Digital Commons Network^™

Should The Ali Take A Position On Capital Punishment?, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

A Crack In The Shield? Malpractice Coverage At Risk, Daniel S. Kleinberger

Faculty Scholarship

A recent, unreported opinion of the Minnesota Court of Appeals has opened up a major hole in the liability shield of professional firms. Continental Casualty Co. v Duckson-Carlson, LLC, misapplies the doctrine of equitable estoppel, misinterprets the Minnesota Professional Firms Act, ignores the fundamental distinction between an entity and its owners, and sub silentio turns the law of third party beneficiaries on its head. From a practical perspective, the decision should trouble every lawyer, doctor, accountant, and other "319B" professional in the state and, moreover, has serious implications for individuals covered by D&O insurance

Technology Mediated Dispute Resolution (Tmdr): Opportunities And Dangers, David Allen Larson

Faculty Scholarship

Technology Mediated Dispute Resolution (TMDR) presents opportunities and dangers that we cannot yet fully envision. Technologies are available or imminent, such as tele-immersion, that will dramatically change the ways we think about dispute resolution in a virtual environment. Whether or not one finds the idea of TMDR appealing, a generation of teens and preteens is integrating technology so deeply into their daily lives that they not only will expect, but will demand, that those technologies be used in a dispute resolution proceeding. Because girls communicate differently than boys when using technology, it will be interesting to learn if women prove …

The Use Of Mtas To Control Commercialization Of Stem Cell Diagnostics & Therapeutics, Sean O'Connor

Faculty Scholarship

No abstract provided.

Clark's Treatise On Corporate Law: Filling Manning's Empty Towers, Ronald J. Gilson, Reinier Kraakman

Faculty Scholarship

Almost 45 years ago, in an elegantly depressive account of the then current state of corporate law scholarship, Bayless Manning announced the death of corporation law "as a field of intellectual effort." Manning left us with an affecting image of a once grand field long past its prime, rigid with formalism and empty of content:

When American law ceased to take the "corporation" seriously, the entire body of law that had been built upon that intellectual construct slowly perforated and rotted away. We have nothing left but our great empty corporate statutes towering skyscrapers of rusted girders, internally welded together …

The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah S. Purdy

Faculty Scholarship

Political thinkers have long worried that freedom might be selfundermining, tending to erode the liberal rights and democratic politics that form its foundations. The argument has ancient and modern versions, versions of the political left and of the right. No doubt the only adequate answer is the sum of the answers to many particular questions: whether and when popular elections undermine liberal rights, how free markets enhance or undermine democracy, and so forth. In this article, I address an emerging problem in a central area of contemporary freedom: reproductive autonomy. I ask whether reproductive autonomy can undermine the political conditions …

Revisiting "The Need For Negro Lawyers": Are Today's Black Corporate Lawyers Houstonian Social Engineers?, H. Timothy Lovelace Jr.

Faculty Scholarship

No abstract provided.

The Functional Method Of Comparative Law, Ralf Michaels

Faculty Scholarship

The functional method has become both the mantra and the bete noire of contemporary comparative law. The debate over the functional method is the focal point of almost all discussions about the field of comparative law as a whole, about centers and peripheries of scholarly projects and interests, about mainstream and avant-garde, about ethnocentrism and orientalism, about convergence and pluralism, about technocratic instrumentalism and cultural awareness, etc. Not surprisingly, this functional method is a chimera, both as theory and as practice of comparative law. In fact, "the functional method" is a trifold misnomer: There is not one ("the") functional method …

Toward An Ecology Of Intellectual Property: Lessons From Environmental Economics For Valuing Copyright's Commons, Frank Pasquale

Faculty Scholarship

No abstract provided.

Adequate Progress, Or Rivers Left Behind? Developments In Colorado And Wyoming Instream Flow Laws Since 2000, Reed D. Benson

Faculty Scholarship

Colorado and Wyoming have much in common in regard to water supply and water use, and both states have followed the western states' traditional approach in their instream flow laws. This traditional approach, however, has serious practical shortcomings in restoring and protecting instream flows. This Article asks whether Colorado and Wyoming have made “adequate progress” since 2000 in addressing these shortcomings in their instream flow laws. For one of these states, the answer is clear Wyoming has made no progress on its instream flow laws in recent years. Colorado, by contrast, has clearly made progress in strengthening its laws-especially as …

Hetch Hetchy: To Drain Or Not To Drain, Brian E. Gray

Faculty Scholarship

No abstract provided.

