Digital Commons Network^™

The Moral Reading All Down The Line, James E. Fleming

Faculty Scholarship

Michael W. McConnell has written an elegant and illuminating article about constitutional interpretation.' He seeks to show how five major methodological approaches fit together. The five approaches he discusses are: "originalism, precedent, longstanding practice, judicial restraint, and living constitutionalism (here called the normative approach)."'2 He distinguishes two camps with respect to these approaches. One camp, he notes, "advocates for (or against) a particular approach ... on the assumption that these approaches are mutually inconsistent and that the task is to determine which is best . . . .3 The other camp "treats the various common approaches as mere tools in …

The Intersection Of Civil And Religious Family Law In The U.S. Constitutional Order: A Mild Legal Pluralism, Linda C. Mcclain

Faculty Scholarship

This chapter considers how civil and religious family law intersect in the U.S. legal system and how U.S. constitutional law shapes and constrains the accommodation of religious pluralism as it pertains to family law. To the question, “Is there too much or too little pluralism in U.S. family law?,” I answer that family law appropriately embraces a mild legal pluralism, while clearly distinguishing between civil and religious marriage. After illustrating this distinction in the context of the recent controversy over same-sex marriage, I consider two categories of cases: (1) cases in which courts consider whether to enforce terms of Jewish …

The Women Of The Wall: A Metaphor For National And Religious Identity, Pnina Lahav

Faculty Scholarship

The Women of the Wall wish to participate in communal prayer in the women’s section of the Western Wall in Jerusalem. Their practice is to pray as a group, wrap themselves in a tallit, and read from the Torah scroll. They represent Jewish pluralism in that their group includes Orthodox, Conservative, Reform and secular women. They represent openness to change in that they base their claims on Halakhic interpretation, thereby embracing the capacity of Jewish law to evolve. This article reviews the resistance of the religious and political establishment in Israel to their claim and their struggle, unsuccessful so far, …

Time, Institutions, And Adjudication, Gary S. Lawson

Faculty Scholarship

Some of my earliest and fondest memories regarding constitutional theory involve Mike McConnell. He was a participant at the very first Federalist Society conference in 1982, at a time when the entire universe of conservative constitutional theorists fit comfortably in the front of one classroom. More importantly, at another Federalist Society conference in 1987, he gave a speech on constitutional interpretation that, unbeknownst to him, profoundly shaped my entire intellectual approach to the field by emphasizing the obvious but oftoverlooked point that different kinds of documents call for different kinds of interpretative methods.1 In 2015, it is more than an …

Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu

Faculty Scholarship

We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …

Protecting Syrian Refugees: Laws, Policies, And Global Responsibility Sharing, Susan M. Akram, Sarah Bidinger, Aaron Lang, Danielle Hites, Yoana Kuzmova, Elena Noureddine

Faculty Scholarship

This article provides an excerpt of a report that maps out how the Syrian refugee crisis is being played out in four of the main states hosting the refugees, Lebanon, Jordan, Egypt and Turkey. This excerpt focuses on the laws and policies in the host states and how they are creating particularly devastating consequences for Palestinian refugees. The excerpt sets out the Report’s conclusions and recommendations, primarily the call for a global Comprehensive Plan of Action (cpa), with various components within and outside the Middle East region that build on existing legal obligations to better allocate responsibility for the refugee …

Curb Your Enthusiasm For Pigovian Taxes, Victor Fleischer

Faculty Scholarship

Pigovian (or “corrective”) taxes have been proposed or enacted on dozens of harmful products and activities: carbon, gasoline, fat, sugar, guns, cigarettes, alcohol, traffic, zoning, executive pay, and financial transactions, among others. Academics of all political stripes are mystified by the public’s inability to see the merits of using Pigovian taxes more frequently to address serious social harms, some even calling for the creation of a “Pigovian state.”

This academic enthusiasm for Pigovian taxes should be tempered. A Pigovian tax is easy to design—as a uniform excise tax—if one assumes that each individual causes the same amount of harm with …

Assessing The Deployment Of Home Visiting: Learning From A State-Wide Survey Of Home Visiting Programs, Robert L. Fischer, Elizabeth R. Anthony, Nina Lalich, Paul Bakaki, Siran Koroukian-Hajinazarian

Faculty Scholarship

Objectives: Large-scale planning for health and human services programming is required to inform effective public policy as well as deliver services to meet community needs. The present study demonstrates the value of collecting data directly from deliverers of home visiting programs across a state. This study was conducted in response to the Patient Protection and Affordable Care Act, which requires states to conduct a needs assessment of home visiting programs for pregnant women and young children to receive federal funding. In this paper, we provide a descriptive analysis of a needs assessment of home visiting programs in Ohio. Methods: All …

