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Statement Of Testimony: Commission On Safety And Abuse In America's Prisons, Jack Cowley Jan 2006

Statement Of Testimony: Commission On Safety And Abuse In America's Prisons, Jack Cowley

Washington University Journal of Law & Policy

I believe that we have for too long considered prisons as places to promote public safety by means of the incapacitation of offenders rather than places that promote public safety by releasing offenders who are less likely to reoffend. It is widely accepted that, nationally, approximately 67.5% of released offenders are arrested within three years of their release. It is my professional opinion, gained from my many years as a prison warden and continued work in the field, that this figure is higher than it needs to be; prisons, when used as tools of crime reduction, can be effective.


Playing Fair: Why The United States Anti-Doping Agency's Performance-Enhanced Adjudications Should Be Treated As State Action, Paul C. Mccaffrey Jan 2006

Playing Fair: Why The United States Anti-Doping Agency's Performance-Enhanced Adjudications Should Be Treated As State Action, Paul C. Mccaffrey

Washington University Journal of Law & Policy

No abstract provided.


Living On A Poverty Income: The Role Of Non-Governmental Agencies In The Scramble For Resources, Ronald Angel, Laura Lein Jan 2006

Living On A Poverty Income: The Role Of Non-Governmental Agencies In The Scramble For Resources, Ronald Angel, Laura Lein

Washington University Journal of Law & Policy

Our objective is to illustrate the precariousness of the formal social service safety net for low-income families and to argue that social inequality in urban America is exacerbated by the inequitable distribution of more formal sources of support. Ultimately, we examine whether the current system of service delivery for poor families is adequate, and what toll these fragmented and discontinuous services take on a family’s ability to thrive.


Looking For Justice On A Two-Way Street, Nancy L. Cook Jan 2006

Looking For Justice On A Two-Way Street, Nancy L. Cook

Washington University Journal of Law & Policy

The unstated truth about lawyer-community “collaborations” is that lawyers, by and large, do not intend to bridge the gap between the powerful (themselves included) and poor communities by giving up their apparent privileges and taking advantage of what communities would have to offer if they did. Access is therefore generally presumed to go in one direction. Lawyers seek to give client populations access to the halls of political and economic power, but they do not think in terms of providing judges and the economically privileged access to financially under-supported communities. In these pages, I look at the contemporary notions of ...


Structural Racism, Structural Pollution And The Need For A New Paradigm, Luke W. Cole, Caroline Farrell Jan 2006

Structural Racism, Structural Pollution And The Need For A New Paradigm, Luke W. Cole, Caroline Farrell

Washington University Journal of Law & Policy

Any serious attempt to address the issues of poverty, wealth and the working poor would do well to learn from the Environmental Justice movement, a broad-based national social movement that has emerged from the ground up over the past twenty years. The movement operates at the intersection of race, poverty and the environment, and offers hope in an otherwise bleak landscape of environmental and social justice advocacy. The movement offers a new paradigm for community leadership and control. This Essay explores the need for that new paradigm, using one community’s struggle against toxic intrusion to illustrate the failure of ...


Second-Parent Adoption And The Equitable Parent Doctrine: The Future Of Custody And Visitation Rights For Same-Sex Partners In Missouri, Heather Buethe Jan 2006

Second-Parent Adoption And The Equitable Parent Doctrine: The Future Of Custody And Visitation Rights For Same-Sex Partners In Missouri, Heather Buethe

Washington University Journal of Law & Policy

No abstract provided.


Disabling The Split: Should Reasonable Accommodations Be Provided To “Regarded As” Disabled Individuals Under The Americans With Disabilities Act (Ada)?, Kristopher J. Ring Jan 2006

Disabling The Split: Should Reasonable Accommodations Be Provided To “Regarded As” Disabled Individuals Under The Americans With Disabilities Act (Ada)?, Kristopher J. Ring

Washington University Journal of Law & Policy

No abstract provided.


Foreword: The Rehnquist Court And The First Amendment, Neil M. Richards Jan 2006

Foreword: The Rehnquist Court And The First Amendment, Neil M. Richards

Washington University Journal of Law & Policy

This paper introduces the question -- what will be the legacy of the Rehnquist Court? Although it is too early to say with certainty, it is safe to hazard a guess that it will be remembered as a relatively conservative Court, particularly interested in policing the lines between federal and state power in areas such as the federal commerce power, state sovereign immunity, and criminal procedure. Indeed, it is in these areas that the “Rehnquist Court” is most aptly named, for William Rehnquist was a leader of the Court’s doctrinal evolution in these areas in a number of ways. Despite ...


