Digital Commons Network^™

Bad News For John Marshall, Gary S. Lawson, David Kopel

Faculty Scholarship

In "Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate," we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, "Bad News for Everybody," wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.

The New Federal Circuit Mandamus, Paul Gugliuzza

Faculty Scholarship

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the …

New Private Law Theory And Tort Law: A Comment, Keith N. Hylton

Faculty Scholarship

This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It …

The Ppaca In Wonderland, Gary S. Lawson, David B. Kopel

Faculty Scholarship

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …

Obamacare's (3) Day(S) In Court, Abigail Moncrieff

Faculty Scholarship

Before the oral arguments in late March, the vast majority of legal scholars felt confident that the Supreme Court of the United States would uphold the individual mandate against the constitutional challenge that twenty-six states have levied against it. Since the oral argument, that confidence has been severely shaken. This article asks why legal scholars were so confident before the argument and what has made us so concerned since the argument. The article posits that certain fundamental characteristics of health insurance - particularly its unusual role in steering healthcare consumption decisions, which distinguishes health insurance from standard kinds of indemnity …

Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail Moncrieff

Faculty Scholarship

The lawsuits challenging Obamacare's individual mandate have exposed a rift in federalism theory. On one side of the divide is a view that the national government ought to intervene - and ought to be constitutionally permitted to intervene - whenever the states are "separately incompetent" to regulate. This is the view that Robert Cooter and Neil Siegel recently theorized as "collective action federalism." On the other side of the divide is a view that federalism exists for reasons other than efficiency of regulation and particularly that the Founders created the federal structure for the protection of individual liberty. According to …

The Obama Effect: Specialized Meanings In Anti-Discrimination Law, Angela Onwuachi-Willig, Mario Barnes

Faculty Scholarship

In this Article, we explore the proclamations that have been made about an emerging “post-racial” society within the context of workplace anti-discrimination law. Specifically, as the title of our panel for this symposium asks, we inquire: What is the significance of having a biracial, black-white president (or more specifically, the first self-identified black president) to the enforcement of antidiscrimination law? What impact, if any, has President Barack Obama’s campaign for the presidency and election as president had on discrimination in the workplace? Based in part on our review of discrimination cases in which President Obama’s name has been invoked—in most …

Act And Amendments (Tjrc) - The Statute Law (Miscellaneous Amendment) Act 2012, Truth, Justice, And Reconciliation Commission

I. Core TJRC Related Documents

No abstract provided.

The Politics Of Class Action Arbitration: Jurisdictional Legitimacy And Vindication Of Contract Rights, William W. Park

Faculty Scholarship

Exactly one year apart, the U.S. Supreme Court decided two cases on “class arbitration” proceedings, one about international shipping and the other on consumer purchases of mobile telephones. Each decision inflicted damage on a claimant’s right to invoke collective action in arbitrations. Read together, the opinions serve as a prism through which to refract key elements in an increasingly politicized debate on the legal framework for arbitration, particularly within the United States.

Introduction: The Politics Of Hate, Robert L. Tsai

Faculty Scholarship

This is a special issue dedicated to the topic of hate and political discourse. Collectively, the peer-reviewed articles in this volume are concerned with the political aspects of hatred, i.e., psychology, motivations, organization, tactics, and ends. The articles approach the problem from a variety of disciplines, including anthropology, history, law, literature, philosophy, political science, psychology, and sociology. Among the subjects analyzed: group hatred as a heritable trait; hate as an irrational system of thought; Italian fascism's construction of the Communist other; the rise of the English Defence League and its anti-Islam activities; the persistent myth of blood libel; judicial handling …

The Balkinization Of Originalism, James E. Fleming

Faculty Scholarship

This Article suggests that, with the publication of Jack Balkin's Living Originalism, we are witnessing the "Balkanization" of originalism (when originalism splits into warring camps) along with the "Balkinization" of originalism (when even Balkin, hitherto a pragmatic living constitutionalist, becomes an originalist). It goes on to argue that Balkin's living originalism is what Ronald Dworkin has called a "moral reading" of the Constitution, for it conceives the Constitution as embodying abstract moral and political principles, not codifying concrete historical rules or practices. Furthermore, despite important differences, there are unmistakable affinities between Balkin's commitment to interpret the Constitution so as to …

La Jurisprudence Américaine En Matière De “Class Arbitration”: Entre Débat Politique Et Technique Juridique, William W. Park

Faculty Scholarship

Arbitration law implicates a delicate equilibrium between respect for the bargain to arbitrate and protection of basic procedural fairness. The role of law thus remains intimately linked to the rule of law, in the sense of an impartial tribunal, the right to be heard, and respect for the arbitrator's mission. The legitimacy of the process depends on how arbitrators balance the often competing goals of due process and efficiency, and whether the authorities that review awards can monitor procedural integrity without infringing an arbitrator's prerogatives on a dispute's substantive merits. Two U.S. Supreme Court decisions on class arbitration serve as …

“We Have The Right Not To Be Rescued...”: When Anti-Trafficking Programmes Undermine The Health And Well-Being Of Sex Workers, Aziza Ahmed, Meena Seshu

Faculty Scholarship

This paper highlights the impact of raid, rescue, and rehabilitation schemes on HIV programmes. It uses a case study of Veshya Anyay Mukti Parishad (VAMP), a sex workers collective in Sangli, India, to explore the impact of anti-trafficking efforts on HIV prevention programmes. The paper begins with an overview of the anti-trafficking movement emerging out of the United States. This U.S. based antitrafficking movement works in partnership with domestic Indian antitrafficking organisations to raid brothels to “rescue and rehabilitate” sex workers. Contrary to the purported goal of assisting women, the anti-trafficking projects that employ a raid, rescue, and rehabilitate model …

Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey

Faculty Scholarship

Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule^.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted …

Seniors And Information Technology: A Mis-Fit?, Mark E. Mcmurtrey, James P. Downey, Steven M. Zeltmann, Ronald E. Mcgaughey

Journal of International Technology and Information Management

The “digital divide” between the haves and have-nots in society continues to draw attention in traditional media outlets as well as academic research. Those yearning to join the computer revolution comprise several groups defined by wealth, ethnicity, country (even regions of countries), and age. While there has been research into the digital divide in all of these areas, the focus of this paper is Information Technology (IT) use by the elderly, or our senior citizens. Our interest in this group stems from the dynamic interaction of two forces: 1) senior populations are growing in percentage and sheer number both in …

Codification Of Statements On Standards For Accounting And Review Services As Of January 2012, Numbers 1 To 20, American Institute Of Certified Public Accountants (Aicpa)

AICPA Professional Standards

No abstract provided.

Aicpa Professional Standards As Of June 1, 2012, Volume 3: Accounting And Review Services, Code Of Professional Conduct, Bylaws, Valuation Services, Consulting Services, Quality Control, Peer Review, Tax Services, Personal Financial Planning, Continuing Professional Education, American Institute Of Certified Public Accountants (Aicpa)

AICPA Professional Standards

No abstract provided.

Aicpa Professional Standards As Of June 1, 2012, Volume 2: U.S. Auditing Standards – Aicpa (Clarified), American Institute Of Certified Public Accountants (Aicpa)

AICPA Professional Standards

No abstract provided.

Codification Of Statements On Auditing Standards (Including Statements On Standards For Attestation Engagements) Numbers 1 To 121, As Of January 2012, American Institute Of Certified Public Accountants (Aicpa)

AICPA Professional Standards

No abstract provided.

Side Judges: The Case Of The Israeli Military Courts

Socio-Legal Review

This study aims to evaluate the changes in the independence and quality of the judicial process, in relation to judicial panels dealing with serious crimes in the military courts of Judea and Samaria (hereinafter, "the Region'). This evaluationfllows the 2002 transition from /udiialpanels, consisting of a lega/y trained fudge (the presiding judge) accompanied b two officers without a legal education, to expert panels consisting of three judges, all of whom are jurists.

The rationale for integrating side judges into the legal system is their close relationsh with the target community and an increasedpublic confidence in the system. At the same …

Front Matter, Socio-Legal Review

Socio-Legal Review

No abstract provided.

Blood-Brain Barrier Abnormalities Caused By Hiv-1 Gp120: Mechanistic And Therapeutic Implications., Jean-Pierre Louboutin, David S Strayer

Department of Pathology, Anatomy, and Cell Biology Faculty Papers

The blood-brain barrier (BBB) is compromised in many systemic and CNS diseases, including HIV-1 infection of the brain. We studied BBB disruption caused by HIV-1 envelope glycoprotein 120 (gp120) as a model. Exposure to gp120, whether acute [by direct intra-caudate-putamen (CP) injection] or chronic [using SV(gp120), an experimental model of ongoing production of gp120] disrupted the BBB, and led to leakage of vascular contents. Gp120 was directly toxic to brain endothelial cells. Abnormalities of the BBB reflect the activity of matrix metalloproteinases (MMPs). These target laminin and attack the tight junctions between endothelial cells and BBB basal laminae. MMP-2 and …

Knockdown Of Ki-67 By Dicer-Substrate Small Interfering Rna Sensitizes Bladder Cancer Cells To Curcumin-Induced Tumor Inhibition., Sivakamasundari Pichu, Swapna Krishnamoorthy, Andrei Shishkov, Bi Zhang, Peter Mccue, Biddanda C Ponnappa

Department of Pathology, Anatomy, and Cell Biology Faculty Papers

Transitional cell carcinoma (TCC) of the urinary bladder is the most common cancer of the urinary tract. Most of the TCC cases are of the superficial type and are treated with transurethral resection (TUR). However, the recurrence rate is high and the current treatments have the drawback of inducing strong systemic toxicity or cause painful cystitis. Therefore, it would be of therapeutic value to develop novel concepts and identify novel drugs for the treatment of bladder cancer. Ki-67 is a large nucleolar phosphoprotein whose expression is tightly linked to cell proliferation, and curcumin, a phytochemical derived from the rhizome Curcuma …

Decorin Protein Core Affects The Global Gene Expression Profile Of The Tumor Microenvironment In A Triple-Negative Orthotopic Breast Carcinoma Xenograft Model., Simone Buraschi, Thomas Neill, Rick T Owens, Leonardo A Iniguez, George Purkins, Rajanikanth Vadigepalli, Barry Evans, Liliana Schaefer, Stephen C Peiper, Zi-Xuan Wang, Renato V Iozzo

Department of Pathology, Anatomy, and Cell Biology Faculty Papers

Decorin, a member of the small leucine-rich proteoglycan gene family, exists and functions wholly within the tumor microenvironment to suppress tumorigenesis by directly targeting and antagonizing multiple receptor tyrosine kinases, such as the EGFR and Met. This leads to potent and sustained signal attenuation, growth arrest, and angiostasis. We thus sought to evaluate the tumoricidal benefits of systemic decorin on a triple-negative orthotopic breast carcinoma xenograft model. To this end, we employed a novel high-density mixed expression array capable of differentiating and simultaneously measuring gene signatures of both Mus musculus (stromal) and Homo sapiens (epithelial) tissue origins. We found that …