Digital Commons Network^™

The Concept Of "Harm" In Copyright, Wendy J. Gordon

Faculty Scholarship

This essay examines the tort of copyright infringement. It argues that the ideas of "harm" and "fault" already play a role in the tort’s functioning, and that an ideally reformulated version of the tort should perhaps give a more significant role to “harm.” The essay therefore examines what “harm” can or should mean, reviewing four candidates for cognizable harm in copyright law (rivalry-based losses, foregone fees, loss of exclusivity, and subjective distress) and canvassing three philosophical conceptions of "harm" (counterfactual, historical-worsening, and noncomparative). The essay identifies the appropriateness vel non of employing, in the copyright context, each harm-candidate and each …

Municipalities In Distress: A Preventive View, Tamar Frankel

Faculty Scholarship

The recent rising failure of municipalities has not produced the avalanche that some expected.¹ Yet concerns have been raised that the future will spawn more failures.² New York City and other municipalities face soaring pension, Medicaid, and retiree health care costs.³ New York City’s neighboring counties face similar challenges; Yonkers, Suffolk, and Nassau Counties each face their own set of fiscal problems.⁴

Municipalities that have failed, or are likely to fail, have raised a number of legal issues implicated by their inability to pay their debts. Some questions seem new. For example, are employees’ pension benefits …

The Fight To Frame Privacy, Woodrow Hartzog

Faculty Scholarship

The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that …

Social Data, Woodrow Hartzog

Faculty Scholarship

As online social media grow, it is increasingly important to distinguish between the different threats to privacy that arise from the conversion of our social interactions into data. One well-recognized threat is from the robust concentrations of electronic information aggregated into colossal databases. Yet much of this same information is also consumed socially and dispersed through a user interface to hundreds, if not thousands, of peer users.

In order to distinguish relationally shared information from the threat of the electronic database, this essay identifies the massive amounts of personal information shared via the user interface of social technologies as “social …

Underneath Her Pantsuit: A Reflection On Hanna Rosin's The End Of Men, Aziza Ahmed

Faculty Scholarship

In her book, The End of Men, ¹ Hanna Rosin argues that women have “surpassed” men. This new reality necessitates a reevaluation of marriage, family, sex, and gender roles.² To further her claim, Rosin dedicates a chapter of her book to the topic of violence committed by women. She argues that women are becoming more violent³ :

The new [trope] taps into a fear that as they gain more power, women will use violence and their new specialized skills to get what they want. Singular and exotic though these cases may be, they raise the broader unsettling possibility …

Geography And Justice: Why Prison Location Matters In U.S. And International Theories Of Criminal Punishment, Steven Arrigg Koh

Faculty Scholarship

This Article is the first to analyze prison location and its relationship to U.S. and international theories of criminal punishment. Strangely, scholarly literature overlooks criminal prison designation procedures—the procedures by which a court or other institution designates the prison facility in which a recently convicted individual is to serve his or her sentence.

This Article identifies this gap in the literature—the prison location omission—and fills it from three different vantage points:

(1) U.S. procedural provisions governing prison designation;

(2) international procedural provisions governing prison designation; and

(3) the relationship between imprisonment and broader theories of criminal punishment.

Through comparison of …

“Rugged Vaginas” And “Vulnerable Rectums”: The Sexual Identity, Epidemiology, And Law Of The Global Hiv Epidemic, Aziza Ahmed

Faculty Scholarship

AIDS remains amongst the leading causes of death globally. Identity is the primary mode of understanding HIV and organizing in response to the HIV epidemic. In this Article, I examine how epidemiology and human rights activism co-produce ideas of identity and risk. I call this the "identity/risk narrative ": the commonsense understanding about an identity group's HIV risk. For example, epidemiology offers the biological narrative of risk: anal sex and the weak rectal lining make men who have sex with men more vulnerable to HIV; while the fragility of a woman's vaginal wall provides a biological foundation for women's vulnerability. …

