Digital Commons Network^™

"Open Access," Legal Publishing, And Online Repositories, Pamela Bluh

Faculty Scholarship

This paper discusses the efforts of the Open Access Movement to provide scientific and scholarly information over the Internet. The origin of the movement is described as are the benefits of free access to researchers in the scientific, technical and medical fields.

The Death Of Causation: Mass Products Torts' Incomplete Incorporation Of Social Welfare Principles, Donald G. Gifford

Faculty Scholarship

Legal actions against the manufacturers of disease-causing products, such as cigarettes and asbestos insulation, have redefined the landscape of tort liability during the past generation. These actions bedevil courts, because any particular victim often is unable to identify the manufacturer whose product caused her harm. Increasingly, but inconsistently, courts allow victims to recover without proof of individualized causation. This article argues that instrumental approaches seek to turn mass products tort law into the equivalent of a social welfare program, not unlike workers’ compensation or Social Security. As with any such program, the accident compensation system must include compensation entitlement boundaries, …

High-Resolution Optical Velocity Fields Of 11 Low Surface Brightness Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

We present high-resolution two-dimensional velocity fields from integral field spectroscopy, along with derived rotation curves for 11 low surface brightness galaxies. We fit NFW and pseudoisothermal halo models to the new data combined with previous long-slit and H I data. In most cases, we find the pseudoisothermal halo to better represent the data than the NFW halo, as the NFW concentrations are often lower than expected for a ACDM cosmology. We also compare our results to previous studies and find that including the new two-dimensional optical data does not significantly alter the halo parameters but does decrease the uncertainties by …

Teaching Legal Research And Writing With Actual Legal Work: Extending Clinical Education Into The First Year, Michael A. Millemann, Steven D. Schwinn

Faculty Scholarship

In this article, the co-authors argue that legal research and writing (LRW) teachers should use actual legal work to generate assignments. They recommend that clinical and LRW teachers work together to design, co-teach, and evaluate such courses. They describe two experimental courses they developed together and co-taught to support and clarify their arguments. They contend that actual legal work motivates students to learn the basic skills of research, analysis and writing, and thus helps to accomplish the primary goals of LRW courses. It also helps students to explore new dimensions of basic skills, including those related to the development and …

Dspace: One Schools' Use Of An Open Source Institutional Repository, Michelle Rigual

Faculty Scholarship

A variety of resources, both proprietary and open source, have evolved in recent years to enable the collection, preservation, indexing and distribution of digital work, as well as to provide communities for peer review of works in progress. These emerging technologies make it more feasible to advocate for open access to scholarly communication. This presentation discusses the movement toward open access to scholarly information, as colleges and universities struggle to gain more control over and retain more rights to their scholarly output, and the consequences of not doing so. The speaker will also describe the various options currently available for …

The Trade Winds Of Judicial Activism: An Introduction To The 2004-2005 Goodwin Seminar Articles By Dennis Morrison, Q.C., And The Honourable Mia Amor Mottley, Q.C., M.P.,, Jane E. Cross

Faculty Scholarship

In Fall 2004, Nova Southeastern University Shepard Broad Law Center hosted a Goodwin Seminar series entitled Trade Winds in Caribbean Law: Evolution of Legal Norms and the Quest for Independent Justice. Since the conclusion of the Goodwin Seminar in November 2004, there have been two significant developments in the Commonwealth Caribbean. First, the Caribbean Court of Justice (CCJ) was inaugurated on April 16, 2005 in Port of Spain, Trinidad. Second, the CARICOM Single Market and Economy (CSME) was launched on January 30, 2006.

False Conflict: Who's In Charge Of National Public Health Catastrophes, 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. The National Response Plan (NRP) adheres to this tenet, while providing for extensive coordination between the federal government and states and localities, if necessary. In doing so, the NRP provides procedures to ensure that federal assets may be brought to bear, without stomping on the nation's time honored commitment to the principles of federalism.

The Independent Board Of Directors And Governance In The United States: Where Is This Heading?, Florence Shu-Acquaye

Faculty Scholarship

No abstract provided.

The Zeal Shortage, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Legal Status Of Pregnant And Parenting Youth In Foster Care, Cynthia Godsoe, Eve Stotland

Faculty Scholarship

No abstract provided.

