Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 29 of 29

Full-Text Articles in Law

Without A Leg To Stand On: The Merger Of Article Iii Standing And Merits In Environmental Cases, Nigel Cooney Jan 2007

Without A Leg To Stand On: The Merger Of Article Iii Standing And Merits In Environmental Cases, Nigel Cooney

Washington University Journal of Law & Policy

No abstract provided.


Power Couples: Lawmakers, Lobbyists, And The State Of Their Unions, Susan Frelich Appleton, Robyn M. Rimmer Jan 2007

Power Couples: Lawmakers, Lobbyists, And The State Of Their Unions, Susan Frelich Appleton, Robyn M. Rimmer

Washington University Journal of Law & Policy

Congress has ignored a phenomenon blossoming in its own backyard, the growing number of lawmakers married to lobbyists—unions that we call “power couples” for short. Criticizing government corruption, pundits had raised questions about power couples. One news story asked, “How can a member of Congress possibly share a bed and a bank account with a member of the persuasion industry without a life laced by conflicts of interest?” Frank Clemente, director of Public Citizen’s Congress Watch, ranked the legislator-lobbyist marriage “way up there on the unseemly scale.” Another news report on family lobbying called the phenomenon “an increasingly ...


Nepa's Zone Of Interests, Kenley S. Maddux Jan 2007

Nepa's Zone Of Interests, Kenley S. Maddux

Washington University Journal of Law & Policy

No abstract provided.


Tackling Disability Discrimination In The United Kingdom: The British Disability Discrimination Act, Charlotte Pearson, Nick Watson Jan 2007

Tackling Disability Discrimination In The United Kingdom: The British Disability Discrimination Act, Charlotte Pearson, Nick Watson

Washington University Journal of Law & Policy

The social position of disabled people in the United Kingdom, as elsewhere in the developed world, has changed dramatically in the past twenty years. Disabled people are no longer forced into confinement in long-term institutions, increasingly more disabled children are being educated in mainstream schools, and employment rates for disabled people are rising. Despite these improvements there is still considerable evidence to suggest that disabled people in the United Kingdom are subjected to discrimination. This Essay provides an overview of the development of disability discrimination legislation in the United Kingdom over the past two decades. While highlighting early attempts to ...


From Functional Family To Spinster Sisters: Australia's Distinctive Path To Relationship Recognition, Reg Graycar, Jenni Millbank Jan 2007

From Functional Family To Spinster Sisters: Australia's Distinctive Path To Relationship Recognition, Reg Graycar, Jenni Millbank

Washington University Journal of Law & Policy

This Essay reflects on the approaches that Australia, and to a lesser extent New Zealand, have taken to relationship recognition, focusing in particular on the ways in which they have differed profoundly from what has happened in the United States. Specifically, the relationship recognition debate in Australia through the 1990s was characterized by the absence of any real interest in marriage and instead focused on developing more functional and adaptive models of relationship recognition, primarily through presumption-based models (for example, the ascription of relationship status). In this discussion we start, by way of background, with an explanation of the development ...


Balancing Restorative Justice Principles And Due Process Rights In Order To Reform The Criminal Justice System, Tina S. Ikpa Jan 2007

Balancing Restorative Justice Principles And Due Process Rights In Order To Reform The Criminal Justice System, Tina S. Ikpa

Washington University Journal of Law & Policy

No abstract provided.


The Legal Genealogy Of The Duty To Accommodate American And Canadian Workers With Disabilities: A Comparative Perspective, Ravi Malhotra Jan 2007

The Legal Genealogy Of The Duty To Accommodate American And Canadian Workers With Disabilities: A Comparative Perspective, Ravi Malhotra

Washington University Journal of Law & Policy

In this Essay, I seek to analyze the origins of the duty to accommodate people with disabilities in Canadian law in order to present a counter-factual argument on why the duty to accommodate has not flourished in American law. Comparative legal approaches have the merit of shedding fresh light on old legal problems that might not otherwise be considered. In Part I, I trace the history of the concept of reasonable accommodation in leading Supreme Court of Canada decisions, and demonstrate how accommodation of workers with religious beliefs remained central to the development of the jurisprudence and helped make decision-makers ...


Separating Fact From Fiction: Mandated Insurance Coverage Of Infertility Treatments, Jessica L. Hawkins Jan 2007

Separating Fact From Fiction: Mandated Insurance Coverage Of Infertility Treatments, Jessica L. Hawkins

Washington University Journal of Law & Policy

No abstract provided.


