Law Commons^™

Please Don't Squeeze The Charities: Taxing Charitable Contributions During An Economic Downturn, Grace S. Lee

Grace S Lee

Non-profit charitable organizations often experience enhanced financial strain during an economic crisis like the current one, since they frequently suffer not only a drop in donations but also an increase in demand for their services. This Article addresses this “squeeze” on the non-profit sector by proposing ways to increase levels of charitable giving by individuals and corporations during a recession, primarily through changes to the charitable deduction. In particular, this Article proposes converting the current deduction to a credit that is available to all taxpayers and providing a tax credit to employers who second their employees to work for charitable …

Revisiting The Original "Tea Party": The History Of Regulating Food Consumption In America, Alison Peck

Alison Peck

No abstract provided.

Hostile Educational Environments: On The Apparent First Amendment Barrier To Cyberbullying Punishments, Ari E. Waldman

Ari E Waldman

This Article is one in a series about bullying and cyberbullying in schools. I argue that the proper analysis for a First Amendment challenge to school discipline for off-campus misuse of the Internet to harm or offend a member of the school community depends on the nature of the offending behavior. For students who are punished for a single incident – what I will call cyberattacking – a Tinker analysis makes sense. Except in extraordinary circumstances, the First Amendment should immunize these single-incident attackers from punishment. For students who engage in a pattern of repeated incidents of cyberattacking – what …

Marshall And O'Connor: Categorical First Justices And Their Impact On Federal Indian Law, Richard L. Barnes

richard l barnes

Thurgood Marshall was the first African-American appointed to the United States Supreme Court. Sandra Day O’Connor was the first woman appointed. As firsts in their category their historical role is assured, but their legacy is broader. This Article examines one piece of their legacies: Is it plausible to find some of their character as ‘Firsts’ in their opinions for the Court in Indian cases? Specifically can we find a legacy of categorical pioneering in the Justices’ treatment of American Indians as another category of people underrepresented on the Court?

My working hypothesis was that the sympathy some might expect from …

Credit Card Ills: Reducing Racial Disparities In Debt, Andrea Freeman

Andrea Freeman

Credit card debt, particularly in conjunction with the subprime lending crisis and severe economic recession, jeopardizes the ability of many African American and Latino households to maintain financial viability. The credit card industry’s business model relies on the payment of fees and high interest rates by the poorest consumers to generate profits and subsidize credit card use by the richest. Documented racial disparities in credit card debt represent and perpetuate structural inequities that require regulatory intervention. Both increased consumer protection and structural reform are necessary to reduce credit card debt disparities arising from present and past discrimination and subordination. The …

Justice Stevens, Religion, And Civil Society, Gregory P. Magarian

Gregory P. Magarian

Did Justice John Paul Stevens, who retired from the Supreme Court last year, harbor a bias against religion? During his 35 years on the Court, Justice Stevens showed little favor for religious claimants. In Establishment Clause cases he advocated a strong doctrine of separation between church and state. In the most contentious Free Exercise Clause cases, he flatly opposed exempting religious believers from laws that interfered with their religious exercise. This combination of positions, unique among the Justices of the Burger, Rehnquist, and Roberts Courts, has led commentators to charge Justice Stevens with disdain for religion. In this article, Professor …

The Overhyped Path From Tinker To Morse: How The Student Speech Cases Show The Limits Of Supreme Court Decisions -- For The Law And For The Litigants, Scott A. Moss

Scott A Moss

Each of the Supreme Court’s high school student speech cases reflected the social angst of its era. In 1965’s Tinker v. Des Moines Independent Community School District, three Iowa teens broke school rules to wear armbands protesting the Vietnam war. In 1983, amidst parental and political upset about youth exposure to sexuality in the media, Bethel School District v. Fraser and Hazelwood School District v. Kuhlmeier allowed censoring of an innuendo-filled student government speech and a school newspaper article on teen pregnancy and parental divorce. In 2007, Morse v. Frederick paralleled the 2000s rise of reality television and online self-exposure: …

