Law Commons^™

Promoting Social Change In Asia And The Pacific: The Need For A Disability Rights Tribunal To Give Life To The Un Convention On The Rights Of Persons With Disabilities, Michael L. Perlin

Michael L Perlin

ABSTRACT

There is no question that the existence of regional human rights courts and commissions has been an essential element in the enforcement of international human rights in those regions of the world where such tribunals exist. In the specific area of mental disability law, there is now a remarkably robust body of case law from the European Court on Human Rights, some significant and transformative decisions from the Inter-American Commission on Human Rights, and at least one major case from the African Commission on Human Rights.

In Asia and the Pacific region, however, there is no such body. Although …

Willful [Color-] Blindness: The Supreme Court's Equal Protection Of Ascription, Aaron J. Shuler

Aaron J Shuler

Rogers Smith in his "Beyond Tocqueville, Myrdal and Hartz: The Multiple Traditions in America," warns of novel legal systems reconstituting ascriptive American inequality. The post-Warren Courts' approach to Equal Protection, specifically their unwillingness to consider disparate impact and the difference between invidious and benign practices, betrays an "ironic innocence" as described by James Baldwin to a history of racial discrimination and domination, and a disavowal of a hiearchy that the Court perpetuates.

Our Children, Ourselves: Ensuring The Education Of America's At-Risk Youth, Elizabeth Lamura

Elizabeth LaMura

This Article suggests using Connecticut as a model for (1) effective re-enrollment legislation and (2) framing litigation to challenge inequities in the education of at-risk youth. Children who are removed from the mainstream public school system – suspended, expelled or arrested and subsequently adjudicated delinquent – face innumerable obstacles when attempting to reintegrate into the public school system. In some circumstances, these youth are completely foreclosed from educational opportunities. In addition, instead of ensuring re-enrollment into public school, these youth are often diverted into Alternative Education Placements which provide inadequate learning environments and sub-par educational instruction, further hindering their ability …

Accommodating Vulnerability, Annette Ruth Appell

annette appell

Unlike other social categories, such as race, gender, sexual identity, and disability, the category of childhood has received little critical examination in the legal academy. Like other socio-legal categories with natural referents, however, childhood masks the contingency and normativity of behavior, expectations, power, and regulation, rendering the social order natural and inevitable. Childhood also scripts behavior and produces subordination and privilege in a manner unique to the adult–child dichotomy, but which also intersects with class, gender, race, sexuality, sexual identity, and ability. As such, the category bears examination not only for what it reveals about ourselves—adults, but also how to …

"Destinations:" A Comparison Of Sex Trafficking In India And The United States, Sarah Montana Hart

Sarah Montana Hart

This paper finds similarities in the sex trafficking industries in the United States and India, and offers some suggestions for the international community moving forward.

The Frozen Embryo: Scholarly Theories, Case Law, And State Proposals, Shirley D. Howell

Shirley D. Howell

Executive Summary

Fertility experts have been able to create human embryos outside the body since the 1970’s. Yet today both moral and legal questions persist regarding the use of In Vitro Fertilization (IVF). Seemingly, the use of IVF to assist infertile individuals and couples to procreate would be regarded almost uniformly positively. The procedure, however, has produced serious unintended consequences that continue to trouble theologians, physicians, and the courts. The ongoing legal debate centers on two principal questions: First, whether a frozen embryo should be regarded as a person, property, or something else; and, second, how to resolve disputes between …

"Because That's Where The Money Is": A Theory Of Corporate Legal Compliance, William Bradford

william bradford

Upon his capture in 1934, the legendary bank robber Willie Sutton was asked by FBI agents, Why do you rob banks, Willie? Sutton, who believed the question to be rhetorical, replied, dryly, Because that's where the money is. In other words, Sutton understood his interrogator to be inquiring as to why he robbed banks rather than, say, homes, or gas stations, or church offering plates. Had he understood the query as intended - i.e., what was it about Willie Sutton the impelled Willie Sutton to crime when many others, struggling to survive the Great Depression, were not? - Sutton could …

