Digital Commons Network^™

Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester Chuang

Publications

Two state supreme courts, California and Georgia, have ruled that pre-dispute contractual jury waivers are not enforceable. Those jurisdictions that permit such waivers use a wide array of “safeguards not typical of commercial law” to protect the constitutional right to jury trial. The multiple safeguards used by courts, and the different ways of applying them led the California Supreme Court to note “the difficulties experienced in other jurisdictions [with respect to pre-dispute jury waivers], where disagreements persist concerning such matters as allocation of the burden of proof when a party resists enforcement of a contractual waiver of jury trial.” These …

Lawyers And Learning: A Metacognitive Approach To Legal Education, Anthony S. Niedwiecki

Publications

This article will detail the concept of metacognition, how current law school teaching does not teach metacognitive skills, and how legal educators can incorporate metacognitive learning into the law school curriculum to help students better transfer knowledge and skills to the practice of law. Teaching metacognitive skills to law students should focus on explaining learning theory and modeling appropriate planning, monitoring, and evaluating techniques across the curriculum. Part II of this article details how law schools have been slow to integrate and apply learning theory to the law school classroom. Part III details the theory behind metacognition and how it …

Why A Conference On Redevelopment, And Why Now, Colin Crawford

Publications

When the Center for the Comparative Study of Metropolitan Growth proposed the conference that produced the volume of essays you have in your hand, it was our idea to bring together a diverse group of professionals - environmental and land use lawyers, land use planners and city officials, politicians and engineers to discuss the legal and policy issues concerning "redevelopment." That is, we were concerned, living as we do in the rapidly changing and growing metropolitan area of Atlanta, to focus on the frequently exciting but also often tense and controversial area of redeveloping urban and suburban landscapes in ways …

Protecting Environmentally-Sensitive Areas And Promoting Tourism In The Back Patio Of The United States: Thoughts About Shared Responsibilities In Ecosystem And Biodiversity Protection, Colin Crawford

Publications

If the Dominican Republic is really in our back patio, what role, if any, do we bear in keeping it - as part of a property over which we have some dominion - in order? This article seeks to answer that question and, in the process, to provide some answers. In Part II, it will briefly lay out the urgency of strengthening the Dominican system of environmental protection areas, both for that nation and for the region of which it is a part. Part II thus endeavors to outline the importance of protected areas as the fulcrum of a larger …

Say You're Sorry: Court-Ordered Apologies As A Civil Rights Remedy, Brent T. White

Publications

This Article proposes that civil rights plaintiffs pursuing cases against governmental defendants should be entitled to receive court-ordered apologies as an equitable remedy. Part I discusses the importance of apology in American society and concludes that apology is culturally embedded as an essential component of everyday dispute resolution. Part II provides a brief overview of current legal scholarship in the area of apology, including the lack of such scholarship related to court-ordered apologies as a civil remedy. Part III argues that traditional forms of compensation fail to provide adequate relief to civil rights victims because they neglect psychological, emotional, and …

Frequently Asked Questions About Aall's First Hundred Years, Frank G. Houdek

Publications

To kick off the yearlong celebration of the centennial of the American Association of Law Libraries in 2006, Professor Houdek answers some basic questions about the history of AALL.

Book Review: Digital Crime And Forensic Science In Cyberspace, Gary C. Kessler

Publications

This document is Dr. Kessler's review of Digital Crime and Forensic Science in Cyberspace, by P. Kanellis, E. Kiountouzis, N. Kolokotronis, and D. Martakos. Idea Group Publishing, 2006. ISBN: 1-59140-873-3.

Colorado Revisits The Rule Against Perpetuities, Wayne M. Gazur

Publications

The 2006 Colorado General Assembly passed legislation adopting a 1000-year limitation applicable to interests in trust, practically eliminating the Rule Against Perpetuities ("RAP"). This article discusses the legislation's impact on the RAP in trust and non-trust situations.

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

Publications

No abstract provided.

Tax Strategies Are Not Patentable Inventions, Andrew A. Schwartz

Publications

No abstract provided.

The Ethics Of Electronic Record Sharing, Barbara A. Bintliff, Georgia Briscoe

Publications

No abstract provided.

The Interests Of "Peoples" In The Cooperative Management Of Sacred Sites, Kristen A. Carpenter

Publications

This essay contends that there is a structural element of federal law and policy that sets up legal battles over American Indian sacred sites. The Supreme Court has held that whatever rights groups may have at sacred sites, the federal government's rights as owner and sovereign of the public lands ultimately prevails. Federal agencies can, if they choose, accommodate various interests on the public lands, but such decisions are left to fluctuating executive policy and the discretion of land managers. This approach reflects well-established doctrine in public lands law, but leaves various citizens and groups clamoring for the federal government …

Intimate Homicide: Gender And Crime Control, 1880-1920, Carolyn B. Ramsey

Publications

The received wisdom, among feminists and others, is that historically the criminal justice system tolerated male violence against women. This article dramatically revises feminist understanding of the legal history of public responses to intimate homicide by showing that, in both the eastern and the western United States, men accused of killing their intimates often received stern punishment, including the death penalty, whereas women charged with similar crimes were treated leniently. Although no formal "battered woman's defense" existed in the late 1800s and early 1900s, courts and juries implicitly recognized one--and even extended it to abandoned women who killed their unfaithful …

The Crime Of Economic Radicalism: Criminal Syndicalism Laws And The Industrial Workers Of The World, 1917-1927, Ahmed A. White

Publications

No abstract provided.

