Law Commons^™

Creating Masculine Identities: Bullying And Harassment "Because Of Sex", Ann C. Mcginley

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This Article deals with group harassment of women and men in the workplace under Title VII of the 1964 Civil Rights Act. In Oncale v. Sundowner Offshore Services, the Supreme Court held that Title VII forbids harassment by members of the same sex, but it also emphasized that Title VII is implicated only if the harassment occurs "because of sex." Oncale's "because of sex" requirement has spawned considerable confusion in same-sex and different sex harassment cases. This Article focuses on four fact patterns that confuse courts, scholars, and employment lawyers. In the first scenario, men harass women in traditionally male …

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

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Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.

The Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii

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This Article offers a critique of Nevada's Harnisch cases and calls for the Nevada Supreme Court to reconsider its ruling. The authors begin by examining the historical development of the automobile exception, beginning with Carroll v. United States. There the Supreme Court reasoned that both probable cause and the exigency of the mobility of automobiles justified a search without a warrant. But almost seventy-five years later, in Maryland v. Dyson, the Court clarified its conclusion that the automobile exception has no separate exigency requirement. In turn, the authors will then examine Nevada's application of the automobile exception prior to 1998's …

The "Foundations" Of Anti-Foundationalism — Or, Taking The Ninth Amendment Lightly: A Comment On Farber's Book On The Ninth Amendment, Thomas B. Mcaffee

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The Ninth Amendment has served two purposes in constitutional discourse - to refute textualists and originalists, and to supply the historical grounds for reading the Constitution as a rights-foundationalist document. Professor McAffee's review of Professor Farber's book on the amendment raises the question whether, given Farber's prior rejection of foundationalism, it is possible for him to reconcile these two ends. It also suggests that, even if the amendment did grow from the environment that gave us the Declaration of Independence, the history gives reason to doubt that its purpose was to provide for the legal enforcement of unstated moral claims, …

Ketubah, The Marriage Contract Under Jewish Law, And Its Application In Secular Legal Systems, Marketa Trimble

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The article presents ketubah, an institute of Jewish law that is unknown in the current Czech academic literature; it describes its evolution and content, and the manner in which secular countries with large Jewish communities deal with it. Throughout the centuries ketubah achieved a standardized format that has been adjusted to local customs. Additionally, there are attempts to use ketubah to solve the problem of agunah – the problem of parties who have obtained a secular divorce but not a divorce under Jewish law because the other party prevented it. Some legal systems, such as those of the State of …

The Political Origins Of Secular Public Education: The New York School Controversy 1840-1842, Ian C. Bartrum

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As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy's legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes' objection to nonsectarianism as the 'sectarianism of infidelity'; and (2) New York Secretary of State John …

Against Legislation: Garcetti V. Ceballos And The Paradox Of Statutory Protection For Public Employees, Ruben J. Garcia

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In Garcetti v. Ceballos, the Supreme Court denied constitutional protection to a deputy prosecutor named Richard Ceballos. In reaching its decision, the Court pointed to the plethora of statutory protections that were available to government whistleblowers. A closer examination of these statutory alternatives reveals that they will not protect Ceballos. This is the paradox of statutory protection in labor and employment law-more sometimes is less for vulnerable workers.

This Article places the Garcetti case in the historical trajectory of worker protection—from no protection to statutory protection. This Article argues for a move toward constitutional and international protection …

No Law Respecting The Practice Of Religion, Leslie C. Griffin

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No abstract provided.

Economic Analysis Of Labor And Employment Law In The New Economy: Proceedings Of The 2008 Annual Meeting, Association Of American Law Schools, Section On Law And Economics, Ruben J. Garcia

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Professor Ruben Garcia shares his comments on Professor Jagdeep Bhandari's paper, Migration to Developed Countries and Labor Markets, while on this panel at the 2008 Annual Meeting of the section on Law and Economics of the American Association of Law Schools.

A Tangled Web Of Justice: American Indian And Alaska Native Youth In Federal, State, And Tribal Justice Systems, Addie C. Rolnick, Neelum Arya

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This policy brief is intended to serve as a resource for tribes, juvenile justice professionals, and other stakeholders interested in improving outcomes for Native youth by presenting the current state of knowledge on Native youth and their involvement in justice systems across the country.

