Law Commons^™

Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon

Faculty Articles

Juridical discourse concerning life stories has been primarily concerned with property and contract issues, and categories such as "ownership" and "authorship." Such legal discourse generally fails to acknowledge the unique nature of Native American life stories, particularly when such stories are written in collaboration with a non-Native editor or transcriber. This essay focuses on one fundamental question with overlapping legal and ethical aspects: how does a non-Native collaborator avoid a colonizing relationship to Native American texts? In suggesting possible answers to this vexing question, I always have on the horizon of my mind's eye two figures-Emmanuel Levinas, the philosopher, and …

An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard Pertnoy

Faculty Articles

The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of …

James Edward Beaver-Beethovenist, Henry Mcgee

Faculty Articles

Tribute to Professor James E. Beaver 1930-2001

Echo: Words Spoken In Memory Of James Beaver, Kelly Kunsch

Faculty Articles

Tribute to Professor James E. Beaver 1930-2000

Jim Beaver, The Founding Member Of This Law School, Thomas Holdych

Faculty Articles

Tribute to Professor James E. Beaver 1930-1999

Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price

Faculty Articles

This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …

A Special Forces Human Rights Policy, Jeffrey F. Addicott

Faculty Articles

The use of the United States military to promote human rights values in foreign militaries has taken on a much added significance in the post-Cold War era. Emerging democracies often look to American soldiers to assist them in establishing a law-based military whose policies, rules, and practices are rooted in respect for human rights.

Major General Kenneth Bowra, United States Army Special Forces Command (Airborne) (USASFC(A)), has made the promotion of human rights in the militaries of the emerging democracies a top priority for the Army Special Forces. With regard to America’s desire to inculcate human rights values in friendly …

Race, Gender, “Redlining,” And The Discriminatory Access To Loans, Credit, And Insurance: An Historical And Empirical Analysis Of Consumers Who Sued Lenders And Insurers In Federal And State Courts, 1950-1995, Willy E. Rice

Faculty Articles

Courts have failed to consistently remedy insurers’ and lenders’ discrimination against low-income individuals, women, and minorities. State and federal courts have tried to resolve disputes involving redlining, unequal access to capital, and insurance discrimination. Because of courts’ failures, Congress passed the Equal Credit Opportunity Act of 1974 (“ECOA”) and the Community Reinvestment Act of 1977 (“CRA”) to protect minorities and low income individuals. But the ECOA and CRA have not achieved their stated goals of eradicating either insurance or mortgage redlining.

In most states, the responsibility of enforcing federal fair-lending laws and eradicating all sorts of financial redlining is given …

See No Evil - The Role Of The Directed Trustee Under Erisa, Patricia W. Moore

Faculty Articles

Just before ERISA's passage, Congress added a provision allowing a sponsoring employer to use a "named fiduciary" – usually one or more of the employer's officers – to direct the trustee. In that case, the trustee is to "be subject to proper directions of such fiduciary which are made in accordance with the terms of the plan and which are not contrary to this Act." Such a trustee is commonly called a "directed trustee."

After ERISA became law, commentators immediately observed that section 403(a)(1) generated more questions than answers. For instance, is a directed trustee a "fiduciary" at all? Does …

On Seeing Chinese Law From A Chinese Point Of View: An Appreciative Look At The Scholarly Career Of Professor William Jones, Janet Ainsworth

Faculty Articles

In this appreciative review, Professor William Jones's work is used to demonstrate that sensitivity to issues of methodology are indispensable for comparative law scholars. Professor Jones's work is valuable because (1) it is marked both by an awareness of the methodological difficulties faced by the comparativist and a confidence that it is nonetheless possible to transcend these difficulties and (2) it makes a meaningful contribution to the development of an understanding of a foreign legal order. The article concludes by stating that Professor Jones's work will influence future generations of scholars trying to answer the why, what, and how of …

Categories And Culture: On The 'Rectification Of Names' In Comparative Law, Janet Ainsworth

Faculty Articles

This article proposes a thorough ‘rectification of names’ take place in comparative legal studies, with a specific focus on Chinese law. Pioneering Chinese comparative law scholars focused on describing the Chinese legal system using Western legal terminology. The job of the second-generation of legal scholars, however, is to interpret both the primary source material and prior interpretations. There are many pitfalls entailed with studying non-Western law, foremost is the danger of one’s conceptual paradigms influencing an interpretation. Any culture’s legal order is uniquely tuned to a cultural context, and Chinese culture represents a social order with sufficient coherence for scholars …

