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Articles 1 - 30 of 52
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Policyholder Rights To Independent Counsel: Issues Remain Regarding Compensation, Supervision Of Counsel, Jeffrey W. Stempel
Policyholder Rights To Independent Counsel: Issues Remain Regarding Compensation, Supervision Of Counsel, Jeffrey W. Stempel
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More than 30 years ago, a California appellate court decision (San Diego Navy Federal Credit Union v. Cumis Insurance Society, 162 Cal. App. 3d 358 (4th Dist. 1984)) worked a revolution of sorts by ruling that, in cases of conflict between an insurer and a policyholder defending against a plaintiff's claim, the insurer was obligated to permit the policyholder to select its own defense counsel rather than having the case defended by an attorney selected by the insurer. The Cumis movement was more evolutionary than revolutionary in Nevada. Until State Farm Mutual Automobile Ins. Co. v. Hansen, …
Rodney Dangerfield No More: The American Law Institute's Coming Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel
Rodney Dangerfield No More: The American Law Institute's Coming Restatement Of The Law Of Liability Insurance, Jeffrey W. Stempel
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In a casebook I co-author, "Principles of Insurance Law," with Peter Swisher and Erik Knutsen, we refer to insurance as "the Rodney Dangerfield of law." It just does not (to paraphrase the words of the late comedian), get enough respect. Lawyers are familiar with (and have been since perhaps the fourth week of law school), the American Law Institute's Restatements of the Law, particularly widely cited restatements, such as those governing torts and contracts (and, to a lesser extent, judgments, conflict of laws, restitution, suretyship and others). Despite the importance of insurance in the civil justice system, it has been …
Civil Protection Orders: Increased Access And Narrowed Enforcement, Courtney Cross
Civil Protection Orders: Increased Access And Narrowed Enforcement, Courtney Cross
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No abstract provided.
Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson
Say The Magic Word: A Rhetorical Analysis Of Contract Drafting Choices, Lori D. Johnson
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Drafters of complex contracts often face a thorny dilemma – determining whether to retain “magic words” included in form documents, especially when considering the advice of current contract style scholars advocating for the removal of all traditional contract prose. But the drafter need not remove all terms that serve as elegant shorthand for more convoluted legal concepts, particularly where the inclusion of the term advances client interests. The application of rhetorical criticism – the analysis of methods of communicating ideas – to drafters’ use of the term “time is of the essence” sheds light on the dominant motivations of drafters …
Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf
Separated At Adoption: Addressing The Challenges Of Maintaining Sibling-Of-Origin Bonds In Post-Adoption Families, Rebecca L. Scharf
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This Article explores the ways children, many of whom are in foster care, are psychologically harmed by the law’s failure to ensure that the bonds they have with their siblings-of-origin are not permanently broken when one of the siblings is adopted; it therefore proposes ways that courts can better protect children from the psychological harm of having a biological sibling permanently removed from their life. It suggests that what is needed is a framework that allows visitation by biological siblings with whom children have formed attachments without unnecessarily intruding on the fundamental liberty interest of the adoptive parents at issue …
Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin
Hobby Lobby: The Crafty Case That Threatens Women's Rights And Religious Freedom, Leslie C. Griffin
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Despite the pro-religion rhetoric surrounding it, Hobby Lobby marks a loss of religious freedom. Missing from the majority's opinion is the core concept that religious freedom is necessary to protect the rights of all Americans, and that a religious belief must not be imposed on citizens through the force of law. Any interpretation of the First Amendment or the Religious Freedom Restoration Act ("RFRA")' that imposes one citizen's religious faith upon another must be rejected. This Article defends this non-imposition model of religious freedom and describes why and how Hobby Lobby incorrectly departed from it.
