Digital Commons Network^™

The Burden Of Federalism: Challenges To State Attempts At Controlling Prescription Drug Costs, Jaime S. King, Katherine L. Gudiksen

Faculty Scholarship

No abstract provided.

Using And Misusing Legal Decisions: Why Antivaccine Claims About Nvicp Cases Are Wrong, Dorit Rubinstein Reiss, Rachel Heap

Faculty Scholarship

No abstract provided.

Tax Lawyers As Tax Insurance, Heather M. Field

Faculty Scholarship

No abstract provided.

Measles And Misrepresentation In Minnesota: Can There Be Liability For Anti Vaccine Misinformation That Causes Bodily Harm?, Dorit Rubinstein Reiss, John L. Diamond

Faculty Scholarship

No abstract provided.

Balanced Liberty: Justice Kennedy's Work In Criminal Cases, Rory K. Little

Faculty Scholarship

No abstract provided.

The Games They Will Play: Tax Games, Roadblocks, And Glitches Under The New Legislation, Manoj Viswanathan

Faculty Scholarship

No abstract provided.

Environmental Law. Disrupted, David Takacs

Faculty Scholarship

No abstract provided.

The Master’S Tools Will Never Dismantle The Master’S House: Kavanaugh’S Confirmation Hearing And The Perils Of Progressive Punitivism, Hadar Aviram

Faculty Scholarship

No abstract provided.

Beyond Bias In Diversity Jurisdiction, Scott Dodson

Faculty Scholarship

The long-running debate over the propriety and proper scope of diversity jurisdiction as always centered on the traditional justification for diversity jurisdiction: the need to avoid actual or perceived state court bias against out-of-state parties. Supporters of diversity jurisdiction assert that such bias continues to justify diversity jurisdiction, while opponents argue that it does not. This Article argues that both sides have it wrong. Supporters are wrong that out-of-state bias and its perception are sufficient to justify diversity jurisdiction today. Yet opponents are wrong that the lack of bias supports the abolition or extreme restriction of diversity jurisdiction. The problem …

The Sound And Fury Of Patent Activity, Robin C. Feldman, Mark A. Lemley

Faculty Scholarship

No abstract provided.

Artificial Intelligence In The Health Care Space: How We Can Trust What We Cannot Know, Robin Feldman, Ehrik Aldana, Kara Stein

Faculty Scholarship

As Al moves rapidly into the health care field, it promises to revolutionize and transform our approach to medical treatment. The black-box nature of AI, however, produces a shiver of discomfort for many people. How can we trust our health, let alone our very lives, to decisions whose pathways are unknown and impenetrable?

As challenging as these questions may be, they are not insurmountable. And, in fact, the health care field provides the perfect ground for finding our way through these challenges. How can that be? Why would we suggest that a circumstance in which we are putting our lives …

Asian Americans And Affirmative Action—Again, Frank Wu

Faculty Scholarship

No abstract provided.

Making Money Safe, John Crawford

Faculty Scholarship

No abstract provided.

The Icc And Non-Party States: Consistency And Consensus Revisited, Chimene I. Keitner

Faculty Scholarship

No abstract provided.

Cybersecurity Provisions And Trade Agreements, Chimene I. Keitner, Harry Clark

Faculty Scholarship

No abstract provided.

The Icc In Latin America: An Old Friend With New Challenges, Naomi Roht-Arriaza

Faculty Scholarship

No abstract provided.

Consultants, The Environment, And The Law, Dave Owen

Faculty Scholarship

Conventional wisdom assumes that private-sector businesses will oppose, undermine, or distort government regulation. That assumption also underpins many areas of theoretical inquiry; theorists commonly assume that effective public-law regimes must be protected from the self-interested machinations of businesses, or that such protection is such a lost cause that most public regulation is doomed to fail. This Article investigates a different set of relationships between businesses and regulation. It does so by using the environmental consulting industry, which helps businesses and governments comply with environmental regulations, as a case study. An empirical inquiry into two subfields of the industry reveals that …

Scattered: The Assimilation Of Sushi, The Internment Of Japanese Americans, And The Killing Of Vincent Chin, A Personal Essay, Frank Wu

Faculty Scholarship

In a personal Essay, Frank H. Wu discusses the acceptance of sushi in America as a means of analyzing the acceptance of Japanese Americans, before, during, and after World War II. The murder of Vincent Chin in Detroit in 1982 is used as a defining moment for Asian Americans, explaining the shared experiences of people perceived as "perpetual foreigners."

