Digital Commons Network^™

American Wartime Values In Historical Perspective: Full-Employment Mobilization Or Business As Usual, Timothy A. Canova

Faculty Scholarship

This paper explores the range of values implicated by war and compares today's dominant values with those that prevailed during previous American wars, with a particular emphasis on the World War Two and early Cold War period. War is related to values, and as economists like to remind us, what we value becomes apparent in the movement of people and prices. Part I of this Article considers the moral, ethical and monetary values that prevailed throughout the 1940's and early 1950's. The normative threads that kept the World War Two effort on track were those of mobilization and shared sacrifice. …

Recantation: Illusion Or Reality?, Linda F. Harrison

Faculty Scholarship

No abstract provided.

"Deport All The Students": Lessons Learned In An X-Treme Clinic, Stacy Caplow

Faculty Scholarship

No abstract provided.

Google The Gozerian And Fair Use Slimed: Copyright Again In The Technocrat's Den, Brian Sites

Faculty Scholarship

This article considers the fair use doctrine as it applies to Google's Library Search Project and both predicts and advocates for a finding of fair use. Part I briefly reviews the past by considering the pertinent history of the fair use doctrine. It also explains the details of the current suit over Google's Library Project. Part II moves on to consider the current state of fair use analysis by reviewing 110 fair use cases and conducting simple statistical analyses. It then explains and applies the fair use doctrine to Google's project. Part III considers cases frequently compared to Google's and …

2006 Changes To The Florida Rules Of Professional Conduct, Heather P. Baxter

Faculty Scholarship

No abstract provided.

Absurd Results, Scrivener's Errors, And Statutory Interpretation, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Faculty Scholarship

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control.

While it …

Theory And Anti-Theory In The Work Of Allan Farnsworth, Wayne R. Barnes

Faculty Scholarship

When Allan Farnsworth passed away on January 31, 2005, the world lost a titan in the field of contracts. Farnsowrth has been described as “the great contemporary American scholar, and one of a handful of great world scholars, on the law of agreement...[He] was...perhaps The Authority on the law of contracts and much more.” Similarly, others have called him “the premiere figure in American Contracts law scholarship since the passing of Corbin and Dawson. The treatise and his half of the Second Restatement would be quite a contribution if there was nothing else.” Farnsworth’s casebook is perennially the most widely-adopted …

Access To Justice, Costs, And Legal Aid, James P. George

Faculty Scholarship

If the ideal of justice is not pervasive in the United States, the issue of justice is-not so much in its rendition, but in its penetration of news, politics and entertainment. Current media issues include the death penalty--erroneous convictions and the lack of lawyers for appeals; tort reform--conflicting data on medical malpractice litigation and a perceived abuse of class actions; and the judiciary itself--judicial selection, political attacks on so-called "activist judges," and the sometimes hidden issue of court budgets. Within this fascination, the multiple problems in accessing justice are lost.

This article is excerpted from a report done for the …

Post-Acquisition Harassment And The Scope Of The Fair Housing Act, Aric Short

Faculty Scholarship

Because Halprin v. Prairie Single Family Homes of Dearborn Park Ass’n creates a split of circuit authority and threatens established civil rights protections, the Seventh Circuit’s decision provides a useful opportunity to reconsider the proper scope of the FHA. The subject of housing harassment, in general, has received significant scholarly attention in the recent past; however, no commentator has focused on the concept of post-acquisition harassment or evaluated the validity of the underlying assumption that the FHA does, in fact, protect against harassment occurring after housing has been secured. With the current schism in federal case law as a backdrop, …

Chasing The Illusory Pot Of Gold At The End Of The Rainbow: Negligence And Strict Liability In Design Defect Litigation, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Who Decides Whether A Patient Lives Or Dies?, Diane E. Hoffmann, Jack Schwartz

Faculty Scholarship

No abstract provided.

