Digital Commons Network^™

The Use And Abuse Of Labor's Capital, David H. Webber

Faculty Scholarship

The recent financial crisis has jeopardized the retirement savings of twenty-seven million Americans who depend on public pension funds, leading to cuts in benefits, increased employee contributions, job losses, and the rollback of legal rights like collective bargaining. This Article examines ways in which public pension funds invest against the economic interests of their own participants and beneficiaries, and the legal implications of these investments. In particular, the Article focuses on the use of public pensions to fund privatization of public employee jobs. Under the ascendant — and flawed — interpretation of the fiduciary duty of loyalty, public pension trustees …

Windsor, Surrogacy, And Race, Khiara Bridges

Faculty Scholarship

Scholars and activists interested in racial justice have long been opposed to surrogacy arrangements, wherein a couple commissions a woman to become pregnant, give birth to a baby, and surrender the baby to the couple to raise as its own. Their fear has been that surrogacy arrangements will magnify racial inequalities inasmuch as wealthy white people will look to poor women of color to carry and give birth to the white babies that the couples covet. However, perhaps critical thinkers about race should reconsider their contempt for surrogacy following the Supreme Court’s recent decision in United States v. Windsor. In …

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

Faculty Scholarship

There are several normative theories of jurisprudence supporting our critique of the scored society, which complement the social theory and political economy presented in our 2014 article on that topic in the Washington Law Review. This response to Professor Tal Zarsky clarifies our antidiscrimination argument while showing that is only one of many bases for the critique of scoring practices. The concerns raised by Big Data may exceed the capacity of extant legal doctrines. Addressing the potential injustice may require the hard work of legal reform.

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

Brief Of Amici Curiae Antitrust Law Professors In O'Bannon V. Ncaa, Thomas C. Arthur, Amitai Aviram, Edward D. Cavanagh, Jorge L. Contreras, Daniel A. Crane, Susan Beth Farmer, Herbert Hovenkamp, Keith N. Hylton, Michael S. Jacobs, Alan J. Meese, Salil K. Mehra, William H. Page, Gary R. Roberts, D. Daniel Sokol, Alexander Volokh

Faculty Scholarship

On November 21, 2014, 15 professors of antitrust law at leading U.S. universities submitted an amicus brief in the O'Bannon v. NCAA 9th Circuit appeal in support of the NCAA. They have an interest in the proper development of antitrust jurisprudence, and they agree that the court below misapplied the “less restrictive alternative” prong of the rule of reason inquiry for assessing the legality of restraints of trade under Section 1 of the Sherman Act, 15 U.S.C. § 1. They are concerned that the district court’s approach to the antitrust rule of reason, if affirmed, would grant undue authority to …

Manifestations And Implications Of Uncertainty For Improving Healthcare Systems: An Analysis Of Observational And Interventional Studies Grounded In Complexity Science, Kurt C. Stange

Faculty Scholarship

BACKGROUND: The application of complexity science to understanding healthcare system improvement highlights the need to consider interdependencies within the system. One important aspect of the interdependencies in healthcare delivery systems is how individuals relate to each other. However, results from our observational and interventional studies focusing on relationships to understand and improve outcomes in a variety of healthcare settings have been inconsistent. We sought to better understand and explain these inconsistencies by analyzing our findings across studies and building new theory.METHODS: We analyzed eight observational and interventional studies in which our author team was involved as the basis of our …

Deportations Violate U.S., Global Laws, Jennifer Moore

Faculty Scholarship

The detention and summary deportation of these moms and kids is in violation of U.S. and international law.

Molecular Approaches To Chromatography Using Single Molecule Spectroscopy, Lydia Kisley

Faculty Scholarship

No abstract provided.

