Digital Commons Network^™

Judicial System Rises To Challenges Of Times, Kevin Washburn

Faculty Scholarship

No abstract provided.

Preventing Accidents In Offshore Oil And Gas Operations: The U.S. Approach And Some Contrasting Features Of The Norwegian Approach, Michael S. Baram

Faculty Scholarship

This working paper deals with the U.S. approach for governing the safety of offshore oil and gas operations and preventing major accidents during exploratory drilling and production. It evaluates the statutory and regulatory framework, and agency implementation and reliance on industrial standards, and then suggests reforms to improve the efficacy of this governance system. References are made to the blowout at the drilling rig operated by British Petroleum to support the evaluation and reforms. References are also made to Norwegian laws and regulations governing oil and gas operations in the North Sea. As one of the world’s largest sources of …

Mainstreaming Privacy Torts, Danielle K. Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

The Visible Hand: Coordination Functions Of The Regulatory State, Robert B. Ahdieh

Faculty Scholarship

We live in a coordination economy. As one surveys the myriad challenges of modern social and economic life, an ever increasing proportion is defined not by the need to reconcile competing interests, but by the challenge of getting everyone on the same page. Conflict is not absent in these settings. It is not, however, the determinative factor in shaping our behaviors and resulting interactions. That essential ingredient, instead, is coordination.

Such coordination is commonly understood as the function of the market. As it turns out, however, optimal coordination will not always emerge, as if led “by an invisible hand.” Even …

Imperfect Alternatives: Networks, Salience, And Institutional Design In Financial Crises, Robert B. Ahdieh

Faculty Scholarship

With the benefit of hindsight — and some aspiration to foresight — it is useful to consider the type of regulatory regime that might best address financial crises. What could policymakers have done to prevent the recent crisis? And once the crisis started, what interventions might have alleviated it? These questions have been widely debated, with an eye to both substantive policy and the design of effective regulatory institutions. This Article speaks to the latter project — one of comparative institutional analysis — though with a framework that implicates our substantive policy choices as well. It begins with an account …

Resolving The Dilemma Of Nonjusticiable Causation In Failure-To-Warn Litigation, Neil B. Cohen, Aaron Twerski

Faculty Scholarship

No abstract provided.

Resolving The Dilemma Of Non-Justiciable Causation In Failure To Warn Litigation, Aaron D. Twerski, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Location-Based Services: Time For A Privacy Check-In, Chris Conley, Nicole Ozer, Hari O'Connell, Ellen Ginsburg, Tamar Gubins

Faculty Scholarship

Need to get directions when you are lost? Want to know if your friends are in the neighborhood? Location-based services – applications and websites that provide services based on your current location – can put this information and more in the palm of your hand.

But outdated privacy laws and varying corporate practices could mean that sensitive information about who you are, where you go, what you do, and who you know end up being shared, sold, or turned over to the government.

Can location-based services protect your privacy? Do they? And what can we do to improve the situation? …

A Small Nation Goes To War: Israel's Cabinet Authorization Of The 1956 War, Pnina Lahav

Faculty Scholarship

The Suez War had long term ramifications for Israel's status in the Middle East and for its relations with the U.S., Europe, and the USSR. This article is a first segment in the examination of the interplay between military and diplomatic means deployed by Israel in its quest to consolidate the gains of the 1948 war and secure its sovereignty. It provides a detailed analysis of the Israeli cabinet deliberations as it reached the decision to authorize war. The article examines the cabinet's opinions on the language of the motion to go to war, the list of casus belli offered, …

From Knowledge To Ideas: The Two Faces Of Innovation, James Bessen

Faculty Scholarship

Innovative ideas have unique properties arising from low communication costs. But ideas come from knowledge that is costly to communicate. “Formalizing” knowledge — codifying, developing standards, etc. — reduces these costs. In a simple model, formalization is associated with changes in the nature of competition between two equilibrium regimes. In one, knowledge is formalized, new technology replaces old and patents increase innovation incentives. In the other, knowledge is not formalized, old technology coexists with new, patents decrease innovation incentives and firms sometimes freely exchange knowledge. The equilibrium changes as technology improves over a life-cycle, affecting firm strategy, innovation policy, geographic …

