Digital Commons Network^™

Exemplary Legal Writing 2018: Five Recommendations, Femi Cadmus, Casandra Laskowski

Faculty Scholarship

A brief review of five recommended exemplary legal books published in 2018.

Immigration Detainers, Local Discretion, And State Law's Historical Constraints, Kate Evans

Faculty Scholarship

No abstract provided.

The Shadows Of Life: Medicaid's Failure Of Health Care's Moral Test, Barak D. Richman, Kushal T. Kadakia, Shivani A. Shah

Faculty Scholarship

North Carolina Medicaid covers one-fifth of the state’s population and makes up approximately one-third of the budget. Yet the state has experienced increasing costs and worsening health outcomes over the past decade, while socioeconomic disparities persist among communities. In this article, the authors explore the factors that influence these trends and provide a series of policy lessons to inform the state’s current reform efforts following the recent approval of North Carolina’s Section 1115 waiver by the Centers for Medicare and Medicaid Services. The authors used health, social, and financial data from the state Department of Health and Human Services, the …

Response: Rights As Trumps Of What?, Joseph Blocher

Faculty Scholarship

No abstract provided.

Analyzing The Trump Administration's International Trade Strategy, Rachel Brewster

Faculty Scholarship

No abstract provided.

The Ilo At 100: Institutional Innovation In An Era Of Populism, Laurence R. Helfer

Faculty Scholarship

The centenary of the International Labor Organization (ILO) provides an opportunity to take stock of the organization’s many achievements. But the centenary also calls for a clear-eyed assessment of the profound challenges that the ILO currently faces – including the growth of the informal and gig economies, digitization and automation, and rising material inequality – and the populist ferment that those trends have helped to engender. This essay, part of a forthcoming AJIL Unbound symposium on "The Transnational Futures of International Labor Law," sketches the ILO’s rich history of legal and policy innovation in response to changes in labor conditions …

Bans, Joseph Blocher

Faculty Scholarship

In the universe of legal restrictions subject to judicial review, those characterized as fully denying some aspect of a constitutional right—bans—are often subject to per se rules of invalidity. Whether the subject of the restriction is a medium of expression, the valuable use of property, or a class of weapons, courts in such cases will often short-circuit the standard doctrinal machinery and strike down the law, even if it might have survived heightened scrutiny. Identifying laws as bans can thus provide an end run around the tiers of scrutiny and other familiar forms of means-ends analysis.

And yet it is …

Free Speech And Justified True Belief, Joseph Blocher

Faculty Scholarship

Law often prioritizes justified true beliefs. Evidence, even if probative and correct, must have a proper foundation. Expert witness testimony must be the product of reliable principles and methods. Prosecutors are not permitted to trick juries into convicting a defendant, even if that defendant is truly guilty. Judges’ reasons, and not just the correctness of their holdings, are the engines of precedent. Lawyers are, in short, familiar with the notion that one must be right for the right reasons.

And yet the standard epistemic theory of the First Amendment—that the marketplace of ideas is the “best test of truth”—has generally …

Ecocriticism And The Trans-Corporeal : Agency, Language, And Vibrant Matter Of The Environmental “Other” In J.R.R Tolkien’S Middle Earth, Garrett Van Curen

Theses, Dissertations and Culminating Projects

This paper explores J.R.R Tolkien’s Middle Earth in light of the material ecocritical notions of trans-corporeality, vibrant matter, and intrinsic language. Namely, this paper asserts that Tolkien’s treatment of plants, specifically trees, deconstructs an otherwise unflattering and over-simplified binary that separates the natural world from the human, while highlighting important nuances sometimes overlooked in Tolkien’s natural world. The two sides of this affixed binary, as this paper asserts, are intermeshed in Tolkien’s conception of Middle Earth in what Stacy Alaimo terms a “trans-corporeal” process. The humanoid and nonhumanoid beings of Tolkien’s world are constantly engaged in a process of mixing …

The Influence Of Meaningful Work On Marital Satisfaction In Dual-Earner Couples With Family Meaning As A Moderator, Nicole Conklin