The Law Against Family Separation, Carrie F. Cordero, Heidi Li Feldman, Chimene Keitner

Faculty Scholarship

Most commentators assume that, except for the few restrictions expressly mentioned in the U.S. Constitution, the President's pardon power is unlimited. This Paper suggests that this common view is mistaken in at least one unexpected way. Presidential pardons must satisfy a modest procedural rule: they must list the specific crimes covered by the pardon. The "specificity requirement" means that vague and broadly worded pardons are invalid. This claim bears a significant burden of persuasion, since it runs so counter to accepted opinion. Nonetheless, that burden can be met. This Paper's argument rests on an originalist understanding of the constitutional text, …

Between Law And Diplomacy: The Conundrum Of Common Law Immunity, Chimene Keitner

Faculty Scholarship

Drawing the line between disputes that can be adjudicated in domestic (U.S.) courts and those that cannot has perplexed judges and jurists since the Founding Era. Although Congress provided a statutory framework for the jurisdictional immunities of foreign states in 1976, important ambiguities remain. Notably, in 2010, the U.S. Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) does not govern suits against foreign officials unless the foreign state is the "real party in interest." This decision clarified, but did not fully resolve, conceptual and doctrinal questions surrounding the immunities of foreign officials whose conduct …

The Struggle For Equality: Women's Rights, Human Rights, And Asylum Protection, Karen Musalo

Faculty Scholarship

No abstract provided.

A Common Law Perspective On The Supreme Court And Its Functions, Richard L. Marcus

Faculty Scholarship

The text presents different attributes of the Supreme Court in common law and civil law systems. The author claims that the question of design and function of a supreme court, while important, is no more significant than the issue of its institutional status and evolution, i.e. something one could refer to as “legal culture”. Neither the “common law camp”, nor the “civil law camp” turns out to be monolithic in this regard. The distinctive history of the US Supreme Court is presented through the perspective of its statutory and procedural supremacy, as well as its power of constitutional adjudication. The …

Silence And The Second Wall, Zachary New, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

Health Equity, School Discipline And Restorative Justice, Thalia Gonzalez, Alexis Etow, Cesar De La Vega

Faculty Scholarship

No abstract provided.

Opioid Multidistrict Litigation Secrecy, Jennifer D. Oliva

Faculty Scholarship

No abstract provided.

Regulating Bite Mark Evidence: Lesbian Vampires And Other Myths Of Forensic Odontology, Jennifer D. Oliva, Valena E. Beety

Faculty Scholarship

e third piece in a trilogy that examines and evaluates the standards that American co e proffered by prosecutors in criminal trials. The first two articles in the trilogy expose the criminal courts’ on-going practice of admitting false forensic evidence that is virtually always excluded in civil cases. They also advance a panoply of procedural and evidentiary solutions aimed at reforming this legally unviable discrepancy. Those solutions are court-centric insofar as they advocate for, among other things, open and early criminal discovery, pre-trial Daubert hearings to challenge evidence and experts, and court-appointment of qualified forensic science experts. This Article takes …

The Fair Deal Universal Health Care Proposals: Historians’ Perspectives From From 1970 To 2003, George Horvath

Faculty Scholarship

No abstract provided.

Emergent Regulatory Systems And Their Challenges: The Case Of Combination Medical Products, George Horvath

Faculty Scholarship

Where regulatory systems overlap, courts and scholars often focus on the undesirable aspects of the overlap—the ways in which systems conflict. One such context involves the regulation of prescription drugs and medical devices by the FDA’s premarket evaluation processes and by state common-law tort and products liability actions. FDA regulation and state common law are often described as separate, conflicting regulatory systems. This Article challenges that description by proposing a model in which FDA premarket evaluation and state common law function as a single regulatory system.

This model brings order to the Supreme Court’s seemingly inconsistent medical products preemption cases, …

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Faculty Scholarship

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …

The Ncaa And The Irs: Life At The Intersection Of College Sports And The Federal Income Tax, Richard L. Schmalbeck, Lawrence A. Zelenak

Faculty Scholarship

Few organizational acronyms are more familiar to Americans than those of the National Collegiate Athletic Association (NCAA) and the Internal Revenue Service (IRS). Although neither organization is particularly popular, both loom large in American life and popular culture. Because there is a tax aspect to just about everything, it should come as no surprise that the domains of the NCAA and the IRS overlap in a number of ways. For many decades, the strong tendency in those areas has been for college athletics to enjoy unreasonably generous tax treatment-sometimes because of the failure of the IRS to enforce the tax …