Digital Commons Network^™

A House Still Divided, Clare Huntington

Faculty Scholarship

In response to Adam B. Cox, Immigration Law's Organizing Principles, 157 U. PA. L. REv. 341 (2008).

Adam Cox's Immigration Law's Organizing Principles contests the traditional view that immigration law and alienage law – in his terms, "selection rules" and "regulation rules" – are distinct categories with legal and moral salience. Building upon prior scholarship that also called the distinction into question, Cox offers important insights into why this dividing line does not have the sharp conceptual edges that the jurisprudence would suggest exist. Despite the analytical persuasiveness of Cox's argument, I am not convinced that it will destabilize the …

Repairing Family Law, Clare Huntington

Faculty Scholarship

Scholars in the burgeoning field of law and emotion have paid surprisingly little attention to family law. This gap is unfortunate because law and emotion has the potential to bring great insights to family law. This Article begins to fill this void — and inaugurate a larger debate about the central role of emotion in family law — by exploring the intriguing and significant consequences for the regulation of families that flow from a theory of intimacy first articulated by psychoanalytic theorist Melanie Klein. According to Klein, individuals love others, inevitably transgress against those they love out of hate and …

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Faculty Scholarship

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants, and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Intuition, Morals, And The Legal Conversation About Gay Rights, Suzanne B. Goldberg

Faculty Scholarship

When lawyers and judges converse in litigation, factual and legal analysis typically takes center stage. Yet, when the legal conversation turns to the rights of lesbians, gay men, and bisexuals, the ground shifts. Intuition and morals rationales often displace evidence-based reasoning. More specifically, arguments to limit the rights of lesbians and gay men tend to depend explicitly on intuition, and sometimes morality, in ways that contemporary arguments to restrict the rights of other social groups rarely do.

In addressing this dissonance, this essay has two central aims. The first is simply to observe the disproportionate openness to arguments based on …

Federal Sentencing In 2007: The Supreme Court Holds – The Center Doesn't, Daniel C. Richman

Faculty Scholarship

This essay takes stock of federal sentencing after 2007, the year of the periphery. On Capitol Hill, Attorney General Alberto Gonzales resigned in the face of widespread criticism over his role in the replacement of several U.S. Attorneys. In the Supreme Court, the trio of Rita v. United States, Gall v. United States, and Kimbrough v. United States clarified and perhaps extended the breadth of license given to district judges in an advisory guideline regime. In contrast to the Supreme Court's sentencing cases, which focus on the allocation of authority between judges and juries, and the bulk of the …

Contractual Enforcement Institutions And The Structure Of Information, Avery W. Katz

Faculty Scholarship

Many economic writers on contract theory have assumed that legal institutions are simply unable to do the job of enforcement, and have thus attempted to devise arrangements that motivate the parties to keep their commitments even though a government tribunal would be unable to tell whether they had performed. But non-legal enforcement mechanisms operate both as substitutes and complements for legal mechanisms (and as substitutes and complements for each other). This essay sketches how parties should choose among available enforcement mechanisms, based on the costs of information and other transaction costs.

Decline And Fall? The Roberts Court And The Challenges To Campaign Finance Law, Richard Briffault

Faculty Scholarship

The Supreme Court has had a major impact on the development of campaign finance law. Court decisions have barred most expenditure limits, upheld contribution restrictions and disclosure requirements, and limited the kinds of electoral ads that can be subject to regulation. In the McConnell decision in 2003 the Court demonstrated a greater openness to campaign finance regulation when it upheld McCain-Feingold's soft money and issue advocacy restrictions. Since McConnell, however, the composition of the Court has changed, and in two decisions in the past two years, the new majority has been much more hostile to campaign finance limits. In …

Equality Opportunity: Marriage Litigation And Iowa's Equal Protection Law, Suzanne B. Goldberg

Faculty Scholarship

Discrimination claims against longstanding rules invite the public and the courts to rethink the status quo and address overarching legal and social commitments to equality together with questions specific to the case at hand. Lawsuits seeking marriage rights for same-sex couples quintessentially illustrate this multilayered nature of law reform litigation, as the debates they provoke focus not only on the rights of same-sex couples but also on the meaning of marriage and the meaning of equality more generally. While few other than lawyers, judges, and perhaps some reporters actually read the equal protection and due process arguments that the presiding …

Children, Kin, And Court: Designing Third Party Custody Policy To Protect Children, Third Parties And Parents, Joshua Gupta-Kagan

Faculty Scholarship

Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful.