Hardrock Homesteads: Free Access And The General Mining Law Of 1872, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Faculty Scholarship

Most discussions of the US General Mining Law of 1872 begin with the premise that the statute is an outdated relic of 19th-century attitudes towards resources and should be replaced with a modern system of royalties, permits and concessions. In contrast, this article argues that the statute provides institutional mechanisms that resolve incentive problems created by government ownership of mineral resources. Instead of calling for radical change in US mining laws, the authors hold up the free access principle of the General Mining Law of 1872 as a model for privatisation of assets whose value is unknown.

Download It While Its Hot: Open Access And Legal Scholarship, Lawrence B. Solum

Faculty Scholarship

This Article analyzes the shift of legal scholarship from the old world of law reviews to today's world of peer reviews to tomorrow's world of open access legal blogs. This shift is occurring in three dimensions. First, legal scholarship is moving from the long form (treatises and law review articles) to the short form (very short articles, blog posts, and online collaborations). Second, a regime of exclusive rights is giving way to a regime of open access. Third, intermediaries (law school editorial boards, peer-reviewed journals) are being supplemented by disintermediated forms (papers on the Internet, blogs). Blogs and internet conversations …

Foreword: Law, Business, And Economic Development - Current Issues And Age-Old Battles, Eric J. Gouvin

Faculty Scholarship

On March 24, 2006, the Western New England College School of Law and School of Business jointly hosted the First Annual Academic Conference sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference capped a year of exciting developments at the Law and Business Center, which is the College's contribution to the entrepreneurship infrastructure in the greater Springfield, Massachusetts area. Economists have understood for some time that small businesses are an important engine of economic development and vitality. Across the United States, 25 million small businesses employ more than half the country's workers, create …

Gendering The Gentrification Of Public Housing: Hope Vi's Disparate Impact On Lowest-Income African American Women, Danielle Pelfrey Duryea

Faculty Scholarship

HOPE VI must have seemed so promising. When, in 1992, the Department of Housing and Urban Development (HUD) introduced the program later dubbed "HOPE VI," replacing the country's worst public housing projects with mixed-income, mixed-use, low-density new developments while providing targeted social services to low-income residents must have seemed like a worthy pursuit indeed. America's most run-down, crime-ridden, and poverty-plagued residential properties could be transformed into "human-scale" New Urbanist streetscapes, aesthetically continuous with surrounding areas, that would inspire pride and community in their residents. Perhaps most importantly, HOPE VI's required social service component might have seemed, at last, to recognize …

When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs

Faculty Scholarship

Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …

Legal Limitations On Genetic Research And The Commercialization Of Its Results, Radhika Rao, Michael J. Malinowski

Faculty Scholarship

No abstract provided.

Electronic Research In State Prisons, Camilla Tubbs

Faculty Scholarship

No abstract provided.

Horizontal Political Externalities The Supply And Demand Of Disaster Management, Ben Depoorter

Faculty Scholarship

No abstract provided.

Judges As "Amateur Scientists", David L. Faigman

Faculty Scholarship

No abstract provided.

The How And Why Of The New Public Corporation Tax Shelter Compliance Norm, Susan C. Morse

Faculty Scholarship

No abstract provided.

The Federal Definition Of Tax Partnership, Bradley T. Borden

Faculty Scholarship

No abstract provided.

What The Right Of Publicity Can Learn From Trademark Law, Stacey L. Dogan, Mark A. Lemley

Faculty Scholarship

The right of publicity gives people the right to control the use of their name and likeness for commercial purposes. For years, courts have struggled to make sense of two dimensions of this right - what it means to use a name or likeness commercially, and what aspect of a person's likeness are protected against appropriation. In the absence of any clear theoretical foundation for the right of publicity, the meanings of these terms have steadily swelled, to the point at which virtually any use that brings financial benefit to someone by referencing an individual qualifies as a violation of …

The Digital Vat (D-Vat), Richard Thompson Ainsworth

Faculty Scholarship

The most sustained U.S. tax policy debate of the past 30 years concerns proposals to replace and/ or supplement the Federal Income Tax with a consumption tax. Public finance economists and legal tax policy scholars challenged and defended the current income tax system on grounds of fairness, efficiency, and simplicity.

