Digital Commons Network^™

Labor Injunctions In Bankruptcy: The Norris-Laguardia Firewall, Michael C. Duff

All Faculty Scholarship

This article considers whether federal courts, including bankruptcy courts, are authorized to issue injunctions in connection with various kinds of labor disputes arising after the filing of a petition in bankruptcy. The question takes on renewed importance in light of the record number of Chapter 11 bankruptcy filings in 2008, including filings by two of the three major American automakers, which are unionized. Given the increasing complexity of some of these notorious reorganizations, the likelihood of post-petition labor disputes appears to have correspondingly increased. In agreement with the few federal circuits that have considered the question, the article concludes that, …

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

All Faculty Scholarship

In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of …

Toward A Theory Of Persuasive Authority, Chad Flanders

All Faculty Scholarship

The debate about the citation of foreign authorities has become stale. One side says that citing foreign authorities means being beholden to foreign sovereigns. The other side responds that this is nonsense, as the authorities are being used only for their "persuasive value." But do we even have a good idea of what it means to be a persuasive authority? My essay is the first to focus entirely on the notion of persuasive authority and to make the first steps towards providing a general theory of it. I make two major contributions. First, I try to show that there is …

A Plea For Reality, Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

Legend has it that a long-ago Chief Justice of Texas said, “No judicial selection system is worth a damn.” This view has been all but proven by American experience; nothing else in American law matches this subject in terms of the volume of written debate and endless sweat spent working for change. The selection system for federal judges is unchanged but far from untroubled, and

the States have never used a common method . . . . [O]ne can identify almost as many different methods . . . as there are States in the Union . . . . Moreover, …

Our Founding Feelings: Emotion, Commitment, And Imagination In Constitutional Culture, Doni Gewirtzman

University of Richmond Law Review

No abstract provided.

The Harmful Side Effects Of Drug Prohibition, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Some drugs make people feel good. That is why some people use them. Some of these drugs are alleged to have side effects so destructive that many advise against their use. The same may be said about statutes that attempt to prohibit the manufacture, sale, and use of drugs. Advocating drug prohibition makes some people feel good because they think they are “doing something” about what they believe to be a serious social problem. Others who support these laws are not so altruistically motivated. Employees of law enforcement bureaus and academics who receive government grants to study drug use, for …

Is The Constitution Libertarian?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Ever since Justice Holmes famously asserted that “the Constitution does not enact Mr. Herbert Spencer’s Social Statics,” academics have denied that the Constitution is libertarian. In this essay, I explain that the Constitution is libertarian to the extent that its original meaning respects and protects the five fundamental rights that are at the core of both classical liberalism and modern libertarianism. These rights can be protected both directly by judicial decisions and indirectly by structural constraints. While the original Constitution and Bill of Rights provided both forms of constraints, primarily on federal power, it left states free to violate the …

The Conscience Of A Court, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

The author explains his conclusion that the Supreme Court, as a matter of conscience, considers racial discrimination to be good for America. That conclusion, he argues, offers the only plausible account of the Court's repeated insistence on displacing populist efforts to promote racial equality with the Court's own, more-regressive, version of expedient racial politics. Although the Court has had what is at best a checkered history when called upon to adjudicate claims of racial injustice, until now, the contemporary Court might arguably have been accorded the benefit of the doubt. But after its five-to-four ruling in the 2007 Resegregation case, …

A Reply To Pierre, Robin West

Georgetown Law Faculty Publications and Other Works

In this article, the author responds to Pierre Schlag's statement that legal scholarship is dead and that live scholarship, by contrast to the stuff we produce, aims for truths that are both important and hard to uncover—the latter is what requires discipline, and the former distinguishes scholarship from ordinary observation. The “life” in lively scholarship lies partly in the quest but also in the substantial payoff: growth, when we have been convinced of something important and previously unknown; change, when we see the world differently because of it; restoration, when old truths are revalidated; breath itself, when new insights pry …