Hunting Stag With Fly Paper: A Hybrid Financial Instrument For Social Enterprise, Dana Brakman Reiser, Steven A. Dean

Faculty Scholarship

Social entrepreneurs and socially motivated investors share a belief in the power of social enterprise: ventures that pursue a "double bottom line" of profit and social good. Unfortunately, they also share a deep mutual suspicion. Recognizing that social ventures-just like traditional for-profit and nonprofit enterprises-need capital to flourish, this Article offers a financing tool to transform that skepticism into commitment. Unlike the array of new entities that have emerged in recent years-including L3Cs, benefit corporations, and flexible purpose corporations-the hybrid financial instrument this Article describes provides a robust and transparent solution to the puzzle that lies at the heart of …

Motivation Matters: Guideline 10.13 And Other Mechanisms For Preventing Lawyers From Surrendering To Self-Interest In Responding To Allegations Of Ineffective Assistance In Death Penalty Cases, Tigran W. Eldred

Faculty Scholarship

Defense lawyers whose clients are sentenced to death are virtually guaranteed to be accused of ineffective assistance of counsel. The question is how they will respond. On one hand, lawyers alleged to be ineffective are obligated under Guideline 10.13 of the American Bar Association’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases to continue to safeguard the interests of their former clients, a duty that includes full cooperation in appropriate legal strategies chosen to pursue the ineffectiveness claim. On the other hand, lawyers who are accused of ineffectiveness often react defensively to the allegation, reflexively …

Ip Injury And The Institutions Of Patent Law, Paul Gugliuzza

Faculty Scholarship

This paper reviews Creation Without Restraint: Promoting Liberty and Rivalry in Innovation, the pathbreaking book by Christina Bohannan and Herbert Hovenkamp (Oxford Univ. Press 2012). The Review begins by summarizing the book’s descriptive insights and analyzing one of its important normative proposals: the adoption of an IP injury requirement. This requirement would demand that infringement plaintiffs prove -- before obtaining damages or an injunction -- an injury to the incentive to innovate. After explaining how this requirement is easy to justify under governing law and is largely consistent with recent Supreme Court decisions in the field of patent law, the …

The Case For Public Pension Reform: Early Evidence From Kentucky, Maria O'Brien

Faculty Scholarship

Kentucky has managed to effect major changes to some of its pension plans in the face of poor funding ratios that threatened to swamp other budget priorities. At this point it is unclear whether the reforms are deep enough to bring the plans funding levels in line with those of “healthy” states like Wisconsin. It is also unclear whether there is the political will in other jurisdictions to curb costs by moving to defined contribution or hybrid cash balance vehicles. Transparency combined with a fear that pension obligations would soon swamp all other state budget priorities appears to have been …

Federal Family Policy And Family Values From Clinton To Obama, 1992-2012 And Beyond, Linda C. Mcclain

Faculty Scholarship

This Article traces the evolution of federal family law and policy from 1992-2012 and beyond by considering the legacy of Clintonism, the “Third Way” political philosophy developed by William Jefferson Clinton and the Democratic Leadership Council. Present day economic inequality is spurring reflection on the role of government and on the meaning and form of progressive politics. Clintonism’s centrist, progressive approach linked governmental provision of opportunity to personal responsibility (“working hard and playing by the rules”) and appealed to values of family, community, faith, liberty, and inclusion. By linking family values to family policies, Clintonism’s New Covenant successfully challenged the …

Legal Education At A Crossroads: Innovation, Integration, And Pluralism Required!, Karen Tokarz, Antoinette Sedillo Lopez, Peggy Maisel, Robert Seibel

Faculty Scholarship

Although historically slow to change, law schools are now facing enormous pressure from educators, students, lawyers, judges, clients, and the public to rethink legal education and the lawyer‘s role in society. Now more than ever, there is robust national debate on the threshold contributions law schools should make to the preparation of law graduates for entry into practice. The clamor for reform in legal education is precipitated by a confluence of factors, including new insights about lawyering competencies and experiential legal education; the shifting nature of legal practice in the United States; a decrease in law jobs; changes in the …

