Digital Commons Network^™

International Law Constraints As Executive Power, Rebecca Ingber

Faculty Scholarship

The use of international law to understand domestic authority has a long pedigree. It is also the subject of heated debate, which focuses predominantly on the extent to which international law can or should serve as a limit on political actors, in particular the President, and the extent to which it can be invoked to expand our understanding of domestic individual rights. Yet there is another significant dynamic at work in this interplay between international and domestic law. This is the invocation of international law not as a constraining force on government actors, but as an enabling force within the …

Clinical Legal Education's Contribution To Building Constitutionalism And Democracy In South Africa: Past, Present, And Future, Peggy Maisel, Shaheda Mahomed, Meetali Jain

Faculty Scholarship

Clinical Legal Education (“CLE”) courses were first introduced in South Africa nearly fifty years ago. Since then, their role has changed from addressing legal problems perpetrated by an oppressive system, to strengthening South Africa’s transition to democracy. The end of apartheid has been accompanied by a transition of focus from private law to public law. South Africa currently has seventeen public universities, each of which has a law faculty and a legal clinic. Many clinical programs’ missions are primarily dedicated to community service and providing access to justice.

Although CLE programs have undertaken some human rights and law reform work, …

Gender Biases In Delegation, Eleonora Bottino, Teresa García-Muñoz, Praveen Kujal

ESI Working Papers

We explore gender biases towards delegation in a modified (delegation) dictator game. Under compulsory delegation and no (gender) revelation no significant gender differences are observed for choices made by principals. Male agents share little with the recipients, meanwhile, female (agents) are not responsive to the incentive scheme and return less to the dictator. However, a clear dichotomy in female behavior is observed under gender revelation. As principals, females behave similar to their male counterparts and appoint as agents those who return more to them. On the other hand, as agents’ females show greater redistributive concerns relative to their male counterparts …

Before The Wind, Charles R. Decker

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

Hope Spots, William R. Wallace

Graduate Student Theses, Dissertations, & Professional Papers

No abstract provided.

Ambiguity Framed, Mark Schneider, Jonathan W. Leland, Nathaniel Wilcox

ESI Working Papers

In his exposition of subjective expected utility theory, Savage (1954) proposed that the Allais paradox could be reduced if it were recast into a format which made the appeal of the independence axiom of expected utility theory more transparent. Recent studies consistently find support for this prediction. We consider a salience-based choice model which explains this frame-dependence of the Allais paradox and derive the novel prediction that the same type of presentation format which was found to reduce Allais-style violations of expected utility theory will also reduce Ellsberg-style violations of subjective expected utility theory since that format makes the appeal …

Success Stories And Emerging Themes In Conservation Physiology, Christine L. Madliger, Steven J. Cooke, Erica J. Crespi, Jennifer L. Funk, Kevin R. Hultine, Kathleen E. Hunt, Jason R. Rohr, Brent J. Sinclair, Cory D. Suski, Craig K. R. Willis, Oliver P. Love

Biology, Chemistry, and Environmental Sciences Faculty Articles and Research

The potential benefits of physiology for conservation are well established and include greater specificity of management techniques, determination of cause–effect relationships, increased sensitivity of health and disturbance monitoring and greater capacity for predicting future change. While descriptions of the specific avenues in which conservation and physiology can be integrated are readily available and important to the continuing expansion of the discipline of ‘conservation physiology’, to date there has been no assessment of how the field has specifically contributed to conservation success. However, the goal of conservation physiology is to foster conservation solutions and it is therefore important to assess whether …

Embracing Mission: Profile Of A Jesuit Leader, Allan L. Service

Jesuit Higher Education: A Journal

This article provides a profile of the leadership of David M. Clarke, S.J. as president of Regis College/University. The persona of the leader is the driving force. Leadership strategies and tactics are filtered through the talents, motivations, and values of the leader. Embracing Jesuit and institutional mission is the foundation. Pursuit of visibility follows naturally. Listening and learning are constants. Fostering collaboration is a capstone. Jesuit leadership advances mission and makes an enduring impact upon the institution.