Aereo And Copyright's Private-Public Performance Line, Glynn S. Lunney Jr

Faculty Scholarship

On January 10, 2014, the Supreme Court granted certiorari in American Broadcasting Cos. v. Aereo, Inc. By doing so, the Court has seized an opportunity to bring some rationality to copyright's line between public and private performances. In this pending case, the respondent, Aereo, uses thousands of tiny antennae to capture television broadcast signals, which then transmit the signals to its subscribers over the Internet. The question presented is whether Aereo "publicly performs" the copyrighted works carried in the television broadcast signals that are captured and retransmitted.

We Don't Need A "Right To Be Forgotten." We Need A Right To Evolve, Dawinder S. Sidhu

Faculty Scholarship

The sad symptom of a judgmental culture

Unexpected Challenges: Youth, Public Housing Reform And Mixed-Income Development, Mark L. Joseph

Faculty Scholarship

In this brief, we explore the role of and responses to youth in three mixed-income communities in Chicago— Oakwood Shores, Park Boulevard, and Westhaven Park—built on the footprint of large public housing complexes as part of the Chicago Housing Authority’s (CHA) Plan for Transformation. We draw on the perspectives of residents and development professionals expressed in interviews, focus groups, and through field observation, although we were not able to speak with youth directly. We examine both expectations about youth in mixedincome developments and perceptions of how young people contribute to social dynamics and interaction in these contexts. We also explore …

Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker

Faculty Scholarship

In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of “ripeness” requiring most Fifth Amendment regulatory-takings claimants to seek “just compensation” in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora’s box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs the …

Upending A Global Debate: An Empirical Analysis Of The U.S. Supreme Court’S Use Of Transnational Law To Interpret Domestic Doctrine,, Ryan C. Black, Ryan J. Owens, Daniel E. Walters, Jennifer L. Brookhart

Faculty Scholarship

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical …

Real Estate Documents Turn Green, Richard J. Sobelsohn

Faculty Scholarship

No abstract provided.

Making Smart Decisions About Surveillance: A Guide For Communities, Chris Conley, Matthew Cagle, Peter Bibring, Jessica Farris, Linda Lye, Mitra Ebadolahi, Nicole Ozer

Faculty Scholarship

California communities are increasingly grappling with whether to deploy new surveillance technologies ranging from drones to license plate readers to facial recognition. This is understandable, since public safety budgets are tight, technology vendors promise the ability to do more with less, and federal agencies or industry sponsors may even offer funding.

But surveillance can be both less effective and far more costly to local agencies and to the community at large than initially imagined, leaving communities saddled with long-term bills for surveillance that doesn't end up making the community safer. Surveillance can also be easily misused, leading to the erosion …

Chevron At The Roberts Court: Still Failing After All These Years, Jack M. Beermann

Faculty Scholarship

This article looks at how Chevron deference has fared at the Supreme Court since John G. Roberts became Chief Justice. The article looks at Chevron deference at the Roberts Court from three distinct angles. First, the voting records of individual Justices in cases citing Chevron are examined to shed light on the strength of each Justice’s commitment to deference to agency statutory construction. Second, a select sample of opinions citing Chevron are qualitatively examined to see whether the Roberts Court has been any more successful than its predecessor in constructing a coherent Chevron doctrine. Third, the article looks closely at …

Overlapping Copyright And Trademark Protection: A Call For Concern And Action, Irene Calboli

Faculty Scholarship

In this Article, I tackle a controversial topic-the overlapping trademark and copyright protection that can apply to creative works such as fictional characters, pictures, video clips, and songs. In particular, I highlight the possible negative consequences that granting trademark protection to these works-concurrently or after the expiration of copyright protection- can have on the societal bargain upon which copyright protection is built and justified. To date, scholars have only limitedly addressed these consequences, and more academic attention is needed in this area. In contrast, the advantages of trademark rights in creative works (in their entirety or in separated features of …

One Worldwide Set Of Global Accounting Standards - Hmm, Neal F. Newman

Faculty Scholarship

An effort is currently underway that involves a monumental shift in the way accounting and financial information is reported. In progress is an endeavor to move provinces around the world onto one single set of global accounting standards. The body leading this effort is the International Accounting Standards Board ("IASB"), a London-based independent agency. The accounting regime being proposed is referred to as International Financial Reporting Standards ("IFRS"). The stated rationale behind this global effort is one of comparability and uniformity (i.e., all economies around the world speaking one accounting language).

