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Deconstructing The Mythology Of Free Trade: Critical Reflections On Comparative Advantage, Carmen Gonzalez Jan 2006

Deconstructing The Mythology Of Free Trade: Critical Reflections On Comparative Advantage, Carmen Gonzalez

Faculty Scholarship

The theory of comparative advantage serves as the theoretical justification for the neoliberal economic reforms promoted by the International Monetary Fund, the World Bank, and multilateral and regional free trade agreements. This article employs insights from both neoclassical and heterodox economics in order to critique the theory of comparative advantage as applied to the agricultural sector. In particular, the article takes aim at the illusory notion that eliminating distortions in international agricultural trade caused by the lavish agricultural subsidies of wealthy nations will be sufficient to “level the playing field” and promote prosperity in both developed and developing countries. The ...


Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud Jan 2006

Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud

Faculty Scholarship

This article argues that the discourse of viability of civil society in postcolonial polities is theoretically ungrounded, and helps to further marginalize subordinated sections of these societies. These failings result from the imprisonment of dominant social theories in Eurocentric unilinear evolutionism, an imprisonment that blinds one from the particularities of supposedly universal categories that issue from Europe's experience of modernity. Furthermore, enthusiasm for civil society ignores the truncated colonial career of modernity and the nature of the postcolonial state. In order to substantiate these propositions, the paper traces the genealogy of the concept of civil society, examines the colonial ...


A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro Jan 2006

A Lesbian Centered Critique Of “Genetic Parenthood”, Julie Shapiro

Faculty Scholarship

Recent years have seen a proliferation of alternative reproductive technologies and the ready availability of reliable DNA testing. These developments have lead to enormous uncertainty concerning the meaning of a genetic tie between adult and child. On the one hand, reproductive technology has lead to a robust market where genetic material is readily bought and sold. This suggests it is not the root of parental status. On the other hand, DNA testing has allowed men to contest paternity of children, asserting that they are not genetically related to them. And their challenges have often been successful. Genetic linkage is particularly ...


Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel Jan 2006

Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel

Faculty Scholarship

In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that "[t]here is only one Equal Protection Clause." In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens's unique equal protection methodology. While he shares (indeed inspired) their ...


The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel Jan 2006

The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel

Faculty Scholarship

Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized 'federalism, " an agenda-driven "conservatism," and a constitutionally fixated 'Judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this Article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility toward the institution of litigation and its concomitant skepticism as to the ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article ...


January 1, 2003: The Birth Of The Unpublished Public Domain And Its International Implications, Elizabeth Townsend-Gard Jan 2006

January 1, 2003: The Birth Of The Unpublished Public Domain And Its International Implications, Elizabeth Townsend-Gard

Faculty Scholarship

On January 1, 2003, a small, quiet historic transformation took place throughout the United States: unpublished works in mass came into the public domain for the first time. Section 302 of the 1976 Copyright Act created a unified system of duration, whereby unpublished and published works carry a term of life of the author plus seventy years. In order to aid with a transition from a state common law perpetual system to a "limited Times" federal statutory system, the 1976 Copyright Act built two mechanisms for change in the form of Section 303(a). First, Section 303(a) guarantees that ...


The Adventures Of Blackness In Western Culture: An Epistolary Exchange On Old And New Identity Wars, Robert S. Chang, Adrienne D. Davis Jan 2006

The Adventures Of Blackness In Western Culture: An Epistolary Exchange On Old And New Identity Wars, Robert S. Chang, Adrienne D. Davis

Faculty Scholarship

Through a series of letters, Professors Robert Chang and Adrienne Davis examine the politics of positionality in law and literary criticism. They use the scholarly debates and conversations around critical race theory and feminist legal theory as a starting point to formulate some thoughts about Critical Race Feminism ("CRF") and its future. The authors use the epistolary form as a literary device to allow them to collaborate on this project while maintaining their own voices. Thus, the letters are not dated. The letters pay particular attention to various border crossings: male attempts to engage in feminist literary criticism, white attempts ...


The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle Jan 2006

The Principled Executioner: Capital Juries’ Bias And The Benefits Of True Bifurcation, Susan D. Rozelle

Faculty Scholarship

Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest. Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these ...


Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman Jan 2006

Civil Gideon As A Human Right: Is The U.S. Going To Join Step With The Rest Of The Developed World?, Raven Lidman

Faculty Scholarship

This article will discuss the scope of services and rationale for the right to a free lawyer in civil matters as is the case in criminal cases. This right is currently provided in the 49 European member countries in the Council of Europe (COE), Australia, Canada, India, New Zealand, Hong Kong, Japan, Zambia, South Africa, and Brazil. Frequent reference will be made to a chart in the appendix, which condenses extensive information about programs in each of these countries. The article’s general conclusion regarding the foreign programs is that the right to a free lawyer in civil matters is ...


