Digital Commons Network^™

Domestic Violence Torts, Righting A Civil Wrong, Camille Carey

Faculty Scholarship

Tort law, especially personal injury law, has become an integral aspect of American society. Domestic violence injuries – including physical injury, pain and suffering, and death – have been conspicuously absent from the development of tort law. The common law history of chastisement, coverture, and spousal immunity contributed to the current dearth of domestic violence tort claims. Today tort law offers a number of underused claims that can be used to address domestic violence harms. Victims can use existing common law causes of action – such as battery, assault, and intentional infliction of emotional distress – to sue their abusers …

Hall V. Florida: The Supreme Court's Guidance In Implementing Atkins, James W. Ellis

Faculty Scholarship

In Atkins v. Virginia, the U.S. Supreme Court concluded that criminal defendants with mental retardation could not be sentenced to death or be executed because such an execution would constitute cruel and unusual punishment and therefore was prohibited by the Eighth Amendment. A dozen years later, in Hall v. Florida, the Court has reiterated the constitutional holding of Atkins and has given the states guidance on its implementation. The Court held that Florida could not impose an arbitrary IQ score limitation on the right of capital defendants to seek relief under Atkins. While the holding in Hall was relatively narrow, …

Private Enforcement Of The Kansas Wage Payment Act, Joseph A. Schremmer, Sean M. Mcgivern

Faculty Scholarship

The argument of this article is that there should be greater private enforcement of the KWPA, and that this goal can be achieved by amending the KWPA to include an attorney fee shifting provision that awards prevailing plaintiffs their reasonable attorney fee. A fee shift is necessary for three reasons. First, without a fee shift, deserving employees are unfairly barred from enforcing their wage payment claims in court. Second, an attorney fee shift is necessary to give meaning to the rights granted by the KWPA, which are rendered hollow by the lack of enforcement under the present system. And third, …

Tribal Environmental Programs: Providing Meaningful Involvement And Fair Treatment, Jeanette Wolfley

Faculty Scholarship

Tribal governments are developing and implementing federally authorized and/or approved tribal environmental programs in the areas of water quality, air quality, and solid waste. As part of this federal delegation process there are federal requirements relating to due process and fair treatment of the public and stakeholders who may be affected by the tribal environmental laws and regulations. This article explores and examines public participation and due process within the tribal context and proposes tribal institutions are in the best position to articulate the tribal cultural and social norms of public participation and fair treatment. It is through this process …

How Contract Boilerplate Can Bite, Alex Ritchie

Faculty Scholarship

Lawyers and academics often use the term “boilerplate” to refer to standardized non-negotiable contracts that prey upon consumers. But for more sophisticated contracts drafted and negotiated by transactional lawyers, the term refers to those common, usually short, and seemingly innocuous provisions at the end of the contract, often under a heading entitled “general” or “miscellaneous.” While these provisions seem harmless enough, for those transactional lawyers unfortunate enough to see 50 or 100 page contracts the subject of litigation, experience shows that crafty litigators with ample time and will to research and argue the meaning of each word in the contract …

For-Profit Public Enforcement, Max J. Minzner, Margaret H. Lemos

Faculty Scholarship

This Article investigates an important yet undertheorized phenomenon: financial incentives in public enforcement. Each year, public enforcers assess billions of dollars in penalties and other financial sanctions for violations of state and federal law. Why? If the awards in question were the result of private lawsuits, the answer would be obvious. We expect that private enforcers - the victims of law violations and their fee-seeking attorneys - will attempt to maximize financial recoveries. Record recoveries come as no surprise in private class actions, for example. But dollar signs are harder to explain in the context of public enforcement. Unlike private …

Creating And Selling Films & Printed Documents: The Challenge Of The Joint Authorship And First Sale Doctrines, Sherri L. Burr

Faculty Scholarship

The joint creation of intellectual property can arise in many forms, and legal issues may arise concerning joint authorship. The selling of intellectual property can also take different forms, which may invoke Copyright laws' first sale doctrine or licensing. This article takes a critical look at the copyright provisions governing joint authorship and first sales of work, in particular the influence of these doctrines on film and the printed word. Joint film products begin with idea treatments and screenplays that may be co-written with two or more authors, and include directors who oversee the making of the entire film, and …

Think Like A (Mindful) Lawyer: Incorporating Mindfulness And Professional Identity Into The First-Year Curriculum, Nathalie Martin

Faculty Scholarship

In this article, I add to the existing mindfulness literature by discussing other ways that law teachers might consider incorporating mindfulness and emotional intelligence into one or more of their classes. I also discuss the related idea of helping students develop a professional identity. Next, I focus on providing these tools in a first-year mandatory class and then attempt to provide a rationale, and a roadmap, for doing this. After explaining briefly what mindfulness and emotional intelligence are, I review literature from other disciplines on the benefits of mindfulness practice and emotional intelligence training. Next, I discuss how this training …

Interest Rate Caps, State Legislation, And Public Opinion: Does The Law Reflect The Public’S Desires?, Nathalie Martin

