Law Commons^™

Lord Of The Flies: The Development Of Rules Within An Adolescent Culture, Nancy B. Rapoport

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This essay, included in the book SCREENING JUSTICE--THE CINEMA OF LAW: Significant Films of Law, Order and Social Justice (Rennard Strickland, Teree E. Foster & Tauyna Lovell Banks, eds., William S. Hein & Co. 2006), discusses the development of the law in Goldman's Lord of the Flies and raises the question of whether an island populated by a mix of boys and girls - or an island populated by only girls - would have developed a different law.

Judicial Discretion To Condition, Thomas O. Main

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No abstract provided.

To Err Is Human, Keith A. Rowley

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This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

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The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …

Celebrating Life And Taxes, Francine J. Lipman

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No abstract provided.

Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image.

The reason for bipolar black masculinity is that it helps resolve the white mainstream's post-civil rights anxiety. That anxiety results from the conflict between the nation's relatively recent …

Bankruptcy Ethics Issues For Solos And Small Firms, Nancy B. Rapoport

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This chapter, in Corinne Cooper & Catherine E. Vance's book Attorney Liability in Bankruptcy, walks the reader through some of the traditional ethics issues triggered by representing consumers and small businesses. It also addresses some of the ethics issues that the recent Bankruptcy Amendments (BAPCPA) have created.

Fortress In The Sand: The Plural Values Of Client-Centered Representation, Katherine R. Kruse

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This article examines the history, development and theory of the client-centered approach to lawyering, which has become the most prevalent theory of lawyering taught in law school clinics. It examines the basic tenets of client-centered representation as a problem-solving approach and shows how critique and modification of the approach has spawned a diversity of lawyering models that share the basic tenets of client-centered representation but are in tension with its preferred methodology of lawyer neutrality. The article draws on theories of autonomy to help explain this tension, showing that notions of positive freedom support a range of autonomy-enhancing intervention into …

Book Review: "Hardwired Behavior: What Neuroscience Reveals About Morality", Stacey A. Tovino

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The field of neuroethics has been described as an amalgamation of two branches of inquiry: the ethics of neuroscience and the neuroscience of ethics. The ethics of neuroscience, which has received considerable attention over the past three to four years, is concerned with the ethical principles that should guide brain research and the treatment of neurological disease, as well as the effects that advances in neuroscience have on our social, moral, and philosophical views. The neuroscience of ethics, which has received considerably less attention, may be described as a scientific approach to understanding ethical behavior. Psychiatrist and lawyer Laurence Tancredi …

Frontier Justice: Legal Aid And Unhcr Refugee Status Determination In Egypt, Michael Kagan

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Where UNHCR conducts refugee status determination (RSD), its reactions to legal aid for asylum-seekers have been mixed. Statistical evidence collected from Egypt in 2002 indicates a correlation between receiving some form of legal aid service and an asylum-seeker's increased chances of gaining refugee protection from UNHCR. Unconventional forms of legal aid, including limited services by supervised non-lawyers (including volunteers from the refugee community) showed a positive impact on first instance cases, while traditional legal aid models showed an impact at the appeal stage. Legal aid should form an essential part of UNHCR's RSD procedures, and NGOs should work to expand …

The Beleaguered Gatekeeper: Protection Challenges Posed By Unhcr Refugee Status Determination, Michael Kagan

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The number of individual Refugee Status Determination (RSD) applications received by United Nations High Commissioner for Refugees (UNHCR) offices worldwide nearly doubled from 1997 to 2001, while UNHCR’s RSD operations have been criticized for failing to implement basic standards of procedural fairness. Yet, although there is some literature critiquing how UNHCR determines refugee status, there is little literature examining whether UNHCR should do so, and if it should, when, where, and under what conditions.

UNHCR performance of RSD poses protection challenges because it is founded on a basic contradiction. On the one hand, government action is essential for effective refugee …

Foreword: Confronting The Rights Deficit At Home And Abroad, Ruben J. Garcia

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In this foreword, the author introduces the idea of the rights deficit faced by people of color and low socioeconomic status by linking it to related debates—first on the nature of rights and second on whether there are domestic and international “democracy deficits.” Then the author describes the essays from the 2006 Western Law Professors of Color Conference in the three groups in which they appear in the issue. One group of essays focuses on the aftermath of Hurricane Katrina for the domestic rights deficit. In the area of education law and policy, the issue is not just the rights …

Labor’S Fragile Freedom Of Association Post-9/11, Ruben J. Garcia

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The fragility of civil liberties in the United States became evident after the terrible attacks of September 11, 2001 (9/11). Labor's freedom of association, which is the right to form unions, bargain collectively, and engage in concerted activities, is one of the civil liberties at risk in the post-9/11 period. This Article focuses specifically on post-9/11 limitations of labor's freedom of association conducted by the executive branch and the Congress, and the ways that the courts have adjudicated labor rights in the post-9/11 era. Domestic labor law and constitutional rights alone, however, will not stop the collision of security and …

Labor As Property: Guestworkers, International Trade, And The Democracy Deficit, Ruben J. Garcia

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In the 1914 Clayton Act, Congress declared: "The labor of a human being is not a commodity or an article of commerce." The practical reason for this section of the Clayton Act was to exempt collusion in labor negotiations from antitrust liability. The law also gave effect to the rejection of the commodification of human labor. Since the passage of the Clayton Act, developments in law and society have chipped away at the law's symbolic anti-commodification message. This paper examines the commodification of labor in the international trade and guestworker debates. Historically, the concept of "comparative advantage" in international trade …

The Visible Brain: Confidentiality And Privacy Implications Of Functional Magnetic Resonance Imaging, Stacey A. Tovino

