Law Commons^™

A Parent Is A Parent, No Matter How Small, Kendra H. Fershee

Kendra H Fershee

Every parent in America has constitutional rights to parent his or her children. But if a parent is under the age of eighteen, those rights are tenuous. There is no question that adolescent parents face difficulties while trying to juggle school, parental responsibilities, work, their social lives, and more. Add to that long list of challenges the legal infirmities all minors share and a picture of impending disaster begins to appear for the adolescent parent and his or her child. And once a minor parent enters the family court system, instead of getting the services, training, and supervision that may …

Book Review Of Current Issues In Constitutional Litigation: A Context And Practice Casebook (Carolina Academic Press 2011), Christy Whitfield

Sarah E. Ricks

This is a book review of Current Issues in Constitutional Litigation: A Context & Practice Casebook (Carolina Academic Press 2011). My perspective is unique because I have worked with and watched this casebook evolve – I was assigned an early draft of the casebook as a law school student taking a constitutional litigation course, I worked as a research assistant on a later version of the casebook, and now, several years later, I have viewed the final result of the casebook as a practicing attorney. As a former law clerk and now as an attorney advisor in the beginning years …

Be Fruitful And Multiply, By Any Means Necessary: The Time Has Come To Recognize And Enforce Gestational Surrogacy Agreements, Paul G. Arshagouni

Paul G Arshagouni

The practice of surrogacy, when one woman carries a child to term on behalf of someone else, has been with us for millennia, with early references found in Greek mythology and the Bible. With the advent of in vitro fertilization just over years 30 ago, surrogacy became option for couples and individuals who could not carry a child to term but did not want to pursue adoption. In the early days of modern surrogacy, states had little or no statutes or case law giving guidance as to the enforceability of surrogacy agreements. That changed with the seminal cases of Baby …

We The People: The Consent Of The Governed In The 21st Century: The People’S Unalienable Right To Make Law., George A. Nation Iii

George A Nation III

My article argues in favor of federal direct democracy. Congress should recognize and facilitate the People’s right to make law via the tools of direct democracy (the initiative and referendum) at the federal level. Arguably, the national People already have this right though they have never used it. What is needed is the establishment of a clear process for the People to follow when exercising this right.

In the United States today the consent of the governed, on which the strength of our democracy depends, is weaker and more diluted than it needs to be or than it should be. …

The Dark Side Of The Creed: Stable Values And Constructed Meaning In American Thought, Joseph Margulies

Joseph Margulies

No abstract provided.

The Public Life Of The Virtual Self, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from other Internet users, in total control of his online experience and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

When Mistakes Matter: Election Error And The Dynamic Assessment Of Materiality, Justin Levitt

Justin Levitt

The ghosts of the 2000 presidential election will return in 2012. Photo-finish, and error-laden, elections recur in each cycle. When the margin of error exceeds the margin of victory, officials and courts must decide which, if any, errors to discount or excuse, knowing that the answer will likely determine the election’s winner. Yet in the past eleven years, despite widespread agreement on the likelihood of another meltdown, neither courts nor scholars have developed consistent principles for resolving the errors that cause the chaos.

This Article advances such a principle. It argues that the resolution of an election error should turn …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

Corruption As Institution Among Small Businesses In Africa, Thomas A. Kelley Iii

Thomas A Kelley III

Suddenly it seems that US-funded international aid programs are all about building rational, predictable institutions to stimulate business in poor countries. The Millennium Challenge Corporation (MCC), a relatively new and increasingly important US aid organization, and the more venerable United States Agency for International Development (USAID), are initiating programs in poor countries around the world based on the assumption that their future stability and prosperity depends on unleashing and guiding the entrepreneurial spirit of small and medium-sized enterprises, and that this can be accomplished by improving the institutions – most particularly the laws and legal enforcement mechanisms – that regulate …

Sacred Disputes? On The Ministerial Exception And The Constitution, Mark Strasser

