Law Commons^™

Mandatory Disclosure In Primary Markets, Andrew A. Schwartz

Publications

Mandatory disclosure—the idea that companies must be legally required to disclose certain, specified information to public investors—is the first principle of modern securities law. Despite the high costs it imposes, mandatory disclosure has been well defended by legal scholars on two theoretical grounds: ‘Agency costs’ and ‘information underproduction.’ While these two concepts are a good fit for secondary markets (where investors trade securities with one another), this Article shows that they are largely irrelevant in the context of primary markets (where companies offer securities directly to investors). The surprising result is that primary offerings—such as an IPO—may not require mandatory …

Drugs' Other Side Effects, Craig J. Konnoth

Publications

Drugs often induce unintended, adverse physiological reactions in those that take them—what we commonly refer to as “side-effects.” However, drugs can produce other, broader, unintended, even non-physiological harms. For example, some argue that taking Truvada, a drug that prevents HIV transmission, increases promiscuity and decreases condom use. Expensive Hepatitis C treatments threaten to bankrupt state Medicaid programs. BiDil, which purported to treat heart conditions for self-identified African-Americans, has been criticized for reifying racial categories. Although the Food & Drug Administration (“FDA”) has broad discretion under the Food, Drugs, and Cosmetics Act (“FDCA”) to regulate drugs, it generally considers only traditional …

The Statutory Separation Of Powers, Sharon B. Jacobs

Publications

Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …

A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos

Publications

This Article argues that, properly understood, the 25th Amendment is designed to allow the executive and legislative branches, working together, to remove a president from office when it becomes evident that the person elevated to that office by the electoral process is manifestly unsuited for what can, without exaggeration, be described as the most important job in the world.

It argues further that the first two years of Donald Trump’s presidency have provided a great deal of evidence for the proposition that President Trump has in fact demonstrated the requisite level of fundamental unfitness for the office that would justify …

A Reconsideration Of Copyright's Term, Kristelia A. García, Justin Mccrary

Publications

For well over a century, legislators, courts, lawyers, and scholars have spent significant time and energy debating the optimal duration of copyright protection. While there is general consensus that copyright’s term is of legal and economic significance, arguments both for and against a lengthy term are often impressionistic. Utilizing music industry sales data not previously available for academic analysis, this Article fills an important evidentiary gap in the literature. Using recorded music as a case study, we determine that most copyrighted music earns the majority of its lifetime revenue in the first five to ten years following its initial release …

Binary Governance: Lessons From The Gdpr’S Approach To Algorithmic Accountability, Margot E. Kaminski

Publications

Algorithms are now used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. A quickly growing literature has split on how to address algorithmic decision-making, with individual rights and accountability to nonexpert stakeholders and to the public at the crux of the debate. In this Article, I make the case for why both individual rights and public- and stakeholder-facing accountability are not just goods in and of themselves but crucial components of effective governance. Only individual rights can fully address dignitary and justificatory concerns behind calls for regulating …

Savior Of Rural Landscapes Or Solomon's Choice? Colorado's Experiment With Alternative Water Transfer Methods For Water (Atms), Lisa Dilling, John Berggren, Jennifer Henderson, Douglas Kenney

Publications

This article focuses on the emerging landscape for Alternative Transfer Methods (ATMs) in Colorado, USA. ATMs are developing within a legal landscape of water rights governed by prior appropriation law, growing demand for water in urban centers driven by population growth, and an aging rural farm population whose most valuable asset may include senior water rights. Rural-urban water transfers in the past have been linked to the collapse of rural economies if pursued to the extreme extent of “buy-and-dry,” where water rights were purchased outright and permanently removed from agricultural land (e.g. Crowley County). This article focuses on the emerging …

The Use Of Courts To Protect The Environmental Commons, Lakshman Guruswamy

Publications

No abstract provided.

Keynote: The Protection Of Lgbt Youth, Craig Konnoth

Publications

This keynote contains three parts. Part I addresses the intersection of two metaphors: medicine and childhood in LGBT Rights. Part II addresses the state regulation of LGBT youth. Part III offers Professor Konnoth's concluding remarks on the protection of LGBT youth.

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

Publications

Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

Understanding Racial Inequity In School Discipline Across The Richmond Region, Genevieve Siegel-Hawley, Adai Tefera, David Naff, Ashlee Lester, Jesse Senechal, Rachel Levy, Virginia Palencia, Mitchell Parry, Morgan Debusk-Lane

MERC Publications

This report comes from the MERC Achieving Racial Equity in School Disciplinary Policies and Practices study. Launched in the spring of 2015, the purpose of this mixed- method study was to understand the factors related to disproportionate school discipline outcomes in MERC division schools. The study had two phases. Phase one (quantitative) used primary and secondary data to explore racial disparities in school discipline in the MERC region as well as discipline programs schools use to address them. Phase two (qualitative) explored the implementation of discipline programs in three MERC region schools, as well as educator and student perceptions …

The Care Principles For Indigenous Data Governance, Global Indigenous Data Alliance

Copyright, Fair Use, Scholarly Communication, etc.

