Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 73

Full-Text Articles in Law

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.


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 ...


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.


The Endorsement Court, Jay D. Wexler Jan 2006

The Endorsement Court, Jay D. Wexler

Washington University Journal of Law & Policy

The Rehnquist Court was the first to apply the so-called “endorsement test” to evaluate the constitutionality of government-sponsored religious symbols and displays. The test asks whether a “reasonable observer” would feel that the government has sent “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although the Supreme Court itself has applied the endorsement test in only a handful of cases, the test has played an extremely important role in how courts throughout the country have evaluated government ...


Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps Jan 2006

Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps

Washington University Journal of Law & Policy

This Essay explores the evolution of the remarkable new view of religion and the Constitution during the Rehnquist Court era. Part II analyzes Justice Scalia’s dissent in Lee v. Weisman, which set out the agenda for the religious caucus of the Court in the early years. Part III shows how the rhetoric of equality and historical grievance has been used to dismantle the boundary—for old time’s sake, let us call it a “wall of separation”—that separated religious institutions from the public fisc. Part IV analyzes Justice Scalia’s dissent in McCreary County v. American Civil Liberties ...


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 ...


Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal Jan 2006

Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal

Washington University Journal of Law & Policy

The primary goal of this Essay is to assess whether the relationship between the ideology of Supreme Court Justices and their support for the First Amendment guarantees of speech, press, assembly, and association has declined, such that left-of-center Justices no longer consistently support those guarantees, and right-of-center Justices no longer consistently support their regulation. Utilizing data drawn from the 1953 through 2004 terms of the Court, we show that, in disputes in which only First Amendment claims are at issue, the more liberal the Justice, the higher the likelihood that he or she will vote in favor of litigants alleging ...


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 ...


A Property Rights View: Commentary On “Property And Speech” By Robert A. Sedler, Shelley Ross Saxer Jan 2006

A Property Rights View: Commentary On “Property And Speech” By Robert A. Sedler, Shelley Ross Saxer

Washington University Journal of Law & Policy

I begin by exploring whether the First Amendment, as a sword, obscures the difference between state and private action by constitutionally preventing private property owners from interfering with an individual’s free expression rights. Thus, private property owners, who are not otherwise held to constitutional standards, cannot block activities of others that invade their property interests because these activities are protected by the First Amendment. This Commentary will address an additional category, not mentioned by Professor Sedler in his Essay—the government’s use of eminent domain, which can be used as a “sword” against land uses protected by the ...


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 ...


Property, Place, And Public Discourse, Timothy Zick Jan 2006

Property, Place, And Public Discourse, Timothy Zick

Washington University Journal of Law & Policy

I will argue that the Rehnquist Court largely left our “expressive topography” worse than it found it. As had predecessor Courts, the Rehnquist Court treated public places as little more than public properties managed by public officials. But its impact on public discourse actually extended beyond this. The Rehnquist Court diminished the scope of speakers’ rights in even quintessentially open places such as streets and sidewalks. Among other things, the Court’s decisions also tacitly approved the practice of zoning expression in public places. The Court even recognized a listener’s right to avoid offensive expression in public places. Finally ...


What's Right And Wrong With “No Endorsement”, Thomas C. Berg Jan 2006

What's Right And Wrong With “No Endorsement”, Thomas C. Berg

Washington University Journal of Law & Policy

Contrary to Professor Wexler, I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government’s ability to give special accommodation to religious practice and thus would severely impair free exercise values. “No endorsement of religion” thus must function, not as the general requirement of the Establishment Clause, but only as a rule for the particular class ...


Gina, What Could You Do For Me One Day?: The Potential Of The Genetic Information Nondiscrimination Act To Protect The American Public, Lauren J. Sismondo Jan 2006

Gina, What Could You Do For Me One Day?: The Potential Of The Genetic Information Nondiscrimination Act To Protect The American Public, Lauren J. Sismondo

Washington University Journal of Law & Policy

No abstract provided.