Tax Penalties And Tax Compliance, Michael Doran

Georgetown Law Faculty Publications and Other Works

This paper examines the relationship between tax penalties and tax compliance. Conventional accounts, drawing from deterrence theory and norms theory, assume that the relationship is purely instrumental--that the function of tax penalties is solely to promote tax compliance. This paper identifies another aspect of the relationship that generally has been overlooked by the existing literature: the function of tax penalties in defining tax compliance. Tax penalties determine the standards of conduct that satisfy a taxpayer's obligations to the government; they distinguish compliant taxpayers from non-compliant taxpayers. This paper argues that tax compliance in a self-assessment system should require the taxpayer …

Strengthening Demand For The Rule Of Law In Post-Conflict Societies, Jane E. Stromseth

Georgetown Law Faculty Publications and Other Works

Building the rule of law in the wake of military conflict has proven to be a complex and formidable challenge in countries as diverse as Iraq, Afghanistan, Timor-Leste, and Sierra Leone. It has become clear in these and other situations that strengthening the rule of law is not simply a matter of building institutions-courts, legislatures, and so forth-or enacting better laws. The rule of law also depends crucially on building public trust and confidence in those institutions. Or, to put it another way, strengthening the rule of law is not only a question of the supply side of institutions, but …

Can Our Shameful Prisons Be Reformed?, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.

Is Law? Constitutional Crisis And Existential Anxiety, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

In the recurring discussions of constitutional crises, one may find three forms of existential anxiety. The first, and most fleeting, is an anxiety about the continued existence of the nation. A second form of anxiety—to my mind, the most interesting form—is an anxiety about the possibility of the rule of law itself. Third, and most solipsistically, references to crisis in constitutional law scholarship could be the product of a kind of professional anxiety in the legal academy. We may be asking ourselves, “Constitutional theory: what is it good for?” and worrying that the answer is, “Absolutely nothing.” And yet, I …

Dean Mary Daly: A Tribute, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

I met Mary Daly for the first time on the day I began work at Fordham Law in 1991. I had an office on the second floor of the faculty corridor, and Mary's office was a few offices down the hall. Mary was already a well-established member of the faculty, a star at the U.S. Attorney's Office who had become a star in academia. I was new to Fordham and anxious as I began my career in teaching. Characteristically, and not surprisingly, Mary was the first one to come to my office to greet me. It has been almost twenty …

Neural Network Demodulation For An Optical Sensor, Rohit Dua, Steve Eugene Watkins, Donald C. Wunsch

Electrical and Computer Engineering Faculty Research & Creative Works

Methods and systems of neural network demodulation for an optical sensor. An optical sensor may be coupled to a structure and be capable of reflecting a reflected optical signal. A wavelength of the reflected optical signal may be spread based on a strain being applied to the structure. A replication device may receive the reflected optical signal from the optical sensor and produce a plurality of optical signals. A filter may be coupled to the replication device to receive an optical signal from the plurality of optical signals and filter the received optical signal. A detector may receive the filtered …

Improving Laws And Legal Authorities For Obesity Prevention And Control, Lawrence O. Gostin, Jennifer L. Pomeranz

Georgetown Law Faculty Publications and Other Works

This is the second paper in a two part series on the laws and legal authorities for obesity prevention and control. In this paper, the authors present the applicable laws and legal authorities that public health professionals and lawyers can consider implementing to close the legal gaps identified in the first paper (“Assessing Laws and Legal Authorities for Obesity Prevention and Control”). This set of legal action items encompass the federal, tribal, state, local, and community levels and should be considered when developing, implementing, and evaluating obesity prevention and control strategies and interventions.

The paper organizes the action items within …

Assessing Laws And Legal Authorities For Obesity Prevention And Control, Lawrence O. Gostin, Jennifer L. Pomeranz, Peter D. Jacobson, Richard N. Gottfried

Georgetown Law Faculty Publications and Other Works

This is the first paper in a two part series on the laws and legal authorities for obesity prevention and control, which resulted from the National Summit on Legal Preparedness for Obesity Prevention and Control in 2008. In this paper, the authors apply the “laws and legal authorities” component of the Centers for Disease Control and Prevention (CDC) legal framework on public health legal preparedness to demonstrate the essential role that law can play in the fight against obesity. Their analysis identified numerous laws and policies in the three vital domains of healthy lifestyles, healthy places, and healthy societies. For …

Super Wicked Problems And Climate Change: Restraining The Present To Liberate The Future, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