A Tale Of Two Reports: What Recent Publications From The Alzheimer’S Association And Institute Of Medicine Say About The State Of The Field, Peter J. Whitehouse

Faculty Scholarship

Scientific reports hold a mirror up to a culture, reflecting the beliefs, values, assumptions, practices, technologies, and political-economic interests that shape discourse around particular diseases in particular cultural moments [1]. Indeed, despite their authoritative patina, such reports are “living documents” that invite critical analysis about where discourse in a particular field has been and where it is going. In this spirit, two recent reports from the Alzheimer’s Association (Changing the Trajectory of Alzheimer’s Disease: How a Treatment by 2025 Saves Lives and Dollars) and the Institute of Medicine in the United States (Cognitive Aging: Progress in Understanding and Opportunities for …

A Virtual Clinic Improves Pneumococcal Vaccination For Asplenic Veterans At High Risk For Pneumococcal Disease, Robin L.P. Jump, Brigid Wilson, Rebecca Carter, Susan Phillips, Federico Perez

Faculty Scholarship

We developed a "virtual clinic" to improve pneumococcal vaccination among asplenic adults. Using an electronic medical record, we identified patients, assessed their vaccination status, entered orders, and notified patients and providers. Within 180 days, 38 of 76 patients (50%) received a pneumococcal vaccination. Avirtual clinic may optimize vaccinations among high-risk patients.

Faced With Crisis: The Importance Of Establishing A Comprehensive Crisis Management Plan, David E. Matchen Jr., Jason Hawkins

Faculty Scholarship

No abstract provided.

Fiduciary Governance, Andrew S. Gold, Paul B. Miller

Faculty Scholarship

No abstract provided.

Religion And Social Coherentism, Nelson Tebbe

Faculty Scholarship

No abstract provided.

Marriage Equality And The New Maternalism, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Abandoned Criminal Attempts: An Economic Analysis, Murat C. Mungan

Faculty Scholarship

An attempt is 'abandoned' if the criminal, despite having a chance to continue with his criminal plan, forgoes the opportunity to do so. A regime that makes abandonment a defense to criminal attempts provides an incentive to the offender to withdraw from his criminal conduct prior to completing the previously intended offense. However, the same regime may induce offenders to initiate criminal plans more often by reducing the expected costs associated with such plans. The former effect is called the marginal deterrence effect and the latter is called the ex-ante deterrence effect of the abandonment defense. This Article formalizes a …

Arbitrator Bias, William W. Park

Faculty Scholarship

Seeking to bring arbitration into disrepute, an evil gremlin might contemplate two starkly different routes. One route would tolerate appointment of pernicious arbitrators, biased and unable to judge independently. An alternate route to shipwreck, also reducing confidence in the integrity of the arbitral process, would establish unrealistic ethical standards that render the arbitrator’s position precarious and susceptible to destabilisation by litigants engaged in dilatory tactics or seeking to annul unfavourable awards. To reduce the risk of having cases decided by either pernicious or precarious arbitrators, those who establish and apply ethical guidelines walk a tightrope between the rival poles of …

Financial Rewards For Whistleblowing Lawyers, Kathleen Clark, Nancy J. Moore

Faculty Scholarship

The federal government relies increasingly on whistleblowers to ferret out fraud, and has awarded whistleblowers over $4 billion under the False Claims Act and the Dodd-Frank Wall Street reform and Consumer Protection Act. May lawyers ethically seek whistleblower rewards under these federal statutes? A handful of lawyers have tried to do so as FCA qui tam relators. They have not yet succeeded, but several court decisions suggest that they might be able to do so under confidentiality exceptions to state ethics law, which several courts have held are not preempted by the FCA. No lawyer has been publicly identified as …

Symposium: Fighting Corruption In American And Abroad: Foreword, Jed Handelsman Shugerman

Faculty Scholarship

This Foreword focuses on a few related observations from the symposium. First, it summarizes Teachout's book, which inspired this symposium and which relied on history to undermine Citizens United. Second, it suggests that a more recent case in this Court's Term, Williams-Yulee vs. Florida Bar,⁸ also erodes Citizens United, at least a bit, by recognizing a compelling state interest in combating the appearance of corruption and bias in a new context: by embracing that corruption lurks in gray areas and the banality of campaign fundraising. Third, Pamela Karlan and Samuel Issacharoff once observed that money in politics …

Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, Jensen V. Exc, Inc., John P. Lavelle, Geoffrey R. Romero, Michael J. Barthelemy

Faculty Scholarship

The petitioners argue:

1) Supervisory Review is Needed Because the District Court and the Ninth Circuit Automatically Aligned U.S. Highway 160 with Alienated, Non-Indian Fee Land, Ignoring this Court’s Context-Specific, Multifactor Methodology for Determining the Status of Reservation Roadways for Tribal Jurisdictional Purposes.