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
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Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the …
Reimagining Access To Justice In The Poor People’S Courts, Elizabeth L. Macdowell
Reimagining Access To Justice In The Poor People’S Courts, Elizabeth L. Macdowell
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Access to justice efforts have been focused more on access than justice, due in part to the framing of access to justice issues around the presence or absence of lawyers. This article argues that access to justice scholars and activists should also think about social justice and provides a roadmap for running a legal services program geared toward making court systems more just. The article also further develops the concept of “poor people’s courts,” a term that has been used to describe courts serving large numbers of low-income people without representation. The article argues that access to justice efforts can …
Enhancing The Socially Instrumental Role Of Insurance: The Opportunity And Challenge Presented By The Ali Restatement Position On Breach Of The Duty To Defend, Jeffrey W. Stempel
Enhancing The Socially Instrumental Role Of Insurance: The Opportunity And Challenge Presented By The Ali Restatement Position On Breach Of The Duty To Defend, Jeffrey W. Stempel
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The American Law Institute (ALI), in its current draft of the Restatement of the Law of Liability Insurance , has adopted the position that a liability insurer in breach of its duty to defend, but not acting in bad faith, forfeits the right to dispute coverage of the resulting judgment or reasonable, noncollusive settlement in a lawsuit. The ALI view is the minority rule in the courts in that most make bad faith a prerequisite for loss of a coverage defense but presumably will spur re-examination of the issue in many states. Unsurprisingly, insurers have opposed the ALI position with …
You Make Me Feel Like Dancing: Students, Scholars, And Sources In The Law Library, Jeanne Price
You Make Me Feel Like Dancing: Students, Scholars, And Sources In The Law Library, Jeanne Price
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No abstract provided.
Assumed Sane, Fatma Marouf
Assumed Sane, Fatma Marouf
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In 2014, the Board of Immigration Appeals (BIA) held in Matter of G-G-S- that a noncitizen’s mental health status at the time of an offense is irrelevant to determining whether the offense is a “particularly serious crime” for immigration purposes. Since a “particularly serious crime” is a bar to asylum and withholding of removal, it can result in a noncitizen’s deportation to a country where he or she faces a serious risk of persecution. In deciding that immigration judges “are constrained by how mental health issues were addressed as part of the criminal proceedings,” the BIA failed to recognize the …
Advocacy As An Exercise In Virtue: Lawyering, Bad Facts, And Furman's High-Stakes Dilemma, Linda H. Edwards
Advocacy As An Exercise In Virtue: Lawyering, Bad Facts, And Furman's High-Stakes Dilemma, Linda H. Edwards
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Two of the conversations benefitting most from Jack Sammons's scholarship are conversations about legal rhetoric and about virtue ethics. Legal rhetoric is the study of the conventions of legal argument, specifically, the art of identifying and evaluating the best available means of persuasion and implementing those means effectively in light of audience, purpose, and occasion. Virtue ethics approaches moral reflection by asking what sort of person a particular moral choice encourages the actor to become. It focuses on consequences to the moral agent herself rather than directly focusing on consequences to others. The goal is to become a virtuous person, …
Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, And Similar Judicial Myths: The Convergence Of Title Vii Literalism, Congressional Intent, And Kantian Dignity Theory, Peter Brandon Bayer
Debunking Unequal Burdens, Trivial Violations, Harmless Stereotypes, And Similar Judicial Myths: The Convergence Of Title Vii Literalism, Congressional Intent, And Kantian Dignity Theory, Peter Brandon Bayer
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Title VII prohibits employers from imposing their racial, sex-based, ethnic, or religiously inspired grooming and appearance standards, even if, in light of widely accepted social conventions, the vast majority would feel exceptionally uncomfortable in the presence of employees who refuse to comport with their employers' discriminatory rules. Indeed, nearly four decades ago, with correct simplicity and directness the Supreme Court recognized Title VII's first principle: "Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of race, religion, sex, or national origin." Therefore, contrary to the harsh dismay expressed …
Feminism In Yellowface, Stewart Chang
Feminism In Yellowface, Stewart Chang
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This article analyzes the relationship between sexualized stereotypes of Asian women, specifically the Asian prostitute epitomized in the Suzie Wong stereotype, and the tendency of American immigration law, even in pro-women legislation such as the TVPA, to promote conservative norms regarding female sexuality and domesticity. Part I explains the significance of Asian prostitution in the history and evolution of United States immigration policy. In the nineteenth century, the Asian prostitute was constructed as the antithesis to normative American sexuality, as a foreign peril that threatened the integrity of the American domestic unity and therefore required rejection and exclusion. Part II …
