Digital Commons Network^™

Voter Primacy, Sarah Haan

Faculty Scholarship

No abstract provided.

Contra Proferentem And The Role Of The Jury In Contract Interpretation, Ethan J. Leib, Steve Thel

Faculty Scholarship

Revisiting Bill Whitford’s work on the role of the jury in contract interpretation and his work on consumer form contracting inspired us to take a careful look at a doctrine of contract interpretation that is usually thought to help consumers in interpretive battles with those who draft their contracts unilaterally. But we found that contra proferentem -- the canon that requires construing or interpreting a contract against the drafter when ambiguities arise -- is more confusing than we expected. What we have done here is lay out some of the complexities of the doctrine, focusing on its broader application outside …

China After The Reform Era, Carl F. Minzner

Faculty Scholarship

China’s reform era is ending. Core factors that characterized it – political stability, ideological openness, and rapid economic growth – are unraveling. In part, this is the result of Beijing’s steadfast refusal to contemplate fundamental political reform. Since the early 1990s, this has fueled the rise of entrenched interests within the Communist Party itself. It has also contributed to the systematic underdevelopment of institutions of governance among state and society at large. Now, to address looming problems confronting the nation, Chinese leaders are progressively cannibalizing institutional norms and practices that have formed the bedrock of the regime's stability in the …

The Myth Of The Double- Edged Sword: An Empirical Study Of Neuroscience Evidence In Criminal Cases, Deborah W. Denno

Faculty Scholarship

This Article presents the results of my unique study of 800 criminal cases addressing neuroscience evidence over the past two decades (1992–2012). Many legal scholars have theorized about the impact of neuroscience evidence on the criminal law, but this is the first empirical study of its kind to systematically investigate how courts assess the mitigating and aggravating strength of such evidence. My analysis reveals that neuroscience evidence is usually offered to mitigate punishments in the way that traditional criminal law has always allowed, especially in the penalty phase of death penalty trials. This finding controverts the popular image of neuroscience …

Theorizing Precedent In International Law, Harlan G. Cohen

Faculty Scholarship

Precedent presents a puzzle for international law. As a matter of doctrine, judicial decisions construing international law are not-in-and-of themselves law. They are not binding on future parties in future cases, even before the same tribunal. And yet, international precedent is everywhere. From international investment to international criminal law to international human rights to international trade, prior decisions are invoked, argued over, and applied as precedents by practitioners and by tribunals.

How and why do certain interpretations of international law take on the weight of precedent, reshaping international law arguments around them, while others do not? This chapter develops a …

Introduction: The Place Of Agencies In Polarized Government, Cynthia R. Farina, Gillian E. Metzger

Faculty Scholarship

Peter Strauss's The Place of Agencies in Government: Separation of Powers. and the Fourth Branch reshaped contemporary thinking about the constitutionality of federal administrative government. When the article appeared in 1984, the Reagan Revolution was in full swing. Reagan's overtly antiregulatory policy stance and his Administration's advocacy of a highly formalist and originalist style of constitutional interpretation fundamentally challenged the post-New Deal administrative state. Aggressive interpretation of Article II led to controversial strategies of White House control: centralized rulemaking review, appointment of agency heads loyal to the President's (anti)regulatory agenda, and attacks on institutions of administrative independence such as the …

The States As National Agents, Gillian E. Metzger

Faculty Scholarship

I am delighted for the chance to engage with Heather Gerken's work. I want to begin by offering tremendous kudos. I think the new nationalist school of federalism is a very exciting intellectual development. Over the years, many federalism scholars have emphasized the importance of state participation in federal programs. But Gerken's recent writings, and those of other contributors – Abbe Gluck, Jessica Bulman-Pozen, and Erin Ryan – have forced this phenomenon onto center stage, highlighting the ways that devolution advances nationalist goals. With her characteristic elegance and provocation, Gerken's Article contends that the centrality of nation-state conjoining requires casting …

Unmistakably Clear: Human Rights, The Right To Representation, And Remedial Voting Rights Of People Of Color, Matthew H. Charity

