Digital Commons Network^™

"Oh Lord, Please Don't Let Me Be Misunderstood!": Rediscovering The Mathews V. Eldridge And Penn Central Frameworks, Gary S. Lawson, Katharine Ferguson, Guillermo A. Montero

Faculty Scholarship

Mathews v. Eldridge, which addresses the procedures that must be provided for deprivations of life, liberty, or property under the Due Process Clauses, and Penn Central Transportation Co. v. City of New York, which guides inquiry into when governmental regulations rise to the level of takings of property that require just compensation, are decisions with near-canonical status. Mathews and Penn Central have some noteworthy parallels. Each decision is widely regarded as prescribing a three-factor test for resolving questions that arise under its respective domain. Each decision is almost universally decried as unworkable, incomplete, subjective, and incapable of consistent application. And …

The Scopes Trope, Jay D. Wexler

Faculty Scholarship

In his book, Where Darwin Meets the Bible: Creationists and Evolutionists in America, journalist Larry Witham introduces the reader to the various characters involved in the ongoing controversy over evolution and creationism. His account is subtle and nuanced, and he demonstrates that the controversy is more complicated than many believe. Far from caricatures of godless scientists seeking to discard religion in thedustbin of history and reactionary religious fundamentalists decrying Darwinism as the downfall of mankind, Witham gives us the real stories of real people who dwell in shades far more gray than usually recognized. This book review builds upon Witham's …

The Manager's Share, David I. Walker

Faculty Scholarship

It is sometimes argued in the corporate governance literature that the total share of corporate value that can be extracted by a manager is fixed and independent of the avenues through which value is extracted. Shareholders need not worry about an activity such as insider trading, the story goes, because any profits achieved by a manager through insider trading will simply offset conventional compensation. This article challenges that idea and argues that whether one views the manager's share as being capped by external market forces, set by an optimal principal/agent contract, or limited by saliency and outrage in accordance with …

Bargaining And Distribution In Special Education, Daniela Caruso

Faculty Scholarship

The problem of unequal access to educational services in the US has received the attention of courts and legislators for several decades. A traditional source of inequality, increasingly addressed by scholars and law-makers, is the discrimination against students with disabilities, who were once deprived tout court of real educational opportunities.' In this field, legislative intervention has been momentous and political forces across ideological lines have converged to provide children with disabilities proper access to public learning. The reform of special education has achieved tangible results in the last thirty years and has provided children with unprecedented opportunities.

The Republic Of Choice, The Pledge Of Allegiance, The American Taliban, Pnina Lahav

Faculty Scholarship

In two important books, The Republic of Choice and The Horizontal Society, published in 1990 and 1999 respectively, Lawrence M. Friedman presents his theories of a massive social transformation which occurred in the last century. I wish to examine these theories through the prism of two cases: Elk Grove Unified School District v. Newdow3 and Hamdi v. Rumsfeld,4 both decided in the spring of 2004. Both Newdow and Hamdi have been at the center of public controversy for many months; each case carries many of the ingredients presented in Friedman's The Republic of Choice and The Horizontal Society. I shall …

Cry Me A River: The Limits Of 'A Systemic Analysis Of Affirmative Action In American Law Schools', Angela Onwuachi-Willig, Kevin Johnson

Faculty Scholarship

This article is a response to Richard H. Sander's article, A Systemic Analysis of Affirmative Action in American Law Schools, which recently appeared in the Stanford Law Review. In his article, Professor Sander argues that affirmative action in law schools harms, rather than helps, African American law students by setting up African American students, who are out-matched by their white peers in terms of undergraduate grade point average and LSAT scores, for failure. Specifically, Professor Sander contends that because affirmative action enables African Americans to attend law schools for which they are unqualified, they are more likely to perform poorly …

Tragedy & Remedy: Reparations For Disparities In Black Health, Kevin Outterson

Faculty Scholarship

The Tragedy of American health care is the stubborn persistence of disparities in Black health, one hundred and forty years after Emancipation, and more than four decades after the passage of Title VI. Formal legal equality has not translated into actual health equality. This Tragedy is deeper and older than mere legal forms; it has been supported by powerful social institutions, including some governments, charities, market participants, religions, ideologies, and cultures. Black health disparities interact with other vestiges of slavery such as disparities in wealth, education, employment and housing. They have permeated the American health experience. Efforts to eliminate Black …

Pharmaceutical Arbitrage: Balancing Access And Innovation In International Prescription Drug Markets, Kevin Outterson

Faculty Scholarship

While neoclassical economic theory suggests that arbitrage will undermine global differential pricing of pharmaceuticals, the empirical results are more complex. Pharmaceutical regulation, IP laws, global trade agreements, and company policies support differential pricing despite the pressure of arbitrage. For essential access programs in particular, the theoretical threat of pharmaceutical arbitrage is shown to be rarely observed empirically. Counterfeiting is demonstrated to be the more serious threat. These conclusions call for changes in the U.S. PEPFAR program for AIDS and in the implementation of the WTO TRIPS Agreement.

