Digital Commons Network^™

Qualitative, Quantitative, And Integrative Conservation, Jamison E. Colburn

Faculty Scholarship

In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called 'critical habitat' are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative …

Organizational Liability And The Tension Between Corporate And Criminal Law, Miriam H. Baer

Faculty Scholarship

This Essay, written as part of the 2010 Hon. David G. Trager Public Policy Symposium, recasts the corporate criminal liability problem as a tension between corporate and criminal law. On one hand, we would like to use criminal law to exact retribution from corporate entities, express our moral condemnation for the acts that have taken place within and through those entities, and to impose structural reforms that prevent future wrongdoing. Where publicly held corporations are concerned, however, it is difficult to do to impose entity-level criminal liability without also invoking responses from shareholders and innocent employees, who argue quite forcefully …

Addressing Problems Of Power And Supervision In Field Placements, Nancy M. Maurer, Robert F. Seibel

Faculty Scholarship

Power dynamics play a role in all workplace relationships and are of particular significance in field placement programs where such dynamics can have an impact on the learning opportunities for law students. This article examines power issues in relation to supervision of law students. The article begins by exploring the parameters of the problem through examples, and then examines the potential consequences of failing to address such issues in field placement programs, including ethical ramifications. Faculty in field placement programs, who generally are not responsible for client work product, have a unique opportunity to address power and supervision issues with …

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.

The Consequences Of Congress’S Choice Of Delegate: Judicial And Agency Interpretations Of Title Vii, Margaret H. Lemos

Faculty Scholarship

Although Congress delegates lawmaking authority to both courts and agencies, we know remarkably little about the determinants-and even less about the consequences-of the choice between judicial and administrative process. The few scholars who have sought to understand the choice of delegate have used formal modeling to illuminate various aspects of the decision from the perspective of the enacting Congress. That approach yields useful insight into the likely preferences of rational legislators, but tells us nothing about how (or whether) those preferences play out in the behavior of courts and agencies. Without such knowledge, we have no way of testing the …

Declaratory Relief After Medimmune, David I. Levine, Charles E. Belle

Faculty Scholarship

No abstract provided.

Correct Diagnosis; Wrong Cure: A Response To Professor Suk, Joan C. Williams

Faculty Scholarship

No abstract provided.

Above All Else Stop Digging: Local Government Law As A (Partial) Cause Of (And Solution To) The Current Housing Crisis, Darien Shanske

Faculty Scholarship

No abstract provided.

Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Reflections On Teaching Evidence With An Audience Response System, Roger C. Park

Faculty Scholarship

No abstract provided.

Beyond The Symbolic Black And White The New Challenges Of A Diverse Democracy, Frank H. Wu

Faculty Scholarship

No abstract provided.

Space Age Love Song: The Mix Tape In A Digital Universe, Megan M. Carpenter

Faculty Scholarship

Mix tapes are the classic, iconic form of music sharing. Mix tape creators of the past believed they were making a piece of art larger than the sum of its parts. And even in the face of technological development so rapid and far-reaching as to remove the literal "tape" from "mix tape," there are nonetheless modem incarnations that crop up on a regular basis, from mix CDs to mix-sharing websites. The technology is different, but the song remains the same.

Organizational Liability And The Tension Between Corporate And Criminal Law, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Beyond Innovation And Competition: The Need For Qualified Transparency In Internet Intermediaries, Frank Pasquale

Faculty Scholarship

No abstract provided.

Crime Music, Bennett Capers

Faculty Scholarship

No abstract provided.

From Gats To Apec: The Impact Of Trade Agreements On Legal Services, Laurel S. Terry

Faculty Scholarship

This article provides a comprehensive overview of the treatment of legal services in the United States’ international trade agreements. Although many individuals are now familiar with the General Agreement on Trade in Services (GATS), far fewer realize that legal services are included in at least fifteen international trade agreements to which the United States is a party. This article begins by identifying those trade agreements and other developments including the 2009 Legal Services Initiative of the Asia Pacific Economic Cooperation (APEC). The article continues by explaining the structure of the GATS and comparing its provisions to the provisions found in …

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

Rethinking Tax Priorities: Marriage Neutrality, Children, And Contemporary Families, James M. Puckett

Faculty Scholarship

Tax scholarship has long struggled with whether married taxpayers should be taxed differently from unmarried taxpayers. Currently, married taxpayers are subject to different tax rates than unmarried taxpayers, and may file a joint tax return. A married couple may pay a higher or lower amount of tax than an unmarried couple with the same total income, and a single person generally pays more tax on a given income than a married couple with a single earner with the same income. These outcomes are difficult to reconcile with a commitment to income tax progressivity, which in theory requires that higher incomes …

