Digital Commons Network^™

Correlative Obligation In Patent Law: The Role Of Public Good In Defining The Limits Of Patent Exclusivity, Srividhya Ragavan

Faculty Scholarship

In light of the recent outrageous price-spiking of pharmaceuticals, this Article questions the underlying justifications for exclusive rights conferred by the grant of a patent. Traditionally, patents are defined as property rights granted to encourage desirable innovation. This definition is a misfit as treating patents as property rights does a poor job of defining the limits of the patent rights as well as the public benefit goals of the system. This misfit gradually caused an imbalance in the rights versus duties construct within patent law. After a thorough analysis of the historical and philosophical perspectives of patent exclusivity, this Article …

Whole Other Story: Applying Narrative Mediation To The Immigration Beat, Carol Pauli

Faculty Scholarship

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news …

Alienage Classifications And The Denial Of Health Care To Dreamers, Fatma E. Marouf

Faculty Scholarship

In the Affordable Care Act (“ACA”), passed in 2010, Congress provided that only “lawfully present” individuals could obtain insurance through the Marketplaces established under the Act. Congress left it to the Department of Health and Human Services (“HHS”) to define who is “lawfully present.” Initially, HHS included all individuals with deferred action status, which is an authorized period of stay but not a legal status. After President Obama announced a new policy of Deferred Action for Childhood Arrivals (“DACA”) in June 2012, however, HHS amended its regulation specifically to exclude DACA recipients from the definition of “lawfully present.” The revised …

Consumer Preferences For Performances Defaults, Franklin G. Snyder, Ann M. Mirabito

Faculty Scholarship

Commercial law in the United States is designed to facilitate private transactions, and thus to enforce the presumed intent of the parties, who generally are free to negotiate the terms they choose. But these contracts inevitably have gaps, both because the parties cannot anticipate every situation that might arise from their relationship, and because negotiation is not costless. When courts are faced with these gaps in a litigation context, they supply default terms to fill them. These defaults usually are set to reflect what courts believe similar parties would have agreed to if they had addressed the issue. These "majoritarian" …

A Call For Strengthening The Role Of Comparative Legal Analysis In The United States, Irene Calboli

Faculty Scholarship

This Essay highlights the importance of comparative legal analysis with particular emphasis on the role that this methodology could play for intellectual property scholarship in the United States. In particular, this Essay suggests that U.S. scholars could consider turning with more frequency to comparative legal analysis as an additional methodology to use in their research. Yet, the objective of this Essay is not to suggest that U.S. scholars should engage in comparative legal analysis in lieu of other types of research methodologies. Instead, this Essay simply supports that comparative legal analysis could play a larger role compared to the one …

Why Feminist Legal Theory Still Needs Mary Joe Frug: Thoughts On Conflicts In Feminism, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Interest In Appraisal, Minor Myers, Charles R. Korsmo

Faculty Scholarship

No abstract provided.

Extending Comparative Fault To Apparent And Implied Consent Cases, Aaron Twerski, Nina Farber

Faculty Scholarship

No abstract provided.

From Economic Inequality To Economic Freedom: Constitutional Political Economy In The New Gilded Age, K. Sabeel Rahman

Faculty Scholarship

No abstract provided.

Why Are We Doing This? Cognitive Science And Nondirective Supervision In Clinical Teaching, Serge A. Martinez

Faculty Scholarship

In this article, I examine the idea of nondirective supervision in clinical education in theory and practice in light of recent findings in educational research. In Part I, I examine the theory and practice of nondirective supervision in clinical education. In Part II, I explore the history of nondirective supervisory pedagogy and how it may have developed in clinical education. In Part III, I look at the latest evidence and theories from educational research, where a large body of empirical evidence supports the value of explicit guidance for novice learners in certain settings. Finally, in Part IV, I apply this …

Reading Deboer And Obergefell Through The "Moral Readings Versus Originalisms" Debate: From Constitutional "Empty Cupboards" To Evolving Understandings, Linda C. Mcclain

