Digital Commons Network^™

The Education And Licensing Of Attorneys And Advocates In South Africa, Peggy Maisel

Faculty Scholarship

This article explores the current organization of the South African bar and describes the legal education system and the licensing requirements for both attorneys and advocates, as well as those for foreign attorneys. Interspersed throughout the article are discussions of the system’s strengths and weaknesses, particularly in light of the transformation required after the end of apartheid, including some of the key challenges still facing South Africa.

Arbitrators And Accuracy, William W. Park

Faculty Scholarship

An arbitrator’s primary duty remains the delivery of an accurate award, resting on a reasonably ascertainable picture of reality. Litigants wanting only quick or cheap solutions can roll dice, and have no need of lawyers. Evidentiary tools in arbitration should balance sensitivity toward cost and delay against the parties’ interest in due process and correct decisions. If arbitration loses its moorings as a truth-seeking process, nostalgia for a golden age of simplicity will yield to calls for reinvention of an adjudicatory process aimed at discovering the facts, finding the law, and correctly construing contract language.

Cautions On The Use Of Economics Experiments In Law, Kathryn Zeiler

Faculty Scholarship

The recent move to import empirical results into law and policymaking have introduced challenges related to drawing proper inferences from quantitative studies. The purpose of this essay is to elaborate on three specific cautions on the use of economics experiment results. First, critiques of experiment designs based on external and ecological validity are often misplaced. Second, some legal scholars have fallen into the problematic habit of applying results from experiments directly to law and policy rather than applying well-supported theories. Third, the divergent purposes behind economics studies and legal scholarship give rise, in part, to problematic cherry picking of experimental …

Government Speech 2.0, Helen Norton, Danielle K. Citron

Faculty Scholarship

New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these …

Abuse Of Rights: The Continental Drug And The Common Law, Anna Di Robilant

Faculty Scholarship

This Article deploys a comparative approach to question a widely shared understanding of the impact and significance of abuse of rights. First, it challenges the idea that abuse of rights is a peculiarly civilian "invention," absent in the common law. Drawing on an influential strand of functionalist comparative law, the Article identifies the "functional equivalents of the doctrine in the variety of malice rules and reasonableness tests deployed by American courts in the late-nineteenth and early-twentieth century in fields as diverse as water law, nuisance, tortious interference with contractual relations, and labor law. The Article investigates the reasons why in …

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution, David J. Rossman

Faculty Scholarship

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

Human Rights For Hedgehogs?: Global Value Pluralism, International Law, And Some Reservations Of The Fox, Robert D. Sloane

Faculty Scholarship

This essay, a contribution to the Boston University Law Review’s symposium on Ronald Dworkin’s forthcoming book, Justice for Hedgehogs, critiques the manuscript’s account of international human rights on five grounds. First, it is vague: it fails to offer much if any guidance relative to many of the most difficult concrete issues that arise in the field of international human rights law and policy - precisely the circumstances in which international lawyers might benefit from the guidance that moral foundations supposedly promise. It is also troubling, and puzzling given Dworkin’s well-known commitment to the right-answer thesis, that his account of human …

The Legal Ecology Of Resistance: The Role Of Antibiotic Resistance In Pharmaceutical Innovation, Kevin Outterson

Faculty Scholarship

Antibiotic effectiveness is a common pool resource that can be prematurely depleted through resistance. Some experts warn that we may face a global ecological collapse in antibiotic effectiveness. Conventional wisdom argues for more intellectual property rights to speed the creation of new antibiotics. Recent theoretical literature suggests that conservation-based approaches may yield superior results. This Article describes a novel typology for organizing these emerging theories, and provides an early empirical test of these models, using proprietary data on the sales of vancomycin, an important hospital antibiotic for the last three decades.