Theses, Dissertations and Culminating Projects

The purpose of our study was to empirically investigate how individuals’ meaningfulness of work (MOW) is positively related to marital satisfaction of his or her spouse, and how meaningfulness of family (MOF) may moderate this relationship. Our sample consisted of dual earning couples with children, which allowed for data analysis through the Actor- Partner Interdependence Model (APIM), and Actor-Partner Interdependence Moderation Model (APIMoM). As hypothesized, there were actor and partner effects; individuals who experienced higher MOW reported higher marital satisfaction and higher MOW for individual’s predicted higher levels of their spouse’s marital satisfaction. Hypothesis 2a and 2b were also supported; …

Harmonization And Interoperability Of Metadata Schemes Used At The National Autonomous University Of Mexico (Unam) Repositories: The Iibiunam Repository And / Y Armonización E Interoperabilidad De Los Esquemas De Metadatos Utilizados En Repositorios De La Universidad Nacional Autónoma De México (Unam): El Repositorio Iibi-Unam, Filiberto Felipe Martínez Arellano, Noel Perea Reyes, Dante Ortiz Ancona, Juan Miguel Palma Peña

Copyright, Fair Use, Scholarly Communication, etc.

English

As a result of the Open Access (OA) movement, it is undeniable that all over the world there are many completed and ongoing projects of institutional repositories (IR) as a new alternative for scientific communication. IR facilitate access to research outputs, i.e. articles, books, book chapters, theses and dissertations, among other publications. The creation of IR has been widely promoted in Mexico and Latin America. The Institute of Research on Library Science and Information [Instituto de Investigaciones Bibliotecológicas y de la Información, IIBI], as one of the 59 research institutes of the National Autonomous University of Mexico [Universidad Nacional …

Civil Servant Disobedience, Jennifer Nou

Public Law and Legal Theory Working Papers

Administrative agencies are hierarchical bureaucracies. But those on the lower rungs don’t always fall lockstep in line with those at the top. Reasons vary. Sometimes, intra-agency communication is poor. Those laboring below may not know the preferences of their superiors. Even when this information is available, sometimes bureaucrats are lazy; they can “shirk.” Or they may simply disagree with what their bosses want; they might “drift.” Each of these themes have been mainstays of principal-agent models across various disciplines.¹ Legal scholars too have studied bureaucratic resistance, mainly of civil servants within the executive branch.² These analyses have mostly …

Free Speech And Cheap Talk, Daniel Hemel, Ariel Porat

Public Law and Legal Theory Working Papers

We present a new framework for analyzing defamation liability that serves both to clarify and complicate understandings of the law’s consequences for speakers, victims, and the marketplace of ideas. In addition to the familiar deterrence and chilling effects, we show how defamation liability can generate a “warming effect,” making statements more credible and potentially raising both the quality and quantity of speech. We also explain how a more plaintiff-friendly liability regime may exacerbate harms to defamation victims. We end by considering the possibility of “self-tailored” defamation law, with victims or speakers selecting the defamation liability regime that applies to them.

The Primitive Lawyer Speaks!: Thoughts On The Concepts Of International And Rabbinic Laws, Harlan G. Cohen

Faculty Scholarship

Inspired by Chaim Saiman’s brilliant book, Halakhah: The Rabbinic Idea of Law, this essay draws connections between the lived experiences of international law and Jewish law, focusing in particular on (1) the centrality of practice, (2) the search for and construction of authority in communities of practice (the “invisible college”), (3) the challenges and opportunities of fragmentation and pluralism, and (4) the difficulty translating their methods to more state-like institutions, like courts and legislation. The hope is that this testimony of one of H.L.A. Hart’s primitive lawyers can provide a fuller, more textured picture of how law might operate or …

A Masterclass In Trademark's Descriptive Fair Use Defense, Deborah R. Gerhardt

Faculty Publications

When judges decide trademark cases, they often must balance trademark rights against interests in free expression. The defense known as “classic” or “descriptive” fair use embraces the foundational themes that make trademark conflicts so compelling. By design, the defense pits fair competition and free speech against a mark owner’s right to control its story, reputation, and values. The outcome of this tug of war may be hard to predict. It turns on consumer perception, and therefore, generally raises questions of fact. But in Mars, Inc. v. J.M. Smucker Co., this fact intensive question was decided as a matter of law. …

A Behavior Analytic Translation Of Erving Goffman's Frame Analysis, Tim Chi

Graduate School of Professional Psychology: Doctoral Papers and Masters Projects

The sociologist Erving Goffman's 1974 work, "Frame Analysis," is an attempt to account for how people construct and organize meaning in their experiences. The central principle in this approach is that of the frame: An abstractive concept that refers to the totality of environmental events and stimuli exerting some influence on how people behave in a particular setting and time, with respect to the expectations, roles, and norms to be observed.

