Digital Commons Network^™

The Next Generation Of U.S.-Africa Trade Instruments, Kathleen Claussen

Articles

No abstract provided.

"Revenge Porn" Reform: A View From The Front Lines, Mary Anne Franks

Articles

The legal and social landscape of "revenge porn" has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the ternm "revenge porn." As of July 2017, thirty-eight states and Washington, D.C. had criminalized the conduct; federal criminal legislation on the issue had been introduced in Congress; Google, Facebook, and Twitter had banned nonconsensual pornography from their platforms; and the term "revenge porn" had been added to the Merriam- Webster Dictionary. I have had the privilege of playing a role in many …

Free Markets, State Involvement, And The Wto: Chinese State Owned Enterprises (Soes) In The Ring, Petros C. Mavroidis, Merit E. Jano

Faculty Scholarship

The WTO has struggled with the treatment of nonmarket economies (NMEs). What was a nonissue in the original GATT (because of the homogeneity of participants) became quite an issue with the accession of formally centrally planned economies, which were not transformed to market economies, at least not in the eyes of the incumbents. Contracting this issue has proved to be so far always wanting, and leaving it to adjudicators has not produced good results either. With respect to Chinese SOEs this risks continuing to be an issue, since the contractually agreed deadline (2016) after which China should not be treated …

Sexual Minorities In Legal Academia: A Retrospection On Community, Action, Remembrance, And Liberation, Francisco Valdes

Articles

No abstract provided.

Market Power And Inequality: The Antitrust Counterrevolution And Its Discontents, Lina M. Khan, Sandeep Vaheesan

Faculty Scholarship

In recent years, economic inequality has become a central topic of public debate in the United States and much of the developed world. The popularity of Thomas Piketty’s nearly 700-page tome, Capital in the Twenty-First Century, is a testament to this newfound focus on economic disparity. As top intellectuals, politicians, and public figures have come to recognize inequality as a major problem that must be addressed, they have offered a range of potential solutions. Frequently mentioned proposals include reforming the tax system, strengthening organized labor, revising international trade and investment agreements, and reducing the size of the financial sector.

One …

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Faculty Scholarship

Why does copyright treat certain kinds of copying as legally actionable? For nearly a century, American copyright thinking has referenced a core consequentialist dogma to answer this question: incentivizing the production of creative expression at minimal social cost in an effort to further social welfare. This rationale, routinely traced back to the Constitution’s seemingly utilitarian mandate that copyright law should “promote the [p]rogress” of the sciences and useful arts, has come to dominate modern copyright jurisprudence and analysis.2 By classifying specific acts of copying as a wrong, and thereby recognizing a “right to the use of one’s expression,” copyright is …

Amazon's Antitrust Paradox, Lina M. Khan

Faculty Scholarship

Amazon is the titan of twenty-first century commerce. In addition to being a retailer, it is now a marketing platform, a delivery and logistics network, a payment service, a credit lender, an auction house, a major book publisher, a producer of television and films, a fashion designer, a hardware manufacturer, and a leading host of cloud server space. Although Amazon has clocked staggering growth, it generates meager profits, choosing to price below-cost and expand widely instead. Through this strategy, the company has positioned itself at the center of e-commerce and now serves as essential infrastructure for a host of other …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah S. Purdy

Faculty Scholarship

The conflict between various versions of “originalism” and “living constitutionalism” has defined the landscape of constitutional theory and practice for more than a generation, and it shows no sign of abating. Although each camp has developed a variety of methodological approaches and substantive distinctions, each one also returns to a core concern: the democratic authority of constitutional review. The late Justice Scalia crystallized the originalist concern in his dissent in Obergefell v. Hodges: “It is of overwhelming importance … who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, …

Causing Copyright, Shyamkrishna Balganesh

Faculty Scholarship

Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated yet distinct theory of authorial causation, which connects the element of human agency to a work …

Harmful, Harmless, And Beneficial Uncertainty In Law, Scott Baker, Alex Raskolnikov

Faculty Scholarship

This article examines the impact of four types of law-related uncertainty on the utility of risk-neutral agents. We find that greater legal or factual uncertainty makes agents worse off if enforcement is targeted (meaning that greater deviations from what the law demands lead to a greater probability of enforcement), or if sanctions are graduated (meaning that greater deviations from what the law demands result in higher sanctions). In contrast, agents are indifferent to changes in detection uncertainty induced by variation in enforcement resources or to changes in sanction uncertainty arising from legally irrelevant factors. Finally, risk-neutral agents benefit from greater …

Triumphs Of Commission, Eric L. Talley

Faculty Scholarship

Willis L.M. Reese Prize commencement address to the Columbia Law School class of 2017.

