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Articles 1 - 30 of 202
Full-Text Articles in Law
Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley
Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley
Fran Quigley
When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.
Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.
That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George W. …
The Black Side Of The Mirror: The Black Body In The Workplace, Taunya Banks
The Black Side Of The Mirror: The Black Body In The Workplace, Taunya Banks
Taunya Lovell Banks
No abstract provided.
China's Labor Contract Law And The Liberalization Of Global Markets: Will Employees' Rights Equate To Employers' Nightmares?, Sharon Breckenridge Thomas
China's Labor Contract Law And The Liberalization Of Global Markets: Will Employees' Rights Equate To Employers' Nightmares?, Sharon Breckenridge Thomas
S. Breckenridge Thomas
Abstract: Lower labor costs and realization of profits have been key components in the expansion of the global market. As we continue to witness the prolific liberalization of the global market, it is essential that we remember the importance of human capital. Workers play a paramount role in the realization of continued and sustained global market growth. Paradoxically, sustained growth in the global market is also fueled by the absence of workers’ rights and the resulting reduction of labor costs. Thus, multi-national companies and workers employed by multi-national companies, have encountered a seeming contradiction of workplace realities. From a capitalistic …
The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger
The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger
Michael Gruenberger
The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …
Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate
Blood Libel: Radical Islam’S Conscription Of The Law Of Defamation Into A Legal Jihad Against The West—And How To Stop It, Robert A. Pate
Robert A Pate
On May 19th, 2009, a panel of distinguished legal professionals assembled in Washington, D.C. at a conference, entitled Libel Lawfare: Silencing Criticism of Radical Islam, to discuss radical Islam’s exploitation of Western libel laws to silence authors and journalists who seek to expose terror-financing networks and criticize radical Islam. The debate also embodied a cresting wave of public concern about the surprising ways Western laws enable this assault.This paper seeks to call attention to two critical mistakes, which were perpetuated by panelists at the conference and which are consistently present in current libel lawfare scholarship. Foremost, no one has yet …
Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks
Troubled Waters: Mid-Twentieth Century American Society On "Trial" In The Films Of John Waters, Taunya Lovell Banks
Taunya Lovell Banks
In this Article Professor Banks argues that what makes many of filmmaker John Waters early films so subversive is his use of the “white-trash” body—people marginalized by and excluded from conventional white America—as countercultural heroes. He uses the white trash body as a surrogate for talk about race and sexuality in the early 1960s. I argue that in many ways Waters’ critiques of mid-twentieth century American society reflect the societal changes that occurred in the last forty years of that century. These societal changes resulted from the civil rights, gay pride, student, anti-war and women’s movements, all of which used …
Brave New World: The Use And Potential Misuse Of Dna Technology In Immigration Law, Janice D. Villiers
Brave New World: The Use And Potential Misuse Of Dna Technology In Immigration Law, Janice D. Villiers
Janice D. Villiers
Deoxyribononucleic acid (“DNA”) technology revolutionized criminal law, family law and trust and estates practice. It is now revolutionizing immigration law. Currently DNA tests are not required, but may be recommended by the Department of Homeland Security when primary documentation such as marriage licenses, birth certificates and adoption papers are not available to prove the relationship between the U.S. citizen petitioner and the beneficiary who is seeking permanent resident status in the United States. DNA tests are attractive to the government as a means of countering fraud and because of administrative convenience, but adoption of a wholesale policy of DNA testing …
Turning Back The Clock: Reexamining Powel V. Chaminade And The "Capable Of Ascertainment" Standard In Priest Sexual Abuse Litigation, Lauren A. Standlee
Turning Back The Clock: Reexamining Powel V. Chaminade And The "Capable Of Ascertainment" Standard In Priest Sexual Abuse Litigation, Lauren A. Standlee
Lauren A Standlee
Missouri courts, like most others around the nation, continue to confront the dilemma of how to administer justice when faced with statute of limitations, on one hand, and a victim of childhood sexual abuse by a clergy member, on the other. The Missouri Supreme Court decided Powel v. Chaminade in 2006 and discussed how to apply the statute of limitations, governed in Missouri by the "capable of ascertainment" test, to cases of repressed memory. The article argues that post-Powel Missouri plaintiffs and their attorneys have erroneously viewed Powel’s holding as an invitation to file non-meritorious lawsuits; suits that remain barred …
And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg
And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg
Matthew E Feinberg
The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.
The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …
No Harm, No Foul? A Critique Of The Current Legal Framework Dealing With Impermissible Closing Appeals To Racial Bias, Paul Christopher Estaris Torio
No Harm, No Foul? A Critique Of The Current Legal Framework Dealing With Impermissible Closing Appeals To Racial Bias, Paul Christopher Estaris Torio
Paul Christopher Estaris Torio
No Harm, No Foul? examines the friction that exists between the core legal principles of zealous advocacy and equality in one particular but prominent context: racial appeals in closing arguments. Specifically, the article evaluates the harmless error principle, which underpins the current framework for either upholding or overturning a lower court’s decision on the grounds of improper race-based summations, and its role in exacerbating this friction.