The Sad, Quiet Death Of Missouri V. Holland: How Bond Hobbled The Treaty Power, Michael J. Glennon, Robert D. Sloane

Faculty Scholarship

Many anticipated that Bond v. United States (2014) would confirm or overrule Justice Holmes’s canonical decision in Missouri v. Holland (1920). Bond is now considered to have done neither; rather, it purportedly elided the constitutional issue by applying the canon of constitutional avoidance to the treaty’s implementing legislation, thus resolving Bond on statutory grounds alone and leaving Holland’s validity for another day. We argue to the contrary that Bond eviscerated Holland. Chief Justice Roberts proceeded from the premise that “the statute — unlike the [treaty] — must be read consistent with principles of federalism inherent in our constitutional structure.” This …

Law And Project Finance, Krishnamurthy V. Subramanian, Frederick Tung

Faculty Scholarship

We investigate Project Finance as a private response to inefficiencies created by weak legal protection of outside investors. We offer a new illustration that law matters by demonstrating that for large investment projects, Project Finance provides a contractual and organizational substitute for investor protection laws. Project Finance accomplishes this by making cash flows verifiable through two mechanisms: (i) contractual arrangements made possible by structuring the project within a single, discrete entity legally separate from the sponsor; and (ii) private enforcement of these contracts through a network of project accounts that ensures lender control of project cash flows. Comparing bank loans …

Forging Tomorrow's Air, Space, And Cyber War Fighters: Recommendations For Integration And Development, Mark Reith

Faculty Publications

Today’s Airmen operate in contested environments, and years of technical-data spillage, coupled with policies emphasizing commercial-off-the-shelf acquisition, ensure that the immediate future will remain contested as our adversaries seek to exploit level playing fields. Long gone are the days of Operation Desert Storm and Enduring Freedom when air superiority dominated and the supporting elements of space, communications, and computers were largely out of reach for many nation-states. Since then, technology has become ubiquitously intertwined in weapon systems and today largely turns the gears of warfare, allowing a range of actors to erode national instruments of power.

The Influence Of Operational Resources And Activities On Indirect Personnel Costs: A Multilevel Modeling Approach, Bradley C. Boehmke, Alan W. Johnson, Edward D. White, Jeffery D. Weir, Mark A. Gallagher

Faculty Publications

Indirect activities often represent an underemphasized, yet significant, contributing source of costs for organizations. In order to manage indirect costs, organizations must understand how these costs behave relative to changes in operational resources and activities. This is of particular interest to the Air Force and its sister services, because recent and projected reductions in defense spending are forcing reductions in their operational variables, and insufficient research exists to help them understand how this may influence indirect costs. Furthermore, although academic research on indirect costs has advanced the knowledge behind the modeling and behavior of indirect costs, significant gaps in the …

The Appearance And The Reality Of Quid Pro Quo Corruption: An Empirical Investigation, Christopher Robertson, D. Alex Winkelman, Kelly Bergstrand, Darren Modzelewski

Faculty Scholarship

The Supreme Court says that campaign finance regulations are unconstitutional unless they target "quid pro quo" corruption or its appearance. To test those appearances, we fielded two studies. First, in a highly realistic simulation, three grand juries deliberated on charges that a campaign spender bribed a Congressperson. Second, 1271 representative online respondents considered whether to convict, with five variables manipulated randomly. In both studies, jurors found quid pro quo corruption for behaviors they believed to be common. This research suggests that Supreme Court decisions were wrongly decided and that Congress and the states have greater authority to regulate campaign finance. …

Navigating The Pre-Tenure Review Process: Experiences Of A Self-Study Researcher, Brandon Butler

Teaching & Learning Faculty Publications

Four years after the first Castle Conference, Cole and Knowles (1998) wrote of teacher educator concerns in conducting self-study research: "Concerns about institutional responses to self-study mainly are rooted in issues associated with tenure and promotion ... " (p. 225). The publication of Studying Teacher Education and increased acceptance of self-study research in teacher education journals provide an avenue for self-study researchers to publish in respected, refereed journals. Questions of self-study's validity, rigor, and trustworthiness have a long history (e.g., Bullough & Pinnegar, 2001). However, questions remain around the acceptance of self-study research among tenure and promotion committees. Institutional context …

Advances In Promoting Literacy And Human Rights For Women And Girls Through Mobile Learning, Helen Crompton, Judith Dunkerly-Bean

Teaching & Learning Faculty Publications

This article is taken from a larger review of extant research from a chapter titled “The role of mobile learning in promoting global literacy and human rights for women and girls” from the Handbook of Research on the Societal Impact of Digital Media. In this article we review the fairly recent advances in combating illiteracy around the globe through the use of mobile phones and e-readers most recently in the Worldreader program and the United Nations Educational Scientific and Cultural Organization (UNESCO) mobile phone and reading initiatives. Utilizing key human rights publications and the lens of transnational feminist discourse, which …

Exploring How Secondary Pre-Service Teachers' Use Online Social Bookmarking To Envision Literacy In The Disciplines, Jamie Colwell, Kristen Gregory

Teaching & Learning Faculty Publications

This study considers how pre-service teachers envision disciplinary literacy through an online social bookmarking project. Thirty secondary pre-service teachers participated in the project through an undergraduate literacy course. Online bookmarks and post-project reflections were collected and analyzed using a constant comparative approach to determine emergent themes. Results suggest varying levels of disciplinary knowledge among pre-service teachers, influences of pre-service teachers' envisionments on posted bookmarks, and considerations about standardized testing in disciplinary literacy instruction. Implications for teacher education are discussed in light of these results. Copyright (c) by the authors.

