cssi/SciSciGPT-SciSciNet huggingface dataset:
The Copymark Creep: How the Normative Standards of Fan Communities can Rescue Copyright

Copyrighted works are increasingly perceived by society as serving a purpose traditionally considered to be held by trademarks. Copyrighted works act as valuable brands within a consumer marketplace, protected as corporate assets and defined to protect commercial interests. This Article argues that the growing overlap between copyright and trademark has resulted in a “copymark creep,” evident in the judicial decisions that have confronted the issues. This overlap has tipped the balance away from copyright’s purported constitutional goal. Copyright is understood to benefit the public by providing a public domain and protecting certain free speech rights, whereas the trademarking of copyright chips away at both of those benefits. The lack of bright line rules in the copyright arena only adds to the uncertainty and leads to the stifling of more speech, at further detriment to the public. This Article proposes that the solution to this problem can be found on the Internet through fan communities. Fan communities employ bright line rules to create a system that is clearer than that found in the judicial precedents, rather than the anything goes anarchy they are frequently perceived as. These communities have instinctively turned toward trademark protections in the copyright context, relying on disclaimers to dispel confusion and on a lack of commercialism to shelter them from infringement attacks. This  Assistant Professor of Law, The University of Mississippi School of Law; J.D., Harvard Law School; B.A., Boston College. Professor Lantagne would like to thank Phil Broadhead, Antonia Eliason, Jonathan Gienapp, Kris Gilliland, Chris Green, Desiree Hensley, Jack Nowlin, Niki Pace, and Steven Skultety for their helpful comments as this article progressed. Professor Lantagne would also like to thank the participants in the New Scholars Forum at the Southeastern Association of Law Schools Annual Conference in 2014, who provided valuable feedback on a very early draft of this article. 1 Lantagne: The Copymark Creep Published by Reading Room, 2015 460 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 32:2 importation of benchmarks more strongly associated with trademark law both acknowledges the overall copymark creep and finds a way to preserve copyright’s goals in the face of the creep, resulting in a flourishing creative community. Finally, fan communities use these benchmarks to set bright line rules for themselves that encourage speech that might otherwise be hesitant in the face of legal uncertainty. If we are going to continually expand copyright law, we should at least be careful to check it with those doctrines we use to keep trademark from swallowing the cultural dialogue. Such an impulse is the only one that makes sense to preserve the effectiveness of copyright as a method of encouraging creativity. Otherwise, we run the risk of using copyright as merely a backstop to trademark law and lose sight of its different overall goal: to encourage creativity, not commercial gain.
The Easy Case for the Priority of Secured Claims in Bankruptcy

For years, scholars have questioned the efficiency of secured debt, many suggesting that it transfers uncompensated risk to unsecured creditors. However, prior writing on the value of secured debt ignores the distinction between the use and the availability of secured credit. As a result, previous models of secured debt erroneously assume that a debtor that can borrow on an unsecured basis will nevertheless borrow on a secured basis to reduce interest cost. This Article combines theory, experience, and empirical tests to show that earlier models do not reflect the expected behavior of an economically rational debtor. These models fail to recognize that the most important form of secured debt, new money credit secured by collateral, tends to create value for unsecured creditors as well as for the debtor. A debtor that can borrow unsecured has an economic incentive not to prematurely encumber its assets because doing so gives away value in an amount—which the Article calls Theta—that exceeds
Status of Bulk Water Exports Under NAFTA

The North American Free Trade Agreement ("NAFTA") went into effect on New Year’s Day 1994. The signatory members are the United States, Mexico, and Canada. While the purpose of NAFTA is to promote investment in those regions, the treaty does not establish whether water is a saleable good. The text neither mentions the word "water," nor does it expressly prohibit transactions involving water. This terse dichotomy leads to the following issue.Can freshwater reserves be extracted for sale or preserved as natural resources?
Identification of Preferences and Evaluation of Income Tax Policy

The merits of alternative income tax policies depend on the population distribution of preferences for income, leisure, and public goods. Standard theory, which supposes that persons want more income and more leisure, does not predict how they resolve the tension between these desires. Empirical studies of labor supply have been numerous but have not shed much light on the matter. A persistent problem is that empirical researchers have imposed strong preference assumptions that lack foundation. This paper examines anew the problem of inference on preferences and considers the implications for comparison of tax policies. I first perform a basic revealed-preference analysis that imposes no assumptions on the preference distribution beyond the presumption that persons prefer more income and leisure. This shows that observation of a person's labor supply under a status quo tax policy may bound his labor supply under a proposed policy or may have no implications, depending on the shapes of the two tax schedules and the location of status quo labor supply. I next explore the identifying power of two assumptions restricting the population distribution of income-leisure preferences. One assumes that groups of persons who face different choice sets have the same distribution of preferences, while the other adds restrictions on the shape of this distribution. I then address utilitarian policy comparison with partial knowledge of preferences. Partial knowledge of preferences implies partial knowledge of the welfare function. Hence, it may not be possible to rank policies.
Introduction: Developments in Election Law