The Perils Of Risk Avoidance, Catherine O'Neill Jan 2006

The Perils Of Risk Avoidance, Catherine O'Neill

Faculty Scholarship

This article illustrates that in managing the risks and responding to the harms of environmental contamination, there has been a recent embrace of strategies involving risk avoidance in lieu of risk reduction. Risk reduction strategies aim to clean up, limit, or prevent environmental contamination in the first place. Risk avoidance strategies, by contrast, leave contamination unabated. Risk avoidance strategies address the harms of contamination by requiring those whose circumstances or lifeways leave them exposed to alter their ways, thereby "avoiding" the risk. A recent turn to risk avoidance is problematic on several scores and particularly troubling from the perspective of ...


Leveling The Playing Field: Helping Students Succeed By Helping Them Learn To Read As Expert Lawyers, Laurel Oates Jan 2006

Leveling The Playing Field: Helping Students Succeed By Helping Them Learn To Read As Expert Lawyers, Laurel Oates

Faculty Scholarship

The article explores a way in which law schools can level the field of student admission in order to ensure the success of students as law students and as lawyers in the United States. A study which compares the reading skills of a professor and four students who had been admitted to law school under a special admissions program is presented. It provides the techniques for students to develop their reading skills. It emphasizes on the importance of teaching legal reading.


Civil Gideon: A Human Right Elsewhere In The World, Raven Lidman Jan 2006

Civil Gideon: A Human Right Elsewhere In The World, Raven Lidman

Faculty Scholarship

The right to free counsel in civil cases is widely accepted around the world but not in the United States. In England the right originated over five hundred years ago. Twelve European countries provided the poor with free lawyers even before 1979, when the Council of Europe required its members to do so as a matter of international human rights law. The standards for eligibility and scope of legal services vary, and means and merit tests are common.


Linguistics As A Knowledge Domain In The Law, Janet Ainsworth Jan 2006

Linguistics As A Knowledge Domain In The Law, Janet Ainsworth

Faculty Scholarship

This article focuses on the use of linguistic expertise by trial courts to aid in fact-finding. It identifies many of the ways the legal system has been enriched by donations from linguistic scholarship. In addition, it discusses the underutilized-at-present use of linguistic knowledge by appellate courts as a tool for crafting and applying doctrinal rules. Whereas courts have adopted economics analysis in determining appropriate legal rules, linguistic science has been neglected. Linguistic predictions are more testable and falsifiable than economic predictions. Linguistic research can be useful—particularly in the areas of comprehensibility of texts and resolving textual ambiguity. Indeed, legislatures ...


The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel Jan 2006

The Court Against The Courts: Hostility To Litigation As An Organizing Theme In The Rehnquist Court’S Jurisprudence, Andrew Siegel

Faculty Scholarship

Previous commentators on the Rehnquist Court's history, seeking an overarching explanation for the Court's cases, have focused their attention primarily on a revitalized "federalism," an agenda-driven "conservatism," and a constitutionally fixated "judicial supremacy." While each of these themes is undoubtedly present in the Court's later jurisprudence, this article argues that one cannot understand the Rehnquist Court's complicated intellectual matrix without taking account of its profound hostility towards the institution of litigation and its concomitant skepticism as to ability of litigation to function as a mechanism for organizing social relations and collectively administering justice. The article takes ...


Latinos And American Law: Landmark Supreme Court Cases, Steven W. Bender Jan 2006

Latinos And American Law: Landmark Supreme Court Cases, Steven W. Bender

Faculty Scholarship

In this review, the author advocates for a work which provides much needed attention to Latinos in the context of American Law. Specifically, the review outlines key elements of Soltero’s work, which highlights Latino Supreme Court cases.


The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark Jan 2006

The Right To Die: The Broken Road From Quinlan To Schiavo, Annette E. Clark

Faculty Scholarship

This article discusses the controversial right-to-die law, and the prominent cases surrounding it. It critically outlines various case outcomes with respect to the law, and discusses seminal development the law has seen.


The H’Aint In The (School) House: The Interest Convergence Paradigm In State Legislatures And School Finance Reform, Bryan Adamson Jan 2006

The H’Aint In The (School) House: The Interest Convergence Paradigm In State Legislatures And School Finance Reform, Bryan Adamson

Faculty Scholarship

The purpose of this essay is to examine recent school funding litigation to illuminate the interest convergence paradigm, using the school finance reform controversy in Ohio as an example. Part I describes how the school finance reform debate is an extension of our nation's desegregation history. Part II looks at the school funding controversy in Ohio, highlighting legislator and citizen attitudes toward school finance litigation and public school funding along racial and geographic lines. Part III identifies six interests which emerge in the school funding dispute, arguing that these interests must be taken into account by legislators in crafting ...


