Digital Commons Network^™

Book Review: "Human Dignity And Bioethics: Essays Commissioned By The President's Council On Bioethics, Leslie Meltzer Henry

Faculty Scholarship

The President’s Council on Bioethics frequently invokes -- but never defines -- the notion of human dignity in its reports on caregiving, stem-cell research, cloning, assisted reproduction, and biomedical enhancement. This article argues that the Council employs the language of dignity so loosely in its policy recommendations that the word is often nothing more than a rhetorical trump card to reject policies at odds with the Bush administration’s perspective. This article examines how the Council uses the word dignity; explores competing philosophical, theological, and political understandings of the word; and suggests ways in which a more productive dialogue about dignity's …

The Impact Of The Sarbanes-Oxley Act On Non-Shareholder Constituents: A Silver Lining, But Will It Endure?, Lisa M. Fairfax

Faculty Scholarship

No abstract provided.

Are Health Care Conflicts All That Different? A Contrarian View, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Taking Care Of John Marshall's Political Ghost, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Treating Pain V. Reducing Drug Diversion And Abuse: Recalibrating The Balance In Our Drug Control Laws And Policies, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Bargaining With A Hugger: The Weaknesses And Limitations Of A Communitarian Conception Of Legal Dispute Bargaining, Or Why We Can't All Just Get Along, Robert J. Condlin

Faculty Scholarship

The communitarian conception of dispute-bargaining now popular with legal academics presupposes a world in which people are always at their best. Clients and lawyers share information about themselves and their situations candidly and honestly, construct agreements from the perspective of their common interests and resolve differences according to objectively derived and jointly agreed upon substantive standards. This is supposed to take the hard edge off their disputing and make it less antagonistic, less competitive, less deceptive, less manipulative and less mean-spirited than it otherwise might be. This is a wonderfully inspiring view and it would be a source of great …

Dangerous Woman: Elizabeth Key's Freedom Suit - Subjecthood And Racialized Identity In Seventheenth Century Colonial Virginia, Taunya Lovell Banks

Faculty Scholarship

Elizabeth Key, an African-Anglo woman living in seventeenth century colonial Virginia sued for her freedom after being classified as a negro by the overseers of her late master’s estate. Her lawsuit is one of the earliest freedom suits in the English colonies filed by a person with some African ancestry. Elizabeth’s case also highlights those factors that distinguished indenture from life servitude—slavery in the mid-seventeenth century. She succeeds in securing her freedom by crafting three interlinking legal arguments to demonstrate that she was a member of the colonial society in which she lived. Her evidence was her asserted ancestry—English; her …

"Every Day And In Every Way, We Are Becoming Meta And Meta:" Or How Communitarian Bargaining Theory Conquered The World (Of Bargaining Theory), Robert J. Condlin

Faculty Scholarship

Debate over the relative merits of communitarian and adversarial theories of dispute negotiation has pre-occupied legal bargaining scholarship for at least twenty years. Seen as a negotiation, this debate makes it clear that communitarians are by far the better bargainers. In a move one might think more characteristic of adversarial bargainers, communitarians changed the definition of bargaining effectiveness by reconstituting the world in which bargaining operates (the meta move of the title – in communitarian terms they “changed the game by changing the frame”), and in the process made adversarial bargaining obsolete. Many of the arguments and maneuvers used in …

Tort Arbitrage, Robert J. Rhee

Faculty Scholarship

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the operational realities of the dispute resolution process and the negligence standard. Applying a theory of bargaining based on asset pricing principles of financial economics, this Article argues that there is systematic devaluation of tort claims in the civil litigation system. This results because in essence the parties value different tort transactions, even when they are tied together in a common dispute and view the facts and laws similarly. For the party that can mitigate the risk exposure, the discount to value …

Participation And Disintermediation In A Risk Society, Robert J. Rhee

Faculty Scholarship

The chapter argues that financing extreme catastrophic loss will become more problematic as catastrophes become more frequent and severe. An effective strategy must increase the level of participation in the spreading of risk and loss. Currently, risk spreading is done largely through insurers and government as they are the default aggregators of private and public capital. An enlargement of participation may mean the disintermediation of the traditional insurance and public compensation functions, thus allowing more direct and efficient participation between those are exposed to risk and those who are willing to bear it. This chapter also argues that tax policy …

No Two-Stepping In The Laboratories: State Deference Standards And Their Implications For Improving Chevron Doctrine, Michael Pappas

Faculty Scholarship

This article examines the deference standards that the various states apply to agency statutory interpretation and analyzes the implications for the federal Chevron doctrine. First, the article surveys state standards for reviewing agencies' statutory interpretation, finding that none of the state standards exactly follows the federal Chevron test but that state standards fall into one of four categories ranging from "strong deference" to "de novo with deference discouraged." The article then examines four particular state standards in depth, discovering that states tend to use the same methods, tools, and processes for statutory interpretation despite the different announced degrees of deference. …

Reclaiming Egalitarianism In The Political Theory Of Campaign Finance Reform, Frank Pasquale

