Digital Commons Network^™

Lessons From Katrina: Response, Recovery And The Public Health Infrastructure, Elizabeth Weeks

Scholarly Works

This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

Federal Rule Of Civil Procedure 52(A) As An Ideological Weapon?, Bryan Adamson

Faculty Articles

In this article, the author explores Federal Rule of Civil Procedure 52(a) and standard of review choice to determine whether appellate judges can exploit its terms to pursue ideological goals. The author examines the operative terms of Rule 52(a), viz., findings of fact, clear error, and documentary evidence, and concludes that they are so malleable as to give appellate judges wide discretion in deciding whether clear error, de novo, or some other standard of review is to be applied. The article then goes on to identify fact typologies appellate courts invoke (historical, ultimate, constitutional, legislative, sociological, scientific, political, economic, jurisdictional), …

Geography And International Law: Towards A Postcolonial Mapping, Tayyab Mahmud

Faculty Articles

Postcolonial theory aims at a critical interrogation of legitimizing knowledge claims put forward by proponents of the resurgent Empire. This article undertakes such an interrogation at the intersection of geography and international law. It aims to demonstrate that both modern geography and modern international law were constituted in, by, and through imperatives of Empire and unavoidably bear traces of their formative origin. The aim is to theorize the spatiality of global relations of domination and resistance under the shadow of international law. The article first identifies the vantage point of this critical engagement, namely postcolonial approach to inquiry. It then …

Fishery Conservation And Management Act Reauthorization: “A” For Effort, “C” For Substance, Madeline Kass

Faculty Articles

In one of its last acts of 2006, the 109th Congress passed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (FCMRA), reauthorizing the nation's primary fishing law through the year 2013. The president signed on in early January 2007. Those involved in the reauthorization effort deserve kudos for achieving a successful bipartisan compromise, a relatively rare phenomenon in recent years. Congress also deserves praise for taking positive action towards improving existing law and for rejecting preliminary proposals designed principally to derail conservation efforts. Yet, in the face of unrelenting, catastrophic fish stock declines, it is unclear whether the …

Intellectual Property From Below: Copyright And Capability For Education, Margaret Chon

Faculty Articles

An approach to intellectual property from within a human development framework can contribute meaningfully to the WIPO Development Agenda, which was approved by the WIPO General Assembly in September 2007. Setting the proper regulatory balance between exclusive rights and access through exceptions and limitations to those rights is key to building national innovation capacity. A human development framework allows intellectual property norm-setters to prioritize the development of healthy and literate populations who are foundational to the functioning knowledge economies that intellectual property already assumes. Building upon an earlier piece in which Professor Chon posited that a substantive equality principle was …

Reinforcing Refugee Protection In The Wake Of The War On Terror, Edwin Odhiambo Abuya

Faculty Articles

This article examines how the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) can be used as a practical tool to enhance the protection of persons who have fled their home States in search of asylum in the wake of the global "war on terror." It compares and contrasts provisions of CAT to similar provisions contained in international refugee law. This article contends that, in some respects, the protection provisions of CAT are wider than those found in international refugee law, and, in other respects, narrower than those found in international refugee law. It concludes …

Combating Corruption Through International Law In Africa: A Comparative Analysis, Won Kidane, Tom Snider

Faculty Articles

"Little did we suspect," remarked Nelson Mandela, "that our own people, when they get that chance, would be as corrupt as the apartheid regime. That is one of the things that has really hurt us." Africa is the only continent that has grown poorer over the last three decades. The causes of Africa's existing predicaments are complete; however, there is no argument that deep-rooted corruption is one of the most serious contemporary developmental challenges facing the continent. Mr. Adama Dieng, who the Secretary General of the Organization of African Unity (OAU), the precursor of the African Union (AU), entrusted with …

Protecting The Tribal Harvest: The Right To Catch And Consume Fish, Catherine O’Neill

Faculty Articles

This article transcribes a presentation delivered by Professor O’Neill at the EPA-Tribal Leaders Summit, hosted by the Confederated Tribes of the Umatilla Indian Reservation, August 21-25, 2006. This article maintains that the call to protect tribal harvests—to ensure healthy and robust fisheries—is at the core of the sovereign compact between the United States and the various Native nations. The United States is, in fact, legally obligated to uphold this compact, manifested prominently in the treaties. The United States and the states are also legally bound to remedy a long history of attempts to assimilate and discriminate against Native peoples and …

Alaska Initiatives And Referenda, Tina Ching

Faculty Articles

This article is intended to be used as a starting point for those researching initiative and referendum issues for the state of Alaska. A brief history of I&R in Alaska is followed by an overview of the process. Thepiece concludes with an annotated list of resources to begin research into Alaska I&R.

