Digital Commons Network^™

Dictionaries 2.0: Exploring The Gap Between The Supreme Court And Courts Of Appeals, James J. Brudney, Lawrence Baum

Faculty Scholarship

The remarkable rise in dictionary usage by the Supreme Court since themid-1980s has been a subject of considerable scholarly and media interest. Wepublished an article in November 2013 that explored the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. In a Yale Law Journal Note one year later, John Calhoun embraced some of our findings, criticized others, and—importantly—broadened the inquiry to identify asizeable gap in overall frequency of citation to dictionaries between the Supreme Court and the federal courts of appeals.

This gap in dictionary usage is our primary focus here. Previously we analyzed nearly 700 Supreme …

Electronically Stored Information And The Ancient Documents Exception To The Hearsay Rule: Fix It Before People Find Out About It, Daniel J. Capra

Faculty Scholarship

The first website on the Internet was posted in 1991. While there is not much factual content on the earliest websites, it did not take long for factual assertions—easily retrievable today—to flood the Internet. Now, over one hundred billion emails are sent, and ten million static web pages are added to the Internet every day. In 2006 alone, the world produced electronic information that was equal to three million times the amount of information stored in every book ever written. The earliest innovations in electronic communication are now over twenty years old—meaning that the factual assertions made by way of …

Regleprudence – At Oira And Beyond, Nestor M. Davidson, Ethan J. Leib

Faculty Scholarship

There are significant domains of legality within the administrative state that are mostly immune from judicial review and have mostly escaped the attention of legal theorists. While administrative law generally focuses on the products of agency action as they are reviewed by the judiciary, there are important aspects of regulatory activity that are legal or law-like but rarely interrogated by systematic analysis with reference to accounts about the role and nature of law. In this Article, we introduce a category of analysis we call "regleprudence," a sibling of jurisprudence and legisprudence. Once we explore some regleprudential norms, we delve into …

Disagreeable Privacy Policies: Mismatches Between Meaning And Users’ Understanding, Joel R. Reidenberg, Travis Breaux, Lorrie F. Cranor, Brian M. French, Amanda Grannis, James T. Graves, Fei Liu, Aleecia Mcdonald, Thomas B. Norton, Rohan Ramanath, N. Cameron Russell, Norman Sadeh, Florian Schaub

Faculty Scholarship

Privacy policies are verbose, difficult to understand, take too long to read, and may be the least-read items on most websites even as users express growing concerns about information collection practices. For all their faults, though, privacy policies remain the single most important source of information for users to attempt to learn how companies collect, use, and share data. Likewise, these policies form the basis for the self-regulatory notice and choice framework that is designed and promoted as a replacement for regulation. The underlying value and legitimacy of notice and choice depends, however, on the ability of users to understand …

The Golden Or Bronze Age Of Judicial Selection?, Jed H. Shugerman

Faculty Scholarship

This Essay questions Gerhardt and Stein’s interpretation of the golden age and whether there were meaningful differences in the politics of the nomination and confirmation processes of the antebellum era as compared with the contemporary era. In Part II, I suggest that one hallmark of the contemporary judicial selection process is the intense inquiry into the nominees’ personal lives and ethics (whether through confirmation hearings or the media). Gerhardt and Stein do not find much evidence of these practices in the antebellum era, even though historians have noted the nastiness of that era’s presidential election campaigns. Thus, some aspects of …

The Legitimacy Of Administrative Law, Jed H. Shugerman

Faculty Scholarship

Reviewing Daniel R. Ernst, Tocqueville’s Nightmare: The Administrative State Emerges in America, 1900-1940; Joanna Grisinger, The Unwieldy American State: Administrative Politics Since the New Deal; Philip Hamburger, Is Administrative Law Unlawful?; Jerry L. Mashaw, Creating the Administrative Constitution: The Lost One Hundred Years of American Administrative Law; and Nicholas R. Parrillo, Against the Profit Motive: The Salary Revolution in American Government, 1780-1940.