Reciprocal Antidiscrimination Arguments, Yofi Tirosh

Yofi Tirosh

This Article addresses a common characteristic of antidiscrimination law: To what extent should one antidiscrimination campaign be held accountable for other, related, discriminatory structures that it does not and cannot purport to correct? Plaintiffs in antidiscrimination cases are sometimes expected to account for the larger social context in which their claim is made. Defendants invoke this larger context as a way of rebutting the discrimination claim, by arguing that the plaintiff’s claim has “discriminatory residue” that would exacerbate related discriminatory structures. For example, in a case in which same-sex couples seek the right to contract with surrogate mothers, the defendant …

The Right To Be Fat, Yofi Tirosh

Yofi Tirosh

Policy discussions on the increasing weight of Americans, portrayed as a problem of monumental and grim outlook, preoccupy public health experts, scientists, economists, and the popular media. In the legal field, however, discussions have tended to focus on whether weight should be a protected category under antidiscrimination law and on cost-benefit models for creating incentives to lose weight. This Article takes a novel approach to thinking about weight in the legal context. First, it maps the diverse ways in which the law is recruited to “the war against obesity,” thus providing an unprecedented account of what it means to be …

Social Media Campaigns As An Emerging Alternative To Litigation, Michael Tristan Morales

Tristan Morales

This article analyzes the likely impact of social media on the legal arena. In particular, it seeks to identify the extent to which social media campaigns might emerge as a viable alternative to litigation in cases where an injury occurs. The Internet has given individuals an easily accessible and broadly impactful platform for voicing allegations of indignity and injustice. By exploring the impact of social media campaigns on two areas of law in which litigation has long been deemed invaluable, consumer protection and employment law, this article seeks to demonstrate that the Internet might also soon overhaul the way we …

"Healthism": A Critique Of The Antidiscrimination Approach To Health Insurance And Health-Care Reform, Jessica Roberts

Jessica L. Roberts

Discussions of health-status discrimination permeated the debate surrounding the 2010 health-care reform legislation, infusing those conversations with the language of civil rights. However, insurance is by its very nature discriminatory. Thus, an antidiscrimination paradigm is not the appropriate normative framework for addressing disparities in health-insurance coverage. This Article identifies an unresolvable tension between the antidiscrimination approach embraced by health-care reform advocates and the private health-insurance industry, which the Affordable Care Act seeks to preserve. The private health-insurance industry has historically disadvantaged individuals based on health status through risk-assessment and cost-sharing mechanisms. Proponents of health-care reform vilified these accepted business practices …

Feminism In The Global Political Economy: Contradiction And Consensus In Cuba, Deborah M. Weissman

Deborah M. Weissman

Much has been written about transnational feminist networks and their impacts on the local condition of women. Transborder feminist organizing has reshaped discourses and practice from the local to the international. Global feminist endeavors have influenced the development of international legal standards affecting the circumstances of women and contributed to the gender mainstreaming of human rights initiatives. At the same time, feminist transnationalism has often been identified as the source of tension as efforts have at times resulted in support for a neoliberal agenda propounding empowerment and self-esteem issues, which in turn, has raised questions about who is defining the …

Minors & Cosmetic Surgery: An Argument For State Intervention, Derrick Diaz

Derrick Diaz Mr.

This article focuses on whether a state may intervene to prevent minors from obtaining medically unnecessary cosmetic surgery. The article concludes that a state may prohibit such a procedure without running afoul of parental liberty interests by showing severe risk of harm to the minor. Furthermore, the article proposes that minors not have access to cosmetic surgery unless found by a court to be medically necessary. If medical necessity has been shown, then the parental presumption must control. However, if medical necessity has not been shown, then the service should be prohibited the same as any regulated service or product …

The Great Gun Control War Of The Twentieth Century--And Its Lessons For Gun Laws Today, David B. Kopel

David B Kopel

A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association began to get involved in politics, and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the 20th century, and into the 21st.

Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, …

Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent

Brannon P. Denning

Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …

Ten Elements Of "Real" Ethics In The Practice Of Law (And Life), David Barnhizer

David Barnhizer

The legal profession has been “running a game” on its clients and on American society in its claim that it can self-regulate. The system of ethical regulation as practiced by the legal profession and courts is not a “real” system nor can it even be said to be an Ideal system. It is a deceptive pretense and pretension. It is time to stop the deception and to construct a new way of regulating lawyers and holding them to account for deficiencies and neglect. Many lawyers will not accept this interpretation either because of self-interest or to avoid facing the uncomfortable …

A Therapeutic Jurisprudence Analysis Of The Use Of Eminent Domain To Create A Leasehold, Carol Zeiner

Carol Zeiner

A THERAPEUTIC JURISPRUDENCE ANALYSIS OF THE USE OF EMINENT DOMAIN TO CREATE A LEASEHOLD

ABSTRACT

Therapeutic jurisprudence provides an excellent tool to analyze and guide the development of the law on the use of eminent domain to create leaseholds. These are takings in which the objective is for the condemnor to become a tenant under a “lease,” rather than the fee simple owner.

I am perhaps the only scholar who has written extensively on the topic of takings to create a leasehold. In a previous work I provided an exhaustive analysis of the conclusion that government can use eminent domain …

Semiprocedural Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' …

Interests In The Balance: Fda Regulations Under The Biologics Price Competition And Innovation Act, Parker Tresemer

Parker Tresemer

Recent biotechnology advances are yielding potentially life-saving therapies, but without FDA regulations designed to minimize product costs, patients will continue to be unable to afford these expensive biologic products. Many believe that these prohibitive costs stem from weak competition from generic biologic products, also known as follow-on biologics. To correct this deficiency, and to address the often conflicting regulatory and policy concerns associated with biologic products, Congress enacted the Biologics Price Competition and Innovation Act. The Act created an abbreviated approval pathway for biologic products and, if effective, could increase competition while driving down product costs. But legislation alone is …

Compromising The Safety Net: How Limiting Tax Deductions For High-Income Donors Could Undermine Charitable Organizations, Patrick Tolan

Patrick E. Tolan Jr.

President Obama’s recent budget proposals have contemplated reducing the top rate for charitable deductions (and all itemized deductions) to twenty-eight percent. Because America’s largest donors are those in the highest marginal tax brackets, efforts to limit deductibility of charitable donations could have a chilling effect on charitable giving.

In this article the author looks at motivations for charitable donations and specifically at the impact of tax deductibility as a motivating factor. It takes a historical look at the philanthropic surveys and econometric models and examines empirical data concerning impacts of significant changes to the tax code in the 1980s that …

Note: Guiding The Modern Lawyer Through A Global Economy: An Analysis On Outsourcing And The Aba's 2012 Proposed Changes To The Model Rules, Patrick Poole

Patrick Poole

Over the last few decades, the dramatic changes that have occurred in the global economy have similarly altered the landscape for outsourced work both domestically and internationally. One study estimates that as many as 3.3 million white-collar jobs could be shipped abroad by 2015. This growing trend has also substantially affected the unique nature of the legal field. For the past year and a half, the American Bar Association (ABA) Ethics 20/20 Commission has been considering changes to the Model Rules of Professional Conduct as they relate to domestic and international outsourcing. The revision process has included soliciting input from …

An 'All Of The Above' Theory Of Legal Development (Revised), Larry A. Dimatteo

Larry A DiMatteo

The paper provides a brief background of Nathan Isaacs, his work, and his theory of legal development. Invariably, when analyzing Isaacs’ claim that history proves that law developments in cycles (status to contract to status) the role of Jewish legal history in the development of his thought will play an important role in understanding his theory. Isaacs’ was that rare scholar knowledgeable in the common law, as well as, civil law. A pragmatic realist, as well as a devote Jew. He was a legal historian and very much a man of the present. He possessed a Ph.D. in Economics, and …

Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge R. Roig

Jorge R Roig

The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French

Christopher C. French

As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …