Digital Commons Network^™

Conflict Of Laws (2006), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2004 through November 31, 2005. The Article excludes cases involving federal-state conflicts, intrastate issues such as subject-matter jurisdiction and venue, and conflicts in time such as the applicability of prior or subsequent law within a state. State and federal cases are …

Precious, Worthless, Or Immeasurable: The Value And Ethic Of Water, Gabriel Eckstein

Faculty Scholarship

This Article introduces and briefly explores some of the topics related to the value and ethics of water that were considered at the symposium, Precious, Worthless, or Immeasurable: The Value and Ethic of Water, which took place November 2-4, 2006, at the Texas Tech University School of Law. The purpose of the Symposium was to consider how this precious liquid is valued, assessed, and perceived with regard to law and regulations, economics and commerce, people and communities, culture and religion, and others aspects of society that are impacted by water. While far from a comprehensive analysis of the subject matter, …

The Constitutional Right Not To Cooperate - Local Sovereignty And The Federal Immigration Power, Huyen Pham

Faculty Scholarship

This article examines an important but up to now, still unexplored area in the federalism debate: May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation?

I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments …

A History Of Miranda And Why It Remains Vital Today, Roscoe C. Howard Jr, Lisa A. Rich

Faculty Scholarship

Custodial interrogations and how they are conducted in light of Miranda and its progeny are an integral part of the American criminal justice process and a necessary tool for criminal law enforcement, not merely a source of catchy phrases for today's popular television shows, for a very simple reason: The warnings set the ground rules for custodial interrogations and ensure that the interrogator and suspect are on a level playing field. A review of the case law surrounding the Miranda decision reveals that Miranda is a case that has encapsulated the nation's beliefs and, while subject to the ebbs and …

Rethinking Rational Discrimination Against Ex-Offenders, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

What We Talk About When We Talk About Workplace Privacy, Anita Bernstein

Faculty Scholarship

No abstract provided.

Subprime Standardization: How Rating Agencies Allow Predatory Lending To Flourish In The Secondary Mortgage Market, David Reiss

Faculty Scholarship

No abstract provided.

Desert, Democracy, And Sentencing Reform, Alice Ristroph

Faculty Scholarship

No abstract provided.

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

Faculty Scholarship

No abstract provided.

Representative Patent Claims: Their Use In Appeals To The Board And In Infringement Litigation, Patricia E. Campbell

Faculty Scholarship

In general every patent claim is considered a separate invention. However, in certain instances, multiple claims are grouped together and the patentee’s rights are determined with respect to these “representative claims.” This article examines the representative claims procedure utilized in patent prosecution and litigation. The recent changes in the rules governing the appeals of a rejected patent claim before the Board of Patent Appeals and Interferences are highlighted first, followed by an examination of the use of representative claims in patent litigation and proposals for some guidelines for the selection of representative claims.

An Integrated Perspective On The Collateral Consequences Of Criminal Convictions And Reentry Issues Faced By Formerly Incarcerated Individuals, Michael Pinard

Faculty Scholarship

This article examines the emergent focus on the collateral consequences of criminal convictions and the reentry of formerly incarcerated individuals. Specifically, the article details the ways in which legal scholars, policy analysts, elected officials, legal services organizations and community based organizations have begun to address these components of the criminal justice system. The article argues that these various groups have compartmentalized collateral consequences and reentry by focusing almost exclusively on one component to the exclusion of the other. In doing so, they have narrowed the lens through which to view these components, and have therefore missed opportunities to develop integrated …

National Institutes Of Health State-Of-The-Science Conference Statement: Cesarean Delivery On Maternal Request, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

The Man, The State And You: The Role Of The State In Regulating Gender Hierarchies, Meredith Render

Faculty Scholarship

This paper begins with the thesis that an andocentric-assimilation model of women’s liberation both has affected workplace outcomes for women and has desensitized us to those outcomes. The paper then applies that thesis to understandings of “equality” within a hierarchical framework, arguing that the equality-liberty dichotomy is false in the context of gender discrimination in the workplace. Instead the paper argues that disparate treatment is a liberty concern. In seeking to have our professional fates married to the fates of our male colleagues – which is what workplace equality doctrines aim to do – women are seeking to be only …

Dialectical Regulation, Robert B. Ahdieh

Faculty Scholarship

While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.

Such patterns of regulatory engagement are increasingly evident, across …

A Comment On "Do Patents Facilitate Financing In The Software Industry?", James Bessen

Faculty Scholarship

'Do Patents Facilitate Financing in the Software Industry?' by Ronald J. Mann contributes empirical evidence to our understanding of how software startups use patents. However, a close examination of the actual empirical findings in this paper points to rather different conclusions than those that Mann draws, namely: few software startups benefit from software patents and patents are not widely used by software firms to obtain venture financing. Indeed, among other things, the paper reports that 80% of venture-financed software startups had no acquired any patents within four years of receiving financing.

Executive Aggrandizement In Foreign Affairs Lawmaking, Michael P. Van Alstine

Faculty Scholarship

This article analyzes the power of the President to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise “Determination” which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law.

The article first sets the legal and factual context …

The Legacy Of John Graham: Strait-Jacketing Risk Assessment, Rena I. Steinzor

Faculty Scholarship

No abstract provided.

Cause Lawyering And Social Movements: Can Solo And Small Firm Practitioners Anchor Social Movements?, Brenda Bratton Blom

Faculty Scholarship

As the demand for affordable legal services grows, law schools and the legal profession struggle to respond. By examining lessons from successful social movements in the last century, Cause Lawyering and Social Movements: Can Solo and Small Firm Practitioners anchor Social Movements looks at the Law School Consortium Project and its potential to participate in and anchor the social movements of our time. The collaboration of the law schools, networks of solo and small firm attorneys and activists at the local, regional and national level provide key elements for powerful change given the technological developments of the 21st century.