Assessing The Tax Administration Law Of The People's Republic Of China, Kara Phillips, Amy Sommers

Faculty Articles

This article discusses the effort of the People's Republic of China (PRC or China) to obtain revenue through taxes rather than through receipt of profits from state enterprises. In order to strengthen the tax system, in 1992 the Standing Committee of the National People's Congress enacted the Law of the People's Republic of China to Administer the Levying and Collection of Taxes (Tax Administration Law). The authors evaluate the PRC’s Tax administration Law, and discuss the factors that influenced the enactment of the Tax Administration Law and the Implementing Regulations. The authors also examine the Tax Administration Law’s general principles, …

Into The Thicket: Pursuing Moral And Political Visions In Labor Law, John W. Teeter Jr

Faculty Articles

Teachers should attempt to illuminate the moral and political implications of life as a labor lawyer and encourage students to reflect critically on what they think is ethical and why. Regardless of whether they represent management or unions, labor lawyers inevitably confront serious ethical issues. Teachers cannot—nor should they—resolve these issues for their students; they must follow the pull of their own moral and political beliefs. But teachers should at least assure that their students consider the ethical implications of life as a labor lawyer. This enriches the students’ thinking by placing them in real-world predicaments and enabling them to …

Tribute To James E. Beaver, Mark Reutlinger

Faculty Articles

Tribute to Professor James E. Beaver 1930-1997

Eulogy For Jim Beaver February 29, 1996, James E. Bond

Faculty Articles

Tribute to Professor James E. Beaver 1930-1996

New Wine Bursting From Old Bottles: Collaborative Internet Art, Joint Works, And Entrepreneurship, Margaret Chon

Faculty Articles

Some intellectual property colleagues recently urged Professor Chon to post this article on SSRN. She wrote it circa mid-90’s when information still wanted to be free and the predominant technology was still file transfer protocol. It seems this piece has stood the test of time because it was one of the first legal academic pieces to address the copyright implications of Internet works. Today in 2010, we are still grappling with the collaborative, dynamic and entrepreneurial characteristics of digital networked content. However, now it is created and distributed through different intermediaries such as Facebook, Twitter, YouTube, etc.

Speaking The Language Of Exclusion: How Equal Protection And Fundamental Rights Analyses Permit Language Discrimination (Comment), Donna F. Coltharp

Faculty Articles

No abstract provided.

The Nativist's Dream Of Return, Robert S. Chang

Faculty Articles

In this address, Professor Robert Chang discusses how the current racial paradigm has become naturalized so that race in America is generally understood to mean black and white. It is this notion of race that limits people understanding and willingness to engage with the history and current state of Asian Americans and Latinos in the United States. Instead of being interested participants, they are seen as interlopers. Yet this status as interloper is precisely why Asian Americans and Latinos are important in discussions of race-our existence disrupts the comfortable binary of the black/white racial paradigm in which the black racial …

Chon On Chen On Chang, Margaret Chon

Faculty Articles

This essay attempts to highlight and explore Bob Chang's implicit disclaimers for an Asian American legal scholarship situated within post-structuralism: that it is contingent, ironic, and yearns for a chimerical solidarity, these qualities should not lead to the conclusion that his claims lack positive vision, the narrative space that Chang advocates allows for creative articulations of Asian presence in America, in both theoretical and practical realms. Thus, after considering the nature of the misunderstanding between Chang and Chen, the author will turn briefly to one example of positive articulation-the diaspora perspective-and read it into Jim Chen's text.

Critiquing Law Students’ Writing: What The Students Say Is Effective, Anne Enquist

Faculty Articles

It seemed worthwhile to study the comments legal writing instructors put on students' papers and ask the readers of those comments - the students themselves - which comments were the most useful. This article describes such a study that was conducted by the author using students and faculty at the University of Puget Sound School of Law. The results should be useful to new legal writing faculty who are striving to learn how to critique their students' writing effectively, as well as to experienced legal writing faculty who are interested in whether the conventional wisdom about critiquing is borne out …

Afterword: New "Truths" And The Old First Amendment, David Skover, Ronald Collins

Faculty Articles

Written as an afterword to a Symposium on The Death of Discourse, this piece replies to commentaries on the relationship between "Noble Lies" and the First Amendment authored by Professors Shadia Drury (political science), Robert Hariman (rhetoric & communication studies), David Nyberg (philosophy), Loyal Rue (religion & philosophy), and Richard Stivers (sociology).

