Digital Commons Network^™

Countersupermajoritarianism, Nelson Tebbe, Frederic Bloom

Faculty Scholarship

No abstract provided.

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

Atlantic Marine Through The Lens Of Erie, Adam N. Steinman

Faculty Scholarship

The Supreme Court's unanimous decision in Atlantic Marine clarified several things about the enforcement of forum-selection clauses in federal court. But something important was missing from Justice Alito's opinion — the Erie doctrine. Erie, of course, helps to determine the applicability of state law in federal court, and state law potentially has a lot to say about contractual forum-selection clauses. Indeed, Erie was front and center the last time the Court confronted the enforcement of forum-selection clauses in federal court, when it decided Stewart Organization v. Ricoh a quarter century ago.

This article for the Hastings Law Journal's symposium on …

The Jury As Democracy, Jenny E. Carroll

Faculty Scholarship

Almost from the moment the law is set to paper, it is shaped and refined through acts of interpretation and discretion. Police and prosecutors choose which cases to investigate, which to charge and how to charge them. Judges make decisions every day that affect the outcome of cases. These acts of interpretation and discretion are driven by the perspectives of those empowered to make them. All too frequently, they reinforce existing power dynamics. But there are other realms of discretion in criminal law. Whether seeking to apply a legal standard as instructed or engaging in an act of nullification, ordinary …

Too Clever By Half: Reflections On Perception, Legitimacy, And Choice Of Law Under Revised Article 1 Of The Uniform Commercial Code, Mark Edwin Burge

Faculty Scholarship

The overwhelmingly successful 2001 rewrite of Article 1 of the Uniform Commercial Code was accompanied by an overwhelming failure: proposed section 1-301 on contractual choice of law. As originally sent to the states, section 1-301 would have allowed non-consumer parties to a contract to select a governing law that bore no relation to their transaction. Proponents justifiably contended that such autonomy was consistent with emerging international norms and with the nature of contracts creating voluntary private obligations. Despite such arguments, the original version of section 1-301 was resoundingly rejected, gaining zero adoptions by the states before its withdrawal in 2008. …

Punishment As Protection, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally …

As Long As The Water Shall Flow: Bringing Water To Tribal Homelands, Jeanette Wolfley

Faculty Scholarship

Only the first page is uploaded. Please contact the UNM Law Library on accessing the full text.

Quantitative Protein Topography Analysis And High-Resolution Structure Prediction Using Hydroxyl Radical Labeling And Tandem-Ion Mass Spectrometry (Ms), Parminder Kaur, Janna Kiselar, Sichun Yang, Mark R. Chance

Faculty Scholarship

Hydroxyl radical footprinting based MS for protein structure assessment has the goal of understanding ligand induced conformational changes and macromolecular interactions, for example, protein tertiary and quaternary structure, but the structural resolution provided by typical peptide-level quantification is limiting. In this work, we present experimental strategies using tandem-MS fragmentation to increase the spatial resolution of the technique to the single residue level to provide a high precision tool for molecular biophysics research. Overall, in this study we demonstrated an eightfold increase in structural resolution compared with peptide level assessments. In addition, to provide a quantitative analysis of residue based solvent …

We All Do It: Unconscious Behavior, Bias, And Diversity, Ronald E. Wheeler

Faculty Scholarship

Mr. Wheeler suggests that many of our behaviors, in the workplace and elsewhere, are motivated by unconscious triggers and emotions, including racial biases. These behaviors, however, can be prevented by making conscious choices that enhance diversity.

Informed Decision Making On Abortion: Crisis Pregnancy Centers, Clinics, And The First Amendment, Aziza Ahmed

Faculty Scholarship

Shifting laws and regulations increasingly displace the centrality of women's health concerns in the provision of abortion services. This is exemplified by the growing presence of deceptive Crisis Pregnancy Centers alongside new informed consent laws designed to dissuade women from seeking abortions. Litigation on informed consent is further complicated in the clinical context due to the increased mobilization of facts - such as the gestational age or sonogram of the fetus - delivered with the intent to dissuade women from accessing abortion. In other words, factual information utilized for ideological purpose. To preserve a woman's autonomy and decision-making capacity, there …

The Space Between Two Worlds: Forward To The Health Law, Elizabeth Mccuskey

Faculty Scholarship

This year's Law Review Symposium explored the modem state of health law under the heading, From Scalpel to Gavel. By situating its discussion in the space between the health sciences and law, this symposium embodied the inherently interdisciplinary nature of health law. The gathering of scholars, physicians, counsel, enforcers, and community groups bridged the spaces among numerous disciplines, promoting the exchange of empiricism, ideas, and experiences that have come to define health law.