How Lawyers (Come To) See The World: A Narrative Theory Of Legal Pedagogy, Randy D. Gordon

Faculty Scholarship

Even if one believes that law is not an autonomous discipline, few would dispute that it is a conservative institution and that its members are trained via a pedagogical method quite different from that of other professions. A central aspect of this training is the case method and — thus — the specialized narrative form that appellate opinions take. This essay examines the case method and suggests ways to crack it open — without discarding it — and thereby achieve one of the goals set forth in the Carnegie Report: namely, to supplement the analytical, rule-based mode of reasoning inherent …

From Harmelin To Graham - Justice Kennedy Stakes Out A Path To Proportional Punishment, Eva Nilsen

Faculty Scholarship

Graham v. Florida³ is a groundbreaking decision because it revives punishment doctrine on two issues that have lain dormant since Harmelin v. Michigan⁴: proportionality and individualized sentencing. Although it doesn't overrule Harmelin, by recognizing the continued vitality of Weems⁵ and Solem ⁶ the Graham decision appears to acknowledge that the Court's approach to proportionality since Harmelin may be too restrictive for the U.S. justice system today. In Solem, the Court affirmed its Constitutional role in ensuring just punishment; in Graham, the Court reaffirms that role.

Harmelin has had an enormous and regrettable impact …

Child, Family, State, And Gender Equality In Religious Stances And Human Rights Instruments: A Preliminary Comparison, Linda C. Mcclain

Faculty Scholarship

The UN Convention on the Rights of the Child (CRC) recently began its third decade. Why has the United States still not ratified the CRC, celebrated as the most widely ratified international human rights treaty in history? Once again, this question is on the table: Congressional resolutions that President Obama should not transmit the CRC to the Senate for advice and consent rapidly followed intimations that the Obama Administration had some qualms about the U.S. keeping company only with Somalia in not ratifying it. Some scholars contend that enlisting the unique resources of religions would help to ground a culture …

Deregulation Pas De Deux: Dual Regulatory Classes Of Financial Institutions And The Path To Financial Crisis In Sweden And The United States, Erik F. Gerding

Faculty Scholarship

This article presents the following model of two regulatory classes of financial institutions interacting in financial and political markets to spur deregulation and riskier lending and investment, which in turn contributes to the severity of a financial crisis: 1) Regulation creates two categories of financial institutions. The first class faces greater restrictions in lending or investment activities but enjoys regulatory subsidies, such as an explicit or implicit government guarantee, while the second class is more loosely regulated and can make riskier loans or investments and earn additional profits. 2) These additional profits leads to calls for deregulation to enable the …

Prediction And Testing Of Biological Networks Underlying Intestinal Cancer, Vishal N. Patel, Gurkan Bebek, Mark R. Chance

Faculty Scholarship

Colorectal cancer progresses through an accumulation of somatic mutations, some of which reside in so-called "driver" genes that provide a growth advantage to the tumor. To identify points of intersection between driver gene pathways, we implemented a network analysis framework using protein interactions to predict likely connections - both precedented and novel - between key driver genes in cancer. We applied the framework to find significant connections between two genes, Apc and Cdkn1a (p21), known to be synergistic in tumorigenesis in mouse models. We then assessed the functional coherence of the resulting Apc-Cdkn1a network by engineering in vivo single node …

Transfer Pricing In Business Restructurings – Reasoning From Implausible Assumptions Issue Note 2 – (Oecd, Discussion Draft), Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

The OECD’s Center for Tax Policy and Administration roundtable on business restructurings in January 2005 led to a Joint Working Group project later that year on permanent establishments and business restructurings. One of the results was the Discussion Draft on Transfer Pricing Aspects of Business Restructurings that was available for public comment between September 19, 2008 and February 19, 2009.