Faculty Scholarship

Because New Mexico has one of the highest consumer usage rates and highest concentrations of payday and title loan shops in the nation,2 we thought it would be an ideal place to measure the public’s knowledge of and interest in these ubiquitous loans. We also measured knowledge of interest rate caps in the context of credit cards, as a point of comparison. Our data are consistent with that of previous studies showing that the general public overwhelmingly supports interest rate caps both in general and for certain types of loans. More uniquely, we also found that many consumers are unaware …

Mental Retardation And The Death Penalty: The Need For An International Standard Defining Mental Retardation, Allison Freedman

Faculty Scholarship

I. INTRODUCTION

Within the international community, there is a consensus against the imposition of the death penalty on individuals with mental retardation. The United States Supreme Court and several international human rights bodies have recognized that individuals with mental retardation should not be subject to the death penalty. Additionally, most countries maintain that individuals who are insane or mentally retarded are shielded from execution. However, reports of individuals with mental retardation who are facing the death penalty continue to surface.

One reason for this may be the lack of an international standard defining mental retardation. There is currently great variation …

Exposing The Institutions That Mask Us, Christine Zuni Cruz

Faculty Scholarship

I am going to stand in tribute to Professor Montoya and her family and to the Chicana/o-Latina/o Law Review, which brings us to this point where we are considering and celebrating Professor Montoyas Mascaras, Trenzas, Y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, twenty years after its initial publication. Professor Montoya's article is timeless.

Sufficiency Of The Evidence Does Not Meet Daubert Standards: A Critique Of The Green-Sanders Proposal, Aaron Twerski, Lior Sapir

Faculty Scholarship

No abstract provided.

The Birth Of The Greenback, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Future War, Future Law, Eric Talbot Jensen

Faculty Scholarship

Advancing technology will dramatically affect the weapons and tactics of future armed conflict, including the “places” where conflicts are fought, the “actors” by whom they are fought, and the “means and methods” by which they are fought. These changes -- including continuing cyber conflict, increased use of autonomous weapon systems, the development of nanotechnology, and evolving virology capabilities -- will stress even the fundamental principles of the law of armed conflict, or LOAC. While it is likely that the contemporary LOAC will be sufficient to regulate the majority of future conflicts, the international community must be willing to evolve the …

Guantanamo And The End Of Hostilities, Eric Talbot Jensen

Faculty Scholarship

Detainees in the War on Terror have been at Guantanamo Bay for over a decade. The justification for these detentions has been, at least in part, the on-going hostilities in Afghanistan. However, President Obama’s announcement in his 2013 State of the Union address that “By the end of [2014] our war in Afghanistan will be over” may undercut the continuing detention authority for at least some of these Guantanamo detainees. This paper analyzes the legal doctrine of release and repatriation in light of President Obama’s announcement and concludes that the President’s determination that hostilities have concluded between specific Parties to …

Brief For The American Association On Intellectual And Developmental Disabilities, The Arc Of The United States, The National Disability Rights Network, Disability Rights Florida, And The Bazelon Center For Mental Health Law As Amicus Curiae, April Land, James W. Ellis, Ann M. Delpha, Carol M. Suzuki, Steven K. Homer

Faculty Scholarship

Question Presented: Whether the Florida scheme for identifying mentally retarded defendants in capital cases violates Atkins v. Virginia, 536 U.S. 304 (2002). Summary of Argument: In Atkins, this Court concluded that a national consensus had developed against the execution of persons with mental retardation and that such executions violated the Eighth Amendment. The Court also stated that the national consensus suggests that some characteristics of mental retardation, such as disabilities in the areas of reasoning, judgment, and control of impulses, undermine the procedural protections of our capital punishment jurisprudence and can jeopardize the reliability and fairness of capital proceedings against …

A Technological Approach To Reforming Japan's Consumption Tax, Richard Thompson Ainsworth

Faculty Scholarship

Significant change has been forecast for the Japanese Consumption Tax. Revenue needs are pressing, and the Consumption Tax appears to be underutilized. Should the rate be doubled from 5% to 10%, or more? If so, will rate increases necessitate further structural changes – recasting this annual credit-subtraction levy into a European style credit-invoice VAT? These options have not proven to be politically palatable, but they are directions that have been under active consideration.

On October 1, 2013 the Japanese Cabinet Office announced that the Consumption Tax would rise from 5% to 8% effective April 1, 2014. The rate will increase …

Testing Pathways Linking Exposure To Community Violence And Sexual Behaviors Among African American Youth, Dexter R. Voisin

Faculty Scholarship

Exposure to community violence and HIV sexual risks are two major public health concerns among youth. This study tests various pathways linking exposure to community violence and sexual behaviors among African American adolescents. Using a sample of 563 (61 % females) African American youth attending high school we examined whether problematic psychological symptoms, low school engagement, and/or negative perceptions of peer norms about safer sex functioned as pathways linking exposure to community violence and sexual behaviors. Major findings indicated that, for boys, the relationship between exposure to community violence and sexual début and sexual risk behaviors were linked by aggression. …

Casual Ostracism: Jury Exclusion On The Basis Of Criminal Convictions, Anna Roberts

Faculty Scholarship

No abstract provided.

