19th Century Farming and 21st Century Technology: The Path to Cleaner Water

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Kelly Kennedy. “From water does all life begin.” Frank Herbert’s novel Dune, published in 1965, underscored the importance of the fundamental element of life: water. Writing of a world where water is scarce—highly valued by all—he emphasized conservation and the use of technology to help people create, retain, and reclaim clean water. Fast-forward fifty years and the technology is now here—technology that can help us conserve and purify our water. But our waters are still polluted. While a variety of factors play a role, one of the leading causes is agricultural pollution. The technology today, however, can help to prevent agricultural pollution. It offers a way toward a world with cleaner water. Equipped with the new technology and utilizing old-fashioned farming techniques, farmers can prevent the run-off coming off their…
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Torts v. Technology: Accommodating Disruptive Innovation

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
James A. Henderson, Jr. Given that the American legal system supports markets that make technological advancement economically feasible and thus attractive to investors, it may be said that our law generally encourages the development of innovative, albeit sometimes unavoidably dangerous, technology. Specific examples abound. Thus, the rule of limited shareholder liability encourages innovative risk-taking. And some specialized areas appear even more self- consciously to promote innovation; in this regard, intellectual property law deserves high marks for making the effort, whatever may be said for its bottom-line results. By contrast tort law, whether or not its central objective is deterrence, carries the potential for discouraging creative technological innovation. Indeed, observers have criticized the American system of products liability on precisely that basis and have argued that it contributes significantly to placing…
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The History of Indian Voting Rights in Arizona: Overcoming Decades of Voter Suppression

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Patty Ferguson-Bohnee. In 2006, Navajo elder Agnes Laughter attempted to vote as she had for over thirty years. Not only was she turned away from the polls, she was berated for not having identification (“ID”) as required by Arizona’s new voter ID law. Ms. Laughter was discouraged and distraught. She did not have a photo ID nor did she have any documents to satisfy Arizona’s new voter ID law. She attempted several times to obtain a state ID from the Arizona Department of Transportation, but she was denied because she was born in a hogan and lacked an Arizona birth certificate. While Arizona law allows voters to present two forms of nonphoto ID, Ms. Laughter also lacked documents to satisfy the alternative—she did not drive, she did not own a…
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Throw Away the Key or Throw Away the Jail? The Effect of Punishment on Recidivism and Social Cost

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Miguel F. P. de Figueiredo. We jail too many people and it costs too much. Incarceration is not only expensive, it also is prone to “hardening” and negative peer learning effects that may increase recidivism. With local, state, and federal budgets at a breaking point, politicians and regulators are increasingly considering alternative approaches to preventing crime. Yet, they face a problem. Studies show that incapacitation is a successful way of reducing crime, yet most scholars and policymakers think that the only way to incapacitate is to incarcerate. This study demonstrates that this assumption is problematic, arguing that we should understand incapacitation along a continuum, with incarceration at one end. This understanding is important because it allows policy makers to think about new ways to avoid the significant social and fiscal…
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Sugar & Cyanide: The Combinatory Effects of Poison Pills and Dual-Class Structures on Shareholder Rights

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Nathan Andrews. Corporations represent a strategic compromise by which ownership is separated from management. This structure has numerous legal and economic benefits; however, the corporate structure is especially adept in diversifying ownership. Shares, a type of security which are also often referred to as stock or common stock, represent a portion of ownership of a corporation. Shares of publicly traded corporations are available for purchase on stock exchanges throughout the world allowing virtually any entity to purchase ownership in a corporation. Typically, shareholders receive various rights through share ownership, including the right to vote for directors, who represent the diversified ownership in major decisions. A corporation’s management generally consists of a chief executive officer and various other officers, as well as intermediate and lower level management who do not necessarily…
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Professional Rights Speech

2015, Past Issues, Print, Volume 47 (2015) Issue 4 (Winter)
Timothy Zick. Some regulations of professional-client communications raise important, but so far largely overlooked, constitutional concerns. Three recent examples of professional speech regulation: restrictions on physician inquiries regarding firearms, “reparative” therapy bans, and compelled abortion disclosures, highlight an important intersection between professional speech and constitutional rights. In each of the three examples, state regulations implicate a non-expressive constitutional right; the right to bear arms, equality, and abortion. States are actively, sometimes even aggressively, using their licensing authority to limit and structure conversations between professionals and their clients regarding constitutional rights. The author contends that government regulation of “professional rights speech” should be subjected to heightened First Amendment scrutiny. Many professionals perform critical, but under- appreciated, functions with regard to the recognition and effective exercise of constitutional rights. Moreover, the author…
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THAT’S WHAT HE SAID: The Office, (Homo)Sexual Harassment, and Falling Through the Cracks of Title VII

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Sasha Andersen. This article uses The Office as a platform to explore the history of Title VII and illustrate the puzzling rationale for why homosexuals fall through the cracks of Title VII and are not protected from workplace harassment. This article analyzes the way Title VII would apply to Oscar’s situation and shows how bringing a seemingly clear-cut case of sexual harassment would be unsuccessful despite common-sense perceptions of the law. In exposing the way Title VII law is inconsistent with common sense, this article has two objectives. First, it probes the history of Title VII jurisprudence and demonstrates that homosexuals have no recourse under Title VII—that is, unless they act “gay” enough or the harasser is actually homosexual. Understanding this reality exposes a more problematic logic in Title VII…
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Patent Markets: A Framework for Evaluation

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Michael J. Burstein. Patents have become financial assets. They are valued like securities, traded like stocks, and modeled as options. Our discourse about patents increasingly draws from finance. Firms whose business models depend on patent assertion explain that they are providing “liquidity” to the patent market. Those on the other side, which engage in collective defense, talk about using the market to mitigate “patent risk.” Commentators who ordinarily take very different positions about the merits of our current patent system seem to agree that we should make patent markets more efficient. But neither they nor most others ask the logically prior question: should there be robust patent markets at all? This Essay provides a roadmap for answering that question. Taking seriously the analogy between patent markets and financial markets, I demonstrate…
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Patent Pledges

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Jorge L. Contreras. An increasing number of firms are making public pledges to limit the enforcement of their patents. In doing so, they are entering a little-understood middle ground between the public domain and exclusive property rights. The best-known of these patent pledges are FRAND commitments, in which patent holders commit to license their patents to manufacturers of standardized products on terms that are “fair, reasonable and non-discriminatory.” But patent pledges have been appearing in settings well beyond standard-setting, including open source software, green technology and the life sciences. As a result, this increasingly prevalent private ordering mechanism is beginning to reshape the role and function of patents in the economy. Despite their proliferation, little scholarship has explored the phenomenon of patent pledges beyond FRAND commitments and standard-setting. This article…
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Against Design

2015, Past Issues, Print, Volume 47 (2015) Issue 3 (Fall)
Caryn Devins, Roger Koppl, Stuart Kauffman & Teppo Felin. Institutions and the incentives they create can be designed or redesigned to produce desired outcomes. But design does not work if social and economic dynamics are “creative.” If it is impossible to know in advance how an institution will change behavior and incentives—and what interests it may serve or harm in the future—then it is impossible to “design” optimal institutions. Like organisms, institutions are adaptive functional wholes that change in unpredictable and unprestateable ways. We examine the history of interpretations of the United States Constitution to illustrate the unpredictable and unprestateable dynamics of institutional change. We highlight how innovative interpretations of the Commerce Clause crafted in the civil rights context of the 1960s provided legal support to the Controlled Substances Act of 1970, which…
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