Faculty Scholarship

The Author critiques the Supreme Court’s analysis in its Shelby County v. Holder decision, which found the preclearance requirement of the Voting Rights Act unconstitutional by applying a disparate treatment analysis to how States were treated under the Act. Such a reading of the Act makes a number of tacit and explicit assumptions with regard to the choice by the Federal Government and by the States of whose rights governmental actors must protect. The Court reached its conclusion by decontextualizing the Civil Rights movement and the Voting Rights Act from decolonization and post-World War II expressions of human rights, a …

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Faculty Scholarship

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …

The United States, In Comparative Counter-Terrorism, Sudha Setty

Faculty Scholarship

The United States, like all other democratic nations that have suffered terrorist attacks, continues to struggle with questions of how to keep its population safe while maintaining the principles of democracy and the rule of law. This Book Chapter discusses the United States' counterterrorism policies, particularly since the September 11 terrorist attacks, and the resulting changes in societal viewpoints, political agendas, and the legal authority to combat terrorism and threats of terrorism.

The government’s aggressive counterterrorism stance has influenced actions and policies outside the United States. The Author’s exploration of counterterrorism policies in the United States include: criminal law and …

South Atlantic Mpas And Deepwater Coral Hapcs: Characterization Of Benthic Habitat, Benthic Macrobiota, And Fish Communities; Noaa Ship Nancy Foster 2014 Cruise. Noaa Cioert Report., John K. Reed, Stephanie Farrington, Stacey Harter, Harbor Branch Oceanographic Institute

Faculty Scholarship

A 10 day research cruise was conducted by NOAA National Marine Fisheries, June 18 to 27, 2014, on the NOAA Ship Nancy Foster with the new Flower Garden Banks National Marine Sanctuary (FGBNMS) Mohawk ROV. Collaborators included the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute, Florida Atlantic University (HBOI-FAU), College of Charleston, and University of North Carolina at Wilmington (ROV operations). Recently, the South Atlantic Fishery Management Council (SAFMC) established eight deepwater Marine Protected Areas (MPAs) along the outer continental shelf off the southeastern U.S. This cruise was the final cruise of a …

Electrochemical Synthesis Of Ammonia: A Low Pressure, Low Temperature Approach, Julie N. Renner

Faculty Scholarship

This article describes the importance of nitrogen-containing compounds and describes the key role played by ammonia in multiple domains. Following a brief description of the traditional method to synthesize ammonia, the article highlights a low temperature and low-pressure electrochemical route for the manufacture of ammonia. The article posits that a successful electrolytic ammonia process would enable a new nitrogen fertilizer industry based on networks of distributed-scale, near-point-of-use production plants. A concept for an alkaline anion exchange membrane based device for electrolytic ammonia production is described. The challenges associated with engendering selective electrocatalysis for the half-cell reactions are discussed. Finally, a …

Unsexing The Fourth Amendment, I. Bennett Capers

Faculty Scholarship

No abstract provided.

The Overlooked French Influence On The Intellectual Property Clause, Sean O'Connor

Faculty Scholarship

No abstract provided.

The Feminist Jurisprudence Of Jack Weinstein, Anita Bernstein

Faculty Scholarship

No abstract provided.

Constructing Autonomy, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Talking Points, Alex Stein, Jef De Mot

Faculty Scholarship

No abstract provided.

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Comparative Jury Procedures, Kenneth S. Klein

Faculty Scholarship

The literature considering various possible procedural reforms to United States jury trial practice suffers from a high dose of American Exceptionalism. The experience of other nations rarely is acknowledged, much less considered as possibly informative. This Article argues that as a British-derived system of roughly identical vintage as the United States, the jury practices of Malta can inform American practice in three respects: (1) the desirability of increased juror interaction – in particular allowing oral juror questions to witnesses and allowing deliberation during the trial, (2) the utility of eliminating voir dire in jury selection, and (3) the possibility of …

Ultracrepidarianism In Forensic Science: The Hair Evidence Debacle, David H. Kaye

Faculty Scholarship

For over 130 years, scientific sleuths have been inspecting hairs under microscopes. Late in 2012, the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers joined forces to review thousands of microscopic hair comparisons performed by FBI examiners over several of those decades. The results have been astounding. Based on the first few hundred cases in which hairs were said to match, it appears that examiners “exceeded the limits of science” in over 90% of their reports or testimony. The disclosure of this statistic has led to charges that the FBI “faked an entire field of forensic …

