bluuebunny/crossref_metadata_2025 huggingface dataset:
Sharing and Stealing
Authors: Litman Jessica
Published: July 2018

The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works. Until recently, most means of mass dissemination required a significant capital investment. The lion's share of the economic proceeds of copyrights were therefore channeled to publishers and distributors, and the law was designed to facilitate that. Digital distribution invites us to reconsider all of the assumptions underlying that model. We are still in the early history of the networked digital environment, but already we've seen experiments with both direct and consumer-to-consumer distribution of works of authorship. One remarkable example of the difference consumer-to-consumer dissemination can make is seen in the astonishing information space that has grown up on the world wide web. The Internet has transformed information and the way we interact with it by creating an easily accessible, dynamic, shared information space. Its success derives from the fact that information sharing on the Web is almost frictionless; individuals are free to post information they learned from others without having to secure their permissions. This paper proposes that we look for some of the answers to the vexing problem of unauthorized exchange of music files on the Internet in the wisdom intellectual property law has accumulated about the protection and distribution of factual information. In particular, it analyzes the digital information resource that has developed on the Internet, and suggests that what we should be trying to achieve is an online musical smorgasbord of comparable breadth and variety. It proposes that we adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks, and that we incorporate into that architecture a payment mechanism, based on a blanket or collective license, designed to compensate creators and to bypass unnecessary intermediaries.
In Memoriam: J. Rodney Johnson (1939-2015)
Authors: Bryson William Hamilton
Published: July 2018

A remembrance of J. Rodney Johnson, Professor of Law, Emeritus, of the University of Richmond, and one of the preeminent legal scholars of wills and testamentary trusts in Virginia.
The Case for Curation: The Relevance of Digest and Citator Results in Westlaw and Lexis
Authors: Nevelow Mart Susan
Published: July 2018

Humans and machines are both involved in the creation of legal research resources. For legal information retrieval systems, the human-curated finding aid is being overtaken by the computer algorithm. But human-curated finding aids still exist. One of them is the West Key Number system. The Key Number system’s headnote classification of case law, started back in the nineteenth century, was and is the creation of humans. The retrospective headnote classification of the cases in Lexis’s case databases, started in 1999, was created primarily - although notexclusively - with computer algorithms. So how do these two very different systems deal with a similar headnote from the same case, when they link the headnote to the digest and citator functions in their respective databases? This paper continues the author’s investigation into this question, looking at the relevance of results from digest and citator searches run on matchingheadnotes in Westlaw and Lexis for ninety important federal and state cases, to see how each system performs. For digests, where the results are curated where a human has made a judgmentabout the meaning of a case and placed it in a classification system humans still have an advantage. For citators, where algorithm is battling algorithm to find relevant results, it is a matter of the better algorithm winning. But neither algorithm is doing a very good job of finding all the relevant results; the overlap between the two citator systems is not that large. The lesson for researchers: know how your legal research system was created, what involvement, if any, humans had in the curation of the system, and what a researcher can and cannot expect from thesystem being used.
Law Libraries as Publishers: Counting Things, with Altmetrics
Authors: Keele Benjamin John
Published: July 2018

Benjamin J. Keele, Law Libraries as Publishers: Counting Things, with Altmetrics, ALL-SIS Newsletter, 35(2), 15-16 (2016)
The Limits of Energy Efficiency Markets In Climate-Change Law
Authors: Sachs Noah M.
Published: July 2018

This Article examines whether market-based policies, deployed in many areas of environmental law, should be harnessed to promote energy efficiency. Several countries in Europe and Asia have experimented with this new approach to energy efficiency, establishing markets that involve mandatory energy savings targets for firms and inter-firm trading of certificates that represent quantified energy savings. Many analysts contend that these new markets can unlock overlooked opportunities for energy efficiency improvements and could be a critical policy tool for addressing climate change. After describing the rationale for these new markets and their operation in other countries, this Article concludes that the growing international support for energy efficiency markets is misplaced. I argue that market enthusiasts are overlooking problems of institutional design that complicate and weaken this new application of market principles in environmental law, and I demonstrate that energy efficiency markets face several hurdles that are likely to limit their role in climate change mitigation. The hurdles include accurately verifying energy savings, setting environmentally meaningful savings targets, and preventing what I call energy savings “leakage,” in which firms participating in the markets outsource energy intensive parts of their operations to non-regulated firms. These limits of energy efficiency markets call into question long-held assumptions about the superiority of market-based approaches in environmental law.
Protecting the lady from Toledo: Post-USA PATRIOT Act electronic surveillance at the library
Authors: Nevelow Mart Susan
Published: July 2018

