Law Commons^™

Appropriate(D) Moments, Richard H. Chused

Articles & Chapters

No abstract provided.

Elder Abuse And The Court System: Oil And Vinegar, Bernard A. Krooks, Elizabeth Valentin

Articles & Chapters

No abstract provided.

Transitional Justice And Judicial Activism— A Right To Accountability?, Ruti Teitel

Articles & Chapters

Victims of systemic rights abuses, their families, and non-governmental organizations are turning to international and regional human rights tribunals to address the failure of states to investigate, prosecute, and remedy past human rights violations. In many cases this relates to acts that occurred decades ago and for which a previous repressive regime was responsible. In other cases there may be powerful interests within the state, such as the police or security service, that are complicit with the violations in question. This Article explores the historical and political contexts in which these cases have arisen, how the courts approach the question …

When Rights Work: Fragile Networks, Improbable Discourses And Unpredictable Globalizations Of Law - A Contemporary Thai Case Study, Frank W. Munger

Articles & Chapters

This is a case study of the legal practice of a young Thai “cause lawyer.” The study joins a growing number by other scholars who are skeptical of global convergence on a single form of the “rule of law,” and who argue instead that legal development in the new states of Asia and elsewhere will be path-dependent. Though this research examines advocacy by a relatively small group of practitioners, I argue that the study, together with my other case studies of social justice practitioners challenging the authority of government in different ways, provides a window on the development of law’s …

Law, History And Lessons In The Crispr Patent Conflict, Jacob S. Sherkow

Articles & Chapters

Predicting the outcome of the ongoing patent disputes surrounding genome-editing technology is equal parts patent analysis and history.

Genome-editing technology based on clustered, regularly interspaced, short palindromic repeats (CRISPR) and CRISPR associated protein 9 (Cas9) has generated great excitement in both academia and industry. But a potential patent dispute between two sets of inventors has left the biotech community pondering its fate. Understanding several facets of patent law and history may provide some lessons about the probable — and best — outcome for the dispute.

Introduction To Combating Threats To The International Financial System: The Financial Action Task Force, William P. Lapiana

Articles & Chapters

The U.S. legal profession is not as familiar with the Financial Action Task Force (FATF) as it should be. That is perhaps the single most important message of this issue published by the New York Law School Law Review, which now makes available to everyone the information and analyses presented at the April 25, 2013 symposium.1 It is the substance of the work published here that gives meaning to that message.

Empowering Distributed Autonomous Companies, Houman B. Shadab

Other Publications

No abstract provided.

May A Bankruptcy Court Award Fees To Debtor's Counsel For Its Work Defending Its Fee Application: Baker Botts V. Asarco (14-103) [Notes], Marshall E. Tracht

Other Publications

The Bankruptcy Code authorizes the retention of lawyers and other professionals to provide necessary services to the trustee or debtor in possession. The lawyers and other professionals must submit fee applications itemizing their work for approval by the bankruptcy court, and those applications can be challenged by creditors and other parties in interest. This case asks whether a bankruptcy court has the authority to award fees to a law firm to cover its work in defending against challenges brought to its fee applications.

5th Circuit Likely To Strike Down Gay Marriage Bans: An Analysis Of The Hearing, Ari Ezra Waldman

Other Publications

No abstract provided.

'Love Is Just A Four-Letter Word': Sexuality, International Human Rights, And Therapeutic Jurisprudence, Michael L. Perlin, Alison Lynch

Articles & Chapters

One of the most controversial social policy issues that remains dramatically underdiscussed in scholarly literature is the sexual autonomy of persons with psychosocial and intellectual disabilities, especially those who are institutionalized. This population – always marginalized and stigmatized – has traditionally faced a double set of conflicting prejudices: on one hand, people with disabilities are infantilized (as not being capable of having the same range of sexual desires, needs and expectations as persons without disabilities), and on the other, this population is demonized (as being hypersexual, unable to control base or primitive urges). Although attitudes about the abilities and capabilities …

Forensic Psychiatry And The Law: Litigation, Advocacy, Scholarship And Teaching, Michael L. Perlin

Articles & Chapters

No abstract provided.