This is a brief introduction to the Loyola of Los Angeles Law Review developments issue, which focuses in Volume 42 on election law topics. The first half of this introduction provides an update on the state of election law. It compares the state of election law as a discipline now to its state 10 years ago, when I wrote the introduction to the Loyola of Los Angeles Law Review symposium on "Election Law as Its Own Field of Study." The second half of this introduction describes the five new important student works contained in the developments issue. Sabina Jacobs, in "The Voting Rights Act: What Is the Basis for the Section 5 Baseline?," examines a provocative statutory interpretation of the Voting Rights Act suggested by Chief Justice Roberts during oral argument in Riley v. Kennedy. Julien Kern, in "As-Applied Constitutional Challenges, Class Actions, and Other Strategies: Potential Solutions to Challenging Voter Identification Laws After Crawford v. Marion County Election Board," examines the prospects for litigation in future voter identification cases. Molly McLucas, in "The Need for Effective Recusal Standards for an Elected Judiciary," argues for specific recusal standards in light of the Supreme Court's recent opinion in Caperton v. Massey. Joshua Rosenberg, in "Defining Population for One Person, One Vote," analyzes a fascinating question recently brought to the fore by Judge Guido Calabresi of the United States Court of Appeals for the Second Circuit in his opinion in Kalson v. Paterson. Finally, in "Davis v. Federal Election Commission: Muddying the Clean Money Landscape," Emily C. Schuman examines a potential (intended or unintended) consequence for public financing plans of the Supreme Court’s recent decision in Davis v. Federal Election Commission.
Reactions to Dividend Changes Conditional on Earnings Quality

We investigate if market participants' reactions to dividend changes are related to “earnings quality,” defined as the extent to which a firm's past earnings are associated with its future cash flo...
The Feasibility of Litigation Markets

INTRODUCTION 171 I. THE SCHOLARLY PROJECT: A MARKET SOLUTION TO A PROCEDURAL PROBLEM 174 II. THE PRACTICAL PROJECT: CONSTRUCTING A MARKET IN LITIGATION FINANCE 178 III. PRACTICAL LESSONS FOR THE SCHOLARLY PROJECT 181 A. PRACTICAL REINFORCEMENT FOR THE SCHOLARLY PROJECT 181 B. SURMOUNTING POTENTIAL OBSTACLES 184 C. CHALLENGES NOT ANTICIPATED IN THE SCHOLARSHIP 190 CONCLUSION 194
Luck v. Justice: Consent Intervenes, but for Whom?

Consent in civil settlements should improve access to and delivery of justice by making luck (chance, contingencies, arbitrariness) less significant in process and outcomes. Consent-based processes and private settlement are supposed to support justice by redistributing decision-making power away from judicial-coercive authorities to the people most affected by the dispute. But consent today has become little more than a pro forma process lever for bypassing regulation, litigation, and other more formal structures. No longer does consent serve as a reliable bulwark against luck distortions and arbitrariness in legal systems. Opening shrinkwrap (consent to arbitrate!), being shunted into compulsory mediation (consent to mediate!), and showing up at a town hall (consent to public sector decision-making!) are troubling examples of how we are stretching the notion of consent beyond recognition. And the more we stretch consent, the more alienated we become from our own authentic participation, engagement, and empowerment in state and corporate contexts.Consent needs repair. To that end, this Article makes two new contributions: one, describing how theories of moral and legal luck can illuminate consent problems in in civil settlements; and two, proffering new participant-centered ideas about how to manage consent problems in alternative contexts.
The Case for Punitive Damages in Contracts

