Digital Commons Network^™

‘The Ordinary Diet Of The Law’: The Presumption Against Preemption In The Roberts Court, Ernest A. Young

Faculty Scholarship

In a preemption case decided over a decade ago, Justice Breyer wrote that “in today’s world, filled with legal complexity, the true test of federalist principle may lie . . . in those many statutory cases where courts interpret the mass of technical detail that is the ordinary diet of the law.” This article surveys the Roberts Court’s preemption jurisprudence, focusing on five cases decided in OT 2010. Young argues that Justice Breyer was right — that is, that because current federalism jurisprudence largely eschews any effort to define exclusive spheres of state and federal regulatory jurisdiction, the most important …

Responses To The Five Questions, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

States’ Rights, Southern Hypocrisy, And The Crisis Of The Union, Paul Finkelman

Faculty Scholarship

This article explores the arguments used by southern secessionists to explain why they left the Union. The article demonstrates that support for "states' rights" was not the main reason for secession, and that on the contrary, most of the slave states left the Union because the free states were exercising their states' rights in opposing slavery. The main reason for secession, as this essay shows, was the desire to protect slavery and to create a new nation, self-consciously based on slavery and white supremacy. This article began as part of an AALS legal history section program in 2010 and is …

Can Wrongful Death Damages Recovered By A Married Person Be Separate Property Under California Law?, William A. Reppy Jr.

Faculty Scholarship

Existing California judicial precedent uniformly holds that damages recovered by a married person based on the wrongful death of a relative of the married person during the marriage—and while the spouses were not living separate and apart—is entirely community property. Under the theoretical basis for this community property classification, it is irrelevant that the person tortiously killed was a child or grandchild only of the plaintiff- or payee-spouse and had no legally recognized relationship to that party’s husband or wife, who becomes owner of half the recovery because of its classification as community property. This Article rejects this community property …

A Neurological Foundation For Freedom, Nita A. Farahany

Faculty Scholarship

No abstract provided.

Incriminating Thoughts, Nita A. Farahany

Faculty Scholarship

The neuroscience revolution poses profound challenges to current selfincrimination doctrine and exposes a deep conceptual confusion at the heart of the doctrine. In Schmerber v. California, the Court held that under the Self- Incrimination Clause of the Fifth Amendment, no person shall be compelled to “prove a charge [from] his own mouth,” but a person may be compelled to provide real or physical evidence. This testimonial/physical dichotomy has failed to achieve its intended simplifying purpose. For nearly fifty years scholars and practitioners have lamented its impracticability and its inconsistency with the underlying purpose of the privilege. This Article seeks to …

Searching Secrets, Nita A. Farahany

Faculty Scholarship

A Fourth Amendment violation has traditionally involved a physical intrusion such as the search of a house or the seizure of a person or her papers. Today, investigators rarely need to break down doors, rummage through drawers, or invade one’s peace and repose to obtain incriminating evidence in an investigation. Instead, the government may unobtrusively intercept information from electronic files, GPS transmissions, and intangible communications. In the near future, it may even be possible to intercept information directly from suspects’ brains. Courts and scholars have analogized modern searches for information to searches of tangible property like containers and have treated …

Cds Zombies, Anna Gelpern, Mitu Gulati

Faculty Scholarship

This paper examines the contract interpretation strategies adopted by the International Swaps and Derivatives Association (ISDA) for its credit derivatives contracts in the Greek sovereign debt crisis. The authors argue that the economic function of sovereign credit default swaps (CDS) after Greece is limited and uncertain, partly thanks to ISDA’s insistence on textualist interpretation. Contract theory explanations for textualist preferences emphasise either transactional efficiency or relational factors, which do not fit ISDA or the derivatives market. The authors pose an alternative explanation: the embrace of textualism in this case may be a means for ISDA to reconcile the competing political …

Standing The Test Of Time: The Breadth Of Majority Coalitions And The Fate Of U.S. Supreme Court Precedents, Stuart M. Benjamin, Bruce A. Desmarais

Faculty Scholarship

Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding …

When Copyright Law And Science Collide: Empowering Digitally Integrated Research Methods On A Global Scale, Jerome H. Reichman, Ruth L. Okediji

Faculty Scholarship

Automated knowledge discovery tools have become central to the scientific enterprise in a growing number of fields and are widely employed in the humanities as well. New scientific methods, and the evolution of entirely new fields of scientific inquiry, have emerged from the integration of digital technologies into scientific research processes that ingest vast amounts of published data and literature. The Article demonstrates that intellectual property laws have not kept pace with these phenomena.