Though Frame Analysis was developed within the discipline of sociology, it converges in apparently useful ways with the work of clinical psychology, both in its content and epistemology. Goffman's …

Paid In Full: Interpreting And Defining "Market Value" Under The Lacey Act, Max Birmingham

Animal Law Review

There is a circuit split on the definition of “market value” under the Lacey Act. Courts disagree whether the price of hunting guide services should be factored into calculating the market value of the wildlife hunted. But the purpose of the Lacey Act suggests a broad interpretation of market value which includes guide services. This Article proposes amending the Lacey Act to make clear the definition of market value in keeping with its original purpose.

Animal Welfare Act: Related Litigation And Other Efforts, Joyce Tischler, Valerie Stanley, Jenni James, Kathy Meyer

Animal Law Review

Joyce Tischler discusses the background of the Animal Welfare Act from the 1971 definitional change of the term “animal” to the 1985 Amendment for improved standards. Her organization, Animal Legal Defense Fund, was the first to litigate the AWA’s terms and the U.S. Department of Agriculture’s regulations. Valerie Stanley expands upon the 1985 Amendment’s requirements regarding primates and the regulatory struggles Animal Legal Defense Fund faced therein. Jenni James discusses Article III standing and the difficulties in getting into court due to a general reluctance to recognize plaintiffs as satisfying standing under the AWA. She also discusses the courts preference …

Animal Welfare Act: Interaction With Other Laws, Ani B. Satz, Delcianna Winders

Animal Law Review

Ani B. Satz discusses the interaction of the Animal Welfare Act (AWA) with state laws, specifically focusing on perceived preemptive effects of the AWA on state anti-cruelty laws. Delcianna Winders discusses how these perceived preemptive effects play out on a federal level, focusing on how the AWA interacts with the Endangered Species Act (ESA). She expands upon how both laws apply to captive animals, who have been identified as threatened or endangered under the ESA.

Animal Welfare Act: Enforcement, Delcianna Winders, Varu Chilakamarri

Animal Law Review

Delcianna Winders discusses the Animal Welfare Act and how the United States Department of Agriculture enforces it. She also provides a critique of the USDA’s enforcement of the AWA, with particular attention to its heavy reliance on warnings and discounted penalties, which in many cases fail to deter regulated entities from violating the AWA. Varu Chilakamarri discusses how animal welfare issues are incorporated into the work of the Department of Justice (DOJ). She provides an overview of the AWA, noting the specific sections that provide for federal court review. Chilakamarri also discusses some of the programmatic steps the DOJ has …

For The Twenty-Fifth Anniversary Of Animal Law, Earl Blumenauer

Animal Law Review

Foreword to Animal Law Review Volume 25, Issue 3, 2019.

Animal Law: The Next Generation, Joyce Tischler, Pamela Frasch

Animal Law Review

The animal law movement and animal law education in law schools has been growing over the years. In this Article, prominent figures in the animal law world discuss this growth as well as changes that are expected within the next generation of animal law practice. The authors suggest important goals necessary to strengthen the movement in order to allow law students to access the resources needed to be powerful animal advocates for years to come.