Mediation: The Best And Worst Of Times, Jacqueline Nolan-Haley

Faculty Scholarship

At this period in the evolution of dispute resolution, mediation is in a unique time zone, similar to what Dickens described in a Tale of Two Cities, as the best and worst of times, the seasons of Light and Darkness. It is the best of times, the season of Light and a time of joy in honoring human connections, as mediation is widely embraced in the public and private sectors. From government agencies and courts to corporations and United Nations peacemaking units, mediation offers a vision of hope in the midst of drowning bureaucracies, clogged dockets, corporate scandals and ethnic …

Marriage As Black Citizenship?, Robin A. Lenhardt

Faculty Scholarship

The narrative of black marriage as citizenship enhancing has been pervasive in American history. As we mark the fiftieth anniversary of the Moynihan Report and prepare to celebrate the 150th anniversary of Thirteenth Amendment, this Article argues that this narrative is one that we should resist. The complete story of marriage is one that involves racial subordination and caste. Even as the Supreme Court stands to extend marriage rights to LGBT couples, the Article maintains that we should embrace nonmarriage as a legitimate frame for black loving relationships — gay or straight. Nonmarriage might do just as much, if not …

Caperton's Next Generation: Beyond The Bank, Jed H. Shugerman, Debrah L. Basset, Gregory S. Parks, Dmitry Bam, Rex R. Perschbacher

Faculty Scholarship

The article looks at a panel discussion on judicial responsibility and the U.S. Supreme Court's decision in 'Caperton v. A.T. Massey Coal Co.' discussed by several law professionals including Jed Shugerman, Debra Lyn Bassett and Dmitry Bam at a 2014 symposium held in the New York University.

The Impact Of Output And Exchange Rate Volatility On Fixed Private Investment: Evidence From Selected G7 Countries, Abdur Chowdhury, Mark Wheeler

Economics Faculty Research and Publications

This study examines the impact of shocks to exchange rate and output uncertainty (volatility) on real private fixed investment (FI) in Canada, Germany, the United Kingdom and the United States. The analysis is conducted using vector autoregressive models that contain the price level, real output, the volatility of real output, the real exchange rate, the volatility of the real exchange rate, an interest rate and FI. The results yield important public policy implications with regard to the impact of output volatility of FI. Our analysis indicates that volatility shocks, measured as output volatility or exchange rate volatility, do not have …

"Nayles Large And Lang": Masculine Identity And The Anachronic Object In The York Crucifixion Play, Daisy Black

Medieval Feminist Forum: A Journal of Gender and Sexuality

No abstract provided.

Factoring Emerging Markets Into The Relationship Between Global Liquidity And Commodities, Steven Landgraf, Abdur Chowdhury

Economics Faculty Research and Publications

Purpose – What caused the mid-2000s world commodity price “bubble” and the recent commodity price growth? Some have suggested that rapid global industrial growth over the past decade is the key driver of price growth. Others have argued that high commodity prices are a result of excessively loose monetary policy. The purpose of this paper is to extend the current research in this area by incorporating emerging economies, the BRIC (Brazil, Russia, India, and China) nations specifically, into global measures.

Design/methodology/approach – The paper uses a vector error correction (VEC) model and computes variance decomposition and impulse response functions (IRFs). …

Smallpox Vaccination Of Laboratory Workers At Us Variola Testing Sites, Sharon J. Medcalf, Laura Bilek, Teresa L. Hartman, Peter C. Iwen, Patricia Leuschen, Hannah Miller, Anne O'Keefe, Harlan Sayles, Philip W. Smith

Journal Articles: Epidemiology

To evaluate the need to revaccinate laboratory workers against smallpox, we assessed regular revaccination at the US Laboratory Response Network's variola testing sites by examining barriers to revaccination and the potential for persistence of immunity. Our data do not provide evidence to suggest prolonging the recommended interval for revaccination.

Presidential Administration And The Traditions Of Administrative Law, Thomas W. Merrill

Faculty Scholarship

American administrative law has long been characterized by two distinct traditions: the positivist and the process traditions. The positivist tradition emphasizes that administrative bodies are created by law and must act in accordance with the requirements of the law. The process tradition emphasizes that agencies must act in accordance with norms of reasoned decisionmaking, which emphasize that all relevant interests must be given an opportunity to express their views and agencies must explain their decisions in a public and articulate fashion. In the twentieth century, American administrative law achieved a grand synthesis of these two traditions, with the result that …

Uncivil Obedience, Jessica Bulman-Pozen, David E. Pozen

Faculty Scholarship

Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.