Late Night Thoughts On Blogging While Reading Duncan Kennedy's Legal Education And The Reproduction Of Hierarchy In An Arkansas Motel Room, Franklin G. Snyder

Faculty Scholarship

It has been more than twenty years since Duncan Kennedy published his seminal 'Legal Education and the Reproduction of Hierarchy'. In it he called for a radical assault on the hierarchies embedded in American law schools. But that assault failed. Over the past two decades, the hierarchies of legal education have, if anything, become even more fixed, insular, and status-driven, even while the elites of the practicing bar have changed dramatically and become more open to outsiders. It is vastly easier for the graduate of a fourth-tier law school to become a partner at an elite law firm than it …

Filling In The Gaps: Extrasystemic Mechanisms For Addressing Imbalances Between The International Legal Operating System And The Normative System, Charlotte Ku, Paul F. Diehl

Faculty Scholarship

What happens when there is an imbalance between the operating and normative systems of international law? One obvious outcome is nothing; the imbalance remains, and the norms of the system are not given full effect. For example, human rights provisions abound, but they can be widely ignored in the absence of enforcement mechanisms. In this article, we identify several other possibilities. Our contention is that adaptations occur that compensate for, or at least mitigate, the effects of the operating-normative systems imbalance. Specifically, we explore four kinds of extrasystemic (at least from the perspective of the international legal system) adaptations: (1) …

From Pirates To Partners (Episode Ii): Protecting Intellectual Property In Post-Wto China, Peter K. Yu

Faculty Scholarship

In "From Pirates to Partners: Protecting Intellectual Property in China in the Twenty-First Century," I criticized the ineffectiveness and short-sightedness of the American foreign intellectual property policy toward China. As I argued, the coercive approach taken by the U.S. administrations created a "cycle of futility" in which China and the United States repeatedly threatened each other with trade wars, only to back down in the eleventh hour with a compromise that did not provide sustained improvements in intellectual property protection.

Since I wrote that article five years ago, China has joined the WTO and undertook a complete overhaul of its …

Rethinking Spyware: Questioning The Propriety Of Contractual Consent To Online Surveillance, Wayne R. Barnes

Faculty Scholarship

The spyware epidemic has reached new heights on the Internet. Computer users are increasingly burdened with programs they did not knowingly or consciously install, which place strains on their computers' performance, and which also trigger annoying "pop-up" advertisements of products or services which have been determined to match the users' preferences. The users' purported preferences are determined, in turn, by the software continuously monitoring every move the consumer makes as she "surfs the Internet." The public overwhelmingly disapproves of spyware which is surreptitiously placed on computers in this manner, and also largely disapproves of the pop-up advertising paradigm. As a …

Originalism As A Legal Enterprise, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The reasonable person is an important and ubiquitous figure in the law. Despite the seeming handicap of being a hypothetical construct assembled by lawyers rather than a flesh-andblood person, he (for most of Western legal history) or she (in more recent times) determines such varied legal and factual matters as the standard of care for negligence liability,' the materiality of misrepresentations in both contract 2 and tort,3 the applicability of hearsay exceptions for admissions against interest,4 the scope of liability for workplace harassment under Title VII, 5 the clarity of law necessary to defeat the qualified immunity of government officials,6 …

The Evolution-Or End-Of Marriage?: Reflections On The Impasse Over Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

The debate over legalization of same-sex marriage implicates the question of whether doing so would signal the end - or destruction - of the institution of marriage, or instead would be an appropriate evolution of marriage laws that is in keeping with the ends of marriage and with relevant public values. This essay comments on an earlier published debate on that question: Special Issue: The Evolution of Marriage, 44 Family Court Review 33-105 (2006). The essay contends that the appeal to preserving a millennia-old tradition of marriage against destruction fails to reckon with the evolution of the institution of civil …

What Default Rules Teach Us About Corporations; What Understanding Corporations Teaches Us About Default Rules, Tamar Frankel

Faculty Scholarship

This Article addresses corporate law's default rules, which allow corporations to waive their directors' liability for damages based on a breach of their fiduciary duty of care. Most large publicly held corporations have adopted such a waiver in their articles of association. This Article suggests that courts should limit the range of the waivers to the circumstances that existed when the voters voted and to the information they received before they voted. This Article distinguishes between public contracts (legislation) and private contracts (commercial transactions) and the default rules that apply to each. The Article shows that courts view corporations and …

Minimum Contacts In A Borderless World: Voice Over Internet Protocol And The Coming Implosion Of Personal Jurisdiction Theory, Danielle K. Citron

Faculty Scholarship

Modern personal jurisdiction theory rests on the twin pillars of state sovereignty and due process. A nonresident's "minimum contacts" with a forum state are treated as the equivalent of her territorial presence in the state and hence justify a state's exercise of sovereignty over her. At the same time, the nonresident's "purposeful availment" of opportunities within the state is seen as implying her agreement to that state's jurisdiction in exchange for the protection of its laws. This theory presumes that a nonresident directs voice communications to known places by dialing a telephone number's area code.

