Digital Commons Network^™

The Rise Of Private Actors Along The United States-Mexico Border, James M. Cooper

Faculty Scholarship

This Article is about the proliferation of private actors playing a role at the “broken border.” The Introduction of this Article sets out the conceptual framework for the Article and provides the roadmap for each part. Part I examines which private actors and corporations have increased their role at the US-Mexico border. These actors include multinational corporations including Mexican-sited factories (maquiladoras) and US government contractors engaging in national security work, as well as criminal organizations like human smugglers (polleros and coyotes) and drug cartels (narcotraficantes) from the Mexico side, and the border vigilantes, such as the Minutemen and American Border …

Food Labeling And Consumer Associations With Health, Safety, And Environment, Joanna K. Sax, Neal Doran

Faculty Scholarship

The food supply is complicated and consumers are increasingly calling for labeling on food to be more informative. In particular, consumers are asking for the labeling of genetically modified organisms (GMO) food based on health, safety and environmental concerns. At issue is whether the labels that are sought would accurately provide the information desired. The present study examined consumer (n = 181) perceptions of health, safety and the environment for foods labeled organic, natural, fat free or low fat, GMO, or non-GMO. Findings indicated that respondents consistently believed that foods labeled GMO are less healthy, safe and environmentally-friendly compared to …

Reasonable Standards For Contract Interpretations Under The Cisg, Donald J. Smythe

Faculty Scholarship

The United Nations ("UN") Convention on Contracts for the International Sale of Good ("CISG") offers the promise of harmonizing international sales law and facilitating international trade and global commerce. But there is a "homeward trend bias" that may encourage domestic courts to construe the gaps in the CISG broadly and fill them with non-uniform domestic legal rules. Questions about contract interpretation under the CISG raise the same concerns about a homeward trend bias as questions about the interpretation of express CISG provisions. The CISG has express provisions governing contract interpretation but their application may not provide an unambiguous interpretation. This …

Re-Designing Law And Lawyering For The Information Age, Thomas D. Barton

Faculty Scholarship

This Article analyzes the intersection of three aspects of law, lawyering, and Information Age technology and culture, describing how they disrupt and inhibit one another even as they supply possible opportunities for each to grow and innovate. The Article urges that Information Age challenges to traditional legal institutions and thinking become the foundation for reforms to legal systems and individual lawyering. In embracing changes made possible by emerging technology, the Rule of Law may be strengthened globally and the Preventive/Proactive style of lawyering can be re-invigorated. The Article begins by describing the Preventive/Proactive lawyering ("PPL") style, and offers an example …

Wrongfully Convicted In California: Are There Connections Between Exonerations, Prosecutorial And Police Procedures, And Justice Reforms?, Justin P. Brooks, Zachary Brooks

Faculty Scholarship

No abstract provided.

If Hindsight Is 20/20, Our Justice System Should Not Be Blind To New Evidence Of Innocence: A Survey Of Post-Conviction New Evidence Statutes And A Proposed Model, Justin P. Brooks, Alexander Simpson, Paige Kaneb

Faculty Scholarship

No abstract provided.

3d Printing: Digital Infringement And Digital Regulation, Tabrez Y. Ebrahim

Faculty Scholarship

3D printing is a rapidly-growing technology that enables creation of three dimensional solid objects made from a digital Computer Aided Design ("CAD") file. Patent law issues are particularly relevant and uncertain in the realm of 3D printing. Thus, analysis of the Patent Act is needed to better understand direct infringement (of either the use of a 3D printer, of a CAD file, or under the doctrine of equivalents), indirect infringement, and contributory infringement in the context of 3D printing. A key issue in this analysis is whether a CAD file should be viewed as making the object itself since 3D …

Minimally Democratic Administrative Law, Jud Mathews

Faculty Scholarship

A persistent challenge for the American administrative state is reconciling the vast powers of unelected agencies with our commitment to government by the people. Many features of contemporary administrative law — from the right to participate in agency processes, to the reason-giving requirements on agencies, to the presidential review of rulemaking — have been justified, at least in part, as means to square the realities of agency power with our democratic commitments. At the root of any such effort there lies a theory of democracy, whether fully articulated or only implicit: some conception of what democracy is about, and what …

South Atlantic Mpas And Oculina Hapc: Characterization Of Benthic Habitat And Biota. Noaa Ship Pisces Cruise 15-02. Noaa Cioert Cruise Report., Stacey Harter, John K. Reed, Stephanie Farrington, Andrew David, Harbor Branch Oceanographic Institute

Faculty Scholarship

A 12 day research cruise was conducted June 18 to 29, 2015 by NOAA National Marine Fisheries on the NOAA Ship Pisces with the UNCW Mohawk ROV. Other collaborators involved include: the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute, Florida Atlantic University (HBOI-FAU), University of North Carolina at Wilmington, College of Charleston, University of Miami, and Boston University.

