Digital Commons Network^™

Hidden Foreign Aid, David Pozen

Faculty Scholarship

Few issues in global politics are as contentious as foreign aid – how much rich countries should give, in what ways, to whom. For years, it has been a commonplace that U.S. policies are stingy. The Organization for Economic Cooperation and Development (OECD) routinely ranks the United States far behind its industrialized peers in official development assistance (ODA), measured as a percentage of gross national income (GNI). An endless parade of critics has implored the government to do more; some suggest that the Bush Administration's support for the Monterrey Consensus, which sets a goal of increasing assistance to 0.7% of …

Overseer, Or "The Decider"? The President In Administrative Law, Peter L. Strauss

Faculty Scholarship

All will agree that the Constitution creates a unitary chief executive officer, the President, at the head of the government Congress defines to do the work its statutes detail. Disagreement arises over what his function entails. Once Congress has defined some element of government and specified its responsibilities, we know that the constitutional roles of both Congress and the courts are those of oversight of the agency and its assigned work, not the actual performance of that work. But is it the same for the President? When Congress confers authority on the Environmental Protection Agency to regulate various forms of …

The Pros And Cons Of Strengthening Intellectual Property Protection: Technological Protection Measures And Section 1201 Of The Us Copyright Act, Jane C. Ginsburg

Faculty Scholarship

The recent announcement (in late November 2006) of the Copyright Office's triennial rulemaking to identify "classes of works" exempt from the § 1201(a)(1) prohibition on circumvention of a technological measure controlling access to copyrighted works in part occasions this assessment of the judicial and administrative construction of this chapter of the 1998 Digital Millennium Copyright Act. The current Rulemaking appears more innovative than its predecessors, particularly in defining the exempted class of works by reference to the characteristics of the works' users. Copyright owner overreaching or misuse may also underlie the relative vigor of this Rulemaking: if producers of devices …

Wireless Carterfone, Tim Wu

Faculty Scholarship

Over the next decade, regulators will spend increasing time on conflicts between the private interests of the wireless industry and the public’s interest in the best uses of its spectrum. This report examines the practices of the wireless industry with an eye toward understanding their influence on innovation and consumer welfare.

In many respects, the mobile wireless market is and remains a wonder. Thanks to both policy and technological innovations, devices that were science fiction 30 years ago are now widely available. Over the last decade, wireless mobile has been an “infant industry,” attempting to achieve economies of scale. That …

Building Criminal Capital Behind Bars: Peer Effects In Juvenile Corrections, Patrick J. Bayer, Randi Hjalmarsson, David Pozen

Faculty Scholarship

This paper analyzes the influence that juvenile offenders serving time in the same correctional facility have on each other's subsequent criminal behavior. The analysis is based on data on over 8,000 individuals serving time in 169 juvenile correctional facilities during a two-year period in Florida. These data provide a complete record of past crimes, facility assignments, and arrests and adjudications in the year following release for each individual. To control for the non-random assignment to facilities, we include facility and facility-by-prior offense fixed effects, thereby estimating peer effects using only within-facility variation over time. We find strong evidence of peer …

A Brief History Of American Telecommunications Regulation, Tim Wu

Faculty Scholarship

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of …

Law And The Market: The Impact Of Enforcement, John C. Coffee Jr.

Faculty Scholarship

Are the U.S. capital markets losing their competitiveness? A fascinating question, but what does it mean and how can it be intelligently assessed? This Article will explore the newly popular thesis that draconian enforcement and overregulation are injuring the United States and will offer a sharply contrasting interpretation: higher enforcement intensity gives the U.S. economy a lower cost of capital and higher securities valuations. This higher intensity attracts some foreign listings, but deters others.

This Article will proceed by first mapping the marked variation in the intensity of enforcement efforts by securities regulators in selected nations and then relating these …

Technology, Competition, And Values, Frank Pasquale

Faculty Scholarship

No abstract provided.

Irrationality And Animus In Class-Of-One Equal Protection Cases, William D. Araiza

Faculty Scholarship

No abstract provided.

Attempt, Reckless Homicide, And The Design Of Criminal Law, Michael T. Cahill

Faculty Scholarship

No abstract provided.

The Empire Of Illness: Competence And Coercion In Health-Care Decision Making, Marsha Garrison

Faculty Scholarship

No abstract provided.