This paper examines the contemplated worldwide adoption of IFRS. …

Why The Supreme Court Beard Case Matters, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Capital's Offense: Law's Entrenchment Of Inequality, Frank A. Pasquale

Faculty Scholarship

Reviewing Thomas Piketty, Capital in the Twenty-First Century (Harvard University Press, 2014)

Piketty’s Capital in the Twenty-First Century is a rare scholarly achievement. It weaves together description and prescription, facts and values, economics, politics, and history, with an assured and graceful touch. So clear is Piketty’s reasoning, and so compelling the enormous data apparatus he brings to bear, that few can doubt he has fundamentally altered our appreciation of the scope, duration, and intensity of inequality. This review explains Piketty’s analysis and its relevance to law and social theory, drawing lessons for the re-emerging field of political economy.

The university …

The Hidden Costs Of Health Care Cost-Cutting: Toward A Postneoliberal Health-Reform Agenda, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

History And A Case For Prescience: Short Studies Of Sylvia Plath’S 1956 Poems, Julia Gordon-Bramer

Faculty Scholarship

Unavailable.

Catholic Conversion And Incest In Dryden's "Don Sebastian", Geremy Carnes

Faculty Scholarship

John Dryden's decision to end his 1689 tragedy, Don Sebastian , with the discovery of an act of incest has persistently puzzled the plays readers. The historical Sebastian almost certainly died in the battle which immediately precedes the events of the play; a slightly delayed death would therefore have been a logical conclusion to the play. Or, Dryden could have followed the traditions of romance and legend, which took hope from the fact that Sebastian's body had never been found. These stories, which grew up among the Portuguese after they had been conquered by Spain in 1 580, held that …

Probability, Professionalism, And Protecting Taxpayers, Bradley T. Borden, Dennis J. Ventry, Jr.

Faculty Scholarship

No abstract provided.

Converting Benchslaps To Backslaps: Instilling Professional Accountability In New Legal Writers By Teaching And Reinforcing Context, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander

Faculty Scholarship

No abstract provided.

Lost In The Weeds Of Pot Law: The Role Of Ethics In The Movement To Legalize Marijuana, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Billionaires, Birds, And Environmental Brawls: Reconceptualizing Energy Easements, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

Our 'Patchwork' Health Care System: Melodic Variations, Counterpoint, And The Future Role Of Physicians, William M. Sage

Faculty Scholarship

This Foreword to a forthcoming symposium on the "patchwork" health care system to be published in the Houston Journal of Health Law & Policy considers whether current reactions to fragmentation in health care represent minor variations on a longstanding theme in US health policy or offer a more substantial counterpoint to that theme. The theme is this: that perfect physicians should be allowed to control health care even if safeguards are needed in practice because real physicians are not perfect. The Foreword previews four scholarly articles featured in the published symposium. It concludes that, while all the articles present original …

Federalism As A Way Station: Windsor As Exemplar Of Doctrine In Motion, Neil S. Siegel

Faculty Scholarship

This article asks what the U.S. Supreme Court’s opinion in United States v. Windsorstands for. It first shows that the opinion leans in the direction of marriage equality but ultimately resists any dispositive “equality” or “federalism” interpretation. The article next examines why the opinion seems intended to preserve for itself a Delphic obscurity. The article reads Windsor as an exemplar of what judicial opinions may look like in transition periods, when a Bickelian Court seeks to invite, not end, a national conversation, and to nudge it in a certain direction. In such times, federalism reasoning and rhetoric—like declining to …