A more fundamental question, however, is whether pharmaceutical differential pricing is appropriate for …

Bend It Like Beckham And Real Women Have Curves: Constructing Identity In Multicultural Coming-Of-Age Stories, Linda C. Mcclain

Faculty Scholarship

This Article looks at the coming-of-age stories in two recent films, Bend It Like Beckham and Real Women Have Curves, as an avenue to explore the question of constructing identity. Both films, arising out of the filmmakers' experiences, aim to offer representations of particular individuals in minority groups that challenge dominant representations. They also offer aspirational visions of how such individuals might find a way to construct a hybrid identity that allows them to negotiate their place within the various groups that claim them and within the broader society. How, the article asks, do the heroines in these films find …

The Nature Of Arbitral Authority: A Comment On Lesotho Highlands, William W. Park

Faculty Scholarship

Arbitration unfolds within an enclosure created by the contract terms and the applicable arbitration law. Some measure of judicial scrutiny must be imposed to ensure that an award does not fall beyond an arbitrator’s authority. But how should one identify excess of authority? The House of Lords decision in Lesotho Highlands v. Impreglio serves as a prism through which to separate several themes that inhere in the nature of arbitral authority. In rejecting arguments that an error about the currency of an award represented an excess of jurisdiction, their Lordships confirmed a healthy appreciation that arbitrators do not exceed their …

The Vanishing Public Domain: Antibiotic Resistance, Pharmaceutical Innovation And Global Public Health, Kevin Outterson

Faculty Scholarship

Penicillin and other antibiotics were the original wonder drugs and laid the foundation of the modern pharmaceutical industry. Human health significantly improved with the introduction of antibiotics. By 1967, the US Surgeon General declared victory over infectious diseases in the US. But pride goes before a fall. The evolutionary pressure of antibiotic use selects for resistant strains with the least fitness cost. Effective drugs should be used. But when they are used, no matter how carefully, evolutionary pressure for resistance is created. The problem is not limited to antibiotics. Variants of the human immunodeficiency (AIDS) virus develop resistance to anti-retroviral …

A Criminal Procedure Regime Based On Instrumental Values: A Review Of 'About Guilt And Innocence: The Origins, Development, And Future Of Constitutional Criminal Procedure,' By Donald A. Dripps (Prager Publishers, 2003), Tracey Maclin

Faculty Scholarship

Like many legal academics, Professor Donald Dripps believes that the Supreme Court's criminal procedure doctrine is a mess. Dripps believes that the Court's doctrine "is in large measure responsible for the failure of the criminal-procedure revolution" and contends that "current doctrine does not reflect prevailing (and justified) values about criminal process." To prove his claim, Dripps has written a book that expertly identifies the flaws, inconsistencies and missteps of the Court's constitutional criminal procedure cases dating back to the adoption of the Fourteenth Amendment. "About Guilt and Innocence: The Origins, Development, and Future of Constitutional Criminal Procedure" is a comprehensive …

Leading Towards A Level Playing Field, Repaying Ecological Debt, Or Making Environmental Space: Three Stories About International Environmental Cooperation, Karin Mickelson

All Faculty Publications

This article considers a number of different ways of conceptualizing the relationship between South and North in the environmental context, focusing on international responses to climate change and, particular, the Kyoto Protocol to the United Nations Framework Convention on Climate Change. It explores three stories about international cooperation. One derives from the concept of "ecological debt," the second comes from the concept of "environmental space," and the third, which might be said to underlie the U.S. approach to the Kyoto Protocol at the present time, is labelled "leading towards a level playing field." This article provides an overview of all …

Child Soldiers: Legal And Military Challenges In Confronting A Global Phenomenon, Benjamin Perrin

All Faculty Publications

Book note re: Children at War by Peter W. Singer (New York: Pantheon, 2005). "Over the last decade, the existence of child soldiers has been brought to light through a barrage of graphic international news agency articles and human rights reports. Usually, these materials only identify sporadic and often sensationalized cases. What has been less forthcoming is a deeper understanding of what P.W. Singer calls the “child-soldier doctrine”: a calculated and pervasive strategy by armed groups to use children as combatants. Children at War is an admirable effort at making this daunting topic accessible to a wider public policy audience, …

The Limited Path Dependency Of Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Complexity Theory, Adaptation, And Administrative Law, Donald Thomas Hornstein

Faculty Publications

No abstract provided.

Crawford's Impact On Hearsay Statements In Domestic Violence And Child Sexual Abuse Cases, Robert P. Mosteller

Faculty Publications

No abstract provided.

A Penny For Their Thoughts: Draft Resistance At The Poston Relocation Center, Eric L. Muller

Faculty Publications

No abstract provided.

