Digital Commons Network^™

Foreign Affairs Federalism: A Revisionist Approach, Daniel Abebe, Aziz Z. Huq

Faculty Scholarship

In April 2010, the Arizona legislature enacted the Support Our Law Enforcement and Safe Neighborhoods Act. Commonly known as SB 1070, the law created a slate of new criminal offenses and arrest powers covering aliens within Arizona's borders. SB 1070 proved divisive. It inspired copycat legislation in several states, provoked sharp criticism from the legal academy, and – most relevant here – catalyzed a lawsuit by the U.S. Department of Justice seeking a preliminary injunction against the state law on the ground that it was preempted by federal law. Initially, the federal government's litigation prospects seemed dim. One term before …

Legislation With Endogenous Preferences, Aviad Heifetz, Ella Segev, Eric L. Talley

Faculty Scholarship

It has long been recognized that individuals' preferences adapt to the social, economic and legal environment in which they take part, in addition to reacting to incentives and constraints given these preferences. Therefore, the design of such incentives via legislation or regulation should better take into account also its own effect on preferences, in order to avoid endogenous preference adaptation curtailing the designer's aims. Furthermore, the endogeneity of preferences poses a dilemma to the social planner whether to maximize welfare having in mind the original preferences of individuals, or rather the preferences that emerge endogenously with the intervention mechanism. This …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Aca Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

The Health Care Case is best understood as a legal attack on the means but not the goals of the health care legislation. This emphasis on means rather than ends and on state over federal powers potentially poses significant risks for the complex institutional arrangements for social insurance that now exist and may imply harmful constraints on how Congress can restructure these programs to better meet the needs of the American people in the twenty-first-century economy. Not coincidentally, the new constitutional framework announced in the ACA decision favors those who want to dismantle rather than strengthen the nation’s social insurance …

Human Rights Obligations To The Poor, Monica Hakimi

Faculty Scholarship

Poverty unquestionably detracts fromthe human rights mission.Modern human rights law recognizes a broad range of rights – for example, “to life, liberty, and security of person” and to adequate “food, clothing, and medical care.”1 Any number of those rights might go unrealized in conditions of extreme poverty. However, human rights law has always been partly aspirational. For those seeking to improve the lives of the poor, the key question is not what rights exist but how to make those rights operational.What does human rights law actually require of states? And how might its obligations benefit the poor?

The Restatement Of The U.S. Law Of International Commercial Arbitration: An Interim Report, George A. Bermann

Faculty Scholarship

Despite its title, the American Law Institute's Restatement (Third) of the U.S. Law of International Arbitration is the ALI's first Restatement ever on the subject of international commercial arbitration. The ALI commissioned this Restatement not merely because the subject has become so important in international commerce, but because the American law on the subject is deeply unsettled. After all, the purpose of Restatements is to bring clarity and coherence and, where necessary, improvement to the law. Historically, Restatements have concentrated on state rather than federal law subjects precisely because of the discrepancies among the laws of the several states on …

A Competition Act By India, For India: The First Three Years Of Enforcement Under The New Competition Act, Dorothy S. Lund

Faculty Scholarship

In 2002, India unveiled its new Competition Act. The Act substantially improves upon the previous competition regime, which regulated and condemned dominance even absent culpable conduct. Despite improvements, provisions of the Act have proven difficult for the fledgling Competition Commission (“the Commission”) to implement. For one, the Act overwhelmingly prefers rule of reason analysis to per se illegality for horizontal and vertical agreements. While this approach gives the Commission the flexibility to conduct a nuanced inquiry, the economic analysis required is challenging. So far, the Commission has struggled when applying basic antitrust economics in the hundred or so orders that …

Navigating Tefra Partnership Audits In Multi-Tiered Entity Structures, Mary A. Mcnulty, Robert D. Probasco, Lee S. Meyercord

Faculty Scholarship

The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) established a unified procedure for determining the tax treatment of partnership items at the partnership level rather than the partner level. Although these rules addressed a serious and real administrative problem in the assessment of partnership level deficiencies, they also created a complex process with many new problems and potential traps. One particularly unique set of challenges arises in the context of multi-tiered entities.