This debate over revamping the national taxing scheme has not been argued purely in the academic forum. Concrete legislative proposals have been advanced for a national retail sales tax, a European-style Value Added Tax, as well as a whole host of what David Bradford calls "the two-tiered consumption taxes."

From …

An Essay On The Challenges Of Drafting A Uniform Law Of Software Contracting, Maureen A. O'Rourke

Faculty Scholarship

This Essay, originally presented at Lewis & Clark Law School’s 2006 Distinguished Intellectual Property Visitor lecture, discusses the challenges involved in developing a uniform law of software contracting. Technology and the law have developed since 1995, when the first efforts to codify such a law began. These earlier efforts were largely unsuccessful, and substantial uncertainty still exists in transactions involving software. In this Essay, Dean O’Rourke discusses the American Law Institute’s Principles project that seeks to identify approaches courts could use in adjudicating disputes involving software agreements. The challenges of developing the Principles include the same theoretical, practical and political …

Risk Management, Ben J.M. Ale, Phil W.M. Brighton, Michael S. Baram

Faculty Scholarship

Risk management develops as the need arises. Usually after an accident people want “authorities” to do something. On the other hand, industry wants predictable behaviour of authorities to be able to judge the soundness of their investments. This led to an adaptive process involving many decision makers embedded in legal and cultural heritage. It was indeed as struggle to determine who should be responsible and how to have risk management done by competent party (i.e. (1) industry, (2) public (3) authorities).

Mestizaje And The Mexican Mestizo Self: No Hay Sangre Negra, So There Is No Blackness, Taunya Lovell Banks

Faculty Scholarship

Many legal scholars who write about Mexican mestizaje omit references to Afromexicans, Mexico’s African roots, and contemporary anti-black sentiments in the Mexican and Mexican American communities. The reasons for the erasure or invisibility of Mexico’s African roots are complex. It argues that post-colonial officials and theorists in shaping Mexico’s national image were influenced two factors: the Spanish colonial legacy and the complex set of rules creating a race-like caste system with a distinct anti-black bias reinforced through art; and the negative images of Mexico and Mexicans articulated in the United States during the early nineteenth century. The post-colonial Mexican becomes …

The World Trade Law Of Censorship And Internet Filtering, Tim Wu

Faculty Scholarship

Consider the following events, all from the last five years: (1) An American newsmagazine, Barron's, posts an unflattering profile of an Australian billionaire named Joseph Gutnick on its web site – the publisher, Dow Jones, Inc., is sued in Australia and forced to settle; (2) Mexico's incumbent telephone company, Telmex, blocks Mexicans from reaching the web site of the Voice-over-IP firm Skype; (3) the United States begins a major crackdown on web gambling services, causing serious economic damage to several small Caribbean economies; (4) the Chinese government prevents its citizens from using various foreign Internet services, including foreign e-mail and …

Check Clearing For The 21st Century Act - A Wrong Turn In The Road To Improvement Of The U.S. Payments System, The , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

The Check Clearing for the 21st Century Act' (Check 21 Act) was introduced to Congress by the Federal Reserve System, enacted by Congress, signed by the President on October 28, 2003, and became effective one year later, on October 28, 2004. It makes a modest change in the check-clearing system designed to speed the movement of checks from the depositary to the paying bank. It is anticipated that it will eventually lead to what is called "electronic presentment," a process that may make the clearing of checks almost as swift as to- day's electronic payment systems. This Article gives the …

Thirst: A Short History Of Drinking Water, James Salzman

Faculty Scholarship

From earliest times, human societies have faced the challenge of supplying adequate quality and quantities of drinking water. Whether limited by arid environments or urbanization, provision of clean drinking water is a prerequisite of any enduring society, but it is a daunting task for drinking water is a multi-faceted resource. Drinking water is most obviously a physical resource, one of the few truly essential requirements for life. Drinking water is also a cultural resource, of religious significance in many societies. A social resource, access to water reveals much about membership in society. A political resource, the provision of water to …