Digital Commons Network^™

Of Christmas Trees And Corpus Christi: Ceremonial Deism And Change In Meaning Over Time, B. Jessie Hill

Duke Law Journal

Although the Supreme Court turned away an Establishment Clause challenge to the words "under God" in the Pledge of Allegiance in Elk Grove Unified School District v. Newdow, the issues raised by that case will not go away anytime soon. Legal controversies over facially religious government speech have become one of the most regular and prominent features of Establishment Clause jurisprudence-and indeed, a second-round challenge to the Pledge of Allegiance is currently percolating, which will likely result in resolution by the Supreme Court. That resolution will depend on an understanding of the social meaning of the practice at issue. This …

Struck By Stereotype: Ruth Bader Ginsburg On Pregnancy Discrimination As Sex Discrimination, Neil S. Siegel, Reva B. Siegel

Duke Law Journal

It was always recognition that one thing that conspicuously distinguishes women from men is that only women become pregnant; and if you subject a woman to disadvantageous treatment on the basis of her pregnant status, which was what was happening to Captain Struck, you would be denying her equal treatment under the law.(1)

'Customary Internet-Ional Law': Creating A Body Of Customary Law For Cyberspace. Part 1: Developing Rules For Transitioning Custom Into Law, Warren B. Chik

Research Collection Yong Pung How School Of Law

The shift in socio-economic transactions from realspace to cyberspace through the emergence of electronic communications and digital formats has led to a disjuncture between the law and practices relating to electronic transactions. The speed at which information technology has developed require a faster, more reactive and automatic response from the law that is not currently met by the existing law-making framework. This paper suggests the development of special rules to enable Internet custom to form legal norms to fulfill this objective. In Part 1, I will describe the socio-economic problems and stresses that electronic transactions place on existing policy and …

The New International Arbitration (Amendment) Bill – A Broader Framework For Interim Relief Or Just A Tune-Up?, Mahdev Mohan, Eu-Yen Tay

Research Collection Yong Pung How School Of Law

Singapore aspires to retain its place as a trusted arbitration hub for commercial parties all around the world. The recently proposed amendments to the International Arbitration Act seek to bring Singapore closer to meeting international standards in relation to the arbitration procedure. While the initiative should be applauded, those amendments relating to interim measures fall somewhat short of expectations of a new, broader framework of curial assistance in aid of arbitration. This article explores the uncertainties that could arise from the proposed amendments, either because of phrasing or of an omission to embrace the Model Law. It is hoped that …

Agency And Partnership Law [2009], Pearlie Koh, Stephen Bull

Research Collection Yong Pung How School Of Law

The laws relating to the creation of an agency, implied authority, holding out and apparent authority, duties of the agent in relation to Agency law are discussed. The laws relating to partnership law and issues such as relationship of partners to third parties, relationships of partners between themselves and capacity to be a partner are highlighted.

Updating The Electronic Transactions Act? Australia's Accession To The Un Convention On The Use Of Electronic Communications In International Contracts 2005, Eliza Karolina Mik

Research Collection Yong Pung How School Of Law

This article discusses the Australian Government’s proposal to accede to the United Nations Convention on the Use of Electronic Communications in International Contracts as well as certain amendments to existing Australian electronic transactions legislation, i.e. the Electronic Transactions Act (Commonwealth) 1999 (”ETA”) and its state equivalents. Without going into a detailed discussion of all suggested amendments, this article focuses on those recommendations, which affect the area of contract formation, in particular: the use of automated systems in on-line transactions and the determination of the time the contract comes into existence. A critical review of the proposed changes reveals that their …

Evaluating The Impact Of The Un Convention On The Use Of Electronic Communications In International Contracts On Domestic Contract Law: The Singapore Example, Eliza Mik

Research Collection Yong Pung How School Of Law

The United Nations Commission on International Trade Law (UNCITRAL) Convention on the Use of Electronic Communications in International Contracts (CUECIC or Convention) was adopted on 23 November 2005. Its essential objective is to establish uniform rules intended to “remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, with a view to enhancing legal certainty and commercial predictability.” The Convention relies on the UNCITRAL Model Law on Electronic Commerce (MLEC), which constitutes an e-commerce flagship project dating back to 1995. It also resembles UNCITRAL’s Convention …