Multi-tiered entities are partnerships that have a partnership or other pass-through entity as a partner. The pass-through partner is commonly referred to as a “tier,” and …

Climate Change Action Without Congress, Michael B. Gerrard

Faculty Scholarship

Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing statutory powers to fight climate change.

Law Schools, Leadership, And Change, Susan P. Sturm

Faculty Scholarship

Law schools train many of the nation’s leaders. As Professor Fred Rodell observed, “it is the lawyers who run our civilization for us – our governments, our business, our private lives.” The legal profession was already closely linked to leadership at the founding of the country, when lawyers constituted almost half of the signers of the Declaration of Independence and more than half of the members of the Constitutional Convention. Lawyers now bear major responsibility for leading the institutions that structure the governance, education, and day-to-day lives of the polity. Ten percent of the CEOs of the top fifty companies …

Expedited Approval Of Energy Projects: Toward Assessing The Forms Of Procedural Relief, Michael B. Gerrard

Faculty Scholarship

If we are to prevent the worst effects of climate change, a major shift in the world’s energy systems will be needed, including the construction of a massive number of clean energy facilities. Under one well-known scenario, this will require — along with many other actions — the construction of 230 wind farms the size of the proposed Cape Wind project in Nantucket Sound; 1,000 large solar generating facilities of about ten square miles each; 1,400 natural gas-fired electric generating stations; 800 carbon capture and sequestration systems at coal-fired power plants; and 850 new nuclear power plants.

The Cape Wind …

Staging The Family, Clare Huntington

Faculty Scholarship

For many critical aspects of family life, all the world truly is a stage. When a parent scolds a child on the playground, all eyes turn to watch and judge. When an executive’s wife hosts a work party, the guests are witness to traditional gender roles. And when two fathers attend a back-to-school night for their child, other parents take note of this relatively new family configuration. Family is popularly considered intimate and personal, but in reality much of family life is lived in the public eye.

These performances of family and familial roles do not simply communicate messages to …

The Role Of Unfair Competition In The Common Law, Shyamkrishna Balganesh, Gideon Parchomovsky

Faculty Scholarship

Does the idea of “unfair competition” present the law with a viable alternative to thinking about the regulation of information and informational resources, independent of the traditional categories of the common law (e.g., property/tort) and the assumptions that these categories entail? In this chapter, we argue that, although the answer to that question is no, unfair competition nevertheless plays an important role in complementing the categories of property and torts as they apply to competitive settings. Specifically, unfair competition allows courts to both broaden and narrow the traditional notions of property and torts – especially as they apply to the …

Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent

Faculty Scholarship

The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …

A Precedent Built On Sand: Norcon V. Niagra Mohawk, Victor P. Goldberg

Faculty Scholarship

Under the common law, a contracting party could only demand assurance of performance if the other party was insolvent. If a party had reasonable grounds for insecurity, the UCC Section 2-609 allowed it to demand adequate assurance even if the counterparty were solvent. The Restatement (Second) adopted the same rule for non-goods. In NorCon v. Niagara Mohawk the New York court extended the adequate assurance doctrine for some non-goods contracts. Although the decision seems to imply that there is some relation between the NorCon facts and its conclusion as to the law, there is none. Relying primarily on material available …

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House.

To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for …

China At The Tipping Point? The Tum Against Legal Reform, Carl F. Minzner

Faculty Scholarship

No abstract provided.

Insider Threat Detection Using Virtual Machine Introspection, M. Crawford, Gilbert L. Peterson, Robert F. Mills, Michael R. Grimaila

Faculty Publications

This paper presents a methodology for signaling potentially malicious insider behavior using virtual machine introspection (VMI). VMI provides a novel means to detect potential malicious insiders because the introspection tools remain transparent and inaccessible to the guest and are extremely difficult to subvert. This research develops a four step methodology for development and validation of malicious insider threat alerting using VMI. A malicious attacker taxonomy is used to decompose each scenario to aid identification of observables for monitoring for potentially malicious actions. The effectiveness of the identified observables is validated using two data sets. Results of the research show the …