Perelman In Legal Education: Recalling The Rhetorical Tradition Of Isocrates And Vico, Francis J. Mootz Iii

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This paper was presented on October 14, 2008 as part of a panel addressing "The Influence of Perelman in Legal Philosophy" at a conference hosted by the Perelman Center for the Philosophy of Law, Free University of Brussels.

I argue that Perelman's philosophy is connected with legal practice, but that he never made the connections between his philosophy and legal education explicit. I refer to the work of Isocrates and Vico, and conclude that Perelman's philosophy can teach us much about contemporary legal education as we strive to address the questions raised by the Carnegie Report.

Playing With Fire: The Science Of Confronting Adverse Material In Legal Advocacy, Kathryn M. Stanchi

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The Article seeks to use the science to determine what treatment of adverse information is most beneficial to the client's position. A careful study of the science reveals that, overall, it is advantageous for the advocate to volunteer negative information and rebut it early, and that a direct and in-depth confrontation of negative information is generally more effective than an indirect and cursory treatment.

A close look at the finer points of the data, however, reveals that the question of disclosure is a complicated one. Therefore, legal advocates should learn about the research findings and the theories underlying the research …

Surveillance And Identity Performance: Some Thoughts Inspired By Martin Luther King, Frank Rudy Cooper

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In this article, Professor Frank Cooper explores self-actualization, the process whereby people create their own identity by means of experimenting with different behaviors, in the context of Martin Luther King, Jr. and the FBI surveillance he was subjected to in the time leading up to his death. He argues that it is possible for people to live in an environment that is more or less alienating to the way in which they perform their identities. Performativity scholars such as Devon Carbado and Mitu Gulati say that people can have an internal sense of self that is distinct from the identity …

Adam, Martin And John: Iconography, Infrastructure, And America's Pathological Inconsistency About Medical Insurance, Jeffrey W. Stempel

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Following the ongoing health care and insurance debate, which has once again moved toward center stage in American politics, one might understandably get the impression that the most important names in the area are politicians such as Hillary Clinton, Barack Obama, John Edwards, John McCain, or Mitt Romney. Similarly, public intellectuals and pundits such as David Broder, David Brooks, Paul Krugman (or at least the New York Times and Wall Street Journal editorial pages) come to mind. Alternatively, health care scholars such as the instant Symposium participants or other health policy scholars such as Uwe Reinhardt, Troyen Brennan or Theodore …

Good Lawyers Should Be Good Psychologists: Insights For Interviewing And Counseling Clients, Jean R. Sternlight, Jennifer Robbennolt

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To work effectively with clients, witnesses, judges, mediators, arbitrators, experts, jurors, and other lawyers, attorneys must have a good understanding of how people think and make decisions, and must possess good people skills. Yet, law schools have tended to teach very little, directly, about human behavior, and current critiques of legal education do not focus on the importance of psychological insights to attorneys. In particular, lawyers and legal education have not taken full advantage of the great strides that have been made in the field of scientific psychology in recent decades. Similarly, psychologists are not doing as much as they …

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

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This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

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Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

The Impact Of Neuroscience On Health Law, Stacey A. Tovino

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Advances in neuroscience have implications for criminal law as well as civil and regulatory law, including health, disability, and benefit law. The role of the behavioral and brain sciences in health insurance claims, the mental health parity debate, and disability proceedings is examined.

(Almost) Everything We Learned About Pleasing Bankruptcy Judges, We Learned In Kindergarten, Nancy B. Rapoport, Roland Bernier Iii

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In this essay, we demonstrate that most ethics violations (at least the ones that irritate bankruptcy judges) are also violations of simple rules of behavior that people should have learned in kindergarten.

