Digital Commons Network^™

Modern Mail Fraud: The Restoration Of The Public/Private Distinction, John C. Coffee Jr.

Faculty Scholarship

Over their long history, the mail and wire fraud statutes have gone through repeated periods of rapid expansion and contraction. The 1970s saw the flowering of the "intangible rights doctrine," an exotic flower that quickly overgrew the legal landscape in the manner of the kudzu vine until by the mid- 1980s few ethical or fiduciary breaches seemed beyond its potential reach. That doctrine was radically pruned by the Supreme Court in 1987 in the McNally decision, which held that the federal mail and wire fraud statutes reached only those schemes that intentionally sought to deprive their victims of money or …

Compensation And The Interconnectedness Of Property, Thomas W. Merrill

Faculty Scholarship

Professor Joseph Sax's scholarship on the Takings Clause combines the craft of a first-class lawyer with the passion of a visionary. The good lawyer that he is, Sax's scholarship reflects a deep understanding of Supreme Court case law, legal history, and the practical dimensions of various kinds of land use disputes. Yet his work on takings is not animated by any desire for mere doctrinal tidiness. It is driven by a distinctive vision – one in which the earth's resources are becoming increasingly interconnected and in which there is an increasing need for the government to resolve conflicts regarding the …

The Internal Relations Of Government: Cautionary Tales From Inside The Black Box, Peter L. Strauss

Faculty Scholarship

Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a "government of laws," conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice ("DOJ") and, increasingly, the Office of Information and Regulatory …

Can Patents Deter Innovation? The Anticommons In Biomedical Research, Michael Heller, Rebecca S. Eisenberg

Faculty Scholarship

The "tragedy of the commons" metaphor helps explain why people overuse shared resources. However, the recent proliferation of intellectual property rights in biomedical research suggests a different tragedy, an "anticommons" in which people underuse scarce resources because too many owners can block each other. Privatization of biomedical research must be more carefully deployed to sustain both upstream research and downstream product development. Otherwise, more intellectual property rights may lead paradoxically to fewer useful products for improving human health.

Our Administrative System Of Criminal Justice, Gerard E. Lynch

Faculty Scholarship

Bill Tendy was already a legend among federal prosecutors when I first served as an Assistant United States Attorney for the Southern District of New York in the early 1980s. To us youngsters, Bill even then seemed a survivor from another era, when prosecutors really did resemble the tough-talking Hollywood DAs played by actors like Brian Donleavy – while we felt more like insecure young lawyers who should be played by Michael J. Fox or Calista Flockhart.

Partly, of course, this was just a function of age and experience; hard as it was to imagine, there must have been a …

Conflicts Of Interest In Scientific Expert Testimony, Mark R. Patterson

Faculty Scholarship

Conflicts of interest have significant implications for the reliability of scientific expert testimony. However, the courts' treatment of conflicts is not always in accord either with the treatment of conflicts in scientific practice or with the particular problems that scientists' conflicts present in court. In response, this Article proposes two basic changes in the treatment of scientific expert testimony. First, courts should strive to separate issues of bias from issues of scientific validity-the two sets of issues are now conflated at times. Second, courts should pay more attention to biases of scientists who perform the research underlying expert testimony, whereas …

Protecting Soldiers From Friendly Fire: The Consent Requirement For Using Investigational Drugs And Vaccines In Combat, George J. Annas

Faculty Scholarship

In 1990, following Iraq's invasion of Kuwait, the Department of Defense (DOD) sought a waiver of the informed consent requirements of existing human experimentation regulations from the Food and Drug Administration (FDA). With this waiver, DOD could authorize military use of investigational drugs and vaccines on soldiers involved in the Gulf War without their informed consent. The basis of the waiver request was military expediency. In DOD's words: "In all peace time applications, we believe strongly in informed consent and ethical foundations... but military combat is different." DOD's rationale was that informed consent under combat conditions was "not feasible" because …

Transgenic Agriculture: Biosafety And International Trade, Michael S. Baram, Calestuous Juma, Sheldon Krimsky, Rufus C. King

Faculty Scholarship

We stand at the threshold of a new century that will bring novel methods of producing foods, industrial materials, pharmaceuticals, and other products important to society and industry. Today's session will, therefore, address a subject of great importance: the introduction of genetically modified crops, livestock, micro-organisms, and other substances into agriculture and related fields, made possible by American and foreign corporate biotechnology.

Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard

Faculty Scholarship

The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – …

Why Ownership Matters? Entrepreneurship And The Restructuring Of Enterprises In Central Europe, Roman Frydman, Marek P. Hessel, Andrzej Rapaczynski

Faculty Scholarship

This paper, based on a study of mid-sized firms in the Czech Republic, Hungary, and Poland, seeks to explain the reasons behind the marked impact of ownership on firm performance which has been observed in a number of studies in Eastern Europe and other parts of the world. Focusing in particular on the differential impact of ownership on revenue and cost performance, the paper argues that privatized firms controlled by outside investors are more entrepreneurial than those controlled by corporate insiders or the state. The paper provides evidence that all state and privatized firms in transition economies engage in similar …

Derivatives, Corporate Hedging, And Shareholder Wealth: Modigliani-Miller Forty Years Later, Kimberly D. Krawiec

Faculty Scholarship

No abstract provided.

Preliminary Observations: Asymmetrical Warfare And The Western Mindset, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Teaching Ethics Seriously: Legal Ethics As The Most Important Subject In Law School, Russell G. Pearce

Faculty Scholarship

No abstract provided.

Price Discrimination, Personal Use And Piracy: Copyright Protection Of Digital Works, Michael J. Meurer

Faculty Scholarship

The growth of digital information transmission worries copyright holders who fear the new technology threatens their profits because of greater piracy and widespread sharing of digital works. They have responded with proposals for expanded protection of digital works. Specifically, they seek restrictions on personal use rights regarding digital works provided by the fair use and first sale doctrines. The proposed changes in the allocation of property rights to digital information significantly affect the ability of copyright holders to practice price discrimination. Broader user rights make discrimination more difficult; broader producer rights make discrimination easier. I argue that more price discrimination …

"Quadrupoled" Materials For Second-Order Nonlinear Optics, S. F. Hubbard, Rolfe G. Petschek, Kenneth D. Singer

Faculty Scholarship

We describe a new approach to second-order nonlinear optical materials, namely quadrupoling. This approach is valid in the regime of Kleinman (full permutation) symmetry breaking, and thus requires a two- or three dimensional microscopic nonlinearity at wavelengths away from material resonances. This "quadrupolar" nonlinearity arises from the second rank pseudotensor of the rotationally invariant representation of the second-order nonlinear optical tensor. We have experimentally investigated candidate molecules comprised of chiral camphorquinone derivatives by measuring the scalar invariant associated with the rank two pseudotensor using hyper-Rayleigh scattering. We have found sizable scalar figures of merit for several compounds using light for …

Recoverability Of The Cost Of Borrowing In Construction Contracts, Heidi K. Brown

Faculty Scholarship

No abstract provided.

The Recoverability Of The Cost Of Borrowing In Construction Contracts, Heidi K. Brown, Steven J. Weber, Michele Mintz

Faculty Scholarship

No abstract provided.

Two Decades Of Intermediate Scrutiny: Evaluating Equal Protection For Women Centennial Pannel, Elizabeth M. Schneider, Deborah Brake, Donna Lenhoff, Sharon Elizabeth Rush, Ann Shalleck

Faculty Scholarship

No abstract provided.

A Brief History Of New Mexico Water Rights Administration Since 1907, G. Emlen Hall

Faculty Scholarship

Let's get right down to it: If the Big Bang Theory of the beginning of our universe applied to New Mexico water law as we know it today, there would be no trouble setting the date on which the Creation occurred: March 19, 1907.1.0n that date the Water Code under which we now live became effective and the water world we now live in began. So important is this date in the cosmology of New Mexico water rights that every water lawyer and every water engineer---in short, every "eginawyer" in the words of United States District Judge Edwin Mechem---can recite …

Dephasing In Hyper-Rayleigh Scattering From Organic Materials, S. F. Hubbard, Rolfe G. Petschek, Kenneth D. Singer

Faculty Scholarship

The spectral content of hyper-Rayleigh scattering (HRS) was studied with solutions of disperse red-1 (DR1) in acetone at a specific fundamental wavelength. Dephasing can occur when the effective lifetime of the virtual state approaches a two-photon resonance. Experiments were developed that will measure all six observables in HRS by observing the scattering at 45°, continuously varying the phase of the fundamental by rotating a quarter-waveplate, and using another quarter-waveplate with a linear polarizer to analyze the harmonic. These experiments proved the validity of Kleinmann symmetry in near-resonant and far off-resonant regimes.