Gay Liberation In The Illiberal State, Stewart Chang
Gay Liberation In The Illiberal State, Stewart Chang
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A comparative analysis of incrementalist approaches to gay rights as they are deployed in the United States and Singapore demonstrates that seeking gay rights in a full democracy is actually no better than seeking them in an authoritarian regime. Incrementalism ultimately promotes sexual nornativity by dividing the gay community into "good gays," who deserve equal protections, and "bad queers," who are further marginalized. Incrementalism in the United States began with decriminalization of sodomy and terminated with the recognition of gay imarriage but did so by imagining gay sexuality within the context of committed relationships. The gay rights movement in Singapore …
Always Already Suspect: Revising Vulnerability Theory, Frank Rudy Cooper
Always Already Suspect: Revising Vulnerability Theory, Frank Rudy Cooper
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Martha Fineman proposes a post-identity "vulnerability" approach that focuses on burdens we all share; this article argues that theory needs to incorporate recognition of how invisible privileges exacerbate some people's burdens. Vulnerability theory is based on a recognition that we are all born defenseless, become feeble, must fear natural disasters, and might be failed by social institutions. It thus argues for a strong state that takes affirmative steps to insure substantive equality of opportunity. While vulnerability theory might help explain and remedy situations like Hurricane Katrina, it also might be susceptible to an argument that racial profiling is a necessary …
Are We Serious About Performers' Rights?, Mary Lafrance
Are We Serious About Performers' Rights?, Mary Lafrance
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Do performers have rights in the expressive works they help to create? Historically, the rights of performers have received far less attention that the rights of traditional authors. The law has been reluctant to recognize performers as authors and, to the extent that performers’ rights are recognized, they are secondary to, and more limited than, the rights of traditional authors. Recent developments, however, have brought performers’ intellectual property rights to the forefront. For a number of reasons, performers in the United States have increasingly begun to assert authorship rights in the works they help to create. In addition, recent international …
Navigating The Law Of Defense Counsel Ex Parte Interviews Of Treating Physicians, Joseph Regalia, V. Andrew Cass
Navigating The Law Of Defense Counsel Ex Parte Interviews Of Treating Physicians, Joseph Regalia, V. Andrew Cass
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This article explores the issue of defense counsel ex parte interviews with treating physicians, and proposes a resolution to standardize the practice that is equitable for all parties involved. Courts and legal scholars have commonly recognized that treating physicians in personal injury litigation are usually fact witnesses, albeit with special expertise, and allow plaintiffs unfettered access while defendants are relegated to a formal deposition which creates a fundamental imbalance in informational power. Moreover, there are significant arguments raised by the defense bar concerning efficiency and fairness. However, allowing defense counsel unlimited and unregulated access to treating physicians creates clear risks …
The Common Law Right To Information, Joseph Regalia
The Common Law Right To Information, Joseph Regalia
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A once-thriving doctrine, today the common law right to information has been largely forgotten by U.S. courts at both the state and federal level. But courts have not paused to question whether the common law right still has a role to play in modern litigation. One reason may be the dearth of case law explaining the common law right's operation. Another may be that courts believe this doctrine has been eradicated by the advent of freedom of information laws. This article first brings together the disparate authority on the common law right in an attempt to pin down the precise …
Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble
Advancing National Intellectual Property Policies In A Transnational Context, Marketa Trimble
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The increasing frequency with which activities involving intellectual property (“IP”) cross national borders now warrants a clear definition of the territorial reach of national IP laws so that parties engaging in the activities can operate with sufficient notice of the laws applicable to their activities. Legislators, however, have not devoted adequate attention to the territorial delineation of IP law; in fact, legislators rarely draft IP statutes with any consideration of cross-border scenarios, and with few exceptions IP laws are designed with only single-country scenarios in mind. Delineating the reach of national IP laws is actually a complex matter because the …
The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble
The Multiplicity Of Copyright Laws On The Internet, Marketa Trimble
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From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous — i.e., unrestricted by geoblocking or by other means — given the territoriality principle that governs international copyright law and the choice-of-law rules that countries typically use for copyright infringements.
This Article posits that …
Believable Victims: Asylum Credibility And The Struggle For Objectivity, Michael Kagan
Believable Victims: Asylum Credibility And The Struggle For Objectivity, Michael Kagan
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Asylum adjudication is often the invisible frontline in the struggle by oppressed groups to gain recognition for their plights. Through this process, individual people must tell their stories and try to show that they are genuine victims of persecution rather than simply illegal immigrants attempting to slip through the system. In 2002, because the world had not yet acknowledged the nature of the calamity from which they were escaping, many Darfurian asylum cases would have relied on the ability of each individual to convince government offices to believe their stories. They would have had to be deemed “credible,” or they …
All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon
All Together Now: Using Principles Of Group Dynamics To Train Better Jurors, Sara Gordon
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We ask juries to make important decisions that have a profound impact on people’s lives. We leave these decisions in the hands of groups of laypeople because we hope that the diverse range of experiences and knowledge in the group will lead to more thoughtful and informed decisionmaking. Studies suggest that diverse groups of jurors have different perspectives on evidence, engage in more thorough debate, and more closely evaluate facts. At the same time, there are a variety of problems associated with group decisionmaking, from the loss of individual motivation in group settings, to the vulnerability of groups to various …
Immigrant Victims, Immigrant Accusers, Michael Kagan
Immigrant Victims, Immigrant Accusers, Michael Kagan
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The U Visa program provides an immigration status to noncitizen victims of crime, which is essential to prevent unauthorized immigrants from being afraid to seek help from the police, and thus becoming easy prey for criminals. This visa falls into a category of immigration programs that grant benefits on the basis of victim status, rather than on family or employment connections to the United States. But the federal government structured the U Visa program so that in order to be protected as a victim, a person must also become an accuser. The U Visa thus implicates the rights of third …
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
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Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized discretion, non-enforcement discretion, …
Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan
Immigration Law’S Looming Fourth Amendment Problem, Michael Kagan
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In 2014, a wave of federal court decisions found that local police violate the Fourth Amendment when they rely on requests from the Department of Homeland Security to detain people suspected of being deportable immigrants. The problem with these requests, known as “detainers,” was that they were not based on any neutral finding of probable cause. But this infirmity is not unique to DHS requests to local police. It is characteristic of the normal means by which Immigration and Customs Enforcement (ICE) arrests people and detains them at the outset of deportation proceedings. These decisions thus signal a glaring constitutional …
Psychology And Effective Lawyering: Insights For Legal Educators, Jean R. Sternlight, Jennifer K. Robbennolt
Psychology And Effective Lawyering: Insights For Legal Educators, Jean R. Sternlight, Jennifer K. Robbennolt
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Psychology-the science of how people think, feel and behave-has a great deal to teach about a range of core competencies related to working with people and making good decisions. For example, psychologists have conducted extensive research into perception, memory, communication, individual and group decision-making, conflict, goal setting and planning, self-assessment, motivation, "grit," and many other matters that are central to effective lawyering. This research has much to contribute to an understanding of the work of lawyers and can be effectively incorporated into how we teach law students to practice law.
A Rhetorician’S Practical Wisdom, Linda L. Berger
A Rhetorician’S Practical Wisdom, Linda L. Berger
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For three years, I had the great good fortune to work in the office next to Jack Sammons. My good fortune extended to a coincidence of timing that allowed me to work with Jack on a co-authored article, The Law's Mystery. During the time I worked next door, I felt cursed by an inability to grasp concepts that to Jack appeared inevitable and essential, whether those inevitabilities and essences were to be found within the law, good lawyering, or good legal education. The curse persisted throughout the writing of The Law's Mystery.
For Jack, the essence of a …
Do Immigrants Have Freedom Of Speech?, Michael Kagan
Do Immigrants Have Freedom Of Speech?, Michael Kagan
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The Department of Justice recently argued that immigrants who have not been legally admitted to the United States have no right to claim protections under the First Amendment. If the DOJ argument is right, then most of the 11 million unauthorized immigrants in the U.S. could be censored or punished for speaking their minds – as many of them have in support of comprehensive immigration reform and the Dream Act. This Essay explores the complicated and conflicted case law governing immigrants’ free speech rights, and argues that, contrary to the DOJ position, all people in the United States are protected …
Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley
Reconsidering Legal Regulation Of Race, Sex, And Sexual Orientation, Ann C. Mcginley
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No abstract provided.