Slouching Towards Development In International Intellectual Property, Margaret Chon, Denis Borges Barbosa, Andrés Moncayo Von Hase

Faculty Articles

An understanding of intellectual property's classic innovation mandate as only one of many cross-cutting development goals should be well-accepted by now within international intellectual property law and policy, given the pervasiveness of development rhetoric at the WTO, WIPO and other regional and bilateral fora. Yet development "walk" lags behind development "talk" on both international and domestic levels. This article focuses on how intellectual property can promote development, not only through innovation, but also by the promotion of broad-based human development implicitly underpinning global knowledge economies. First, we consider the rapidly evolving relationship of development and trade to intellectual property, and …

Civil Liability For Violations Of International Humanitarian Law: The Jurisprudence Of The Ethiopia-Eritrea Claims Tribunal In The Hague, Won Kidane

Faculty Articles

Violations of international humanitarian law are compensable by a state causing the violations. The roots of this obligation can be traced to Article 3 of Hague Convention IV, which states that a party to the conflict which violates the provisions of [international humanitarian law] shall . . . be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. A similar rule is also contained in Protocol I Additional to the 1949 Geneva Conventions. In practice, the enforcement of this important provision of international humanitarian law has remained a matter …

Past Reflections, Future Insights: African Asylum Law And Policy In Historical Perspective, Edwin Odhiambo Abuya

Faculty Articles

This article argues that an understanding of the evolution of asylum is an essential ingredient in the search for ideas and perspectives to the plight facing forced migrants. Using Kenya as a case study, the paper evaluates the extent to which procedures used to determine claims for asylum, protection outcomes and entitlements met international human rights and refugee law standards. It is contended that limited resources, porous boundaries and the mass movement of asylum seekers have compromised the level of protection offered to those who seek surrogate protection in African states like Kenya. In conclusion, critics in the area of …

Old Hate In New Bottles: Privatizing, Localizing, And Bundling Anti-Spanish And Anti-Immigrant Sentiment In The 21st Century, Steven W. Bender

Faculty Articles

Professor Bender’s introduction focuses on two trends that emerged or accelerated in the past few years - (1) the localization of anti-Spanish and anti-immigrant sentiment and (2) the bundling of anti-Spanish regulation with other anti-immigrant regulation. Although both of these practices have roots in the last century," no doubt of late they have become more widespread and pronounced.

The Contract Thesis Of The Federal Spending Power, David Engdahl

Faculty Articles

This article focuses on the inherent similarities between spending power and contract law, and elaborates on Congress’s ability to “contract” with the States, to have States consent to laws beyond Congress’s enumerated powers with federal funding as consideration. A majority of the federal budget is currently spent on social security, social and economic assistance, education, and other aid and development programs. This “contract” thesis permits our system to maintain the virtues of enumerated federal powers. This analogy might suggest a limited role for private parties in enforcing their terms. The article is offered as an illustration for how legal scholarship …

Poetic (In)Justice? Rap Music Lyrics As Art, Life, And Criminal Evidence, Andrea L. Dennis

Scholarly Works

Courts routinely admit defendant-authored rap music lyrics as substantive evidence in the adjudication of criminal cases. In doing so, courts fail to recognize that rap music lyrics are art. Rather, judges view the interpretation of rap music lyrics as a subject of common knowledge, interpret the defendant's lyrics literally, and characterize lyrics as autobiographical depictions of actual events. In making admissibility decisions, courts must give consideration to the social constraints and artistic conventions impacting the composition and interpretation of rap music lyrics. More particularly, they must understand the commercialized nature of the rap music industry, artist claims of authenticity, and …