Faculty Scholarship

This article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage …

Fidelity To Our Imperfect Constitution: A Reply To Six Views, James E. Fleming

Faculty Scholarship

I am deeply grateful to Constitutional Commentary for publishing this symposium on my recent book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms. In the book, I put forward a sustained critique of originalism-whether old or new, concrete or abstract, living or dead. Instead, I defend what Ronald Dworkin called a "moral reading" of the U.S. Constitution' and what Sotirios A. Barber and I have called a "philosophic approach" to constitutional interpretation.4 By "moral reading" and "philosophic approach," I refer to conceptions of the Constitution as embodying abstract moral and political principles-not codifying concrete historical rules or …

Body Of Preemption: Health Law Traditions And The Presumption Against Preemption, Elizabeth Mccuskey

Faculty Scholarship

Preemption plays a prominent role in health law, establishing the contours of coexistence for federal and state regulatory authorities over health topics as varied as medical malpractice, insurance coverage, drug safety, and privacy. When courts adjudicate crucial preemption questions, they must divine Congress's intent by applying substantive canons of statutory interpretation, including presumptions against preemption.

This Article makes three main contributions to health law and preemption doctrine. First, it identifies a variant of the presumption against preemption that applies to health laws-referred to throughout as the "tradition presumption." Unlike the general presumption against preemption on federalism grounds, courts base this …

Zappers - Technological Tax Fraud In New Hampshire, Richard Thompson Ainsworth

Faculty Scholarship

No other State is as vulnerable to Zappers as is the State of New Hampshire. Zappers and related software programming, Phantom-ware, facilitate an old tax fraud – skimming cash receipts. In this instance skimming is performed with modern electronic cash registers (ECRs). Zappers are a global revenue problem, but to the best of this author’s knowledge they have not been uncovered in New Hampshire. Seen from a global perspective however, it seems unlikely that they are not here.

New Hampshire’s fiscal vulnerability to Zappers comes from its heavy reliance on precisely the industry segment that has been found to be …

Sales Suppression: The International Dimension, Richard Thompson Ainsworth

Faculty Scholarship

Sales transaction taxes are highly susceptible to technology fraud, which is an inevitable result of today’s widespread reliance on technology to document taxed transactions. Technology can be (and is) manipulated to defeat the collection of these taxes. Both the U.S. retail sales tax (RST) and the European value added tax (VAT) are vulnerable to technology-based fraud. This Article concerns sales suppression — intentionally not recording sales — in the RST, and at the final stage of the VAT, the retail stage, when tax is collected from final consumers.

The modern electronic cash register (ECR)/point of sale (POS) system is vulnerable …

Friedrichs And The Move Toward Private Ordering Of Public Employee Wages And Benefits, Maria O'Brien

Faculty Scholarship

In its recent Harris v. Quinn opinion the U.S. Supreme Court (in particular Justice Alito) seemed to welcome a future opportunity to reconsider the 1977 landmark Abood decision in which public sector closed shop employees were not required to join a union but could be subject to fees that cover the costs of “collective bargaining, contract administration, and grievance adjustment purposes.” Supporters of the Abood approach argue that it is a reasonable compromise that prevents non-members from free riding on the union’s efforts (i.e. enjoying the wages and benefits negotiated by the union without sharing the costs incurred.) Detractors and …

The Future Of Empirical Legal Scholarship: Where Might We Go From Here?, Kathryn Zeiler

Faculty Scholarship

The number of empirical legal studies published by academic journals is on the rise. Given theory’s dominance over the last few decades, this is a welcome development. This movement, however, has been plagued by a lack of rigor and a failure of editors to require disclosure of data and procedures that allow for easy replication of published results. Law journals, the editorial boards of which are manned solely by law students, might face the toughest hurdles in ensuring publication of only high quality empirical studies and in implementing and enforcing disclosure policies. While scholars in other fields including economics, psychology, …

The Obama War Powers Legacy And The Internal Forces That Entrench Executive Power, Rebecca Ingber

Faculty Scholarship

In exploring the Obama war powers legacy, this essay examines the systemic forces inside the executive branch that influence modern presidential decision-making and, barring a total reimagining of the executive branch, will operate on administrations to come. These mechanisms and norms fall broadly within two categories: (1) features that favor continuity and hinder presidents from effecting change, including both novel assertions of executive power and attempts to dial back that power; and (2) features that incrementally aggrandize such power claims. Together, these two sets of forces operate as a one-way ratchet, slowly expanding and ultimately entrenching executive branch power.

