Digital Commons Network^™

Purple Haze, Clare Huntington

Faculty Scholarship

It takes only a glance at the headlines every political season – with battles over issues ranging from abortion and abstinence-only education to same-sex marriage and single parenthood – to see that the culture wars have become a fixed feature of the American political landscape. The real puzzle is why these divides continue to resonate so powerfully. In Red Families v. Blue Families: Legal Polarization and the Creation of Culture, Naomi Cahn and June Carbone offer an ambitious addition to our understanding of this puzzle, illustrating pointedly why it is so hard to talk across the political divide. In a …

Kiobel And Corporate Immunity Under The Alien Tort Statute: The Struggle For Clarity Post-Sosa, Dorothy S. Lund

Faculty Scholarship

In September 2010, a two-judge Second Circuit majority ruled that corporations are immune from liability under the Alien Tort Statute (“ATS”). This statute, which grants aliens access to federal district courts, has emerged as a controversial tool for international norm enforcement in the last thirty years. The unexpected decision to foreclose corporate liability has generated a wave of criticism from human rights activists and international law scholars who claim that the decision is grounded in a fundamental misunderstanding of international law.

This commentary examines the Kiobel decision against other recent interpretations of the ATS, especially those following the Supreme Court’s …

In Memoriam: William J. Stuntz, Pamela S. Karlan, Michael J. Klarman, Martha Minow, Daniel C. Richman, Robert E. Scott, David Skeel, Carol Steiker

Faculty Scholarship

Bill made a lot of errors in his articles. I know that, because he told me so, often in graphic detail, sometimes years after writing them; sometimes days. As anyone familiar with Bill or his work knows, this sort of harsh self-criticism bespeaks not any laxity or insouciance on Bill’s part, or even a false modesty, but rather an intense commitment to intellectual rigor, and (even more astounding for a legal academic) actually “getting it right.”

The Challenges Of Developing Cross-Cultural Legal Ethics Education, Professional Development, And Guidance For The Legal Professions, Philip Genty

Faculty Scholarship

The broad goal of this paper is to describe the need, and provide a framework, for engaging in cross-cultural conversations among lawyers, law teachers, and others, who are using legal ethics as a vehicle for improving the legal professions and the delivery of legal services. All legal cultures struggle with the question of how to educate students and lawyers to be ethical professionals and how to regulate the legal profession effectively. The purpose of the cross-cultural conversations discussed in this paper would be to develop principles of legal ethics education, professional development, and regulation of the legal professions that can …

Maximizing Autonomy In The Shadow Of Great Powers: The Political Economy Of Sovereign Wealth Funds, Kyle Hatton, Katharina Pistor

Faculty Scholarship

Sovereign wealth funds ("SWFs") have received a great deal of attention since they appeared as critical investors during the global financial crisis. Reactions have ranged from fears of state intervention and mercantilism to hopes that SWFs will emerge as model long-term investors that will take on risky investments in green technology and infrastructure that few private investors are willing to touch. In this paper we argue that both of these reactions overlook the fact that SWFs are deeply embedded in the political economy of their respective sovereign sponsors. This paper focuses on four political entities that sponsor some of the …

Strategic Liability In The Corporate Group , Richard Squire

Faculty Scholarship

The typical large corporation divides itself into numerous subsidiaries but then overrides the liability barriers between them by having the subsidiaries and the parent company cross-guarantee each other's major debts. Previous scholarly theories of the corporate group cannot explain why. The leading theory posits that the subsidiaries make it easier for creditors to evaluate risk because they enable each creditor to lend against a discrete asset pool within the broader enterprise. But any such efficiency would be undercut by the guarantees, which transmit credit risk across subsidiary boundaries. This Article argues that the combination of subsidiaries and intragroup guarantees reflects …

International Antitrust Cooperation And The Preference For Nonbinding Regimes, Anu Bradford

Faculty Scholarship

Today, multinational corporations operate in increasingly international markets, yet antitrust laws regulating their competitive conduct remain national. Thus, corporations are subject to divergent antitrust regimes across the various jurisdictions in which they operate. This increases transaction costs, causes unnecessary delays, and raises the likelihood of conflicting decisions. The risks inherent in multi-jurisdictional regulatory review were prominently illustrated in the proposed GE/Honeywell acquisition, which failed following the European Union’s (“EU”) decision to prohibit the transaction despite its earlier approval in the United States. Inconsistent remedies imposed on Microsoft following parallel investigations by both the U.S. and EU authorities serve as another …