Undeserved Trust: Reflections On The Ali's Treatment Of De Facto Parents, Robin Fretwell Wilson

Faculty Scholarship

In its PRINCIPLES OF THE LAW OF FAMILY DISSOLUTION, the American Law Institute (ALI) proposes sweeping changes in the legal conception of parenthood. One such change would confer custody and visitation rights on a live-in partner of a legal parent who shared caretaking responsibility for a child for two or more years. This proposal to give “parental rights” to “de facto parents” necessarily limits the prerogative of legal parents to decide who comes into contact with their child. Under the ALI’s proposed “approximation” standard, moreover, de facto parents are presumptively entitled to a share of custody that “approximates” the de …

Testimony On The Regulation Of Indian Gaming, Oversight Hearing On The [Nigc] Minimum Internal Control Standards, Before The United States House Of Representatives, Committee On Resources, 109th Congress, 2nd Session, Kevin Washburn

Faculty Scholarship

State governments have an inherent conflict of interest in the regulation of Indian gaming. Strict regulation of Indian gaming can be good for the long term health of the industry, but may impact short term revenues. States have a strong short term interest in maximizing gaming revenue. Tribal governments should bear the primary responsibility for regulating Indian gaming. However, tribal regulators also have a weakness, namely, a myopia to the interests of other tribes and the national interests of the Indian gaming industry. Federal regulators can best protect the integrity of the industry nationally and ought to have a strong …

Ambiguity Aversion And The Criminal Process, Alex Stein, Uzi Segal

Faculty Scholarship

No abstract provided.

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

Sausage-Making, Pigs' Ears, And Congressional Expansions Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

Faculty Scholarship

The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapattah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question …

Implicit Divestiture Reconsidered: Outtakes From The Cohen's Handbook Cutting-Room Floor, John P. Lavelle

Faculty Scholarship

The most dramatic development in the field of Indian law during the years between publication of the 1982 and 2005 editions of Cohen's Handbook of Federal Indian Law has been the Supreme Court's reliance on a judicially devised theory for denying the inherent sovereign governing authority of Indian nations in cases where Congress has not acted to divest tribes of this authority. The executive committee of the board of authors and editors for the 2005 revision of Cohen's Handbook recognized the importance of discussing this recent line of cases in-depth and entrusted me with the task of preparing the draft. …

The Myth Of The Rational Borrower: Behaviorism, Rationality And The Misguided Reform Of Bankruptcy Law, Edward J. Janger, Susan Block-Lieb

Faculty Scholarship

No abstract provided.

Carousel Fraud In The Eu: A Digital Vat Solution, Richard Thompson Ainsworth

Faculty Scholarship

Recent reports from the UK's Office for National Statistics estimate (as of May 11, 2006) that Missing Trader Intra-community Fraud (MTIC) may exceed 10 billion pounds this year.

Carousel fraud, a variant of MTIC where the same goods are sold over and over again, exploits the lingering non-certified, non-digital attributes of the EU VAT. The UK believes that carousel fraud cost the Exchequer between 1.12 and 1.9 billion pounds in the 2004-05 financial year. This article proposes that carousel fraud be eliminated in the EU through selective insertion of Digital VAT functionality into the present system. In other words, it …

Undercover Other, Angela Onwuachi-Willig

Faculty Scholarship

This Essay argues in favor of legally recognizing same-sex marriages by exploring the similarities in passing between members of same-sex marriages/relationships and interracial marriages/relationships. Specifically, this Essay unpacks the claim that the ability of gays and lesbians to pass as heterosexual distinguishes the ban on same-sex marriages from former bans on interracial marriages. Part I of this Essay first describes policy-based critiques of a Loving-based argument for legalizing same-sex marriage, or as one scholar has coined, of playing the Loving card by analogizing the racism that motivated anti-miscegenation statues that the Supreme Court struck down in 1967 to the anti-gay …

Representative Government, Representative Court? The Supreme Court As A Representative Body, Angela Onwuachi-Willig

Faculty Scholarship

In this Symposium Essay, I propose, as a thinking matter, that we expand the number of Supreme Court justices to increase the representation of various demographic groups on the Court. In Part I, I advance the argument that the Court should be regarded as a demographically representative body of the citizens of the United States, and in Part II, I argue that the Court should be enlarged to ensure diverse representation of all voices on the most powerful judicial body of our nation.

The "Branding Effect" Of Contracts, D. Gordon Smith

Faculty Scholarship

In his case study of the MasterCard IPO and its predecessor piece on the Google IPO, Victor Fleischer claims to find evidence of a branding effect of legal infrastructure. The branding effect is not aimed at reducing the potential for opportunism by a counterparty to a contract, but rather at increasing the attractiveness of a product to present and future users or improving the image of a company in the eyes of regulators, judges, and juries. In this essay commenting on Fleischer's work, I endorse the notion that deal structures have branding effects and position Fleischer's work within a larger …

Defocused Orientation And Position Imaging (Dopi) Of Myosin V, Rolfe G. Petschek

Faculty Scholarship

The centroid of a fluorophore can be determined within 1.5-nm accuracy from its focused image through fluorescence imaging with one-nanometer accuracy (FIONA). If, instead, the sample is moved away from the focus, the point-spread-function depends on both the position and 3D orientation of the fluorophore, which can be calculated by defocused orientation and position imaging (DOPI). DOPI does not always yield position accurately, but it is possible to switch back and forth between focused and defocused imaging, thereby getting the centroid and the orientation with precision. We have measured the 3D orientation and stepping behavior of single bifunctional rhodamine probes …