Does Tort Law Deter?, W. Jonathan Cardi, Randy Penfield, Albert H. Yoon

W. Jonathan Cardi

For nearly four decades, economic analysis has dominated academic discussion of tort law. Courts also have paid increasing attention to the potential deterrent effects of their tort decisions. But at the center of each economic model and projection of cost and benefit lies a widely-accepted but grossly under-tested assumption that tort liability in fact deters tortious conduct. This article reports the results of a behavioral science study that tests this assumption as it applies to individual conduct. Surveying over 700 first-year law students, the study presented a series of vignettes, asking subjects to rate the likelihood that they would engage …

Redistricting And The Territorial Community, Nicholas Stephanopoulos

Nicholas Stephanopoulos

As the next redistricting cycle begins, the courts are stuck in limbo. The Supreme Court has held unanimously that political gerrymandering can be unconstitutional—but it has also rejected every standard suggested to date for distinguishing lawful from unlawful district plans. This Article offers a way out of the impasse. It proposes that courts resolve gerrymandering disputes by examining how well districts correspond to natural geographic communities. Districts ought to be upheld when they coincide with such communities, but struck down when they needlessly disrupt them. This approach, which I call the “territorial community test,” has a robust theoretical pedigree. In …

Credit Card Ills: Reducing Racial Disparities In Debt, Andrea Freeman

Andrea Freeman

Credit card debt, particularly in conjunction with the subprime lending crisis and severe economic recession, jeopardizes the ability of many African American and Latino households to maintain financial viability. The credit card industry’s business model relies on the payment of fees and high interest rates by the poorest consumers to generate profits and subsidize credit card use by the richest. Documented racial disparities in credit card debt represent and perpetuate structural inequities that require regulatory intervention. Both increased consumer protection and structural reform are necessary to reduce credit card debt disparities arising from present and past discrimination and subordination. The …

Credit Card Ills: Reducing Racial Disparities In Debt, Andrea Freeman

Andrea Freeman

Credit card debt, particularly in conjunction with the subprime lending crisis and severe economic recession, jeopardizes the ability of many African American and Latino households to maintain financial viability. The credit card industry’s business model relies on the payment of fees and high interest rates by the poorest consumers to generate profits and subsidize credit card use by the richest. Documented racial disparities in credit card debt represent and perpetuate structural inequities that require regulatory intervention. Both increased consumer protection and structural reform are necessary to reduce credit card debt disparities arising from present and past discrimination and subordination. The …

The Zero Sum Game Of Language Accommodations In The Workplace, James B. Leonard

James B. Leonard

A society experiencing high levels of immigration such the United States must grapple with the issue of whether and how to respect minority language preferences. The challenges are particularly acute in the workplace where language is an integral factor in productivity and efficiency. Under current federal law, embodied in the EEOC’s Guidelines on Discrimination Because of National Origin, employers covered by Title VII of the Civil Rights Act of 1964 are restricted to English-only work rules that serve a “business necessity.” Rules failing to meet this standard are considered a form of national origin discrimination. Academic commentators support this approach …

Title Ix: The Trojan Horse In The Struggle For Female Athletic Coaches To Attain Equal Opportunities In Intercollegiate Sports, Ryan Richman

Ryan Richman

The enactment of Title IX of the Education Amendments Acts of the 1970s has significantly altered the framework of females in coaching athletic teams. The purpose of Title IX is to provide all women with educational opportunities in both the academic and athletic realm. Generally, Title IX is thought to have been an enormous advancement for females participating in athletics, but as my note explores, it has not been effective in all areas, particularly intercollegiate female coaches. In fact, it is quite the opposite, and since the enactment of Title IX, the number of female coaches has been cut almost …

What's Wrong With "Torts As Wrongs" (Or Redirecting Civil Recourse Theory), Alan Calnan

Alan Calnan

In Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory of tort law. A purely descriptive account, civil recourse theory has both positive and negative components. The positive side holds that tort law is a scheme of private rights for the redress of legal wrongs, while the negative side says the law eschews strict liability and forbids instrumentalism. The present paper challenges both prongs of this theory, identifying three problems which undermine its credibility. First, Goldberg and Zipursky do not objectively observe tort law and uncritically …