The Calamitous Law Of Notes, Neil B. Cohen

Faculty Scholarship

No abstract provided.

Crossing Borders: Loving V. Virginia As A Story Of Migration, Victor C. Romero

Faculty Scholarship

The struggle of binational same-gender partners today parallels the struggles of Mildred and Richard Loving during the heyday of the Civil Rights Movement - not only in the obvious parallels between race and sexual orientation as barriers to freedom, but also in the way the law uses these immutable characteristics to limit the freedom of movement. It is this freedom of movement - this migration or immigration - that I want to focus on in this essay. Lest we forget, the Lovings' story is, importantly, a story of migration: It's a story of the great lengths to which an interracial …

Cost-Based And Rules-Based Regulatory Competition: Markets For Corporate Charters In The U.S. And The E.U., Marco Ventoruzzo

Faculty Scholarship

Regulatory competition in corporate law is increasing in Europe and, not differently from what happens in the US, a market for corporate charters is developing in Europe. This article examines the differences between the US corporate law market, and the European one - to the extent that one exists. The basic idea is that, in Europe, there is a stronger competition for the (first) incorporation of rather small, closely-held corporations; while in the US a small closely-held corporation usually incorporates locally, where its shareholders and directors are located, and reincorporates - often in Delaware - when it is growing and, …

Latino Inter-Ethnic Employment Discrimination And The Diversity Defense, Tanya K. Hernandez

Faculty Scholarship

With the growing racial and ethnic diversity of the U.S. population and workforce, scholars have begun to address the ways in which coalition building across groups not only will continue to be necessary but also will become even more complex. Recent scholarship has focused on analyzing how best to promote effective coalition building. Thus far, scholars have not examined what that growing racial and ethnic diversity will mean in the context of individual racial and ethnic discrimination claims. What will antidiscrimination litigation look like when all the parties involved are non-White but nonetheless plaintiffs allege that a racial hierarchy exists …

Free Writing, Steve Thel

Faculty Scholarship

No abstract provided.

Rights As A Functional Guide For Service Provision In Homeless Advocacy Creating Healthy Communities: Ending Homelessness, Nestor M. Davidson

Faculty Scholarship

Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate important dignitary, liberty, and equality interests, as well as establish to entitlements to housing, mental health, substance abuse, and other services. This advocacy has had some success in shaping the systems that define the interaction between homeless persons and the state. Rights paradigms, however, can be undermined by the day-to-day reality of the lives of homeless individuals and families that are often shaped by profound need less for protection from the state than for meaningful support, and entitlement advocacy remains circumscribed by the reality of severely …

Repairing Family Law, Clare Huntington

Faculty Scholarship

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void, and inaugurate a larger debate about the central role of emotion in family law, by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and aggression, feel …

Unrecognized Right Of Criminal Defendants To Admit Their Own Pretrial Statements, The , Stephen A. Saltzburg, Daniel J. Capra

Faculty Scholarship

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce …

Intentionalism's Revival , James J. Brudney

Faculty Scholarship

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter "BLMRod") that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007. The essay situates BLMRod's article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod's use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the …

International Consensus As Persuasive Authority In The Eighth Amendment, Youngjae Lee

Faculty Scholarship

This Article is about the epistemic significance of international consensus on constitutional interpretation in the Eighth Amendment context. First, the Article examines whether meaningful conclusions about one's desert judgments can be reached through a process of interjurisdictional comparison that focuses on the existence of a consensus on the question of what punishment is appropriate for what crimes and criminals. Second, this Article examines the relevance of international consensus on penal practices by analogizing the consensus to three different types of consensus: scientific, aesthetic, and moral. This Article concludes from this discussion that so long as the Supreme Court stays with …

Cafa's Impact On Class Action Lawyers Symposium: Fairness To Whom - Perspectives On The Class Action Fairness Act Of 2005, Howard M. Erichson

Faculty Scholarship

Procedural reforms alter litigation options directly, but they alter the litigation landscape in more ways than reformers anticipate. Three years ago, Congress dramatically expanded federal jurisdiction with the Class Action Fairness Act of 2005 (CAFA), a statute drafted with no love for class action plaintiffs' lawyers. Those lawyers have adapted to the statute, in part, by altering their forum-selection and claim-selection strategies. Analysis of these adaptations offers an emerging picture of the statute's impact on class actions and class action lawyers. CAFA's impact on the class action bar deserves particular attention because, although the statute speaks the language of subject …