Gaps And Changed Circumstances In Energy Contracts: The Devil In The Detail, William W. Park

Faculty Scholarship

Energy contracts have long been vexed by questions about the role of gap filling by arbitrators and judges, along with the effect of changed circumstance on the parties’ obligations. Each challenge continues to resist facile analysis as differing legal standards interact with subtleties of contract language and factual matrixes. In the face of these challenges, arbitrators must seek a delicate equilibrium between legitimate respect for bargains and an equally legitimate recognition of expectations that genuine gaps be filled and dramatically changed circumstances receive appropriate consideration. In aiming for counterpoise, common sense normally pays greater dividends than ideology or dogmatism.

Helping Buyers Beware: The Need For Supervision Of Big Retail, Rory Van Loo

Faculty Scholarship

Since the financial crisis, consumer regulators have closely supervised sellers of credit cards and home mortgages to stamp out anticompetitive practices. Supervision programs give financial regulators ongoing access to sophisticated firms' internal data outside the litigation process. This often enables examiners to identify and correct harmful conduct more rapidly and effectively than would be possible using publicly available information and cumbersome legal tools.

Consumers spend four times more on retail goods than on financial products. The retail sector’s dominant firms — such as Amazon, Walmart, Unilever, and Kraft — employ large teams of quantitative experts armed with advanced information technologies, …

Informed Consent And The First Amendment, Wendy K. Mariner, George J. Annas

Faculty Scholarship

For more than two decades, states have been adding to the things that physicians must say and do to obtain “informed consent” — and thereby testing the constitutional limits of states' power to regulate medical practice. In 1992, the Supreme Court upheld states' authority to require physicians to provide truthful information that might encourage a woman to reconsider her decision to have an abortion, finding that such a requirement did not place an “undue burden” on the woman.

An Empirical Perspective On Medicaid As Social Insurance, Nicole Huberfeld, Jessica L. Roberts

Faculty Scholarship

This paper is a contribution to the symposium entitled Scalpel to Gavel: Exploring the Modern State of Health Law. This essay quantifies and explores the central role Medicaid now plays in our health insurance system. For its first forty-nine years, Medicaid covered less than half of the nation’s poor. Today, one in five Americans have Medicaid coverage during the course of a year, and that number soon will increase to one in four given the insurance expansions enacted through the Patient Protection and Affordable Care Act. Medicaid now effectively functions as social insurance for many of its enrollees. In this …

Brady’S Blind Spot: Impeachment Evidence In Police Personnel Files And The Battle Splitting The Prosecution Team, Jonathan Abel

Faculty Scholarship

The Supreme Court's Brady doctrine requires prosecutors to disclose favorable, material evidence to the defense, but in some jurisdictions, even wellmeaning prosecutors cannot carry out this obligation when it comes to one critical area of evidence: police personnel files. These files contain valuable evidence of police misconduct that can be used to attack an officer's credibility on the witness stand and can make the difference between acquittal and conviction. But around the country, state statutes and local policies prevent prosecutors from accessing these files, much less disclosing the material they contain. And even where prosecutors can access the misconduct in …

Using Solo Drama To Make The Teaching Of Social Studies Engaging For Students, Michael Kemeh

Faculty Scholarship

Social studies is a major subject taught in schools in the United States. Research shows lack of interest in the subject by most school children. The author reflects on how he prepares teachers in a graduate drama course to use solo drama as another instructional option to address the problem. The paper also examines integrated solo drama projects by four students in their respective classrooms as case studies. The findings are synthesized to demonstrate the efficacy of this drama strategy for classroom teachers and teacher educators to adopt in making social studies meaningful and engaging for learners.

Fairly Assessing Risk And Recidivism, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Brief Of Amici Curiae Ascentria Care Alliance, Coalition Against Trafficking In Women, Children’S Advocacy Center Of Suffolk County, Demand Abolition, Eva Center, And My Life My Choice In Support Of Plaintiff-Appellee On The Constitutionality Of An Act Relative To The Commercial Exploitation Of People, Commonwealth Of Massachusetts V. Tyshaun Mcghee, Et Al., Julie A. Dahlstrom, Felicia Ellsworth, Tasha Bahal, Michelle Sandals

Faculty Scholarship

The victims' story here is a heartbreaking one, and sadly, all too familiar. Too often, victims are targeted, advertised online, and transported for purposes of prostitution while subjected to poor conditions, coercion, and often physical violence. Recognizing that human trafficking is a pervasive and troubling epidemic, Congress and state legislatures around the country have taken actions to criminalize trafficking, punish its offenders, and provide necessary services for trafficking victims. In 2011, Massachusetts enacted An Act Relative to the Commercial Exploitation of People ("Massachusetts Anti-Trafficking Statute") to address the problem of trafficking in the Commonwealth. Among other key provisions, the Massachusetts …