Private Law And State-Making In The Age Of Globalization, Daniela Caruso

Faculty Scholarship

The rise of post-national entities, such as the institutions of the European Union and of free-trade regimes, bears no obvious relation to the traditional pillars of western private law (mostly contracts, torts, and property doctrines). The claim of this article is that the global diffusion of private law discourse contributes significantly to the emergence of new centers of authority in the global arena. The article tests the impact of private law arguments in three contexts - the growing legitimacy of regional human rights adjudication, the consolidation of the institutions of the European Union, and the higher binding force of international …

Brief Amicus Curiae Of Professors Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, And Thomas Ulen In Support Of Respondents In Philip Morris Usa V. Mayola Williams, Keith N. Hylton, Kenneth G. Dau-Schmidt, Mark F. Grady, Jeffrey L. Harrison, Mark G. Kelman, Thomas Ulen

Faculty Scholarship

There is no dispute that the punitive damages award that was upheld by the Oregon Supreme Court in this case satisfies the most rigorous law and economic standards for rationality. The Court need not credit the analysis of the undersigned amici on this score; the fact that Petitioner’s own amici – most notably law and economics scholars A. Mitchell Polinsky and Steven Shavell – have been unable to find anything economically amiss in the decision below speaks volumes. To be sure, Professors Polinsky and Shavell have filed an amicus brief in support of Philip Morris in this case, just as …

Taxing Services Under The Eu Vat And Japanese Consumption Tax: A Comparative Assessment Of New Eu Place Of Taxation Rules For Services And Intangibles, Richard Thompson Ainsworth

Faculty Scholarship

Place of taxation rules are the seminal cross-jurisdictional provisions of any consumption tax regime. They determine where among competing jurisdictions a particular service is taxed. They are not important for transactions that are restricted to a single jurisdiction and to businesses or individuals belonging to that jurisdiction. However, when two or more jurisdictions are involved, these are the essential tools for revenue allocation and avoidance of double taxation.

It is therefore of considerable importance to Japanese businesses and consumers when the European Union (EU) undertakes a wholesale revision of the place of supply rules for services and intangibles. The European …

Digital Consumption Tax (D-Ct), Richard Thompson Ainsworth

Faculty Scholarship

Modern technology is dramatically changing the way consumption taxes are collected, but it is also changing the way policymakers assess the operation and impact of these taxes. Whether the design is a standard credit-invoice value added tax (VAT) of European design, or a retail sales tax (RST) of American design, or the credit subtraction VAT without invoices type of consumption tax (CT) of Japanese design, technology is having a profound impact.

Government certified transaction software is in place in the United States. The Streamlined Sales Tax offers taxpayers in 18 states the option of having their retail sales tax determined …

Anticircumvention And Anti-Anticircumvention, Peter K. Yu

Faculty Scholarship

In today's debate on digital rights management systems, there is a considerable divide between the rights holders, their investors and representatives on the one hand and academics, consumer advocates, and civil libertarians on the other. These two groups often talk past each other, concocting their own doomsday scenarios while arguing for laws and policies that vindicate their positions. Unfortunately, neither side has sufficient empirical evidence to either support its position or disprove its rivals'. As the digital economy grows, the debate intensifies, and the divide between the two sides widens. Today, there has emerged an urgent need to find the …

Some Observations On The Stock Option Backdating Scandal Of 2006, David I. Walker

Faculty Scholarship

The corporate stock option backdating scandal has dominated business page headlines during the summer of 2006. The SEC is currently investigating more than seventy-five companies with respect to the timing and pricing of stock options granted during the boom years of the late 1990s and early 2000s, and the number of firms caught up in the scandal seems to increase every day. This essay contributes to our understanding of the backdating phenomenon by analyzing the economics of backdating and the characteristics of the firms under investigation. Its main points are the following: First, given the high volatilities of the stocks …

Synthesis And Characterization Of New Truxenones For Nonlinear Optical Applications, Giolin Mao, Kenneth D. Singer, Greg A. Wiggers, Rolfe G. Petschek

Faculty Scholarship

The synthesis of several new truxenones and one tris(dicyanomethylene) derivative substituted by different amines at positions 4, 9, and 14 is reported. A complete characterization of the NLO properties of representative derivatives was carried out by hyper-Rayleigh scattering; the major electronic effects and the influence of the structural modifications on the NLO properties have been examined. Because of their C3 symmetry and their large first hyperpolarizability, the chiral versions of the tris(dicyanomethylene) truxene derivatives are of interest for second-order nonlinear optics in uniaxially aligned chiral media.