Policy, Logic, And Persuasion In The Evolving Realm Of Trust Asset Protection, John K. Eason Jan 2006

Policy, Logic, And Persuasion In The Evolving Realm Of Trust Asset Protection, John K. Eason

Faculty Scholarship

The concept of using legal structures to protect property from those who might otherwise have some claim to it is an idea with deep roots. The trust device is one such legal structure, and its evolution as an asset protection device has not been without controversy. The recent and noticeable break with the traditional denial of self-settled trust protections is one such area of modern controversy, but not the only notable recent development. The self-setted asset protection trust movement is accompanied by the recent completion of two major law reform projects. The drafting and recommendation for state adoption of a ...


Intellectual Property And The Development Divide, Margaret Chon Jan 2006

Intellectual Property And The Development Divide, Margaret Chon

Faculty Scholarship

This article attempts to map the challenges raised by recent encounters between intellectual property and development. It proposes a normative principle of global intellectual property - one that is responsive to development paradigms that have moved far beyond simple utilitarian measures of social welfare. Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects. A new principle of substantive equality is a necessary corollary to the formal equality principles of national treatment and minimum standards that are now ...


A Conversation Among Deans On Results: Legal Education, Institutional Change, And A Decade Of Gender Studies, W. H. Knight, K. Bartlett, E. Rubin Jan 2006

A Conversation Among Deans On Results: Legal Education, Institutional Change, And A Decade Of Gender Studies, W. H. Knight, K. Bartlett, E. Rubin

Faculty Scholarship

On March 10, 2006, the Harvard Journal of Law & Gender, cosponsoring with the Harvard Civil Rights-Civil Liberties Law Review and the Harvard Law Review, hosted a conference, "Results: Legal Education, Institutional Change, and a Decade of Gender Studies," to address the number of student experience studies that detail women's lower performance in and dissatisfaction with law school. Rather than advocate for a particular set of responses to the different experiences of men and women in legal education, this conference sought to foster a discussion about the institutional challenges these patterns highlight. As one means of accomplishing this end, law ...


My Father, John Locke, And Assisted Suicide: The Real Constitutional Right, John B. Mitchell Jan 2006

My Father, John Locke, And Assisted Suicide: The Real Constitutional Right, John B. Mitchell

Faculty Scholarship

This article discusses the right to assisted suicide, a right not derived from anything explicit or implied in any textual provision of the Constitution. It is a right derived from the two underlying political philosophies, which form the basis of the entire U.S. Constitutional enterprise: John Locke's Social Contract and Civic Republicanism. In Part I, this article discusses Glucksberg's fundamental rights analysis. So much has been written about this case that this article will limit comments to briefly adding thoughts as to why, given the combination of the Court's motivation, both institutional and pragmatic, in approaching ...


The Entrepreneur And The Theory Of The Modern Corporation, Charles O'Kelley Jan 2006

The Entrepreneur And The Theory Of The Modern Corporation, Charles O'Kelley

Faculty Scholarship

The foremost description of the classic entrepreneur, immediately prior to the Great Depression and now, was presented by Frank Knight in his seminal work, Risk, Uncertainty, and Profit. In this Article, I will explicate Knight's theory of the entrepreneur and show how it relates to both the Berle-Means Paradigm and the nexus-of-contracts theory of the corporation. My effort here is in part intellectual history and in part the tentative beginnings of a new positive account of the corporation. In the latter regard, this Article takes only the first step in what may prove a quite exhaustive effort to re-plow ...


Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve Jan 2006

Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve

Faculty Scholarship

The article offers a look on the Somerset's Case that served as a milestone in the campaign to abolish slavery in Great Britain. The case become famous in the Anglo-American law of slavery, with its proceedings widely circulated in periodicals. However, historians have argued about what the ruling was and its effects. It has been known in English slavery law that courts prior to the case generally agreed that English law governed status, but also limited slavery, for slaves who came to England.


Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland Jan 2006

Schooling Miranda: Policing Interrogation In The Twenty-First Century Schoolhouse, Paul Holland

Faculty Scholarship

This article directs courts to base their application of Miranda on an explicit and contextually sound consideration of the relationships among students, officers and administrators. This article argues that Miranda applies when a state agent questions a student under circumstances in which it would be reasonable for the student to believe that she is the subject of law enforcement authority, regardless of whether a law enforcement officer conducts the questioning. The determination that Miranda applies is not tantamount to a decision that the student was in custody. It is merely a prelude to the custody inquiry. This article does not ...


Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez Jan 2006

Markets, Monocultures, And Malnutrition: Agricultural Trade Policy Through An Environmental Justice Lens, Carmen Gonzalez

Faculty Scholarship

Much of the literature on environmental justice struggles in the United States and in the Global South has highlighted the disproportionate concentration of environmental hazards in poor communities and communities of color. However, it is equally important to evaluate how human societies distribute access to environmental necessities, such as food and water. Food is a quintessential environmental necessity that is critical human survival, and the right to food is recognized under a variety of international human rights law instruments. This article examines the complex ways in which the rules governing international trade in agricultural products affect the fundamental human right ...