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Articles 1 - 22 of 22
Full-Text Articles in Law
The Excitement Of Interdictory Ideas: A Response To Professor Anders Walker, Marc O. Degirolami
The Excitement Of Interdictory Ideas: A Response To Professor Anders Walker, Marc O. Degirolami
Scholarly Articles
Having canvassed admirably the historical changes to the criminal law case book over the twentieth century, Professor Anders Walker's article suggests that criminal law ought to concern itself with the business of training future prosecutors and defense attorneys by eliminating, or at least greatly reducing, the place of moral and political reflection in the course, which was in any event the supercilious indulgence of elite law schools that disprized criminal practice. His normative prescriptions are of a piece with much that is currently in vogue in criticisms of legal education: that it is impractical, that it does not respond to …
Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien
Integrating Marital Property Into A Spouse’S Elective Share, Raymond C. O'Brien
Scholarly Articles
First, this Article begins with history, as this forms the basis of electiveshare law. It is necessary to begin with the historical basis of a spouse's right to support, and then proceed to examine how and why a spouse obtained a share of the property acquired during marriage. Second, because a spouse's rights at death were often very different from those that a spouse would obtain at divorce, it is necessary to explain the various judicial and statutory models adopted by the states to provide a modicum of protection to a surviving spouse at death. There are many models and …
The Uniform Bar Examination: A Benefit To Law School Graduates, Veryl Victoria Miles
The Uniform Bar Examination: A Benefit To Law School Graduates, Veryl Victoria Miles
Scholarly Articles
No abstract provided.
Raymond B. Marcin: An Appreciation, George P. Smith Ii
Raymond B. Marcin: An Appreciation, George P. Smith Ii
Scholarly Articles
No abstract provided.
A Study In Law And Literature: Themes Of Exceptionalism And Equity In British And American Culture, William J. Wagner
A Study In Law And Literature: Themes Of Exceptionalism And Equity In British And American Culture, William J. Wagner
Scholarly Articles
The advent of a new scale of international terrorism on September 11, 2001 posed a case for moral and legal evaluation that appeared to some in the global community to evade the reach of received rules or principles of moral or political action. The perceived threat and a certain sense by some governmental actors to an entitlement of latitude in response seemed to sever the situation from rules and principles in a depth dimension of consciousness. For many, the case's enormity overwhelmed its abstract moral definition. The foreign policy response of the United States-the country which had been attacked-further reinforced …
The National Right To Counsel Act: A Congressional Solution To The Nation's Indigent Defense Crisis, Cara H. Drinan
The National Right To Counsel Act: A Congressional Solution To The Nation's Indigent Defense Crisis, Cara H. Drinan
Scholarly Articles
For decades, scholars and practitioners have criticized the deplorable quality of legal representation available to poor criminal defendants across the country. Yet states continue to give short shrift to the constitutional rights of poor defendants. This article proposes a new piece of federal legislation designed to ameliorate the chronic inadequacies of public defense systems, while respecting federalism and leaving in tact the states’ ability to devise and implement appropriate public defense systems. The centerpiece of this proposed legislation is a cause of action in federal court that allows indigent defendants to seek equitable relief for systemic Sixth Amendment violations on …
Redistribution In The Private Retirement System: Who Wins And Who Loses?, Regina T. Jefferson
Redistribution In The Private Retirement System: Who Wins And Who Loses?, Regina T. Jefferson
Scholarly Articles
No abstract provided.
Lawyering Outside Lawsuits: Incorporating Negotiations, Settlements, And Mediations Into The Legal Writing Curriculum, Olivia Farrar, A.G. Harmon
Lawyering Outside Lawsuits: Incorporating Negotiations, Settlements, And Mediations Into The Legal Writing Curriculum, Olivia Farrar, A.G. Harmon
Scholarly Articles
Legal education is built around a core irony: almost no human disputes are resolved via trials, and yet we dedicate years to teaching law students how to resolve disputes via litigation. To remedy this incongruity between legal education and the reality of lawyering, the two of us have begun integrating negotiations, settlements, and mediation into our 1L legal writing curriculum. This article describes why and how we have introduced our students to these non-litigation skill sets, starting to train them in what we believe may be their most powerful dispute resolution skills when they enter the legal world.
