Law Commons^™

Sacrificing Diversity For “Quality”: How Judicial Performance Evaluations Are Failing Women & Minorities, Rebecca Wood, Sylvia R. Lazos, Mallory Waters

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Because voters rely on judicial performance evaluations when casting their ballots, it is important that policymakers work diligently to compile valid, reliable and unbiased information about our sitting judges. This paper analyzes attorney surveys of judicial performance in Nevada from 1998‐2008. The survey instrument is similar to those used throughout the country for judicial evaluation programs. Unfortunately, none of the readily‐obtainable objective measures of judicial performance can explain away difference in scores based on race and sex. Minority judges and female judges score consistently and significantly lower than do their white male counterparts, all other things equal. These results are …

What Is The Sound Of A Corporation Speaking? “Just Another Voice,” According To The Supreme Court, Linda L. Berger

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When the Supreme Court overrules itself, and reaches a result different from the conclusions of Congress, the Executive Branch, and more than 20 state legislatures, the Court has the burden of persuasion. Did the five justices in the majority in Citizens United v. Federal Election Commission meet that burden? The author argues that the answer is no, setting aside the question of whether the majority reached the "right" conclusion about the constitutionality of limiting corporate spending in election campaigns. In this essay, the author explains her answer and addresses a related question: did the Citizens United majority observe the rules …

Erasing Boundaries: Masculinities, Sexual Minorities, And Employment Discrimination, Ann C. Mcginley

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This Article analyzes the application of employment discrimination law to sexual minorities--lesbians, gays, bisexuals, transgender and intersex individuals. It evaluates Title VII and state anti-discrimination laws' treatment of these individuals, and is the first article to use masculinities research, theoretical and empirical, to explain employment discrimination against sexual minorities. While the Article concludes that new legislation would further the interests of sexual minorities, it posits that it is neither necessary nor sufficient to solving the employment discrimination problems of sexual minorities. A major problem lies in the courts' binary view of sex and gender, a view that identifies men and …

Once Upon A Time In Law: Myth, Metaphor, And Authority, Linda H. Edwards

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We have long accepted the role of narrative in fact statements and jury arguments, but in the inner sanctum of analyzing legal authority? Surely not. Yet cases, statutes, rules, and doctrines all have stories of their own. When we talk about legal authority, using our best formal logic, we are actually swimming in a sea of narrative, oblivious to the water around us. As the old Buddhist saying goes, "We don’t know who discovered the ocean, but it probably wasn’t a fish."

This article teases out several familiar archetypes hidden in discussions of cases and statutes. In the midst of …

The Past, Presence, And Future Of Legal Writing Scholarship: Rhetoric, Voice, And Community, Linda L. Berger, Linda H. Edwards, Terrill Pollman

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This article welcomes a new generation of legal writing scholars. In the first generation, legal writing professors debated whether they should be engaged in legal scholarship at all. In the second generation, assuming that they should be engaged in scholarship, legal writing professors discerned and defined different genres of and topics for the scholarship in which some or all of us were or should be engaged. In this article, we map the contours of a third generation of legal writing scholarship - one that integrates the elements of our professional lives and allows us to engage more effectively with our …

How To Avoid The Constraints Of Rule 10b-5(B): A First Circuit Guide For Underwriters, Eric H. Franklin

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If an underwriter knows that a prospectus contains a material misrepresentation, may that underwriter use the prospectus to sell securities, or would that expose the underwriter to liability under Rule 10b-5(b)? The United States Court of Appeals for the First Circuit's surprising and rather disconcerting answer was delivered on March 10, 2010, in Securities and Exchange Commission v. Tambone. In Tambone, the First Circuit held that the Securities and Exchange Commission (SEC) could not hold underwriters liable for such misrepresentations if they did not draft the prospectus. Ostensibly, this holding is nothing more than a judicial check on the SEC's …

Social Security Benefits Formula 101: A Practical Primer, Francine J. Lipman

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No abstract provided.

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

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In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Expert Witnesses: The Nevada Supreme Court Clarifies Adherence To Nrs 50.275 And Judicial Discretion, Expressly Declining To Embrace The Federal Daubert Approach, Jeffrey W. Stempel

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No abstract provided.

Snyder V. Phelps: Searching For A Legal Standard, Leslie C. Griffin

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No abstract provided.

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

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No abstract provided.

Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee

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No abstract provided.

The Weiner-Rogers Law Library: An Invaluable Legal Resource, Jeanne Price

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No abstract provided.

Book Review: "For The Common Good: Principles Of American Academic Freedom", David S. Tanenhaus

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No abstract provided.

Saving Private Ryan's Tax Refund: Poverty Relief For All Working Poor Military Families, Francine J. Lipman

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No abstract provided.