2) Supervisory Review is Also Necessary Because Both Lower Courts Refused to Apply Supreme Court Precedents Governing Whether an Indian Tribe Retains Treaty-Based Authority over the Conduct of Nonmembers on a Tribe’s Reservation, Effecting an Impermissible Judicial Abrogation of the Navajo Nation’s Congressionally Confirmed, Treaty-Based Jurisdiction in This Case.

3) Supervisory Review is Further Needed Because Both …

Knowledge And Attitudes Of Parkinson's Disease In Rural And Urban Mukono District, Uganda: A Cross-Sectional, Community-Based Study, Martha Sajatovic

Faculty Scholarship

Background. Parkinson's disease (PD) negatively affects the quality of life. There is limited information on PD published from Africa. Lack of adequate knowledge poses a barrier in the provision of appropriate treatment and care for individuals with PD. Methods. A cross-sectional survey was conducted in urban and rural Mukono district, central Uganda. Through the systematic sampling method, data were gathered from 377 adult participants, interviewed on selected aspects of PD knowledge and attitudes. Results. Of the 377 participants, 47% were from urban settings and 68% (260/377) were women with a median age (IQR) of 34 (26-48) years. Half of the …

A Critical Role For Alpha-Synuclein In Development And Function Of T Lymphocytes, Afshin Shameli, Wenbin Xiao, Yan Zheng, Susan Shyu, John Sumodi, Howard J. Meyerson, Clifford V. Harding, Robert W. Maitta

Faculty Scholarship

Alpha-synuclein is highly expressed in the central nervous system and plays an important role in pathogenesis of neurodegenerative disorders such as Parkinson's disease and Lewy body dementia. Previous studies have demonstrated the expression of α-synuclein in hematopoietic elements and peripheral blood mononuclear cells, although its roles in hematopoiesis and adaptive immunity are not studied. Using an α-synuclein knock out (KO) mouse model, we have recently shown that α-synuclein deficiency is associated with a mild defect in late stages of hematopoiesis. More importantly, we demonstrated a marked defect in B lymphocyte development and IgG, but not IgM production in these mice. …

Walking Is A Right (Civil And Human), Robert Bullard

Faculty Scholarship

PowerPoint opening keynote presented at the National Walking Summit in Washington, DC last month. Here is link to the Summit. http://walkingsummit.org/keynote-speakers . Some of themes include - walking as a right, "outdoor apartheid," "walking while black," and connecting nature walks and health (walking is good for the mind, body, spirit and soul) run through the talk.

Parody And Fair Markets, Jessica Silbey

Faculty Scholarship

In December 2011, the UK Intellectual Property Office commissioned the Centre for Intellectual Property Policy and Management at Bournemouth University to research the effects of parody on copyrighted works. Do parodies harm the market for the underlying work? How might we measure the economic effects of parody, as incentive depressors or engines?

UK copyright law does not contain an exception specifically covering parodies. The authors of the study perceive the UK copyright law as one of the most restrictive in seven jurisdictions surveyed (US, Canada, Australia, France, Germany, Netherlands, UK) with regard to parodies. By commissioning this research, the UK …

Perfect Plaintiffs, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

You Gotta Fight For The Right To Vote: Enfranchising Native American Voters, Jeanette Wolfley

Faculty Scholarship

Five decades ago, the Congress passed the Voting Rights Act of 1965. Since its passage, the Voting Right Act has created the opportunity to vote for many racial and language minorities across the country, and has survived many challenges until 2013. The U.S. Supreme Court issued two decisions involving voting rights in its 2012-2013 term. On June 25, 2013, in Shelby County v. Holder, a divided Supreme Court struck down Section 4 - a key provision of the 1965 Voting Right Act (VRA) - as unconstitutional. On June 17, 2013, one week before the Shelby County decision, the Court decided …

The Vanishing Supervisor, James A. Fanto

Faculty Scholarship

No abstract provided.

Abuse And Harassment Diminish Free Speech, Anita Bernstein

Faculty Scholarship

No abstract provided.

On The Clock: Incorporating A Timed Motion Brief Assignment To Promote Efficiency And Self-Awareness In The Writing Process, Cecilia Silver

Faculty Scholarship

No abstract provided.

Regulation Or Resistance: A Counter-Narrative Of Constitutional Criminal Procedure, Alice Ristroph

Faculty Scholarship

No abstract provided.

Implementing Symmetric Treatment Of Financial Contracts In Bankruptcy And Bank Insolvency, Edward Janger

Faculty Scholarship

No abstract provided.