Culture For Sale? An Exploratory Study Of The Crow Fair, Thomas D. Bordelon, Marie Opatrny, Wendy G. Turner, Steven D. Williams

The Qualitative Report

This paper describes an ethnographically-oriented participant-observation study conducted during the annual Crow Fair, held in south central Montana. Data collected included audio-recorded interviews with participants, participant observations, photographic and video recordings. Narrative interviews were transcribed and analyzed using the constant comparison method. Multiple data sources improved the veracity of this study through triangulation, and four themes emerged from the data: commercialization, alcohol abuse, spirituality, and community. The researchers discuss these themes and their conclusions regarding the "selling" of Native American culture as a form of cultural transmission. Theme analysis revealed the researchers recognized that the principal researcher had changed his …

Female Drug Offenders Reflect On Their Experiences With A County Drug Court Program, James C. Roberts, Loreen Wolfer

The Qualitative Report

This paper examines the experiences of a group of female drug offenders who successfully completed a county drug court program in northeast Pennsylvania. Using the constant comparative method, we analyzed interviews with these women for thematic patterns in order to provide an evaluation of this program based on participants' subjective perceptions of its strengths and weaknesses. While other drug court evaluations identify rewards for good behavior and compassionate program staff as important contributing factors to participants' success, women in this study credited their recovery and successful completion of the program primarily to fear of punishment and program structure. Our analysis …

Teaching Qualitative Research For Human Services Students: A Three-Phase Model, Ruhama Goussinsky, Arie Reshef, Galit Yanay-Ventura, Dalit Yassour-Borochowitz

The Qualitative Report

Qualitative research is an inherent part of the human services profession, since it emphasizes the great and multifaceted complexity characterizing human experience and the sociocultural context in which humans act. In the department of human services at Emek Yezreel College, Israel, we have developed a three-phase model to ensure a relatively intense exposure to and practice in qualitative methodology. While in the first phase students are exposed to the qualitative thinking and writing, they are required in the second phase to take a Qualitative Research Methods course that includes practice. The third and final phase includes conducting a qualitative research …

Work Experiences Of People With Mental Illness In Malaysia: A Preliminary Qualitative Study, Su-Lyn Boo, Jaymee Loong, Wai-Sheng Ng

The Qualitative Report

This is a preliminary qualitative study, using a basic interpretive approach, to investigate the work experiences of people with mental illness in Malaysia. Six females and four males (aged 30-70) from a residential home for the mentally ill participated in semi-structured interviews. Three inter-relating themes emerged, namely the experience of self at work, perception of work, and experience of others at work. All participants reported problems in either work or family relationships; most of which interfered with their work. In addition, findings suggest that the participants' self experience may be related to the extent of one's illness integration, experience of …

The Quipped Project: Exploring Relevance And Rigor Of Action Research Using Established Principles And Criteria, Christine Chapman, Margo Paterson, Jennifer M. Medves

The Qualitative Report

This paper is the last in a series of three manuscripts published in the TQR journal over the past few years. This work is part of a larger program of research that has been carried out by a team of researchers detailing various aspects of a three year action research project carried out from 2005 and 2008. This particular paper addresses issues of quality in action research by critiquing our research against five interdependent principles and criteria raised in the literature specifically by Davison, Martinson and Kock which was published in 2004. Our action research project aimed to facilitate interprofessional …

Youtube As A Qualitative Research Asset: Reviewing User Generated Videos As Learning Resources, Ronald J. Chenail

The Qualitative Report

YouTube, the video hosting service, offers students, teachers, and practitioners of qualitative researchers a unique reservoir of video clips introducing basic qualitative research concepts, sharing qualitative data from interviews and field observations, and presenting completed research studies. This web-based site also affords qualitative researchers the potential avenue to share their reusable learning resources for all interested parties to use.

