Digital Commons Network^™

Distributing The Responsibility To Protect, Monica Hakimi

Faculty Scholarship

Over the past several decades, the central focus of international law has shifted from protecting only sovereign states to protecting individuals. Still, the worst imaginable human rights abuses – genocides, ethnic cleansings, crimes against humanity, and systemic war crimes – occur with alarming frequency. And the international response is often slow or ineffectual.

The most recent development for addressing this problem is the ‘responsibility to protect’, an idea that has received so much attention that it now goes simply by R2P. R2P stands for two basic propositions. First, each state must protect its population from atrocities. This proposition is well …

Honoring And Celebrating Myrna Raeder, Brett Dignam

Faculty Scholarship

It is a great privilege to be honoring Myrna Raeder and to celebrate her impressive career, scholarship and personhood. How appropriate to bring together scholars and advocates who share and will carry on her passions. Thank you everyone at Southwestern Law School who worked so hard to imagine and realize this symposium, for gathering us together, and for giving us the opportunity to reflect on the many gifts and fierce challenges Myrna gave to each of us. There is no finer tribute we can give than to carry on her work – the development of ideas and the encouragement of …

The Influence Of Juridical Cant On Edificatory Approaches In 21st-Century America, David Pozen

Faculty Scholarship

This essay reframes the debate over the "growing disjunction" between legal scholarship and legal practice. Law review articles continue to make the world a better place, the essay stipulates. But are judicial opinions becoming less useful to students and scholars? A rigorous analysis and concrete prescriptions follow.

The Rites Of Dissent: Notes On Nationalist Federalism, Jessica Bulman-Pozen

Faculty Scholarship

Responding to Heather K. Gerken’s Childress Lecture, Federalism and Nationalism: Time for a Détente?

In this response, I consider how the nationalist school of federalism reconceptualizes nationalism, and not only federalism. Taking as my starting point Gerken’s claim that federalism can be good for nationalism, that nationalists should “believe in giving power to the states,” I first outline two possible understandings of nationalism suggested by this claim — that “national” refers to the federal government, and that “national” refers to a unified American polity — and explain what it would mean for federalism to serve nationalism so understood. After rejecting …

Risk As A Proxy For Race: The Dangers Of Risk Assessment, Bernard E. Harcourt

Faculty Scholarship

Actuarial risk assessment in the implementation and administration of criminal sentencing has a long history in this country – a long and fraught history. Today, many progressive advocates promote the use of actuarial risk assessment instruments as part of a strategy to reduce the problem of "mass incarceration." Former Attorney General Eric Holder has called on the U.S. Sentencing Commission to hold hearings to further consider the matter of risk assessment and prediction tools in sentencing and parole.

The objective – to reduce our massive over-incarceration in this country – is critical and noble. But risk assessment tools are simply …

Loser Pays: The Latest Installment In The Battle-Scarred, Cliff-Hanging Survival Of The Rule 10b-5 Class Action, John C. Coffee Jr.

Faculty Scholarship

When I was an upper-year student at Yale Law School in the late 1960s, I was sometimes as undermotivated as contemporary upper-year law students regularly appear to be. But there was then an appropriate role model for us: a graduate student, brimming with efficiency and self-discipline, who occupied a carrel in the law library, seemingly working day and night on a special research project. He had piled law review articles and cases a foot or more about his carrel, and anyone walking by could see that he seemed obsessed with something called Rule 10b-5. I had dimly heard of this …

Leverage, Default, And Mortality: Evidence From Cancer Diagnoses, Arpit Gupta, Edward R. Morrison, Catherine Fedorenko, Scott Ramsey

Faculty Scholarship

This paper tests whether housing wealth mitigates the effects of health shocks on financial stress and mortality. We link cancer records to mortgage, bankruptcy, foreclosure, and credit report data. We find that cancer diagnoses are financially destabilizing even for households with health insurance, but the effect is driven by households without home equity. Households with equity extract it (by refinancing a mortgage or taking out a second). They are also more likely to accept recommended therapies and have higher post-diagnosis survival rates. Our findings show that housing wealth plays an important role in understanding how individuals buffer idiosyncratic shocks.

Enhancing Child Care For Children With Special Needs Through Technical Assistance, Cyleste C. Collins, Robert L. Fischer, Nina Lalich

Faculty Scholarship

Children with special needs often require additional supports in child care settings. The provision of technical assistance (TA) and consultation to child care teachers is an established method for addressing this need. This study expands on existing research by bringing the perspective of different adults (parents, technical assistance consultants, teachers, and child care center directors) together to better understand the experiences of all parties involved in TA cases for children between the ages of three and five. The concerns most frequently leading to the consultation were social-emotional-behavioral (50.5%), developmental (32.3%), medical (28.3%), and environmental risk (14%), and one quarter of …

The Duty To Manage Risk, A. Christine Hurt

Faculty Scholarship

No abstract provided.

