Digital Commons Network^™

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

Faculty Scholarship

Human beings should live in places where they are most productive, and megacities, where information, innovation, and opportunities congregate, would be the optimal choice. Yet megacities in both China and the United States are excluding people by limiting the housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Back-Yard (“NIMBY”) homeowners are taking over megacities in the U.S. and hindering housing development. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of …

Rights-Weakening Federalism, Shitong Qiao

Faculty Scholarship

This article examines whether federalism protects land rights in China from two dimensions. I first compare national law with local institutions of eminent domain, revealing that local governments take much more land than the national government approves, frequently violating, tweaking, and challenging national law. I next examine the impact of interjurisdictional competition on the development of local land institutions, demonstrating that local governments are weakening individual land rights for the benefits of mobile capital. Overall, Chinese federalism weakens rather than strengthens individual land rights and should be called rights-weakening federalism.

This China case also has general theoretical implications. Leading property …

The Long Environmental Justice Movement, Jedediah Purdy

Faculty Scholarship

The standpoint of environmental justice has become integral to environmental law in the last thirty years. Environmental justice criticizes mainstream environmental law and advocacy institutions on three main fronts: for paying too little attention to the distributive effects of environmental policy; for emphasizing elite and professional advocacy over participation in decision making by affected communities; and for adhering to a woods-and-waters view of which problems count as “environmental” that disregards the importance of neighborhoods, workplaces, and cities. This Article highlights the existence of a “long environmental justice movement” that, like the long movements for racial equality and labor organizing, put …

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress.

The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel Puerto Rico by …

Beyond Bankruptcy: Resolution As A Macroprudential Regulatory Tool, Steven L. Schwarcz

Faculty Scholarship

To try to protect the stability of the financial system, regulators and policymakers have been extending bankruptcy-resolution techniques beyond their normal boundaries. To date, however, their efforts have been insufficient, in part because bankruptcy law traditionally has microprudential goals (to protect individual firms) whereas protecting financial stability is a “macroprudential” goal.

This Article seeks to derive a logical and consistent theory of how and why resolution-based regulation can help to stabilize the financial system. To that end, the Article identifies three possible regulatory approaches: reactive resolution-based regulation, which comprises variations on traditional bankruptcy; proactive resolution-based regulation, which consists of pre-planned …

Does Contract Law Need Morality?, Kimberly D. Krawiec, Wenhao Liu

Faculty Scholarship

In The Dignity of Commerce, Nathan Oman sets out an ambitious market theory of contract, which he argues is a superior normative foundation for contract law than either the moralist or economic justifications that currently dominate contract theory. In doing so, he sets out a robust defense of commerce and the market-place as contributing to human flourishing that is a refreshing and welcome contribution in an era of market alarmism. But the mar-ket theory ultimately falls short as either a normative or prescriptive theory of contract. The extent to which law, public policy, and the-ory should account for values …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No …

Tax Issues In The Sharing Economy: Implications For Workers, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

No abstract provided.

Amicus Curiae Professor Marin K. Levy’S Amicus Brief In Support Of Plaintiff-Appellant Governor Roy A. Cooper, Iii, Marin K. Levy

Faculty Scholarship

No abstract provided.

The Intensification Of The Water Footprint Of Hydraulic Fracturing, Andrew J. Kondash, Nancy Lauer, Avner Vengosh

Faculty Scholarship

Unconventional oil and gas exploration in the United States has experienced a period of rapid growth, followed by several years of limited production due to falling and low natural gas and oil prices. Throughout this transition, the water use for hydraulic fracturing and wastewater production in major shale gas and oil production regions has increased; from 2011 to 2016, the water use per well increased up to 770%, while flowback and produced water volumes generated within the first year of production increased up to 550%. The water-use intensity (that is, normalized to the energy production) increased in all U.S. shale …

Leak-Driven Law, Shu-Yi Oei, Diane Ring

Faculty Scholarship

Over the past decade, a number of well-publicized data leaks have revealed the secret offshore holdings of high-net-worth individuals and multinational taxpayers, leading to a sea change in cross-border tax enforcement. Spurred by leaked data, tax authorities have prosecuted offshore tax cheats, attempted to recoup lost revenues, enacted new laws, and signed international agreements that promote “sunshine” and exchange of financial information between countries.