The South Atlantic Fishery Management Council (SAFMC) established eight deepwater Marine Protected Areas (MPAs) along the outer continental shelf off the southeastern U.S in February 2009 and the Oculina Habitat Area of Particular Concern (OHPAC) …

Hiv/Aids Care And Prevention Infrastructure In The U.S. Deep South, Susan S. Reif, Kristen Sullivan, Elena Wilson, Miriam Berger, Carolyn Mcallaster

Faculty Scholarship

No abstract provided.

Forensics And Fallibility: Comparing The Views Of Lawyers And Jurors, Brandon L. Garrett, Gregory Mitchell

Faculty Scholarship

Forensic evidence plays an increasingly prominent role in criminal practice, leading some to worry that depictions in popular media might make jurors over-reliant on forensics — a so-called CSI effect. There is little empirical evidence of such a CSI effect among jury-eligible laypersons; any such influence also depends upon a case proceeding to a trial. As the Supreme Court has put it: “criminal justice today is for the most part a system of pleas, not a system of trials.” However, a CSI effect could be more consequential if it affects how criminal lawyers assess forensic evidence when they negotiate pleas …

The Development And Evolution Of The U.S. Law Of Corporate Criminal Liability And The Yates Memo, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Trade In Environmental Goods: A Review Of The Wto Appellate Body’S Ruling In Us — Countervailing Measures (China), Rachel Brewster, Claire Brunel, Anna Maria Mayda

Faculty Scholarship

In this paper we claim that, in the WTO Appellate Body (AB)’s ruling in US-Countervailing Measures (China), the AB decision has essentially left unchanged the practice of imposing countervailing duties (CVDs) on environmental goods. While the US has formally “lost” the case, a change in the procedures and tests used to motivate the CVD will allow the US to continue using this policy tool. From an economic point of view, this is not welcome news since CVDs have the standard distortionary effects of tariffs and could go against environmental goals. From a political-economy point of view, the CVDs in this …

Open Letter On Ethical Norms In Intellectual Property Scholarship, Robin Feldman, Mark A. Lemley, Jonathan Masur, Arti K. Rai

Faculty Scholarship

As scholars who write in intellectual property (“IP”), we write this letter with aspirations of reaching the highest ethical norms possible for our field. In particular, we have noted an influx of large contributions from corporate and private actors who have an economic stake in ongoing policy debates in the field. Some dollars come with strings attached, such as the ability to see or approve academic work prior to publication or limitations on the release of data. IP scholars who are also engaged in practice or advocacy must struggle to keep their academic and advocacy roles separate.

Our goal is …

Corporate Darwinism: Disciplining Managers In A World With Weak Shareholder Litigation, James D. Cox, Randall S. Thomas

Faculty Scholarship

Because representative shareholder litigation has been constrained by numerous legal developments, the corporate governance system has developed new mechanisms as alternative means to address managerial agency costs. We posit that recent significant governance developments in the corporate world are the natural consequence of the ineffectiveness and inefficiency of shareholder suits to address certain genre of managerial agency costs. We thus argue that corporate governance responses evolve to fill voids caused by the inability of shareholder suits to monitor and discipline corporate managers.

We further claim that these new governance responses are themselves becoming stronger due in part to the rising …

Accountability And Autonomous Weapons: Much Ado About Nothing?, Charles J. Dunlap Jr.

Faculty Scholarship

This purpose of this essay is to critique a 2015 report entitled Mind the Gap: The Lack of Accountability for Killer Robots by Human Rights Watch (HRW) produced with the assistance of the Harvard Law School’s International Human Rights Clinic (IHRC). The HRW/IHRC paper attempted to establish that autonomous weapons should be banned because, they claim, “neither criminal law nor civil law guarantees adequate accountability for individuals directly or indirectly involved in the use of fully autonomous systems.” Contrary to HRW/IHRC assertions, this article maintains that although no one can “guarantee” accountability, there are sufficient legal tools to do so …