This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law following. We seek to identify, elucidate, and call attention to …

In Praise Of Ex Ante Regulation, Brian Galle

Georgetown Law Faculty Publications and Other Works

Timing is an important consideration in regulatory design. Corrective taxes are usually imposed before or contemporaneously with the harmful activity they are aimed at preventing, while tort awards are assessed ex post, in its aftermath. Patents and research grants both can encourage innovation, but patents pay off only after the invention is marketed. In a world of perfect information, fully rational actors, and complete credit or insurance markets, time would not matter. In the real world, though, the failure of one or more of these assumptions can change dramatically the impact of a regulatory option. For example, prior commentators have …

The New Refugees And The Old Treaty: Persecutors And Persecuted In The Twenty-First Century, Andrew I. Schoenholtz

Georgetown Law Faculty Publications and Other Works

When the fledgling U.N. negotiated a treat to protect refugees after the Second World War, member states focused on Europe as well as on events causing forced migration that occurred prior to 1951. No one imagined that cross-border escape from persecution would become a global phenomenon and remain one more than sixty years later, or that this human rights treaty would be needed in the twenty-first century. In fact, as increased numbers of asylum seekers from developing countries reached the most developed regions of the world during the last thirty years, critics have questioned the merits of this treaty and …

Cool Story: Country Of Origin Labeling And The First Amendment, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Country of origin labeling (COOL) requirements have long been part of government regulation of commerce. While one might ordinarily think of mandatory COOL as part of trade policy--or even as a means of encouraging individual citizens to engage in country-specific buying that would be disallowed as protectionism if carried out by their governments -- the most robust legal challenges to mandatory COOL now come from the First Amendment, not from free trade principles. This reliance on free speech claims offers a stark example of the charismatic force of the First Amendment. Objections having little to do with free speech at …

The Effect Of Fluid Periodization On Athletic Performance Outcomes In American Football Players, Christopher W. Morris

Theses and Dissertations--Kinesiology and Health Promotion

For decades strength and conditioning professionals have been seeking optimal training volumes and intensities to yield maximum performance outcomes without the onset of injury. Unfortunately, current studies apply experimental training techniques without considering the individuals’ response to the imposed training load. Due to the vast genetic variability and extraneous environmental factors that affect one’s ability to recover, results from such studies are controversial and inconclusive. Athlete monitoring systems offer an objective assessment that is purported to evaluate an individual’s physiological readiness to adapt to an overload stimulus and thus allow for daily manipulations in training loads (i.e., fluid periodization). However, …

Cardiovascular Disease Risk Factors In Structural Firefighters, Nicholas W. Trubee

Theses and Dissertations--Kinesiology and Health Promotion

This dissertation is composed of two manuscripts assessing cardiovascular disease (CVD) risk in structural firefighters. Study 1 compared traditional CVD risk factors and health-related behaviors between professional and volunteer firefighters. Online questionnaires were sent to approximately 4000 firefighters in the state of Kentucky. The results indicated that 90% of volunteer and 58% of professional firefighters were classified as moderate-to-high CVD risk. Volunteer firefighters were significantly (p < 0.001) older and more likely (p = 0.026) to be current cigarette smokers. The mean body mass index among all firefighters in the sample was 30.8 kg·m^-2. Nearly 60% of volunteer firefighters were obese. Obese firefighters were more likely (p < 0.05) to have been diagnosed as diabetic or pre-diabetes compared to overweight and normal weight firefighters. These results indicate that volunteer firefighters may be at a greater CVD risk compared to professional firefighters.

Study 2 investigated the association of cardiorespiratory fitness (CRF) and body fat with arterial stiffness in professional firefighters. Forty-six …

Effect Of Load Carriage On Tactical Performance, Justin M. Thomas

Theses and Dissertations--Kinesiology and Health Promotion

Special Weapons and Tactics (SWAT) operators are specially trained personnel that are required to carry equipment to perform high risk tasks. Given the need to carry this equipment, it is important to understand the potentially deleterious effect that the additional load may have on tactical performance. Furthermore, it is important to identify physical fitness characteristics that are associated with the potential decrement in performance. Therefore, the purpose of this study was to evaluate the effect of load carriage on tactical performance and identify fitness characteristics associated with any decrement in performance. Twelve male operators performed a simulated tactical test (STT) …

The Social Value Of Academic Freedom Defended, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

This essay argues for the social value of academic freedom in law schools and in the university generally. It takes explicit issue with the arguments of Stanley Fish in Versions of Academic Freedom: From Professionalism to Revolution. The essay maintains that academic freedom is essential to a liberal society and deserving of constitutional protection because scholarship and teaching governed by disciplinary norms represents modernity's best secular effort at separating truth from falsehood.