This paper concerns Issue Note No. 2 in the Discussion Draft – Arm’s Length Compensation for the Restructuring Itself.

Issue Note No. 2 is deeply flawed. It relies on an unproved correlation between structure and performance (profit/loss potential). The Discussion …

Copyright, Derivative Works, And The Economics Of Complements, Glynn S. Lunney Jr

Faculty Scholarship

From an economic perspective, copyright is irrational. In defining the scope of a copyright owner's exclusive rights, it treats situations that have similar economic consequences differently, as infringement in one case and not in the other, and situations that have radically different economic consequences similarly. This essay explores such area in which copyright exhibits economic irrationality: Copyright's treatment of complements. Where a lower price on a substitute reduces demand for the original, a lower price on a complement increases it. So defined, copyright addresses whether a copyright owner will control three different types of complements: (i) complementary products, such as …

Mechanically Generated Surface Chirality At The Nanoscale, Sameh Ferjani, Yoonseuk Choi, Joel Pendery, Rolfe G. Petschek, Charles Rosenblatt

Faculty Scholarship

A substrate coated with an achiral polyimide alignment layer was scribed bidirectionally with the stylus of an atomic force microscope to create an easy axis for liquid crystal orientation. The resulting noncentrosymmetric topography resulted in a chiral surface that manifests itself at the molecular level. To show this unambiguously, a planar-aligned negative dielectric aniostropy achiral nematic liquid crystal was placed in contact with the surface and subjected to an electric field E. The nematic director was found to undergo an azimuthal rotation approximately linear in E. This so-called "surface electroclinic effect" is a signature of surface chirality and was not …

Van Der Waals-London Dispersion Interaction Framework For Experimentally Realistic Carbon Nanotube Systems, Roger H. French

Faculty Scholarship

A system's van der Waals–London dispersion interactions are often ignored, poorly understood, or crudely approximated, despite their importance in determining the intrinsic properties and intermolecular forces present in a given system. There are several key barriers that contribute to this issue: 1) lack of the required full spectral optical properties, 2) lack of the proper geometrical formulation to give meaningful results, and 3) a perception that a full van der Waals–London dispersion calculation is somehow unwieldy or difficult to understand conceptually. However, the physical origin of the fundamental interactions for carbon nanotube systems can now be readily understood due to …

Long Range Interactions In Nanoscale Science, Roger H. French

Faculty Scholarship

Our understanding of the “long range” electrodynamic, electrostatic, and polar interactions that dominate the organization of small objects at separations beyond an interatomic bond length is reviewed. From this basic-forces perspective, a large number of systems are described from which one can learn about these organizing forces and how to modulate them. The many practical systems that harness these nanoscale forces are then surveyed. The survey reveals not only the promise of new devices and materials, but also the possibility of designing them more effectively.

Fulfilling Government 2.0'S Promise With Robust Privacy Protections, Danielle K. Citron

Faculty Scholarship

The public can now “friend” the White House and scores of agencies on social networks, virtual worlds, and video-sharing sites. The Obama Administration sees this trend as crucial to enhancing governmental transparency, public participation, and collaboration. As the President has underscored, government needs to tap into the public’s expertise because it doesn’t have all of the answers.

To be sure, Government 2.0 might improve civic engagement. But it also might produce privacy vulnerabilities because agencies often gain access to individuals’ social network profiles, photographs, videos, and contact lists when interacting with individuals online. Little would prevent agencies from using and …

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Optically Anisotropic Infinite Cylinder Above An Optically Anisotropic Half Space: Dispersion Interaction Of A Single-Walled Carbon Nanotube With A Substrate, Roger H. French

Faculty Scholarship

A complete form of the van der Waals dispersion interaction between an infinitely long anisotropic semiconducting/insulating thin cylinder and an anisotropic half space is derived for all separations between the cylinder and the half space. The derivation proceeds from the theory of dispersion interactions between two anisotropic infinite half spaces as formulated in Phys. Rev. A 71, 042102 (2005). The approach is valid in the retarded as well as nonretarded regimes of the interaction and is coupled with the recently evaluated ab initio dielectric response functions of various semiconducting/insulating single wall carbon nanotubes, enables the authors to evaluate the strength …