The majority of American jurisdictions do not allow punitive damages for breach of contract unless the breach constitutes an independent tort. Increasingly, courts and commentators have relied on the theory of “efficient breach” to explain the rule against punitive damages in contracts. In this Article, Professor Dodge argues that economic efficiency supports a different rule—one allowing punitive damages for any willful breach of contract. Willful breaches fall into two categories: those that are “opportunistic” and those that are “efficient.” An “opportunistic” breach does not increase the size of the economic pie; the breaching party gains simply by capturing a larger share of the pie at the expense of the nonbreaching party. An “efficient” breach, by contrast, increases the size of the pie, allowing the breaching party to compensate the nonbreaching party and still come out ahead. Deterring opportunistic breaches with the threat of punitive damages is efficient because such breaches by definition do not increase societal wealth. Thus, punitive damages should be routinely available in cases of op† Associate Professor, University of California, Hastings College of the Law. B.A., Yale College, 1986; J.D., Yale Law School, 1991. I would like to thank Vik Amar, Ian Ayres, Ash Bhagwat, Joe Grodin, Loren Hemachandra, Chuck Knapp, Doug Laycock, David Levine, Calvin Massey, Ugo Mattei, Richard Posner, H.G. Prince, Tom Ulen, and Bill Wang for comments on an earlier draft, as well as participants in the Hastings Works-in-Progress Program. Chad Elliston and John O’Connor provided outstanding research assistance. DODGE TO PRINTER.DOC 04/29/99 4:24 PM 630 DUKE LAW JOURNAL [48:629 portunistic breach, such as pretextual termination, stonewalling, and bad faith refusal to pay a debt. Efficiency also supports extending liability for punitive damages to those breaches that are, in theory, “efficient.” The threat of punitive damages will not require inefficient performance because the potentially breaching party may negotiate with the other party for a release. Relying on Calabresi and Melamed’s distinction between “property rules” and “liability rules,” Professor Dodge shows that requiring the potentially breaching party to negotiate for a release is more efficient than allowing her to breach and pay damages because the transaction costs of negotiation, while not negligible, are generally lower than the assessment costs of litigation. He also explains why other forms of “property rule” protection, like specific performance and penalty clauses, are insufficient to ensure that negotiation occurs before breach.
Troubling tradeoffs in the Human Development Index

The 20th Human Development Report has introduced a new version of its famous Human Development Index (HDI). The HDI aggregates country-level attainments in life expectancy, schooling and income per capita. Each year's rankings by the HDI are keenly watched in both rich and poor countries. The main change in the 2010 HDI is that it relaxes its past assumption of perfect substitutability between its three components. However, most users will probably not realize that the new HDI has also greatly reduced its implicit weight on longevity in poor countries, relative to rich ones. A poor country experiencing falling life expectancy due to (say) a collapse in its health-care system could still see its HDI improve with even a small rate of economic growth. By contrast, the new HDI's valuations of the gains from extra schooling seem unreasonably high -- many times greater than the economic returns to schooling. These troubling tradeoffs could have been largely avoided using a different aggregation function for the HDI, while still allowing imperfect substitution. While some difficult value judgments are faced in constructing and assessing the HDI, making its assumed tradeoffs more explicit would be a welcome step.
All Change for the Digital Economy: Copyright and Business Models in the Early Eighteenth Century

This article argues that, contrary to contemporary assertions that today's debates over copyright are the product of outdated business models being threatened by innovators, this struggle between competing economic interests and different business models has existed since before the Statute of Anne was passed in 1710. Examining features of the eighteenth century book trade, and some of the early litigation that arose under the Statute of Anne, the paper draws out a number of features of continuity between the eighteenth century and modern times, as well as emphasizing points of difference. It looks at the way that early interpretations of the legislation sought to mediate between different interests in the operation of copyright law, as well as the ongoing role played by so-called 'copyright industries' in shaping that law.
The Influence of Oral Arguments on the U.S. Supreme Court

We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer's oral argument affect the justices' final votes on the merits? We answer these questions by utilizing a unique data source—evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun's grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun's ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument. We further show that the probability of a justice voting for a litigant increases dramatically if that litigant's lawyer presents better oral arguments than the competing counsel. These results therefore indicate that this element of the Court's decisional process affects final votes on the merits, and it has implications for how other elite decision makers evaluate and use information.
“Dave...I can assure you ...that it’s going to be all right ...” A Definition, Case for, and Survey of Algorithmic Assurances in Human-Autonomy Trust Relationships

People who design, use, and are affected by autonomous artificially intelligent agents want to be able to trust such agents—that is, to know that these agents will perform correctly, to understand the reasoning behind their actions, and to know how to use them appropriately. Many techniques have been devised to assess and influence human trust in artificially intelligent agents. However, these approaches are typically ad hoc and have not been formally related to each other or to formal trust models. This article presents a survey of algorithmic assurances, i.e., programmed components of agent operation that are expressly designed to calibrate user trust in artificially intelligent agents. Algorithmic assurances are first formally defined and classified from the perspective of formally modeled human-artificially intelligent agent trust relationships. Building on these definitions, a synthesis of research across communities such as machine learning, human-computer interaction, robotics, e-commerce, and others reveals that assurance algorithms naturally fall along a spectrum in terms of their impact on an agent’s core functionality, with seven notable classes ranging from integral assurances (which impact an agent’s core functionality) to supplemental assurances (which have no direct effect on agent performance). Common approaches within each of these classes are identified and discussed; benefits and drawbacks of different approaches are also investigated.
Earnings Management Following Duality-Creating Successions: Ethnostatistics, Impression Management, and Agency Theory

We explore impression and earnings management via reasoning and methods grounded in ethnostatistics and agency theory. We hypothesized that earnings management occurs more frequently following dual...
Brain Drain: Are Mutual Funds Losing Their Best Minds?