Virtual Contacts In Patent Cases: How Should Internet-Related Contacts Affect The Personal Jurisdiction Analysis?, Megan M. La Belle
Virtual Contacts In Patent Cases: How Should Internet-Related Contacts Affect The Personal Jurisdiction Analysis?, Megan M. La Belle
Scholarly Articles
In the 1990s, when the Internet was still considered novel, courts struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. So when Zippo Manufacturing v. Zippo DOT Com established an apparently easy-to-apply test for deciding whether a defendant’s virtual contacts are sufficient for personal jurisdiction, many courts embraced it . To date, however, the Federal Circuit has neither adopted nor rejected the Zippo approach, leaving litigants and lower courts in patent cases with little guidance on the issue. Although a recent decision suggests that the Federal Circuit recognizes the limitations of Zippo, it …
Sexting Or Self-Produced Child Pornography – The Dialogue Continues – Structured Prosecutorial Discretion Within A Multidisciplinary Response, Mary Graw Leary
Sexting Or Self-Produced Child Pornography – The Dialogue Continues – Structured Prosecutorial Discretion Within A Multidisciplinary Response, Mary Graw Leary
Scholarly Articles
One need only read the newspaper to see a rising dangerous phenomenon among juveniles: the creation and subsequent sharing via the Internet of sexually explicit photographs. This self exploitation is not only a tragic social problem, but a growing legal one as well. Judges, attorneys, and legislators, are forced to address this activity because, in addition to being self destructive, it is also a violation of state and federal child pornography laws. Juvenile self exploitation illustrates a clash of two lines of jurisprudence and public policy: the aggressive opposition to child pornography and the more lenient rehabilitative treatment of juvenile …
The Stellar Parenthetical Illustration: A Tool To Open Doors In A Tight Job Market, Laurie A. Lewis
The Stellar Parenthetical Illustration: A Tool To Open Doors In A Tight Job Market, Laurie A. Lewis
Scholarly Articles
The carefully crafted parenthetical illustration can be a powerful tool in persuasive legal analysis. It can also reflect five areas of a student’s practice-ready skills. These skills include research, use of mandatory and persuasive authorities, rule synthesis and application, clarity and conciseness in writing, and citation form. The student who achieves competency not only in formatting citations but also in drafting clear, concise, illustrative parentheticals demonstrates an understanding of rule permutations. This competency can open doors for opportunities both within and outside law school. Doors can open to better grades, journal invitations, publication offers, internship and externship placements, and jobs, …
Innocent Threats, Concealed Consent And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law, Marin Roger Scordato
Innocent Threats, Concealed Consent And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law, Marin Roger Scordato
Scholarly Articles
This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light …
Private Enforcement Of Systemic Risk Regulation, Heidi Mandanis Schooner
Private Enforcement Of Systemic Risk Regulation, Heidi Mandanis Schooner
Scholarly Articles
The failure of the regulatory system is at least one of the contributing causes to the 2008 Financial Crisis. The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) will have a far-reaching impact on the financial services industry particularly in its attempt to regulate systemic risk. The Dodd-Frank Act, however, does not sufficiently address the problem of agency discretion generally, or the problem of an agency’s discretion to forebear, in particular. Under Dodd-Frank, the agencies retain considerable discretion and the effectiveness of the new regime depends on the optimal exercise of such discretion. This Article maintains that an …
Partial Unconstitutionality, Kevin C. Walsh
Partial Unconstitutionality, Kevin C. Walsh
Scholarly Articles
Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …
The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi
The History And Constitutionality Of Maryland’S Pregnancy Speech Regulations, Mark L. Rienzi
Scholarly Articles
On December 4, 2009, Baltimore, Maryland enacted the nation's first law regulating the speech of individuals and groups who want to talk to pregnant women about whether to have an abortion. Less than two months later, nearby Montgomery County, Maryland enacted the second. These regulations only apply to speakers who want to talk about one particular subject: pregnancy. As a practical matter, the regulations only apply to speakers who oppose abortion. Counselors who work for organizations willing to provide abortions are entirely exempt. Immediately after these laws passed, abortion providers and their allies across the country began plans to pursue …
Freedom Not To Listen: A Constitutional Analysis Of Compulsory Indoctrination Through Workplace Captive Audience Meetings, Roger C. Hartley
Freedom Not To Listen: A Constitutional Analysis Of Compulsory Indoctrination Through Workplace Captive Audience Meetings, Roger C. Hartley
Scholarly Articles