Library patrons are worried about the government looking over their shoulder while they read and surf the Internet. Because of the broad provisions of the USA PATRIOT Act, the lack of judicial and legislative oversight, the potential for content over collection, and the ease with which applications for pen register, section 215 orders, or national security letters can be obtained, these fears cannot be dismissed.
Taking the Court Seriously: A Proposed Approach to Senate Confirmation of Supreme Court Nominees
Authors: Simson Gary J.
Published: July 2018

7 Constitutional Commentary 283 (1990)
Reusing Writing Assignments
Authors: Dimitri James D.
Published: July 2018

12 Perspectives: Teaching Legal Research & Writing 27 (2003)At some point in their teaching careers, faculty who teach legal research and writing have the opportunity to use writing assignments that they have assigned in previous semesters. Reusing these assignments unfailingly presents several issues that must be considered and resolved. To provide guidance to LRW teachers who are faced with the decision to reuse a writing assignment, this article discusses the issues that may arise when reusing an assignment and suggests strategies for resolving those issues.
Report: The Role of Certification Authorities in Consumer Transactions
Authors: Biddle C. Bradford
Published: July 2018

This Report represents a preliminary analysis of certain questions relating to legal issues involved in the emerging service business of certification authorities, particularly those arising in consumer transactions. The scope of this Report has been limited intentionally to focus on the selected legal environment in the United States, although additional information has been provided on German law, the directives of the European Commission and laws in other jurisdictions. In addition, this Report only addresses consumer transactions taking place in an "open system," where a CA provides services to any consumer desiring services without regard to the contractual obligations between the consumer or the merchant and any payment system. As a "pilot" project of the Forum, a more comprehensive analysis, though appropriate, was not within the scope of available resources.
Book Review: Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age by Susan Crawford
Authors: Hibbler L. Elliott
Published: July 2018

Susan Crawford’s Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age is a timely book on an industry whose rate of growth is only outpaced by its rate of change.Crawford traces the concentration of monopoly power in telecommunications, using Comcast as the story’s main character. The book’s focus is the 2010 merger of Comcast and NBC Universal, which tied several strands of the industry together. Not only is the book a fascinating history of the rise of an industry, it doubles as a manual on how the administrative apparatus of government operates.The book would benefit from a deeper exploration of the wireless market. However, without the same defining merger as in the cable industry (yet), using Comcast to drive the narrative is a reasonable and satisfying choice for readers of any level of familiarity with the topic.
3D-Printed Food
Authors: Tran Jasper L.
Published: July 2018

Minnesota Journal of Law, Science and Technology, Vol. 17, p. 855, 2016 symposium
Human Capital and Employee Mobility: A Rejoinder
Authors: Stone Katherine V.W.
Published: July 2018

34 Connecticut Law Review 1233 (2002)
Sexualization, Sex Discrimination, and Public School Dress Codes
Authors: Harbach Meredith J
Published: July 2018

This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.
When Data Protection by Design and Data Subject Rights Clash
Authors: Veale Michael , Binns Reuben , Ausloos Jef
Published: July 2018

Cite as: Michael Veale, Reuben Binns and Jef Ausloos (2018) When Data Protection by Design and Data Subject Rights Clash. International Data Privacy Law (2018) doi:10.1093/idpl/ipy002. [Note: An earlier draft was entitled "We Can't Find Your Data, But A Hacker Could: How 'Privacy by Design' Trades-Off Data Protection Rights"]Abstract➔Data Protection by Design (DPbD), a holistic approach to embedding principles in technical and organisational measures undertaken by data controllers, building on the notion of Privacy by Design, is now a qualified duty in the GDPR.➔Practitioners have seen DPbD less holistically, instead framing it through the confidentiality-focussed lens of Privacy Enhancing Technologies (PETs).➔While focussing primarily on confidentiality risk, we show that some DPbD strategies deployed by large data controllers result in personal data which, despite remaining clearly reidentifiable by a capable adversary, make it difficult for the controller to grant data subjects rights (eg access, erasure, objection) over for the purposes of managing this risk.➔Informed by case studies of Apple's Siri voice assistant and Transport for London's Wi-Fi analytics, we suggest three main ways to make deployed DPbD more accountable and data subject-centric: building parallel systems to fulfil rights, including dealing with volunteered data; making inevitable trade-offs more explicit and transparent through Data Protection Impact Assessments; and through ex ante and ex post information rights (arts 13-15), which we argue may require the provision of information concerning DPbD trade-offs.➔Despite steep technical hurdles, we call both for researchers in PETs to develop rigorous techniques to balance privacy-as-control with privacy-as-confidentiality, and for DPAs to consider tailoring guidance and future frameworks to better oversee the trade-offs being made by primarily well-intentioned data controllers employing DPbD.
Using Digital Badges to Enhance Research Instruction in Academic Libraries
Authors: deMaine Susan David , Lemmer Catherine , Keele Benjamin John , Alcasid Hannah
Published: July 2018