Voice over Internet Protocol ("VoIP") …

Information, Litigation, And Common Law Evolution, Keith N. Hylton

Faculty Scholarship

It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This article presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop favoring the …

Law & Entrepreneurship: Do Courts Matter?, D. Gordon Smith, Masako Ueda

Faculty Scholarship

In this essay, we sketch the outlines of a research agenda exploring links between courts and entrepreneurship. Our conception of law and entrepreneurship encompasses the study of positive law (including constitutions, statutes, and regulations), common law doctrines, and private ordering that relate to the discovery and exploitation of profitable opportunities by new firms. We briefly survey the economics literatures that relate to law and entrepreneurship, including the law and finance literature launched by the work of Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny (LLSV). Relying on the suggestive work of LLSV and other economists who have labored …

Choking Bioshield: The Department Of Homeland Security's Stranglehold On Biodefense Vaccine Development, Michael Greenberger

Faculty Scholarship

One of the bright milestones toward the development of a vibrant biodefense vaccine industry was the passage of the Project BioShield Act of 2004. That statute was designed "to provide protections and countermeasures against chemical, radiological, or nuclear agents that may be used in a terrorist attack against the United States". It encourages the development of effective countermeasures by establishing the Special Reserve Fund of $5.6 billion to be spent over ten years to assure pharmaceutical and biotechnology manufacturers that there is a ready market for their products through purchases by the government for the Strategic National Stockpile. The Act …

The Other Side Of The Podium: Student Information Needs From Inside The Classroom, Marilyn R. Pukkila

Faculty Scholarship

A few things the author learned about students and research when she audited classes on her campus as part of her sabbatical.

Grappling With The Regulatory Environment For Chinese Public Procurement, Daniel J. Mitterhoff

Faculty Scholarship

No abstract provided.

A Price Theory Of Legal Bargaining: An Inquiry Into The Selection Of Settlement And Litigation Under Uncertainty, Robert J. Rhee

Faculty Scholarship

Conventional wisdom says that economic surplus is created when the cost of litigation is foregone in favor of settlement, a theory flowing from the Coase Theorem. The cost-benefit analysis weighs settlement against the expected value of litigation net of transaction cost. This calculus yields the normative proposition that settlement is a superior form of dispute resolution and so most trials are considered errors. While simple in concept, the prevailing economic model is flawed. This article is a theoretical inquiry into the selection criteria of settlement and trial. It applies principles of financial economics to construct a pricing theory of legal …

The Strategy Of Boilerplate, Robert B. Ahdieh

Faculty Scholarship

Boilerplate can be exciting. It is this, perhaps hard-to-swallow, proposition that the present analysis attempts to convey. Particularly in invoking the work of Thomas Schelling on the role of focal points in coordination games, it offers what can be characterized as a "strategic" theory of boilerplate, in which boilerplate plays an active, even aggressive, role.

Contrary to the relatively inert quality of boilerplate implied by conventional treatments in the legal literature, boilerplate may serve essential signaling and coordination functions in contract bargaining. In appropriate circumstances, its proposed usage may be a valuable weapon in the arsenal of a bargaining party, …

Of The Inequals Of The Uruguay Round, Srividhya Ragavan

Faculty Scholarship

Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities - like a looming public health crisis - to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to …

Of Monks, Medieval Scribes, And Middlemen, Peter K. Yu

Faculty Scholarship

Today's copyright debate has generally focused on the digital dilemma created by Internet and new media technologies. Threats created by emerging communications technologies, however, are not new. Throughout history, there have been remarkable similarities between the threats created by new technologies and those posed by older ones.

During the oral argument in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., Justice Stephen Breyer questioned whether the petitioners' counsel would apply the test proposed for the new technology to some once-new technologies, such as the photocopying machine, the videocassette recorder, the iPod, and the printing press. When the counsel quickly responded in the …

Expanding The Protection Of Geographical Indications Of Origin Under Trips: Old Debate Or New Opportunity, Irene Calboli

Faculty Scholarship

Geographical indications of origin (GI), their definition, and rationale for protection have historically been the subject of heated debates in the international community. Countries have long quarreled about the extent of protection of "their" GI, that is, the names they used to identify products grown or manufactured on their soil. Fierce defenders of GI protection, European countries have traditionally advocated that GI should not be used by unrelated parties because GI identify the unique qualities, characteristics, and reputation of the products to which they are affixed; thus, should others use GI improperly, consumers would be confused as to the origin …

Trips And Its Discontents, Peter K. Yu

Faculty Scholarship

The TRIPs Agreement was established at the ministerial meeting in Marrakesh in April 1994. Since its establishment, many less developed countries have become dissatisfied with the international intellectual property system. From their perspective, the system fails to take into consideration their needs, interests, and local conditions. The strong protection mandated by the Agreement also threatens their much-needed access to information, knowledge, and essential medicines.

This year marks the tenth anniversary of the TRIPs Agreement. It provides an excellent opportunity to assess the Agreement's achievements and shortfalls, in particular its impact on the international community as well as on other areas …

Miranda, Please Report To The Principal's Office, Meg Penrose

Faculty Scholarship

The age of an alleged criminal offender undoubtedly affects his or her ability to appreciate the consequences of confessing to criminal behavior. Courts have long accepted that youth and inexperience impact an individual's ability to make a voluntary confession. Accordingly, this Article addresses whether Miranda v. Arizona--the seminal Fifth Amendment decision providing procedural rights to those enduring custodial interrogation--should apply to students interrogated by school officials during school hours. To answer this difficult question, this Article first provides a brief overview of the law of minors and confessions. Next, it considers the increasing law enforcement presence on our school …