Symposium, The Legal Writing Institute: Celebrating 25 Years Of Teaching And Scholarship, Linda H. Edwards

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This is the transcript of Mercer Law Review’s Symposium, The Legal Writing Institute: Celebrating 25 Years of Teaching & Scholarship. In this Symposium Linda Edwards, among other panelists, discussed the work that goes into producing scholarship.

Law Students Compete In Society Of Advocates, Sara Gordon

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This article discusses the Society of Advocates (SOA) at the Boyd School of Law. The SOA is an organization whose members represent the school in interscholastic advocacy competitions throughout the United States.

Holding The World Bank Accountable For The Leakage Of Funds From Africa's Health Sector, Fatma E. Marouf

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This article explores the accountability of international financial institutions (IFIs), such as the World Bank, for human rights violations related to the massive leakage of funds from sub-Saharan Africa’s health sector. The article begins by summarizing the quantitative results of Public Expenditure Tracking Surveys performed in six African countries, all showing disturbingly high levels of leakage in the health sector. It then addresses the inadequacy of good governance and anticorruption programs in remedying this problem. After explaining how the World Bank’s Inspection Panel may serve as an accountability mechanism for addressing the leakage of funds, discussing violations of specific Bank …

Report And Recommendations On The Status Of Clinical Faculty In The Legal Academy, Katherine R. Kruse

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"Report and Recommendations on the Status of Clinical Faculty in the Legal Academy" identifies and evaluates the most appropriate modes for clinical faculty appointments in the legal academy, concluding that legal education is best served when full-time clinical faculty are appointed predominantly on a unitary tenure-track model. Drawing on data collected through a survey of clinical program directors and faculty, the Report analyzes the five most identifiable clinical faculty models: unitary tenure track; clinical tenure track; long-term contract; short-term contract; and clinical fellowships. It determines that, despite great strides in the growth of clinical legal education in the last 30 …

Refugee Credibility Assessment And The “Religious Imposter” Problem, Michael Kagan

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Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in …

The Power Of Priming In Legal Advocacy: Using The Science Of First Impressions To Persuade The Reader, Kathryn M. Stanchi

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The contribution of this Article is the synthesis of legal advocacy and the psychological studies of priming. It shows advocates how priming can help them make better strategic decisions in their briefs and gives specific examples of different ways to use priming in persuasive writing. Part I defines the basic concept of priming and gives examples of different ways that priming works. Part II begins the application of the priming studies to law. The focus of Part II is on priming the reader's emotional response through theme and story. It also examines how emotions can impact decision making in unexpected …

Facilitating Wage Theft: How Court Use Procedural Rules To Undermine Substantive Rights Of Low-Wage Workers, Nantiya Ruan

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In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs’ recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability …

A Writing Life, Linda H. Edwards

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This essay was written on the occasion of the 25th anniversary of the Legal Writing Institute (LWI), celebrated at Mercer University School of Law, LWI’s current home. In a sense the essay is retrospective, for it is written to honor the scholars whose work has moved us toward a vision of legal writing scholarship and all it can offer. Many of those experienced and inspiring scholars have kindly offered their advice for inclusion in this essay. That advice is probably the most important content included here, and it is placed, appropriately, at the end of the text as the essay’s …

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

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Chaim Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman’s argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled “Perelman’s Th eory of Argumentation as a Rejection of Natural Law.”

However, my thesis is precisely that Perelman’s theory of argumentation connects to the natural law tradition in interesting and productive …

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel

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Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but incorrect. Insurance policies are more accurately viewed as bilateral contracts. In addition, the unilateral characterization of insurance policies introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures …

Ugly American Hermeneutics, Francis J. Mootz Iii

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This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

Setting Foot On Enemy Ground: Cease-And-Desist Letters, Dmca Notifications And Personal Jurisdiction In Declaratory Judgment Actions, Marketa Trimble

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In declaratory judgment actions brought by alleged infringers against rights holders, such as actions for declaration of invalidity or non-infringement of intellectual property rights, U.S. courts have long maintained that sending a cease-and-desist letter alone, absent other acts in an alleged infringer's forum, is not a sufficient basis for personal jurisdiction over the rights holder who mailed them to the alleged infringer's forum. Notwithstanding the similarities between cease-and-desist letters and notifications under the Digital Millennium Copyright Act (DMCA), the Tenth Circuit Court of Appeals recently decided that sending a notification alone does establish a basis for personal jurisdiction over the …

Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles

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This article discusses what duties counsel to the debtor-in-possession owe (and to whom they owe these duties) when the debtor-in-possession wants to do something illegal or just plain dumb.

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

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This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

The Insurance Policy As Statute, Jeffrey W. Stempel

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Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective primacy …