The Just-Barely-Sustainable California Prisoners' Rights Ecosystem, Margo Schlanger

Articles

Over the past two decades, the United States has seen a marked decline in the frequency and depth of court interventions in prisons and jails. Prisoners’ rights litigation has not disappeared—but it has been drastically curtailed by the 1996 Prison Litigation Reform Act (PLRA), along with myriad other forces, doctrinal and political. The PLRA, enacted as part of the Newt Gingrich “Contract with America,” undermined prisoners’ ability to bring, settle, and win lawsuits. (Schlanger 2003; Schlanger 2006)

The resulting impact on jail and prison litigation has been extremely substantial. Significant prisoners’ rights cases certainly remain on court dockets, and new …

Constructive Unilateralism: U.S. Leadership And International Taxation, Reuven S. Avi-Yonah

Articles

In recent years, various U.S. international tax proposals have been advanced on the basis that we should follow the lead of our major trading partners. For example, it has been argued that we should adopt a "territorial" tax system (really, an exemption for dividends by controlled subsidiaries of U.S. multinationals) because most of our trading partners have done so. Other voices have called for the United States to adopt a "patent box" because the United Kingdom and other EU jurisdictions have one.

Formalism And Functionalism In Antitrust Treatment Of Loyalty Rebates: A Comparative Perspective, Daniel A. Crane

Articles

It is a widely held belief that U.S. antitrust law has long been characterized by economic functionalism and that European antitrust law has long been characterized by legal formalism.' The received wisdom began to change in Europe a decade ago when the Directorate General Competition of the European Commission (DG Comp) began to advocate a more "effects-based" analysis of abuse of dominance. Two factors arguably contributed to this change. First, the DG Comp became increasingly influenced by economists who had little use for the old formalism. Second, as Europe trie to spread antitrust to developing antitrust regimes across the world-and, …

In Praise Of (Some) Ex Post Regulation: A Response To Professor Galle, Kyle D. Logue

Articles

According to modern law-and-economics (“L&E”) orthodoxy, the primary—maybe even the only—legitimate justification for government regulation is to correct a market failure. This conclusion is based on two key assumptions. First, when markets are functioning reasonably well, they are better at achieving efficiency than the government is. Second, most markets function reasonably well most of the time. Although there is probably evidence to support these assumptions (for example, the relative prosperity of market-based economies in comparison with the relative poverty of centrally planned economies), both assumptions are usually taken as articles of faith by mainstream L&E scholars. This is why scholarly …

The Pendulum Swings: Reconsidering Corporate Criminal Prosecution, David M. Uhlmann

Articles

Corporate crime continues to occur at an alarming rate, yet disagreement persists among scholars and practitioners about the role of corporate criminal prosecution. Some argue that corporations should face criminal prosecution for their misconduct, while others would reserve criminal prosecution for individual corporate officials. Perhaps as a result of this conflict, there has been a dramatic increase over the last decade in the use of deferred prosecution and non-prosecution agreements for some corporate crimes, even as the government continues to bring criminal charges for other corporate crimes. To move beyond our erratic approach to corporate crime, we need a better …

Is Theocracy Our Politics? Thoughts On William Baude's 'Is Originalism Our Law?', Richard A. Primus

Articles

In Is Originalism Our Law?, William Baude has made a good kind of argument in favor of originalism. Rather than contending that originalism is the only coherent theory for interpreting a constitution, he makes the more modest claim that it happens to be the way that American judges interpret our Constitution. If he is right—if originalism is our law—then judges deciding constitutional cases ought to be originalists. But what exactly would the content of that obligation be? Calling some interpretive method “our law” might suggest that judges have an obligation to decide cases by reference to that method. But the …