The author argues that because the overall structure of the harmless error test gives attorneys the incentive to use racial appeals in closing argument, perhaps the most influential stage of a trial, the entire …
The True Cost Of Economic Rights Jurisprudence, Max Mccann
The True Cost Of Economic Rights Jurisprudence, Max Mccann
Max McCann
This Article discusses the distinction between economic and individual rights in contemporary political and legal discourse. As discussed herein, the phrase economic rights typically invokes notions of the ability to spend, save, and transfer wealth freely, as well as other related issues, such as the deregulation of industry and tax reform. In contrast, individual rights conjures ideas of being free in one’s person, including reproductive rights, free speech, and freedom of assembly.
With both historic and recent examples, this Article argues that the distinction between economic and individual rights is problematic at best. Rights spring forth from human interests, and …
The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff
The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff
Abigail R. Moncrieff
In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …
Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith
Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith
Heron Greenesmith
In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity.
Prisons Without Convicts: Why Similar Protections As Those Offered To Prison Inmates By The Constitution Should Be Extended To Immigrant Detainees, Paul Wayner
Paul Wayner
No abstract provided.
Burning Crosses On Campus: University Hate Speech Codes, Alexander Tsesis
Burning Crosses On Campus: University Hate Speech Codes, Alexander Tsesis
Alexander Tsesis
Debates about the value and constitutionality of hate speech regulations on college campuses have deeply divided academics for over a decade. The Supreme Court’s recent decision in Virginia v. Black, recognizing a state’s power to criminalize intentionally intimidating cross burning, at long last provides the key to resolving this heated dispute. The opponents of hate speech codes argue that such regulation guts our concept of free speech. One prominent scholar claims that this censorship would nullify the First Amendment and have “totalitarian implications.” Another constitutional expert, Erwin Chemerinsky, asserts that the “public university simply cannot prohibit the expression of hate, …
Turn The Chapter Or Change The Book: Taking Critical Race Theory Forward, Trevor Tan
Turn The Chapter Or Change The Book: Taking Critical Race Theory Forward, Trevor Tan
Trevor Tan
Differentiations between groups are now conceived along cultural lines instead of morphological or geographical lines. This is substantively reflected in academia, law and practical experience. Adoption of an alter-cultural solution will sweep aside arbitrary limits based on an old idea of race, replacing them with porous and readily traversed boarders. It will place autonomy and self-agency firmly at the core of human ambition and achievement. I illustrate this by applying an altercultural lens to a persistent area of Critical Race debate – racial underrepresentation in the legal profession.
Critical Race literature should begin to adopt culture as its root concept, …
Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza G. Organick
Listening To Indigenous Voices: What The Un Declaration On The Rights Of Indigenous Peoples Means For U.S. Tribes, Aliza G. Organick
Aliza G. Organick
When the UN Declaration on the Rights of Indigenous Peoples was adopted by the United Nations General Assembly in September, 2009, it was heralded as a major victory for all of the world’s Indigenous Peoples, as well as international human rights. This remarkable effort took over two decades to come to fruition and recognizes that Indigenous Peoples worldwide continue to suffer from the dispossession of their lands and resources and that existing human rights documents did not do enough to protect those rights. The Declaration not only reaffirms the basic human rights recognized in the Universal Declaration on Human Rights, …
Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger
Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger
Allen E Shoenberger
The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. The NY Times actual malice standard not only over-protects speakers, it denies a name clearing hearing to the target of defamatory speech. This is of increasing importance as new media, such as the internet, make it so easy to communicate false, defamatory statements about anyone, including in particular elected officials and candidates. President Obama was first elected to the U.S. Senate because of a sex scandal that tainted his only serious …
The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook
The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook
Deborah L Cook
This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …
Community Policing Within A Counter-Terrorism Context: The Role Of Trust When Working With Muslim Communities To Prevent Terror Crime, Basia Spalek
basia spalek
Recently, community-based models of policing have gained increasing prominence within the context of counter-terrorism, an area that has traditionally been dominated by ‘hard’, top-down models of policing. The following article draws upon a research study that examined community policing within a counter-terrorism context within the UK in order to help shed light upon how police officers might work with communities in order to prevent terror crime. The article focuses in particular upon the notion of trust within a counter-terrorism context and reflects upon the importance of cultural intelligence for policing within a counter-terror context, a context marked by suspicion, distrust …
American With Disabilities Act Amendments Act: The Effect On Employers And Educators, Paul Anthony Race
American With Disabilities Act Amendments Act: The Effect On Employers And Educators, Paul Anthony Race
Paul A Race