Promoting Marriage Experimentation: A Class Act?, Julie Nice Jan 2007

Promoting Marriage Experimentation: A Class Act?, Julie Nice

Washington University Journal of Law & Policy

The last decade of federal welfare reform has produced a windfall of funding for social science research, especially for studies focusing on whether and how recipients move from welfare to work. More recently, the federal government has funded a new wave of programs designed to reshape the family structure of impoverished parents and children. The centerpiece of this new focus on the family is the Bush Administration’s initiative to promote marriage. This Essay considers both the new marriage promotion policies and related social science research. The key question about marriage promotion concerns the link between welfare policy and social ...


Introduction: The Social Responsibility Of Lawyers, Karen Tokarz Jan 2007

Introduction: The Social Responsibility Of Lawyers, Karen Tokarz

Washington University Journal of Law & Policy

Like the prior eight volumes dedicated to Access to Justice, most of the Articles and Essays in this volume are written by presenters in the School of Law’s annual Public Interest Law & Policy Speaker Series, entitled “Access to Justice: The Social Responsibility of Lawyers.” These presenters are prominent academics, practitioners, and authors from diverse backgrounds in areas such as international human rights, the economics of poverty, racial justice, immigration, capital punishment, conflict resolution, clinical legal education, government public service, and pro bono private practice, who share a commitment to access to justice. The Public Interest Law & Policy Speaker Series ...


Immigrants' Rights In The Courts And Congress: Constitutional Protections And The Rule Of Law After 9/11, Lucas Guttentag Jan 2007

Immigrants' Rights In The Courts And Congress: Constitutional Protections And The Rule Of Law After 9/11, Lucas Guttentag

Washington University Journal of Law & Policy

We all witnessed the astonishing demonstrations across the country in the spring of 2006. We watched with surprise as legislation recently was passed by the U.S. Senate to address a dysfunctional immigration system. The so-called comprehensive immigration reform bill held out the promise of legal status to millions of undocumented immigrants and suggested it would do something for the additional millions who are stuck in an immigration backlog despite being eligible for legal status. That was the hope, but it also camouflaged grave deficiencies. My goal is to draw attention to some of those shortcomings, to put them into ...


Reforming The Tort Reform Agenda, Julie Davies Jan 2007

Reforming The Tort Reform Agenda, Julie Davies

Washington University Journal of Law & Policy

Although the current longstanding impasse over the U.S. health care system in general and the 46.6 million uninsured Americans in particular is no game, a reshuffling of the issues may open an opportunity to solve what seems to be an intractable problem. To date, it seems every political solution has been tried and has failed. In this Article, I argue that one way to gain political traction on the problem is to integrate the health care issue into the agenda for tort reform. At first blush, the issues may seem disconnected: recovery through the tort system is admittedly ...


The Racial Implications Of Tort Reform, Joanne Doroshow, Amy Widman Jan 2007

The Racial Implications Of Tort Reform, Joanne Doroshow, Amy Widman

Washington University Journal of Law & Policy

This Article examines some of the ways racial issues have been deliberately concealed by the rhetoric of the “tort reform” movement, and how tort reform proposals will have a disparate impact on racial and ethnic minorities. In particular, it analyzes some of the pillars of the tort reform movement: attacks on the medical malpractice system, limits on non-economic damages, class actions, and political attacks against the jury system. It also examines specific cases involving hate crimes and environmental justice, illustrating the importance of the tort system in furthering racial justice.


Two Sides Of The Same Coin: The Link Between Illicit Opium Production And Security In Afghanistan, Elizabeth Peterson Jan 2007

Two Sides Of The Same Coin: The Link Between Illicit Opium Production And Security In Afghanistan, Elizabeth Peterson

Washington University Journal of Law & Policy

No abstract provided.


Inadequate And Inequitable: The Role Of The Judiciary In Arkansas Education, David A. Terry Jan 2007

Inadequate And Inequitable: The Role Of The Judiciary In Arkansas Education, David A. Terry

Washington University Journal of Law & Policy

No abstract provided.