Facilitating Coherence Across Qualitative Research Papers, Ronald J. Chenail, Maureen Duffy, Sally St. George, Dan Wulff

The Qualitative Report

Bringing the various elements of qualitative research papers into coherent textual patterns presents challenges for authors and editors alike. Although individual sections such as presentation of the problem, review of the literature, methodology, results, and discussion may each be constructed in a sound logical and structural sense, the alignment of these parts into a coherent mosaic may be lacking in many qualitative research manuscripts. In this paper, four editors of The Qualitative Report present how they collaborate with authors to facilitate improvement papers' coherence in such areas as co-relating title, abstract, and the paper proper; coordinating the method presented with …

Utilizing Microsoft® Office To Produce And Present Recursive Frame Analysis Findings, Ronald J. Chenail, Maureen Duffy

The Qualitative Report

Although researchers conducting qualitative descriptive studies, ethnographies, phenomenologies, grounded theory, and narrative inquiries commonly use computer-assisted qualitative data analysis software (CAQDAS) to manage their projects and analyses, investigators conducting discursive methodologies such as discourse or conversation analysis seem to find such software packages not as useful. In our work with Recursive Frame Analysis (RFA), a systemic approach to the analysis of text and talk, we have taken a slightly different route by utilizing Microsoft® Office applications to produce and present our RFA findings. In the paper we describe RFA, explain how we use Word and PowerPoint to carry out RFA's …

How I Learned To Conduct Focus Groups, Maribel Del Rio-Roberts

The Qualitative Report

The use of focus groups may provide researchers with important insights into research questions via participant discussion and interaction. As a human services practitioner and researcher, I became interested in learning how to conduct focus groups in order to apply these steps to my research and gain valuable insights about the human experience that the focus group interaction aims to bring to light. In this review, I will highlight the steps that I took to learn to conduct focus group research and through my experience I hope that readers gain familiarity and clarity into this unique qualitative research approach.

L'Interprétation Systémique: Le Liant Du Droit International, Giovanni Distefano, Petros C. Mavroidis

Faculty Scholarship

Systemic Interpretation in International and WTO Law: The Glue of the International Legal Order

The authors endeavour to emphasis the paramount role of systemic interpretation, provided for and codified in Article 31 (3) c) of the 1969 Vienna Convention on the Law of Treaties, in the light of both general international and WTO Law. This short essay ultimately leads to the confirmation that this hermeneutics method accrues by all means to the cementation of the international legal order.

Examining The Use Of Collocations In Natural Language Processing, Patrick Anthony Burke

Dissertations and Theses @ UNI

Studies in Natural Language Processing are often dedicated to defining the lexicon and grammar rules of individual languages. It is a common understanding that virtually all statements that a language user encounters are unique constructions that have never been seen before. Because of this, there has been very little modem research regarding the use of repeated language when attempting to provide computers with language processing functionality. It seems reasonable that most statements we use on a daily basis are completely new when they are evaluated in their entirely. However, it is possible that smaller portions of these statements are reused. …

Changing The International Law Of Sovereign Immunity Through National Decisions, Lori Fisler Damrosch

Faculty Scholarship

The international law of sovereign immunity derives from state practice embodied in national judicial decisions and legislation. Although some U.S. Supreme Court decisions refer to this body of law using terms like "grace and comity," the customary international law of sovereign immunity is law, which national courts should consider when arriving at immunity decisions. While it would be possible for a widely followed international treaty to work changes in customary international law, the UN Convention on Jurisdictional Immunities of States and Their Property has not done so yet. National legislation such as the U.S. Foreign Sovereign Immunities Act can precipitate …

Governmental And Private Liability For Flooding, Michael B. Gerrard

Faculty Scholarship

In recent years the frequency and severity of heavy precipitation and floods in parts of the United States, including the Northeast, have been increasing to a statistically significant degree, and this trend is expected to worsen. Events such as last August’s Hurricane Irene have caused widespread loss of life and property damage.

This article summarizes some of the liability issues that result from floods, and efforts to control them.

New York's Revived Power Plant Siting Law Preempts Local Control, Michael B. Gerrard

Faculty Scholarship

Taking most observers by surprise, the New York State Legislature on June 22, 2011, overwhelmingly passed The Power NY Act of 2011. Governor Andrew Cuomo signed it on Aug. 4. The new law revives Article X of the Public Service Law after a nearly nine-year hibernation. As before, the law creates a one-stop, state-led program for permitting electric generating facilities while preempting local requirements. But the new Article X differs from its predecessor in several important ways: It covers facilities as small as 25 megawatts (down from the prior 80 megawatts threshold), it has even more generous provisions for funding …

2010 Developments Under State Environmental Quality Review Act, Michael B. Gerrard

Faculty Scholarship

The courts decided 37 cases under the State Environmental Quality Review Act (SEQRA) in 2010. That is the lowest number since this column began its annual survey of SEQRA cases in 1990. The second lowest number was 45 in 2009. This trough is most likely caused by the economic recession, as SEQRA activity primarily relates to real estate development.