The American with Disability Act Amendment Act became law in 2009. In passing the Act, Congress moved to correct a trend by Courts and the EEOC to weaken the coverage of the ADA. The American with Disability Act Amendment Act became law in 2009. In passing the Act, Congress moved to correct a trend by Courts and the EEOC to weaken the coverage of the ADA. In this article, we look at the effects of the ADAAA upon both employers and educators within post-graduate school programs. Pursuant to the Act, institutions will be required to consider accommodations for an increasing …
Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger
Connecticut Yankee Speech In Europe’S Court: Alternative Vision Of Constitutional Defamation Law To New York Times V. Sullivan?, Allen E. Shoenberger
Allen E Shoenberger
The article compares and contrasts the defamation law of the European Court of Human Rights(ECHR) with that of the United States, with particular reference to NY Times v. Sullivan. The NY Times actual malice standard not only over-protects speakers, it denies a name clearing hearing to the target of defamatory speech. This is of increasing importance as new media, such as the internet, make it so easy to communicate false, defamatory statements about anyone, including in particular elected officials and candidates. President Obama was first elected to the U.S. Senate because of a sex scandal that tainted his only serious …
Racial Profiling In America, April J. Walker
Our Forgotten Founders: Reconstruction, Public Education, And Constitutional Heroism, Thomas G. Donnelly
Our Forgotten Founders: Reconstruction, Public Education, And Constitutional Heroism, Thomas G. Donnelly
Thomas G Donnelly
This Article examines a set of constitutional stories that has not been the subject of focused study by legal scholars—the stories we tell our schoolchildren about the Founding and Reconstruction. These stories offer new clues about the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution. Since the early twentieth century, our leading high school textbooks have tended to praise the Founding generation and canonize certain “Founding Fathers,” while, at the same time, largely ignoring Reconstruction’s key players and underemphasizing the constitutional revolution these “Forgotten Founders” envisioned …
Intent And Empirics: Race To The Subprime, Carol N. Brown
Intent And Empirics: Race To The Subprime, Carol N. Brown
Carol N Brown
ABSTRACT INTENT AND EMPIRICS: RACE TO THE SUBPRIME The United States’ history of racially discriminatory banking, housing, and property policies created a community of black Americans accustomed to exploitative financial services and vulnerable to victimization by subprime lenders. My thesis is that black borrowers are experiencing a new iteration of intentional housing discrimination in the twentieth and twenty-first centuries; lenders identified a vulnerable “emerging market” of black homeowners and borrowers and knowingly targeted them to receive subprime or predatory loan products when equally situated white borrowers were given superior, prime mortgage products. This Article explores how disparate lending practices coupled …
Racial Profiling -Separate And Unequal Keeping The Minorities In Line- The Role Of Law Enforcemnet In America, April J. Walker
Racial Profiling -Separate And Unequal Keeping The Minorities In Line- The Role Of Law Enforcemnet In America, April J. Walker
April J. Walker
No abstract provided.
Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Bowman
Truth Or Consequences: Self-Incriminating Statements And Informant Veracity, Mary Bowman
Mary N. Bowman
Courts treat self-incriminating statements by criminal informants as a significant factor favoring the reliability of the informant’s information when making probable cause determinations for the issuance of search warrants. Courts do so even though admissions of criminal activity usually undercut, rather than support, credibility. In using self-incriminating statements to support the informant’s reliability, courts tend to rely on a theory with significant theoretical flaws. Furthermore, recent United States Supreme Court jurisprudence in other contexts undercuts the reliability of using self-incriminating statements to support the veracity of other information. If courts adequately scrutinize the informant’s self-incriminating statements and the circumstances surrounding …
Lost In The Numbers: The Underrepresentation Of Asian American Groups And The Case For Disaggregating “Asian” Data, William W. Yu
Lost In The Numbers: The Underrepresentation Of Asian American Groups And The Case For Disaggregating “Asian” Data, William W. Yu
William W Yu
While certain Asian ethnicities outperform Whites and other groups with respect to socioeconomic achievement, other Asian groups fail to reach the same levels of success. Despite this, the aggregate treatment of Asian Americans continues in affirmative action debates, especially in the educational context. As a result, the unique needs and issues of groups such as Southeast Asians are often ignored. The aggregate treatment is also used to justify the exclusion of Asian Americans from affirmative action policies because of a belief that Asian Americans as a whole are already adequately represented in schools, and thus no longer need affirmative action. …
Strict In Theory, But Accommodating In Fact?, Ozan O. Varol
Strict In Theory, But Accommodating In Fact?, Ozan O. Varol
Ozan O Varol
No abstract provided.
A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea
A Jurisprudence Of Dogmatism: Religion, Rationality And The Case For Homosexual Rights, Dylan Zorea
dylan zorea
I contend that arguments derived from religious beliefs are incompatible with Constitutional jurisprudence because such views are generally irrational, and consequently, judicially incontestable. Yet, due to the significance of religion in the lives of many citizens, such arguments have continually intruded into matters of law and public policy. This has been the case particularly regarding the issue of homosexual rights, where a religiously grounded animus has made it difficult for gay and lesbian persons to enjoy the full protection of law. Because religious arguments cannot be rationally justified they must be excluded from judicial analysis. I will further argue that …