiring Relationship, Jon M. Garon

Faculty Scholarship

Often, a copyrighted work is not created by one or even two authors but, instead, by a multitude of authors. Corporate brochures include text drafted by copywriters working in conjunction with other staff members, graphic designers, photographers and others. Most business works are created as a work made for hire, which vests the copyright in the employer rather than the employee. In most situations, the employment relationship will depend on an existing common law agency relationship between the parties. If an employer-employee relationship cannot be established, then the work for hire doctrine may still have a role for those works …

Commercial Or Advertising Purpose Under Florida Statutes Section 540.08 Demystified, Michael L. Richmond

Faculty Scholarship

No abstract provided.

Legal Integration In The Andes: Law-Making By The Andean Tribunal Of Justice, Laurence R. Helfer, Karen J. Alter

Faculty Scholarship

The Andean Tribunal of Justice (ATJ) is a copy of the European Court of Justice (ECJ), and the third most active international court. This article reviews our findings based on an original coding of all ATJ preliminary rulings from 1984 to 2007, and over forty interviews in the region. We then compare Andean and European jurisprudence in three key areas: whether the tribunals treat the founding integration treaties as constitutions for their respective communities, whether the ATJ and ECJ have implied powers for community institutions that are not expressly enumerated in the founding treaties, and how the tribunals conceive of …

The Functionalism Of Legal Origins, Ralf Michaels

Faculty Scholarship

This article, written on request for the centennial issue of Ius Commune Europaeum, connects the economic literature on legal origins (La Porta et al) and the World Bank's Doing Business reports with discussions in comparative law about the functional method. It finds that a number of parallels and similarities exist, and that much of the criticism that has been voiced against functionalism should apply, mutates mutants, also to these more recent projects. The attraction that these projects have derive not, it is argued, from their methodological sophistication, but instead from "the strange lure of economics" and from the ostentatious objectivity …

The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome

Faculty Scholarship

Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of behind …

The Durham Statement Two Years Later: Open Access In The Law School Journal Environment, Richard A. Danner, Kelly Leong, Wayne V. Miller

Faculty Scholarship

The Durham Statement on Open Access to Legal Scholarship, drafted by a group of academic law library directors, was promulgated in February 2009. It calls for two things: (1) open access publication of law school–published journals; and (2) an end to print publication of law journals, coupled with a commitment to keeping the electronic versions available in “stable, open, digital formats.” The two years since the Statement was issued have seen increased publication of law journals in openly available electronic formats, but little movement toward all-electronic publication. This article discusses the issues raised by the Durham Statement, the current state …

Print Or Perish? Authors’ Attitudes Toward Electronic-Only Publication Of Law Journals, Richard A. Danner, Kiril Kolev, Marguerite Most

Faculty Scholarship

An increasing number of U.S. law journals post at least current issues in freely accessible PDF and (in some cases) HTML formats on their web sites. Yet, perhaps without exception, the journals that make their articles freely available on their websites also continue to publish print issues in the face of declining subscription numbers, and law libraries' growing disinterest in collecting and preserving journals in print. As universities reduce staff, freeze open positions, eliminate salary increases, and cut library budgets, why have law schools continued to subsidize print publication of journals that are accessible in electronic formats? Among the reasons …

Securities Class Actions As Public Law, James D. Cox

Faculty Scholarship

The Political Economy of Fraud on the Market provides a wide-ranging criticism of and thoughtful reforms for securities class actions....However, both their critique of contemporary class actions and their model of the reforms they propose leave unexamined a good many matters relevant to both the criticism and reform of securities class actions....Bratton and Wachter earn high marks for being less passionate and much more thoughtful than others in the chorus calling for reform; indeed, their observations are among the most thoughtful to be found in this area. Nonetheless, their analysis is incomplete in many important areas, and in addition to …

What Is The Emperor Wearing? The Secret Lives Of Ecosystem Services, James Salzman

Faculty Scholarship

No abstract provided.

The Linear Quadratic Tracker On Time Scales, Martin Bohner, Nick Wintz

Faculty Scholarship

In this work, we study a natural extension of the Linear Quadratic Regulator (LQR) on time scales. Here, we unify and extend the Linear Quadratic Tracker (LQT). We seek to find an affine optimal control that minimizes a cost functional associated with a completely observable linear system. We then find an affine optimal control for the fixed final state case in terms of the current state. Finally we include an example in disturbance/rejection modelling. A numerical example is also included.

The Fisk-Vanderbilt Master’S-To-Ph.D. Bridge Program: Recognizing, Enlisting, And Cultivating Unrealized Or Unrecognized Potential In Underrepresented Minority Students, Keivan G. Stassun, Susan P. Sturm, Kelly Holley-Bockelmann, Arnold Burger, David J. Ernst, Donna Webb

Faculty Scholarship

The Fisk-Vanderbilt Masters-to-Ph.D. Bridge Program is a model for substantially increasing the number of underrepresented minority students earning doctoral degrees in the physical sciences. The program presently leads the nation in master’s degrees in physics for African-Americans, and is one of the top ten producers of physics master’s degrees among all U.S. citizens. The program is on pace to become the nation’s top producer of underrepresented minority Ph.Ds. in physics, astronomy, and materials science. We summarize the main features of the program, including two of its core strategies: Partnering a minority-serving institution and a major research university through collaborative research, …

On Nontraditional Trademarks, Kenneth L. Port

Faculty Scholarship

This piece regards nontraditional trademarks like sound, color, scent or even the vertical opening motion of a Lamborghini car door. The protection of trademarks has, historically, walked a fine balance. Naturally, as a society, we want to protect trademarks so that transaction costs are lowered as purchasers make a quick and easy purchasing decision. You see Tide, you know Tide, you buy Tide. However, the protection of nontraditional trademarks upsets this fine balance. If we go too far in the protection we grant unwarranted monopolies to companies to stifle the precise competition the law was meant to encourage. Sometimes, we …