How Computer Automation Affects Occupations: Technology, Jobs, And Skills, James Bessen

Faculty Scholarship

This paper investigates basic relationships between technology and occupations. Building a general occupational model, I look at detailed occupations since 1980 to explore whether computers are related to job losses or other sources of wage inequality. Occupations that use computers grow faster, not slower. This is true even for highly routine and mid-wage occupations. Estimates reject computers as a source of significant net technological unemployment or job polarization. But computerized occupations substitute for other occupations, shifting employment and requiring new skills. Because new skills are costly to learn, computer use is associated with substantially greater within-occupation wage inequality.

Moral Courage In Indigent Defense, Tigran W. Eldred

Faculty Scholarship

In this essay, I take a different perspective, one that focuses on why people are able to act ethically despite pressures to do otherwise. Social science has convincingly demonstrated that the power of the situation can exert significant influence over individual behavior, thus undermining the claim that only “bad” people engage in unethical conduct.⁴ Yet, we know that there are individual differences to how people respond to ethical dilemmas, which raises a core question: why do some individuals act more ethically than others, even in similar situations?

To explore this question, I focus on a familiar domain from my …

Response Brief Of Appellee Navajo Nation, Paul Spruhan

Faculty Scholarship

This appeal concerns the claimed authority of private utility companies to unilaterally force an easement over allotments that include a sovereign Indian nation among its owners. The four certified questions before the Court implicate congressional policy concerning allotments as well as the sovereign interests of the Navajo Nation (“Nation”). Appellants PNM and Transwestern assert that 25 U.S.C. § 357 (Section 357) applies beyond allotments wholly owned by individual allottees to also allow condemnation of the allotment interests of sovereign tribal nations. However, as discussed below, the application of Section 357 to a tribal nation’s property would unduly impair a tribal …

Heteroepitaxy Of N-Type Β-Ga2o3 Thin Films On Sapphire Substrate By Low Pressure Chemical Vapor Deposition, Subrina Rafique, Lu Han, Roger H. French, Hongping Zhao

Faculty Scholarship

This paper presents the heteroepitaxial growth of ultrawide bandgap β-Ga2O3 thin films on c-plane sapphire substrates by low pressure chemical vapor deposition. N-type conductivity in silicon (Si)-doped β-Ga2O3 films grown on sapphire substrate is demonstrated. The thin films were synthesized using high purity metallic gallium (Ga) and oxygen (O2) as precursors. The morphology, crystal quality, and properties of the as-grown thin films were characterized and analyzed by field emission scanning electron microscopy, X-ray diffraction, electron backscatter diffraction, photoluminescence and optical, photoluminescence excitation spectroscopy, and temperature dependent van der Pauw/Hall measurement. The optical bandgap is ∼4.76 eV, and room temperature electron …

Blockchain Technology Might Solve Vat Fraud, Richard Thompson Ainsworth, Andrew Shact

Faculty Scholarship

At the World Economic Forum more than 800 executive and technology experts were asked when they thought a particular “tipping point” would be reached – when would we see a government collect tax with blockchain? The agreed date was 2023 (on average). A full 73% of the respondents however, expected the tipping point to have been reached by 2025.

This paper argues that the EU VAT will be an early adopter, if not the earliest adopter of blockchain. There are a number of reasons why. Blockchain will bring substantial efficiencies to VAT collection. It will reduce costs, and build critical …

Asking More Of Our Metaphors: Narrative Strategies To End The "War On Alzheimer's" And Humanize Cognitive Aging, Peter J. Whitehouse

Faculty Scholarship

In all facets of our lives, humans construct meaning to understand their place in the world and their relationships to one another and to broader environments. Within this semantic web, words, stories, and metaphors play a key role in the meaning-making process, with the latter serving as a particularly important means of fluidly integrating thoughts, values, and actions across cognitive domains. Derived from the Greek roots “meta” (over/across) and “phor” (to carry) and literally meaning “carrying across,” metaphor guides an understanding of one thing in terms of another. It is such a pervasive tendency in human speech and thought that …