I investigate the effect of labor market competition from hedge funds on the mutual fund industry. I find evidence of an increasing flight of top-performing young managers from mutual funds, a drop in mutual fund returns, and deterioration in recruiting standards. These findings are not explained by differences in fund characteristics, risk loadings, fund styles, or the intervening dot-com bubble. The results suggest that industry-specific government regulations, especially ones focused on employee compensation, can lead to brain drains that have crippling effects on the health of the regulated sector.
The Tropics Exploited: Risk Preparedness and Corporate Social Responsibility in Offshore Energy Development

Soaring energy demands and increasing technological innovation have led to the rapid exploitation of offshore oil and gas exploration and development. This Article seeks to examine elements of risk preparedness and corporate social responsibility in the context of the underwater natural gas pipeline in the Eastern Caribbean and the exploration of Florida’s potential offshore energy reserves. I discuss these two case studies to illustrate the prevalence of emerging regional energy corridors in previously unfathomable tropical and subtropical locales known for tourism-intensive commercial activity. While images of environmental degradation of the 2010 BP oil spill remain entrenched in the collective consciousness, oil and gas operators are continuing to forge ahead with developing natural resource plays. This Article outlines an agenda for managing the inevitable exploitation of natural resources through sustainable development principles.
Reconceptualizing Criminal Law Defenses

In 1933, one of the leading theorists of the criminal law, Jerome Michael, wrote openly of the criminal law "as an instrument of the state." Today, criminal law is largely allergic to claims of political theory; commentators obsess about theories of deterrence and retribution, and the technical details of model codes and sentencing grids, but rarely speak of institutional effects or political commitments. In this article, the author aims to change that emphasis and to examine the criminal law as a tool for governance. Her approach is explicitly constructive: it accepts the criminal law that we have, places it in a counterfactual perspective, and asks what this means for institutional arrangements -- our relations to each other and to the state. This focus is then applied to reconceptualize a variety of criminal law defenses, ranging from self-defense and insanity to necessity and provocation. In the analysis of these doctrines, the author argues that defenses cannot be fully explained by the standard inquiry into individual minds, characters, or virtues. Instead, defenses reflect the need for a liberal polity to control vengeance. She goes on to argue that the standard view may yield a "paradox" of individualization which, in some cases, may actually work to the detriment of individuals. To undertake this kind of inquiry invites particular avenues of inquiry in the criminal law that have never received enough support, such as history and comparative law; and provides a new perspective on a variety of theoretical developments of the past decade, including the collapse of the harm principle, the increasing importance of social norm scholarship, and the impact of feminism on the substantive criminal law.
EPA’s Clean Power Plan: An Emerging New Cooperative Federalism?

The Obama Administration attracted significant attention in June 2014 when it proposed widely varying greenhouse gas emission-reduction targets for each state’s electricity sector. This article examines the bases for these varying targets, concluding that they may present a new model of cooperative federalism, in two senses. Under cooperative federalism’s traditional structure, the federal government is the standard-setting body and states are the implementers of those standards. Under the Environmental Protection Agency (EPA) Clean Power Plan, however, the federal government uses state policies to provide the content for the federal standards, essentially “federalizing” state environmental policies. The Plan also pegs state emissions targets to a state’s capacity to reduce emissions, as opposed to a state’s contribution to greenhouse gas concentrations. EPA’s approach unquestionably enhances states as laboratories of democracy and addresses collective active problems. It also facilitates the economic and political feasibility of climate-change mitigation efforts. Nevertheless, for states and environmental policymaking going forward, it may also present issues of fairness and perverse incentives.
A Home with Dignity: Domestic Violence and Property Rights

This Article argues that the legal system should do more to address intimate partner violence and each party’s need for a home for several reasons. First, domestic violence is a leading cause of homelessness and family homelessness. Second, the struggle over rights to a shared home can increase the violence to which the woman is subjected. And third, a woman who decides that continuing to share a home with the person who abused her receives little or no system support, despite the evidence that this decision could most effectively reduce the violence. The legal system’s current failings result from its limited goals – achieving a narrow concept of short-term safety premised on physical separation in the home. This Article argues for creating a comprehensive theory that addresses the rights to a home when there is domestic violence by focusing on each party’s dignity, the importance of home and ending domestic violence, as opposed to merely “safety.” There are several laws that address the home when there is domestic violence. The civil protection order (CPO) laws are the most prevalent; they exist in all fifty states and Washington, D.C. While most offer a vacate remedy to exclude the perpetrator of abuse from the shared home, they do so with varying effectiveness and petitioner success rates. Also, very few provide any economic support to maintain the home or find a new home if respondent is not excluded. And all 51 jurisdictions provide very few options to support a woman’s choice to stay in the shared home with her abuser, despite her decision that it would best end the domestic violence. At the same time, the CPO vacate provisions clash with property law in problematic ways for the respondents. Thirty-four jurisdictions permit vacating a perpetrator from his home, despite being the sole owner of the property. And there is a trend of making these once-temporary vacate orders permanent. This clash can make the legal system seem unfair to perpetrators, which can lower their rate of compliance with the CPO. As a result, perpetrators may increase their violence against women subjected to abuse. This Article proposes a renewed anti-domestic violence movement that is focused on the dignity of and greater home access for both parties. Such a movement could focus on expanding existing laws that would both promote dignity and ending domestic violence while ensuring greater home access. For instance, one proposal is for more thorough court fact finding in making the vacate order that includes the abuse as well as each party’s risk of potential homelessness and the extent of their personhood interests 12/15/2015 A HOME WITH DIGNITY 3 in the home. Another proposal is to increase the number of home options for the parties by creating shelters for men who are abusive, more jurisdictions that require alternative housing through a CPO and increased funding for low-barrier battered women shelters and transitional housing. 4 Margaret E. Johnson 12/15/15
Race and Essentialism in Gloria Steinem

This short essay was solicited for the 20th Anniversary Critical Race Theory Workshop in 2009. It celebrates Angela Harris’s trail blazing essay, Race and Essentialism in Feminist Legal Theory. Harris argues against essentialism, which is the idea that we can identify characteristics of identity groups that describe their fundamental experiences and interests. This essay analyzes an important moment in the 2008 Presidential campaign. Just before the New Hampshire Democratic primary, which was predicted to effectively knock Senator Hillary Clinton out of the field, famous feminist Gloria Steinem published an editorial entitled Women Are Never Frontrunners. The editorial contends that a woman could never succeed on front-running Senator Barack Obama’s credentials and that Clinton was being harmed by sexism. This essay argues that Steinem’s editorial exhibits essentialism. Applying masculinities studies theory to the campaign shows that masculinity played a more complicated role for Obama than simply being an advantaging factor. Rather, because of his particular masculine identities, Obama had to simultaneously avoid the stereotype of the angry black man and face criticism for being too feminine.
Generic deformations of the colored sl.N/-homology for links

We generalize the works of Lee [12] and Gornik [6] to construct a basis for generic deformations of the colored sl.N /–homology defined in [24]. As applications, we construct nondegenerate pairings and co-pairings which lead to dualities of generic deformations of the colored sl.N /–homology. We also define and study colored sl.N /–Rasmussen invariants. Among other things, we observe that these invariants vanish on amphicheiral knots and discuss some implications of this observation.
Overruling the Jury: Duncan v. GMC and Appellate Treatment of Hostile Work Environment Judgments

In August of 1994, Diana Duncan began work as a technical training clerk at the General Motors Corporation manufacturing plant in Wentzville, Missouri, placed through the Junior College District of St. Louis. Within the first two weeks of her employment, James Booth, the GMC employee who had first told her about the available clerk position, asked Duncan to meet with him at a restaurant during work hours. Although it is unclear whether Booth actually had supervisory powers over Duncan, she and the other workers employed through the Junior College District believed that he had the authority to promote them, terminate them, or change their salaries.1 At the restaurant, Booth sexually propositioned Duncan.2 After she rebuffed his advances, Booth's conduct towards Duncan at work became negative and often inappropriate. He repeatedly requested that she use his computer in order to use a particular software program, after he set the computer's screensaver to be an image of a naked woman.3 He arranged to have Duncan mock-arrested for a charity fundraiser, even though he was told Duncan had just prosecuted a person who assaulted her and then threatened to have her falsely arrested. After participants were "arrested" at the GMC plant, they were held until someone paid their "bail" in the form of a donation. Booth paid Duncan's bail, but rather than taking her back to work as she requested, he drove her to a bar across the street from the apartment where she had been assaulted.4 When Duncan requested a promotion to a position as illustrator, rather than
The Common Law and Economic Growth: Hayek Might Be Right