States currently have …

Climate Change And The Limits Of The Possible, Jedediah S. Purdy

Faculty Scholarship

Climate change looks to be more than just another environmental problem. It threatens to test the limits of our dominant ways of understanding and solving, not just environmental problems, but problems of political economy generally. Climate change has distinctive temporal and spatial features – how long it takes to unfold and the ways in which its effects are distributed across the globe – which may outstrip the capacity of our basic principles of economic and political decision-making. If so, then understanding the issue in a static way may ensure that we expect to fail in addressing it and are inarticulate …

Corn Futures: Consumer Politics, Health, And Climate Change, Jedediah S. Purdy, James Salzman

Faculty Scholarship

The rise of corn has brought great benefits, but its large and growing costs have also become increasingly clear. In this Article, we explore the unprecedented roles of corn in our economy, explain how law and policy have shaped these roles, uncover the environmental and social impacts of corn, and consider how to think of consumption in this context. If voting-by-buying is an increasingly relevant model of consumer engagement, can we envision consumers being presented with choices that address the social and environmental harms from our dependence on corn? More generally, how should we think about consumer engagement, both its …

The Cultural Defense: Reflections In Light Of The Model Penal Code And The Religious Freedom Restoration Act, Kent Greenawalt

Faculty Scholarship

Much of this essay is an inquiry into just how cultural factors might figure in claims about elements of offenses, justifications, excuses, and mitigations under the Model Penal Code – still the most comprehensive and systematic code of criminal law in the United States. That exploration gives us a sense of how culture may matter for criminal liability absent a specifically labeled "cultural defense"; it also provides an idea of how much could be accomplished by expansions of the standard defenses.

In the latter part of the essay, I think about cultural practices as a potential justification or generalized exemption …

Rethinking Copyright: Property Through The Lenses Of Unjust Enrichment And Unfair Competition, Shyamkrishna Balganesh

Faculty Scholarship

For some time now, scholars have come to recognize the existence of numerous structural infirmities deeply embedded within the modern copyright system. Most of these infirmities have been attributed to internal tensions within copyright law and policy, including the competing philosophies of access and control, use and exclusion, and rights and exceptions. Professor Stadler’s insightful article documents these tensions and proposes a new way of mediating them. She argues that copyright law is best understood as instantiating a restriction
on unfair competition and, consequently, that it should do little more than protect creators of original works from “competitive harm” in …

Demystifying The Right To Exclude: Of Property, Inviolability, And Automatic Injunctions, Shyamkrishna Balganesh

Faculty Scholarship

The right to exclude has long been considered a central component of property. In focusing on the element of exclusion, courts and scholars have paid little attention to what an owner's right to exclude means and the forms in which this right might manifest itself in actual property practice. For some time now, the right to exclude has come to be understood as nothing but an entitlement to injunctive relief – that whenever an owner successfully establishes title and an interference with the same, an injunction will automatically follow. Such a view attributes to the right a distinctively consequentialist meaning, …

Can Congress Authorize The Opponents Of Self-Financed Candidates To Receive Extra-Large Contributions?, Richard Briffault

Faculty Scholarship

Is the so-called Millionaires’ Amendment, which permits federal candidates who are running against self-funded opponents to receive contributions significantly above the standard federal statutory ceiling constitutional?

Federal law caps contributions to federal candidates, but the Supreme Court has ruled that limits on how much money a candidate can contribute to his or her own campaign are unconstitutional. This case tests the 2002 Millionaires’ Amendment, which enables candidates for Congress running against self-financing opponents to obtain contributions well above the ordinary statutory ceiling and also imposes additional reporting requirements on self-funding candidates.

Courts, Constitutions, And Public Finance: Some Recent Experiences From The States, Richard Briffault

Faculty Scholarship

Unlike the federal Constitution, virtually all state constitutions give detailed attention to questions of public finance. State constitutions limit spending, mandate certain types of spending, constrain taxation and debt, and require special procedures for enacting a budget. One consequence of the constitutionalization of the state fisc is its judicialization, as these measures trigger litigation. Fiscal and political conflicts turn into legal disputes, with courts joining governors and legislatures in shaping state budgets and making state fiscal policy.

This chapter provides an early-21st-century snapshot of the state constitutional law of state finance through a survey of six recent state supreme court …

"See Me, Feel Me, Touch Me, Hea[R] Me" (And Maybe Smell And Taste Me, Too): I Am A Trademark – A Us Perspective, Jane C. Ginsburg

Faculty Scholarship

The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) …

Student Satisfaction And Performance In An Online Teacher Certification Program, Heidi Schweizer, Carrianne H. Hayslett, Sharon Katherine Kayne Chaplock

College of Education Faculty Research and Publications

The article presents a study which demonstrates the effectiveness of an online post baccalaureate teacher certification program developed by a Wisconsin university. The case method approach employing multiple methods and multiple data sources were used to investigate the degree to which pre-service teachers were prepared to teach. It was concluded that the study supports online delivery as an effective means of teacher preparation, but it was limited in the number of students followed into their first year of teaching.

Critical Thinking As Disciplinary Practice, Stephen C. Yanchar, Brent D. Slife, Russell Warne

Faculty Publications

Critical thinking in psychology has traditionally focused on method-centered tasks such as the assessment of method use, data analysis, and research evidence. Although helpful in some ways, this form of critical thinking fails to provide resources for critically examining the scientific-analytic foundation on which it rests and, when used exclusively, prohibits sufficiently critical analysis of theory and research. An alternative view of critical thinking—that emphasizes the identification and evaluation of implicit theoretical assumptions—is advocated. It is suggested that this alternative approach improves upon method-centered approaches by addressing not only implicit assumptions but also rule-following concerns. This approach is intended to …

A Tribute To Robert L. Oakley: Remembering Bob Oakley, Roger F. Jacobs

Journal Articles

A tribute to Robert L. Oakley, Professor and Law Librarian (1945-2007).

