Digital Commons Network^™

The Other Marriage Equality Problem, Linda C. Mcclain

Faculty Scholarship

This article introduces the term “the other marriage equality problem” to invite attention to a marriage equality issue distinct from gay men's and lesbians’ access to the institution of civil marriage. That problem is captured in warnings about the growing class-based marriage divide and the “diverging destinies” of children that flow from these emerging patterns of family life, sometimes referred to as “the reproduction of inequalities.” Growing family inequality warrants attention for many reasons, including the crucial role that families, along with other institutions of civil society, play in sustaining the American experiment in “ordered liberty.” Strikingly, such warnings coexist …

A Happiness Approach To Cost-Benefit Analysis, Andrew K. Jennings, Andrew T. Foglia

Faculty Scholarship

No abstract provided.

The Federal Circuit As A Federal Court, Paul Gugliuzza

Faculty Scholarship

The U.S. Court of Appeals for the Federal Circuit has exclusive jurisdiction over patent appeals and, as a consequence, the last word on many legal issues important to innovation policy. This Article shows how the Federal Circuit augments its already significant power by impeding other government institutions from influencing the patent system. Specifically, the Federal Circuit has shaped patent-law doctrine, along with rules of jurisdiction, procedure, and administrative law, to preserve and expand the court’s power in four interinstitutional relationships: the court’s federalism relationship with state courts, its separation of powers relationship with the executive and legislative branches, its vertical …

Ethical Issues In Mass Tort Plaintiffs' Representation: Beyond The Aggregate Settlement Rule, Nancy J. Moore

Faculty Scholarship

Those who have addressed ethics issues for plaintiffs’ lawyers in mass tort litigation have focused on possible reform of the aggregate settlement rule to facilitate global settlements. This Article addresses a broader range of ethical issues, including (1) application of the general conflicts of interest rule to both client-client and client-lawyer conflicts; (2) unresolved issues concerning the interpretation of the current aggregate settlement rule, including the need to disclose client names and the applicability of the rule to court-approved settlements and formula or matrix allocations; and (3) the ability of lawyers to voluntarily withdraw from representing plaintiffs who reject an …

Israel’S Rosit The Riveter: Between Secular Law And Jewish Law, Pnina Lahav

Faculty Scholarship

In the world of Judaism, the “end of men” is not in sight. Surely, tectonic plates are sliding and shifting, and a great deal of change is unfolding, but men are fighting hard to keep patriarchy alive. Deep inside, the Orthodox patriarchal man may be motivated by the sheer impulse to maintain his power, but outwardly he projects a profound commitment to his religious law, the law of God. He believes that his fight is a noble one ordained by divine will and that God is on his side. The problem is global; it appears in every Jewish community around …

Limiting “Sugary Drinks” To Reduce Obesity — Who Decides?, Wendy K. Mariner, George J. Annas

Faculty Scholarship

When a judge struck down the New York City Board of Health's partial ban on selling “sugary drinks” in containers of more than 16 fluid ounces, the reaction was swift. The Portion Cap Rule was widely viewed as a signature accomplishment of Mayor Michael Bloomberg's third term as the “public health mayor,” and he vowed to appeal, saying, “I've got to defend my children, and yours, and do what's right to save lives. Obesity kills.” But the question before the judge was not about the health risks posed by obesity or even the relationship between obesity and access to large …

Bullying Prevention And Boyhood, Katharine B. Silbaugh

Faculty Scholarship

A desire to reduce bullying in schools and to create safer and healthier school cultures has driven an anti-bullying movement characterized by significant reform in school programs and practices, as well as legislative reform and policy articulation in every state. A desire to improve school outcomes for boys has generated a number of programmatic proposals and responses in public and private education. Most notably, single-sex programming in public schools has been facilitated by the 2006 change to Title IX regulations setting out the criteria for permissible single-sex public school programs. These two recent movements in K-12 schooling spring from new …

Resistance Is Not Futile: Harnessing The Power Of Counter-Offensive Tactics In Legal Persuasion, Peter Reilly

Faculty Scholarship

A core competency for people working in law or business is the ability to influence and persuade: People need to become expert at getting others to agree, to go along, and to give in. The potential “targets” of one’s influence throughout a given workday are seemingly endless and include clients and customers, co-counsel, opposing counsel, supervisors, direct reports, contractors, subcontractors, consultants, secretaries, judges, juries, witnesses, police officers, court personnel, and others. Moreover, that influence is largely exerted through words spoken and behaviors exhibited within the context of a negotiation. And yet, leading academics have argued that the vast majority of …

Five Oft-Repeated Questions About China's Recent Rise As A Patent Power, Peter K. Yu

Faculty Scholarship

Policymakers, industries, commentators and the media have widely criticized China for its failure to adequately protect intellectual property rights. In recent years, however, the discourse on intellectual property developments in China has slowly begun to change. Such a change is the most notable in the patent area. Today, China is already among the top five countries filing patent applications through the Patent Cooperation Treaty (PCT). In 2011, the number of PCT applications increased by 33.4% to 16,406, earning China the fourth spot, behind only the United States, Japan and Germany. Among all the applicants, ZTE Corp. and Huawei Technologies had …

Youth In Mixed-Income Communities Replacing Public Housing Complexes: Context, Dynamics And Response, Mark L. Joseph

Faculty Scholarship

Several of the theories that drive the rationale for mixed-income development as a response to urban poverty and the problems of traditional public housing are directly concerned with children and youth. These include assumptions about the possible "role modeling" effects of living among working and middle class people as well as social capital arguments, in which children may act as a kind of "bridge" to foster relationships among adults with children. In spite of these assumptions, young people - particularly older adolescents and young adults - are often at the contentious core of how problems of social control and organization …

E-Verify Can Stop Refund Fraud, Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

Two issues in the current Washington debates need to be linked. E-Verify, the Internet-based database that allows employers to verify an employee’s work eligibility that is at the center of the immigration debate, is the ideal tool for stopping tax refund fraud. All that is needed is a digital signature of the E-Verify result, and the mandatory inscription of this signature on tax documents to make them self-authenticating.

The central features of this proposal have been made before. The technology it requires is tried and proven. The processes and procedure it advocates are in place and effectively deployed in foreign …

The Uncertain Impact Of Wal-Mart V. Dukes, Michael Harper

Faculty Scholarship

It has been less than two years since the Supreme Court’s controversial decision in Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). During this short period the Court’s opinion has been interpreted by numerous lower courts. It also, not surprisingly, has been the subject of a substantial amount of commentary in law reviews and numerous proposals for legislative reform to restore a promise of class action challenges to employment discrimination that the Dukes decision allegedly shattered. Drawing from this commentary, I would choose these two very different articles as useful guides for tracking the impact of Dukes on employment discrimination class …

The Death Of Al-ʿAbbās B. Al-MaʾMūn And A “Thwarted” Coup D’État, John P. Turner

Faculty Scholarship

This article focuses on the point at which the slave soldiers of al-Muʿtaṣim (r. a.h. 218–227/833–842 c.e.) rose to the political forefront and came to dominate the holder of the Caliphal seat. It is a study of the mechanisms by which the center of the state, and more specifically the Caliph, came to be their captives.

Removing Removal's Unanimity Rule, Jayne Ressler

Faculty Scholarship

No abstract provided.

2012 Survey Of Juvenile Law, Michael J. Dale

Faculty Scholarship

No abstract provided.

A Global Approach To Legal Writing And Legal Research: An Evolutionary Process, Diane Edelman

Faculty Scholarship

No abstract provided.

Global Legal Responses To Prenatal Gender Identification And Sex Selection, Seema Mohapatra

Faculty Scholarship

Over one hundred million women in the world are estimated to be “missing” from the world’s population due to some form of gendercide. Gendercide exists on almost every continent and affects every class of people. Gendercide has traditionally taken the form of sex-selective abortion, infanticide, or death caused by neglect. Sex-selective abortions occur when a pregnancy is terminated due to the sex of the fetus. In the last few decades, technological advances have allowed potential parents to identify the gender of their baby early in the first trimester. Recently, with the advent of newer technology that allows one to choose …

What Would Be The Story Of Alice And Leonard Rhinelander Today?, Angela Onwuachi-Willig

Faculty Scholarship

On November 8, 2011, I presented this lecture as part of the annual Brigitte M. Bodenheimer Family Law Lecture Series at the University of California, Davis School of Law. I extend sincere thanks to the Bodenheimer family for endowing this special lecture. I feel honored to be a small part of this wonderful lecture series in family law. I feel particularly grateful because the University of California, Davis School of Law was my "birthplace" as a professor. Dean Rex Perschbacher, then Associate Dean Kevin Johnson, and the law school faculty welcomed me into academia by giving me my first job …

On Derrick Bell As Pioneer And Teacher: Teaching Us How To Have The Nerve, Angela Onwuachi-Willig

Faculty Scholarship

No abstract provided.

Just Undercompensation: The Idiosyncratic Premium N Eminent Domain, Brian A. Lee

Faculty Scholarship

No abstract provided.

Green Leasing - It's Not Just About Capital Expenditures, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Jack Balkin's Rich Historicism And Diet Originalism: Health Benefits And Risks For The Constitutional System, Neil S. Siegel

Faculty Scholarship

In Living Originalism, Jack Balkin reasons from two points of view — the perspective of the constitutional system as a whole and the perspective of the faithful participant in that system. First, he provides a systemic account of constitutional change, which he calls “living constitutionalism.” Second, he offers an individual approach to constitutional interpretation and construction, which he calls “framework originalism” or “the method of text and principle.” Reasoning from the systemic perspective, Balkin develops a compelling theory of the processes of constitutional change. Balkin may insufficiently appreciate, however, that public candor about — or even deep awareness of — …

Teaching Westlawnext: Next Steps For Teachers Of Legal Research, Ronald E. Wheeler

Faculty Scholarship

As a follow up to his earlier piece titled "Does WestlawNext Really Change Everything: The Implications of WestlawNext on Legal Research," Professor Wheeler here explores strategies for teaching students to effectively research using the WestlawNext legal research platform. He focuses on challenging law librarians and other teachers of legal research to embrace change, to innovate and to devise research exercises that highlight both the advantages and the alleged pitfalls of WestlawNext. In particular, Professor Wheeler discusses source selection, filters, addressing the volume of results, esoteric content, and Boolean searching.

Property: A Bundle Of Sticks Or A Tree?, Anna Di Robilant

Faculty Scholarship

In the United States, property debates revolve around two conceptual models of property: the ownership model, originally developed in Europe and now revisited by information theorists and classical liberal theorists of property, and the bundle of rights model, invented in the United States by Hohfeld and the Realists. This article retrieves an alternative concept of property, the tree concept of property. The tree concept of property was developed by European property scholars between 1900 and the 1950s, as part of Europe’s own “realist” moment. It envisions property as a tree: the trunk representing the owner’s right to govern the use …

Analyzing The Function Of Cartilage Replacements: A Laboratory Activity To Teach High School Students Chemical And Tissue Engineering Concepts, Julie N. Renner

Faculty Scholarship

A cartilage tissue engineering laboratory activity was developed as part of the Exciting Discoveries for Girls in Engineering (EDGE) Summer Camp sponsored by the Women In Engineering Program (WIEP) at Purdue University. Our goal was to increase awareness of chemical engineering and tissue engineering in female high school students through a laboratory activity that incorporated a number of National Research Council learning objectives for science and engineering. This manuscript describes the context of the activity, detailed instructions to perform the activity, and a summary of the feedback. As a result of the activity, participants knew more about the chemical engineering …

Are People Probabilistically Challenged?, Alex Stein

Faculty Scholarship

No abstract provided.

Life In The Balance: Judicial Review Of Abortion Regulations, Khiara Bridges

Faculty Scholarship

Since the Supreme Court’s decision in Roe v. Wade, scholars have been preoccupied with the test that ought to be applied to abortion regulations. Debate has swirled around the question of whether laws that burden the abortion right should be reviewed with strict scrutiny, rational basis review, or some other multi-factor or categorical test and at what point during pregnancy these tests are appropriate. Moreover, since Planned Parenthood v. Casey, in which the Court replaced Roe’s trimester framework with the undue burden standard, commentators have questioned the propriety of this new test. This Article argues that the most important change …

From Romer V. Evans To United States V. Windsor: Law As A Vehicle For Moral Disapproval In Amendment 2 And The Defense Of Marriage Act, Linda C. Mcclain

Faculty Scholarship

This article considers the intertwined fates of Romer v. Evans and the Defense of Marriage Act (DOMA), which both date back to 1996. In United States v. Windsor, Justice Kennedy, writing for the majority, struck down Section 3 of DOMA, using Romer as a template. This article reflects on Romer as it bears on the use of law as a vehicle to express morality, in particular, “moral disapproval of homosexuality” and moral approval -- and the defense and nurture -- of “traditional, heterosexual marriage.” Proponents of Amendment 2 (struck down in Romer, in an opinion written by Justice Kennedy) and …

Notice Failure And Notice Externalities, Peter Menell, Michael J. Meurer

Faculty Scholarship

Economic theory suggests that notice plays a critical role in resource development. Resource developers will be disinclined to make significant investments without reasonable confidence that their projects will not violate the rights of others. Land rights systems and institutions generally provide reliable notice at relatively modest cost, enabling exclusionary rights to encourage efficient real estate development. Property boundaries, right structures, and neighbors with whom resource developers might have to negotiate conflicts can usually be ascertained relatively easily. Furthermore, zoning institutions generally provide relatively prompt, low cost, and reliable dispute resolution before developers need to expend substantial resources. Therefore, land claims …

Next Generation Of Civil Rights Lawyers: Race And Representation In The Age Of Identity Performance, Anthony V. Alfieri, Angela Onwuachi-Willig

Faculty Scholarship

This Book Review addresses two important new books, Professor Kenneth Mack’s Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati’s Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to both explore the challenges that face the next generation of civil rights lawyers and offer suggestions on how this next generation of civil rights lawyers can overcome these difficulties. Overall, this Book Review highlights one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to perform their identities in ways …