deMaine, S.D., Lemmer, C.A., Keele, B.J., & Alcasid, H. Using digital badges to enhance research instruction in academic libraries. In Eden, B. L. (2015). Enhancing Teaching and Learning in the 21st Century Academic Library: Successful Innovations That Make a Difference. Lanham: Maryland: Scarecrow Press
Federal Circuit Addresses Damages in the Hatch-Waxman Context
Authors: D'Amore Matthew
Published: July 2018

Morrison Foerster Client Alert, April 14, 2015On April 7, 2015, the United States Court of Appeals for the Federal Circuit issued its decision in Astrazeneca AB v. Apotex Corp., No. 2014-1221, affirming an award of a reasonable royalty of 50% in a case arising from the Hatch-Waxman Act. While largely affirming a damages award of over $70 million, the Federal Circuit reversed the district court’s award of damages during the period of pediatric exclusivity that AstraZeneca’s product held after patent expiration.
Review of Citizens and E-Government: Evaluating Policy and Management, & http://www.whitehouse.gov/omb/e-gov/
Authors: Keele Benjamin John
Published: July 2018

Keele, B. J. (2012). Review of Citizens and E-Government: Evaluating Policy and Management, & http://www.whitehouse.gov/omb/e-gov/. Government Information Quarterly 29(2), 307.
Listeners' Choices
Authors: Grimmelmann James
Published: July 2018

Speech is a matching problem. Speakers choose listeners, and listenerschoose speakers. When their choices conflict, law often decides who speaks towhom. The pattern is clear: First Amendment doctrine consistently honors listeners’choices for speech. When willing and unwilling listeners’ choices conflict,the willing listeners win. And when competing speakers’ choices conflict, listeners’choices among them break the tie. This essay provides a theoretical frameworkfor analyzing speech problems in terms of speakers’ and listeners’ choices,an argument for the centrality of listener choice to any coherent theory of freespeech, and supporting examples from First Amendment caselaw.
Mini-Law School: Civic Education Making a Difference in the Community
Authors: Newcombe Pat , Cohen Beth D.
Published: July 2018

Published: Pat Newcombe and Beth D. Cohen, Mini-Law School: Civic Education Making a Difference in the Community, 16 SEATTLE J. SOC. JUST. 381 (2018).Western New England’s Mini-Law School Program increases civic engagement and awareness and provides opportunities for law schools and educators to help non-lawyers better understand the legal system. This article will discuss the Mini-Law School Program, a creative and extremely successful five-week community outreach program focused on demystifying the law. Our society is in dire need of greater civic education.Public policy surveys consistently reveal disturbing statistics about the public’s lack of civic awareness (e.g., 15 percent of the public knew that John Roberts is Chief Justice of the Supreme Court, but 66 percent could name an American Idol judge; 70 percent could name all Three Stooges, but barely 20 percent could name all three branches of the federal government). The need for increased civic engagement and the importance of education in this era of civic unawareness provides unique opportunities for law faculty to serve as a resource to help educate citizenry and bridge the town and gown divide. This article will describe the surprising success of Western New England’s Mini-Law School Program, an interactive lecture and discussion series focused on providing opportunities for participants to learn about different areas of the law and legal system. The authors provide details of the collaborative endeavor so that others may launch similar Mini-Law School programs in their own communities.
Appeals by the Prosecution
Authors: King Nancy J. , Heise Michael
Published: July 2018