Oy Canada! Trade's Non-Solution To "The Problem" Of U.S. Drug Prices, Daniel Gilman

Faculty Scholarship

Price disparities—price “differentiation” or “discrimination”—in pharmaceuticals markets have, in recent years, been the subject of much discussion. Price sensitivity should come as no surprise: Medicines play an increasingly important role in healthcare, while pharmaceuticals prices continue to rise. When prices vary greatly within markets or between neighboring markets, the pressure towards arbitrage is clear. This paper considers the question whether the re-importation of medicines from Canada or the EU is well advised and argues that it is not. First, we might reasonably question the extent to which we wish, as a matter of policy, to manage pharmaceuticals pricing; among other …

Sexually Predatory Parents And The Children In Their Care: Remove The Threat, Not The Child, Robin Fretwell Wilson

Faculty Scholarship

This Chapter examines one of the most critical questions Child Protective Services agencies face thousands of times a day: whether to remove a child who is a possible victim of abuse or neglect from his or her home. Few decisions are as determinative of a child's well-being and long-term success as the decision to remove a child from his or her own home following an allegation of abuse by a parent. This Chapter shows that the choice to remove the child rather than the alleged offender is driven largely by two suppositions: misunderstandings about the legality of excluding alleged offenders …

The Alfonse And Gaston Of Governmental Response To National Public Health Emergencies: Lessons Learned From Hurricane Katrina For The Federal Government And The States, Michael Greenberger

Faculty Scholarship

Hurricane Katrina renewed an old debate concerning which level of government should lead the response effort to catastrophic disasters. Traditionally, emergency response is handled at the most local level possible. Hurricane Katrina, however, and other catastrophes that may be labeled "Incidents of National Significance," are examples of emergencies of such magnitude that federal assets must be brought to bear to respond adequately to the situation. As such Incidents will almost always affect interstate commerce, Congress' commerce powers justify federal intervention in, and if necessary, supervision of the response. In such situations, the National Response Plan provides for extensive coordination between …

The Logistical And Ethical Difficulties Of Informing Juveniles About The Consequences Of Adjudications, Michael Pinard

Faculty Scholarship

In this article, Professor Michael Pinard observes that the recent attention devoted to the collateral consequences of criminal convictions has overlooked the ways in which these consequences impact juvenile offenders. The article recognizes the emergent arguments for informing adult defendants of these consequences as part of the guilty plea or sentencing process, and argues that juvenile defendants should also be informed of the collateral consequences that attach to their adjudications. However, the article asserts that there are ethical and logistical questions unique to the juvenile justice process that would pose difficulties in conveying this information to juveniles. These issues (or …

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Faculty Scholarship

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and …

From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Aaron D. Twerski, Margaret Berger

Faculty Scholarship

No abstract provided.

Unprotected Migrants: Zimbabweans In South Africa’S Limpopo Province, Norma Kriger, Erika George

Faculty Scholarship

Unprotected Migrants: Zimbabweans in South Africa’s Limpopo Province documents the vulnerability of undocumented and documented Zimbabwean migrants to human rights abuses in South Africa.

Using the testimonies of Zimbabwean migrants, commercial farmers who employ them, and state officials in Limpopo province, Human Rights Watch describes how state officials disregard provisions in South Africa’s Immigration Act as they detain and deport undocumented migrants, and how farmers contravene the law governing employment conditions for their workers. The report also identifies deficiencies in immigration and labor legislation.

The human rights of foreign migrants are guaranteed in the Constitution ofSouth Africa, but are infringed …

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Faculty Scholarship

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument …

Catastrophic Risk And Governance After Hurricane Katrina: A Postscript To Terrorism Risk In A Post-9/11 Economy, Robert J. Rhee

Faculty Scholarship

This essay inquires into the political economy and system of governance that have made catastrophes more frequent and severe. The system of governance that is designed to mitigate risk and respond to catastrophes can be ineffective, or worse, increase the risk of harm through unintended consequences. Human influence must be considered a source of collateral risk, the kind that leads to a systemic crisis or exacerbates one. This essay concludes with some brief proposals, discussion topics more than completed ideas, which may facilitate further academic and political dialogue on effective governance and public risk management. They include a catastrophe tax, …

The Constitutional Rights Of Non-Custodial Parents, David D. Meyer

Faculty Scholarship

No abstract provided.

The Silent Criminal Defendant And The Presumption Of Innocence: In The Hands Of Real Jurors, Is Either Of Them Safe, Mitchell J. Frank, Dawn Broschard

Faculty Scholarship

No abstract provided.