The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna Jan 2006

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Washington University Journal of Law & Policy

In the last few years, many pages have been devoted to retrospectives on Justice Rehnquist and the Rehnquist Court, a fair number of which focused on Justice Rehnquist’s First Amendment jurisprudence. I focus here not on Justice Rehnquist specifically, but on the Supreme Court as a whole during Rehnquist’s tenure. Specifically, I want to address the Court’s view of the role of the First Amendment in intellectual property cases. My thesis is a modest one: while one certainly cannot describe the Rehnquist Court as eager to find a conflict between intellectual property laws and the First Amendment ...


Property And Speech, Robert Allen Sedler Jan 2006

Property And Speech, Robert Allen Sedler

Washington University Journal of Law & Policy

This Essay analyzes the impact of the First Amendment’s guarantee of freedom of speech on the use, enjoyment and control of property. The Essay analyzes this impact with reference to “The First Amendment as Sword” and “The First Amendment as Shield.” In “The First Amendment as Sword,” the Essay discusses how the First Amendment has been asserted to interfere with a property owner’s use or control of tangible property and to limit the protection of an owner’s property interests. The following areas will be covered: (1) Picketing and Protests; (2) Boycotts; (3) Governmental Economic Regulation; (4) Home ...


The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene Jan 2006

The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene

Washington University Journal of Law & Policy

A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency—well, apparent consistency— to the doctrine. I say “apparent consistency” because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court’s religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of ...


Not Only In My Backyard But On My Front Stoop: The Forgotten Opinion Of Urbanites About Concealed-Carry In Missouri, Christopher T. Pierce Jan 2006

Not Only In My Backyard But On My Front Stoop: The Forgotten Opinion Of Urbanites About Concealed-Carry In Missouri, Christopher T. Pierce

Washington University Journal of Law & Policy

No abstract provided.


The Presumption Of Liberty And The Public Interest: Medical Marijuana And Fundamental Rights, Randy E. Barnett Jan 2006

The Presumption Of Liberty And The Public Interest: Medical Marijuana And Fundamental Rights, Randy E. Barnett

Washington University Journal of Law & Policy

As part of this lecture series on lawyering in the public interest, I decided to talk about my pro bono involvement in the medical cannabis case of Gonzales v. Raich, which I and three other lawyers brought on behalf of Angel Raich and Diane Monson. There are three topics I want to discuss: the first is how I got involved in doing this, which is a question I get asked all the time; the second is to describe the theory we took to the Supreme Court, which prevailed in the Ninth Circuit but was ultimately rejected by the Court on ...


Judicial Independence And The Rule Of Law, David Boies Jan 2006

Judicial Independence And The Rule Of Law, David Boies

Washington University Journal of Law & Policy

The rule of law provides two basic protections against arbitrary or discriminatory government action. It provides that the rule applied to a particular case must be reasonably predictable. And it provides that the rule must be predictable without regard for the identity of the parties. We know the importance that the rule of law has for our society, our democracy, and the kind of civilization we want, but we rarely take the time to think about what the components of the rule of law are and how we assure that the rule of law continues. Why has this country been ...


Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya Jan 2006

Indian Givers: What Indigenous Peoples Have Contributed To International Human Rights Law, S. James Anaya

Washington University Journal of Law & Policy

The remarks that follow summarize how the claims of indigenous peoples have not only taken advantage of changes in the character of international law but have also contributed to those changes, particularly in the area of human rights. These changes are beneficial not just for indigenous peoples themselves but the humanity more broadly. Part I describes the nature of disparate international legal arguments employed by indigenous peoples and how those arguments have tended toward a human rights discourse. Part II discusses specific ways in which the indigenous human rights discourse has contributed to the evolution of international human rights law.


Excessive Force In The New York City Jails: Litigation And Its Lessons, John Boston Jan 2006

Excessive Force In The New York City Jails: Litigation And Its Lessons, John Boston

Washington University Journal of Law & Policy

The New York City Legal Aid Society, through its Prisoners’ Rights Project (PRP), has fought since PRP’s founding in 1971 to protect the human rights of prisoners. In particular, we have wrestled with the problem of excessive force by New York City jail staff through individual and class action litigation and through investigations and demands for administrative redress on behalf of injured prisoners. Our focus has been on reforming the systems that operate to control force in correctional settings including written policy, training, investigations, discipline, and supervision of staff. The single most important lesson we have taken from twenty ...