The results challenge the assumptions in several models, and …

Burying The Constitution Under A Tarp, Gary S. Lawson

Faculty Scholarship

The Emergency Economic Stabilization Act of 2008, a.k.a. 'the bank bailout bill,' engendered a fair degree of political controversy during and after its enactment but relatively little constitutional controversy. That is unfortunate, and at least a bit puzzling, because, as a matter of original meaning, the statute raises important constitutional questions along at least four dimensions: it is questionable whether Congress had theenumerated power to authorize the Treasury Department to purchase securities, the specific authorizations were sufficiently vague to raise serious questions under the nondelegation doctrine, the expansion of thepowers of the Secretary of the Treasury under the statute make …

Retributivism Refined - Or Run Amok?, Kenneth Simons

Faculty Scholarship

What would the criminal law look like if we took retributivist principles very seriously? In their book, Crime and Culpability: A Theory of Criminal Law, the authors - Larry Alexander and Kimberly Kessler Ferzan, with contributions by Stephen J. Morse - provide a controversial set of answers. Whether a criminal act does ordoes not result in harm should not affect the actor’s punishment. Only the last act of risk creation should suffice for liability. Conscious awareness of risk should always be necessary. And all of criminal law, each and every category of mens rea and actus reus, should be reduced …

Neuraminidase Activity Of Influenza Virus Strains That Differ In The Ability To Cause Disease, Benjamin Hanks Brown, Bart Tarbet

Browse All Undergraduate research

Influenza viruses are classified based on their surface glycoproteins: hemagglutinin and neuraminidase.  Hemagglutinin (HA) is responsible for binding to the host cell, while neuraminidase (NA) facilitates escape of newly formed virus particles. These studies determined the NA activity of three subtypes of influenza A virus that differ in their ability to cause disease in mice:  influenza A/NWS/33 (H1N1), influenza A/Victoria/3/75 (H3N2), and influenza A/Duck/MN/1525/81 (H5N1).  Chemiluminescent quantitation of NA activity in equal amounts of each virus was determined in three replicate experiments.  Results indicate that N1 virus subtypes have higher NA activity than do N2 subtypes.  In addition, the NA …

Human Rights And American Bioethics: Resistance Is Futile, George J. Annas

Faculty Scholarship

The Borg are always confident that humans will be assimilated into their collective hive and therefore that, as they say, “resistance is futile.” In Star Trek, of course, the humans always successfully resist. Elizabeth Fenton and John Arras, like the Borg, resist the idea that humans are uniquely special as well as the utility of the human rights framework for global bioethics. I believe their resistance to human rights is futile, and I explain why in this essay. Let me begin with their subtitle, because we do seem to agree that popular culture is a powerful aid to understanding human …

Propagation And Growth Of Chokecherry (Prunus Virginaiana) As An Alternative, Water-Wise, Fruit Crop For The Intermountain West, Jeremy R. Crook

Browse All Undergraduate research

Utah fruit growers have shown interest in chokecherry (Prunus virginiana) as an alternative crop that has low requirements for water and soil fertility. Consumers want native fruits like chokecherry that are healthy and taste good. Currently, the limiting factor in developing a chokecherry industry in Utah is the ability to propagate large numbers of plants for orchard establishment. Chokecherries are difficult to propagate by traditional means because of their low rooting percentages. Plant numbers can be increased in tissue culture but methods are lacking for efficiently inducing roots and acclimating tissue culture plantlets. We are also working on other propagation …

The New Price To Play: Are Passive Online Media Users Bound By Terms Of Use, Woodrow Hartzog

Faculty Scholarship

When individuals turn on the television, listen to the radio, or purchase newspapers, they are not forming contractual relationships. Yet, almost without exception, online readers, viewers and listeners are required to enter into "terms of use" contracts. These ubiquitous agreements are generally unfavorable for the user in areas of intellectual property rights and privacy. In addition, the terms often restrict users' behavior and their ability to litigate any disputes with a Web site. In analyzing the implications of contracts for Web site users, this article examines whether courts have recognized a distinction between online consumers, interactive users, and "passive media …

Cloud Computing: Storm Warning For Privacy?, Nicole Ozer, Chris Conley

Faculty Scholarship

“Cloud computing” - the ability to create, store, and manipulate data through Web-based services - is growing in popularity. Cloud computing itself may not transform society; for most consumers, it is simply an appealing alternative tool for creating and storing the same records and documents that people have created for years. However, outdated laws and varying corporate practices mean that documents created and stored in the cloud may not have the same protections as the same documents stored in a filing cabinet or on a home computer. Can cloud computing services protect the privacy of their consumers? Do they? And …