Mark Strasser

Federal courts have long been hearing church disputes, for example, concerning conflicting claims regarding the rightful possession and use of church property. However, there is no clear understanding concerning the contours of the constitutional limitations on the courts when one of the parties in interest is a religious organization. The conflicting jurisprudence may be clarified in the 2011-2012 term when the Court hears and decides Hosanna–Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, although there is reason to be pessimistic that this will happen. This article lays out the relevant jurisprudence as presented by the United States …

Subsidizing Hate: A Proposal To Reform The Internal Revenue Service's Methodology Test, James A. Reed

Alex Reed

Although a wide variety of organizations may qualify as tax-exempt public charities, reform is needed to ensure that hate groups masquerading as educational organizations do not receive preferential tax treatment. Since 1986, the Internal Revenue Service has utilized a methodology test to determine when advocacy of a particular viewpoint may be deemed educational so as to qualify the underlying organization as a public charity. Because the Service has been reluctant to apply the test rigorously, however, a number of hate groups have been able to obtain charitable status under the guise of operating as legitimate educational organizations. This Article argues …

Sext Appeals: Re-Assessing The Exclusion Of Self-Created Images From First Amendment Protection, Carmen Naso Mr

Carmen Naso Mr

ABSTRACT Only recently could it have been imagined that in less than a minute, a young person could or would create, and possess a sexually explicit photo of him or herself and then send it to hundreds of recipients throughout the country. Nor could one think of web cam chats or phone conversations that would result in spontaneous exhibitions of nudity via the computer or 4th generation cellular technology. Novel to this discussion, this article identifies a solution to the inconsistent and problematic application of individual state law to speech that can be created and globally disseminated in a matter …

Criminal Affirmance: Going Beyond The Deterrence Paradigm To Examine The Social Meaning Of Declining Prosecution Of Elite Crime, Mary Kreiner Ramirez

mary k ramirez

Recent financial scandals and the relative paucity of criminal prosecutions in response suggest a new reality in the criminal law system: some wrongful actors appear above the law and immune from criminal prosecution. As such, the criminal prosecutorial system affirms much of the wrongdoing giving rise to the crisis. This leaves the same elites undisturbed at the apex of the financial sector, and creates perverse incentives for any successors. Their position of power results in massive deadweight losses for the entire economy as a result of their crimes. Further, this undermines the legitimacy of the rule of law and encourages …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

"Systemic Poverty As A Cause Of Recessions", Robert Ashford

Robert Ashford

This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …

Cyberlaw 2.0, Jacqueline Lipton

Jacqueline D Lipton

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Suicide Killing Of Human Life As Human Right - The Continuing Devolution Of Assisted Suicide Law In The United Kingdom, William Wagner

William Wagner

SUICIDE KILLING OF HUMAN LIFE AS A HUMAN RIGHT

The Continuing Devolution of Assisted Suicide Law

in the United Kingdom

PROF. WILLIAM WAGNER, PROF. JOHN KANE, AND STEPHEN P. KALLMAN

ABSTRACT

Since the beginning of time, divine, natural, and positive law traditions of the United Kingdom reflected an inviolable standard that people should not assist in the killing of human life. This article reviews and analyzes the ancient inviolable benchmark, explaining why the common and statutory law of Britain historically reflected its moral reference point to prohibit assisted suicide. We then proceed to analyze a contemporary jurisprudential shift in Britain’s …

Why Do Citizens Litigate Over The Posting Of The Ten Commandments?, Ross Astoria

Ross Astoria

In recent years the federal courts have experienced an increase in litigation over a state’s display of the Decalogue. Common explanations for this increase in litigation refer to general political and sociological categories, such as “fundamentalism” and “urbanization,” while abstracting from the actual intentions of individuals attempting to display the Decalogue. To identify these intentions, I provide a detailed case study of three instances of pro-Decalogue advocacy in Tennessee. In this case study, pro-Decalogue advocates situate their political efforts within a narrative of American decline. This narrative is a jeremiad in which the Supreme Court is the origin and agent …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scott A Moss

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

Beyond Saints And Sinners: Discretion And The Need For New Narratives In The U.S. Immigration System, Elizabeth Keyes

