Digital Commons Network^™

Constitutional Theory And The Future Of The Unitary Executive, Sotirios Barber, James E. Fleming

Faculty Scholarship

In The Constitution in Wartime: Beyond Alarmism and Complacency, Mark Tushnet distinguishes two voices: "alarmists who see in every action taken by the Bush [A]dministration a portent of gross restrictions on the civil liberties of all Americans, and administration shills who see in those actions entirely reasonable, perhaps even too moderate, accommodations of civil liberties to the new realities of national security."1 Tushnet's volume contains essays, including one by us,2 which he judges to lie "beyond alarmism and complacency" (or perhaps between alarmism and complacency). But critics of the Bush Administration's theory of the unitary executive may be alarmed by …

Promises And Privacy: Promissory Estoppel And Confidential Disclosure In Online Communities, Woodrow Hartzog

Faculty Scholarship

Online communities often provide significant support for those who seek it. Yet in order to take advantage of that support, users must frequently disclose sensitive information such as dating profiles, candid thoughts, or even past substance abuse. What happens when other community members fail to keep this potentially harmful information confidential? Traditional remedies will likely fail to protect people when members of an online community violate the confidentiality of other members. In this Article, I contend that promissory estoppel, an equitable doctrine designed to protect those who detrimentally rely on promises, can ensure confidentiality for members of online communities. The …

Protecting Hiv Positive Women’S Human’S Rights: Recommendations For The Obama Administration, Aziza Ahmed, Catherine Hanssens, Brook Kelly

Faculty Scholarship

To bring the United States in line with prevailing human rights standards, its National HIV/AIDS Strategy will need to explicitly commit to a human rights framework when developing programmes and policies that serve the unaddressed needs of women. This paper focuses on two aspects of the institutionalized mistreatment of people with HIV: 1) the criminalization of their consensual sexual conduct; and 2) the elimination of informed and documented consensual participation in their diagnosis through reliance on mandatory and opt-out testing policies. More than half of US states have HIV-specific laws criminalizing the consensual sexual activity of people with HIV, regardless …

Sequential Innovation, Patents, And Imitation, James Bessen, Eric Maskin

Faculty Scholarship

How could such industries as software, semiconductors, and computers have been so innovative despite historically weak patent protection? We argue that if innovation is both sequential and complementary--as it certainly has been in those industries--competition can increase firms' future profits thus offsetting short-term dissipation of rents. A simple model also shows that in such a dynamic industry, patent protection may reduce overall innovation and social welfare. The natural experiment that occurred when patent protection was extended to software in the 1980?s provides a test of this model. Standard arguments would predict that R&D intensity and productivity should have increased among …

Foreword – Will Hpv Vaccines Prevent Cervical Cancers Among Poor Women Of Color?: Global Health Policy At The Intersection Of Human Rights And Intellectual Property Law, Kevin Outterson

Faculty Scholarship

Cervical cancer is a disease of social inequality. Women with access to effective screening and treatment rarely die from cervical cancer. The burden of cervical cancer mortality falls most heavily among the poorer women of the world. Cervical cancer starkly illustrates global inequality across race, sex and class. Cervical cancer disproportionately kills poor women of color. The HPV vaccine is a triumph of science.

Quasi-Colonial Bodies: An Analysis Of The Reproductive Lives Of Poor Black And Racially Subjugated Women, Khiara M. Bridges

Faculty Scholarship

This Article analyzes the relationship between the struggle for the recognition of Black women's reproductive rights in the United States and the fight for racial justice. Specifically, it argues that the problematization of poor Black women's fertility--evidenced by the depiction of single Black motherhood as a national crisis, the condemnation of poor Black women who rely on public assistance, and the portrayal of their children as an embryonic "criminal class"--ought to be understood as a form of contempt for Black women's reproductive rights. Differently stated, the lack of acknowledgment in legal, political, and popular discourse that motherhood is a legitimate …

Stark Vs. Speier: A Comparison Of Federal And California Physician Self-Referral Laws, R. Gregory Cochran

Faculty Scholarship

No abstract provided.