Scholarly and public debates about criminal appeals have largely taken place in an empirical vacuum. This study builds on our prior empirical work exploring defense-initiated criminal appeals and focuses on criminal appeals by state and federal prosecutors. Exploiting data drawn from a recently released national sample of appeals by state prosecutors decided in 2010, as well as data from all appeals by federal prosecutors to the United States Court of Appeals terminated in the years 2011 through 2016, we provide a detailed snapshot of non-capital, direct appeals by prosecutors, including extensive information on crime type, claims raised, type of defense representation, oral argument and opinion type, as well judicial selection, merits review, and relief. Findings include a rate of success for state prosecutor appeals about four times greater than that for defense appeals (roughly 40% of appeals filed compared to 10%). The likelihood of success for state prosecutor-appellants appeared unrelated to the type of crime, claim, or defense counsel, whether review was mandatory or discretionary, or whether the appellate bench was selected by election rather than appointment. State high courts, unlike intermediate courts, did not decide these appeals under conditions of drastic asymmetry. Of discretionary criminal appeals reviewed on the merits by state high courts, 41% were prosecutor appeals. In federal courts, prosecutors voluntarily dismissed more than half the appeals they filed, but were significantly less likely to withdraw appeals from judgments of acquittal and new trial orders after the verdict than to withdraw appeals challenging other orders. Among appeals decided on the merits, federal prosecutors were significantly more likely to lose when facing a federal defender as an adversary compared to a CJA panel attorney.
"Never Having Loved at All": An Overlooked Interest that Grounds the Abortion Right
Authors: Colb Sherry F.
Published: July 2018

48 Connecticut Law Review (2016)Feminist and some other abortion rights advocates typically ground the right to abortion in bodily integrity, thus conceptualizing abortion as vindicating a right to disassociate oneself from an intruder. Although valid as a matter of logic, the bodily integrity argument is libertarian and seemingly selfish. But a fundamentally associative interest also grounds the abortion right. A woman who cannot raise a child but is legally required to bear one must undergo the psychic pain of forced separation from an infant whom she is biologically programmed to love. Human mothers, like other mammalian mothers, grieve the loss of their young, as illustrated by the sad plight of dairy cows. Accordingly, the abortion right may be best understood as protecting not only an interest in bodily separation, but an interest in avoiding loss, that is, an interest in “never having loved at all.”
Free Exercise and the Problem of Symmetry
Authors: Tebbe Nelson
Published: July 2018

56 Hastings Law Journal 699 (2005)This Article identifies a difficulty with the neutrality paradigm that currently shapes thinking about the Free Exercise Clause both on the Supreme Court and among its leading critics. It proposes a liberty component, shows how it would generate more attractive results than neutrality alone, and defends the liberty approach against likely objections.A controversial neutrality rule currently governs cases brought under the Free Exercise Clause. Under that rule, only laws and policies that have the purpose of discriminating against religion draw heightened scrutiny. All others are presumptively constitutional, regardless of how severely they burden religious practices.Critics have attacked the Court's rule with compelling normative arguments. Curiously, though, the leading academic critics have not directed those arguments against neutrality itself. Rather, they have argued that the Court has adopted the wrong sort of neutrality principle. Instead of purposive neutrality, they call for substantive neutrality. That approach would closely scrutinize not only laws or policies that discriminate purposefully, but also those that have the incidental effect of disadvantaging religion.This Article points out a difficulty with the critics' proposal that it calls the problem of symmetry. In order to qualify as neutral, substantive neutrality must apply in the same way to laws that benefit religion as to laws that burden it. Neutralists could not apply strict substantive neutrality to laws that burden religion, but only the more permissive purposive neutrality to laws that benefit religion. That regime would not be neutral. It would systematically advantage religion in violation of evenhandedness.Some of the leading academic critics recognize that substantive neutrality must resist laws that favor religion as well as those that disfavor it. But many of their practical proposals seem to violate the symmetry constraint. Accommodations of religion, in particular, often have the effect of advantaging religious practices over comparable secular activities. For instance, the critics must strongly support the Religious Land Use and Institutionalized Persons Act, which applies strict scrutiny (as a statutory matter) to prison regulations that incidentally but substantially burden religious observance among inmates. The Supreme Court recently upheld that law even though it has the effect of advantaging sacred practices over analogous secular ones. The critics surely must applaud that result. Yet advantaging religious over secular practices is difficult to square with substantive neutrality.Liberty, in contrast to neutrality, is asymmetrical. It protects religious freedom regardless of whether doing so incidentally advantages observance over comparable secular practices. This Article argues that a liberty component is necessary to vindicate the critics' own normative intuitions concerning the proper role of religious freedom in American democracy.
Contested Visions: The Value of Systems Theory for Corporate Law
Authors: Belinfanti Tamara , Stout Lynn
Published: July 2018

