Digital Commons Network^™

What If There Is No Client?: Prosecutors As "Counselors" Of Crime Victims, Stacy Caplow

Faculty Scholarship

No abstract provided.

The Lawlessness In Our Courts, Susan P. Koniak

Faculty Scholarship

Elsewhere I have argued that the word "law" is too important a resource to reserve exclusively for state acts and pronouncements. Here, however, my emphasis is somewhat different. Here, I want to concentrate on the importance of denying the label of "law" to some acts that the state calls "law," particularly the importance of lawyers denying the state's indiscriminate use of the word "law." The bar's rhetoric maintains that the profession's independence from the state is critically important because only an independent bar can serve as an appropriate check on tyranny, on state force masquerading as law. Well, I write …

Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Coming Out: Decision-Making In State And Federal Sodomy Cases, Susan Ayres

Faculty Scholarship

In 1791, American states were enacting laws against sodomy at the same time they ratified the Bill of Rights, the first ten constitutional amendments meant to safeguard fundamental rights of individuals in a free society. In a March 1789 letter to James Madison, Thomas Jefferson asserted that a bill of rights was necessary to give the judiciary the power to protect such individual rights. Ironically, that which the judiciary gives, it may also take away, since "[t]he legislator is a writer. And the judge a reader."

This Article deconstructs recent sodomy cases in order to challenge judicial adoption or reinscription …

Lawyering Up, Susan Bandes, Jack M. Beermann

Faculty Scholarship

The widespread dissemination of knowledge about the Miranda protections is often referred to as one of the most successful efforts ever made to educate the American public about its constitutional rights. Studies confirm that a high percentage of the public is aware of Miranda, largely due to television and other mass media. This article asks the question: if television is educating the public about its Miranda rights, what exactly is it teaching us? As fans of the cop show NYPD Blue (a show in which the interrogation and confession are often the dramatic focus) we use that show to explore …

We The Unconventional American People, James E. Fleming

Faculty Scholarship

In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able …

Outsider Trading On Confidential Information: A Breech In Search Of A Duty, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Transcript Of The Roundtable On Insider Trading: Law, Policy And Theory After O'Hagan, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

Fictional Persona Test: Copyright Preemption In Human Audiovisual Characters, Peter K. Yu

Faculty Scholarship

Whether a producer's copyright in human audiovisual characters preempts the actors' rights of publicity claims is the focus of this Note. Part I outlines the framework of state right of publicity law and traces the development of case law involving such a right. Because "[a]dvertisers who want to run a particular advertisement nationally must comply with the law of all fifty states," this Note focuses on the right of publicity of the state with the broadest interpretation-the state of California. This Part shows that, under existing California right of publicity law, virtually anything evoking one's personal identity, including copyrighted materials, …

The Continuing Relevance Of Section 8 (A) (2) To The Contemporary Workplace, Michael C. Harper

Faculty Scholarship

In this article I evaluate the claims of the critics of the current section 8(a)(2). I do so, as I believe would Professor St. Antoine, ¹⁴ with an eye toward the historical development of new production systems in America and the concomitant development of personnel policies to fit those systems. I consider the purposes for which firm managers seemed to establish and control employee advisory committees before passage of the NLRA and the purposes for which managers seem to establish and control such committees in today's economy. I conclude that these purposes have not substantially changed. Managers before passage of …

Orientational Susceptibility And Elastic Constants Near The Nematic-Isotropic Phase Transition For Trimers With Terminal-Lateral-Lateral-Terminal Connections, Daeseung Kang, Milind P. Mahajan, Rolfe G. Petschek, Charles Rosenblatt

Faculty Scholarship

Magnetically induced Freedericksz measurements were performed in the nematic liquid crystal phase to extract the elastic constants of a terminal-lateral-lateral-terminal trimer, i.e., a trimer in which the connections to the first and third mesogens are at the end of the mesogen and both attachments to the central mesogen are lateral. Polymeric liquid crystals based on this unit have negative Poisson ratios. Additionally, electric field Kerr measurements were performed in the isotropic phase to extract the orientational susceptibility. The elastic constants were found to be similar to values obtained for typical monomers, albeit with a slightly enhanced ratio K33/K11 and reduced …