The Renaissance Of Tribal Sovereignty, The Negative Doctrinal Feedback Loop, And The Rise Of A New Exceptionalism, Sarah Krakoff

Publications

No abstract provided.

An Environmental Pool For The Rio Grande, Kara Gillon

Publications

The Bureau of Reclamation and Corps of Engineers operate a series of dams, reservoirs, and levees along the Middle Rio Grande of New Mexico. The plight of the Rio Grande silvery minnow, an endangered species, and of the river itself demonstrates the need for a change from the emphasis on water development to sustainable river management. Conservation groups invoked the protections of the Endangered Species Act to catalyze this change. Recognizing that flexibility is necessary to meeting competing water needs, the groups also promoted the need for and several approaches to a sustainable and long-term approach to river management and …

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

Publications

No abstract provided.

Contextualizing The Losses Of Allotment Through Literature, Kristen A. Carpenter

Publications

In this article, the Author undertakes a law and literature approach to a major Indian law problem: understanding the losses of allotment. Allotment was a mid 19th - early 20th century federal legislative program to take large tracts of land owned by Indian tribes, allocate smaller parcels to individual Indians, and sell off the rest to non-Indians. The idea was that Indians would abandon traditional patterns of subsistence to become American-style farmers, and great tracts of land would be freed up for the advance of white settlement. A key component of the federal government's larger project of assimilating Indians into …

Foreword, Richard B. Collins

Publications

No abstract provided.

Pro Se Defendants And The Appointment Of Advisory Counsel, H. Patrick Furman

Publications

This article provides an overview of advisory counsel used to assist pro se criminal defendants, including the appointment and duties of advisory counsel, ethical obligations, and considerations for trial judges and prosecutors.

Restructuring The Debate Over Fetal Homicide Laws, Carolyn B. Ramsey

Publications

The worst problems with the fetal homicide laws that have proliferated around the nation are quite different than the existing scholarship suggests. Critics often argue that the statutes, which criminalize the killing of a fetus by a third party other than an abortion provider, undermine a woman's right to terminate her pregnancy. This concern is overstated. Although supported by anti-abortionists, many of the fetal homicide laws embody the perspective of the so-called "abortion grays," who eschew the absolutism of the doctrinaire pro-choice and anti-abortion camps. This Article explores how a contextual view of life-taking allows us to reconcile legal abortion …

Assessing Internal Revenue Code Section 132 After Twenty Years, Wayne M. Gazur

Publications

In 1984, Congress enacted Internal Revenue Code section 132 to bring more certainty to the taxation of employee fringe benefits. This article examines the impact of the legislation from the standpoint of administrative pronouncements and taxpayer litigation. The article concludes that section 132 has produced little litigation, but primarily because it has played the role of increasing exclusions. It remains unclear whether section 132 has also contained the growth of new forms of nonstatutory fringe benefits.

Merrill Lynch V. Dabit: Federal Preemption Of Holders' Class Actions, Mark J. Loewenstein

Publications

No abstract provided.

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

Publications

In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

The Unexpected Value Of Litigation: A Real Options Perspective, Joseph A. Grundfest, Peter H. Huang

Publications

In this Article, we suggest that litigation can be analyzed as though it is a competitive research and development project. Developing this analogy, we present a two-stage real option model of the litigation process that involves sequential information revelation and bargaining over the surplus generated by early settlement. Litigants are risk-neutral and have no private information. The model generates results that, we believe, have analytic and normative significance for the economic analysis of litigation

From an analytic perspective, we demonstrate that negative expected value (NEV) lawsuits are analogous to out of the money call options held by plaintiffs and that …

Three Versions Of Nonsense, Paul Campos

Publications

No abstract provided.

Old Ground And New Directions At Sacred Sites On The Western Landscape, Kristen A. Carpenter

Publications

The federal public lands contain places with both religious and secular value for American people. American Indians, in particular, hold certain natural features to be sacred, and visit them for ceremonies and worship. Simultaneously, non-Indians use the same places for economic, recreation, and many other purposes - and conflicts arise between these groups. In the past twenty years, a body of constitutional jurisprudence has developed to address questions of religious freedoms and public access rights on these lands that are owned and managed by the federal government. This article outlines the relevant First Amendment framework as well as recent statutes …

Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

Publications

This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

The Next Epidemic: Bubbles And The Growth And Decay Of Securities Regulation, Erik F. Gerding

Publications

This article explores how speculative bubbles undermine the effectiveness of securities regulations and spawn epidemics of securities fraud. A brief historical survey demonstrates that stock market bubbles almost invariably coincide with epidemics of securities fraud, and provides a compelling argument that the outbreak of fraud in the Enron era did not stem merely from factors unique to the 1990s, but from the dynamics of an asset price bubble as well.

Drawing on perspectives from securities law practice and economic theory, the article argues that bubbles dilute the deterrent effect of antifraud rules and promote deregulation. Both effects alter the calculus …

Learning From Wal-Mart, Melissa Hart

Publications

This article considers the landmark gender discrimination class action, Dukes v. Wal-Mart Stores, both as a prototype of an emerging litigation strategy and also as a case that is entirely unique. As part of a growing trend of gender discrimination class claims, Dukes has the potential to push the boundaries of the law to confront the pervasive, tenacious stereotypes that continue to limit women's workplace opportunities. The plaintiffs' arguments - both the narrative of discrimination their evidence set out and the legal strategies they chose - are strikingly similar to claims that have been made in many class action …