Foreword, Eric L. Muller

Faculty Publications

Judgments Judged and Wrongs Remembered: Examining the Japanese American Civil Liberties Cases on Their Sixtieth Anniversary

Two Theories Of Fairness, Nathan Schneider

LSU Master's Theses

In A Theory of Justice, John Rawls argues that justice is to be understood as fairness. The theory of justice as fairness is an ethical theory which argues that broad principles are able to capture the nature of what constitutes a just society. Rawls argues that all that is required for a society to be just is for it to be fair. A just society is one which has institutions which protect individual rights and liberties of all citizens and has a pattern of distribution of resources. Rawls' institutional approach to justice has one problem. Rawls' theory of justice as …

Physical Function And Health Related Quality Of Life In Culturally Diverse Elders: Evidence Of Environmental Press, Robyn M. Bossier

LSU Master's Theses

The purpose of this project was to identify group differences in physical function and HRQL between older adults living in different environments, and to compare information from these groups to data from a random sample of elders pulled from the general population. METHODS: Seventy-eight older adults were evaluated for physical function using the continuous-scale physical functional performance test (CS-PFP) and HRQL using the SF-36 v.2. Subjects were 26 predominantly African American participants (LOW group; age 72.2 ± 8.1 years), 26 Caucasian adults (HIGH group; age 77.6 ± 4.8 years), and 26 adults selected from a population-based study (POP group; age …

American Disillusionment And The Search For Self-Fulfillment In The 1970'S: A Cultural History Of Taxi Driver, Annie Hall, And Saturday Night Fever, Joshua Elliot Lubin

LSU Master's Theses

Three popular and critically acclaimed films of the post-Watergate era illustrated and criticized the period’s disillusionment. Likewise, a series of political and economic crises spawned a shift in American culture. The Sixties’ mass social movements dissolved into the Seventies and launched a trend in which Americans became preoccupied with themselves more than the state of the nation. Controlling one’s own destiny became a collective obsession when confronted with the period’s various political and economic ailments. The “Me” decade turned inward rather than concern itself with public issues. Therefore, American culture earned dubious labels such as narcissistic and decadent from critics …

Installed Base Opportunism And The Scope Of Intellectual Property Rights In Software Products, Andrew Chin

Faculty Publications

No abstract provided.

Merit V. Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Toward A Reform-Minded Model For Securities Law Enforcement, Cristie Ford

All Faculty Publications

This paper examines a significant shift in enforcement practice at the United States Securities and Exchange Commission, originating under the Chairmanship of William Donaldson but likely to continue beyond it. This shift is a response to a crisis of corporate governance, exemplified by recent scandals among various public corporations and financial services institutions, and to the demonstrated inadequacy of SEC enforcement tools to respond to that crisis. While the SEC's new approach, which I call the Reform Undertaking, is incomplete, I argue that if properly implemented it may have the potential to spur institutional reform not only in corporate governance, …

Power, Politics, And The 1997 Restructuring Of Higher Education Governance In Kentucky, Michael Allen Garn

University of Kentucky Doctoral Dissertations

This study describes the policymaking process and policy solutions enacted in the Kentucky Postsecondary Improvement Act of 1997 (or House Bill 1). The study employs both an historical recounting of the story of House Bill 1 and a narrative analysis of opinion-editorials and policymaker interviews to reveal and explain how political power comprised both the perennial problem of Kentuckys higher education policymaking and the tool with which conflicts over power distribution were resolved. The study uses three theoretical frameworks (the Multiple-Streams, Punctuated-Equilibrium, and Political Frame) to explore the rise of restructuring on Kentuckys policymaking agenda, its most contentious issue (separation …

The Emperor Is Still Under-Dressed, David J. Buller, Jerry Fodor, Tessa Crume

Faculty Articles, Papers, and Other Scholarship

No abstract provided.

Lawyers, Justice And The Challenge Of Moral Pluralism, Katherine R. Kruse

Scholarly Works

The debate over whether it serves or undermines the interests of justice for lawyers to temper the zeal of their advocacy based on considerations of morality or justice has largely been polarized between two camps: traditionalists and moralists. Traditionalists defend the amoral role of lawyers, arguing that lawyers should remain moral neutral in their representation of clients. Moralists propose alternative social justice lawyering models, which urge lawyers' morally engagement in their choice of clients, their interpretation of law, and their counseling of clients.

This article revisits the debate by recasting the question at its center. Instead of inquiring what a …

Testing Democracy: The Case Of The 17th Amendment And Constituency Representation, Rhonda Wrzenski

LSU Master's Theses

This paper examines a unique aspect of Congressional history centering on the passage of the 17th amendment in 1913, which shifted the power of U.S. Senate elections from the state legislature to state electorates. This paper examines how the passage of the amendment affected the relationship between characteristics of the state electorate and the roll call behavior of U.S. Senators. Due to the historical nature of the time period, I use Presidential election results by state, party control of the governorship and upper and lower chambers of the state legislature, as well as a number of demographic variables, to estimate …

Vernacular Exposures At The Aillet House: Anthropological Interpretations Of Material Culture And Cultural Change, Kelli Ostrom

LSU Master's Theses

The thesis project developed from preliminary archaeological testing in 1999 at site 16WBR45, the original location of the Aillet House. The results of the testing were informative as they suggested the placement of the house and attested to casual activity on the porch. However, the results certainly did not answer the need for a more discerning interpretation of the historic house museum known as the Aillet House, currently on display at the West Baton Rouge Parish Museum. I collaborated with the museum in 2004 to bring to their current interpretive program anthropological insights gained from archaeological remains, an architectural survey …