Cyber Sovereignty: The Way Ahead, Eric Talbot Jensen

Faculty Scholarship

The last few years are full of reports of cyber incidents, some of which have caused significant damage. Each of these cyber events raise important questions about the role and responsibility of States with respect to cyber incidents. The answer to these questions revolves in large part around the international law doctrine of sovereignty. The extent to which nations exercise sovereignty over cyberspace and cyber infrastructure will provide key answers to how much control States must exercise and how much responsibility States must accept for harmful cyber activities when they fail to adequately do so. This article argues that States …

Future War And The War Powers Resolution, Eric Talbot Jensen

Faculty Scholarship

Since its passage in 1973 over the veto of then-President Nixon, the War Powers Resolution (WPR) has been laden with controversy. Labeled as everything from ineffective to unconstitutional, the WPR has generally failed in its design to require notification and consultation to Congress by the President. Despite numerous proposals to amend the WPR, it continues to languish in the twilight of Executive war powers, and its future is bleak. With emerging technologies such as drones, cyber tools, nanotechnology, and genomics, the ineffectiveness of the WPR will prove even more profound. The WPR’s reliance on “armed forces” and “hostilities” as triggers …

Global Medical Education Partnerships To Expand Specialty Expertise: A Case Report On Building Neurology Clinical And Research Capacity, Marco A. Costa, Anthony Furlan, Chris T. Longenecker, Shirley Moore, Svetlana Pundik, Daniel I. Smith, Kathleen A. Smyth, Martha Sajatovic

Faculty Scholarship

Background: Neurological disorders are a common cause of morbidity and mortality in sub-Saharan African, but resources for their management are scarce. Collaborations between training institutions in developed and resource-limited countries can be a successful model for supporting specialty medical education and increasing clinical and research capacity. Case report: This report describes a US National Institutes of Health (NIH) funded Medical Education Partnership Initiative (MEPI) to enhance expertise in neurology, developed between Makerere University College of Health Sciences in Kampala, Uganda, and Case Western Reserve University School of Medicine in Cleveland, OH, USA. This collaborative model is based on a successful …

The Third Law Of Galactic Rotation, Stacy S. Mcgaugh

Faculty Scholarship

I review the connection between dynamics and the baryonic mass distribution in rotationally-supported galaxies. The enclosed dynamical mass-to-light ratio increases with decreasing galaxy luminosity and surface brightness. The correlation with surface brightness appears to be the more fundamental, with the dependence on luminosity following simply from the weaker correlation between luminosity and surface brightness. In addition to this global relation, there is also a local relation between the amplitude of the mass discrepancy and the acceleration predicted by the observed distribution of baryons. I provide an empirical calibration of this mass discrepancy-acceleration relation. The data are consistent with the operation …

The Past And Future Of Copyright Politics, Jessica Silbey

Faculty Scholarship

No abstract provided.

A Randomized Noninferiority Trial Of Condensed Protocols For Genetic Risk Disclosure Of Alzheimer's Disease, Peter J. Whitehouse, Melissa Barber Butson

Faculty Scholarship

Introduction Conventional multisession genetic counseling is currently recommended when disclosing apolipoprotein E (APOE) genotype for the risk of Alzheimer's disease (AD) in cognitively normal individuals. The objective of this study was to evaluate the safety of brief disclosure protocols for disclosing APOE genotype for the risk of AD. Methods A randomized, multicenter noninferiority trial was conducted at four sites. Participants were asymptomatic adults having a first-degree relative with AD. A standard disclosure protocol by genetic counselors (SP-GC) was compared with condensed protocols, with disclosures by genetic counselors (CP-GC) and by physicians (CP-MD). Preplanned co-primary outcomes were anxiety and depression scales …

Privacy Doesn't Exist In A Vacuum, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Framing A “Wicked” Debate: Subsistence, Nutrition, And Indigenous Rights Versus Deforestation, Air Pollution, And Climate Change, Cynthia Fowler

Faculty Scholarship

This presentation considers anthropogenic environmental change as a wicked problem in which multiple, divergent understandings of complex systems and changing conditions coexist. The stakes are high with this wicked problem for the whole Earth and all of humanity. Stakes are especially high in the tropical agropastoral communities whose resource management systems are the subject of much consternation and, at the same time, whose systems are incompletely known.

Proposed Secondary Liability Regimes For Trademark Infringement Online: Commentary, Irene Calboli, Jane Ginsburg, Amy Cotton, Bob Weigel, Bruce Rich, Miguel Peguera

Faculty Scholarship

No abstract provided.