Anonymous Query Processing In Road Networks, Kyriakos Mouratidis, Man Lung Yiu

Research Collection School Of Computing and Information Systems

The increasing availability of location-aware mobile devices has given rise to a flurry of location-based services (LBSs). Due to the nature of spatial queries, an LBS needs the user position in order to process her requests. On the other hand, revealing exact user locations to a (potentially untrusted) LBS may pinpoint their identities and breach their privacy. To address this issue, spatial anonymity techniques obfuscate user locations, forwarding to the LBS a sufficiently large region instead. Existing methods explicitly target processing in the euclidean space and do not apply when proximity to the users is defined according to network distance …

Affectivity And The Nature Of The Sage: Gleanings From A Tang Daoist Master, Alan Kam Leung Chan

Research Collection College of Integrative Studies

This essay explores the place of qing in conceptions of the nature and being of the sage, focusing on the Tang Daoist master Wu Yun. What it seeks to show is that assumptions about the attainability of “sagehood” and the “nature” (xing) of human beings inform the interpretation of qing. In this context, the idea that the sage is quintessentially wuqing, marked by the absence of desire and emotions, will be examined. I will close with a comparative note on a Confucian account of the same period—namely, the Fuxing shu by Li Ao.

Singapore And The Universal Periodic Review: An Unprecedented Human Rights Assessment, Mahdev Mohan

Research Collection Yong Pung How School Of Law

Singapore will soon submit a national report to and subsequently appear before the UN Human Rights Council for a universal periodic review of its human rights laws and practices. This review will elicit a rare and unprecedented expression of whether and how Singapore feels it has adhered to international human rights law, and ways in which it may further refine or calibrate its domestic practices. This article seeks to identify Singapore’s human rights achievements; highlight challenges it should be prepared to address; and recommend measures it should adopt to promote human rights.

Neuroscience And The Free Exercise Of Religion, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

Recent developments in neuroscience that purport to reduce religious experience to specific parts of the brain will not diminish the fundamental cultural or legal standing of religion. William James debunked this possibility in The Varieties of Religious Experience (1902) when he noted that “the organic causation of a religious state of mind” no more refutes religion than the argument that scientific theories are so caused refutes science. But there will be incremental legal change in areas like civil commitment where judges must sometimes distinguish between mental disorder and religious belief. The paradox is that the ecstatic religious experience of unorthodox …

Closing The Legislative Experience Gap: How A Legislative Law Clerk Program Will Benefit The Legal Profession And Congress, Dakota S. Rudesill

Georgetown Law Faculty Publications and Other Works

Most federal law today is statutory or rooted in statutes, which are created through a complicated process best understood through work experience inside legislatures. This article demonstrates that America’s most influential lawyers are not getting it. My new empirical analysis of the work experience of the top 500 lawyers nationwide as ranked by Lawdragon.com finds that work experience in legislative bodies is dramatically less common among the profession’s leaders than is formative work experience in courts, government executive agencies, private practice, and academe. This article continues the empirical study of the professional experience of the legal profession’s elite published in …

Finding The Middle Ground In Collection Development: How Academic Law Libraries Can Shape Their Collections In Response To The Call For More Practice-Oriented Legal Education, Leslie A. Street, Amanda M. Runyon

Georgetown Law Faculty Publications and Other Works

To examine how academic law libraries can respond to the call for more practice-oriented legal education, the authors compared trends in collection management decisions regarding secondary sources at academic and law firm libraries along with law firm librarians’ perceptions of law school legal research training of new associates.

Examining The Effectiveness Of A Social Learning Curriculum For Improving Social Skills And Self-Regulation Behaviors In Middle School Boys With Autism Spectrum Disorder Or Social Skill Deficits, Jessica Beth Bolton

PCOM Psychology Dissertations

Social skill deficits are hallmark characteristics noted in children with autism. The behavioral indicators of autism, including language impairments, display of preservative behaviors, and restricted interests contribute to the social difficulties experienced by children with autism. The current paper provides a review of the relevant literature on theoretical contributions to social skill deficits in autism. A review of the use of cognitive behavioral therapy and social skill training programs and curriculums that have been shown to be efficacious at targeting deficits and improving social skills is provided, with a focus on treating children with high functioning autism (HFA) and Asperger’s …

Taxes And Death: The Rise And Demise Of An American Law Firm, Milton C. Regan

Georgetown Law Faculty Publications and Other Works

Misconduct by lawyers in law firms is often attributed to pressures from increasing competition for legal services. Modern firms do face fierce competitive pressures. We can gain more subtle insights, however, by focusing on the specific markets in which particular firms operate and the ways in which forms of influence in law firms interact with common patterns of behavior in organizations.

This paper, a chapter in the collection Law Firms, Legal Culture, and Legal Practice, draws on this type ofanalytical framework to provide a case study of the experience of Jenkens & Gilchrist, a national law firm that had …

The Interpretation-Construction Distinction, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The interpretation-construction distinction, which marks the difference between linguistic meaning and legal effect, is much discussed these days. I shall argue that the distinction is both real and fundamental – that it marks a deep difference in two different stages (or moments) in the way that legal and political actors process legal texts. My account of the distinction will not be precisely the same as some others, but I shall argue that it is the correct account and captures the essential insights of its rivals. This Essay aims to mark the distinction clearly!

The basic idea can be explained by …

The Parent As (Mere) Educational Trustee: Whose Education Is It, Anyway?, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

The purpose of this Article is two-fold. First, the Article argues that the parent’s right to educate his or her children is strictly circumscribed by the parent’s duty to ensure that children learn habits of critical reasoning and reflection. The law has long recognized that the state’s duty to educate children is superior to any parental right. Indeed, the “parentalist” position to the contrary rests on an inflation of rights that is, in fact, a radical departure from longstanding legal norms. Indeed, at common law the parent had “a sacred right” to the custody of his child, and the parent’s …

Ronald Dworkin’S Justice For Hedgehogs And Partnership Conception Of Democracy (With A Comment To Jeremy Waldron’S 'A Majority In The Lifeboat'), Imer Flores

Georgetown Law Faculty Publications and Other Works

In this article the author focuses mainly in the last part of Ronald Dworkin´s Justice for Hedgehogs and in his argument for a partnership conception of democracy. For that purpose, first, he recalls some of the main features that Dworkin had advanced in previous but intrinsically related works, about political morality, equality and democracy; second, he reassess the arguments for a partnership conception of democracy; third, he reconsiders the resistance produced by Jeremy Waldron in his “A Majority in the Lifeboat” and the response provided by Dworkin, but since it may appear insufficient, he intends to present an alternative—or complementary—riposte …

Exporting U.S. Criminal Justice, Allegra M. Mcleod

Georgetown Law Faculty Publications and Other Works

This article explores how and why, in the Cold War’s wake, the U.S. government began to export U.S.-style criminal law and procedure models to developing and politically transitioning states. U.S. criminal law and development consultants now work in countries across the globe. This article reveals how U.S. initiatives have shaped state and non-state actors’ responses to a range of global challenges, even as this approach suffers from a deep democratic deficit. Further, this article argues that U.S. programs perpetuate U.S.-style legal institutional idolatry (which is often tied to systemic dysfunction both in the United States and abroad), and in so …

Unfair Competition And Uncommon Sense, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This article discusses Mark McKenna’s Testing Modern Trademark Law’s Theory of Harm as an important step forward in challenging trademark expansionism, going back to basics and asking us to assess for truth value several propositions that now seem so self-evident to lawyers and judges as to not require any empirical support at all. Like McKenna, the author believes that if the law looked for the evidence behind present axioms of harm, it would not find much there. McKenna and the author share an interest in empirical evidence on marketing and a desire to bring its insights to trademark law. But …

Disparate Impact, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

There has been a lot of talk about post-racialism since the 2008 election of Barack Obama as the first black President of the United States. Some have argued that the Obama election illustrates the evolution of the United States from its unfortunate racist past to a more admirable post-racial present in which the problem of invidious racial discrimination has largely been overcome. Others have argued that the Obama election illustrates only that an extraordinarily gifted, mixed-race, multiple Ivy League graduate, Harvard Law Review President was able to overcome the persistent discriminatory racial practices that continue to disadvantage the bulk of …

Rights, Harms, And Duties: A Response To Justice For Hedgehogs, Robin West

Georgetown Law Faculty Publications and Other Works

The author responds to the three jurisprudential positions that Ronald Dworkin discusses in his book--albeit briefly--so as to integrate them into his hedgehoggian program. The first is that we should think of rights as political trumps, such that the individual liberty protected by the right, and hence the behavior protected by the right, trumps in importance and in effect, both in law and in popular imaginings, the various collective goals with which the right might be in conflict. Second, we should think about our collective life, and the principles that should guide it, through the lens of the rights of …