Did Legal Education Fail Health Reform? And How Health Law Can Help, Wendy K. Mariner

Faculty Scholarship

Arguments over the constitutionality of the Affordable Care Act illustrate the pervasiveness of health law issues in society. In court, arguments on both sides also demonstrated insufficient knowledge of the health care system and health insurance to identify and present useful arguments. Too many lawyers remained wedded to theories of constitutional law that have become disconnected from twenty-first century realities. Legal education may have something to answer for in this respect. This essay examines how legal education in health law may offer some valuable responses to ongoing critiques of legal education in general. The more law moves away from strict …

University Assessment Services, National Survey Of Student Engagement, 2013, Illinois State University

Student Success

National Survey of Student Engagement (NSSE) administered by University Assessment Services, Illinois State University, to Seniors. 2013.

How Universal Is The Big Five? Testing The Five-Factor Model Of Personality Variation Among Forager-Farmers In The Bolivian Amazon, Michael Gurven, Christopher Von Rueden, Maxim Massenkoff, Hillard Kaplan, Marino Lero Vie

ESI Publications

The five-factor model (FFM) of personality variation has been replicated across a range of human societies, suggesting the FFM is a human universal. However, most studies of the FFM have been restricted to literate, urban populations, which are uncharacteristic of the majority of human evolutionary history. We present the first test of the FFM in a largely illiterate, indigenous society. Tsimane forager–horticulturalist men and women of Bolivia (n = 632) completed a translation of the 44-item Big Five Inventory (Benet-Martínez & John, 1998), a widely used metric of the FFM. We failed to find robust support for the FFM, based …

“24” – Hours To Discharge After Robotic Surgery For Complex Gynecologic Malignancies (Standards Of Care Even Jack Bauer Couldn’T Achieve, Sarah R. Mason Rn, Nicole Reimer Bsn, Rn, Ocn

Patient Care Services / Nursing

No abstract provided.

Translating Evidence To The Bedside: Recognizing Delirium, Michaelen Panzarella Msn, Rn, Ccrn

Patient Care Services / Nursing

No abstract provided.

A Trauma Unit’S Interprofessional Approach To Reducing Catheter Associated Urinary Tract Infections, Kai L. Bortz Rn

Patient Care Services / Nursing

No abstract provided.

Enhancing Bonding Of Mother And Infant, Krista D. Thomas Rn, Bsn, Jennifer King Rnc, Bsn

Patient Care Services / Nursing

No abstract provided.

Spring Into Step: A Staff-Driven Mobility Protocol, Tracy Gemberling Ba, Rn, Cmsrn, Amy Keesler Rn, Christine R. Yatsko Msn, Rn, Cmsrn

Patient Care Services / Nursing

No abstract provided.

Prevention Of Intraoperative Specimen Errors, Maureen Bredbenner Rn, Cnor

Patient Care Services / Nursing

No abstract provided.

Beware, Don’T Overshare - Proper Use Of Social Media For Nurses, Sheryl Repischak Rn, Bsn, Ms

Patient Care Services / Nursing

No abstract provided.

A Conversation With Justice Ruth Bader Ginsburg, Ruth Bader Ginsburg, Gillian E. Metzger, Abbe Gluck

Faculty Scholarship

Professor Gillian Metzger: Katherine, thank you for that wonderful overview of all that the Justice has achieved and the history of Columbia Law School. And I want to apologize for those to whom I am showing my back, but this will allow us to have more of a conversation with the Justice.