The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah S. Purdy

Faculty Scholarship

Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …

Activating Systemic Change Toward Full Participation: The Pivotal Role Of Boundary Spanning Institutional Intermediaries, Susan Sturm

Faculty Scholarship

Racial and social justice advocacy is in an era of transition. Race continues to permeate people's lives and to structure the social and economic hierarchy, but often in complicated ways that elude bright line categories. Disparities frequently result from cognitive bias, unequal access to opportunity networks, and other structural dynamics, rather than from intentional exclusion. For example, disparities in access to higher education persist as a result of differences in access, information, resources, networks, and evaluation, which give rise to achievement differentials at each critical turning point affecting successful advancement. These differences accumulate to produce substantial disparities in college participation …

"The Sole Right ... Shall Return To The Authors": Anglo-American Authors' Reversion Rights From The Statute Of Anne To Contemporary U.S. Copyright, Lionel Bently, Jane C. Ginsburg

Faculty Scholarship

The rise in the seventeenth and eighteenth centuries of a professional class of writers stimulated authors' demands for better remuneration from their writings. The increase in authors who sought to live from their work, rather than from patronage or personal fortune, likely provided at least one impulse for the author-protective provisions of the 1710 Statute of Anne. Under the regime of printing privileges that preceded the Statute of Anne, authors generally received from publisher-booksellers a one-time payment, made when the authors surrendered their manuscripts for publication. Authors whose works enjoyed particularly high demand might negotiate additional payments for new editions …

The Alchemy Of Dissent, Jamal Greene

Faculty Scholarship

On July 10, 2010, the Orange/Sullivan County NY 912 Tea Party organized a "Freedom from Tyranny" rally in the sleepy exurb of Middletown, New York. Via the group's online Meetup page, anyone who was "sick of the madness in Washington" and prepared to "[d]efend our freedom from Tyranny" was asked to gather on the grass next to the local Perkins restaurant and Super 8 motel for the afternoon rally. Protesters were encouraged to bring their lawn chairs for the picnic and fireworks to follow.

There was a time when I would have found an afternoon picnic a surprising response to …

Legislation That Isn't – Attending To Rulemaking's "Democracy Deficit", Peter L. Strauss

Faculty Scholarship

Philip Frickey's commitment to practical legal studies won my admiration early on in his career. In this welcome celebration of his extraordinary career, it seems fitting to essay something "practical" – to attempt a constructive approach to an enduring problem – that has some bearing on his lifelong attention to the problem of "interpretation." If it will not make the problem go away, perhaps it will provide a basis for understanding its inevitable tensions, and in that way will help us step past theoretical exegeses suggesting the possibility of simple answers.

Human Rights And American Bioethics: Resistance Is Futile, George J. Annas

Faculty Scholarship

The Borg are always confident that humans will be assimilated into their collective hive and therefore that, as they say, “resistance is futile.” In Star Trek, of course, the humans always successfully resist. Elizabeth Fenton and John Arras, like the Borg, resist the idea that humans are uniquely special as well as the utility of the human rights framework for global bioethics. I believe their resistance to human rights is futile, and I explain why in this essay. Let me begin with their subtitle, because we do seem to agree that popular culture is a powerful aid to understanding human …

International Agreements, Internal Heterogeneity, And Climate Change: The "Two Chinas" Problem, Daniel Abebe, Jonathan S. Masur

Faculty Scholarship

Every quantitative forecast of Chinese emissions – save for two important exceptions – uses only national-level data, a methodological weakness that can wash out distinctions between East and West. Of the two studies that employ sub-national data, one projects higher emissions than any of the national-level studies; the other projects much higher emissions than any other study. We read this as suggesting that Chinese carbon emissions over the forthcoming several decades may be significantly greater than the standard models have anticipated, with correspondingly higher costs to China from any agreement to curb carbon emissions. In light of the importance of …

Climate Regulation Without Congressional Action, Michael B. Gerrard

Faculty Scholarship

The apogee of congressional support for comprehensive climate change legislation came on June 26, 2009, when the House of Representatives passed the American Clean Energy Security Act (Waxman-Markey) by a vote of 219 to 212. Its Senate counterpart, the American Power Act, known first as Kerry-Lieberman-Graham and then just Kerry-Lieberman, never gained traction, and in July 2010 Senate Majority Leader Harry Reid (D.-Nev.) announced he would not bring it to the floor this year.