Child Welfare Cases Involving Parents With Disabilities, Joshua Kay

Articles

Many families include at least one parent with a disability. These parents become involved in the child welfare system more frequently than nondisabled parents, and their child protection cases are more likely to end in termination of parental rights. Parents with cognitive and/or psychiatric disabilities are particularly at risk of child welfare involvement. Cases involving parents with disabilities present special challenges and opportunities in child protection litigation, and strong advocacy is needed to ensure that these parents’ needs are met by the child welfare system and their rights are fully protected. With appropriate services, many parents with disabilities can provide …

In The Shadow Of The Dsu: Addressing Specific Trade Concerns In The Wto Sps And Tbt Committees, Henrik Horn, Petros C. Mavroidis, Erik Wijkström

Faculty Scholarship

The paper argues that focusing only on disputes formally raised in the WTO Dispute Settlement system underestimates the extent of trade conflict resolution within the WTO. Both the SPS and TBT Committees address a significant number of ‘specific trade concerns’ (STCs) that in the overwhelming majority of cases do not become formal disputes. The STCs address differences between Members concerning the conformity of national measures in the SPS and TBT areas with these agreements. It appears as if Committee work on STCs significantly helps defuse potential trade frictions concerning national policies in the covered areas.

Law School As Liberal Education, Sherman J. Clark

Articles

The president of a liberal arts college, if asked why college is worthwhile, would be able to respond on several levels. He or she would certainly say something about the value of the degree as a credential to help students get a job or get into graduate school. In addition, he or she would likely emphasize the professional value of the skills and capacities developed through a liberal education, which can help students succeed at work or in graduate school. More deeply, however, we would expect that he or she would have something to say about the intrinsic value of …

Christians, Lesbians, Gays, And Bisexuals: Examining The Roles Of Uncertainty And Religiosity In Christian Attitudes Toward Lgb Individuals, Megan Deanne Wharff Kavanaugh

Dissertations and Theses @ UNI

This thesis examines heterosexual Christian attitudes toward LGB individuals, specifically to determine if there is a relationship between intergroup contact, uncertainty reduction, and supportive attitudes toward LGB individuals among Christian individuals. Participants completed an online survey, which assessed religious beliefs, levels of uncertainty about interactions with LGB individuals, levels of contact with LGB individuals, and attitudes toward LGB individuals. The goal of the research was to identify the current attitudes of heterosexual Christians and the factors that may influence those attitudes. Findings indicate that participants were unsure, but leaned toward valuing the contributions of LGB individuals in society and believing …

Writing Supports For Older Students With Significant Disabilities: Examining Two Students' Journeys Towards Becoming Writers, Emily Helen Freeman

Dissertations and Theses @ UNI

This study describes the changes in linguistic and social communicative competencies that occurred when two older students with significant disabilities where provided with writing opportunities, instruction, and supports over a semester of the academic year. The goals of the study were to identify themes and patterns in the skills associated with linguistic and social communicative competence as evidenced in writing over time. A second aim of this study was to identify instruction methods and assistive technology supports being used in the classroom and describes the themes and patterns that emerged in the students’ writing given the presence of these curriculum …

Batman And The Superhero Fairytale: Deconstructing A Revisionist Crisis, Travis John Landhuis

Dissertations and Theses @ UNI

Contemporary superhero comics carry the burden of navigating historical iterations and reiterations of canonical figures—Batman, Superman, Green Lantern et al.—producing a tension unique to a genre that thrives on the reconstruction of previously established narratives. This tension results in the complication of authorial and interpretive negotiation of basic principles of narrative and structure as readers and producers must seek to construct satisfactory identities for these icons. Similarly, the post-modern experimentation of Robert Coover—in Briar Rose and Stepmother—argues that we must no longer view contemporary fairytales as separate (cohesive) entities that may exist apart from their source narratives. Instead, through strategies …

Postmodern Humanism And The "Exhaustion Of Easy Life", Mason Beets

Dissertations and Theses @ UNI

The twenty-first century appears to herald a new epoch, one in which religion and other similar belief systems appear to have run their course. However, this should not necessarily mean that other forms of spirituality and interconnectedness must fade away. Within America, there is a humanistic undercurrent that is gaining strength within our postmodern condition, even as we begin to challenge several of the tenets of postmodernity itself. The groundswell of American humanism has a notable and wholly unintended effect: it ideologically rehabilitates modes or vehicles of thought that might otherwise be labeled as defunct, or inapplicable to the changing …