166 University of Pennsylvania Law Review 579 (2018)Despite the dominant role corporations play in our economy, culture, and politics, the nature and purpose of corporations remains hotly contested. This conflict was brought to the fore in the recent Supreme Court opinions in Citizens United and Hobby Lobby. Although the prevailing narrative for the past quarter-century has been that corporations “belong” to shareholders and should pursue “shareholder value,” support for this approach, which has been justified as essential for managerial accountability, is eroding. It persists today primarily in the form of the argument that corporations should seek “long-term” shareholder value. Yet, as this Article shows, when shareholder value is interpreted to mean “long-term” shareholder value, it no longer offers the sought-after managerial accountability.What can? This Article argues that systems theory offers an answer. Systems theory is a well-developed design and performance measuring methodology routinely applied in fields such as engineering, biology, computer science, and environmental science. It provides an approach to understanding the nature and purpose of corporate entities that is not only consistent with elements of the many otherwise-conflicting visions of the corporation that have been developed, but also with important and otherwise difficult-to-explain features of corporate law and practice. It offers proven methods for measuring corporate performance that recognize the possibility of multiple goals and the importance of sustainability. And it cautions that, by ignoring the lessons of systems theory, shareholder value thinking may have encouraged regulatory and policy interventions into corporate governance that are not only ineffective, but destructive.
The Mark of Resold Good
Authors: Liebesman Yvette Joy , Wilson Benjamin J.
Published: July 2018

Over the past ten years, the Internet has revolutionized the resale market ― casual resellers have migrated from garage sales, swap meets, and classified ads, to eBay and Craigslist, turning hobbies into lucrative businesses. This has affected the sales of new goods and troubled manufacturers, who seek to curtail the growth of this secondary market. Most of these on-line resales should be protected by the first-sale doctrine, a well-known defense to infringement claims that applies across patent, copyright, and trademark law. Simply stated, once a manufacturer sells a product, it may not interfere with secondary sales of that product. Yet in an effort to stifle independent resellers, manufacturers are increasingly relying on spurious claims of trademark infringement. Specifically, they claim the reseller is causing initial source or sponsorship confusion based on the distribution channel, even though there is no confusion as to the source of the genuine good. Small resellers are faced with either defending themselves in court or ceasing operations. We argue that courts are weakening of the first-sale doctrine’s function of limiting manufacturers’ power to control alternative distribution channels of genuine goods. We assert that, in the context of the Internet secondary market, whether the distributor is affiliated with the manufacturer is irrelevant, as long as the goods are genuine and the reseller disclaims any association with the mark owner. Courts should apply a presumption of no affiliation between the reseller and the manufacturer, and actual deception should be required for any Lanham Act claim. We also propose a legislative strengthening of the trademark first-sale doctrine as applied to on-line sales so that it more closely resembles the doctrine’s application in a brick-and-mortar setting.Published in 20 George Mason Law Review 157 (2012)
Diagonal Public Enforcement
Authors: Clopton Zachary D.
Published: July 2018

70 Stanford Law Review 1077 (2018)Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more than a century. Foreign governments have used U.S. courts to enforce federal antitrust laws, state environmental laws, and civil rights statutes, among others. Recently, the U.S. Supreme Court heard a case in which the European Community sued U.S. tobacco companies in a federal court in New York under the Racketeer Influenced and Corrupt Organizations Act. Diagonal public enforcement occurs within the U.S. system as well. States routinely enforce federal laws in federal courts, and opportunities exist for states to enforce sister-state law, especially with respect to climate change and other cross-border issues.Despite these examples, some view diagonal public enforcement as a category error: Why would legislatures rely on foreign governments to enforce domestic law, and why would foreign executives take up the task? In light of these questions, this Article attempts to demystify diagonal public enforcement by exploring when it is consistent with the rational pursuit of legislative and executive interests. Legislatures are likely to authorize diagonal public enforcement in order to increase deterrence or influence global regulation. Executives are likely to forum shop for diagonal options in order to achieve better outcomes in foreign courts. These predictions explain existing patterns of enforcement and suggest a larger role for diagonal public enforcement in the coming years.Finally, this Article critically evaluates the costs and benefits of diagonal public enforcement at the interstate, intrastate, and individual levels. At first glance, diagonal public enforcement may seem to raise concerns about the diffusion of regulatory authority, the extraterritorial reach of domestic law, and the interference in relationships with foreign sovereigns. Upon closer scrutiny, however, diagonal public enforcement turns out to have the capacity to improve enforcement efficacy, promote the public interest, protect foreign and minority interests, and nudge gridlocked institutions. At least under certain conditions, therefore, these transgovernmental cases may be models for deeper cooperation and improved enforcement.
Death As a Bargaining Chip: Plea Bargaining and the Future of Virginia's Death Penalty
Authors: Douglass John G.
Published: July 2018