Abstract Recent finance scholarship finds that countries with legal systems based on the common law have more developed financial markets than civil‐law countries. The present paper argues that finance is not the sole, or principal, channel through which legal origin affects growth. Instead, following Hayek, I focus on the common law’s association with limited government. I present evidence that common‐law countries experienced faster economic growth than civil‐law countries during the period 1960–92 and then present instrumental variables results that suggest that the common law produces faster growth through greater security of property and contract rights.
Vote‐Buying and Reciprocity

While vote-buying is common, little is known about how politicians determine who to target. We argue that vote-buying can be sustained by an internalized norm of reciprocity. Receiving money engenders feelings of obligation. Combining survey data on vote-buying with an experiment-based measure of reciprocity, we show that politicians target reciprocal individuals. Overall, our findings highlight the importance of social preferences in determining political behavior.
Re-Problematizing Anger in Domestic Violence Advocacy

Feminist domestic violence advocacy has been an important venue for theorizing about how to apply concepts like individual autonomy and how to intervene strategically and effectively into the dominant, patriarchal legal system. Consistently, feminists have insisted that a woman's actual, lived experiences must form the basis both for her understanding of the world and for solutions to problems that she faces in the world. More particularly for feminist domestic violence advocacy, scholars and advocates insisted that a woman subjected to abuse1 should have the fullest sense of agency possible as she considers how to move forward in her life in light of the domestic violence she has, or continues to, experience. As part of privileging individual autonomy, feminist domestic violence advocates have been exceedingly reluctant, if not adamant, that others working with a woman subjected to abuse should resist interceding in autonomous choices. Feminist domestic violence advocates also have thoughtfully and thoroughly critiqued the strategic choices that earlier feminists made about how to reform the legal system as choices that lead to a system that purports to be woman-centric, but, in fact, is rigid and disrespectful to true autonomous choice. In crafting their discourse against the current domestic violence legal response system, scholars and advocates eliminated important moments of nuance. This Article seeks to reintroduce such nuance by focusing on one feature of domestic violence--the role of anger for a woman subjected to abuse. I hope to re-problematize anger by arguing that one can be respectful of the experiences of a woman subjected to abuse, including her experience of anger, while at the same time insisting that acting out of anger is ineffective. My approach to anger is intentionally pragmatic and instrumental. I embrace feminism's insistence that real experiences matter. However, I illuminate how the rush from emotion to action is deeply problematic, and particularly so in the case of anger. While feminist discourse about anger has not been nuanced, I suggest that feminist domestic violence practice already contains within it the seeds of a productive solution, and that the productive solution is to craft space so that the arising of the experience or emotion of anger is disrupted and separated from action driven by that experience. I conclude by offering two possible discursive frames that can be used to take advantage of the disruptive moment between the arising of an experience or emotion and action upon those feelings.... Language: en
DO ROCKETS RISE FASTER AND FEATHERS FALL SLOWER IN AN ATMOSPHERE OF LOCAL MARKET POWER? EVIDENCE FROM THE RETAIL GASOLINE MARKET*

This study explores the possibility that local market power influences the observed asymmetric relationship between changes in wholesale gasoline costs and changes in retail gasoline prices. I exploit an original data set of weekly gas station prices in Southern California from September, 2002 to May, 2003, and take advantage of detailed station and local market level characteristics to determine the extent to which geographic and product differentiation influence price response asymmetry. I find that brand identity, proximity to rival stations and local market features and demographics each influence a station's predicted price-response asymmetry.
Changing the Federal Tax Philosophy: A National Value-Added Tax or Retail Sales Tax?

Moving the federal government from its heavy reliance on taxes on income and profits to taxes on general consumption has been proposed as a way to improve equity, economic efficiency, and transparency of the tax system. The value-added tax and the retail sales tax offer economically equivalent approaches to general consumption taxation, differing only in how they are administered. A comparison of the two taxes as they now operate, however, suggests considerable advantage for the value-added tax as a national revenue source. Only in terms of requiring fewer businesses to collect the tax is there an advantage to the retail sales tax. The value-added tax is superior or equivalent to the retail sales tax in other important fiscal criteria.
Warped Geographies of Development: The Internet and Theories of Economic Development

The Internet is frequently touted as the engine of a new revolution that can eliminate poverty and bring prosperity to producers of crafts and commodities in economically impoverished areas of the world. ‘E-commerce’, ‘commodity chains’, the ‘digital divide’, and ‘disintermediation’ are all inherently geographical ideas, as well as being integral components to many theories of economic development. However, despite a movement by geographers to recognize the nuanced relationships between the Internet and geography, such ideas have remained largely absent from much development discourse. By reviewing writing on geographical concepts such as ‘commodity chains’, the ‘digital divide’, ‘disintermediation’, and ‘e-commerce’ within the contexts of contemporary debates about development, this article highlights some of the geographic assumptions wrapped up in a range of theories of development and shows how these spatial assumptions matter. The article concludes by reflecting on alternate geographic metaphors that could be employed within development discourse to better express the complicated and spatially contingent relationships between information and communication technologies, geography, and economic development.
Sinners or Saints: Child Soldiers and the Persecutor Bar to Asylum After Negusie v. Holder