Priority-Setting, Cost-Effectiveness, And The Affordable Care Act, Govind Persad

Georgetown Law Faculty Publications and Other Works

The Affordable Care Act (ACA) may be the most important health law statute in American history, yet much of the most prominent legal scholarship examining it has focused on the merits of the court challenges it has faced rather than delving into the details of its priority-setting provisions. In addition to providing an overview of the ACA’s provisions concerning priority setting and their developing interpretations,this Article attempts to defend three substantive propositions.

First, I argue that the ACA is neither uniformly hostile nor uniformly friendly to efforts to set priorities in ways that promote cost and quality.

Second, I argue …

Comment On Prof. Imwinkelried's "Formalism V. Pragmatism In Evidence: Reconsidering The Absolute Ban On The Use Of Extrinsic Evidence To Prove Impeaching Untruthful Acts That Have Not Resulted In Conviction": Just What Evidence Of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude?---Imwinkelried Vs. Rothstein, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

Prof. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted-for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge:

1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;

2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly …

A Tale Of Two Diseases: Mental Illness And Hiv/Aids, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

There have been dramatic advances in the treatment of HIV/AIDS. Whereas HIV was once a dire diagnosis, today it is treatable, and individuals who receive early and consistent treatment can expect to live a normal lifespan. Why has the scientific community made the same strides with mental illness? When I was the Legal Director of the National Association of Mental Health in the United Kingdom in the 1980s, major mental illnesses were primarily treated with powerful antipsychotics, such as haloperidol, that carried the debilitating side effects of tardive dyskinesia—involuntary movements of the tongue, lips, face, trunk, and extremities. When I …

Market Intermediation, Publicness, And Securities Class Actions, Hillary A. Sale, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

Securities class actions play a crucial, if contested, role in the policing of securities fraud and the protection of securities markets. The theoretical understanding of these private enforcement claims needs to evolve to encompass the broader set of goals that underlie the securities regulatory impulse and the publicness of those goals. Further, a clear grasp of the modern securities class action also requires an updated understanding of how the role of market intermediation in securities transactions has reshaped the realities of securities litigation in public companies and the evolution of the fraud cause of action in the context of open-market …

Anti-Primacy: Sharing Power In American Corporations, Robert B. Thompson

Georgetown Law Faculty Publications and Other Works

Prominent theories of corporate governance frequently adopt primacy as an organizing theme. Shareholder primacy is the oldest and most used of this genre. Director primacy has grown dramatically, presenting in at least two distinct versions. A variety of alternatives have followed—primacy for CEOs, employees, creditors. All of these theories can’t be right. This article asserts that none of them are. The alternative developed here is one of shared power among the three actors named in corporations statutes with judges tasked to keep all players in the game. The debunking part of the article demonstrates how the suggested parties lack legal …

The Dawn Of Social Intelligence (Socint), Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

More information about citizens’ lives is recorded than ever before. Because the data is digitized, it can be accessed, analyzed, shared, and combined with other information to generate new knowledge. In a post-9/‌11 environment, the legal standards impeding access to such data have fallen. Simultaneously, the advent of global communications and cloud computing, along with network convergence, have expanded the scope of information available. The U.S. government has begun to collect and to analyze the associated data.

The result is the emergence of what can be termed “social intelligence” (SOCINT), which this Article defines as the collection of digital data …

Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein

Georgetown Law Faculty Publications and Other Works

The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:

(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the …

The Romantic Author And The Romance Writer: Resisting Gendered Concepts Of Creativity, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

Dominant narratives of creativity regularly expect female-associated forms of creativity to be provisioned naturally without need for the economic incentives provided by exclusive rights, just like housework and childcare. Even as the concept of Romantic authorship has come under sustained analytic assault, its challengers often look elsewhere–to the kinds of creativity in which men are more likely to participate–to find models of situated, always-influenced authorship. In this chapter, I examine one variant of the problem, in which certain arguments about copyright discount the value of forms that are predominantly produced and enjoyed by women. But creative works in these oft-denigrated …