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Functional magnetic resonance imaging (fMRI) has built on a number of technologies, including electroencephalography, magnetoencephalography, positron emission tomography, and single-photon emission computed tomography, to become one of the decade’s most powerful tools for mapping sensory, motor, and cognitive function. Scientists also are using fMRI to study the neural correlates of a range of conditions, characteristics, and social behaviors, including severe brain injury, major depression, schizophrenia, dyslexia, cocaine addiction, compulsive gambling, pedophilia, racial evaluation, deception, cooperation, altruism, and even sexual preference. Poised to move outside the research context, fMRI and its ability to detect correlations between brain activations and sensitive and …

Steam Shovels And Lipstick: Trademarks, Greed, And The Public Domain, Mary Lafrance

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Although the law of trademarks and unfair competition at one time concerned itself only with false designations of origin that were likely to confuse consumers about the origin of goods or services, with the emergence of the dilution doctrine during the twentieth century individual states--and ultimately Congress--began offering the owners of particularly strong marks the opportunity to prevent others from using these marks even in ways which were unlikely to lead to consumer confusion. In so doing, the law began to treat trademarks as property in themselves--the product of a trademark owner's investment in good will--rather than merely as signals …

Eating Our Cake And Having It, Too: Why Real Change Is So Difficult In Law Schools, Nancy B. Rapoport

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This essay discusses the experiences of one law school trying to integrate the rankings into its strategic plan. It discusses the intersection of considerations designed to improve the rankings with considerations designed to improve the school as a whole, and it mentions the difficulties inherent in strategic planning in an academic environment.

Ricoeur’S Critical Hermeneutics And The Psychotherapeutic Model Of Critical Theory, Francis J. Mootz Iii

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This paper seeks to extend Ricoeur’s acclaimed mediation of the Gadamer-Habermas debate. Freud’s psychoanalytic practice was an important touchstone for the debate, and Ricoeur’s reading of Freud provides a key to his critical intervention in the debate. The emerging postmodern account of psychotherapeutic practice provides a model of the critical hermeneutics that Ricoeur championed. Bringing Ricoeur’s insights to bear on this model, we can advance the questioning spurred by the Gadamer-Habermas debate without pretending to bring closure to the unending conversation of thinking.

Book Review Symposium: Introduction, Francis J. Mootz Iii

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A foreword to a symposium held to discuss Gene Garver’s book, For the Sake of Argument: Practical Reasoning, Character and the Ethics of Belief (University of Chicago Press, 2004).

Conscience And Emergency Contraception, Leslie C. Griffin

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No abstract provided.

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

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No abstract provided.

A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton

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No abstract provided.

The Taxation Of Undocumented Immigrants: Separate, Unequal, And Without Representation, Francine J. Lipman

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No abstract provided.

Relief From The Rubble: Tax Assistance For Victims Of The 2005 Hurricane Season, Francine J. Lipman

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No abstract provided.

The Science Of Persuasion: An Initial Exploration, Kathryn M. Stanchi

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The purpose of this Article is to enhance knowledge of effective persuasive legal writing by taking the exploration in a somewhat different direction from the traditional approaches. This Article argues that it is critical for persuasive writers to study the existing social-science data about human decisionmaking. Trial lawyers have taken serious steps to study and probe social science for ideas about how to persuade (or pick) juries. Yet, decades after Jerome Frank reminded us that judges, like juries, are human, appellate lawyers have been slow to follow their trial brethren in the pursuit of scientific data about what persuades people. …

Bringing Sense To Incentives: An Examination Of Incentive Payments To Named Plaintiffs In Employment Discrimination Class Actions, Nantiya Ruan

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Employment discrimination class actions (EDCA) are complex creatures for many reasons. One complexity involves the resolution of EDCAs, which typically includes a provision for an incentive award or "bonus" for named plaintiffs. This Article describes five models under which courts struggle with awarding incentive awards to named plaintiffs in EDCAs. It examines how (under which model) and why (upon what justification) courts award or refuse to award incentive payments. This examination illustrates that courts have failed to differentiate between incentive payments that further Title VII's statutory goal of workplace fairness and other litigation matters, such as securities litigation or consumer …

Reflections Of A Former Dean, Nancy B. Rapoport

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law school admininstration, higher education governance, dean, deaning

Harassment Of Sex(Y) Workers: Applying Title Vii To Sexualized Industries, Ann C. Mcginley

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Like the women blackjack dealers at the Hard Rock, cocktail servers, exotic dancers, and prostitutes in legal brothels are vulnerable to sexual harassment by customers. The content of the four jobs reveals the fallacy of the "good girl"/"bad girl" dichotomy, because all four jobs require behavior that falls into both categories if we expand the definition of good and bad girls to include gendered behavior as well as sexual behavior. Once the defense applies to discrimination in sexualized environments, it could logically apply to sexual or racial harassment cases in companies that permit their employees to harbor and act upon …

Assessing The Coverage Carnage: Asbestos Liability And Insurance After Three Decades Of Dispute, Jeffrey W. Stempel

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Often overlooked are the insurance issues related to asbestos and the degree to which the asbestos mass tort has changed the face of liability insurance and liability insurance law. The asbestos mass tort brought insurance coverage litigation into the big leagues of litigation, adjudication, and scholarly examination (although even the most rabid insurance coverage junkie would concede this is not much silver lining to the asbestos cloud). But after 30 years of big-time liability insurance coverage litigation involving asbestos or influenced by asbestos, what is the outcome? My assessment is:

1. Despite their protestations, insurers have not been unfairly treated …

Toward A New Student Insurgency: A Critical Epistolary, Rachel J. Anderson, Marc-Tizoc Gonzalez, Stephen Lee

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Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). The author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.