Reanalyzing Cost-Benefit Analysis: Toward A Framework Of Function(S) And Form(S), Robert B. Ahdieh

Faculty Scholarship

The analysis herein arises from the collision course between the sweeping reforms mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and a single sentence of the U.S. Code, adopted nearly fifteen years earlier and largely forgotten ever since. Few were likely thinking of Section 106 of the National Securities Market Improvement Act when the Dodd-Frank Act was enacted on July 21, 2010. As applied by the D.C. Circuit less than a year later in Business Roundtable v. SEC, however, that provision’s peculiar requirement of cost-benefit analysis could prove the new legislation’s undoing.

To help navigate …

Virotech Patents, Viropiracy, And Viral Sovereignty, Peter K. Yu

Faculty Scholarship

Although there are many important intellectual property and public health developments in the United States, the domestic debate remains surprisingly disconnected from the international debate. To help bridge this disconnect, this Article discusses the interrelationship between intellectual property and public health in the context of communicable diseases. This type of disease is intentionally picked to highlight how developments abroad could easily affect what happens at home, and vice versa.

The first half of this Article recounts three distinct stories about viruses responsible for AIDS, SARS, and the avian influenza (H5N1). The first story focuses on the ongoing developments within the …

The Case For A Legislative Amendment Against Accessory Copyright For Grey Market Products: What Can The U.S. Learn From Singapore And Australia, Irene Calboli, Mary Lafrance

Faculty Scholarship

In this article, we suggest that the U.S. Congress could implement a legislative provision prohibiting copyright protection for incidental product features in the context of parallel imports. The U.S. would not be the first country to implement such a provision. In 1994, Singapore pioneered the adoption of a similar provision, which was introduced as an amendment to the SG 1987 Copyright Act. A few years later, in 1998, Australia incorporated a similar amendment to its Aust. Copyright Act 1968. In this article, we analyse in detail the Singapore and Australia provisions and, building upon these provisions, we suggest …

Diversity May Be Justified, Anita Bernstein

Faculty Scholarship

No abstract provided.

Government Nonedorsement, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Sunshine, Stakeholders, And Executive Pay: A Regression-Discontinuity Approach, Brian D. Galle, David I. Walker

Faculty Scholarship

We evaluate the effect of highly salient disclosure of private college and university president compensation on subsequent donations using a quasi-experimental research design. Using a differences-in-discontinuities approach to compare institutions that are highlighted in the Chronicle of Higher Education’s annual "top 10" list of most highly-compensated presidents against similar others, we find that appearing on a top 10 list is associated with reduced average donations of approximately 4.5 million dollars in the first full fiscal year following disclosure, despite greater fundraising efforts at "top 10" schools. We also find some evidence that top 10 appearances slow the growth of compensation, …

Parody As Brand, Stacey Dogan, Mark Lemley

Faculty Scholarship

Courts have struggled with the evaluation of parody under trademark law. While many trademark courts have protected parodies, there are a surprising number of cases that hold obvious parodies illegal. The problem is particularly severe with respect to parodies that are used to brand products, a growing category. The doctrinal tools that generally protect expressive parodies often don't apply to brand parodies. Our goal in this paper is to think about what circumstances (if any) should lead courts to find parody illegal. We conclude that, despite courts’ increasing attention to speech interests in recent years, the law’s treatment of parody …

Federal Banks And Federal Jurisdiction In The Progressive Era, Larry Yackle

Faculty Scholarship

This is a case study of the Supreme Court’s classic decision in Smith v. K.C. Title & Trust Co. A stockholder challenged the constitutionality of the Farm Loan Act of 1916, which authorized federal banks to issue tax-exempt bonds to raise funds for loans to farmers. The case is best known for its holding that a federal court could entertain the suit because it arose “under the Constitution” and for Justice Holmes’ argument, in dissent, that federal jurisdiction was not established because state law created the “cause of action.”

This study is the first to go beyond the jurisdictional issue …

To Say What The Law Is: Rules, Results, And The Dangers Of Inferential Stare Decisis, Adam N. Steinman

Faculty Scholarship

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions—Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal—turn this conventional …

A Solution Hiding In Plain Sight: Special Education And Better Outcomes For Students With Social, Emotional, And Behavioral Challenges, Yael Cannon, Michael J. Gregory, Julie Waterstone

Faculty Scholarship

This Article will contribute to the ongoing dialogue about special education and the IDEA in two ways. First, it will describe patterns that have emerged from our work with individual children and families that shed light on how common IDEA implementation failures increase the risk of poor outcomes for students with social, emotional and behavioral challenges. Critiques of the law and proposals to amend it should be grounded in an understanding of exactly how and why it is falling short of meeting its promise to these children. Our hope is that mapping the common implementation failures we have seen in …

Carcieri: Bringing Certainty To Trust Land Acquisitions, Kevin Washburn

Faculty Scholarship

No abstract provided.