Speaking From The Grave. Should Copyright Listen?, Jessica Silbey

Faculty Scholarship

Should authors be able to control the use of their work after they die? It’s a question that touches deep personal and public concerns. It resonates with longstanding debates in literary studies over the “death of the author” and “authorial intent,” and is an issue that Professor Eva Subotnik tackles in her latest article, Artistic Control After Death (forthcoming in the Washington Law Review).

Currently, U.S. copyright expires 70 years after the author’s death so that control of an author’s copyrights extends far into the future. Long after an author creates a work, often decades after publication and the work’s …

Prevalence Of Stroke In Children Admitted With Sickle Cell Anaemia To Mulago Hospital, Samden Lhatoo, Martha Sajatovic

Faculty Scholarship

Background: Stroke is a major complication of sickle cell anaemia (SCA). It occurs commonly in childhood with about 10 % of children with sickle cell anaemia getting affected by this complication. In Uganda, there is paucity of data on the prevalence of stroke in children admitted in a tertiary institution. We determined the prevalence of stroke amongst children with SCA admitted to Mulago National Referral Hospital in Uganda and described the ir co-morbidities. Methods: We conducted a retrospective record review of children with SCA admitted from August 2012 to August 2014 to the Paediatric Haematology Ward of Mulago Hospital in …

Insights Into Metastability Of Photovoltaic Materials At The Mesoscale Through Massive I–V Analytics, Timothy J. Peshek, Justin S. Fada, Yang Hu, Yifan Xu, Mohamed A. Elsaeiti, Roger H. French

Faculty Scholarship

The authors demonstrate the feasibility of quantifying cell-level performance heterogeneity from module-level I–V curves by determining conditions of bypass diode turn-on. Analysis of these curves falls outside of typical diode-based models of photovoltaic (PV) performance. The authors show that this approach can leverage statistical and machine learning techniques for broad application to massive datasets, and combine those insights with simulations and laboratory-based experiments to provide useful information into the metastability of the interfaces of a PV cell. The authors find good agreement between the experimentally determined curves and the simulated curves, which guide the variable selection in the massive dataset …

Late Life Bipolar Disorder Evolving Into Frontotemporal Dementia Mimic, Martha Sajatovic

Faculty Scholarship

Objectives: Although bipolar disorder has been understood classically as a cyclic disease with full recovery between mood episodes, in the last decade, evidence has accumulated supporting progressive features. The clinical picture of advanced or end-stage bipolar disorder is heterogeneous with possible deficits in cognition and behavior, as illustrated by our case series. Cases: From our neuropsychiatric outpatient clinic, we describe four cases with bipolar disorder gradually developing a clinical syndrome, including apathy, disinhibition, loss of empathy, stereotypical behavior, and compulsiveness, fulfilling the criteria for possible behavioral variant frontotemporal dementia. All cases were diagnosed with bipolar 1 disorder at least 10 …

The Relationship Between Life Stressors And Drug And Sexual Behaviors Among A Population-Based Sample Of Young Black Men Who Have Sex With Men In Chicago, Dexter R. Voisin

Faculty Scholarship

Younger Black men who have sex with men (YBMSM) have the highest rates of HIV incidence in the U.S. and are also exposed to high life stressors (e.g., unemployment, incarceration, and exposure to communality). This study assessed whether life stressors were related to drug use and sexual risk behaviors among a representative sample of YBMSM. The South Side of Chicago and selected adjacent suburbs represents the most populous contiguous Black community in the U.S. Over 10% of the estimated YBMSM population in this geographic region were sampled. Major findings indicated that higher life stress was significantly associated with greater odds …

Lotteries As A Voluntary And "Painless" Tax In American Gaming Law And The Prospect Of Creating A Federal Lottery To Reduce The Federal Deficit In The Era Of Billion Dollar Jackpots, Stephen J. Leacock

Faculty Scholarship

No abstract provided.