Liquid Sorption Properties And Structural Changes Of Metal-Organic Frameworks Of Cobalt Nitrate And 4,4'-Bipyridine, Kathryn Mauger-Sonnek

Dissertations and Theses @ UNI

Metal-organic frameworks consist of metal ions connected by organic ligands. When the metal ions and organic ligands link together in the right geometry, polymeric and infinite 1D chains or 2D and 3D networks are formed. Porous metal-organic frameworks were synthesized from the organic ligand 4,4′-bipyridine (bpy) and cobalt(II) nitrate. The metal-organic frameworks synthesized in this study grew into both a previously known 2D bilayer structure, [Co2(bpy)3(NO3)4]n, and a new, orange 1D chain structure, [Co(bpy)NO3)2(H2O)2]n, within ethanol. It was found that the presence of water was the main factor of causing formation of the orange 1D chain crystals. Drying the orange …

Einstein Metrics On Piecewise-Linear Three-Spheres, Kyle Pitzen

Dissertations and Theses @ UNI

Einstein metrics on manifolds are in some ways the "best" or most symmetric metrics those manifolds will allow. There has been much work on these metrics in the realm of smooth manifolds, and many results have been published. These results are very difficult to compute directly, however, and so it is helpful to consider piecewise-linear approximations to those manifolds in order to more quickly compute and describe what these metrics actually look like. We will use discrete analogues to powerful preexisting tools to do analysis on two particular triangulations of the three dimensional sphere with the intent of finding Einstein …

Desulfotomaculum Dissimilatory Reduction Of Iron (Iii), Jim Elric

Dissertations and Theses @ UNI

Excess plant nutrient, often from agricultural runoff, can cause uncontrolled algal growth that leads to eutrophic conditions in a water body. Desulfotomaculum sp. reduction of ferric ions to ferrous ions can aid in reduction of excess phosphate in a water body. This bacterium may use iron mine tailings as an inexpensive source of iron ions that can aid in elimination of excess nutrient load such as phosphates. As part of a remediation plan Desulfotomaculum sp. reduction of ferric ions can help restore and maintain a healthy aquatic ecosystem. The biochemical pathway of iron reduction by Desulfotomaculum sp. is unclear and …

A Master's Recital In Piano, Brittany K. Lensing

Dissertations and Theses @ UNI

Brittany Lensing, pianist, presented her graduate recital at 6:00 in the evening on Friday, September 20, 2013, in Davis Hall of the Gallagher-Bluedorn Performing Arts Center at the University of Northern Iowa. This recital was given in partial fulfillment of the Master of Music degree in piano pedagogy and performance. The program included works by Johann Sebastien Bach, Ludwig van Beethoven, Johannes Brahms, and Sergei Prokofiev. The following abstract will consist of historical and musical commentary on the programmed pieces.

Behind The Mask: An Analysis Of Women's Perceptions And Rationale Toward The Purchase And Use Of Anti-Aging Products, Clair Maureen Williams

Dissertations and Theses @ UNI

An exploratory study was done to unveil a more contemporary and intimate look at women and aging in U.S. society. This qualitative research explored what women do, if anything, to confront pressures associated with aging. Purposeful sampling was used to homogenize the participant sample for increased richness of data. Criterion was as follows: women, 50’s age range, married with children, Caucasian, from the Midwest, and who currently use one or more anti‐aging products. In total, 17 women of similar status and background participated in this research. Data collection consisted of in‐depth audio taped interviews followed by immediate transcription. The analysis …

Where Loyalties Lie: A Study Of Workplace Dissent Through The Lens Of Loyalty, Katelyn L. Santy

Dissertations and Theses @ UNI

This thesis studied organizational dissent through the lens of loyalty in order to examine the nuanced motivations of employees' choices to dissent. The goal of this work was to approach loyalty as a nuanced concept that provides a foundational motivation for employees' dissent. In order to understand the contextualized experience of dissent, I conducted individual interviews with 17 employees in the radiology department of a healthcare organization. I adopted a grounded theory approach to data analysis, yielding a series of major findings. First, participants described their loyalties in the workplace as multiple and involving four distinct dimensions: organizational loyalty, coworker …