Law Commons^™

Rediscovering The Sawyer Solution: Bundling Risk For Protection And Profit, Jeffrey W. Stempel

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No abstract provided.

The Law's Mystery, Linda L. Berger, Jack L. Sammons

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What is the continuing significance of Cohen v. California, the 1971 U.S. Supreme Court decision holding that “Fuck the Draft” is a message protected by the First Amendment? Using Cohen as an exemplar, this article offers a new theory about how to understand the law and judicial opinions.

The theory begins in a recognition of the “law” as resting upon mystery and uncertainty, a mystery that is also the source of the law’s enchantment. It is this enchantment that we depend upon for the law to be authoritative rather than authoritarian and reducible to the political and thus to …

Book Review: "Die Gemeinfreiheit: Begriff, Funktion, Dogmatik (The Public Domain: Concept, Function, Dogmatics)" By Alexander Peukert, Marketa Trimble

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The reviewer considers a recent book by Alexander Peukert, the professor of civil and commercial law who specializes in international intellectual property law at Goethe University in Frankfurt am Main, Germany. Peukert has devoted the book to defining the limits of the public domain – the realm of intellectual activity in which works are free for anyone to use because the works are not protected by intellectual property rights, are protected but the protection has expired, are subject to an exception to the rights under the law, or are unprotected because the owner of the rights chooses not to enforce …

A Short Road To Statehood, A Long Road To Washington, Rachel J. Anderson

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This article documents the election in 2012 of the first African-American to represent Nevada in the U.S. Congress, Steven Horsford. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue." Sources are on page 21 of the issue.

Constitutional Value Judgments And Interpretive Theory Choice, Ian C. Bartrum

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No abstract provided.

Metaphor In Law As Poetic And Propositional Language, Linda L. Berger

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No abstract provided.

Conflicts Of Interest In Medicine, Research, And Law: A Comparison, Stacey A. Tovino

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Several of the remarks and articles presented in this symposium have addressed conflicts of interest arising during the provision of legal counsel to individuals who are elderly, including specific conflicts of interest implicated by estate planning, retirement planning, and long-term care planning. Topics examined thus far include conflicts of interest with respect to the application of rules of confidentiality within state rules of professional conduct to elderly clients with impaired decision-making capacity; conflicts of interest involving representative payees for Social Security benefits; conflicts of interest in distributions when parents enter into marriages that are unprotected by law; and conflicts of …

A "Common" Proposal, Stacey A. Tovino

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The Federal Policy for the Protection of Human Subjects (the “Common Rule”) is codified in separate regulations by seventeen federal departments and agencies, including the Department of Health and Human Services (HHS). HHS’s version of the Common Rule currently contains a basic policy for the protection of all human subjects, codified at Subpart A of the Common Rule, as well as special provisions governing human subjects research involving three sets of vulnerable populations, including pregnant women, fetuses, and neonates (Subpart B); prisoners (Subpart C); and children (Subpart D). This Article proposes that HHS amend the Common Rule to add a …

Cognitive Illiberalism, Summary Judgement, And Title Vii: An Examination Of Ricci V. Destefano, Ann C. Mcginley

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No abstract provided.

Rethinking U.S. Legal Education: No More "Same Old, Same Old", Nancy B. Rapoport

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In this Essay, I suggest that we should think about how to create a curriculum that encourages students to develop a variety of skill sets. Law students simply don’t need three years of Socratic questioning regarding the fine details of court opinions. They need a wide range of experiences, preferably building on skill sets (like the twenty-six Berkeley factors) that effective lawyers have developed. A law school’s curriculum should have courses that focus on different factors in each year of law school. Ultimately, what we should be teaching law students is how to develop the judgment to advise clients. Teaching …

Identities Cubed: Perspectives On Multidimensional Masculinities Theory, Ann C. Mcginley

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No abstract provided.