The Fragility Of The Affordable Care Act's Universal Coverage Strategy, Elizabeth Weeks Leonard

Scholarly Works

This paper was presented at DePaul University in March 2006, as part of a Symposium on Shaping a New Direction for Law and Medicine: An International Debate on Culture, Disaster, Biotechnology & Public Health. Following the catastrophic events of 2005, including Hurricane Katrina, Pakistani Earthquakes, bird flu transmission to human populations, and the real threat of bioterrorism, government struggled in the aftermath to make sense of the devastation and human displacement. Medical teams, try as they might, are not always prepared and alerted as to how best investigate and quickly render assistance. The Symposium addressed the role of government, policy-makers, …

The "Order-Of-Battle" In Constitutional Litigation, Michael Wells

Scholarly Works

This article examines and defends a procedural rule that figures prominently in constitutional tort litigation, has drawn sharp criticism from the federal judiciary, and seems to have lost the support of at least four sitting Supreme Court Justices. In order to recover damages, plaintiffs must not only prove a constitutional violation but also fend off assertions of official immunity. In ruling on motions to dismiss the complaint and motions for summary judgment, a preliminary question is the sequence in which the two issues should be addressed-a problem the Justices call the "order-of-battle." Morse v. Frederick, the "Bong Hits Jesus" case, …

Cooperative Federalism And Healthcare Reform: The Medicare Part D 'Clawback' Example, Elizabeth Weeks Leonard

Scholarly Works

This symposium article recounts recent litigation by several states over a provision of the Medicare Modernization Act Part D prescription drug benefit: The clawback, which requires states to pay the a potentially substantial portion of new federal program. I then examine the unique federalism implications of the clawback for ongoing state and federal health reform initiatives.

In spring 2006, several states petitioned the United States Supreme Court for original jurisdiction to hear a challenge to one provision of the new Medicare Part D prescription drug law. The federal government, while taking over prescription drug coverage for dually eligible beneficiaries, required …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

Scholarly Works

In general, 2006 was a good year to be a defendant in environmental cases that reached the Eleventh Circuit. The court placed a narrow construction on operator liability for corporate parents under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) and backed agency interpretations of the Clean Air Act (“CAA”) regulations in the face of challenges to their interpretation and use. In an issue of first impression, the court held that the agency’s failure to carry out a nondiscretionary duty under the Endangered Species Act (“ESA”) constituted a one-time, and not a continuing, violation for purposes of applying the …

Bibliography Of Law Review Articles On Disability Law, Ann Puckett

Scholarly Works

Bibliography of law review articles discussing legal issues pertaining to disabilities, originally presented as a continuously updated online database.

Reassessing Damages In Securities Fraud Class Actions, Elizabeth Chamblee Burch

Scholarly Works

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Columns Developing People Skills In The Human–Wildlife Conflict Community, Ben C. West

Human–Wildlife Interactions

No abstract provided.

Deer–Human Conflict And Hunter Access In An Exurban Landscape, Daniel J. Storm, Clayton K. Nielsen, Eric M. Schauber, Alan Woolf

Human–Wildlife Interactions

Exurban development (non-metropolitan, residential development) poses unique challenges for wildlife managers through increases in human–wildlife interactions. However, little is known about hunting activity and human attitudes toward white-tailed deer (Odocoileus virginianus) in exurban areas. In 2004, we surveyed exurbanites near Carbondale, Illinois, regarding their experiences with and attitudes toward deer, whose population in the study area was at or above cultural carrying capacity. Deer–vehicle collisions (DVC) were common and a concern for most respondents (84%). However, DVCs were less influential than plant damage in determining landowner tolerance of deer. Only 19% of respondents allowed hunting on their property, …

Public Opinion, The Leopold Report, And The Reform Of Federal Predator Control Policy, James W. Feldman

Human–Wildlife Interactions

This paper explores the role of public opinion in a landmark shift in the federal predator control program. In 1963, the Leopold Committee recommended extensive reform in the federal predator control program, predicting that growing public support for the environmental movement would force such a move if the government did not initiate a change. In the years following the publication of the Leopold Report, the U.S. Division of Wildlife Services reformed its predator control program and tried to improve its public image. Meanwhile, both environmentalists and ranchers fought to control public opinion about the issue. The 1972 ban on predacides …

Feral Hog Research In Western Louisiana: Expanding Populations And Unforeseen Consequences, Michael D. Kaller, James D. Hudson Iii, Eric C. Achberger, William E. Kelso

Human–Wildlife Interactions

Hunter harvest data suggest that feral hog (Sus scrofa) populations in western Louisiana are increasing, and population control in this region is complicated by the mixing of feral and domestic free-ranged hogs. Aggressive management may be warranted as feral and domestic hogs appear to be having unexpected effects on their ecosystem. We present the results of 3 recent investigations of genetic source-tracking to link waterborne bacteria with bacteria from feral hogs. We integrate our most recent findings with data regarding: (1) water quality in a watershed without hog management and (2) aquatic biota of the same watershed. Hog …

Intrafield Patterns Of Wildlife Damage To Corn And Soybeans In Northern Indiana, Travis L. Devault, James C. Beasley, Lee A. Humberg, Brian J. Macgowan, Mónica I. Retamosa, Olin E. Rhodes Jr.

Human–Wildlife Interactions

Management programs aimed at reducing wildlife damage to row crops rely on information concerning the spatial nature of wildlife damage at local and landscape scales. In this study we explored spatial patterns of wildlife damage within individual corn and soybean fields by describing relationships between specific locations where wildlife damage was recorded and distances from such locations to various habitat types that presumably influenced animal abundance and movements in our study area. Using stratified random sampling, we conducted depredation surveys of 100 corn fields and 60 soybean fields from May through October both in 2003 and 2004 and recorded the …

Hazing Of Canada Geese Is Unlikely To Reduce Nuisance Populations In Urban And Suburban Communities, Robin A. Holevinski, Paul D. Curtis, Richard A. Malecki

Human–Wildlife Interactions

Growing populations of resident Canada geese (Branta canadensis) have caused increased nuisance problems in urban and suburban communities. Hazing, or persistent harassment, is often recommended as a nonlethal management strategy to alleviate these problems. Does hazing simply cause a local redistribution of birds, or can it solve nuisance problems by pushing geese to rural areas where hunting mortality could reduce the population? To answer this question, we marked 368 adult and 400 juvenile geese with leg bands in 1 urban and 1 suburban community in western New York State during June 2002 and 2003. This sample included 30 …

Is "Internal Consistency" Dead?: Reflections On An Evolving Commerce Clause Restraint On State Taxation, Walter Hellerstein

Scholarly Works

Under the "internal consistency" doctrine articulated by the U.S. Supreme Court under the dormant Commerce Clause, a state tax must be structured so that if every state were to impose an identical tax, interstate commerce would fare no worse than intrastate commerce. Although a relatively recent addition to the Court's Commerce Clause jurisprudence, the doctrine has played a significant role as the basis for the judicial invalidation of a wide array of state and local taxes. In American Trucking Associations, Inc., v. Michigan Public Service Commission, 545 U.S. 429 (2005), however, the Court sustained an admittedly "internally inconsistent" $100 per …

Clerks, Peter B. Rutledge

Scholarly Works

Book Review of Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court, Artemus Ward and David L. Weiden. NYU, 2006. Pp xiv, 337. and Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk, Todd C. Peppers. Stanford, 2006. Pp xv, 301

Population Viability Analysis Of Monk Parakeets In The United States And Examination Of Alternative Management Strategies, Stephen Pruett-Jones, James R. Newman, Michael L. Avery, James R. Lindsay

Human–Wildlife Interactions

In the United States, monk parakeets (Myiopsitta monachus) are expanding their geographical distribution, and their overall population size is growing exponentially. Monk parakeets are causing widespread economic damage in the United States by nesting on utility structures, which leads to electrical fires and power outages. Although few life history data are available for the species from North America, extensive data are available from the species’ native range in South America. Incorporating data from South America into the population viability analysis program VORTEX, we simulated population growth in United States monk parakeets to determine whether it is likely that …