There's A Dyin Voice Within Me Reaching Out Somewhere: How Tj Can Bring Voice To The Teaching Of Mental Disability Law And Criminal Law, Michael L. Perlin

Articles & Chapters

In this article, I discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this is all positive and supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship and in “real life,” I also share some information that is far from optimistic with regard to the way that TJ is being reacted to by …

You Might Have Drugs At Your Command: Reconsidering The Forced Drugging Of Incompetent Pre-Trial Detainnes From The Perspectives Of International Human Rights And Income Inequality, Michael L. Perlin, Meredith Schriver

Articles & Chapters

Ever since the Supreme Court's 2003 decision in Sell v. United States, 539 U.S. 166 (2003), there has been a cottage industry of commentary on the question of whether the state can medicate an incompetent defendant for the purpose of making him or her competent to stand trial. Moreover, there have been multiple cases interpreting Sell broadly and narrowly, both in the context of medication issues and in the context of other treatments. Because of the vagueness of certain terminology, questions such as what a "serious" crime is, what "substantially" meant to the Court in Sell, and how the least …

Reflections On The Fiftieth Anniversary Of The March And The Speech: History, Memory, Values, Edward A. Purcell, Jr.

Articles & Chapters

This article considers the significance of the Civil Rights Movement of the 1950s and 1960s, focusing on one of its signature events, the March on Washington in 1963 and the “I Have a Dream” speech that Martin Luther King gave on the occasion. Blending historical analysis with personal memory, it considers the long struggle for civil rights, the impact of both the March and the Speech, and the meaning they held for those who shared their ideals and sought to fulfill their goals. The article then traces the decline of the Civil Rights Movement in the altered political and social …

The Practice Value Of Experiential Legal Education: An Examination Of Enrollment Patterns, Course Intensity, And Career Relevance, Margaret Reuter, Joanne M. Ingham

Articles & Chapters

How will law schools meet the challenge of expanding their education in lawyering skills as demanded from critics and now required by the ABA? This article examines the details of the experiential coursework (clinic, field placement, and skills courses) of 2,142 attorneys. It reveals that experiential courses have not been comparably pursued or valued by former law students as they headed to careers in different settings and types of law practice. Public interest lawyers took many of these types of courses, at intensive levels, and valued them highly. In marked contrast, corporate lawyers in large firms took far fewer. When …

I Expected It To Happen/I Knew He'd Lost Control: The Impact Of Ptsd On Criminal Sentencing After The Promulgation Of Dsm-5, Michael L. Perlin

Articles & Chapters

The adoption by the American Psychiatric Association of DSM-5 significantly changes (and in material ways, expands) the definition of post-traumatic stress disorder (PTSD), a change that raises multiple questions that need to be considered carefully by lawyers, mental health professionals, advocates and policy makers.

My thesis is that the expansion of the PTSD criteria in DSM-5 has the potential to make significant changes in legal practice in all aspects of criminal procedure, but none more so than in criminal sentencing. I believe that if courts treat DSM 5 with the same deference with which they have treated earlier versions of …

How Teaching About Therapeutic Jurisprudence Can Be A Tool Of Social Justice, And Lead Law Students To Personally And Socially Rewarding Careers: Sexuality And Disability As A Case Example, Michael L. Perlin, Alison Lynch

Articles & Chapters

Therapeutic jurisprudence (TJ) asks us to look at law as it actually impacts people’s lives and focuses on the law’s influence on emotional life and psychological well-being. It suggests that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and — when consistent with other values served by law — should attempt to bring about healing and wellness. The ultimate aim of TJ is to determine whether legal rules and procedures or lawyer roles can or should be reshaped to enhance their therapeutic potential while not subordinating due process principles. An inquiry into therapeutic outcomes …

Creating A Building A Disability Rights Information Center For Asia And The Pacific Clinic: Of Pedagogy And Social Justice, Michael L. Perlin, Catherine Barreda, Katherine Davies, Mehgan Gallagher, Nicole Israel, Stephanie Mendelsohn

Articles & Chapters

No abstract provided.

Tilting At Stratification: Against A Divide In Legal Education, Rebecca Roiphe

Articles & Chapters

Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. This idea is not new. A similar proposal emerged in the early twentieth century. This article draws on the historical debate to argue that this simplistic approach cannot solve the myriad problems facing the legal profession and legal education. Supporters of separate tiers of law school rely on a caricature of the early history to argue that the Bar is acting in a protectionist way to ensure its own monopoly and keep newcomers …

The History Of Patenting Genetic Material, Jacob S. Sherkow, Henry T. Greely

Articles & Chapters

The US Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc. declared, for the first time, that isolated human genes cannot be patented. Many have wondered how genes were ever the subjects of patents. The answer lies in a nuanced understanding of both legal and scientific history. Since the early twentieth century, “products of nature” were not eligible to be patented unless they were “isolated and purified” from their surrounding environment. As molecular biology advanced, and the capability to isolate genes both physically and by sequence came to fruition, researchers (and patent offices) began to apply …