Foreword: Poverty Law Issue, Ann Juergens

Faculty Scholarship

This Poverty Law Issue provides testimony as to why and how the legal profession, the government, and society can better provide justice for people of small means. Overall, this Poverty Law Issue contributes to understanding how we may ensure that the difficulty of poverty borne by our fellow citizens does not become compounded by injustice. For when justice is compromised for one group, its integrity as a whole may rightly be questioned.

Legal Research Assessment, Simon Canick

Faculty Scholarship

Legal research instructors seek to provide their students with a working knowledge of important research tools, strategies with which to develop a rational research plan, and the skill to conduct research efficiently, among other things. A well-conceived legal research class may utilize short-answer assignments, quizzes, and scavenger hunt exercises as a means to establish a baseline of knowledge with critical sources; a series of research problems, with grading based upon students' ability to describe a coherent and logical progression; and a pathfinder or process-oriented final exam, all depending on the instructor's goals. Ultimately, the variety of available assessment tools suggests …

Foreword: Assisted Reproductive Technology And The Law, Mary P. Byrn

Faculty Scholarship

This foreword introduces Issue 2: Assisted Reproductive Technology and the Law of the 35th Volume of the William Mitchell Law Review. It begins by outlining the author's personal experience with ART, and contrasts her reasoning for using ART with the traditional need for ART. Finally, it lists some of the many legal questions yet to be conclusively answered.

A Crooked Picture: Re-Framing The Problem Of Child Sexual Abuse, Eric S. Janus

Faculty Scholarship

This article discusses the problem of ending child sexual abuse using an allegory explaining that certain types of punitive solutions as solving the river "downstream", or in problem-solving mode, as opposed to "upstream", or in prospective problem avoidance. The thesis of this brief article is that our public policy is focused too far downstream. We rightly condemn child sexual abuse, but our public discourse frames the issue in a way that misdirects our public policy towards downstream solutions. If we truly want to protect our children from sexual abuse and end the cycle of violence, we need to reframe the …

The Definitional Hub Of E-Commerce: "Record", Christina L. Kunz

Faculty Scholarship

This Article is a drafting history and a white paper on “record,” setting out the ABA's Working Group on Electronic Writings and Notices' (WG) deliberations and choices, the WG's interactions with concurrent and subsequent UCC redraft committees, the principles and policies underlying the WG's final decisions, and uses of “record” in subsequent statutes.

Two Decades Of "Alternative Entities": From Tax Rationalization Through Alphabet Soup To Contract As Deity, Daniel S. Kleinberger

Faculty Scholarship

This essay: (i) puts into perspective the past 20 years of developments in the U.S. law of limited liability companies (LLCs), limited liability partnerships (LLPs), and limited liability limited partnerships (LLLPs); (ii) explains how a movement toward tax rationalization has been transformed into a palace coup aimed at fiduciary duty (a fundamental tenet of the U.S. law of closely held businesses); and (iii) criticizes both conceptually and pragmatically efforts to "kill Cardozo" and worship "freedom of contract."

A Return To Common Sense: Protecting Health, Safety, And The Environment Through 'Pragmatic Regulatory Impact Analysis', Rena I. Steinzor, Amy Sinden, Sidney A. Shapiro, James Goodwin

Faculty Scholarship

Health and safety regulations have a more powerful impact on the quality of life in America than any other affirmative decision the government makes, except perhaps decisions to go to war or pull in the social safety net. To a great extent, the purity of the food we eat and all the medicines we take, the quality of the air we breathe and the water we drink, the safety of industrial workplaces, and the preservation of the myriad natural systems that support life as we know it are dependent on how effectively government polices the side effects of manufacturing. Yet …

The Hidden Human And Environmental Costs Of Regulatory Delay, Catherine O'Neill, Amy Sinden, Rena I. Steinzor, James Goodwin, Ling-Yee Huang

Faculty Scholarship

Each year dozens of workers are killed, thousands of children harmed, and millions of dollars wasted because of unjustifiable delays in federal regulatory action. Such delays in regulatory action have become commonplace, part of the wallpaper of Washington’s regulatory process for the protector agencies—the Consumer Product Safety Commission (CPSC), EPA, the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), and OSHA. Despite its significance, the problem of regulatory delay and the costs it generates has been virtually ignored in the debate over the general wisdom of the U.S. regulatory system over the last 30-plus years. Opponents …

Electronic Contracting Cases 2008-2009, Juliet M. Moringiello, William L. Reynolds

Faculty Scholarship

In this survey, we review electronic contracting cases decided between June 15, 2008 and June 15, 2009. During that period we found that there was not much action on the formation by click-wrap and browse-wrap front. We have previously observed that the law of electronic contracts has matured, and the fact that there have not been any decisions on whether click-wrap and browse-wrap are effective ways of forming contracts reflects that observation. This year brought us three modification cases, two cases in which a party alleged that it was not bound to the offered terms because an unauthorized party agreed …

Diminishing Probable Cause And Minimalist Searches, Kit Kinports

Faculty Scholarship

This paper comments on recent Supreme Court opinions that have used phrases such as "reasonable belief" and "reason to believe" when analyzing intrusions that generally require proof of probable cause. Historically, the Court used these terms as shorthand references for both probable cause and reasonable suspicion. While this lack of precision was unobjectionable when the concepts were interchangeable, that has not been true since Terry v. Ohio created a distinction between the two standards. When the Justices then resurrect these terms without situating them in the dichotomy between probable cause and reasonable suspicion, it is not clear whether they are …

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Faculty Scholarship

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

Building The Civilization Of Arbitration - Introduction, Thomas E. Carbonneau

Faculty Scholarship

The U.S. Supreme Court's work product has generated a large and growing arbitration bar. It also has finally begun to stimulate a greater volume of academic activity on the topic of arbitration. The work of legal practitioners and academics,along with the courts' decisional law, are "Building a Civilization of Arbitration" that codifies advances and grapples with the controversial aspects of law-in-the making.The Penn State Dickinson School of Law takes great pride in welcoming a distinguished group of lawyers and law teachers to the pages of its Law Review.They are the leaders in the field of arbitration. Their contributions identify the …

Judicial Approbation In Building The Civilization Of Arbitration, Thomas E. Carbonneau

Faculty Scholarship

This article describes and assesses the work of three national courts in regard to arbitration. The English experience demonstrates that judicial diffidence toward arbitration and concomitant reverence for the cohesion of substantive law can hamper the acceptance and function of arbitration within the legal system. The French and American experiences attest to a contradistinctive use of judicial authority in regard to arbitration. In both legal systems, the courts have been instrumental to the elaboration of a receptive and accommodating law on arbitration. In these legal systems, legislative enactments are used as a springboard for developing a judicial policy and decisional …

Identification, Individualization, Uniqueness, David H. Kaye

Faculty Scholarship

Criminalists and many forensic scientists concerned with the identification of trace evidence have distinguished between identification and individualization, but they have not distinguished as precisely between individualization and uniqueness. This paper clarifies these terms and discusses the relationships among identification, individualization, and uniqueness in forensic-science evidence.

Arguments In Favor Of The Triumph Of Arbitration, Thomas E. Carbonneau

Faculty Scholarship

Arbitration is not just another trial procedure. It epitomizes a practical understanding of the purpose and value of adjudicatory procedures. It poses a substantial challenge to adversarial litigation by exposing its underlying irrationality and its destructive impact upon society. It guarantees the rule of law domestically and internationally through affordable access, expedited proceedings, expertise, and bridging the gap between national legal systems. It is a valuable institution that should not become a pawn in the tired and unimaginative political discourse that substitutes 'talking points' for genuine reflection and debate. The gravamen of the current attack on arbitration is not the …

Evaluating Legal Activism: A Response To Rosenberg, Dara Purvis

Faculty Scholarship

Earlier this year, Gerald Rosenberg updated his canonical work The Hollow Hope to incorporate the battles over same-sex marriage as, in his opinion, further support for his theory that the backlash of legal activism can subvert the intended goals. This Article examines three of Rosenberg’s central claims and, by questioning their premises with further evidence from the history of the same-sex marriage movement, roils the waters of whether the litigational and political record of the same-sex marriage movement bolsters or weakens Rosenberg’s thesis. The Article first questions Rosenberg’s claim that activists seeking to advance same sex marriage erroneously chose the …

Lawyers Without Borders, Catherine A. Rogers

Faculty Scholarship

Professional regulation of attorneys is still attempting to catch up with the burgeoning international legal profession, which until recently has been wholly unregulated. The primary effort has been through revisions to Model Rule 8.5 to extend the reach of the Rule to international cases and professional activities in foreign countries. Because Rule 8.5 was drafted for domestic multi-jurisdiction practice, however, it is based on assumptions about territoriality and the historical relationship between the jurisdiction of tribunals and the licensing of attorneys that are simply inapposite in international settings. As a result, applying Rule 8.5 to international tribunals and international advocacy …

Lou Lowenstein: An Enduring Legacy, David M. Schizer

Faculty Scholarship

It was inspiring to know Lou Lowenstein, and a great privilege to have him as a colleague, mentor, and friend. Lou was proof of the idea that there is no necessary correlation between excellence and ego, and that the highest of achievers can be the sweetest and most decent of people. Lou's intellect and character were the gold standard. He had a brilliant analytical mind, exceptionally good judgment, a tireless work ethic, and ironclad integrity. He was forceful when he needed to be, but only when he needed to be. Lou had a warm and generous spirit, always cheerful, attentive, …

Political Control Of Federal Prosecutions: Looking Back And Looking Forward, Daniel C. Richman

Faculty Scholarship

This Essay explores the mechanisms of control over federal criminal enforcement that the administration and Congress used or failed to use during George W. Bush's presidency. It gives particular attention to Congress, not because legislators played a dominant role, but because they generally chose to play such a subordinate role. My fear is that the media focus on management inadequacies or abuses within the Justice Department during the Bush administration might lead policymakers and observers to overlook the hard questions that remain about how the federal criminal bureaucracy should be structured and guided during a period of rapidly shifting priorities …

The Use Of Force Against States That Might Have Weapons Of Mass Destruction, Matthew C. Waxman

Faculty Scholarship

The Iraq war rekindled debate – debate now further inflamed in discussions of Iran and North Korea-about the legal use of force to disarm an adversary state believed to pose a threat of catastrophic attack, including with weapons of mass destruction (WMD). Coinciding with this debate is the stark fact that intelligence about allegedly hostile states' WMD capabilities is and will remain limited.

This Article aims to develop more fully how an objective reasonableness approach to WMD capability assessments would work, and more generally how the law governing use of force should guide capability assessments. It begins in Part I …

Secret Evidence And The Due Process Of Terrorist Detentions, Daphne Barak-Erez, Matthew C. Waxman

Faculty Scholarship

Courts across many common law democracies have been wrestling with a shared predicament: proving cases against suspected terrorists in detention hearings requires governments to protect sensitive classified information about intelligence sources and methods, but withholding evidence from suspects threatens fairness and contradicts a basic tenet of adversarial process. This Article examines several models for resolving this problem, including the "special advocate" model employed by Britain and Canada, and the 'Judicial management" model employed in Israel. This analysis shows how the very different approaches adopted even among democracies sharing common legal foundations reflect varying understandings of 'fundamental fairness" or "due process," …

Conversations With Renowned Professors On The Future Of Copyright, James Boyle, Elizabeth Townsend Gard

Faculty Scholarship

No abstract provided.

Making The Leap To Management: Tips For The Aspiring And New Manager, Femi Cadmus

Faculty Scholarship

As the result of innate ability, a fortunate few are able to effortlessly transition from line positions. However, most of us need to plot the path to management astutely and with deliberation. Library professionals might also become "accidental" managers, finding themselves thrust into an unplanned and perhaps unwanted managerial position for which they were not prepared. This is particularly true in the current climate of constrained budgets characterized by restructuring, job freezes, and layoffs.