Copyright law and science co-existed for much of their respective histories, with a benign tradition of the former giving way to the needs of the latter. …

Constitutional Backdrops, Stephen E. Sachs

Faculty Scholarship

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text?

This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These …

The Aba, The Aall, The Aals, And The “Duplication Of Legal Publications”, Richard A. Danner

Faculty Scholarship

Between 1935 and 1940, the American Bar Association, the Association of American Law Schools, and the American Association of Law Libraries joined forces to work on solutions to a problem often referred to as the “duplication of legal publications.” The need for practicing attorneys and law libraries to purchase multiple and duplicative versions of published law reports and other law books was burdensome in costs, complicated the research process, and contributed to what the American Law Institute identified as the two chief defects of American law: “its uncertainty and its complexity.” This article highlights the efforts of the ABA, the …

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

Section 2 Is Dead: Long Live Section 2, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Ethical Issues Of The Practice Of National Security Law: Some Observations, Charles J. Dunlap

Faculty Scholarship

No abstract provided.

Concentration In Health Care Markets: Chronic Problems And Better Solutions, Barak D. Richman

Faculty Scholarship

Health care providers with market power enjoy substantially more pricing freedom than monopolists in other markets, for a reason not generally recognized: US-style health insurance. Consequently, monopolies in health care cause undesirable redistribution of wealth and inefficient allocation of resources, both of which burden consumers at levels beyond those of other monopolists. The unusual costliness of monopoly power in health care markets demands far more policy attention than it has received. For starters, the health sector needs a more aggressive antitrust policy that effectively prevents the creation of new provider market power through mergers, alliances, or government immunity. An immediate …

Freedom Of Expression And Its Competitors, George C. Christie

Faculty Scholarship

The recognition of an increasing number of basic human rights, such as in the European Convention on Human Rights, has had the paradoxical effect of requiring courts in the common-law world to consider whether the extensive protection given by the common law to expression that was not false or misleading must be modified to accommodate these newly recognized basic rights. The most important of these newly recognized rights is the right of privacy, although expression has other competitors as well, such as what might be called a right to be spared the emotional trauma caused by abusive language. This article …

Case Management In The Circuit Courts, Marin K. Levy

Faculty Scholarship

No abstract provided.

Is Now The Time For Major Federal Sentencing Reform?, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Book Review, Samuel W. Buell

Faculty Scholarship

No abstract provided.

Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Services Liberalization In The Philippines: A Capacity Needs Assessment For Aec 2015, Fernando T. Aldaba, Rafaelita M. Aldaba

Economics Department Faculty Publications

The paper aims to assess and determine the capacity-building needs required to liberalize trade in services in the Philippines. Through the ASEAN Framework Agreement on Services, the Philippines has committed to liberalize various sectors including air transport, maritime transport, construction, financial services, and telecommunications. The overall progress of services liberalization has been modest compared to trade in goods due mainly to constitutional restrictions, limitations on market access, and application of the national treatment principle. Apart from these constitutional and legal constraints, the other obstacles to services liberalization include high cost of doing business, inadequate infrastructure, and governance issues affecting the …

United States Environmental Protection Agency Scientific Integrity Policy

Copyright, Fair Use, Scholarly Communication, etc.

United States Environmental Protection Agency Scientific Integrity Policy (2012).