Virginia now averages less than a single death sentence each year, a far cry from its not-too-distant history as the second most active death penalty state in the nation. The numbers alone tempt us to forecast the death of Virginia's death penalty: a death by disuse. But those numbers leave much of the story untold. The plummeting number of death sentences is only the diminishing tip of a larger, more stable iceberg of capital case litigation. That iceberg is melting very slowly, if at all.
If It Walks Like Systematic Exclusion and Quacks Like Systematic Exclusion: Follow-Up on Removal of Women and African-Americans in Jury Selection in South Carolina Capital Cases, 1997-2014
Authors: Eisenberg Ann M. , Hritz Amelia C. , Royer Caisa E. , Blume John H.
Published: July 2018

68 South Carolina Law Review 373 (2017)This Article builds on an earlier study analyzing bases and rates of removal of women and African-American jurors in a set of South Carolina capital cases decided between 1997 and 2012. We examine and assess additional data from new perspectives in order to establish a more robust, statistically strengthened response to the original research question: whether, and if so, why, prospective women and African-American jurors were disproportionately removed in different stages of jury selection in a set of South Carolina capital cases.The study and the article it builds on add to decades of empirical research exploring the impacts (or lack thereof) of Batson and related jurisprudence on jury selection practices. The findings from the earlier study persisted with the stronger dataset in this study and are consistent with many previous studies’ findings indicating that capital jury selection procedures serve to systematically siphon off women and African-Americans through the death-qualification process and peremptory strikes.Key findings in the earlier study included that the prosecution struck 35% of strike-eligible black potential jurors, accounting for removing 15% of black venire members; that approximately 32% of black venire members were removed for opposition to the death penalty; and that the combined effects of these two stages prevented a total of 47% of black venire members from serving, compared to those stages preventing a combined 16% of the white venire pool from serving. Those findings have for the most part persisted with the stronger dataset here, with slight variations. Here, the prosecution struck 29% of strike-eligible black potential jurors (the average of a 33% strike rate for black men and 25% for black women), accounting for removing 13% of black venire members; approximately 24% of black venire members were removed for opposition to the death penalty; and the combined effects of these two stages prevented a total of 42% of black venire members from serving. This is compared to the prosecution striking 12.5% of strike-eligible white potential jurors, which equates to about 7% of the overall white venire pool; and 6.2% of white potential jurors being removed for anti-death views, with the two stages preventing, combined, an approximate 13% of white venire members from serving.
Equal Access and the Right to Marry
Authors: Tebbe Nelson , Widiss Deborah
Published: July 2018

158 University of Pennsylvania Law Review 1375 (2010)How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal protection law. Two other arguments have dominated litigation and adjudication so far, but both of them suffer from weaknesses. First, a liberty theory grounded in due process argues that everyone has a fundamental right to civil marriage. But civil marriage is a government program that states likely could abolish without constitutional difficulty. In that way, it differs from other family-related liberties such as the ability to procreate or engage in sexual intimacy. Second, an equality theory suggests that classifications on the basis of sexual orientation are constitutionally suspect. But that approach is unlikely to succeed in the Supreme Court or many state tribunals. Equal access, in contrast, requires states to justify laws that selectively interfere with civil marriage, regardless of any independent due process or classification-based equal protection violations. We show how this approach is grounded in precedent regarding intimate relationships, as well as in analogous law concerning voting and court access. Our proposal offers courts a workable way to evaluate the constitutionality of different-sex marriage requirements and a more satisfying conceptual basis for the right to marry generally. It also suggests a useful framework for thinking about recognition of other nontraditional family structures.
Law Libraries as Publishers: Choosing a Better Font
Authors: Keele Benjamin John
Published: July 2018

Benjamin J. Keele, Libraries as Publishers: Choosing a Better Font, ALL-SIS Newsletter 35(3), 12 (2016)
The Indirect Consequences of Expanded Off-Label Promotion
Authors: Zettler Patricia
Published: July 2018

The U.S. Food and Drug Administration’s (FDA) policies have been a battleground for litigation about First Amendment protections for commercial speech. In the last five years, the FDA’s position that “off-label” promotion of approved prescription drugs—when a manufacturer promotes a drug for a use for which the FDA has not approved it—leads to violations of the Federal Food, Drug, and Cosmetic Act has been subject to successful legal challenges. Although the merits of these off-label promotion decisions are well traversed in the literature, this Article explores the potential indirect consequences of recently-recognized protections for off-label promotion. This Article demonstrates that—as suggested in the dissenting opinion in United States v. Caronia, a high-profile 2012 case regarding off-label promotion—protections for off-label promotion might affect the FDA’s decision-making in areas other than drug promotion, and analyzes precisely what those effects could be in light of the FDA’s current statutory authority.Citation: Patricia J. Zettler, The Indirect Consequences of Expanded Off-Label Promotion, 78 Ohio St. L.J. 1053 (2017).
The Duty to Capture
Authors: Ohlin Jens David
Published: July 2018