Beyond The Fourth Amendment: Additional Constitutional Guarantees That Mass Surveillance Violates, Nadine Strossen

Articles & Chapters

The ongoing dragnet communications surveillance programs raise multiple statutory and constitutional problems. Each problem alone, and even more so the whole combination, provides a serious ground at least for vastly curbing such programs, if not ending them. This Article reviews constitutional challenges to these programs to evaluate the likely success of current and future litigants.

Are Prosecutors The Constitution's Gatekeepers?, Rebecca Roiphe

Articles & Chapters

No abstract provided.

Reducing Secrecy: Balancing Legitimate Government Interests With Public Accountability, Nadine Strossen

Articles & Chapters

No abstract provided.

The Price Of Equal Justice: How Establishing A Right To Counsel For People Who Face Losing Their Homes Helps Tackle Economic Inequality, Andrew Scherer

Articles & Chapters

No abstract provided.

What Are The Article Iii Limits To Bankruptcy Court Jurisdiction, And Can Parties Consent To Expanded Jurisdiction: Wellness International Network V. Sharif (13-935), Marshall E. Tracht

Articles & Chapters

No abstract provided.

Empowering Law Students To Overcome Extreme Public Speaking Anxiety: Why Just Be It Works And Just Do It Doesn't, Heidi K. Brown

Articles & Chapters

For law students experiencing extreme public speaking anxiety, which can manifest from variations of introversion, shyness, social anxiety, or social phobia, the Socratic method of intellectual discourse — either in the classroom or in the first-year oral argument experience — can trigger such a high level of apprehension that it may threaten even an otherwise strong student’s confidence in his or her future as an attorney. Extreme public speaking anxiety can pose a serious impediment to processing and comprehending legal concepts, and engaging with professors, classmates, and substantive material. Unless the anxious law student takes steps to address the roots …

Complex Experimental Federalism, Doni Gewirtzman

Articles & Chapters

Federalism has long been celebrated as a structure for policy experimentation. Yet judges, scholars, and politicians have often treated experimentation as an automatic consequence of decentralization and policy devolution, instead of examining the down and dirty mechanics that drive systems to explore new solutions and generate a steady stream of useful policy innovations.

This Article addresses this gap in the literature by using complexity theory to better understand how experimental federalism works. It argues that federalism’s ability to produce meaningful policy experiments is heavily dependent on two dynamics — heterogeneity and interdependence — that are prominent in the research on …

Trafficking In Law: Cause Lawyer, Bureaucratic State And Rights Of Human Trafficking Victims In Thailand, Frank W. Munger

Articles & Chapters

In this case study of a young, Thai “cause lawyer”, advocacy for human rights is considered in context. The most important elements of that context are the path of development of Thai political and legal institutions, globalisation of law, and the networks of relationships that penetrate the state. The case study shows that human rights advocacy by NGO lawyers can adapt creatively to unpromising conditions under which courts provide little access or oversight. At the same time, the case study raises profound questions about the ultimate independence of cause lawyers when the state must be made a partner in order …

Making Peace With Your Enemy: Nelson Mandela And His Contributions To Conflict Resolution, Jean R. Sternlight, Andrea Schneider, Carrie Menkel-Meadow, Robert Mnookin, Richard Goldstone, Penelope Andrews

Articles & Chapters

This is a transcription of the tenth anniversary celebration of the Saltman Center for Conflict Resolution at the William S. Boyd School of Law, University of Nevada, Las Vegas. The event was held in honor of NelsonMandela, and included a panel discussion about his contributions to the dispute resolution field.

Panelists included Dean Penelope Andrews of the University of Cape Town Faculty of Law, Prof. Carrie Menkel-Meadow of the U.C. Irvine School of Law, Prof. Robert Mnookin of Harvard Law School, and Judge Richard Goldstone, a former member of the Constitutional Court of South Africa.

An introduction was made by …

Amplifying Abuse: The Fusion Of Cyberharassment And Discrimination, Ari Ezra Waldman

Articles & Chapters

Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. Danielle Keats Citron not only teases out these effects in her masterful work, Hate Crimes in Cyberspace; she also makes the profound conclusion that these personal effects are part of a larger social cancer that breeds sexism, subjugation, …