Monte Carlo Modeling Of Spatial Coherence: Free-Space Diffraction, Donald D. Duncan, David G. Fischer, Scott A. Prahl

Electrical and Computer Engineering Faculty Publications and Presentations

We present a Monte Carlo method for propagating partially coherent fields through complex deterministic optical systems. A Gaussian copula is used to synthesize a random source with an arbitrary spatial coherence function. Physical optics and Monte Carlo predictions of the first- and second-order statistics of the field are shown for coherent and partially coherent sources for free-space propagation, imaging using a binary Fresnel zone plate, and propagation through a limiting aperture. Excellent agreement between the physical optics and Monte Carlo predictions is demonstrated in all cases. Convergence criteria are presented for judging the quality of the Monte Carlo predictions.

Deconstructing Equity: Public Ownership, Agency Costs, And Complete Capital Markets, Ronald J. Gilson, Charles K. Whitehead

Faculty Scholarship

The traditional law and finance focus on agency costs presumes that the premise that diversified public shareholders are the cheapest risk bearers is immutable. In this Essay, we raise the possibility that changes in the capital markets have called this premise into question, drawn into sharp relief by the recent private equity wave in which the size and range of public companies being taken private expanded signficantly. In brief, we argue that private owners, in increasingly complete markets, can transfer risk in discrete slices to counterparties who, in turn, can manage or otherwise diversify away those risks they choose to …

Market Damages, Efficient Contracting, And The Economic Waste Fallacy, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Market damages are the best default rule when parties trade in thick markets: They induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors bundle services that are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. When the cost of completion is large relative to the "market delta " – the increase in market value – courts concerned with avoiding "economic waste" limit the …

Meritocracy: A Socio-Educational Policy Conundrum Transversing Selected Works Of James Bryant Conant, Benjamin Enoma

Dissertations, Theses, and Capstone Projects

In the United States, adjacent strands of the meritocratic discourse intercept by accident of history. It occurs either in the Jeffersonian tradition of culling from all sectors of the populace a natural aristocracy of talents as proposed by James Conant through the development of Scholastic Aptitude Tests, or by expanding the structure of opportunity to all individuals and leveling uneven terrains through social policies like desegregation of schools and affirmative action. In other words, it is a case of policies based on the 'laissez-faire' doctrine versus those based on governmental intervention. "This interception to some degree has fused the strands …

Turning Space Into Place In The Sprawling “New City”: Shrinking Space, Visions Of Place, Homeowners In Conflict, Lael Leslie

Dissertations, Theses, and Capstone Projects

Was there a "real place" to be found in the sprawling "new city" landscape? This interview study considers the categories of sprawl as a placeless, apolitical space, and of the suburban white middle class, to explore how "place" is variously understood by homeowners confronting rapid spatial reconfiguration. The interviewees are residents of a municipality located in one of New Jersey's "growth corridors." Emphasis is on homeowners' experiences, and on what they view as problems related to rapid growth.

Given the long settlement history of this northeastern seaboard region, this study finds that relations among homeowners had changed over time in …

The Corruption Of Civilizations, Timothy K. Kuhner

Faculty Publications By Year

No abstract provided.

Book Review Of Establishing Justice In Middle America: A History Of The United States Court Of Appeals For The Eighth Circuit, Scott Dodson

Faculty Publications

This book review of Jeffrey Morris’s Establishing Justice in Middle America argues that although Morris makes an important contribution to the understudied Court of Appeals for the Eighth Circuit, he fails to engage the reader in the personalities that populated the court, eschews the development of coherent themes running through the court’s membership changes and temporal scope, and omits important cases that helped define the court as an independent judicial body.

State Administration Vs. Self-Government In The Slovak And Czech Republics, Phillip J. Bryson

Faculty Publications

In the transition experience, the Czech and Slovak Republics have made some effort to achieve fiscal decentralization. From independence to EU accession, the devolution of power designed to strengthen the autonomy of local governments according to the principles of subsidiarity have also included a reform of public administration. The nature of reform efforts and their implications for the fiscal decentralization are analyzed. The failure to achieve a robust autonomy for subnational governments is due to the ongoing adherence to the notion of the "state administration" as opposed to self-government in both republics.

Perpetual Dissents, Allison Orr Larsen

Faculty Publications

No abstract provided.

Fixed Justice: Reforming Plea-Bargaining With Plea-Based Ceilings, Russell D. Covey

Faculty Publications By Year

The ubiquity of plea bargaining creates real concern that innocent defendants are occasionally, or perhaps even routinely, pleading guilty to avoid coercive trial sentences. Pleading guilty is a rational choice for defendants as long as prosecutors offer plea discounts so substantial that trial is not a rational strategy regardless of guilt or innocence. The long-recognized solution to this problem is to enforce limits on the size of the plea/trial sentencing differential. As a practical matter, however, discount limits are unenforceable if prosecutors retain ultimate discretion over charge selection and declination. Because the doctrine of prosecutorial charging discretion is immune to …