Is More Antitrust The Answer To Wealth Inequality?, Daniel A. Crane

Articles

Wealth inequality has reemerged as a major political issue and may become one of the defining themes of the 2016 presidential election. Progressives claim a broad set of causes for wealth inequality, from tax loopholes favoring the wealthy to the decline of private sector unionization. Recently, a number of high-profile public intellectuals have begun to finger an additional culprit - lax antitrust enforcement. According to prominent progressives such as Nobel economics laureates Joseph Stiglitz and Paul Krugman, former labor secretary Robert Reich, and Oxford economist Anthony Atkinson, weak enforcement of the antitrust laws has permitted the flourishing of anticompetitive mergers, …

When Should We Teach Our Students To Pay Attention To The Costs Of Legal Research?, Beth H. Wilensky

Articles

It is axiomatic in legal research pedagogy that law schools should teach students how to conduct cost-effective legal research. To do that, we need to teach students to consider the amount of time and money their research requires, how paid legal research platforms like Westlaw and Lexis charge for their services, and how to research in an efficient and cost-sensitive way. But we shouldn’t do those things. Or at least, we shouldn’t do them at first. Instead, we should tell students not to worry about the costs of legal research during their first year of law school—with the possible exception …

Contemporary Practice Of The United States Relating To International Law, July 2016, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • U.S. Supreme Court Upholds Law Facilitating Compensation for Victims of Iranian Terrorism • Russia Argues Enhanced Military Presence in Europe Violates NATO-Russia Agreement; United States Criticizes Russian Military Maneuvers over the Baltic Sea as Inconsistent with Bilateral Treaty Governing Incidents at Sea • U.S. Secretary of State Determines ISIL Is Responsible for Genocide • United States Blocks Reappointment of WTO Appellate Body Member • U.S. Department of Defense Releases Report of Investigation Finding That October 2015 Air Strike on Doctors Without Borders Hospital in Kunduz, Afghanistan, Was Not a War Crime • United States Expands Air …

Full Circle? The Single Tax Principle, Beps, And The New Us Model, Reuven S. Avi-Yonah

Articles

This paper will argue that while there is some innovation in BEPS, it is in fact more of a continuation that a sharp break with the past. Like Alexis de Tocqueville’s French Revolution, BEPS represents both continuity and change. In particular, the single tax principle has formed the theoretical basis of much of the international tax regime from the beginning. And it is in fact this continuity rather than any sharp change that gives the final BEPS package its promise to, as Secretary General Gurria also promised, “put an end to double non-taxation.”

Legal Limits And The Implementation Of The Affordable Care Act, Nicholas Bagley

Articles

Accusations of illegality have dogged the Obama Administration's efforts to implement the Affordable Care Act (ACA), the most ambitious piece of social legislation since the advent of Medicare and Medicaid. Some of the accusations have merit; indeed, it would be surprising if they did not. Even as the ACA's rollout has exposed unanticipated difficulties in the statutory design, congressional antipathy to health reform has precluded looking to the legislature to iron out those difficulties. To secure his principal achievement, President Obama has repeatedly tested the limits of executive authority in implementing the ACA. Six years after its enactment and two …

Anti-Incarcerative Remedies For Illegal Conditions Of Confinement, Margo Schlanger

Articles

Opposition to mass incarceration has entered the mainstream. But except in a few states, mass decarceration has not, so far, followed: By the end of 2014 (the last data available), nationwide prison population had shrunk only 3% off its (2009) peak. Jail population, similarly, was down just 5% from its (2008) peak. All told, our current incarceration rate - 7 per 1,000 population - is the same as in 2002, and four times the level in 1970, when American incarceration rates began their rise. Our bloated prisoner population includes many groups of prisoners who are especially likely to face grievous …

What Notice Did, Jessica D. Litman

Articles

In the twenty-first century, copyright protection is automatic. It vests in eligible works the instant that those works are first embodied in a tangible format. Many Americans are unaware of that, believing instead that registration and copyright notice are required to secure a copyright. That impression is understandable. For its first 199 years, United States copyright law required authors to take affirmative steps to obtain copyright protection. The first U.S. copyright statute, enacted by Congress in 1790, required the eligible author of an eligible work to record the title of the work with the clerk of the court in the …

Contemporary Practice Of The United States Relating To International Law, October 2016, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Iran and United States Continue to Implement Nuclear Deal, Although Disputes Persist • United States Continues to Challenge Chinese Claims in South China Sea; Law of the Sea Tribunal Issues Award Against China in Philippines-China Arbitration • U.S. Navy Report Concludes That Iran’s 2015 Capture of U.S. Sailors Violated International Law • United States Justifies Its Use of Force in Libya Under International and National Law • U.S. Drone Strike Kills Taliban Leader in Pakistan • U.S. Government Releases Casualty Report, Executive Order, and Presidential Policy Guidance Related to Its Counterterrorism Strike Practices • The Department …