The conventional wisdom is that data leaks enable tax authorities to detect and punish offshore tax evasion more effectively, and that leaks are therefore socially and economically beneficial. This Article argues, however, that the conventional wisdom …

Safe Harbors: The Many Benefits Of Marine Monuments And Sanctuaries, John F. Bruno, Whitley Saumweber, Larry B. Crowder, Linwood Pendleton, Stephen E. Roady, Tracy Rouleau, Miyoko Sakashita

Faculty Scholarship

The United States has been at the forefront of marine resource stewardship since the 1970s when Federal officials began to implement a series of national policies aimed at the conservation and management of public trust resources in the ocean. Beginning with the establishment of the National Oceanic and Atmospheric Administration in 1970, soon followed by several pieces of landmark legislation, this era marked the start of a continuing effort to integrate ecosystem science with marine resource management. Among the most important bipartisan legacies of this effort has been the steady expansion of marine managed areas in U.S. coastal and ocean …

Maryland's New Remedy For Wage Theft, Martha M. Ertman, Doris N. Weil

Faculty Scholarship

No abstract provided.

The Lost Story Of Notice And Personal Jurisdiction, Robin Effron

Faculty Scholarship

No abstract provided.

Higher Education As A Human Right, Heidi Gilchrist

Faculty Scholarship

No abstract provided.

Fiduciary Loyalty, Inside And Out, Stephen R. Galoob, Ethan J. Leib

Faculty Scholarship

No abstract provided.

Prosecutors Matter: A Response To Bellin’S Review Of Locked In, John F. Pfaff

Faculty Scholarship

No abstract provided.

Valuing Life: A Human Rights Perspective On The Calculus Of Regulation, William J. Aceves

Faculty Scholarship

How much is a human life worth? This is both a puzzling and subversive question for human rights advocates to consider. The concept of human rights is premised on the sanctity and inviolability of human life as well as the equality of all human beings. Indeed, the right to life and the corollary right to be free from the arbitrary deprivation of life constitute the defining human right. To place a price on the value of human life is, thus, unsettling. And yet, monetary valuation of human life occurs frequently. Governments use cost-benefit analysis and calculations regarding the value of …

Character Assassination: Amending Federal Rule Of Evidence 404(B) To Protect Criminal Defendants, Daniel J. Capra, Liesa L. Richter

Faculty Scholarship

No abstract provided.

Mini-Law School: Civic Education Making A Difference In The Community, Pat Newcombe, Beth Cohen

Faculty Scholarship

Western New England’s Mini-Law School Program increases civic engagement and awareness and provides opportunities for law schools and educators to help non-lawyers better understand the legal system. This article will discuss the Mini-Law School Program, a creative and extremely successful five-week community outreach program focused on demystifying the law. Our society is in dire need of greater civic education. Public policy surveys consistently reveal disturbing statistics about the public’s lack of civic awareness (e.g., 15 percent of the public knew that John Roberts is Chief Justice of the Supreme Court, but 66 percent could name an American Idol judge; 70 …

Bankruptcy Law—Rethinking The Discharge Of Late Filed Taxes In Consumer Bankruptcy, Justin H. Dion, Barbara Curatolo

Faculty Scholarship

The 2005 amendments to the Bankruptcy Code, Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) was enacted in order to improve bankruptcy law. However, BAPCPA has made the issue of whether late-filed taxes are dischargeable even murkier than before the amendments. After BAPCPA, some courts continued to analyze claims as they had before the amendment. Others used a “one-day-late rule” that prevented late-filed taxes from being dischargeable—even if the taxes were filed only one day late. This Article suggests a different approach. It argues that the legislature intended tax debt associated with late-filed income tax returns be dischargeable if the …

Amicus Curiae Brief Of The American Civil Liberties Union Of Massachusetts, Massachusetts Law Reform Institute, Pioneer Valley Workers Center, United Food And Commercial Workers Local 1459, University Of Massachusetts Labor Relations And Research Center, And Professor Michael Wishnie In Support Of Plaintiffs-Appellants, William C. Newman, Harris Freeman

Faculty Scholarship

This Amicus Curiae Brief is filed on behalf of the American Civil Liberties Union of Massachusetts, Massachusetts Law Reform Institute, Pioneer Valley Workers Center, United Food and Commercial Workers Local 1459, University of Massachusetts Labor Relations and Research Center, and Professor Michael Wishnie in Support of Plaintiffs-Appellants, Arias-Villano v. Chang & Son Enters., 481 Mass. 625 (2019).