A New Start On The Road Not Taken: Driving With Lane To Head Off Disability-Based Denials Of Rights, Anita Silvers, Leslie Pickering Francis Jan 2007

A New Start On The Road Not Taken: Driving With Lane To Head Off Disability-Based Denials Of Rights, Anita Silvers, Leslie Pickering Francis

Washington University Journal of Law & Policy

In this Essay, our ultimate goal is to demonstrate how advocates for the civil rights of people with disabilities can use Lane to construct a successful rights-based strategy. In doing so, we will show that Lane embarks upon a palpable and promising (but yet to be explicitly announced) rights-based standard to which important kinds of differential treatment of people with disabilities should be held. This strategy maps the way for legal thinking about disability discrimination to return from the wrong road down which Cleburne drove the national effort to achieve integration for people with disabilities. Our approach deflects disability discrimination ...


Before Its Time: Public Perception Of Disability Rights, The Americans With Disabilities Act, And The Future Of Access And Accommodation, Mary Johnson Jan 2007

Before Its Time: Public Perception Of Disability Rights, The Americans With Disabilities Act, And The Future Of Access And Accommodation, Mary Johnson

Washington University Journal of Law & Policy

The ADA is not only a law in which economic considerations were allowed to determine civil rights, it was also a major rights law passed with virtually no public scrutiny. After its passage, anti-disability rights groups quickly moved to weaken its protections by publicly ridiculing its provisions. Unlike other civil rights laws, the ADA defined those who were to be granted its protections, and opponents focused on this, taking aim at those they felt did not deserve its protections. The concepts underlying disability rights were not widely understood by the public, and as ADA cases came before judges it was ...


What They Can Do About It: Prison Administrators' Authority To Force-Feed Hunger-Striking Inmates, Tracey M. Ohm Jan 2007

What They Can Do About It: Prison Administrators' Authority To Force-Feed Hunger-Striking Inmates, Tracey M. Ohm

Washington University Journal of Law & Policy

No abstract provided.


Thrice Victimized: Victims Of Hurricane Katrina; Victims Of Violent Crimes; And Victims Of Apprendi, Blakely, And Booker, Gannon Elizabeth Johnson Jan 2007

Thrice Victimized: Victims Of Hurricane Katrina; Victims Of Violent Crimes; And Victims Of Apprendi, Blakely, And Booker, Gannon Elizabeth Johnson

Washington University Journal of Law & Policy

No abstract provided.


Introduction: Following Marriage, Susan Frelich Appleton Jan 2007

Introduction: Following Marriage, Susan Frelich Appleton

Washington University Journal of Law & Policy

Originally only a working title, “Following Marriage” proved attractive because of its openness. In the spirit of the classroom conversations that sparked this project, we wanted no limit on the different paths that the authors might take from their shared point of departure, marriage. We imagined as possible topics consideration of events that might take place after a given marriage (such as divorce or death), developments that have emerged beyond marriage (such as civil unions or domestic partnerships), conceptual changes that might follow as traditional marriage undergoes contemporary transformations (such as the deconstruction of gender or of sexual orientation, the ...


Family Structure, Children, And Law, Vivian E. Hamilton Jan 2007

Family Structure, Children, And Law, Vivian E. Hamilton

Washington University Journal of Law & Policy

The claim that “marriage is good for children” has long helped ground arguments for the institution’s extraordinary state support. But how sound is this empirically based claim and the normative conclusion drawn from it—namely, that marriage merits this extraordinary support? This Essay reviews recent studies in the social sciences and determines that the “marriage effect” on children is difficult to isolate and all too often vastly overstated. Thus the normative conclusion, inextricably linked to its supposed empirical premise, is deeply flawed.


Community Parenting, Laura T. Kessler Jan 2007

Community Parenting, Laura T. Kessler

Washington University Journal of Law & Policy

I have two aims: First, I seek to understand why, at a time of increasing recognition of non-traditional families, the “more-than-two” parent family is so widely agreed to be undesirable, even while so many people practice alternatives to the two-parent nuclear family norm. Second, I seek to move away from derivative, child-focused justifications for expanding the existing legal definition of parent. Instead, I argue for an explicit examination of gender politics. Such an analysis can provide an enriched understanding of functional parenthood. Identity and ideology are already present in contemporary conversations about how best to define parenthood and parental rights ...