Reading The Tea Leaves In Singapore: Who Will Be Left Holding The Bag For Secondary Trademark Infringement On The Internet, Irene Calboli

Faculty Scholarship

This Article explores the issue of secondary liability in Singapore trademark law, with particular attention to intermediaries on the Internet, including Internet service providers (ISPs), e-commerce companies, search engines, website operators, online financial service providers and social media sites. Section 27(5) of the Singapore Trade Marks Act attributes liability to those who use a mark "knowing or having reasons to believe" that such use is not authorized by the trademark owner or licensee. More precisely, the provision excludes trademark liability for those "persons" who use a trademark in the course of trade, namely "for labelling or packaging goods" or as …

The Case For An International Court Of Civil Justice, Maya Steinitz

Faculty Scholarship

We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. 1 The only way to provide a fair and legitimate process for both victims and corporations is to create an International Court of Civil Justice (ICCJ). This Essay seeks to start a conversation about this novel institutional solution. It lays out both a justice case, from the plaintiffs' viewpoint, and an efficiency case, from a corporate defendant's viewpoint, for why …

Specially Invited Opinions And Research Report Of The International Water Law Project: Global Perspectives On The Entry Into Force Of The Un Watercourses Convention 2014: Part One, Gabriel Eckstein, Salman M.A. Salman, Dinara Ziganshina, Kishor Uprety, Götz Reichert

Faculty Scholarship

This is the first part of a two-part research report on opinions of prominent international water lawyers from each continent on the potential impacts of the 1997 UN Convention on Non-Navigational Uses of International Watercourses. The second part of the report was published in Water Policy 17(1).

The following compilation is reproduced and adapted from a series of essays that appeared in the blog of the International Water Law Project (www.internationalwaterlaw.org). The series was solicited in preparation for the coming into force of the 1997 UN Convention on the Non-navigational Uses of International Watercourses. The Convention had been pending for …

How Copyright Law May Affect Pop Music Without Our Knowing It, Peter K. Yu

Faculty Scholarship

Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy?

It is …

Sharing Stupid $H*T With Friends And Followers: The First Amendment Rights Of College Athletes To Use Social Media, Meg Penrose

Faculty Scholarship

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

The Greenback, The Humpback, And The Silverback: How A Third Wave Of Federal Water Policy Could Benefit The West, Reed D. Benson

Faculty Scholarship

Proposing any major new federal initiative regarding water in the western United States might seem preposterous, given conventional wisdom and entrenched positions on state control of water resources. But there is a strong rationale, and a growing imperative, for a new federal water .policy for the West. Many river basins face serious problems as limited water supplies are over-allocated, demands continue to increase, and climate change promises to exacerbate the West's perennial problems of scarcity and variability. Solutions to such problems are likely to be expensive and will need to address national interests as well as state and local concerns. …

Answering The "Serious Constitutional Question": Ensuring Meaningful Review Of All Constitutional Claims, George Bach

Faculty Scholarship

In 2012, the Supreme Court in Elgin v. Department of the Treasury clarified the standard that should apply when a federal statute purports to remove judicial review of all constitutional claims. The Court confirmed that, if a statute only channels judicial review of a constitutional claim into a specific avenue (for example, through administrative review and then the Federal Circuit Court of Appeals), then Congressional intent to do so need only be fairly discernible.' Alternatively, if a statute precludes all judicial review of a constitutional claim, there must be 'clear Congressional intent.' The Court explained that the reason for these …

Immigration Separation Of Powers And The President's Power To Preempt, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Promoting Innovation While Preventing Discrimination: Policy Goals For The Scored Society, Pasquale, Frank, Citron, Danielle Keats, Frank Pasquale, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

50 Years Of Legal Education In Ethiopia: A Memoir, Stanley Z. Fisher

Faculty Scholarship

In this paper I describe my experience as one of the early members of the Haile Selassie I University (H.S.I.U.), Law Faculty, and share my reflections on developments in the ensuing years.

Microsoft's Antitrust Travails, Keith N. Hylton

Faculty Scholarship

Andrew Gavil and Harry First’s book on the Department of Justice’s litigation against Microsoft will undoubtedly become one of the standard references for anyone who studies these cases in the future. This litigation has been a big enterprise in the courts, especially the landmark D.C. Circuit opinion in 2001. 1 Repercussions continue today, with new raids on Microsoft’s operations in China to investigate vaguely described concerns of the Chinese government over product bundling and interoperability, issues at the core of the Microsoft litigation from the start.

Gavil and First have two goals: to provide a road map and history of …

Nonprofit Executive Pay As An Agency Problem: Evidence From U.S. Colleges And Universities, Brian D. Galle, David I. Walker

Faculty Scholarship

We analyze the determinants of the compensation of private college and university presidents from 1999 through 2007. We find that the fraction of institutional revenue derived from current donations is negatively associated with compensation and that presidents of religiously-affiliated institutions receive lower levels of compensation. Looking at the determinants of contributions, we find a negative association between presidential pay and subsequent donations. We interpret these results as consistent with the hypotheses that donors to nonprofits are sensitive to executive pay and that stakeholder outrage plays a role in constraining that pay. We discuss the implications of these findings for the …