There are an estimated 250,000 child soldiers—boys and girls under the age of eighteen—who are being compelled to serve in more than fifteen conflicts worldwide. Child soldiers are forcibly recruited or abducted and are used as combatants, messengers, porters, cooks, and to provide sexual services. International law now recognizes child soldiers as victims of war crimes, deserving of state compassion. The U.S. Department of Homeland Security, however, has opposed asylum for child soldiers on the grounds that their military service subjects them to the “persecutor bar.” Barring child soldiers from asylum protection penalizes them for having been the victims of a crime and undercuts all efforts to protect them. This Article argues that a per se bar of child soldiers from asylum contradicts the United States’ adherence to the international view that the use of child soldiers constitutes a violation of human rights, domestic laws declaring recruitment of child soldiers a crime, and active support of the eradication of the use of child soldiers. Instead, child soldiers should be able to argue that their conduct falls beyond the scope and intent of the persecutor bar. This Article concludes by offering an approach to determine when a child solider should be subjected to the persecutor bar that balances the seriousness of the child soldier’s actions against the circumstances under which he or she was recruited.
Taxes and the backdating of stock option exercise dates

Abstract We investigate the backdating of stock option exercises . Before SOX, we find evidence that some exercises were backdated to days with low stock prices. Consistent with a tax-based incentive, these suspect exercises are more likely when the personal tax savings from backdating are higher. However, suspect CEO exercises generate average (median) estimated tax savings of $96,000 ($7,000). These savings appear modest relative to the costs insiders and firms face. We find that the likelihood of a suspect exercise increases in the likelihood of option grant backdating. This suggests that agency problems associated with backdating permeate option compensation in some firms.
Fuzzy Sets on Shaky Ground: Parameter Sensitivity and Confirmation Bias in fsQCA

Scholars have increasingly turned to fuzzy set Qualitative Comparative Analysis (fsQCA) to conduct small- and medium-N studies, arguing that it combines the most desired elements of variable-oriented and case-oriented research. This article demonstrates, however, that fsQCA is an extraordinarily sensitive method whose results are worryingly susceptible to minor parametric and model specification changes. We make two specific claims. First, the causal conditions identified by fsQCA as being sufficient for an outcome to occur are highly contingent upon the values of several key parameters selected by the user. Second, fsQCA results are subject to marked confirmation bias. Given its tendency toward finding complex connections between variables, the method is highly likely to identify as sufficient for an outcome causal combinations containing even randomly generated variables. To support these arguments, we replicate three articles utilizing fsQCA and conduct sensitivity analyses and Monte Carlo simulations to assess the impact of small changes in parameter values and the method's built-in confirmation bias on the overall conclusions about sufficient conditions.
Informed Consent, Exploitation and Whether it is Possible to Conduct Human Subjects Research Without Either One

Clinical research with adults who are unable to provide informed consent has the potential to improve understanding and care of a number of devastating conditions. This research also has the potential to exploit some of society's most vulnerable members. Recently, a number of task forces and individual writers have proposed guidelines to ensure that such research is both possible and ethical. Yet, there is widespread disagreement over which safeguards should be adopted. In the present paper, I consider to what extent these disagreements can be resolved by appeal to a general account of the interests of subjects who are unable to consent and the conditions that must be satisfied for research enrollment to constitute exploitation of their inability to make their own decisions.
The perils of excessive discretion: the elusive meaning of unfairness in Section 5 of the FTC Act

Section 5 of the Federal Trade Commission (FTC) Act gives the FTC an undefined mandate to prosecute ‘unfair methods of competition’. For nearly 100 years, the FTC has searched tirelessly for the meaning of this amorphous concept. Since 1992, the FTC has continued to define Section 5 through a series of consent decrees. Absent any external constraint, the FTC appears to have broad discretion to define the reach of Section 5 beyond the Sherman Act. This discretion causes uncertainty, which is likely to deter beneficial conduct. It also creates incentives to divert resources from productive to redistributional purposes. The recent FTC investigation of Google illustrates the FTC’s discretion to define the reach of Section 5. This article suggests several reforms, including making Section 5 coterminous with the Sherman Act, or having the FTC issue guidelines that limit Section 5 to conduct that clearly harms consumers through adverse effects on competition, and that would not otherwise fall under the antitrust laws.
Owning Persons: The Application of Property Theory to Embryos and Fetuses