Faculty Scholarship

Recent advocacy for campaign finance reform has been based on an ideal of the democratic process which is unrealistic and unhelpful. Scholars should instead return to its egalitarian roots. This article examines how deliberative democratic theory became the main justification for campaign finance reform. It exposes the shortcomings of this deliberativist detour and instead models campaign spending as an effort to commodify issue-salience. Given this dominant function of money in politics, a more effective paradigm for reform is equalizing influence. Advocates of campaign regulation should return to the original principles of reformers; not an idealized vision of the democratic process, …

Federal Search Commission? Access, Fairness, And Accountability In The Law Of Search, Oren Bracha, Frank Pasquale

Faculty Scholarship

Should search engines be subject to the types of regulation now applied to personal data collectors, cable networks, or phone books? In this article, we make the case for some regulation of the ability of search engines to manipulate and structure their results. We demonstrate that the First Amendment, properly understood, does not prohibit such regulation. Nor will such interventions inevitably lead to the disclosure of important trade secrets.

After setting forth normative foundations for evaluating search engine manipulation, we explain how neither market discipline nor technological advance is likely to stop it. Though savvy users and personalized search may …

Internet Nondiscrimination Principles: Commercial Ethics For Carriers And Search Engines, Frank Pasquale

Faculty Scholarship

Unaccountable power at any layer of online life can stifle innovation elsewhere. Dominant search engines rightly worry that carriers will use their control of the physical layer of internet infrastructure to pick winners among content and application providers. Though they advocate net neutrality, they have been much less quick to recognize the threat to openness and fair play their own practices may pose.

Just as dominant search engines fear an unfairly tiered online world, they should be required to provide access to their archives and indices in a nondiscriminatory manner. If dominant search engines want carriers to disclose their traffic …

When Is A Battered Woman Not A Battered Woman? When She Fights Back, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

The Google Dilemma, James Grimmelmann

Faculty Scholarship

No abstract provided.

Accidental Privacy Spills, James Grimmelmann

Faculty Scholarship

No abstract provided.

Achieving Early And Substantial Greenhouse Gas Reductions Under A Post-Kyoto Agreement, John C. Dernbach

Faculty Scholarship

No abstract provided.

Climate Change Law: An Introduction, John C. Dernbach, Seema Kakade

Faculty Scholarship

No abstract provided.

Developing A Comprehensive Approach To Climate Change Policy In The United States That Fully Integrates Levels Of Government And Economic Sectors, John C. Dernbach, Thomas D. Peterson, Robert B. Mckinstry

Faculty Scholarship

No abstract provided.

Federal Climate Change Legislation As If The States Matter, John C. Dernbach, Robert B. Mckinstry,, Thomas D. Peterson

Faculty Scholarship

No abstract provided.

Harnessing Individual Behavior To Address Climate Change: Options For Congress, John C. Dernbach

Faculty Scholarship

No abstract provided.

Lawyers Hold The Key: Attacks On Judicial Independence Are Based On Ignorance And Are Best Parried By Lawyers Themselves, John L. Gedid

Faculty Scholarship

No abstract provided.

Navigating The U.S. Transition To Sustainability: Matching National Governance Challenges With Appropriate Legal Tools, John C. Dernbach

Faculty Scholarship

No abstract provided.

Symposium: Immigration Law In Pennsylvania: Policy And Practice, Jill E. Family

Faculty Scholarship

No abstract provided.

The Aspiration To Be A Catholic Social Scientist In The Eyes Of Robert Coles: The Search For Wisdom In An Information Age, Randy Lee

Faculty Scholarship

No abstract provided.

The Importance Of Professionalism, John L. Gedid

Faculty Scholarship

No abstract provided.

Trial Tips: Structure In Direct Examination Wins Cases, J. Palmer Lockard Ii

Faculty Scholarship

No abstract provided.

Playing In The Virtual Arena: Avatars, Publicity, And Identity Reconceptualized Through Virtual Worlds And Computer Games, Jon M. Garon

Faculty Scholarship

In many respects, the commercial and social interactions within virtual worlds are essentially the same as those interactions conducted face-to-face or over less engrossing technologies, however, the immersive nature of the virtual world redefines the nature of the experience. Because virtual worlds mimic their bricks-and-mortar counterparts, they exhibit commercial attributes unlike those of plays, television shows, or motion pictures. To the extent that there is commerce conducted within the medium, the historic separation between commercial conduct and expressive speech must be reconceptualized. In the first instance, such legal line drawing will necessarily be done with crude tools, so this article …

Reintermediation, Jon M. Garon

Faculty Scholarship

Jon M. Garon, Reintermediation, 2 Int. J. of Private Law 227 (2009).

The digital revolution has interrupted traditional supply chains and wholesaler relationships with manufacturers and retailers, companies are developing new methodologies to create supplier loyalty critical to control of market share. This article documents the leading strategies being utilised by companies to reassert their relevance in the value proposition for their clients and the consequences of these new business models on intellectual property law, privacy rules and influences on judicial contract interpretation. In Philip Evans and Thomas Wurster's bestselling book, Blown to Bits (Harvard Business Press, 1999), the …