Going Outside The Law: The Role Of The State In Shaping Attitudes To Private Acts Of Violence, Tom R. Tyler, Jonathan Jackson, Aziz Huq, Ben Bradford

Public Law and Legal Theory Working Papers

Why do people believe that violence is acceptable? In this paper we study people’s normative beliefs about the acceptability of violence to achieve social control (as a substitute for the police, for self-protection and the resolution of disputes) and social change (through violent protests and acts to achieve political goals). Addressing attitudes towards violence among young men from various ethnic minority communities in London, we find that procedural justice is strongly correlated with police legitimacy, and that positive judgments about police legitimacy predicts more negative views about the use of violence. We conclude with the idea that police legitimacy has …

Finding International Law, Part Ii: Our Fragmenting Legal Community, Harlan G. Cohen

Faculty Scholarship

Is there an “International Community?” This Article suggests that there is not, that the oft-discussed fragmentation of international law reveals that there are in fact multiple overlapping and competing international law communities, each with differing views on law and legitimacy.

This Article reaches this conclusion by taking a fresh look not only at the sources of fragmentation, but at the sources of international law itself. Building on earlier work rethinking international law’s sources and drawing insights from legal philosophy, compliance theory, and international relations, this Article takes a closer look at three areas that have challenged traditional interpretations of international …

When Is Artification?, Roberta Shapiro, Nathalie Heinich

Contemporary Aesthetics (Journal Archive)

How do people do or make things that come to be seen as works of art? In other words, when is there artification? The answer to this question is simultaneously symbolic, material, and contextual. It has to do with meanings, objects, interaction, and institutions. We seek to define not what art is nor how it should be considered, but how and under what circumstances it comes about by way of methodical observation and inquiry in a variety of fields. Circus acrobats, break-dancers, fashion designers, chefs, graffiti artists, printers, photographers, and jazz musicians are some of the examples we explore. This …

Artification And The Drawing Of Distinctions: An Analysis Of Categories And Their Uses, Kari Korolainen

Contemporary Aesthetics (Journal Archive)

The aim of the article is to examine how we distinguish between art, decoration, and furnishing within a research interview. The interview specimens here are examined by adapting the ethnomethodologically oriented method of Membership Categorization Analysis. The results indicate that the speakers rely, for example, on the context of the interview situation and also use flexible logical means, such as conditioning and comparison, to make the discussed issues more comprehensive. The results of the analysis are interpreted in the context of artification, emphasizing in particular the notion of the situated process of categorical resiliency.

Disturbing The Power Equilibrium: How Notions Of Private And Public Construct The Lesbian Educator In The American School System, Lillian Petrovich Brandt

Dissertations

Educational institutions are places permeated with the dominant social ideology and are sites for social reproduction; that is, the American school socially reproduces the white, male heteronormativity of the American public life. These dominant institutions perpetuate privilege for some, but not for others who are not represented in the dominant discourse. At times rendered invisible and private inside the school, a lesbian educator, may, in fact, be visible and public outside the school. There is a paucity of research on lesbian, gay, bisexual and transgender (LGBT) educators, yet queer educators exist in the school setting in which a "don't ask …

Serine 910 Phosphorylation Of Focal Adhesion Kinase Is Critical For Costamere Assembly, Miensheng Chu

Dissertations

Tyrosine-phosphorylated FAK is required for the hypertrophic response of cardiomyocytes to growth factors and mechanical load, but the role of FAK serine phosphorylation in this process is unknown. Endothelin-1 (ET-1; 1-100nM, 2-30min) and other hypertrophic factors induced a time- and dose-dependent increase in FAK-S910 phosphorylation in neonatal rat ventricular myocytes (NRVM). FAK-S910 phosphorylation required ET_AR-dependent activation of PKCδ and Src via parallel Raf-1→MEK1/2→ERK1/2 and MEK5→ERK5 signaling pathways. Using co-immunoprecipitation, TIRF-microscopy and FRAP, ET-1 stimulation of NRVM expressing a nonphosphorylatable, S910A-FAK mutant decreased the interaction of paxillin and vinculin within costameres. This interaction was important in stabilizing α-actinin within …

How Do Secondary Science Teachers Understand And Implement Technological Design In Their Classrooms?, Kathryn H. Heroux

Dissertations

This qualitative, phenomenological study examined how ten secondary science teachers from a variety of different schools around the country understand and implement technological design in their classrooms. The results of this study indicate that these teachers were drawn to the tenets of technological design because of its inherent challenge to their own pedagogical strategies, and its ability to stimulate and motivate their students. The future of science education with respect to technological design is examined, and compared with the standards that will emerge in the new science standards soon to be finalized and circulated.