Justice, thank you so much for being with us today. It is a real privilege for us to get to talk to you this way, and we know for the entire audience. You have had – as you have now heard (LAUGHS) – an amazing and just tremendously …

Administrative Constitutionalism, Gillian E. Metzger

Faculty Scholarship

The U.S. Food and Drug Administration adopts a rule requiring tobacco companies to include graphic images warning of the health risks associated with smoking, defending the rule at length against the claim it violates the First and Fifth Amendments. The Department of Education and the Department of Justice (DOJ) jointly issue guidance explaining how elementary and secondary schools can voluntarily consider race consistently with governing constitutional law. The Office of Legal Counsel (OLC) in DOJ issues a memorandum to the Attorney General concluding that the President had constitutional authority to commit U.S. forces as part of the NATO military campaign …

The Shale Oil And Gas Revolution, Hydraulic Fracturing, And Water Contamination: A Regulatory Strategy, Thomas W. Merrill, David M. Schizer

Faculty Scholarship

The United States has surpassed Russia as the world's top natural gas producer, and according to the world's most respected energy forecaster, the U.S. will also overtake Saudi Arabia as the largest oil producer by 2020. This surge in U.S. oil and gas production would have seemed wildly improbable a decade ago. It flows from a revolution in U.S. oil and gas production. Energy companies have learned to tap previously inaccessible oil and gas in shale and other impermeable (or "tight") rock formations. To do so, they use "hydraulic fracturing" ("fracturing" or "fracking"), pumping fluid into shale at high pressure …

I Like To Pay Taxes: Taxpayer Support For Government Spending And The Efficiency Of The Tax System, Yair Listokin, David M. Schizer

Faculty Scholarship

Why do people pay taxes? The simplest answer is that they have a legal obligation to do so. But it has long been recognized that this legal obligation alone provides an inadequate explanation for taxpaying behavior, just as legal obligations generally offer an inadequate explanation for most law-abiding activity.Another answer, then, is that some people pay taxes because – like Oliver Wendell Holmes – they like to do so. In other words, they appreciate that the government provides a vast array of public goods, such as rule of law, roads, schools, and aid to the poor, and find satisfaction in …

Cognitive Systems For Revenge And Forgiveness, Michael E. Mccullough, Robert Kurzban, Benjamin A. Tabak

ESI Publications

Minimizing the costs that others impose upon oneself and upon those in whom one has a fitness stake, such as kin and allies, is a key adaptive problem for many organisms. Our ancestors regularly faced such adaptive problems (including homicide, bodily harm, theft, mate poaching, cuckoldry, reputational damage, sexual aggression, and the infliction of these costs on one's offspring, mates, coalition partners, or friends). One solution to this problem is to impose retaliatory costs on an aggressor so that the aggressor and other observers will lower their estimates of the net benefits to be gained from exploiting the retaliator in …

Sharing The Risks And Rewards Of Economic Migration, Anu Bradford

Faculty Scholarship

International cooperation on economic migration has been difficult to achieve. The interests of emigration countries ("source countries") and immigration countries ("destination countries') seem impossible to align. These countries disagree on who should migrate: source countries resist migration that leads to a brain drain, while destination countries welcome these very migrants given that they are likely to be the most productive citizens and the least likely to become fiscal burdens on the destination country. In addition, destination countries resist migration that leads to domestic unemployment through labor replacement. As a result, international economic migration remains restricted at a substantial cost to …

"Children Are Different": Constitutional Values And Justice Policy, Elizabeth S. Scott

Faculty Scholarship

This essay explores the importance for Eighth Amendment jurisprudence and for juvenile crime regulation of Miller v. Alabama (2012) and two earlier Supreme Court opinions rejecting harsh sentences for juveniles. It argues that the Court has broken new ground in defining juveniles as a category of offenders who are subject to special Eighth Amendment protections. In Miller and in Graham v. Florida (2010) particularly, the Court has applied to juveniles' non-capital sentences the rigorous proportionality review that, for adults, has been reserved for death sentences. The essay then turns to the implications of the opinions for juvenile crime policy, arguing …