A Unified Theory Of International Law, The State, And The Individual: Transnational Legal Harmonization In The Context Of Economic And Legal Globalization, James D. Wilets

Faculty Scholarship

This Article presents an original theory of international law which reconciles the norm-making processes occurring at the international, state, and individual levels. It is the central thesis of this paper that economic globalization is not happening in a vacuum, but it is rather engendering legal globalization, much in the way that centralized regulation followed trans-state economic globalization within the United States and Europe.

Traditional definitions of international law do not address this phenomenon and consider these new forms of transnational norm creation as simply exceptions to the general rule that international law is created by nation-states within the framework of …

Curriculum Mapping: Bringing Evidence-Based Frameworks To Legal Education, Debra Moss Curtis, David M. Moss

Faculty Scholarship

This article explains the concept of curriculum mapping as used in the education profession and explains how it was applied in a mapping initiative at the NSU Law Center. Curriculum mapping is a process by which education professionals “document their own curriculum, then share and examine each other’s curriculums for gaps, overlaps, redundancies and new learning, creating a coherent, consistent, curriculum within and across areas that is ultimately aligned to standards and responsive to student data and other initiatives.” While this process has been used for many years in other areas of education, it is fairly new to legal education. …

New Groups And Old Doctrine: Rethinking Congressional Power To Enforce The Equal Protection Clause, William Araiza

Faculty Scholarship

No abstract provided.

Report & Recommendations Legal Scholar Team, Margaret E. Montoya, Tucker Culbertson, Marc-Tizoc González

Faculty Scholarship

The Report’s Recommendations for next steps reflect and incorporate the multiple experiences, false starts, insights, frustrations and new beginnings that represent the various ways that diversity works within the different sectors of the legal profession. We have included Recommendations that are already being used as well as some that are ambitious and aspirational. Within each of the four sectors of the profession, the recommendations are broadly categorized, but not prioritized. We recognize that every individual or organization will have its own priorities based on its unique circumstances. We do encourage the Report’s users to select and prioritize recommendations for next …

Virtual Intermediaries In The Lodging Industry: Consumption Tax Problems In The U.S. And Japan, Richard Thompson Ainsworth

Faculty Scholarship

Marketplace technology is (inadvertently) chipping away at the effectiveness of consumption taxes – the Japanese Consumption Tax (CT), the European value added tax (VAT), and the American sales tax (ST) are all affected. Frequently a technology-patch or a law change can repair the tax-damage, but sometimes even though a patch or a change is known the design of the levy (or the politics behind the design) impedes application. This paper assesses these consumption taxes by considering the impact that virtual travel agents have had on revenue yields. The paper draws specific conclusions for the Japanese CT, because this consumption tax …

Protecting New Mexico’S Waters: A Blueprint For The Future, Denise D. Fort

Faculty Scholarship

Aquatic species are imperiled by water diversions, introduced species, pollution and now climate change. In the western U.S., water law rewards the withdrawal and use of water, rather than leaving water instream for ecological, recreational and other purposes. New Mexico has no statutory protections for environmental flows and is increasing its diversions of water from rivers. This paper discusses the status of instream flows in the state and proposes policies to better protect the state’s waters.

Reflections On Success And Failure In New Governance And The Role Of The Lawyer, Lisa T. Alexander

Faculty Scholarship

While the recent global economic downturn and the change in power in U.S. government force us to reexamine the efficacy of new governance approaches to public problem-solving and regulatory reform, the contributions of Symposium participants affirm that new governance will likely continue to be with us in the not-so-distant future. Thus, there is a continuing need to clarify the lawyer's role in new governance. This Afterword begins that task by (1) reassessing the core normative goals of much new governance jurisprudence and practice, analyzing and critiquing the limited role for lawyers envisioned in this field; (2) positing how lawyers should …