Digital Commons Network^™

Vacating Chrysler, George Kuney

College of Law Faculty Scholarship

This article examines the Chrysler section 363 transaction and the opinions that approved it. Chrysler may be merely another example of good facts and a crisis making what is, perhaps, bad law, which has been a pattern in the evolution of chapter 11 jurisprudence since the Bankruptcy Code was enacted in 1978. The Supreme Court appears to have recognized this in the Chrysler case and took the opportunity created by the petition for the certiorari to attempt to wipe the slate clean and reestablish the pre-Chrysler status quo. If this was the Justices’ intent, it is not clear that they …

Something Judicious This Way Comes ... The Use Of Foreshadowing As A Persuasive Device In Judicial Narrative, Michael Higdon

College of Law Faculty Scholarship

With the recent publication of Judge Richard Posner’s book “How Judges Think” and the nomination of Judge Sonia Sotomayer to the United States Supreme Court, there has been much discussion about the way in which judges decide cases. Although certainly an interesting (and important) discussion, what has so far gone largely ignored is the question of how judges, once they reach a decision, convince the legal audience that the decision is in fact correct. Thus, in my article, entitled Something Judicious This Way Comes . . ., I focus not on how judges think, but how they write. More specifically, …

Should New Bills Of Rights Address Emerging International Human Rights Norms? The Challenge Of “Defamation Of Religion”, Robert C. Blitt

College of Law Faculty Scholarship

The emerging international human rights norm of “defamation of religion”, an ongoing flashpoint in debates at the United Nations (UN) and elsewhere, merits the attention of all parties playing a role in the drafting of new bills of rights. This article uses the case study of defamation of religion as an emerging norm and the current debate over a possible Australian bill of rights to argue that a well-rounded drafting process should contemplate the relevancy and impact of emerging norms as a means of enhancing the process, deepening domestic understanding of rights, and ensuring an outcome instrument that is designed …

Non-Debtor Releases And Travelers V. Bailey: A Circuit Split That Is Likely To Remain, George Kuney

College of Law Faculty Scholarship

The Travelers Indemnity Company v. Bailey, 129 S.Ct. 2195 (2009), presented the Supreme Court with the opportunity to review and decide the issue of whether or not bankruptcy courts have jurisdiction to release non-debtors from claims of other non-debtors that have no impact upon and are not derived from the res of the bankruptcy estate. Instead of reaching the question, however, the Court, in an opinion authored by Justice Souter and joined in by Justices Roberts, Scalia, Kennedy, Thomas, Breyer, and Alito, disposed of the case under the principles of res judicata and the bar on collaterally attacking a final …

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky Jacobs

College of Law Faculty Scholarship

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970’s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (the “Pound Conference”), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door …

Pareto Negativity: The Enemy Of My Enemy Is Not Necessarily My Friend – Latin Leadership, Coalition Building, And Predatory Globalization, Becky Jacobs

College of Law Faculty Scholarship

This piece reflects upon the significant role of Latin civil society organizations (“CSOs”) not only in that region’s political, social and economic development, but also in the historical trajectory of the U.S. It also questions why there are so few Latino and Latina leaders in transnational CSOs and in the so-called “global civil society” movement (“GCS”), particularly in the movement to resist the predatory effects of globalization. Consider, for example, the citizen-led groups in Latin America such as the cocaleros and campesinos who fought the Bolivian Water and Gas Wars and then elected cocalero Juan Evo Morales Ayma as that …

Constructing Citizenship Without A License: The Struggle Of Undocumented Immigrants In The U.S. For Livelihoods And Recognition, Frances Ansley

College of Law Faculty Scholarship

No abstract provided.

Atticus Finch: Christian Or Civic Hero - A Response To Professor Mcmillian, Judy Cornett

College of Law Faculty Scholarship

No abstract provided.

Often Wrong, Never In Doubt: How Anti-Arbitration Expectancy Bias May Limit Access To Justice, Becky Jacobs

College of Law Faculty Scholarship

While there long have been “alternatives” to the traditional trial for those seeking to resolve disputes, the so-called “litigation explosion” in the 1970’s inspired a campaign for reform of the administration of justice that resulted in the modern ADR movement. The movement had many disparate goals, not the least of which was to improve public access to justice. At the historic 1976 National Conference on the Causes of Popular Dissatisfaction with the Administration of Justice (the “Pound Conference”), Harvard Law Professor Frank E.A. Sander first posited the concept of a “comprehensive justice center,” more famously referred to as a “multi-door …

The Girl From Ipanema At Risk: Women's Health And The Physical Environment, Becky Jacobs

College of Law Faculty Scholarship

This essay explores the issue of women’s health in Rio de Janeiro, a topic at the intersection of the physical and human environments and one that is inextricably intertwined with the environmental justice and social inclusion concerns. A society often can be defined by its citizens’ health indicators and access to health, particularly those of the most vulnerable members of its society, including the poor, women, and children. Health has been included in the panoply of human rights which aspirationally all nations should recognize and promote (Kuszler 2007), and it is a prominent item on the agenda of many international …

Against Civil Gideon (And For Pro Se Court Reform), Benjamin H. Barton

College of Law Faculty Scholarship

This Article argues that the pursuit of a civil Gideon (a civil guarantee of counsel to match Gideon v. Wainright’s guarantee of appointed criminal counsel) is an error logistically and jurisprudentially and advocates an alternate route for ameliorating the execrable state of pro se litigation for the poor in this country: pro se court reform.

Gideon itself has largely proven a disappointment. Between overworked and underfunded lawyers and a loose standard for ineffective assistance of counsel the system has been degraded. As each player becomes anesthetized to cutting corners a system designed as a square becomes a circle.

There is …

Trick Or Treat - Summary Judgment In Tennessee After Hannan V. Alltel Publishing Co., Judy Cornett

College of Law Faculty Scholarship

No abstract provided.

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

College of Law Faculty Scholarship

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court’s long struggle with the desegregation of public schools. This Article examines the decision’s implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de …