I Share, Therefore It’s Mine

I Share, Therefore It’s Mine

Donald J. Kochan*

Uniquely interconnecting lessons from law, psychology, and economics, this article aims to provide a more enriched understanding of what it means to “share” property in the sharing economy. It explains that there is an “ownership prerequisite” to the sharing of property, drawing in part from the findings of research in the psychology of child development to show when and why children start to share. They do so only after developing what psychologists call “ownership understanding.” What the psychological research reveals, then, is that the property system is well suited to create recognizable and enforceable ownership norms that include the rights to acquire and retain ownership of property (parting with it only on terms defined by the owner), thereby also providing necessary economic incentives to share. Along the way, this article bridges the psychology research with Hohfeld’s description of the nature of rights, explaining the corresponding rights characterizations appropriate to describe each step in a child’s development of ownership understanding.

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* Associate Dean for Research & Faculty Development, Professor of Law, Chapman University‘s Dale E. Fowler School of Law. J.D., 1998, Cornell Law School. I would like to share my thanks for helpful comments from Danny Bogart and Richard Redding, and for the invaluable assistance of Jennifer Spinella in reviewing drafts of this project.

I Share, Therefore It’s Mine

Security Clearance Conundrum: The Need For Reform And Judicial Review

Heidi Gilchrist*

Imagine you arrive at work as a scientist at one of the country‘s foremost labs after twenty years of service. You are sipping your coffee when security arrives and informs you that your security clearance has been revoked and therefore, you are no longer authorized to work there, or even be in the building. When you ask why you have lost your security clearance, and thus your job, the answer is you are a national security risk and it would even be a threat to national security to tell you why. You try to appeal the decision, but you are told it is final. You think to yourself, I am an American, I have certain indelible rights, so you go to an attorney. You take the agency you work for to court, the court tells you that it is very sorry but no one has a right to a security clearance because matters of national security are committed to the Executive Branch, and the court cannot examine the merits of a security clearance decision. Your scientific research and expertise involve national security and there are no jobs that you are qualified for that would not require a clearance. You think to yourself, now what? This is not fiction, this is the current law of national security clearances.

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* Assistant Professor of Legal Writing at Brooklyn Law School; Lecturer-in-Law at Columbia Law School. The author would like to thank Heidi Brown, Brandon Garrett, Stephen Gottlieb, Carol McIver, Dwayne Shivnarain, and the participants in the Sharing Scholarship Workshop at Albany Law School for their incredibly thoughtful and helpful comments. She would also like to thank Alexa Bordner for her excellent research assistance.

I Share, Therefore It’s Mine

Restating The “Original Source Exception” To The False Claims Act’s “Public Disclosure Bar” In Light Of The 2010 Amendments

Joel D. Hesch*

Government spending is at an all-time high, and with it so is fraud against the government. As much as 10 percent of every dollar spent on government programs is lost to fraud, which amounts to over $350 billion a year. Because the government is ill-equipped to detect fraud, Congress employs a unique qui tam enforcement provision within the False Claims Act (the “FCA”) to recover such ill-gotten gains. Under the FCA, a whistleblower, known as a “relator,” is eligible for a reward by filing a qui tam civil suit on behalf of the government against a company or person that has defrauded the government. If the case is successful, a relator is awarded a portion of the recovery, which is typically between 15 percent and 30 percent of any recovery.

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* Professor of Law, Liberty University School of Law. J.D., 1988, The Catholic University of America.

I Share, Therefore It’s Mine

Involuntarily Committed Patients As Prisoners

Matt Lamkin*

Carl Elliott**

Human subjects research has a shameful history of abuses committed against institutionalized people. Decades after the Nuremburg court condemned Nazi doctors to death for experimenting on prisoners in concentration camps, researchers in the United States continued to expose prisoners to measles, malaria, radioactive isotopes, and other painful and damaging interventions. On his first visit to the Holmesburg prison in Pennsylvania, Dr. Albert Kligman reported seeing in this captive population “acres of skin” on which he could conduct dermatological experiments, including toxins that left prisoners scarred and blistered.

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* Associate Professor, University of Tulsa College of Law.
** Professor, Center for Bioethics, University of Minnesota, Minneapolis.

I Share, Therefore It’s Mine

Crimmigration: The Missing Piece Of Criminal Justice Reform

Yolanda Vázquez*

On July 13, 2015, President Barack Obama commuted the sentences of forty-six individuals. They were nonviolent drug offenders, who had been languishing in prison as a result of the War on Drugs and increasing severity in punishment that has occurred in the criminal justice system over the last forty years. The commutations were another act in President Obama‘s attempt to address the problems that have arisen over the last several decades in the United States criminal justice system. These problems have included overcriminalization, severity in sentencing, hyperincarceration, and racial and economic disparities.

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* Associate Professor, University of Cincinnati College of Law. I am grateful to Kimberly Breedon, A. Christopher Bryant, Andrea Dennis, Roger Fairfax, Kris Henning, Renée Hutchins, Sherri Keene, Elizabeth Lenhart, Michael Pinard, Carrie Rosenbaum, and Kami Chavis Simmons for their thoughts on drafts of this article. I also wish to thank Guy-Uriel Charles for his invitation to present this piece at the 2016 Jerome Culp Colloquium held at Duke University School of Law and the valuable comments of Jennifer Chacón and Kim Forde-Mazrui as well as its participants; and César Cuauhtémoc García Hernández and Christopher Lasch for their invitation to present this piece at the 2016 Crimmigration Law Lecture Series at the University of Denver School of Law and the val- uable comments of Kevin Johnson and Linus Chan as well as its participants. I am also grateful for the many insightful comments from participants at the Central States Law School Association (CSLSA) Conference 2015, the LatCrit Conference 2015, and the Mid-Atlantic Criminal Law Research Collective (MACLRC) workshop at George Washington Law School. All errors are mine alone.

I Share, Therefore It’s Mine

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis

P. Thomas DiStanislao III*

The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk named Madison Nomos is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case—one with which his Justice vehemently disagrees—should play a significant role in the Court’s analysis of an issue that has gripped the nation. Nomos’s Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has tasked the clerk with providing support for her argument that the Court should abandon its prior ruling. Nomos has been working on the opinion for hours and is no closer to reaching a conclusion than when he started. Though the courthouse is empty, the clerk hears a noise as the doors at the end of the room fling open. Justice Antonin Scalia and Justice Louis Brandeis enter the room, engaged in a heated argument over Webster’s New International Dictionary: Second Edition (1934).

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* Law Clerk to the Honorable Henry E. Hudson, United States District Court, Eastern District of Virginia, Richmond, Virginia. J.D., 2016, University of Richmond School of Law; B.A., 2011, Wake Forest University. Any views or opinions expressed herein are my own. Thanks to Professor Kevin Walsh, Chris Keegan, Ann Reid, Chris Rohde, and Andrew McGowan for their suggestions and ideas. I remain indebted to my father, Phil DiStanislao, for his willingness to share his virtuosic ability to use sports metaphors to explain all aspects of life and the law. And as always, none of this would have been possible without my wonderful wife, Elizabeth. Finally, I would like to thank Glenice Coombs, Rachel Willer, and the University of Richmond Law Review staff members for their work editing this dialogue. Any remaining errors are my own.

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