Venture Capital Contracting In The Information Age, D. Gordon Smith

Faculty Scholarship

Most venture capitalists provide services to their portfolio companies beyond capital investment. Although these services form an important part of the bargain between the venture capitalists and the entrepreneur, they are rarely specified or even capable of specification in venture capital contracts. This article examines the moral hazard and adverse selection problems facing entrepreneurs who hire venture capitalists to provide value-added services and describes the role of the market for venture capitalist reputation in addressing those problems. Further, the Article speculates about whether advances in information technology - specifically, the World Wide Web - are likely to improve the efficiency …

Facilitative Mediation Or Evaluative Mediation: May Your Choice Be A Wise One, Scott H. Hughes

Faculty Scholarship

Describing the distinctions and criticisms between facilitative mediation, that provides a setting for disputants to understand and make choices, and evaluative mediation, where the mediator provides guidance. Attorneys should fully understand mediation styles, and explore these options with their client.

Globalizing Intellectual Property: Linkage And The Challenge Of A Justice-Constituency, Samuel K. Murumba

Faculty Scholarship

No abstract provided.

An Essay On Uncertainty And Fact-Finding In Civil Litigation, With Special Reference To Contract Cases, Alex Stein

Faculty Scholarship

No abstract provided.

Routes To Self-Assembling Stable Photonic Band-Gap Phases In Emulsions Of Chiral Nematics With Isotropic Fluids, Chien-Yueh Huang, Jonathan J. Stott, Rolfe G. Petschek

Faculty Scholarship

Blue phases are stable phases with crystalline packing of interwoven topological defects in chiral nematic liquid crystals. We argue that chiral nematics with appropriate surfactants are likely to form blue phases for a wide range of parameters. We derive the transition curve for stable emulsified blue phases and find that the required low surface tension is within the accessible range of surfactants. These emulsified blue phases provide possible routes to photonic band-gap materials.

Pain Management And Palliative Care In The Era Of Managed Care: Issues For Health Insurers, Diane E. Hoffmann

Faculty Scholarship

No abstract provided.

Comment On Frederick Schauer's Prediction And Particularity, Gerald F. Leonard

Faculty Scholarship

Ignorance of the law is generally no excuse. I say generally because the century since the publication of The Path of the Law has brought a small but increasing number of exceptions to the rule. In Oliver Wendell Holmes's day, however, exceptions to the rule were nearly nonexistent, much to Holmes's satisfaction. In The Common Law, Holmes said that the law requires persons "at their peril to know the teachings of common experience, just as it requires them to know the law."  He did not, of course, actually think that common experience was perfectly knowable or judicial interpretation perfectly predictable, …

Holmes's Good Man: A Comment On Levinson And Balkin, Jack M. Beermann

Faculty Scholarship

Sanford Levinson and J.M. Balkin's paper ("L & B") is refreshing in the attention it pays to Holmes's oft-neglected "good [man], who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience."¹ The good man provides a heuristic foil for Holmes's "bad man" whose conduct is motivated only by the potential material consequences, and thus L & B's analysis should help shed light on what is a puzzling metaphor in the folklore surrounding Holmes's The Path of the Law. L & B provide some interesting observations on the implications of …

Panel Discussions From "Indian Nations On The Eve Of The 21st Century, John P. Lavelle, Frank Pommersheim, Larry Long, James Abourezk, Christopher Schneider

Faculty Scholarship

On the afternoon of May 19, 1998, in the University of South Dakota School of Law Courtroom, two panels assembled to discuss current issues in Indian land and water rights. The panels were part of the Fifth Biennial Indian Law Symposium entitled "Indian Nations on The Eve of The Twenty-First Century: Sovereignty, Self-Government, Water Rights, Land Rights." Those panel discussions are reprinted here, with minor stylistic edits.

The first panel, dealing with water rights, included Mark Van Norman, Susan Williams, Robert Cournoyer, Tony Iron Shell, Professor John Davidson, and moderator Robert Gough.