Weighing Galaxy Disks With The Baryonic Tully-Fisher Relation, Stacy S. Mcgaugh

Faculty Scholarship

We estimate the stellar masses of disk galaxies with two independent methods: a photometrically self-consistent color?mass-to-light ratio relation (CMLR) from population synthesis models, and the baryonic Tully?Fisher relation (BTFR) calibrated by gas-rich galaxies. These two methods give consistent results. The CMLR correctly converts distinct Tully?Fisher relations in different bands into the same BTFR. The BTFR is consistent with Mb ∝ Vf4 over nearly six decades in mass, with no hint of a change in slope over that range. The intrinsic scatter in the BTFR is negligible, implying that the IMF of disk galaxies is effectively universal. The gas-rich BTFR suggests …

Electronic And Structural Elements That Regulate The Excited-State Dynamics In Purine Nucleobase Derivatives, Carlos E. Crespo-Hernández, Christian Reichardt, Marvin Pollum

Faculty Scholarship

The excited-state dynamics of the purine free base and 9-methylpurine are investigated using experimental and theoretical methods. Femtosecond broadband transient absorption experiments reveal that excitation of these purine derivatives in aqueous solution at 266 nm results primarily in ultrafast conversion of the S2(ππ∗) state to the vibrationally excited ¹nπ∗ state. Following vibrational and conformational relaxation, the ¹nπ∗ state acts as a doorway state in the efficient population of the triplet manifold with an intersystem crossing lifetime of hundreds of picoseconds. Experiments show an almost 2-fold increase in the intersystem crossing rate on going from polar aprotic to nonpolar …

Learning Evaluation: Blending Quality Improvement And Implementation Research Methods To Study Healthcare Innovations, Kurt C. Stange

Faculty Scholarship

Background: In healthcare change interventions, on-the-ground learning about the implementation process is often lost because of a primary focus on outcome improvements. This paper describes the Learning Evaluation, a methodological approach that blends quality improvement and implementation research methods to study healthcare innovations. Methods: Learning Evaluation is an approach to multi-organization assessment. Qualitative and quantitative data are collected to conduct real-time assessment of implementation processes while also assessing changes in context, facilitating quality improvement using run charts and audit and feedback, and generating transportable lessons. Five principles are the foundation of this approach: (1) gather data to describe changes made …

The Impact Of Federal Law On A Decedent’S Digital Assets, Sergio Pareja

Faculty Scholarship

Recently, estate planners and scholars have begun to grapple with the problem of transferring digital assets at death. In Probate Law Meets the Digital Age, Professor Naomi Cahn adds an interesting new dimension to this relatively new issue. She focuses on the effect of the Stored Communications Act (“SCA”) on estate administration. Although the SCA does not affect a fiduciary’s ability to distribute assets once they are discovered, it affects the fiduciary’s ability to examine on-line accounts to discover those assets.

The Sikh's Public Relations Problem, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Paper And Flexible Substrates As Materials For Biosensing Platforms To Detect Multiple Biotargets, Umut A. Gurkan

Faculty Scholarship

The need for sensitive, robust, portable and inexpensive biosensing platforms is of significant interest in clinical applications for disease diagnosis and treatment monitoring at the point-of-care (POC) settings. Rapid, accurate POC diagnostic assays play a crucial role in developing countries, where there are limited laboratory infrastructure, trained personnel and financial support. However, current diagnostic assays commonly require long assay time, sophisticated infrastructure and expensive reagents that are not compatible with resource-constrained settings. Although paper and flexible material-based platform technologies provide alternative approaches to develop POC diagnostic assays for broad applications in medicine, they have technical challenges integrating to different detection …

Obama's Looming Legal Trap In Afghanistan, Dawinder S. Sidhu

Faculty Scholarship

The president may create another Guantanamo -- in Afghanistan. Here's why it could backfire on him in a big way.

Segregating Workplaces By Religion, Dawinder S. Sidhu

Faculty Scholarship

Many employers use dress codes to keep visibly religious employees out of sight. Now, the Supreme Court has a chance to end the practice.

Super-Liens To The Rescue? A Case Against Special Districts In Real Estate Finance, Christopher K. Odinet

Faculty Scholarship

In a time of limited resources and sluggish economic growth, competition between cities has become palpable, and the race for new investment often dictates the public agenda. To that end, the explosive growth of public-private partnerships between local governments and private investors has resulted in the creation of a myriad of special taxing districts, the purposes of which are limited only by the imagination. Of particular concern has been the growth of certain real estate development-related districts. Although first conceived to fund critical improvements where conventional credit was not available, in more recently years these special districts have been used …

Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception.

In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswoldoffered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would …