Teaching Comparative Perspectives In Mediation: Some Preliminary Reflections Symposium: Transatlantic Perspectives On Alternative Dispute Resolution, Jacqueline Nolan-Haley

Faculty Scholarship

The study of comparative law and legal process in any subject area offers the usual advantages of learning about other countries' legal cultures and developing a deeper understanding of one's own legal tradition. In the case of mediation, it is important to evaluate critically what is learned through comparative analysis. Mediation is still developing as a profession; it is newly institutionalized in legal cultures; and, it is relatively new to the canon of legal education. National legal traditions have responded differently to the implementation of mediation. Thus, lawyers must have an understanding of the differences and nuances in mediation law …

Criminal Defense Lawyering At The Edge: A Look Back Lawyering At The Edge: Unpopular Clients, Difficult Cases, Zealous Advocates, Bruce A. Green

Faculty Scholarship

This Article is an attempt to reconstruct the story of a New York City lawyer's professional death and resurrection. In particular, this is the story of John Palmieri's defense of John J. Delane in the year 1915, a time in the history of the legal profession when the bounds of zealous representation, particularly in criminal cases, were blurry and in transition. This is also the story of what followed the Delane trial: the efforts of prosecutorial, disciplinary, and judicial authorities to resolve factual and legal uncertainties about Palmieri's conduct and intentions in defending his client, their efforts to locate the …

Two Zones Of Prophylaxis: The Scope Of The Fourteenth Amendment Enforcement Power, Calvin R. Massey

Faculty Scholarship

No abstract provided.

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Giovanna Shay, Johanna Kalb

Faculty Scholarship

In the last several years, the Supreme Court has decided a number of important challenges to the government’s conduct of its “War on Terror.” Brought on behalf of persons alleged to be “enemy combatants,” many of whom were detained at Guantánamo Bay, these suits challenged the prisoners’ indefinite detention, asserted their right to access federal courts, and questioned the legality of the tribunals created to adjudicate the charges against them. The debate about the detainees’ access to federal courts has continued in Congress, with the passage of the Military Commissions Act (MCA), and in the lower courts, with challenges to …

Laws Against Bubbles: An Experimental-Asset-Market Approach To Analyzing Financial Regulation, Erik F. Gerding

Faculty Scholarship

This article analyzes the effectiveness of proposed and actual securities, financial, and tax laws designed to prevent, or dampen the severity of asset price bubbles, including laws designed to mitigate excessive speculation. The article employs experimental asset market research to measure the effectiveness of these anti-bubble laws in correcting mispricings. Experimental asset markets represent complex simulations of stock markets in which subjects trade securities over a computer network. These markets allow scholars to test causal links between legal policies and market effects in ways that empirical research alone cannot. With these virtual markets, researchers can identify asset price bubbles-when prices …

The Chilling Effect Of Government Surveillance Programs On The Use Of The Internet By Muslim-Americans, Dawinder S. Sidhu

Faculty Scholarship

This article demonstrates that the effect of the post-9/l1 climate facing Muslim-Americans pervades even ordinary aspects of contemporary life. Part II of the article discusses the legal paradigm of when discrimination has legal implications and merits government action. Part III explores al-Qaeda's sophisticated use of the Internet and summarizes the government's post-9/l1 online surveillance efforts. Part IV discusses OUPOLL's survey results.

A History Of America's First Jim Crow Law School Library And Staff, Ernesto A. Longa

Faculty Scholarship

Paper relies heavily on African-American newspapers and archival materials from Lincoln University and the AALL Archive to tell the story of Lincoln University Law School (1939-1955), provide biographical sketches of its African-American law librarians, and expose the racism within the American Association of Law Libraries during the 1930s, 40s and 50s.

Enhancing Diversity In An Appointive System Of Selecting Judges, Leo M. Romero

Faculty Scholarship

Any system for selecting judges must be legitimate, and it will not be perceived as legitimate if it excludes certain members of the bar or if it makes it difficult for different groups to get its members on the bench. For an appointive system1 to be perceived as legitimate, it must ensure that diversity is considered in nominating candidates and in appointing judges. This Article will examine the different measures that states, with a particular focus on New Mexico, have adopted in order to enhance diversity in their appointive systems and then propose ways to structure an appointive system that …