Debate Over Environmental Rights And State Constitutional Convention, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

During the election on November 7, the voters in New York state will be presented with the allot question (as they are every 20 years), “Shall there be a convention to revise the constitutionand amend the same?” If the referendum passes, the delegates to the Constitutional Convention will be elected in November 2018, and the Convention’s proposed changes will appear on the ballot, most likely in November 2019.

Many issues are under debate: ethics reform, reorganizing the judiciary, voting rights, and several more. This column focuses on environmental rights.

The School-To-Prison Pipeline's Legal Architecture: Lessons From The Spring Valley Incident And Its Aftermath, Joshua Gupta-Kagan

Faculty Scholarship

In October 2015, a Black teenager at Spring Valley High School in Columbia, South Carolina had her cell phone out in her math class. Her teacher told her repeatedly to put it away. Repeatedly she refused. The teacher then called a school administrator, who similarly instructed her to put away her phone. The student continued to refuse. The administrator then called the school resource officer (“SRO”), the uniformed, armed deputy sheriff assigned to the school. The SRO came and informed the student that she had to put away her cell phone. When the student again refused, the officer arrested her …

The Strange Life Of Stanley V. Illinois: A Case Study In Parent Representation And Law Reform, Joshua Gupta-Kagan

Faculty Scholarship

This Article helps describe the growth of parent representation through an analysis of Stanley v. Illinois — the foundational Supreme Court case that established parental fitness as the constitutional lynchpin of any child protection case. The Article begins with Stanley’s trial court litigation, which illustrates the importance of vigorous parental representation and an effort by the court to prevent Stanley from obtaining an attorney. It proceeds to analyze how family courts applied it (or not) in the years following the Supreme Court’s decision and what factors have led to a recent resurgence of Stanley’s fitness focus.

Despite Stanley …

Stanley V. Illinois'S Untold Story, Joshua Gupta-Kagan

Faculty Scholarship

Stanley v. Illinois is one of the Supreme Court’s more curious landmark cases. The holding is well known: the Due Process Clause both prohibits states from removing children from the care of unwed fathers simply because they are not married and requires states to provide all parents with a hearing on their fitness. By recognizing strong due process protections for parents’ rights, Stanley reaffirmed Lochner-era cases that had been in doubt and formed the foundation of modern constitutional family law. But Peter Stanley never raised due process arguments, so it has long been unclear how the Court reached this …

Introduction To Symposium On Unauthorized Military Interventions For The Public Good, Monica Hakimi

Faculty Scholarship

On April 6, 2017, the United States launched fifty-nine Tomahawk missiles against an air base in Syria, after evidence surfaced that Bashar Al-Assad’s regime had again used chemical weapons against its people. President Trump announced that the strikes were intended “to prevent and deter the spread and use of deadly chemical weapons.” But as of this Symposium’s publication, the United States has not articulated a formal legal justification for the strikes. Instead, it reportedly circulated a document that listed several case-specific considerations that, in its view, justified the use of force. Yet the global reaction was overwhelmingly positive. Many states …

The Work Of International Law, Monica Hakimi

Faculty Scholarship

This Article crystallizes and then critiques a prominent view about the role of international law in the global order. The view — what I call the “cooperation thesis” — is that international law serves to help global actors cooperate, specifically by: (1) curbing their disputes, and (2) promoting their shared goals. The cooperation thesis often appears as a positive account of international law; it purports to explain or describe what international law does. But it also has normative force; international law is widely depicted as dysfunctional when it does not satisfy the thesis. In particular, heated or intractable conflict is …