Wagging, Not Barking: Statutory Definitions, Jeanne Price

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Legislative text is distinguished by the frequency with which it specifies the meaning of the words it employs. More than 25,000 terms are defined in the United States Code alone. In few other contexts is there a perceived need to so carefully and repeatedly clarify meaning. This Article examines the roles played by definitions in a reader's understanding and application of a legislative text; it demonstrates that the effects of defining are not as straightforward as we might assume. The discussion is framed by the distinction between legislation as a communication vehicle and as an instrument of governance. In some …

Theorizing From Particularity: Perpetrators And Intersectional Theory On Domestic Violence, Elizabeth L. Macdowell

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The role of identity-based stereotypes about perpetrators in domestic violence cases has not received much attention in legal scholarship, which has instead focused on the identities of victims. However, stereotypes governing who is a recognizable victim (e.g., that victims are white, middle-class, passive, and dependent women in heterosexual relationships) cannot by themselves explain why nonconforming victims are sometimes successful in family court cases and other, more “perfect” victims are not. Drawing on intersectionality theory, which studies the ways experiences are shaped by the interaction of multiple identity categories, I argue that understanding this phenomenon requires a relational analysis that examines …

The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter Brandon Bayer

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In National Federation of Independent Business v. Sebelius, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld the Patient Protection and Affordable Care Act's most provocative feature-the Individual Mandate-under Congress's taxing power. In so doing, the Court rejected what appeared to be the Individual Mandate's more applicable constitutional premise-Congress's authority to regulate interstate commerce. Yet, neither the Constitution's Taxing Clause nor its Commerce Clause provide the ultimate answer as to whether Congress may regulate the multi-billion dollar healthcare market by compelling unwilling persons to buy private health insurance. The final determination of the …

Through The Eyes Of Jurors: The Use Of Schemas In The Application Of "Plain-Language" Jury Instructions, Sara Gordon

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"Through the Eyes of Jurors" is the first law journal article to consider all of the major cognitive psychology studies that examine how "schemas," or the preexisting notions jurors have about the law, shape jurors' use of jury instructions, even when those jurors are given "plain-language" instructions. This Article examines the social science research on schema theory in order to advance our understanding of how schemas continue to influence jurors' use of jury instructions, even when those jurors are given "plain language" instructions.

A significant body of legal literature has examined jurors' use and understanding of jury instructions, and many …

Dubious Deference: Reassessing Appellate Standards Of Review In Immigration Appeals, Michael Kagan

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The long-standing doctrine of deferential review by appellate courts of findings of fact by administrative agencies is seriously flawed for two main reasons. First, the most prominent justification for deference relies on the empirical assumption that first-instance adjudicators are best able to determine the truth because they can directly view witness demeanor. Decades of social science research has proven this assumption about the value of demeanor false. Second, in principle, the deference rule applies to all types of administrative adjudication, with no attention to the relative gravity of interests at stake in different types of cases or to the varying …

The Patent System In Pre-1989 Czechoslovakia, Marketa Trimble

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The chapter analyzes patent law in Czechoslovakia in the period from 1945 until the end of communist rule in 1989. In addition to reviewing the legislative development of patent law – the laws on the books – the chapter explains the law in action, which includes the application of the law in practice and the attitudes of Czechoslovak society toward inventive activities and patenting. The chapter shows that post-1945 Czechoslovak patent law drew on a highly developed pre-1940 Czechoslovak patent law and practice that was based on the Austrian patent law inherited by Czechoslovakia in 1918 when it split from …

Blacks In Nevada Elections, Rachel J. Anderson

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This article is a snapshot of challenges, contributions, and achievements of African Americans in Nevada elections. It is part of "A Special Series on African Americans in Nevada Politics - Past and Present" on pages 16-21 of the issue.

Book Review: "Bishop & Zucker On Nevada Corporations And Llcs", Rachel J. Anderson

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In this piece written for The Writ, the official publication of the Washoe County Bar Association, Prof. Rachel Anderson reviews Bishop and Zucker on Nevada Corporations & LLCs.

The Role Of Foreign Authorities In U.S. Asylum Adjudication, Fatma E. Marouf

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U.S. asylum law is based on a domestic statute that incorporates an international treaty, the U.N. Protocol Relating to the Status of Refugees. While Supreme Court cases indicate that the rules of treaty interpretation apply to an incorporative statute, courts analyzing the statutory asylum provisions fail to give weight to the interpretations of our sister signatories, which is one of the distinctive and uncontroversial principles of treaty interpretation. This Article highlights this significant omission and urges courts to examine the interpretations of other States Parties to the Protocol in asylum cases. Using as an example the current debate over social …

Behavioral Legal Ethics, Jean R. Sternlight, Jennifer K. Robbennolt

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Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. It is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical …

Adr's Place In Foreclosure: Remedying The Flaws Of A Securitized Housing Market, Lydia Nussbaum

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Millions of Americans lost their homes during the foreclosure crisis, an unprecedented disaster still plaguing local and national economies. A primary factor contributing to the crisis has been the failure of conventional foreclosure procedures to account for the new realities of securitization and the secondary mortgage market, which transformed the traditional borrower-lender relationship. To compensate for the shortcomings of conventional foreclosure procedures and stem the tide of residential foreclosure, state and local governments turned to ADR processes for a solution. Some foreclosure ADR programs, however, have greater potential to avoid foreclosures than others. This Article comprehensively examines the key components …

Metaphor And Analogy: The Sun And Moon Of Legal Persuasion, Linda L. Berger

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Drawing on recent studies of social cognition, decision making, and analogical processing, this article recommends that lawyers turn to novel characterizations and metaphors to solve a particular kind of persuasion problem that is created by the way judges and juries think and decide. According to social cognition researchers, we perceive and interpret new information by following a process of schematic cognition, analogizing the new data we encounter to the knowledge structures embedded in our memories. Decision-making researchers differentiate between intuitive and reflective processes (System 1 and System 2), and they agree that in System 1 decision making, only the most …

Masculine Law Firms, Ann C. Mcginley

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This article describes the masculine culture in law firms and analyzes how this culture harms both men and women because of their gender. Part II explains MMT, and analyzes the masculine practices that exist in modern law firms. Part III studies a lawsuit brought by a law firm associate, a white male father of two who allegedly was fired in retaliation for taking leave under the Family Medical Leave Act and because of his failure to adhere to the macho stereotypes prevalent in the law firm. Part IV analyzes how the law should respond to masculine norms, and suggests that …

Law, Language, Crime, And Culture: The Value And Risks Of Comparative Law, Christopher L. Blakesley

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Words, language, culture, and literature are so important to us human beings that it should come as little surprise that they are part of our law. This article considers language and law in general with a focus on issues of criminal justice, both domestic and international. I examine how and why comparative law is valuable in a criminal procedure course, and generally for domestic and international criminal justice. My examination begins by looking back to our common roots in crime, punishment, and expiation, with a special focus on the role of torture and its impact on current criminal justice systems. …

First Things First: Juvenile Justice Reform In Historical Context, David S. Tanenhaus

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In my remarks today, I will explain how conceptions of children's rights have been used to shape the American juvenile justice system's development. First, I will argue that we should take a long view of this history. Next, I will focus on three specific eras of twentieth-century reform. Finally, I will conclude with a call for more research on the prosecutor's role in administering juvenile justice. This historical perspective, I believe, can help us to answer the challenging question of what children's rights should be.

Wag The Dog: Using Incidental Intellectual Property Rights To Block Parallel Imports, Mary Lafrance

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Federal law grants owners of intellectual property rights different degrees of control over parallel imports depending on the nature of their exclusive rights. While trademark owners enjoy strong control over unauthorized imports bearing their marks, their protection is less comprehensive than that granted to owners of copyrights and patents. To broaden their rights, some trademark owners have incorporated copyrighted material into their products or packaging, enabling them to block otherwise lawful imports in contravention of the policies underlying trademark law. A 2013 Supreme Court decision has significantly narrowed the importation ban of copyright law, but there may be pressure to …

When Fear Rules In Law’S Place: Pseudonymous Litigation As A Response To Systematic Intimidation, Benjamin P. Edwards

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When reprisals and intimidation make certain types of cases too risky for most plaintiffs to file, courts should preserve access to justice by allowing more plaintiffs to proceed pseudonymously. As it stands, courts may be deciding requests to proceed under a pseudonym without understanding the full scope of possible retaliation risks, including that past retaliation may work continuing harm through the stress created by fear.

Unusually heightened retaliation risks may be best exemplified by the nasty reprisals befalling plaintiffs in separation of church and state cases. Although multiple books addressed the issue in the mid-90s, the violent trend has continued …

Nfib V. Sebelius: Proportionality In The Exercise Of Congressional Power, David Orentlicher

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With its opinion on the constitutionality of the Affordable Care Act (ACA), the U.S. Supreme Court sparked much discussion regarding the implications of the case for other federal statutes. In particular, scholars have debated the significance of the Court's recognition of an anticoercion limit to the Spending Clause power.

When it recognized an anticoercion limit for the ACA's Medicaid expansion, the Court left considerable uncertainty as to the parameters of that limit. This essay sketches out one valuable and very plausible interpretation of the Court's new anticoercion principle. It also indicates how this new principle can address a long-standing problem …

The Fda’S Graphic Tobacco Warning And The First Amendment, David Orentlicher

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No abstract provided.