The CARE Principles for Indigenous Data Governance

The current movement toward open data and open science does not fully engage with Indigenous Peoples rights and interests. Existing principles within the open data movement (e.g. FAIR: findable, accessible, interoperable, reusable) primarily focus on characteristics of data that will facilitate increased data sharing among entities while ignoring power differentials and historical contexts. The emphasis on greater data sharing alone creates a tension for Indigenous Peoples who are also asserting greater control over the application and use of Indigenous data and Indigenous Knowledge for collective benefit.

This includes the right to create value …

Digital CommonsTm: 10 Strategies To Expand Your Institution’S Global Research Visibility With A Next-Generation Ir, Elsevier

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This short paper explores 10 themes of next generation repositories, elevating what is possible, and giving competitive advantage to forward-thinking institutions who are ready to take the next step in their IR strategy.

Since the concept was first launched in 2003, over 5,200 institutions worldwide have adopted an Institutional Repository (IR) to store and manage all their academic research and archival content, publish and manage journals, and more.

In November 2017, the global Confederation of Open Access Repositories (COAR) published the report, Behaviours and Technical Recommendations of the COAR Next Generation Repositories Working Group¹. This sets out a framework positioning …

Open Scholarship And The Need For Collective Action, Knowledge Exchange, Cameron Neylon,, Rene Belsø,, Magchiel Bijsterbosch, Bas Cordewener, Jérôme Foncel, Sascha Friesike, Aileen Fyfe, Neil Jacobs, Matthias Katerbow, Mikael Laakso, Laurents Sesink

Copyright, Fair Use, Scholarly Communication, etc.

The aim of this book is to enhance community understanding of the mechanisms and processes that can enable Open Scholarship to reach its full potential. The book is the result of a Knowledge Exchange (KE) (knowledge-exchange.info/about-us) activity to explore the economy of Open Scholarship across six European countries (Denmark, Finland, France, Germany, the Netherlands and the UK) and beyond.

Many of the challenges in navigating the transition to Open Scholarship are economic, either in the sense of being directly financial, or in the sense of being related to incentives. We therefore focus on the economic arena. Our conclusion is that …

Where Should I Publish? A Library Handout For Researchers, Elsevier

Copyright, Fair Use, Scholarly Communication, etc.

5 warning signs of a predatory journal

7 essential questions to ask when evaluating a journal

Checklist to determine whether a journal is reputable

Tools to find journals based on various selection criteria

By reviewing and applying the dos and don’ts within these pages, you will increase the likelihood of publishing in the right journal for your work. Identifying the right title isn’t easy. In addition to using this guide, consider booking a consultation with a librarian to help you identify and apply your selection criteria.

Ifla Library Publishing Special Interest Group Action Plan 2019-2020, Ifla Sig Library Publishing

Copyright, Fair Use, Scholarly Communication, etc.

The 2019-2020 action plan for the newly-created International Federation of Library Associations and Institutions Special Interest Group on Library Publishing (IFLA SIG LP). Includes information about strategic directions, key initiatives, funding needs, and ways to measure outputs.

Fractional Authorship & Publication Productivity, Kate Gasson, Rachel Herbert, Alex Ponsford

Copyright, Fair Use, Scholarly Communication, etc.

Authors divide their research output across publications, contributing via research collaborations

The trend is for authors to produce more publications per year (increased fractionalization) but for the overall number of publications per author to decrease

We suggest that the effort required to participate in research collaborations is a factor in the decrease in publications per author

Are authors collaborating more in response to the pressure to publish?

Growth in the number of scholarly publications each year has been well documented (e.g., Bornmann & Mutz, 2015, Figure 1). But how has that growth been achieved? Is it purely due to increasing …

Powerful Speakers And Their Listeners, Helen Norton

Publications

In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …

Mindfulness In Legal Ethics And Professionalism, Peter H. Huang

Publications

Mindfulness involves paying attention with curiosity in an intentional, open, and compassionate way to life as it unfolds moment to moment. Law students, lawyers, law professors, legal clients, and indeed all people can improve their lives through mindfulness. Mindfulness can lead to individual benefits and personal transformation. Mindfulness can also lead to societal benefits and social change. This invited symposium contribution exemplifies how mindfulness can facilitate the positive personal and professional development of law students by presenting excerpts of law students’ answers discussing mindfulness to questions from the final examination of the course: Legal Ethics and Professionalism. Notably, none of …

Future Of Scholarly Publishing And Scholarly Communication: Report Of The Expert Group To The European Commission, Directorate-General For Research And Innovation (European Commission), Jean-Claude Guédon, Jubb Consulting, United Kingdom, Bianca Kramer, Mikael Laakso, Birgit Schmidt, Elena Šimukovič, Jennifer Hansen, Robert Kiley, Anne Kitson, Wim Van Der Stelt, Kamilla Markram, Mark Patterson,

Copyright, Fair Use, Scholarly Communication, etc.