Workplace captive audience meetings are assemblies of employees during paid work time in which employers compel employees to listen to antiunion and other types of proselytizing. Employers enforce attendance at workplace captive audience meetings by threats of discharge. Typically, employers deny employees the right to ask questions or express disagreement with the anti-union views presented during these mandatory meetings. Soon after the enactment of the National Labor Relations Act (NLRA), the National Labor Relations Board (NLRB) concluded that workplace captive audience meetings discussing unionization are per se unlawful. However, the NLRB reversed course following the enactment of the 1947 Taft-Hartley …
Integrating Catholic Social Thought In Elder Law And Estate Planning Courses: Reflections On Law, Age And Ethics, Lucia A. Silecchia
Integrating Catholic Social Thought In Elder Law And Estate Planning Courses: Reflections On Law, Age And Ethics, Lucia A. Silecchia
Scholarly Articles
A course in elder law or estate planning encompasses many of the most profound issues that arise in human life: the contemplation of mortality, ambivalent attitudes toward property and its proper distribution, complexities in family relationships, obligations to support loved ones, anticipation of physical or mental challenges, and reflections on one’s desired legacy to loved ones. Although there is much in the Catholic tradition and in the Scriptures themselves that speaks to these questions in an indirect way, this has not often been fully explored because this field may not, on its face, have an obvious connection to religious tradition. …
Systemic Indigent Defense Litigation: A 2010 Update, Cara H. Drinan
Systemic Indigent Defense Litigation: A 2010 Update, Cara H. Drinan
Scholarly Articles
Part I of this Essay describes the systemic indigent defense suits in Michigan and New York, noting their similar but ultimately divergent paths. Part II addresses the question of how systemic litigation in the indigent defense arena is faring in the wake of the Michigan suit. Despite the Michigan setback, this kind of litigation may still be a powerful reform tool in certain jurisdictions. Moreover, in some jurisdictions there will always be the need for litigation simply because it is the only path to reform. I note three jurisdictions where litigation is either already happening in some fashion and/or where …
The Child Declarant, The Confrontation Clause, And The Forfeiture Doctrine, Clifford S. Fishman
The Child Declarant, The Confrontation Clause, And The Forfeiture Doctrine, Clifford S. Fishman
Scholarly Articles
The Confrontation Clause of the Sixth Amendment normally precludes the state from offering a child's "testimonial" hearsay statements into evidence if the child does not testify. An exception to that rule arises, however, if the defendant has engaged in misconduct that results in the forfeiture of the right to confront the child in court. In Giles v California, the United States Supreme Court attempted to clarify what a prosecutor must show in order to invoke the forfeiture doctrine. This Article examines the effect of Giles on the "testimonial" statement of a child declarant who does not testify at the defendant's …
Mulieris Dignitatem: Pornography And The Dignity Of The Soul - An Exploration Of Dignity In A Protected Speech Paradigm, Mary Graw Leary
Mulieris Dignitatem: Pornography And The Dignity Of The Soul - An Exploration Of Dignity In A Protected Speech Paradigm, Mary Graw Leary
Scholarly Articles
This article, part of a symposium celebrating the 20th anniversary of Mulieris Dignitatem, reflects on Mulieris Dignitatem’s teachings, and how they can inform the issue of pornography. Modern day pornography has increased in both its quantity and severity of content. Mulieris Dignitatem offers a pathway out of this reality with its focus on the concept of dignity. The article reviews John Paul II’s emphasis on the dignity of woman and applies it to the modern day issue of pornography. The article suggests a paradigm shift from examining pornography solely through a speech and expression lens to examining the issue through …
The Vanity Of Dogmatizing, Marc O. Degirolami
The Vanity Of Dogmatizing, Marc O. Degirolami
Scholarly Articles
The year 1661 saw the publication of Joseph Glanvill's The Vanity of Dogmatizing, a polemic advocating an intellectual break from Aristotle and the Schoolmen in favor of the sort of empiricism that eventually came to fruition in the philosophy of David Hume. Glanvill was deeply irritated by what he perceived as the encrusted academic orthodoxies of his age: "The Disease of our Intellectuals," he railed, "is too great, not to be its own [evidence]: And they that feel it not, are not less sick, but stupidly so.' What was needed was a skeptical cast of mind- thinkers who would shatter …
Originalism And The Legislature, Joel Alicea
Originalism And The Legislature, Joel Alicea
Scholarly Articles
While the extent to which Congress ought to be involved in interpreting the Constitution has been the subject of scholarly debate in recent years, the question of how Congress should interpret the document has been overlooked. This paper examines the justifications underlying several schools of originalist thought to tease out what these schools have to say about congressional constitutional interpretation. When the major originalist theories are scrutinized, the logical conclusion is that Congress ought to be originalist when engaging in constitutional interpretation. The paper thus breaks new ground in pointing out this radical implication of originalist thought, but its novel …