Embryos are all over the news. According to the New York Times there are currently 400,000 frozen embryos in storage. Headlines proclaim amazing advances in our understanding of embryonic stem cells. And legislation involving cloning and embryos continues to be hotly debated. Despite the media attention, theoretical analysis of embryos' legal status is lacking. This article advances a number of novel arguments. First, recognition of property interests does not preclude the recognition of personhood interests. Embryos, fetuses and children may be both persons and property. Second, property law is conceptually more suited to resolving debates about embryos than procreative liberty, as the latter is strongest in those cases where procreation has not yet occurred - e.g., sterilization and contraception. Finally, this article is the first to provide a substantive evaluation of the application of property theories. The approach is sure to challenge commentators on all sides of the debate. For those who argue that embryos and fetuses are persons, the strong property interests will likely be unpalatable. Similarly, the implications of the combined framework for limiting those property rights as the entity develops will likely be unacceptable to advocates of extensive procreative choice during pregnancy. Nevertheless, this framework provides a more accurate understanding of the legal issues, and therefore may facilitate the eventual resolution of the protracted battle regarding the legal status of embryos and fetuses.
The Role of Physical Presence in the Taxation of Cross-Border Personal Services

This Article addresses the role of physical presence in the taxation of cross-border personal services. For much of the last century, both U.S. internal law and bilateral treaties have used the service provider’s physical location as the touchstone for determining international taxing jurisdiction. Modern developments—in particular, the significant advances in global communication technology and the increasing mobility of individuals—raise important questions regarding the continued viability of this physical presence standard. These modern developments have already facilitated the offshoring of numerous types of personal services, such as radiology, accounting, and legal services. As communication technology improves, the range of personal services that can be delivered remotely will follow. In order to address the issues raised by these developments, the Article focuses on the recent introduction of telesurgery, which permits surgeons based in one country to perform real-time procedures on patients located in another country. The Article describes the significant problems that arise in attempting to fit these modern developments into an almost century-old framework of internal tax laws and international treaty principles. It then makes the normative case for deemphasizing physical presence in determining the international tax consequences of cross-border personal services. Although the arguments for change are strongest in the context of U.S. internal tax law—in particular, in the application of the foreign earned income exclusion—they also impact the principles underlying bilateral tax treaties. * © 2010, Michael S. Kirsch, Professor of Law and Associate Dean, Notre Dame Law School. A.B., Cornell University, 1985; J.D., Harvard Law School, 1988; LL.M., New York University School of Law, 1989. I would like to thank Reuven Avi-Yonah and Christopher Hanna for reading an earlier draft of this Article, and participants in the University of Michigan Law School Tax Policy Workshop, the Northwestern University School of Law Advanced Topics in Taxation Series, and the Notre Dame Law School faculty colloquium for their comments. I would also like to thank Patti Ogden of the Kresge Law Library and Jessica Smith for their helpful research assistance. 994 Boston College Law Review [Vol. 51:993
What is Civil Justice

This Article first explores the meaning of the term “civil justice” as it is used in both academic and popular discourse. It then examines the idea of civil justice by looking at three key examples: (1) the U.S. tort system (specifically governing auto accidents); (2) the no-fault regimes of New Zealand, U.S. workers’ compensation, and the 9/11 Victim Compensation Fund; and (3) the phenomenon of apologies, instead of compensation, as remedies in medical malpractice cases. The Article concludes that an important component of civil justice is the ability of a person to hold accountable one who has wronged her.
Bridging the gap between Bayesian and story-comparison models of juridical inference

In this paper, I offer a survey and critique of the longstanding debate within evidence scholarship over what descriptive model best captures the manner in which judges and juries determine disputed facts. For decades, there has been a stand-off between Bayesians, who believe that the task of fact-finding can best be understood in probabilistic terms, and story model proponents, who describe the task of fact-finding in terms of comparative evaluation of competing stories. Drawing on the dual-process tradition in psychology and cognitive science research, I argue that committing to either view on its own fails to capture important aspects of the fact-finding process. The dual-process tradition predicts that judges and juries typically process a great volume of information in an automatic and unconscious way that bears a closer resemblance to the dense networks of conditional probability relations envisioned by Bayesians than to the linear comparisons articulated in the story model. At the same time, however, fact-finders sometimes use conscious, semantically based reasoning in a way that more closely resembles the linear, linguistic evaluation of evidence presented in the story model. Sometimes such reasoning is used to channel or override the intuitions that flow from the first stage of reasoning, but at other times it will work instead to justify or defend such intuitions from outside attack. This dual-process account has important implications for the debate between Bayesian and story-model approaches, making it more likely that components of both are necessary to fully appreciate the task of fact-finding.