The second panel, dealing with land rights, was …

Testing Modified Newtonian Dynamics With Low Surface Brightness Galaxies: Rotation Curve Fits, Stacy S. Mcgaugh

Faculty Scholarship

We present modified Newtonian dynamics (MOND) fits to 15 rotation curves of low surface brightness (LSB) galaxies. Good fits are readily found, although for a few galaxies minor adjustments to the inclination are needed. Reasonable values for the stellar mass-to-light ratios are found, as well as an approximately constant value for the total (gas and stars) mass-to-light ratio. We show that the LSB galaxies investigated here lie on the one, unique Tully-Fisher relation, as predicted by MOND. The scatter on the Tully-Fisher relation can be completely explained by the observed scatter in the total mass-to-light ratio. We address the question …

Hubble Space Telescope Wide Field Planetary Camera 2 Imaging Of Ugc 12695: A Remarkably Unevolved Galaxy At Low Redshift, Stacy S. Mcgaugh

Faculty Scholarship

Utilizing the F814W and F300W filters, short-exposure Hubble Space Telescope Wide Field Planetary Camera 2 images were taken of UGC 12695, a nearby (z ∼ 0.021) low surface brightness disk galaxy. UGC 12695 has an unusual morphology, consisting of a Y-shaped nucleus surrounded by a faint spiral arm with a number of bright H II regions interspersed throughout the galaxy. Surface photometry indicates that the majority of recent star formation in this galaxy occurred in these very localized regions, most of which have a radius of ≲2″. This uneven stellar distribution, combined with the galaxy's overall extremely blue color and …

Caring For Justice, Reviewing Robin West, Michael T. Cahill

Faculty Scholarship

No abstract provided.

The Politics Of The Products Liability Restatement, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Book Review - Reviewing Anthony E. Cook, The Least Of These: Race, Law, And Religion In American Culture (1997), Stephen R. Alton

Faculty Scholarship

Book Review Extract:

One complaint which I have with The Least of These, Anthony E. Cook's thoughtful and thought-provoking book, is that the title promises more than much of the work delivers. Judging from the subtitle, "Race, Law, and Religion in American Culture", the work should engage in a broad examination of these institutions in American life. Cook's well-written book does less in some ways, but does more in others

Collapse Section 341, Alan L. Feld

Faculty Scholarship

Simplification of current income tax provisions always runs an uphill course. As a proper standard for evaluating a provision of existing law we should ask whether, if it did not exist, we would need to invent it. Unfortunately, when we move to the task of crafting and altering the details of current law, the blandishments of equity, revenue yield, and special-interest gain easily outshine the sober virtue of simplification; we forget this potentially embarrassing question.

As a modest step toward simplification, I propose the repeal of one section of the code, a section famed among tax cognoscenti for its opaque …

Dynamic Treaty Interpretation, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Predicting When The Uniform Law Process Will Fall: Article 9, Capture And The Race To The Bottom, Edward J. Janger

Faculty Scholarship

No abstract provided.

Defining The Economic Relationship Appropriate For Collective Bargaining, Michael C. Harper

Faculty Scholarship

These are, of course, difficult times for those who share the goals of the framers of the original National Labor Relations Act (the "NLRA" or "Act") .' As union density in the private sector has continued to decline² and as the NLRA has proven helpless against the economic developments that have generated continuing employer resistance to collective bargaining, the original vision of the Wagner Congress must seem myopic and shaded with an excessively optimistic tint. Observing these economic developments and the enhanced impediments to union organization that they have posed makes it clear that only a much different statute …

Deliberative Democracy, Overlapping Consensus, And Same-Sex Marriage, Linda C. Mcclain

Faculty Scholarship

A pressing concern in political and constitutional theory is how to construct a model of justification in law and politics that offers methods for securing agreement and social cooperation in the face of moral pluralism. A common goal of this work is to elaborate the requirements of deliberative democracy, that is, a model of democratic self-government that "asks citizens and officials to justify public policy by giving reasons that can be accepted by those who are bound by it."' Two fundamental questions are: (1) are there any limits to the grounds to which citizens may appeal or the reasons that …