Morphological Diagnoses Of Sponges Collected At Shelf-Edge Mpas From Eastern Florida To North Carolina, Between Depths Of 51 And 150 M, During Cioert Expeditions (2018-2019)., Maria Cristina Ronda Diaz, Stephanie Farrington, John K. Reed, Shirley A. Pomponi

Faculty Scholarship

This paper is a result of the taxonomic analyses of the sponges collected during the NOAA Ship Pisces expeditions in 2018 and 2019 with the University of North Carolina, Wilmington (UNCW) Mohawk ROV. This is part of a 9-year project conducted by NOAA National Marine Fisheries (NMF) in collaboration with the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute, Florida Atlantic University (HBOI-FAU) to document and monitor the Marine Protected Areas (MPAs) of the southeastern U.S. continental shelf (eastern Florida to North Carolina, 50-165 m deep). The most prominent and conspicuous sponges were collected …

Cuba's Mesophotic Coral Reefs Macroalgae Photo Identification Guide., Beatriz Martinez-Daranas, Patricia M. González-Sanchez, Amanda Ramos, Emma E. Gomez, Yusimi Alfonso, Ana M. Suarez, Dennis M. Hanisak, John K. Reed, Stephanie Farrington

Faculty Scholarship

Mesophotic coral reef ecosystems (MCEs) are light-dependent benthic communities that occur deeper than shallow reefs and typically range from depths of 30 m to the bottom of the photic zone, which may extend to >150 m in some regions. MCEs represent in part an extension of shallow-water coral reef 3 ecosystems and support a diverse assemblages of habitat- building taxa, including corals, sponges and algae, and associated fish (Reed et al., 2018).

Cuba's Mesophotic Coral Reefs And Associated Fish Communities., John K. Reed, Patricia Gonzalez-Diaz, Linnet Busutil, Stephanie Farrington, Beatriz Martínez-Daranas, Dorka Rojas Cobián, Joshua Voss, Maria Cristina Diaz, Andrew David, Dennis M. Hanisak, Juliett Gonzalez Mendez, Alain Rodriguez Garcia, Patricia M. González-Sanchez, Jorge Fernandez Viamontes, Daniel Perez Estrada, Michael Studivan, Felicia Drummond, Mingshun Jiang, Shirley A. Pomponi

Faculty Scholarship

A joint Cuba-U.S. expedition was conducted May 14-June 12, 2017 to characterize for the first time the extent and health of mesophotic coral ecosystems (MCEs) along the entire coastline of Cuba. Remotely Operated Vehicle (ROV) dives at 36 sites confirmed the presence of MCE habitat along all coasts of Cuba. ROV dives covered 27 km, at depths of 25-188 m, and documented habitat and species with 103 hours of high-definition video and 21,146 digital images. A total of 477 taxa of benthic macrobiota and 178 fish taxa were identified, and 343 specimens of benthic invertebrates and algae were collected to …

Noaa Cioert Cruise Report South Atlantic Mpas And Oculina Hapc: Characterization Of Benthic Habitat And Biota., Stacey Harter, Andrew David, John K. Reed, Stephanie Farrington, Felicia Drummond

Faculty Scholarship

The South Atlantic Fishery Management Council (SAFMC) and Department of Commerce through the Magnuson-Stevens Fishery Management Act have established eight deepwater Marine Protected Areas (MPAs), five Deepwater Coral Habitat Areas of Particular Concern (CHAPCs), and the Oculina Coral HAPC off of the southeastern U.S. This project proposes to document and characterize the benthic habitat, benthic sessile biota, and fish populations within some of these protected areas and within the jurisdiction of the SAFMC. The Oculina Experimental Closed Area (OECA) was established in 1994 and closed the area to all bottom fishing in order to evaluate the effectiveness of the reserve …

Our Heroic Constitution?, Susan Herman

Faculty Scholarship

No abstract provided.

Insuring Sustainable Homeownership, David Reiss

Faculty Scholarship

No abstract provided.

The President's Immigration Courts, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Saving Software's Fair Use Future, Pamela Samuelson, Clark Asay

Faculty Scholarship

The freedom to reimplement application program interfaces (APIs) in independently written software is the key issue at stake in Oracle America, Inc. v. Google Inc. In May 2016, on remand a jury found Google’s use of the Java API elements was a fair use. After the District Court declined to vacate the jury verdict, Oracle appealed for the second time to the Federal Circuit, claiming that it is entitled to a judgment in its favor on the fair use issue as a matter of law. This Article, which is a derivative work of the amicus curiae brief of 42 Intellectual …