Fair Use And Fair Dealing: Two Approaches To Limitations And Exceptions In Copyright Law, Shyamkrishna Balganesh, David Nimmer

Faculty Scholarship

Premised on realizing a balance between protection and access, ‘limitations and exceptions’ play an important role in the any copyright system. Jurisdictions around the world are generally thought to adopt one of two possible approaches to structuring limitations and exceptions: (a) the fair dealing approach, which delineates highly specific and carefully-worded exceptions with little room for judicial discretion, and (b) the fair use approach, which relies on more open-ended language and its contextual tailoring by courts. This chapter undertakes a comparative analysis of these two approaches using the Indian and US copyright systems as its focus. It shows that, although …

The Role Of The Author In Copyright, Jane C. Ginsburg

Faculty Scholarship

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral luster it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue …

Internal Administrative Law Before And After The Apa, Gillian E. Metzger, Kevin M. Stack

Faculty Scholarship

From his early work on social security to more recent scholarship excavating the first hundred years of administrative life in the United States, Professor Jerry L. Mashaw has forcefully argued for the centrality of “internal administrative law.” Internal administrative law, as Mashaw elaborates the term, is the set of practices, procedures, and pronouncements that administrative agencies adopt to structure their work. In his view, understanding administrative institutions and their promise for systemic legality depends upon recognizing their internal administrative law. Yet, as Mashaw observes, despite its importance, internal administrative law remains at the outskirts of the field of administrative law …

Costing Out Campus Speaker Restrictions, Suzanne B. Goldberg

Faculty Scholarship

Frederick Schauer gently points out the challenging, and arguably absurd, situation we find ourselves in today, where a commitment to free expression has enabled provocateurs not only to spew hostile messages into our communities but also to divert extraordinary levels of resources to protect their messaging.

This is not new, of course. As Professor Schauer details, governments and courts have long wrestled with speakers dropping into communities where they are not wanted, generating significant tension and upset, and requiring outsized expenditures in efforts to ensure public safety.

‘Courts Have Twisted Themselves Into Knots’ (And The Twisted Knots Remain To Untangle): Us Copyright Protection For Applied Art After Star Athletica, Jane C. Ginsburg

Faculty Scholarship

Domestic and international law makers have struggled to determine whether, and to what extent, copyright law should cover works that are both artistic and functional. American courts' application of a statutory “separability” standard has become so convoluted that the U.S. Supreme Court has decided an appeal from a case in which the appellate court expressed the lament quoted in the title of this Chapter. The Chapter will review the genesis and application of the statutory standard, especially in the Supreme Court’s decision in Star Athletica v. Varsity Brands (2017), and, having concluded that the Supreme Court has failed to untangle …

The Supreme Court, Madhav Khosla, Ananth Padmanabhan

Faculty Scholarship

Over time, the Supreme Court of India has evolved from being a court of law to a major institutional actor in the political arena. The present chapter analyses this transition by directing external and internal lenses on the court’s functioning. The external lens reveals engagement by the Court with legislative and executive domains of governance, and the current concerns of transparency and accountability that it faces. The internal lens scrutinizes the Court’s success as a court of law and its capability to streamline the judicial process such that the judicial system lives up to the legitimate expectations of the litigant …

Evidence For The Use Of ‘‘Medical Marijuana’’ In Psychiatric And Neurologic Disorders, Christopher Noel

Pharmacy Faculty/Staff Publications

Introduction: Cannabis is listed as a Schedule I substance under the Controlled Substances Act of 1970, meaning the US federal government defines it as an illegal drug that has high potential for abuse and no established medical use; however, half of the states in the nation have enacted “medical marijuana” (MM) laws. Clinicians must be aware of the evidence for and against the use of MM in their patients who may consider using this substance.

Methods: A PubMed database search was performed using the text string: “Cannabis”[Mesh] OR “Marijuana Abuse”[Mesh] OR “Medical Marijuana”[Mesh] OR “Marijuana Smoking”[Mesh] OR “cannabi*” OR “tetrahydrocannabinol.” …

An Evaluation Of The Impact Of Immediate Compared To Delayed Feedback On The Development Of Counselling Skills In Pharmacy Students, Alexander Delucenay, Kelly Conn, Anthony Corigliano

Pharmacy Faculty/Staff Publications

Background: Simulation-based counselling using standardised patients (SPs) provide pharmacy students an authentic approach to training; limited data exists regarding student performance using immediate feedback approaches.