In Defense Of Appearances: What Caperton V. Massey Should Have Said, Jed Handelsman Shugerman

Faculty Scholarship

In June of 2009, the U.S. Supreme Court ruled for the first time that an elected judge must recuse himself from a case that involves a major campaign contributor. In Caperton v. A. T. Massey Coal Co., a coal company had been hit with a $50 million jury verdict. While appealing this verdict, the company's CEO, Don Blankenship, spent $3 million to help a challenger, Brent Benjamin, who had no judicial experience, defeat the incumbent, West Virginia Supreme Court Justice Warren McGraw. Blankenship funded political attack ads by a political organization (And for the Sake of the Kids) that …

Applications Of Spoke Cavities, Jean R. Delayen

Physics Faculty Publications

The superconducting spoke cavity was introduced in the late 1980s in response to the need for superconducting structures in the mid-velocity range. Since then it has found application in many projects. Prototypes have been developed for a wide range of beam velocities. The characteristics and features of the spoke cavity are reviewed and some of their applications are presented.

Talk The Talk, But Walk The Walk: A Comment On Joan Williams's Reshaping The Work-Family Debate Crowdsourcing The Work-Family Debate: A Colloquy, Jean Stefancic

Articles

No abstract provided.

Predatory Bundling And The Exclusionary Standard, J. Shahar Dillbary

Articles

Recent decisions--all relying on a stylized example first provided by the Ortho court--hold that a multi-product seller that uses a bundled discount in a way that excludes an equally or more efficient competitor engages in predatory bundling. According to these decisions, a bundle can be considered “predatory” even when the price of the bundle exceeds its cost. This Article shows that the Ortho court's stylized example and its monopoly leveraging theory are erroneous. This Article further demonstrates that even when a bundle's price excludes more efficient competitors and even when a component in the bundle is priced below cost, and …

Measurement Of Single- And Double-Spin Asymmetries In Deep Inelastic Pion Electroproduction With A Longitudinally Polarized Target, H. Avakian, P. Bosted, V. D. Burkert, L. Elouadrhiri, K. P. Adhikari, M. Aghasyan, M. Amaryan, M. Anghinolfi, H. Baghdasaryan, J. Ball, G. Dodge, G. Gavalian, N. Guler, A. Klein, S E. Kuhn, D. Martinez, M. R. Niroula, F. Sabatié, H. Seraydaryan, S. Tkachenko, L. B. Weinstein

Physics Faculty Publications

We report the first measurement of the transverse momentum dependence of double-spin asymmetries in semi-inclusive production of pions in deep-inelastic scattering off the longitudinally polarized proton. Data have been obtained using a polarized electron beam of 5.7 GeV with the CLAS detector at the Jefferson Lab (JLab). Modulations of single spin asymmetries over the azimuthal angle between lepton scattering and hadron production planes ϕ have been measured over a wide kinematic range in Bjorken x and virtual photon squared four-momentum Q². A significant nonzero sin2ϕ single spin asymmetry was observed for the first time indicating strong spin-orbit correlations …

Living History Interview Comment, Richard Delgado, Jean Stefancic

Articles

No abstract provided.

From The Classroom To The Courtroom: Intelligent Design And The Constitution, Jay D. Wexler

Faculty Scholarship

Although the Supreme Court of the United States has never developed a single clear test for determining what kinds of state action violate the Establishment Clause of the First Amendment, schools that attempt to teach or introduce intelligent design as a purportedly scientific alternative to evolution likely fall afoul of the First Amendment's commands. Under the Court's most relevant precedent, Edwards v. Aguillard, teaching intelligent design violates the Establishment Clause because, among other things, there is an enormous disconnect between the purpose of teaching intelligent design and its effect. Moreover, public school teachers do not possess any First Amendment right …

The Law And Policy Implications Of 'Baited Ambushes' Utilizing Enemy Dead And Wounded, Chris Jenks

Faculty Journal Articles and Book Chapters

When a state's armed forces is engaged in hostilities, how long after an engagement or firefight before the international humanitarian law requirement to search for and care for the wounded and find and bury the dead is triggered? This military practitioner's note discusses the legal and policy implications of 'baited ambushes,' the practice of utilizing wounded and dead enemies as the bait for follow on forces, which are then engaged.