The Expert Group on the Future of Scholarly Publishing and Scholarly Communication was set up to support the policy development of the European Commission on Open Science. The Expert Group was asked to assess the current situation with regard to scholarly communication and publishing and to establish general principles for the future. This report analyses the recent past and present states of scholarly communication and publishing. It proposes ten principles through which a vision for scholarly communication is shaped over the next 10-15 years. These principles also serve as a way to examine shortcomings of the current scholarly communication and …

Rp-4.4.2 Patent And Technology Transfer Policy [University Of Nebraska Board Of Regents Policies], University Of Nebraska Board Of Regents

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This Patent and Technology Transfer Policy is adopted for the purpose of providing general policy regulations to implement Section 3.10 of the University of Nebraska Bylaws of the Board of Regents.

The Need For Speed: How Quickly Do Preprints Become Published Articles?, Rachel Herbert, Kate Gasson, Alex Ponsford

Copyright, Fair Use, Scholarly Communication, etc.

bioRxiv’s option for authors to submit biology preprints directly to journals typically speeds up publication of articles by nearly 2 weeks—an advantage for authors who are keen to get their work published quickly

Authors approach ‘preprinting’ in different ways: while most post a preprint before submitting to a journal, just over a third of preprints were submitted to and accepted by a journal before the preprint appeared on bioRxiv

Biology preprints with just one version are published 2 weeks more quickly than those with multiple versions

Are Internet Protocols The New Human Rights Protocols: Understanding Rfc 8280: Research Into Human Rights Protocol Considerations, Vivek Krishnamurthy

Publications

No abstract provided.

Law Enforcement In The American Security State, Wadie E. Said

Publications

This Article documents the evolution of the modem American police state and the symbiotic nature of the relationship between government actors across the three sectors of national security, domestic policing, and immigration enforcement. Policies from one area make their way into the other two, with the net result being that the powers of government actors are increased in all three areas. Critical to this dynamic is the construction of the target in each arena-the terrorist, the criminal, the illegal immigrant-as foreign, whether literally or figuratively. Although these targets are ostensibly limited to those deemed outside the mainstream, the result is …

Ad Hoc Diplomats, Ryan M. Scoville

Faculty Publications

Article II of the Constitution grants the president power to appoint “Ambassadors” and “other public Ministers” with the advice and consent of the Senate. By all accounts, this language requires Senate confirmation for the appointment of resident ambassadors and other diplomats of similar rank and tenure. Yet these are hardly the only agents of U.S. foreign relations. Ad hoc diplomats—individuals chosen exclusively by the president to complete limited and temporary assignments—play a comparably significant role in addressing international crises, negotiating treaties, and otherwise executing foreign policy.

This Article critically examines the appointments process for such irregular agents. An orthodox view …

Persons And The Point Of The Law, Richard W. Garnett

Journal Articles

This short essay is a comment and reflection on a manuscript by Professors John Breen and Lee
Strang, "A Light Unseen: A History of Catholic Legal Education in the United States." It is based on remarks presented at a February 14, 2020 conference, sponsored by the Journal of Catholic Legal Studies and the Center for Law and Religion at St. John's University School of Law. It
addresses, among other things, Breen and Strang's argument that a Catholic law school should have a distinctive "intellectual architecture" and proposes that a distinctive moral anthropology -- that is, an account of what the …

The Role Of Circuit Courts In The Formation Of United States Law In The Early Republic, David P. Waddilove

Journal Articles

The Role of Circuit Courts in the Formation of United States Law in the Early Republic: Following Supreme Court Justices Washington, Livingston, Story, and Thompson. ByDAVID LYNCH. [Portland, OR: Hart Publishing, 2018. xxi +233 pp. Hardback £70.00. ISBN 978-15-09910-85-4.]

The chosen justices were: Bushrod Washington, who served 1801–1829; H. Brockholst Livingston, 1807–1823; Joseph Story, 1811–1845; and Smith Thompson, 1823–1843.

The Parable Of The Forms, Samuel L. Bray

Journal Articles

This is a parable about the forms of action, code pleading, and the "civil action" of the Federal Rules.

Book Review, Richard W. Garnett

Journal Articles

Richard Garnett reviews Ellis M. West's The Free Exercise of Religion in America: Its Original Constitutional Meaning

This is a review of Professor Ellis M. West's 2019 study of the original meaning of "free exercise of religion."

Still A Hollow Hope: Significant Social Change, The Second Amendment, And State Political Culture, Anthony David Cooling

Graduate Research Theses & Dissertations

This dissertation expands the literature on law, courts, and social change. The Supreme Court increasingly matters in American political life when those across the political spectrum look at the Court for relief from policies they oppose and as another venue for advancing their own policy agendas. This dissertation expands the volume of case studies that research the ability of Courts to make major political and social change to include the topic of firearms in the wake of the Supreme Court’s controversial and divided opinions in D.C. v Heller (2008) and McDonald v Chicago (2010). These decisions interpreted the Second Amendment …