Law Commons^™

Criminal Courts And Procedure, Stephen C. Thaman

All Faculty Scholarship

This chapter provides both a historical and modern perspective on criminal procedure around the world.

The Law Review Games, Miriam A. Cherry, Paul M. Secunda

All Faculty Scholarship

A Parody in which The Hunger Games meet the law review submission process.

A Horrible Fascination: Segregation, Obscenity, & The Cultural Contingency Of Rights, Anders Walker

All Faculty Scholarship

Building on current interest in the regulation of child pornography, this article goes back to the 1950s, recovering a lost history of how southern segregationists used the battle against obscenity to counter the Supreme Court’s ruling in Brown v. Board of Education. Itself focused on the psychological development of children, Brown sparked a discursive backlash in the South focused on claims that the races possessed different cultures and that white children would be harmed joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal …

The Mark Of A Resold Good, Yvette Joy Liebesman, Benjamin Wilson

All Faculty Scholarship

Over the past ten years, the Internet has revolutionized the resale market ― casual resellers have migrated from garage sales, swap meets, and classified ads, to eBay and Craigslist, turning hobbies into lucrative businesses. This has affected the sales of new goods and troubled manufacturers, who seek to curtail the growth of this secondary market.

Most of these on-line resales should be protected by the first-sale doctrine, a well-known defense to infringement claims that applies across patent, copyright, and trademark law. Simply stated, once a manufacturer sells a product, it may not interfere with secondary sales of that product. Yet …

Undo Undue Hardship: An Objective Approach To Discharging Federal Students Loans In Bankruptcy, Aaron N. Taylor

All Faculty Scholarship

A debtor seeking to discharge student loans in bankruptcy must prove that paying the debt would cause an undue hardship upon him and his dependents. Undue hardship, however, is an undefined concept, flummoxing debtors, creditors and judges alike. The result of this ambiguity is rampant inconsistency in the manners in which similarly-situated debtors (and creditors) are treated by the courts. This article argues that the undue hardship standard should be replaced by a framework that uses debt service thresholds to determine the propriety of federal student loan bankruptcy discharges. Eligibility for discharge would depend on outstanding loan amounts, debtor income …

Homeownership — Dream Or Disaster?, Peter W. Salsich

All Faculty Scholarship

This article discusses the impact of the foreclosure crisis on the housing prospects of American families. Foreclosure is governed by state law, which establishes a procedure to enable lenders to recover property from defaulting borrowers through a public sale process. States authorize two different methods, judicial foreclosure, in which the foreclosure process requires a judicial hearing, and power of sale foreclosure, in which a trustee can offer mortgaged property to the highest bidder at a public sale after giving twenty days public notice. Judicial foreclosure is administered by state courts in twenty-three states. The power of sale foreclosure process is …

Advancing Health Law & Social Justice In The Clinic, The Classroom And The Community, John J. Ammann

All Faculty Scholarship

Law school clinics are paramount to developing law school graduates who embrace their “special responsibility for the quality of justice,” as well as their role in ensuring equal access to justice for marginalized, impoverished and underserved members of society. This responsibility permeates every aspect of lawyering, especially the practice of health law. This article explores, first, how clinics and social justice fit into the practice of health law and into the training of future health law attorneys and policymakers. Second, it defines social justice in the context of health and, finally, it provides examples that demonstrate how we can, and …

The Post-Revolutionary Period In Corporate Law: Returning To The Theory Of The Firm, Matthew T. Bodie

All Faculty Scholarship

Law and economics revolutionized the study of corporate law. However, while modern finance theory and attendant empirical research continue to explore the effects of law on shareholder value, the theory of the firm literature has been underutilized. This paper, presented as part of the Berle III: Theory of the Firm Symposium at Seattle University School of Law, argues that corporate law scholars should turn their attention back to this literature and develop a deeper understanding of the corporation as firm.

Gender, Family, And Work, Marcia L. Mccormick

All Faculty Scholarship

The country has prohibited sex discrimination since the 1960’s, but society continues to view women and men differently because women give birth, breastfeed, and are traditional caregivers. This article takes a historical look at court decisions and legislative efforts to address equality where men and women are not similarly situated and also explores recent developments and current debates, such as caregiver discrimination, lactation rooms and breaks, and the Affordable Care Act’s contraceptive mandate. Despite the abundance of legislation and court decisions over the past forty years, much progress still needs to be made.

American Legal History Survey: Syllabus, Anders Walker

All Faculty Scholarship

This syllabus provides an overview of American Legal History, focusing on the manner in which law has been used to organize American society. Several themes will be traced through the semester, including law’s role in encouraging innovation and regulating social relations, in part through the elaboration of legal disciplines like property, tort, contract, criminal law, tax, business associations, administrative law, environmental law, securities regulation, commercial law, immigration, and health law. Emphasis will also be placed on the origins and evolution of constitutional law, from the founding to the present.

Iqbal And Interpretation, Karen Petroski

All Faculty Scholarship

Assessing a year’s worth of debate over the 2009 Supreme Court decision in Ashcroft v. Iqbal, this Article provides a novel explanation for the decision and presents it as radical indeed, but in a way previously unremarked by commentators. The sharp divisions in the responses to Iqbal have masked a deeper consensus and have blocked wide awareness of the decision’s constructive potential for diverse interest groups. This consensus is based on a simplified account of the ideal function of pleading in our system of civil litigation, one that first took hold in the early twentieth century. What unsettles many observers …

The Hierarchy That Wasn’T There: Elevating “Usage” To Its Rightful Position For Contracts Governed By The Cisg, William P. Johnson

All Faculty Scholarship

Under domestic U.S. sales law, usage of trade is relevant in ascertaining the meaning of an agreement, and it can be used to supplement, qualify, or explain an agreement. However, usage of trade may not be used under domestic U.S. sales law to contradict a written agreement. Moreover, any course of performance or course of dealing between the parties will prevail over inconsistent usage of trade. The United Nations Convention on Contracts for the International Sale of Goods, or CISG, similarly provides for consideration of usage to establish the terms of the agreement between the parties, as well as to …

Plowing In Hope: A Three-Part Framework For Incorporating Restorative Justice Into Sentencing And Correctional Systems, Lynn S. Branham

All Faculty Scholarship

This essay proposes the adoption of a three-part framework to effectuate fundamental changes in conventional sentencing and correctional constructs, making restorative justice a mainstay of sentencing and correctional systems. First, federal, state, and local governments would authorize the imposition of what would be – in name, purpose, and content – “restorative sentences.” The growing, processing, and distribution of locally grown foods in low-income neighborhoods particularly afflicted by crime is an example of what could become a prevalent restorative sentence. The essay outlines a number of steps to be undertaken by jurisdictions in order to realize the goals of restorative sentencing. …