The Unity Of Interpretation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What is interpretation? One can imagine a range of answers to this question. One answer might begin with the observation that the English word “interpretation” is used to refer to a variety of human activities. Translators at the United Nations interpret remarks made in French when they offer an English translation. Literary critics interpret novels when they investigate the deep and sometimes unconscious motivations of the author. Conductors interpret a score when they make decisions about meter, tempo, and dynamic range. Actors interpret a screenplay when they improvise new lines based on their understanding of the characters. Judges interpret statutes …

Questioning Cultural Commons, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

In Constructing Commons in the Cultural Environment, Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg offer an innovative and attractive vision of the future of cultural and scientific knowledge through the construction of “cultural commons,” which they define as “environments for developing and distributing cultural and scientific knowledge through institutions that support pooling and sharing that knowledge in a managed way.” The kind of “commons” they have in mind is modeled on the complex arrangement of social norms that allocate lobstering rights among fishermen in Maine and extends to arrangements such as patent pools, open-source software development …

Narrative, Normativity, And Causation, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay examines the relationship between constitutional narratives, causation, and normativity in the context of Barry Friedman’s book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution. In his book, Friedman provides a grand narrative of American constitutional history that emphasizes the role of public opinion in the development of American constitutional law. That narrative involves both implicit and explicit claims about the causal forces that shape constitutional doctrine and about normative constitutional theory. The aim of this essay is to identify those claims, excavate their theoretical assumptions, …

In Praise Of The Guilty Project: A Criminal Defense Lawyer's Growing Anxiety About Innocence Projects, Abbe Smith

Georgetown Law Faculty Publications and Other Works

There is nothing more compelling than a story about an innocent person wrongly convicted and ultimately vindicated. An ordinary citizen is caught up in the criminal justice system through circumstances beyond his or her control, spends many years in prison, and then one day, with the assistance of a dedicated lawyer, is freed.

Often, when DNA is behind a vindication, not only is the innocent person exonerated but the true perpetrator is identified. This is a significant achievement even though it can also lead apologists for the system—even police and prosecutors implicated in the wrongful conviction—to proudly declare that the …

Honest-Services Fraud: A (Vague) Threat To Millions Of Blissfully Unaware (And Non-Culpable) American Workers, Julie R. O'Sullivan

Georgetown Law Faculty Publications and Other Works

The author believes that statute 18 U.S.C. § 1346 is unconstitutionally vague, at least as applied to cases in which employees of private entities are prosecuted for depriving their employers of a right to their honest services (so-called “private cases”). Objections to vagueness rest on due process. “Vagueness may invalidate a criminal law for either of two independent reasons. First, it may fail to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory enforcement.” The Supreme Court’s vagueness precedents do not provide much …

The Closed Rule, Michael Doran

Georgetown Law Faculty Publications and Other Works

The closed rule constitutes a critical component of managerial power in the contemporary House of Representatives and an increasingly important element of the legislative process. Subject to the approval of the full membership, the closed rule allows managers to block all amendments to a measure when bringing that measure to the floor. Despite objections from the minority, both Republicans and Democrats regularly use the closed rule when in the majority, and rank-and-file members ordinarily approve any closed rule put to a floor vote. Once rarely used, the closed rule has become managers’ preferred instrument for controlling the House floor agenda. …

To Be Muslim Or "Muslim-Looking" In America: A Comparative Exploration Of Racial And Religious Prejudice In The 21st Century, Sheryll Cashin

Georgetown Law Faculty Publications and Other Works

This Essay begins with a confession. In taking implicit association tests ("IATs") designed to measure my unconscious attitude toward two particular demographic groups, I discovered that I, an African-American, harbored a "slight automatic preference" for Europeans over blacks and for "other people" over "Arab-Muslims." Both of these results were contrary to my professed or conscious assertions of neutrality. Why would a pro-integration scholar who seeks to promote cross-racial understanding and inclusion exhibit such implicit biases? And why is it that a majority of others who take these tests register similar implicit biases? The point of my confession is to underscore …

Introduction To The Symposium Issue Sexuality And Gender Law: The Difference A Field Makes, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

For a very long time, issues of sexuality and gender remained outside the boundaries of what was considered important legal scholarship. Indeed, the very presence in the legal academy of the concepts of sexuality and gender was viewed as barely legitimate, certainly not respectable, and, in intellectual terms, at best facetious-or, to let Justice White rest in peace, at best frivolous.

One result of this now dying worldview was a series of categorical exclusions and erasures-exemplified by the exclusion of sexual speech from the First Amendment, the exclusion of nonreproductive kinship networks from the definition of family, the exclusion of …