Elizabeth Keyes

This article examines the forces affecting the exercise of discretion in American immigration courts, and argues that in this present age of immigration anxiety, the same facts that place an individual in deportation proceedings may constitute the reasons a judge will, relying on discretion, deny them relief for which they are otherwise eligible. The article explores the polarized narratives told about “good” and ”bad” immigrants, the exceptionally difficult task of adjudicating in overburdened immigration courts, and the ways in which these polarized narratives interact with psychological short-cuts, or heuristics, that affect judicial exercises of discretion. After engaging in this analysis, …

Is Competition The Solution Or The Problem? An Analysis Of U.S. Mortgage Securitization, Michael N. Simkovic

Michael N Simkovic

This article’s original contribution to the literature about the causes of the U.S. mortgage crisis of the late 2000s is to analyze two important causes that have thus far only been discussed in passing. First, this article provides evidence that fragmentation of the securitization market in the mid-2000s and competition between mortgage securitizers undermined securitizers’ ability to control originators, and that such competition led to a race to the bottom on underwriting standards. Second, this article provides evidence of a shift in market power away from securitizers and toward originators during the mid-2000s, and argues that this shift in power …

The Greatest Measure Of Deterrence: A Conviction For Jean-Pierre Bemba Gombo, Houston Goodell

Houston Goodell

The landscape of modern warfare has changed dramatically over the past 100 years since World War I. While the weapons systems have all changed dramatically, many of the crimes perpetrated in warfare have remained the same. Although almost all of these crimes have been punished by various national and international courts, one crime – rape – has escaped prosecution until very recently. The International Criminal Court (ICC) is currently hearing the case of former Democratic Republic of the Congo (DRC) Vice-President Jean-Pierre Bemba Gombo. What makes Bemba Gombo’s case so unique is that, unlike the Serbians who were tried and …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew Taslitz

Andrew E. Taslitz

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

Arbitration Agreements Used By Nursing Homes: An Empirical Study And Critique Of At&T Mobility V. Concepcion, Lisa Tripp

Lisa Tripp

Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them …

Voice Without Say: Why More Capitalist Firms Are Not (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuinely employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive or efficient and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the …

Formalism, Facts And The Brandeis Brief: The Making Of A Myth, Noga Morag-Levine

Noga Morag-Levine

The Brandeis Brief has long been central to historical accounts of the struggle and ultimate triumph of progressive jurisprudence over legal formalism. Yet this familiar storyline is difficult to reconcile with the historical record on two counts. The first is its incompatibility with the presence of extra-legal evidence in cases and briefs well predating that of Brandeis. The second is the fact that, contrary to the prevailing account, conservatives were not the vanguard of opposition to such extra-legal evidence. In practice, it was progressive defenders of social legislation who long sought to exclude proof regarding the alleged health and other …

Do We Value Our Cars More Than Our Kids? The Conundrum Of Care For Children, Palma Joy Strand

palma joy strand

Formal child care workers in the United States earn about $21,110 per year. Parking lot attendants, in contrast, make $21,250. These relative wages are telling: The market values the people who look after our cars more than the people who look after our kids. This article delves below the surface of these numbers to explore the systemic disadvantages of those who care for children—and children themselves. The article first illuminates the precarious economic position of children in our society, with a disproportionate number living in poverty. The article then documents both that substantial care for children is provided on an …

Spatial Diversity, Nicholas Stephanopoulos

Nicholas Stephanopoulos

Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept -- “spatial diversity” -- that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most …

Social Capital Benefits Of Peer Mentoring Relationships In Law School, Meera E. Deo, Kimberly A. Griffin

Meera E Deo

Scholars have addressed the rigors of law school and suggest mentorship may help students better navigate their educational environments. However, literature largely addresses the role of faculty mentors, less often considering peer mentors in the law school context. This study explores first year law students’ motivation in forming peer mentoring relationships and the roles peer mentors play in students’ lives. Analyses of survey and focus group data collected from 203 first-year law students at 11 institutions reveal that the majority rely on peer support, forming formal, informal, and “organizational” peer mentoring relationships. Relationship formation is motivated by students’ acknowledged need …