The duty to capture stands at the fault line between competing legal regimes that might govern targeted killings. If human rights law and domestic law enforcement procedures govern these killings, the duty to attempt capture prior to lethal force represents a cardinal rule that is systematically violated by these operations. On the other hand, if the Law of War applies then the duty to capture is fundamentally inconsistent with the summary killing already sanctioned by jus in bello. The following Article examines the duty to capture and the divergent approaches that each legal regime takes to this normative requirement, and evaluates internal debates within these regimes over when a duty to capture might apply. At issue in these debates, regardless of the body of law that applies, is the scope and content of the concept of necessity, i.e. when is it truly necessary to target an individual with lethal force. The key question is whether a unified and trans-regime understanding of the concept could promote doctrinal unity across legal regimes. However, this Article concludes that the concept of necessity stubbornly defies such attempts; necessity is a term of art with a distinct history and meaning in each body of law, and unification of these meanings can only come at the cost of betraying the fundamental precepts of one legal regime over the other. Part I begins by examining the scope of international humanitarian law and concludes that its application is often unduly constrained; a new analysis is offered of the classification of armed conflicts, the level of organization required before a non-state actor can be a party to an armed conflict, and the legal geography of armed conflict. Part II examines the concept of necessity and concludes that military necessity (destruction of “life and limb” related to the war aim) is fundamentally incompatible with human rights law and its understanding of necessity as the least-restricti ve means. Finally, Part III concludes that the IHL regime, and its permissive notion of military necessity, should apply when the state is acting as a belligerent against other co-equal belligerents, but that human rights law, and its more restrictive notion of necessity, should apply when the state acts as a sovereign over its own subjects.Published: Minnesota Law Review, vol. 97, no. 4 (April 2013)
Torture, Impunity, and the Need for Independent Prosecutorial Oversight of the Executive Branch
Authors: Quigley Fran
Published: July 2018

Fran Quigley, Torture, Impunity, and the Need for Independent Prosecutorial Oversight of the Executive Branch, 20 Cornell J. L. & Pub. Pol'y 271 (2010)Allegations of Executive Branch misconduct present an inherent conflict of interest because prosecutorial discretion is invested in a U.S. Attorney General appointed by – and serving at the pleasure of – the President. Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute have posited that checks on executive power provided by the Legislative Branch, the Judiciary, and political pressure will overcome any potential conflicts of interest. This sanguine view of adequate Executive Branch oversight was put to the test when high-level members of the George W. Bush Administration authorized acts of torture. After widespread public disapproval, Congress and the courts responded with efforts to rein in the Administration’s actions. However, the Department of Justice under the Bush Administration not only refused to investigate and prosecute allegations of sanctioning torture, but its attorneys also led the efforts to overcome congressional, judicial, and popular resistance to the Executive Branch conduct – and did so while explicitly acknowledging that the Executive Branch could expect little or no judicial oversight for its actions. Ultimately, the President who sanctioned torture left office, and the voters elected a President who expressed sharply different views on torture. However, the subsequent Administration of President Barack Obama, although affiliated with a different party and on record as opposed to acts of torture sponsored by the previous Administration, has also declined to pursue prosecution of high-level members of the Bush Administration. This most recent development shows that the conflict of interest presented by presidential control over Executive Branch prosecution transcends predictable concerns of self-preservation. The conflict of interest also highlights the natural desire of a sitting President to avoid prosecutions of previous executive officials when such prosecutions would consume political capital needed for the President’s broader legislative and foreign policy agendas. When it comes to controlling Executive Branch criminal conduct, the current structure designed to provide checks and balances comes up empty and thus must be reformed. The most direct and effective reform would be the direct election of the U.S. Attorney General. Even less precise remedies, such as a revived and improved independent counsel or Congress enacting provisions to break up the current monopoly over Executive Branch prosecution, would be significant improvements over the current system, which mocks the principle of equal justice for all.
Four Unconstitutional Constitutions and their Democratic Foundations
Authors: Albert Richard
Published: July 2018

Cornell International Law Journal: Vol. 50 : No. 2 , Article 1.The present fascination with the global phenomenon of an unconstitutional constitutional amendment has left open the question whether a constitution can be unconstitutional. To declare an entire constitution unconstitutional seems different in both kind and degree from invalidating a single amendment for violating the architectural core of a constitution, itself undoubtedly an extraordinary action. In this Article, I illustrate and evaluate four different conceptions of an unconstitutional constitution. Each conception draws from a different constitution currently in force around the world, specifically the Constitutions of Canada, Mexico, South Africa and the United States. Despite their unconstitutionality in different senses of the concept, each constitution is nonetheless rooted in democratic foundations. The strength of these foundations, however, varies as to each.
The Finance Franchise
Authors: Hockett Robert C. , Omarova Saule T.
Published: July 2018

102 Cornell Law Review 1143 (2017)The dominant view of banks and other financial institutions is that they function primarily as intermediaries, managing flows of scarce funds from those who have accumulated them to those who have need of them and can pay for their use. This understanding pervades textbooks, scholarly writings, and policy discussions – yet it is fundamentally false as a description of how a modern financial system works. Finance today is no more primarily “intermediated” than it is pre-accumulated or scarce.This Article challenges the outdated narrative of finance as intermediated scarce private capital and maps the basic structure and dynamics of the financial system as it actually operates. We begin by developing a three-part taxonomy of ways to model financial flows – what we call the “credit-intermediation,” “credit-multiplication,” and “credit-generation” models of finance. We show that only the last model captures the core dynamic of a complex modern financial system, and that the ultimate source of credit-generation in any such system is the sovereign public, acting primarily through its central bank and treasury. We then trace the operation of this dynamic throughout the financial system, from the banking sector, through the capital and “shadow banking” markets, all the way out to the “disruptive” frontier of peer-to-peer digital finance.What emerges from this retracing of the financial system’s operative logic is a comprehensive view of modern finance as a public-private franchise arrangement. On this view, the sovereign public acts effectively as franchisor, licensing private financial institutions to earn rents as franchisees in dispensing a vital public resource: the public’s monetized full faith and credit. We conclude the Article by drawing out some of the potentially transformative analytic and normative implications of a paradigmatic shift from the orthodox theory of financial intermediation to the franchise view of finance.
The Validity of International Sales Contracts: Irrelevance of the 'Validity Exception' in Article 4 Vienna Sales Convention and a Novel Approach to Determining the Convention's Scope
Authors: Schroeter Ulrich G.
Published: July 2018

in: Ingeborg Schwenzer and Lisa Spagnolo (eds.), Boundaries and Intersections: The 5th Annual MAA Schlechtriem CISG Conference, The Hague: Eleven International Publishing (2014), pp. 95-117Throughout the history of uniform law for international sales, the rules governing the validity of cross-border sales contracts have proven particularly difficult to harmonize because they differ greatly between the various domestic laws. This dilemma inter alia resulted in the "validity exception" in Article 4 sentence 2(a) of the United Nations Convention for Contracts for the International Sale of Goods of 11 April 1980 (CISG) being adopted as compromise, a provision that supposedly excludes such matters from the scope of the uniform sales law. The present article attempts to demonstrate that this provision in fact provides little assistance in deciding which validity-related matters are governed by the Convention and which are not, and that the "validity exception" is therefore in truth irrelevant.It continues by outlining a novel two-step approach to determining the CISG's scope with respect to validity issues. According to this approach, a domestic law rule (pertaining to validity matters or other issues) is displaced by the Convention if (1) it is triggered by a factual situation which the Convention also applies to (the "factual" criterion), and (2) it pertains to a matter that is also regulated by the Convention (the "legal" criterion). Only if both criteria are cumulatively fulfilled, the domestic law rule concerned overlaps with the Convention’s sphere of application in a way that will generally result in its preemption.In the last part of the article, three issues that may be viewed as concerning the "validity" of international sales contracts are discussed, each in turn being viewed through the traditional lenses of Article 4 CISG and the alternative two-step approach. These issues are: Mistakes and their effect upon CISG contracts; Consumer rights of withdrawal; The so-called "button solution" under recent e-commerce laws.
An Introduction to Abusive Legalism
Authors: Cheung Alvin Y.H.
Published: July 2018

This project suggests that one response to growing scrutiny of authoritarian tactics is to turn to sub-constitutional public law, or private law. By using “ordinary” law in ways that seem consistent with formal and procedural aspects of rule of law, autocrats can nonetheless frustrate the rule of law and consolidate power, while also avoiding drawing unfavourable attention to that consolidation. I refer to this phenomenon as “abusive legalism.”This project makes three main contributions to the scholarship on authoritarianism. First, it focuses on the use of “ordinary,” sub-constitutional law as a means of maintaining autocratic power, an area which has been under-examined in existing work. Second, it makes the case for a normative critique of such tactics based on a relatively modest conception of the rule of law, rather than from the perspective of liberal democratic norms. Third, it offers a tentative framework for categorising and understanding abusive legalist tactics.