Identical Cousins? On The Road With Dilution And The Right Of Publicity, Mary Lafrance

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The dilution doctrine and the right of publicity have a great deal in common, because both represent property-like rights that have evolved from legal doctrines largely unrelated to property concerns. Although both doctrines have engendered controversy in the United States, the dilution doctrine generally evokes greater skepticism and confusion. This Article evaluates how these concepts are viewed in a number of jurisdictions outside the United States. From this examination, two conclusions emerge. First, despite the similarities between the doctrines, countries do not tend to adopt or reject them in tandem. Second, the degree to which each doctrine achieves widespread and …

Law On The Street: Legal Narrative And The Street Law Classroom, Elizabeth L. Macdowell

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This Article argues that the failure of anti-discrimination law to address the problems of subordination reflects the hegemonic perspective in legal narratives. For the lawyer concerned with social change, it is imperative to identify these narratives and the ways in which they not only inhibit deep social change, but may perpetuate the conditions of subordination. Yet, law school polices against the consciousness necessary for the lawyer to identify the hegemonic narrative in the law, and often instills attitudes, which are antithetical to the project of social change. In this context, Street Law - a practical law course taught by law …

The Right To The City, Ngai Pindell

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The identity and character of cities in America have been profoundly influenced by race. In the past, laws mandating the segregation of African American and white urban residents through racially discriminatory housing and lending policies created racial geographic boundaries within cities and between cities and suburbs. The impact of this racial segregation in cities can be seen in the creation and persistence of an urban African American underclass in some cities as well as many urban neighborhoods marked by racial homogeneity and economic underinvestment.

The racial climate in the United States in more recent years has been decidedly different. Overt …

Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel

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The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …

After The Battle Of The Forms, Francis J. Mootz Iii

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Commercial parties continue to fight the battle of the forms, but electronic contracting is quickly rendering this practice obsolete. In this article I assess the legal landscape for commercial parties after the battle of the forms. In Section I, I briefly describe the (relatively) settled law under U.C.C. § 2-207. I then describe how these rules permit commercial parties to erect a force-field to protect themselves from being subjected to unwanted terms, and the developments in web-based contracting and recent case law applying contract formation principles to electronic contracting. Finally, I discuss how the growth of electronic contracting will eliminate …

Beyond Cardboard Clients In Legal Ethics, Katherine R. Kruse

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This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and …

The Human Dignity Of Clients, Katherine R. Kruse

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This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

In Re Gault And The Promise Of Systemic Reform, Katherine R. Kruse

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The right to counsel for juveniles in delinquency cases that the Supreme Court declared in In re Gault can be seen as an effort at systemic reform - a purposeful alteration of the structure, procedure, or resources of a law-administering system that aims to better align the system's operation with the principles or ideals on which it is based. Although the Court articulated the benefits of counsel in terms of individual representation, juvenile defenders are increasingly called upon to expand their role to include broader forms of advocacy aimed at reforming juvenile justice system practice and procedure. The predominant stakeholder …

Vico's "Ingenious Method" And Legal Education, Francis J. Mootz Iii

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Contemporary discussions about the need to reform legal education, culminating in the 2007 Carnegie Report, should be put into a broader historical, philosophical and ethical perspective. Three hundred years ago the Italian humanist, Giambattista Vico delivered his famous oration, "On the Study Methods of Our Time," in which he lamented the rise of Cartesian critical philosophy at the expense of the cultivation of imagination, prudence and eloquence. Vico discussed law and legal education as his primary example, and his oration therefore provides an incredible resource for our contemporary deliberations.

Part One considers the literature addressing the demise of legal professionalism …

Time Is Of The Essence: Seize The Opportunity For Fulfillment In 2009, Francine J. Lipman

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No abstract provided.

A Democratic Theory Of Amicus Advocacy, Ruben J. Garcia

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Amicus curiae ("friend of the court”) participation in litigation has flourished in recent years as many groups and individuals seek to influence the outcome of litigation. Amicus filers are not parties and judges have wide discretion to reject amicus briefs if they believe that the amicus participation does not add anything to the briefs already filed by the parties. In three recent cases, Seventh Circuit Court of Appeals Judge Richard Posner has rejected amicus filings and promised to closely scrutinize applications to file amicus briefs in the future. Judge Posner's influence has led an increasing number of judges, primarily at …