Improving Prison Safety: Breaking The Code Of Silence, Kathleen M. Dennehy, Kelly A. Nantel Jan 2006

Improving Prison Safety: Breaking The Code Of Silence, Kathleen M. Dennehy, Kelly A. Nantel

Washington University Journal of Law & Policy

A system permeated by a code of silence reinforces negative behaviors in inmates, ultimately increasing the risk to staff. As the former Massachusetts Secretary of Public Safety, Edward A. Flynn, is keen on saying, “If nothing else, inmates must leave our custody with a belief that there is moral order in their world. If they leave our care and control believing that rules and regulations do not mean what they say they mean, that rules and regulations can be applied arbitrarily or capriciously or for personal interest, then we will fail society, we will fail them, and we will unleash ...


Oversight And Accountability In Corrections, Michael J. Ashe Jr. Jan 2006

Oversight And Accountability In Corrections, Michael J. Ashe Jr.

Washington University Journal of Law & Policy

There are seven underlying principles of our vision of excellence in corrections at Hampden County: the first is balance; second is that we are in the business of not just incarceration but corrections; third is that inmates should be held accountable for being positive and productive; fourth is that whether the prison is a state prison or county facility (urban, rural or in-between) it should be part of the community; fifth is that those in custody should be kept at the lowest level of security that is consistent with public safety; sixth is that corrections should not allow itself to ...


Submission To Vera Commission, Anne Owers Jan 2006

Submission To Vera Commission, Anne Owers

Washington University Journal of Law & Policy

This Essay describes the function and methodology of the Inspectorate of Prisons in England and Wales, and the importance of its role in the independent scrutiny of conditions and treatment in prisons and other places of detention.


Inmates As Public Health Sentinels, Robert B. Greifinger Jan 2006

Inmates As Public Health Sentinels, Robert B. Greifinger

Washington University Journal of Law & Policy

The conditions in some correctional facilities are redolent of conditions in prisons in the United States a century ago. In 1894, Dr. Julius Ransom, a prison physician, reported that 25% of the 1000 inmates at the prison in Dannemora, New York had active tuberculosis. In his report to Congress in 1907 the rates were unchanged and half of the prison mortalities were attributed to tuberculosis. One hundred years later (and despite the widespread availability of modern diagnostics, knowledge about containment, and multi-drug regimens for communicable disease) some American prisons remain incubators of this same scourge. Too little attention is being ...


The Wages Of Prison Overcrowding: Harmful Psychological Consequences And Dysfunctional Correctional Reactions, Craig Haney Jan 2006

The Wages Of Prison Overcrowding: Harmful Psychological Consequences And Dysfunctional Correctional Reactions, Craig Haney

Washington University Journal of Law & Policy

Overcrowding (having more prisoners than a facility can humanely accommodate) is directly connected to many of the problems that currently confront American corrections. Although it is by no means the only cause of the deprived and dangerous conditions that prevail in many of the nation’s prisons or sole reason that many prisoners continue to be exposed to the degrading and harmful treatment, overcrowding is a central and critical issue that must be effectively addressed if these other problems are to be solved. Correctional administrators have been forced to accommodate to an unprecedented number of additional prisoners over the last ...


Poverty, Justice, And Community Lawyering: Interdisciplinary And Clinical Perspectives, Karen Tokarz Jan 2006

Poverty, Justice, And Community Lawyering: Interdisciplinary And Clinical Perspectives, Karen Tokarz

Washington University Journal of Law & Policy

This introduction recognizes the efforts toward social justice through interdisciplinary clinical teaching and practice. The goals of this project are three-fold: to raise awareness about interdisciplinary clinical teaching and practice, to inspire thoughtful discussion and debate, and to develop scholarship, guidelines, and course materials.

Throughout the project, there has been a focus on questions raised in both academia and practice: What are the goals, the rewards, and the challenges of interdisciplinary teaching and practice? How does one go about designing and developing an interdisciplinary clinic or course? What are the ethical issues that arise in interdisciplinary education and practice, and ...


Toward A New Understanding Of American Poverty, Mark R. Rank Jan 2006

Toward A New Understanding Of American Poverty, Mark R. Rank

Washington University Journal of Law & Policy

This Essay argues that one of the fundamental reasons the United States currently has the highest poverty rates in the industrialized world is that we have consistently misunderstood the nature and causes of American poverty. Old strategies of addressing poverty have rested upon imagining a world that reflects a preferred set of myths, agendas, and policies; a new approach to poverty reduction must put in place a set of policies that reflects the realities of the world. These policies should be grounded in a new understanding of the nature and meaning of American poverty. This Essay provides the rudimentary details ...