St. Louis As Historical Hub, Jeffrey Smith

Faculty Scholarship

In May 2011, the Missouri legislature adjourned without passing an economic stimulus bill that included an “Aerotropolis” at Lambert Airport in St. Louis. The idea behind it was to create a hub for international trade, particularly with China, through a series of tax credits for those forwarding goods to foreign destinations and incentives for those building the facilities to support that commerce.1 On the surface, it seemed like a bold innovation to connect Missouri, located in the center of the United States, with the global trade far from its borders by envisioning St. Louis as a “gateway zone” for goods. …

The Hidden Costs Of Cliff Effects In The Internal Revenue Code And Proposals For Change, Manoj Viswanathan

Faculty Scholarship

Cliff effects in the Internal Revenue Code trigger a sudden increase of federal tax liability when some attribute of a taxpayer—most commonly income—exceeds a particular threshold value. As a result, two taxpayers in nearly identical economic situations can face considerably different tax liabilities depending on which side of the triggering criterion they fall. The magnitude of the equity and efficiency costs associated with cliff effects is significant: cliff effects are attached to tax provisions amounting to hundreds of billions of dollars, the majority of which are targeted at low- and moderate-income taxpayers. Cliff effects have received little attention in legal …

Chipping Away At The Rock: Perez V. Mortgage Bankers Association And The Seminole Rock Deference Doctrine, Kevin O. Leske

Faculty Scholarship

No abstract provided.

The Human Rights Of Sea Pirates: Will The European Court Of Human Rights Decisions Get More Killed?, Barry Hart Dubner, Brian Othero

Faculty Scholarship

No abstract provided.

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Reforming The Contested Convention: Rethinking The Presidential Nomination Process, Michael T. Morley

Faculty Scholarship

No abstract provided.

The Past, Present, And Future Of Free Speech, Joel Gora

Faculty Scholarship

No abstract provided.

Address: The Civil Rights Approach To Campus Sexual Violence, Nancy Chi Cantalupo

Faculty Scholarship

No abstract provided.

Nationwide Injunctions, Rule 23(B)(2), And The Remedial Powers Of The Lower Courts, Michael T. Morley

Faculty Scholarship

No abstract provided.

A Proposal To Allow The Presentation Of Mitigation In Juvenile Court So That Juvenile Charges May Be Expunged In Appropriate Cases, Katherine I. Puzone

Faculty Scholarship

No abstract provided.

Texas Advance Directives Act: Nearly A Model Dispute Resolution Mechanism For Intractable Medical Futility Conflicts, Thaddeus Pope

Faculty Scholarship

Increasingly, clinicians and commentators have been calling for the establishment of special adjudicatory dispute resolution mechanisms to resolve intractable medical futility disputes. As a leading model to follow, policymakers both around the United States and around the world have been looking to the conflict resolution provisions in the 1999 Texas Advance Directives Act (‘TADA’). In this article, I provide a complete and thorough review of the purpose, history, and operation of TADA. I conclude that TADA is a commendable attempt to balance the competing goals of efficiency and fairness in the resolution of these time-sensitive life-and-death conflicts. But TADA is …

Medical Malpractice Arbitration: Not Business As Usual, David Larson, David Dahl

Faculty Scholarship

There is an interesting exception to businesses’, employers’, and service providers’ seemingly universal embrace of arbitration processes, particularly mandatory pre-dispute arbitration. Although it may be difficult to believe given arbitration’s current popularity, not everyone requires his or her clients to sign mandatory pre-dispute arbitration agreements. In fact, some service providers prefer to avoid arbitration regardless of whether it is arranged pre- or post-dispute. So which merchants or service providers are choosing to forgo arbitration and, more importantly, why do they dislike arbitration? And do politics have anything to with their choices? Physicians are not, shall we say, the world’s greatest …

A Call To Cultivate The Public Interest: Beyond Pro Bono, Ann Juergens, Diane Galatowitsch

Faculty Scholarship

This essay asserts that incorporation of the public's interests in lawyers' daily work is an essential responsibility of the profession. The Preamble to the Model Rules of Professional Conduct frames this lawyers' duty as that of a "public citizen having special responsibility for the quality of justice." Yet the modem legal profession has reduced "public interest" practice to work that is done for no or almost no fee. The transformation of lawyer from public citizen to servant of mostly private interests has taken place over the last thirty-five years, following the legal profession's embrace of pro bono work by volunteer …

Clearing The Clouds On The Cisg's Warranty Of Title, Donald J. Smythe

Faculty Scholarship

No abstract provided.