As is usually the case, defendants were much more likely to win in cases where an environmental impact statement (EIS) had been prepared than when there was no EIS. Of the 16 cases with an EIS, defendants won 13 (81 percent); …

Increasing Use Of Renewable Energy: Legal Techniques And Impediments, Michael B. Gerrard

Faculty Scholarship

The current turmoil in the Middle East and the consequent rise in oil prices are highlighting the long-recognized need for the United States to reduce its dependence on foreign energy sources. The most promising way to do that is through increased efficiency in our use of energy. My last column (Jan. 13, 2011) discussed the legal aspects of that measure. Today’s column is devoted to the legal aspects of the second most important way – increasing the share of the energy that we use that comes from renewable sources.

What’S Ahead For Power Plants And Industry? Using The Clean Air Act To Reduce Greenhouse Gas Emissions, Building On Existing Regional Programs, Franz T. Litz, Nicholas Bianco, Michael B. Gerrard, Gregory E. Wannier

Faculty Scholarship

In the absence of congressional action on climate change, all eyes are on the states and the United States Environmental Protection Agency (EPA) to see how they will regulate greenhouse gas emissions from existing large power plants and industrial facilities. Indeed, power plants and industrial facilities are the sources of half of all U.S. greenhouse gas emissions, making those plants and facilities central to any effort to reduce the country’s total emissions. This working paper explores a promising pathway for the states and EPA to make these reductions using the standards of performance under section 111 of the Clean Air …

Hot News: The Enduring Myth Of Property In News, Shyamkrishna Balganesh

Faculty Scholarship

The “hot news” doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. Over the last few years, newsgatherers of different kinds have begun using the doctrine with increased frequency, believing it to create and protect an ownership interest in news. This Article argues …

Seana Shiffrin's Thinker-Based Freedom Of Speech: A Response, Vincent A. Blasi

Faculty Scholarship

As an instinctive consequentialist so far as First Amendment theory is concerned, I have to admit that I have never been so tempted by a non-consequentialist account as I am by what Professor Shiffrin has produced. My principal interest is the history of ideas regarding the freedom of speech. I have long been struck by how so many of the canonical writers on the subject have built their arguments from the starting point of the central importance of the freedom of thought. This is true of Milton and Mill in a basic, explicit, straightforward way (if Milton can ever be …

The Uk Supreme Court Speaks To International Arbitration: Learning From The Dallah Case, George A. Bermann

Faculty Scholarship

Rarely, over the decades following its entry into force, was the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or New York Convention, the subject of a judgment of the UK House of Lords. Yet, within barely over a year after its succession to the House of Lords in October 2009, the United Kingdom Supreme Court delivered a judgment that may not make up for all that lost time, but is deeply instructive nonetheless. The decision in Dallah Real Estate and Tourism Holding Company v. Ministry of Religious Affairs, Government of Pakistan became the vehicle …

Markets And Morality, Jagdish N. Bhagwati

Faculty Scholarship

The paper addresses two issues. First, economics has evolved both as a positive science and, from moral philosophy, also as a normative discipline. Advancing the public good requires that public policy walk on both these legs. Second, the criticism has been forcefully made that markets undermine morality. This contention is refuted in several ways.

Making Coasean Property More Coasean, Thomas W. Merrill, Henry E. Smith

Faculty Scholarship

In his pioneering work on transaction costs, Ronald Coase presupposed a picture of property as a bundle of government-prescribed use rights. Not only is this picture not essential to Coase’s purpose, but its limitations emerge when we apply Coase’s central insights to analyze the structure of property itself. This leads to the Coase corollary: in a world of zero transaction costs, the nature of property does not matter to allocative efficiency. However, as with the Coase theorem, the real implication is for our world of positive transaction costs: we need to subject the notion of property to a comparative institutional …

Dodd-Frank For Bankruptcy Lawyers, Douglas G. Baird, Edward R. Morrison

Faculty Scholarship

The Dodd-Frank financial reform legislation creates an “Orderly Liquidation Authority” (OLA) that shares many features in common with the Bankruptcy Code. This is easy to overlook because the legislation uses a language and employs a decision-maker (both borrowed from bank regulation) that will seem foreign to bankruptcy lawyers. Our task in this essay is to identify the core congruities between OLA and the Code. In doing so, we highlight important differences and assess both their constitutionality and policy objectives. We conclude with a few thoughts on the likelihood that OLA will contribute to market stability.