Out Of Breath And Down To The Wire, Nancy C. Marcus

Faculty Scholarship

This article chronicles a series of breathtakingly disturbing police killings of unarmed black men (and a child) in a single year’s time, spanning from between July 2014 to July 2015, which have resulted in national outcry and sparked a movement toward police reform across the country. The article details a number of the suggested remedial measures offered to address the problem of excessive lethal police force across the country and concludes that, among the proposed reforms, one of the most important is a renewed emphasis of critical constitutional limitations upon permissible lethal police force and other unjustified treatment of individuals …

Should Agencies Enforce?, Max J. Minzner

Faculty Scholarship

This Article explores an important but understudied structural choice: the decision to vest enforcement authority in administrative agencies. Each year, agencies routinely bring enforcement actions producing billions of dollars in civil penalties and industry-reshaping consent decrees. Where do they get this power? Congress grants enforcement authority to administrative agencies because it believes that agency subject matter expertise will generate appropriate enforcement choices. Similarly, the Supreme Court has strongly deferred to agency enforcement because it sees it as intimately intertwined with other agency regulatory decisions. Scholars have also generally taken for granted that specialist agencies will be enforcement experts because they …

Spatial Terrorism, Dawinder S. Sidhu

Faculty Scholarship

Terrorism, under federal law, generally means an act of politically- or socially-motivated violence perpetrated against innocents. Terrorism within the meaning of federal law, in other words, exists only if a cognizable motive is uncovered. This definition also sees the United States as an undifferentiated landscape—by its own terms, it fails to take into account any geographic nuance in acts of mass violence. This Article suggests that spatial considerations are relevant in determining whether an act of mass violence constitutes an act of terrorism for purposes of federal law. It points to cities—which are characterized by a highly concentrated, fluid population, …

Agora: Reflections On Zivotofsky V. Kerry Presidential Signing Statements And Dialogic Constitutionalism, Catherine Powell

Faculty Scholarship

When the Supreme Court held that the executive branch has exclusive authority to recognize foreign sovereigns in the Jerusalem passport case, Zivotojsky v. Kerry (Zivotojsky lI), Jack Goldsmith hailed the decision as a "vindication" of presidential signing statements and executive power. Indeed, in the context of the debate over the treatment of the terror suspects, the New York Times had called such signing statements the "constitutionally ludicrous" work of an overreaching, "imperial presidency." Others in this Symposium and elsewhere have covered what a "bonanza" Zivotojsi II is for foreign relations law, the competing visions of foreign relations at the case's …

Methodology And Misdirection: Custom And The Icj, Harlan G. Cohen

Faculty Scholarship

No abstract provided.

Postmarital Family Law: A Legal Structure For Nonmarital Families, Clare Huntington

Faculty Scholarship

Family law is based on marriage, but family life increasingly is not. The American family is undergoing a seismic shift, with marriage rates steadily declining and more than four in ten children now born to unmarried parents. Children of unmarried parents fall far behind children of married parents on a variety of metrics, contributing to stark inequality among children. Poverty and related factors explain much of this differential, but new sociological evidence highlights family structure — particularly friction and dislocation between unmarried parents after their relationship ends — as a crucial part of the problem. As the trend toward nonmarital …

Regleprudence – At Oira And Beyond, Nestor M. Davidson, Ethan J. Leib

Faculty Scholarship

There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into …

Due Process And The Non-Citizen: A Revolution Reconsidered, Joseph Landau

Faculty Scholarship

Mathews v. Eldridge is typically understood to be a ruling limiting due process protections in benefits determinations, but this case of judicial restraint in ordinary domestic law has activist features where non-citizens are concerned. The transplantation of Mathews into the critical areas of immigration and national security has produced a body of law that is slowly ushering in rights-affirming outcomes and weakening conventional doctrines of exceptionalism in immigration and national security. There are two chief reasons for this. First, ever since Mathews required an explicit judicial determination of private interests, courts have used an increasingly particularistic, case-by-case analysis in immigration …

The Theft Of Social Security, Constantine N. Katsoris

Faculty Scholarship

No abstract provided.

Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra

Faculty Scholarship

The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written. The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of …