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Full-Text Articles in Law

Search Me?, John Burkoff Aug 2007

Search Me?, John Burkoff

University of Pittsburgh School of Law Working Paper Series

Professor Burkoff contends that most people who purportedly “consent” to searches by law enforcement officers are not really – "freely and voluntarily," as the Supreme Court decisional law supposedly requires – consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment.

Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the ...


You Are Living In A Gold Rush, Richard Delgado Aug 2007

You Are Living In A Gold Rush, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

This article argues that our times, characterized as they are by dreams of vast wealth, environmental destruction, and growing social inequality, resemble nothing so much as earlier get-rich-quick periods like the Gilded Age and the California gold rush.

I put forward a number of parallels between those earlier periods and now and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through—even if some of our more ...


No Seat At The Table - How Corporate Governance And Law Keep Women Out Of The Boardroom , Douglas M. Branson Mar 2007

No Seat At The Table - How Corporate Governance And Law Keep Women Out Of The Boardroom , Douglas M. Branson

University of Pittsburgh School of Law Working Paper Series

Based upon substantial numbers of women enrolling in MBA and law programs, from the 1970s onward expectations have been high. With 25 and later 36% female MBA matriculates, and 33% and later 49-51% in law, by the 21st Century the expectation was that great numbers of women would populate the CEO suites and boardrooms in the U.S.

NO SEAT AT THE TABLE (NYU Press 2007) documents how the numbers lag badly behind the expectations, and how the reality lags further yet behind the numbers. Analyses of Fortune 500 proxy data, as the enclosed chapter demonstrates, produce scant reason to ...


Parallel Courts, Elena A. Baylis Feb 2007

Parallel Courts, Elena A. Baylis

University of Pittsburgh School of Law Working Paper Series

Even as American attention is focused on Iraq’s struggles to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society – Kosovo – has just begun negotiations to resolve the question of its political independence. The persistent ethnic divisions that have obstructed Kosovo’s efforts to establish multi-ethnic “rule of law” offer lessons in transitional justice for Iraq and other states.

In Kosovo today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the United Nations administration in Kosovo and is mostly, although not exclusively, staffed ...


The Multiethnic Placement Act: Threat To Foster Child Safety And Wellbeing, David J. Herring Jan 2007

The Multiethnic Placement Act: Threat To Foster Child Safety And Wellbeing, David J. Herring

University of Pittsburgh School of Law Working Paper Series

Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.

The federal Multiethnic Placement Act (MEPA) significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child’s ...


Legal Scholarship, Humility, And The Scientific Method, David J. Herring May 2006

Legal Scholarship, Humility, And The Scientific Method, David J. Herring

University of Pittsburgh School of Law Working Paper Series

This essay responds to the question of "What next for law and behavioral biology?" by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and ...


Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti Mar 2006

Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti

University of Pittsburgh School of Law Working Paper Series

Inspired by Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben’s discussion of Kafka’s parable Before the Law, this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men ...


L’Enseignement Du Droit Aux États-Unis: Réflexion Sur L’Actualité, Vivian Grosswald Curran Dec 2005

L’Enseignement Du Droit Aux États-Unis: Réflexion Sur L’Actualité, Vivian Grosswald Curran

University of Pittsburgh School of Law Working Paper Series

This short essay updates an earlier publication on U.S. law teaching methodology as a reflection of the common law system that was published in 13 Cahier de Méthodologie Juridique. The older piece will be republished along with this update in 20 Cahier de Méthodologie Juridique. The central theme of the present piece is to raise the issue of U.S. legal education’s reflection of common law assumptions in light of today’s internationalization of law. More specifically, there is a growing consensus to confirm the theory of Niklas Luhmann that law is transnationalizing along substantive, functionalist lines. The ...


Discrimination Against The Unhealthy In Health Insurance, Mary Crossley Dec 2005

Discrimination Against The Unhealthy In Health Insurance, Mary Crossley

University of Pittsburgh School of Law Working Paper Series

As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short ...


What’S The Matter With Liberalism? Reassessing Voting, Politics, And Ideology, George H. Taylor Oct 2005

What’S The Matter With Liberalism? Reassessing Voting, Politics, And Ideology, George H. Taylor

University of Pittsburgh School of Law Working Paper Series

The 2004 presidential election raised at least two questions for election law analysis. First, in contrast to the past several decades of low voter turnout, why were voters so motivated to go to the polls in 2004? Second, why did many voters who were part of the Democrats’ traditional base vote in opposition to what was widely considered to be their economic self-interest? My argument is that the answer to these questions can be conjoined by reviving and reinvigorating a non-pejorative theory of ideology.

A revised theory of ideology recognizes the multiple levels on which ideologies – both political and legal ...


Social Software, Groups And Governance , Michael J. Madison Aug 2005

Social Software, Groups And Governance , Michael J. Madison

University of Pittsburgh School of Law Working Paper Series

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? I argue that this and related questions are appearing more frequently in legal scholarship as a number of computer technologies, which I collect under the heading “social software,” increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. In this Essay, I argue that there may be important social benefits associated with informal groups, and that the law should move towards a framework for ...


Retaliation, Deborah L. Brake Aug 2005

Retaliation, Deborah L. Brake

University of Pittsburgh School of Law Working Paper Series

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality.

Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice ...


Everyday Law For Gays And Lesbians: An Introduction, Anthony C. Infanti Jun 2005

Everyday Law For Gays And Lesbians: An Introduction, Anthony C. Infanti

University of Pittsburgh School of Law Working Paper Series

This is the (revised) introductory chapter of a book that I am currently writing. The book is titled Everyday Law for Gays and Lesbians, and is part of Paradigm Publishers' Everyday Law series.

The introductory chapter - indeed, the entire book - is built upon and around the power of narrative. I begin the chapter with a personal narrative that illustrates what I refer to as the current predicament of the lesbian and gay movement. In the first part of the chapter, I survey the social and legal landscape that surrounds the movement, explain why I view the current situation as a ...


Law As Design: Objects, Concepts And Digital Things, Michael J. Madison Apr 2005

Law As Design: Objects, Concepts And Digital Things, Michael J. Madison

University of Pittsburgh School of Law Working Paper Series

This Article initiates an account of “things” in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of ...


When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake Nov 2004

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake

University of Pittsburgh School of Law Working Paper Series

This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term “leveling down” refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that ...


Racism As "The Nation's Crucial Sin": Theology And Derrick Bell, George H. Taylor Apr 2004

Racism As "The Nation's Crucial Sin": Theology And Derrick Bell, George H. Taylor

University of Pittsburgh School of Law Working Paper Series

The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell’s thesis of racism’s permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr’s paradox that social action is both ...


Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring Feb 2004

Foster Care Placement: Reducing The Risk Of Sibling Incest, David J. Herring

University of Pittsburgh School of Law Working Paper Series

The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood.

The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize ...


Child Placement Decisions: The Relevance Of Facial Resemblance And Biological Relationships, David J. Herring Oct 2003

Child Placement Decisions: The Relevance Of Facial Resemblance And Biological Relationships, David J. Herring

University of Pittsburgh School of Law Working Paper Series

This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes. The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their longterm well-being. Among other implications, this study may justify public child welfare decisionmakers ...