The Struggle For The Legal Rights Of Nonhuman Animals Begins: The Experience Of The Nonhuman Rights Project In New York And Connecticut, Steven M. Wise

Animal Law Review

Twenty-five years ago, in the first issue of Animal Law, the author offered an account of why legal rights do not need to be restricted to human beings. Here the author expands upon that account to provide a review of the ongoing struggle of the Nonhuman Rights Project (NhRP) to obtain legal rights for nonhuman animals. The author outlines habeas corpus cases the NhRP has brought on behalf of chimpanzees and elephants in New York and Connecticut and provides a view of the New York and Connecticut Pet Trust Statutes, which grant domestic or pet animals the right to be …

Personal Reflections On Being A Postcolonial Feminist Animal Law Professor, Maneesha Deckha

Animal Law Review

The author reflects on her experiences in the field of animal law. A recurring theme throughout the Article is that the author’s struggle to see herself being part of the animal law at all. This is because mainstream animal law writing has tended to take a liberal legal approach, while the author has focused her work around concepts of intersectionality, feminist, and postcolonial theory in a field she has self-described as “Philosophy, Critical Theory, and Animal Ethics.” Consistent with her intersectional approach, the author highlights how her experience being Canadian, being female, and being ‘radicalized’ have all intersected to shape …

Ruminations On Twenty-Five Years Of Animal Law, Joan E. Schaffner

Animal Law Review

In this Article, the author tracks the ‘progress’ of the animal law movement over the past twenty-five years, focusing on the perennial ambiguity in the property status of animals and the kinds of harm to animals the law is, and is not, willing to condone, and the power of the media to shed light on these harms. The author also explains how her own work, concentrating on the question of the ‘value’ of animals, has contributed to the field of animal law. In particular, she highlights her work on the problem of legal valuation of companion animals for damages claims, …

Farmed Animals: The Past Is Prologue, The Future Is (Almost) Here, Mariann Sullivan

Animal Law Review

The author describes her journey to animal law and the contributions she has made to the field, particularly in respect of ballot initiatives that have been used successfully to make specific improvements to the welfare of farmed animals. She provides an overview of the Florida ballot initiative prohibiting the confinement of pigs during pregnancy and the California ballot initiatives setting minimum cage size for laying hens and more, highlighting how the idea for each initiative was born, and the drafting and implementation challenges encountered along the way. The author also focusses on other legal and non-legal strategies that are being …

2018 State Legislative Review, Emma Therrien

Animal Law Review

There were several important changes to animal protection in the United States in 2018. California became the first state to ban cosmetic testing on animals and also made improvements for a handful of species used in factory farming. Prop 12 was passed, increasing minimum size standards for these species, but the most drastic change was the banning of eggs produced by egg-laying hens housed in cages—effectively prohibiting the use of cages for these birds in the state and the sale of eggs from producers that use cages in production facilities out of state. Florida and New Jersey made influential advancements …

2018 Foreign And International Legislative Review, Caitlin Skurky

Animal Law Review

This Review examines foreign and international legislation relating to animals proposed or passed in 2018 and early 2019. The Review specifically examines legislation in Vietnam, Switzerland, Spain, Canada, Luxembourg, the U.K., Ukraine, and Portugal, with a specific focus on legislation that seeks to increase animal welfare, reduce consumption of cruel animal products, or end violent animal practices.

The Impact Of Good Governance And Stability On Sustainable Development In Ghana, William Deiyan Towah

Walden Dissertations and Doctoral Studies

Previous studies have lauded Ghana's commitment to sustainable development, but corruption and violence may affect sustainable development policies and initiatives related to poverty reduction, agricultural practices, environmental protection, and human development. The purpose of this holistic, qualitative case study was to identify and describe good governance practices in Ghana and threats to sustainable development. A Marxist conceptual lens guided the thematic analysis of data collected from artifact documents, field notes, and interviews of 20 key informants from various professions and diverse perspectives who were directly involved in the governance of Ghana or implementation of policies. Three primary themes emerged: (a) …

Political Control And Accountability In Ethiopian Rulemaking, Esayas Kassa Araya

Walden Dissertations and Doctoral Studies

Administrative rules have played a central role in Ethiopian public administration since 1994 when the current constitution was adopted. However, if the formulation and implementation of the rules are not politically controlled, and proper accountability is not applied, these same rules could become threats instead of assurances of the rule of law and order. This case study explored what strategic controls and accountability measures are in place to regulate the rulemaking process. To inform the study, the political control of bureaucracy framework in general and the principal-agency model, in particular, were used. The central research question focused on strategies that …