Subverting The Marriage-Amendment Crusade With Law And Policy Reform, Anita Bernstein Jan 2007

Subverting The Marriage-Amendment Crusade With Law And Policy Reform, Anita Bernstein

Washington University Journal of Law & Policy

This Essay endorses diffusion, the path of a peaceful guerrilla movement, in the struggle against the placement of marriage bans into state constitutions. The guerrilla movement commended here hurts no one while doing subversion work more effectively than does the unity-and-clarity approach that the non-guerrilla same-sex marriage movement seems to prefer. Among single-subject slogan messages sent to nonpartisans in the United States, “family values” or “traditional marriage” seems to beat what the progressive side thinks is its goal: “civil rights,” “marriage equality.” For activists, coming together to write enlightened marriage policy reform and announce an agenda on websites wins publicity ...


State V. Carswell: The Whipsaws Of Backlash, Marc Spindelman Jan 2007

State V. Carswell: The Whipsaws Of Backlash, Marc Spindelman

Washington University Journal of Law & Policy

When, late in April 2006, the Ohio Supreme Court agreed to hear State v. Carswell—a case in which the court will decide whether Ohio’s recently enacted “Marriage Amendment” abolishes the protections unmarried victims of domestic abuse currently receive under state law—it set the stage to deliver cultural conservatives some bad news. Virtually no matter how the court rules, they will lose, setting back their efforts in Ohio and elsewhere to pass and enforce anti-gay marriage amendments, as well as the larger reclamation project of which they have been (and are) a part: the push to redistrict the ...


Reform The Eeoc Guidelines: Protect Employees From Gender Discrimination As Mandated By Title Vii, Jennifer D. Growe Jan 2007

Reform The Eeoc Guidelines: Protect Employees From Gender Discrimination As Mandated By Title Vii, Jennifer D. Growe

Washington University Journal of Law & Policy

No abstract provided.


Making Sense Of Camp Delta, Joseph Margulies Jan 2007

Making Sense Of Camp Delta, Joseph Margulies

Washington University Journal of Law & Policy

In the pages that follow, I want to do two things. First, I hope to describe the Administration’s detention policy in general, and Camp Delta in particular, from the Administration’s perspective. I am not part of the crowd of people who believe the President should be impeached; that members of his Administration should be indicted as war criminals; that John Yoo, the author of the infamous “torture memo” should be disbarred from the practice of law; and that the detention policy is itself an inexplicable assault on the rule of law. While I am certainly no defender of ...


Change And Continuity On The Supreme Court, Linda Greenhouse Jan 2007

Change And Continuity On The Supreme Court, Linda Greenhouse

Washington University Journal of Law & Policy

When two new Justices joined the Supreme Court during the 2005 term, the longest period of membership stability in the Court's modern history came to an end. The eleven years without personnel change, from 1994 until 2005, made this the longest “natural court,” as scholars call the period during which the same Justices serve together, since the 1820s. And not since the 1971 Term, a generation ago, when Justices Lewis Powell and William Rehnquist took their seats, have two new Justices joined the Court during a single term. Reprinted by permission of the publisher.


Bell Atlantic V. Twombly: How Motions To Dismiss Become (Disguised) Summary Judgments, Richard A. Epstein Jan 2007

Bell Atlantic V. Twombly: How Motions To Dismiss Become (Disguised) Summary Judgments, Richard A. Epstein

Washington University Journal of Law & Policy

The present Federal Rules of Civil Procedure allow a plaintiff’s case to be attacked either for its legal or factual sufficiency. The rules governing the former are in general adequate because judgments on the validity of claims do not require any discovery. Decisions before trial on factual matters are much more complex, especially in antitrust cases where discovery before a summary judgment motion can be highly expensive on open-ended claims of collusion over prices or territories. To counteract that risk, all courts today allow some judgments to be entered at the close of pleading and before discovery. The recent ...


Competition Policy, Consumer Protection, And Economic Disadvantage, William E. Kovacic Jan 2007

Competition Policy, Consumer Protection, And Economic Disadvantage, William E. Kovacic

Washington University Journal of Law & Policy

This Essay discusses how well-conceived competition policies can serve the poor and reduce barriers that reinforce economic disadvantage. It first identifies some of the phenomena that competition policy programs usefully can address to improve the welfare of economically disadvantaged populations. The Essay then describes how consumer protection programs can complement competition policy measures by punishing and deterring serious fraud. The Essay concludes with reflections on the broader contributions to social welfare that competition and consumer protection programs can offer. In addressing these topics I have sought to draw upon examples from my own experiences in the United States and in ...