Introductory Note To European Court Of Human Rights (Grand Chamber): Varnava And Others V. Turkey, Chris Jenks

Faculty Journal Articles and Book Chapters

This note introduces a Grand Chamber of the European Court of Human Rights decision which explains the application of the European Convention on Human Rights and Fundamental Freedoms on disappearances stemming from armed conflict. The Varnava judgment is particularly instructive on the balance of competing tensions; the unique aspects of disappearances; failure to investigate as a continuous violation; and applicant’s obligations under the Convention to exhaust domestic remedies and timely petition the Court.

Introductory Note To The United States Supreme Court: Graham V. Florida & The Federal Court Of Australia: Habib V. Australia, Chris Jenks

Faculty Journal Articles and Book Chapters

This introductory note considers two different and completely unrelated cases: Graham, a U.S. Supreme Court criminal case on the cruel and unusual punishment clause of the U.S. Constitution and Habib, an Australian civil case involving a former Guantanamo Bay detainee. This note focuses on one aspect of the disparate nature of the cases, starkly contrasting judicial attitudes towards the role of “foreign law” in domestic jurisprudence. Juxtaposed, the two cases offer an interesting view of not only the obvious differences between the U.S. inward and the Australian outward looking judicial philosophies, but perhaps a broader sense of how the two …

Not Child's Play: Revisiting The Law Of Child Soldiers, Chris Jenks

Faculty Journal Articles and Book Chapters

This brief commentary discusses child soldiers in general and Omar Khadr, a 15 yr old whom the United States military captured during armed conflict in Afghanistan, in particular. I suggest the conversation should be broadened and to move past misperceptions of the applicable law and norms concerning detention and prosecution of child belligerents.

Correspondents' Reports: A Guide To State Practice In The Field Of International Humanitarian Law, Chris Jenks

Faculty Journal Articles and Book Chapters

This correspondent report compiles examples of where and how the United States demonstrated its compliance with international humanitarian law by prosecuting its service members in 2010.

Ramifications Of Joint Infringement Theory On Emerging Technology Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

Two cases decided by the U.S. Court of Appeals for the Federal Circuit articulate the standards for joint infringement. In BMC Resources, Inc. v. Paymentech, L.P., the court ruled that to find liability in situations where steps of a method claim are performed by multiple parties, the entire method must be performed at the control or direction of the alleged direct infringer — the mastermind. Approximately one year later, in Muniauction, Inc. v. Thomson Corp., the Federal Circuit clarified that “the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously …

(When) Should Family Status Matter In The Criminal Justice System, Jennifer M. Collins, Ethan J. Leib, Dan Markel

Faculty Journal Articles and Book Chapters

Last year, we published a book entitled Privilege or Punish: Criminal Justice and the Challenge of Family Ties (Oxford 2009). Recently, the New Criminal Law Review published a series of provocative and challenging reviews of this book by Professors Doug Berman, Naomi Cahn, and Jack Chin. Needless to say, we appreciate their very kind words about our project and its contributions.

In this Essay, however, our focus will be on responding to the interesting criticisms lodged against our book; we hope to do so in a way that is helpful in advancing the conversation about the intersection between criminal justice …

Should Charitable Trust Enforcement Rights Be Assignable?, Joshua C. Tate

Faculty Journal Articles and Book Chapters

In recent years, scholars have given much attention to the problem of charitable trust enforcement. Departing from the common law, section 405(c) of the Uniform Trust Code provides that “[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust.” This Article addresses the question of whether, and to what extent, a settlor’s right to enforce a charitable trust should be assignable to third parties. Should the law permit the settlor of a charitable trust to assign her enforcement rights after the creation of the trust, or should assignments be recognized only if they are …