Race, Homeownership And Wealth, Thomas M. Shapiro Jan 2006

Race, Homeownership And Wealth, Thomas M. Shapiro

Washington University Journal of Law & Policy

Closing the racial wealth gap must be at the forefront of the civil rights agenda in the twenty-first century. This Essay examines homeownership as a main policy strategy to move toward this goal. The Essay opens by restating the crucial importance of closing the racial wealth gap, and offers an early assessment of this agenda. Next, the Essay argues that homeownership is an appropriate strategy to attack the racial wealth gap. Finally, the Essay examines the various promises and many potential pitfalls and challenges facing minority homeownership.


Revolutionary Lawyering: Addressing The Root Causes Of Poverty And Wealth, William P. Quigley Jan 2006

Revolutionary Lawyering: Addressing The Root Causes Of Poverty And Wealth, William P. Quigley

Washington University Journal of Law & Policy

It is true that lawyers are rarely revolutionaries. In fact, the idea may seem like an oxymoron (like corporate ethics), but some people are, and others can be, revolutionary lawyers. Our profession is, at the core of its practice, the primary profession world-wide that protects and defends the machines, computers, profit motives and property rights so rightly condemned by Dr. King. We use our training, wealth, and position in society to facilitate commerce without conscience, to accumulate wealth without responsibility, and to serve the needs of corporations over and above the rights and needs of people. Yet still, some lawyers ...


Post-Welfare Lawyering: Clinical Legal Education And A New Poverty Law Agenda, Juliet M. Brodie Jan 2006

Post-Welfare Lawyering: Clinical Legal Education And A New Poverty Law Agenda, Juliet M. Brodie

Washington University Journal of Law & Policy

Ours is the “post-welfare” era, and it is ripe with opportunities for poverty lawyers to shape a new poverty law agenda. This era is characterized by the millions of former welfare recipients who entered the wage-labor force, and by a new public dialogue about post-welfare poverty. Journalists, social scientists, and policymakers have been watching these “welfare leavers,” assessing their labor market participation, their “success,” and their economic well-being. Together, these observers and actors have created a new academic, political, and cultural terrain on which American poverty is debated and constructed—one where “the working poor” has replaced “the welfare recipient ...


Deep Freeze: Thawing Rate Of Development Growth Quotas After Zuckerman V. Town Of Hadley, Benjamin Rothmel Jan 2006

Deep Freeze: Thawing Rate Of Development Growth Quotas After Zuckerman V. Town Of Hadley, Benjamin Rothmel

Washington University Journal of Law & Policy

No abstract provided.


Control, Collaboration Or Coverage: The Nlra And The St. Paul Chamber Orchestra Dilemma, Rochelle Gnagey Skolnick Jan 2006

Control, Collaboration Or Coverage: The Nlra And The St. Paul Chamber Orchestra Dilemma, Rochelle Gnagey Skolnick

Washington University Journal of Law & Policy

No abstract provided.


Speech And Institutional Choice, Thomas B. Nachbar Jan 2006

Speech And Institutional Choice, Thomas B. Nachbar

Washington University Journal of Law & Policy

Even if an authoritarian state cannot successfully control all of the conduits by which information crosses its borders, successfully targeting a few of the largest ones is likely to bring enough of a return to justify the effort, a point at the heart of John Palfrey and Robert Rogoyski’s Essay for this conference. What is true of states and regulation for political gain will be true of private interests and regulation for financial gain. Control over the means of creating and sharing the digital content would provide any firm substantial rents, either in the form of higher prices or ...


The Move To The Middle: The Enduring Threat Of “Harmful” Speech To The End-To-End Principle, John G. Palfrey Jr., Robert Rogoyski Jan 2006

The Move To The Middle: The Enduring Threat Of “Harmful” Speech To The End-To-End Principle, John G. Palfrey Jr., Robert Rogoyski

Washington University Journal of Law & Policy

This Essay traces the evolution of thinking regarding the technical concept of the end-to-end principle and the legal concept of the regulation of the flow of packets across the Internet. We focus on the manner in which the state, in concert with private parties, has approached the tension between restricting the flow of certain packets and vindicating their citizens’ interests, both legal and otherwise, in free expression. We argue that the primary mode of legal regulation of the Internet has shifted from a focus on outlawing activities at the nodes—end-points in the network—to a growing emphasis on regulating ...