Climate change may soon have its “lawmaking moment” in the United States. The inherent problem with such lawmaking moments, however, is just that: they are moments. What Congress and the President do with much fanfare can quickly and quietly slip away in the ensuing years. This is famously so for environmental law. Subsequent legislative amendments, limited budgets, appropriations riders, interpretive agency rulings, massive delays in rulemaking, and simple nonenforcement are more than capable of converting a seemingly uncompromising legal mandate into nothing more than a symbolic aspirational statement. Climate change legislation is especially vulnerable to being unraveled over time for …

Charting A Sustainable Development Path: Prospects For Socially And Environmentally Beneficial Tourism In Caleta Tortel, Chile, Laura Becerra

Graduate Student Theses, Dissertations, & Professional Papers

Caleta Tortel is a small rural town in Patagonia, Chile. Caleta Tortel is at a crossroads in economic development. The main goals of this thesis were to analyze Tortel's past and future development, evaluate the possibility of a socially and environmentally beneficial path for its future, and assess the community’s ability to shape this future path. I focused on Tortel's budding tourism development and evaluated its ability to follow and support a socially and environmentally beneficial development path.

I developed an analytic framework of two contrasting development paths: 1) extractive and exploitative, and 2) socially and environmentally beneficial (sustain able). …

The Politics Of The Real: Jazz, Hip Hop, And Satire - Conceptions Of Consciousness In The Twentieth Century African American Novel, Peter Thomas Clavin

Graduate Student Theses, Dissertations, & Professional Papers

In the African American experience of the twentieth century, cultural modes of expression became the primary outlet for a politics of resistance, a politics of fulfillment, and a politics of transfiguration within the context of a modem Western nation-state that marginalized and discriminated against the African American subject through ideology and cultural hegemony. This collective African American experience is one based on a reality of life-threatening racial violence that has plagued African Americans from the earliest days of the New Republic.

An Assessment Of The Retail Food Environment, Access To Food, And Food Security In Missoula, Montana In Relation To The Socioeconomic And Health Status Of Its Residents, Jennifer Rae Elliott

Graduate Student Theses, Dissertations, & Professional Papers

Inadequate access to healthy food sources may contribute to less nutritious diets and an increased risk for chronic disease. Numerous studies on nutrition environments and food access have found disparities between low income neighborhoods and higher income neighborhoods in regards to access to supermarkets and healthier foods. The purpose of this study was to examine the retail food environment, access to food, and food security in Missoula, Montana in relation to the socioeconomic and health status of its residents.

This study was conducted in four neighborhoods based on the average median family income level of each neighborhood as defined by …

Morphological And Physiological Changes During A Junior A Ice Hockey Season, Kathleen Frank

Graduate Student Theses, Dissertations, & Professional Papers

Training for competitive sports has become an intense and strenuous year-round mission. Because of the unrelenting nature of competitive sports’ training season, the threat of adverse changes in physiologic and anthropometric factors exists. Seasonal morphologic and physiologic changes are present in numerous elite sports studies but few have detailed changes in elite hockey players. The development and maintenance of whole- body power, speed, and strength, over the course of a season, is essential for successful competition at the junior hockey level. PURPOSE: To explore and identify the changes in body mass, fat mass, fat-free mass, thigh circumferences, lower and upper …

The Effects Of Grazing On Deer Mice Movements Into Peridomestic Settings With Implications To Human Exposure To Sin Nombre Virus, Abigail Jean Leary

Graduate Student Theses, Dissertations, & Professional Papers

The effects of deer mouse immigration into buildings in response to horse grazing were examined during this study. Treatment (grazing) and control (no grazing) pastures were created to simulate interactions between peridomestic (in or around buildings or structures in close proximity to humans) and sylvan settings. Each pasture was 0.6 ha in size and contained two small buildings. Twelve experimental trials were conducted from April through June 2005; October through November 2005; February 2006; June through August 2007; and May through July 2008. During these trials, mouse movements into buildings were monitored using a passive integrated transponder (PIT) tag transceiver …

Moving Toward Development Of A Chunghwa Postal Office Business Model Of Sustainability, Perng Cheng Shih

Graduate Student Theses, Dissertations, & Professional Papers

This research integrated western and eastern organization theory in order to restructure the Chunghwa Postal Office (CPO). The goal was to create a more efficient and sustainable business model that would serve the future needs of Taiwan. A region of the CPO, the Hsinchu Post Office (HPO), received training in 2008 in order to provide a pilot study regarding the concepts of sustainability and learning organizations.

The research produced a CPO Sustainability Model in which learning organization theory is conceptually woven into the Chinese Tai Ji map. This Model has two core domains, namely vision and evaluation. Using two parallel …

Forest Habitat Improvement Planning On The Blackfoot-Clearwater Wildlife Management Area: A Case Study In Multiple Criteria Decision-Analysis, Christine Ann Paulu

Graduate Student Theses, Dissertations, & Professional Papers

The forests of western Montana were historically characterized by mixed-severity fire regimes, which have been mostly absent due to fire suppression policies of the 20th century. This has changed stand structure and forest composition, resulting in a high risk of wildfire, loss of heterogeneity in forest types, and loss of valuable wildlife habitat. As a result forest stewardship, or holistic forest management, and long-term planning have been used widely by forest managers and landowners to improve forest health, to use resources efficiently, and to satisfy stakeholders. This case study shows how one agency, Montana Fish, Wildlife, and Parks (FWP), could …

Characterization Of Chlamydia Trachomatis Virulence Factors: Plasticity Zone Macpdf Domain Family Protein Ct153 And Polymorphic Membrane Protein D, Lacey Diane Taylor

Graduate Student Theses, Dissertations, & Professional Papers

C. trachomatis is an obligate intracellular pathogen that is a leading cause of sexually transmitted diseases and blinding trachoma worldwide. Genes encoded in the plasticity zone (PZ) and the polymorphic membrane proteins (Pmps) represent major virulence determinants for chlamydiae. Elucidating their roles will be essential for the development of a vaccine to control human chlamydial diseases.

The PZ MACPF domain protein CT153 is expressed as a 91 kDa polypeptide in elementary bodies of all human serovariants suggesting a common function. CT153 is processed during infection into an N-terminal p42 and a C-terminal p59 that contains the MACPF domain. Similar processing …

A Social Marketing Intervention To Improve Asbestos Inspection Compliance For Missoula Public Buildings And The Role Of Upstream Approaches, Holly N. Truitt

Graduate Student Theses, Dissertations, & Professional Papers

The Montana Department of Environmental Quality Asbestos Control Program reported in a 2002 study that it had determined that 99 percent of public building demolitions and renovations in Missoula were noncompliant with asbestos inspection regulations required by both Montana and federal law. The Program characterized noncompliance as an occupational and public health threat with multiple causations including willful noncompliance and ignorance of the law. Missoula is not alone in its noncompliance; Great Falls, MT, Boston, MA, Austin, TX and Livingston MT, and other cities have struggled to address noncompliance with asbestos inspections. My action based research project explores the role …

Intimate Discrimination: The State's Role In The Accidents Of Sex And Love, Elizabeth F. Emens

Faculty Scholarship

This is a challenging moment for the law of discrimination. The state's role in discrimination has largely shifted from requiring discrimination – through official policies such as segregation – to prohibiting discrimination – through federal laws covering areas such as employment, housing, education, and public accommodations. Yet the problem of discrimination persists, often in forms that are hard to regulate or even to recognize.

At this challenging moment, the intimate domain presents a vital terrain for study in two main ways. First, conceptually, studying the intimate domain permits new insights into discrimination and the law's identity categories, because people are …

Building Social Relationships Building Business : A Case Study Of Vendors At The Missoula Farmers' Market, Kathryn E. Bradford

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

What Do Meatpackers & Librarians Have In Common? Library Related Injuries And Possible Solutions, Robert E. Kaehr

The Christian Librarian

This article examines the benefit of exercise to alleviate or prevent injuries common to librarians and library staff. The library literature discusses some interventions such as ergonomics and corrective surgery regarding work-related injuries, but it barely mentions prevention especially as it relates to exercise. Insurance claims filed by library workers rack up thousands of dollars each year. In addition, lost time at work to correct work-related injuries adds much frustration and lost production. Alleviating or eliminating many such occurrences is possible by initiating and maintaining simple exercise programs. Numerous exercises are given that if used conscientiously will curtail the need …