The Dayton Peace Agreement: Constitutionalism And Ethnicity, Ronald Slye

Faculty Articles

It has been almost five years since the violent dissolution of Yugoslavia. An estimated 200,000 civilians have been killed, over two million people have been displaced from their homes, tens of thousands have been tortured and raped, and Europe has hosted yet another of the world's genocides. While the recently concluded Dayton Peace Agreement has resulted in a temporary cessation of the armed conflict, serious concerns have been raised regarding efforts to rebuild and repair the institutions of civil society. Little attention has been paid, however, to the constitutional structure of the newly created state of Bosnia and Herzegovina. While …

Autonomy And Death, Annette E. Clark

Faculty Articles

In this article, Professor Clark explores the contours of the current debate over physician-assisted death. She begins by focusing on the legal issues raised by statutory attempts to either legalize or criminalize physician-assisted death, with particular emphasis on the constitutional questions that are currently before the United States Supreme Court. She then examines physician-assisted death from both medical and societal perspectives. Professor Clark uses a thought experiment in which assisted death is facilitated by persons other than physicians, and in doing so, questions whether physicians are the proper persons in whom to wrest power over assisted death. She points out …

The End Of Innocence Or Politics After The Fall Of The Essential Subject, Robert S. Chang

Faculty Articles

Stuart Hall, writing in the context of British Cultural Studies, describes the demise of the essential black subject as the end of innocence. We have seen in feminist theory and in critical race theory the debate about essentialism, along with various recuperative proposals such as intersectionality, multiple consciousness, positionality, and strategic essentialism. Rather than revisit those discussions, Professor Chang raises the possibility of constructing new subject positions in an attempt to move us beyond the difference divide, to move us from identity politics as we now know it to political identities. In this essay, Professor Chang asks whether we can …

Consumer Protection For Latinos: Overcoming Language Fraud And English Only In The Marketplace, Steven W. Bender

Faculty Articles

Non-English-speaking consumers deserve the same protection as other consumers, and thus, this article advocates guarantees for their ability to strike informed bargains. To safeguard consumers most vulnerable to unfair and deceptive trade practices, this article contemplates a comprehensive strategy of reform that involves the legislatures, administrative agencies, and courts, as well as nonprofit organizations that advocate for language minorities and merchants themselves. Part I examines the growth in numbers of monolingual Latino/a consumers and documents their experience in the American marketplace. Part I also explores the shortcomings of existing remedies under the common law and consumer protection regulation when applied …

Passion And The Asian American Legal Scholar, Robert S. Chang

Faculty Articles

Professor Chang discusses what it means to be Asian American, and the strength and vibrancy of the various Asian immigrant groups as they struggled to make a home in the United States. He examines this ongoing struggle, and explores how it is through this struggle that they have become and are becoming Asian Americans.

Reverse Racism!: Affirmative Action, The Family, And The Dream That Is America, Robert S. Chang

Faculty Articles

In this essay, Professor Chang explores the interaction of race and family in the affirmative action debate. Although discrimination against women remains rampant in our society, and despite the fact that white women have been the primary beneficiaries of affirmative action, white women are being told that affirmative action hurts them because it hurts their husbands, brothers, and sons. Familial loyalty is being invoked to do the work of an explicit call for white racial solidarity. This strategy may be successful because as late as 1987, even with the increasing rate of interracial marriage, 99% of white Americans were married …

Tribute To James E. Beaver, John Mitchell

Faculty Articles

Tribute to Professor James E. Beaver 1930-1997.

Custody And Conduct: How The Law Fails Lesbian And Gay Parents And Their Children, Julie Shapiro

Faculty Articles

When parents dispute child custody, courts determine their rights by using a "best interests of the child" analysis. In this context, courts consider a host of factors, including parental sexuality. When considering the suitability of custody for a lesbian or gay parents, most courts employ a nexus test - one that requires a showing of a nexus between parental sexuality and the well-being of the child. A smaller number continue to use a harsher test that disqualifies lesbian and gay parents under a per se rule. This article argues that closer examination reveals that even the apparently more liberal nexus …

The Use Of Offender Characteristics In Guideline Sentencing: A Laboratory Report From Washington State, David Boerner

Faculty Articles

This article examines the topic of using offender characteristics in guideline sentencing—a controversial concern, as guidelines have limited the ability for parole boards and judges to use offender characteristics. The article specifically examines how Washington state has approached the issue.