King And The Crits: Exploring The Length And Limits Of Dr. Martin Luther King Junior’S Vision Of Legal Justice, Carlton Waterhouse

Carlton Waterhouse

ABSTRACT The notion of legal justice has been recognized since the time of the ancient Greeks and the concept extends well beyond Western philosophy and jurisprudence. Distinct from other types of justice, legal justice addresses the nature of law and its dictates as well as the responsibility of citizens to obey it. Although Dr. Martin Luther King, Jr. lacked the developed legal analysis of jurisprudence scholars, Dr. King made a meaningful contribution to jurisprudence discourse of his time by opening the discussion to the broader society and centering it on a critical issue of his day – racial segregation. This …

The People's Trade Secrets?, David S. Levine

David S Levine

The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that voting machine working so that my vote gets counted? Is that public school examination fair and accurate? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government …

Woman Scorned?: Resurrecting Infertile Women's Decision-Making Autonomy, Jody L. Madeira

Jody L Madeira

Legal scholarship portrays women as reproductive decision-makers in odd and conflicting ways. The disparity between depictions of infertile women and women considering abortion is particularly striking. A woman seeking infertility treatment, even one who faces no legal obstacles, is often portrayed as so emotionally distraught and desperate that her ability to give informed consent is potentially compromised. Yet, the legal academy has roundly rejected similar characterizations of pregnant women considering abortion, depicting them as confident and competent decision-makers. This Article argues that, compared to portrayals of women seeking abortions, legal scholars’ characterizations of infertile women inexplicably deny women’s ability to …

Cyberlaw: The Unconscionability,/ Unenforceability Of Contracts (Shrinkwrap, Clickwrap, And Browsewrap) On The Internet: A Multijurisdictional Analysis Showing The Need For Oversight., Paul J. Morrow Sr

Paul J. Morrow Sr

This paper analyzes the differences between the common law of contracts and the way various jurisdictions in the United States have applied new contract law doctrine as applied to cyber contracts. The paper also has recommendations on how to reconcile those differences. These differences could lead to a very unfair application of contract precedent essentially overturning 200 years of contract common law. This is the age of cyberspace and cyberlaw. If we do not begin to reconcile these differences, it could change the way our society does business. Do we adhere to precedent or are the changes warranted under the …

When The Wise (Latina) Judge Meets A Living Constitution - Why It Is A Matter Of Perception, Laura A. Hernandez

Laura A Hernandez

At the time of Justice Sonia Sotomayor’s confirmation hearings, much was made of a statement she made in a 2001 lecture at the University of California, Berkeley, School of Law concerning a judge’s approach to the cases that come before her. “. . . . I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.” The resulting backlash and condemnation caused Justice Sotomayor to apologize for her endorsement of the idea that a wise Latina would, and should, …

The Skinny On The Federal Menu-Labeling Law & Why It Should Survive A First Amendment Challenge, Dayna B. Royal

Dayna B. Royal

In America’s battle of the bulge, the bulge is winning. Contributing to this obesity epidemic is Americans’ increasingly widespread practice of eating at restaurants where deceptively fattening food is served to patrons who grossly underestimate the calories in their meals.

To combat this problem and promote public health, Congress enacted a federal menu-labeling law, which requires that restaurants post calorie information next to menu offerings. The constitutionality of this law has yet to be tested in court. But New York City’s law, enacted prior, has survived First Amendment scrutiny.

Like New York’s menu-labeling law, the federal law should withstand a …

Islamic Legal Authority In A Non-Muslim Society: Designing The Islamic Credit Union Of Bellevue, Washington, Todd Williams

Todd Williams

This Article examines the current state of Islamic law within a community of Muslims in the United States as it relates to Shari’a-compliant financial products. After briefly reviewing the history of Islamic finance and Islamic authority structures within the United States, I rely on interviews with multiple parties involved in the establishment of one of the first Islamic credit unions in the United States to explore the development of Islamic law within American regulation and cultural mores. I examine the authority structure present among Muslims in the Puget Sound area, and I examine the qualities that define a credible religious …

Islamic Legal Authority In A Non-Muslim Society: Designing The Islamic Credit Union Of Bellevue, Washington, Todd Williams

Todd Williams

This Article examines the current state of Islamic law within a community of Muslims in the United States as it relates to Shari’a-compliant financial products. After briefly reviewing the history of Islamic finance and Islamic authority structures within the United States, I rely on interviews with multiple parties involved in the establishment of one of the first Islamic credit unions in the United States to explore the development of Islamic law within American regulation and cultural mores. I examine the authority structure present among Muslims in the Puget Sound area, and I examine the qualities that define a credible religious …

Four Property Wrongs Of Self-Storage Law, Jeffrey D. Jones

Jeffrey D Jones

Self-storage leases are troubling. Under such leases, self-storage facility owners may freely dispose of defaulting tenants’ medical and tax records, family ashes, heirlooms, etc. in the same manner as they would treat fungible items such as chairs or a bookshelf. Facility owners are legally entitled to do so through facility-sponsored auctions, most of which are unrestricted by any duty to conduct commercially reasonable sales. Still worse, these legal self-storage practices have generated a clandestine culture of treasure-hunting that often leaves tenants—some of whom default due to medical emergencies, bankruptcy or who are homeless working poor—with little opportunity either to regain …

Deferred Prosecution Agreements: Prosecutorial Balance In Times Of Economic Meltdown, Sharon Oded

Sharon Oded

At times when the American economy faces enormous challenges, traditional prosecutorial measures that involve high public spending and immense collateral risks may hamper economic recovery. Economic meltdowns, such as the one we have been experiencing in recent years, call for a refreshment of the prosecutorial toolkit aimed at controlling corporate misconduct. This paper discusses the newly emerged enforcement mechanism, Deferred Prosecution Agreements (DPAs), in light of the current national goal of economic recovery. It portrays the evolution of DPAs and the stimulus for its expansion that followed recent Corporate America scandals. Based on the evaluation of the major promises and …

Unprotected Txtng:It’S Not The Only Driving Distraction Congress Should Be Worried About, Amanda K. Koch

Amanda K. Koch

This Article explores the history of cell phone use and the new era of text-based messaging while driving. It details the legislative response of the states and the federal government towards the problem of distracted driving. Further, it explores the Constitutionality of the pending federal legislation. In addition, this Article discusses the role that new technology may play in curtailing the problems associated with text- based communications while driving. Finally, this Article offers why broader language in the ALERT Drivers Act will help address the dangers of all distracting activities that occur while driving.

Four Property Wrongs Of Self-Storage Law, Jeffrey D. Jones

Jeffrey D Jones

Self-storage leases are troubling. Under such leases, self-storage facility owners may freely dispose of defaulting tenants’ medical and tax records, family ashes, heirlooms, etc. in the same manner as they would treat fungible items such as chairs or a bookshelf. Facility owners are legally entitled to do so through facility-sponsored auctions, most of which are unrestricted by any duty to conduct commercially reasonable sales. Still worse, these legal self-storage practices have generated a clandestine culture of treasure-hunting that often leaves tenants—some of whom default due to medical emergencies, bankruptcy or who are homeless working poor—with little opportunity either to regain …

Relational Malpractice And The Transformation Of Healthcare Law, Sagit Mor, Orna Rabinovich-Einy

Sagit Mor

Legal scholarship in recent decades has devoted considerable attention to the "malpractice crisis." However, the vast majority of this literature has overlooked the essence of the problem. Mainstream legal writing on malpractice has tended to frame the problem as either an insurance crisis or a litigation crisis. In this article, we offer an alternative understanding of the nature of the current malpractice predicament: the decline of the doctor-patient relationship. We highlight the fact that contemporary doctor-patient interactions resemble a battle zone: a majority of physicians view "every patient as a potential malpractice lawsuit," while patients complain that their physicians are …