The Pecos River Controversy- How Did We Get Here?, G. Emlen Hall

Faculty Scholarship

Conference program only.

Submersible And Scuba Collections In The Coastal Waters Of The Bahama Islands And Florida's Oculina Coral Banks: Biomedical And Biodiversity Research Of The Benthic Communities With Emphasis On Porifera And Gorgonacea., Shirley A. Pomponi, John K. Reed, Amy E. Wright, Kathleen E. Janda, Robin Willoughby, Susan H. Sennett, M. Kelly-Borges, James O. Mcinerney, Christi L. Adams, Klaus, Kelly-Borges, David Myles

Faculty Scholarship

Division of Biomedical Marine Research (DBMR) scientists [Dr. Shirley Pomponi (Principal Investigator; Director, Division of Biomedical Marine Research), John Reed (Chief Scientist; Dive Safety Off icer), Dr. Amy Wright, Robin Willoughby, Kathleen Janda, and Dr. Susan Sennett] and visiting scientists [Dr. Michelle Kelly-Borges, Dr. James McInerney, Dr. David Myles, Christi Adams, and Klaus Kelly-Borges] conducted a 7 day research expedition to the Bahama Islands on the R/V EDWIN LINK from October 25 to 31, 1996. One submersible dive was also conducted on the deep-water Oculina coral banks of central eastern Florida. The primary objectives were: 1) to conduct biochemical and …

The Religion Clauses And Freedom Of Speech In Australia And The United States: Incidental Restrictions And Generally Applicable Laws, David S. Bogen

Faculty Scholarship

No abstract provided.

In Defense Of The Superfund Liability System: Matching The Diagnosis And The Cure, Rena I. Steinzor, Linda E. Greer

Faculty Scholarship

No abstract provided.

Learning To Teach, Teaching To Learn, Kathryn M. Plank, Diane M. Enerson, Susannah Milner, R. Neill Johnson

Faculty Scholarship

No abstract provided.

The Unfocused Regulation Of Toxic And Hazardous Pollutants, John C. Dernbach

Faculty Scholarship

No abstract provided.

Campaign Finance Reform: Still Searching Today For A Better Way, Joel Gora

Faculty Scholarship

No abstract provided.

On The Economics Of Copyright, Restitution And "Fair Use": Systemic Versus Case-By-Case Responses To Market Failure, Wendy J. Gordon

Faculty Scholarship

The 'public goods' characteristics possess by intangible works of authorship and invention present the basic market failure problem usually relied on to justify intellectual property rights. What is ordinarily less emphasized is that such market failure is no more than half of the prerequisite for an economically desirable copyright or patent system: another requisite condition is that there be less costly market imperfections after intellectual property is instituted than there would have been in the absence of the intellectual property regime. Intellectual property rights are best justified in the presence of "asymmetric market conditions", that is where (1) in the …

An Artist's Privilege, Niels Schaumann

Faculty Scholarship

This article examines visual art in light of the letter and the spirit of the Constitution's Copyright Clause and the Copyright Act of 1976 (“Act”) and concludes that artists should have the freedom to copy works, not only of popular culture, but of all kinds. In other words, people creating art should be permitted to copy anything and everything. This is not to suggest that copyright serves no purpose: destroying the copyright edifice merely to protect the ability of certain artists to create would be dangerous and foolhardy. Practical limitations on an artist's privilege to copy can be imposed to …

From Law And Bananas To Real Law: A Celebration Of Scholarship In Mental Health Law, Steven R. Smith

Faculty Scholarship

No abstract provided.