Aims: To compare grades of students receiving immediate feedback verses (vs.) delayed feedback.

Methods: A pre-trial assessment of student perceptions and an unblinded randomised trial comparing immediate and delayed feedback. Third year pharmacy students (n=153) counselled SPs in four clinical “experiences”; student grades were the primary outcome. Student t-test and repeated measures were used to compare grades between groups and grades over time.

Results: During pre-trial surveys 50% of students preferred immediate feedback, 22% …

Brandishing Our Air, Space, And Cyber Swords: Recommendations For Deterrence And Beyond, Mark Reith

Faculty Publications

This article examines how the nation could better prepare to deter aggressive action in space and cyberspace, and if necessary, prevail should deterrence fail. The key themes throughout this article include a strong need for space and cyber situational awareness, the need for an international attribution and escalation framework, and a national investment in space and cyber education, along with an updated national strategy and military doctrine. Although related, this article focuses on deterrence and avoids the topic of cyber coercion.

Developments In Capture- Γ Libraries For Nonproliferation Applications, A. M. Hurst, R. B. Firestone, B. W. Sleaford, D. L. Bleuel, M. S. Basunia, F. Becvar, T. Belgya, L. A. Bernstein, J. J. Carroll, B. Detwiler, J. E. Escher, C. Genreith, B. L. Goldblum, M. Krticka, A. G. Lerch, David A. Matters, John W. Mcclory, Stephen R. Mchale, Zs. Revay, L. Szentmiklosi, D. Turkoglu, A. Ureche, J. Vulic

Faculty Publications

The neutron-capture reaction is fundamental for identifying and analyzing the γ-ray spectrum from an unknown assembly because it provides unambiguous information on the neutron-absorbing isotopes. Nondestructive-assay applications may exploit this phenomenon passively, for example, in the presence of spontaneous-fission neutrons, or actively where an external neutron source is used as a probe. There are known gaps in the Evaluated Nuclear Data File libraries corresponding to neutron-capture γ-ray data that otherwise limit transport-modeling applications. In this work, we describe how new thermal neutron-capture data are being used to improve information in the neutron-data libraries for isotopes relevant to nonproliferation applications. We …

Employee Retention In A Call Center, Angelica Pigman, Perry Haan

AMTP Proceedings 2017

One of the most important aspects of many businesses providing customer services are their call centers. These organizations employ millions of workers who are required to address customer queries and provide solutions to both existing and prospective clients. Customer service is looked at as key factor to keeping current customers. Worldwide, call centers comprise an ever-evolving and dynamic industry, yet researchers find that there is a high turnover rate among call center agents (Pierre & Tremblay, 2011). Facing customers and answering complicated queries are daunting tasks, this is made even more complicated by the fact that call center technology is …

Perceptions Of The Paraprofessional’S Roles, Rachela Nicholls

All Capstone Projects

This action research project was designed to survey the perceptions of special educators and paraprofessionals on the various paraprofessional roles and levels of training offered. The most common paraprofessional roles and types and amounts of training opportunities available were analyzed so that school districts would have the essential data to make programming decisions regarding the effectiveness of the paraprofessional programs within their schools. By using a survey process, paraprofessionals and special educators were asked a series of questions pertaining to the frequency of participation in each paraprofessional role, levels of formal and/or on-the-job training provided, and how the paraprofessionals’ jobs …

A Workshop For Transit Crisis, Ashley Tillman

All Capstone Projects

Crises can cause immediate chaos within any organization they touch. It is imperative that the individuals tasked with responding to crises are knowledgeable enough to communicate using a variety of methods and practices. Transit agencies task Transportation Managers and other key personnel to effectively communicate with front line employees before, during and after a crisis. In order for transit mangers to effectively communicate during crisis it is vital they are provided the necessary training relating to crisis communication. The purpose of the project is to develop a workshop for transit managers, stakeholders, and key leadership that are tasked with the …