Many observers believe Republicans will take control of the House and possibly of the Senate after the Nov. 2, 2010, elections. Republican leadership in both chambers …

Model Green Building Ordinance For Municipalities Open For Comment, Michael B. Gerrard

Faculty Scholarship

In 2009, the residential and commercial building sector was responsible for more than 50 percent of total annual U.S. energy consumption, 74 percent of total U.S. electricity consumption, and 39 percent of total U.S. greenhouse gas emissions.

There has been a growing movement to encourage “green buildings” – those that generally use water, energy and materials more efficiently than conventional buildings, and utilize design, construction and siting features to reduce their negative environmental impacts.

Model Green Building Ordinance Proposed For Adoption By New York Municipalities, Michael B. Gerrard, Jason James

Faculty Scholarship

After failing to pass in the 111th Congress, comprehensive federal climate legislation appears stalled until at least 2013. Regulation of greenhouse gas emissions under existing federal law, while progressing, has encountered challenges. Even state initiatives, such as California's A.B. 32, lie on less than certain ground. But not all action to reduce greenhouse gas emissions must be taken on the federal or state level. Through regulating buildings, municipalities can play a crucial role in reducing greenhouse gas emissions while improving the health and welfare of their local communities.

In 2009, the residential and commercial building sector was responsible for more …

Fau Climate Change Initiative Priority Theme: Research, Engineering, And Adaption To A Change Climate., Leonard Berry, Marguerite Koch, Center For Environmental Studies, Brian Benscoter, Xavier Comas, Donna Devlin, Maria Fadiman, E. Gerstein, Denise L. Herzing, Tobin Hindle, Sarah L. Milton, Anton E. Oleinik, C. Edward Proffitt, Jorge I. Restrepo, Tara L. Root, Jeanette Wyneken,, Zhixiao Xie, Xing-Hai Zhang, Ann-Margaret Esnard, Diana Mitsova, J. Murley, J. Vos, Monica Escaleras, M. Mehallis, Eric H. Shaw, Guillermo John Hardman, Julie Lambert, G. Thomas, Madasamy Arockiasamy, Frederick Bloetscher, G. Carvalho,, Manhar R. Dhanak, George V. Frisk, Evangelos I. Kaisar, Hari Kalva, Daniel E. Meeroff, Jarice Rodriguez, Panagiotis (Pete) D. Scarlatos, Ravi Shankar, Ramesh Teegavarapu, Clifford T. Brown, Francis Mcafee, Patricia Widener, Fraser R. Dalgleish, M. Dennis Hanisak, S. Mcmulloch, Gregory O'Corry-Crowe, Shirley A. Pomponi, John K. Reed, John Scarpa, Joshua Voss, Barry N. Heimlich, R. Alvarez, J. Jolley, A. Edwards, Charles E. Schmidt College Of Science, Harbor Branch Oceanographic Institute, College Of Business, Dorothy F. Schmidt College Of Arts And Letters, College Of Education, College Of Engineering And Computer Science

Faculty Scholarship

Globally, sea level rise has the potential to impact two billion people living along coastlines. In South Florida, sea level rise is already a threat to coastal infrastructure and will continue to require new engineering solutions. Research universities, particularly those with strengths in hydrology, engineering, and ocean sciences, will play a major role in human adaptation to a rapidly changing climate; FAU can be one of these institutions with its current interdisciplinary climate change research. FAU’s premier engineering program provides opportunities to develop and apply new technologies to ascertain climate change impacts and develop solutions to assist in adaptation

Distribution Of Deep-Water Commercial Fisheries Species-Golden Crab, Tilefish, Royal Red Shrimp-In Deep-Water Habitats Off Eastern Florida From Submersible And Rov Dives., John K. Reed, Stephanie Farrington

Faculty Scholarship

The purpose of this study is to document the occurrence and distribution of golden crab, blueline tilefish, golden tilefish, and royal red shrimp in deep-water habitats (200 m to ~900 m) off eastern and southern Florida, within the jurisdiction of the South Atlantic Fishery Management Council (SAFMC). The scope of this study extends from the latitude of the north Florida border to the Dry Tortugas and out to the boundary of the U.S. Exclusive Economic Zone which is ~900 m deep within the Straits of Florida. Videotapes from manned submersible and ROV dives were selected to be representative of the …