Hastened Death And The Regulation Of The Practice Of Medicine, Ronald A. Lindsay, Rebecca P. Dick, Tom L. Beauchamp Jan 2006

Hastened Death And The Regulation Of The Practice Of Medicine, Ronald A. Lindsay, Rebecca P. Dick, Tom L. Beauchamp

Washington University Journal of Law & Policy

We begin with a summary of the controversy over legalized assistance in hastening death and a description of how that controversy led to Gonzales v. Oregon. We then review the Gonzales decision, explaining what it did and did not resolve. Looking to how these issues should be analyzed in the future, we will explain why a fundamental distinction currently embedded in the law is unhelpful in analysis of the legitimacy of assistance in hastening death. We will argue that, correctly understood, assistance in hastening death is properly regarded as a medical practice, or, more broadly stated, that a physician legitimately ...


A Lawyer's Responsibility: Protecting Civil Liberties In Wartime, Geoffrey R. Stone Jan 2006

A Lawyer's Responsibility: Protecting Civil Liberties In Wartime, Geoffrey R. Stone

Washington University Journal of Law & Policy

One of the lessons of American history is that when episodes of military conflict arise we not only compromise our liberties, but we do so excessively and to a degree we often come later to regret. The challenge is to understand why that happens, to avoid repeating the same pattern of mistakes in the present and in the future, and to articulate the role of lawyers in addressing those questions.


Democracy, Race, And Multiculturalism In The Twenty-First Century: Will The Voting Rights Act Ever Be Obsolete?, Sheryll D. Cashin Jan 2006

Democracy, Race, And Multiculturalism In The Twenty-First Century: Will The Voting Rights Act Ever Be Obsolete?, Sheryll D. Cashin

Washington University Journal of Law & Policy

In this Essay I reflect on the impact of the Voting Rights Act (“the Act”) and what growing racial diversity portends for American democracy in the twenty-first century. The enduring quandary of the Act, in my view, is that it attempts to ensure meaningful political participation for the traditionally disenfranchised while operating against a backdrop of still-divisive race relations. The historic cleavage between blacks and whites in the South remains a centuries-old conundrum, familiar to any student of American politics. Such racial divides are less pronounced nationally. But it remains the case that race and political affiliation are substantially correlated ...


A Conundrum For Corrections, A Tragedy For Prisoners: Prisons As Facilities For The Mentally Ill, Jamie Fellner Jan 2006

A Conundrum For Corrections, A Tragedy For Prisoners: Prisons As Facilities For The Mentally Ill, Jamie Fellner

Washington University Journal of Law & Policy

Any analysis of violence and abuse in American prisons must address the consequences of the high rates of incarceration of offenders with mental illness and the poor treatment they receive behind bars. This Essay does just that.


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 ...


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.


No Place To Call Home: A Current Perspective On The Troubling Disenfranchisement Of College Voters, Patrick J. Troy Jan 2006

No Place To Call Home: A Current Perspective On The Troubling Disenfranchisement Of College Voters, Patrick J. Troy

Washington University Journal of Law & Policy

No abstract provided.


Internet Pharmacies And The Specter Of The Dormant Commerce Clause, Laura Vanderstappen Jan 2006

Internet Pharmacies And The Specter Of The Dormant Commerce Clause, Laura Vanderstappen

Washington University Journal of Law & Policy

No abstract provided.


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 ...


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 ...


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.


Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett Jan 2006

Caveat Blogger: Blogging And The Flight From Scholarship, Randy E. Barnett

Washington University Law Review

While some law blogging is serious scholarship—and more could be serious scholarship than is now—almost all blogging, including most law blogging, is not serious scholarship and does not purport to be. Asserting that blogging is generally not a form of scholarship is no more an aspersion on blogging than is affirming that arguing in the Supreme Court is not scholarship. If undertaken by scholars, both activities can contribute constructively to one’s scholarship, and one might be a better advocate or blogger if one can draw upon one’s scholarly expertise. But it would be a mistake to ...


Scholarship In Action: The Power, Possibilities, And Pitfalls For Law Professor Blogs, Douglas A. Berman Jan 2006

Scholarship In Action: The Power, Possibilities, And Pitfalls For Law Professor Blogs, Douglas A. Berman

Washington University Law Review

A general debate concerning whether law blogs can be legal scholarship makes little more sense than a general debate concerning whether law articles or law books can be legal scholarship. Blogs—like articles and books—are just a medium of communication. Like other media, blogs surely can be used to advance a scholarly mission or a range of other missions.

Looking through the debate over law blogs as legal scholarship, I see a set of bigger and more important (and perhaps scarier) questions about legal scholarship and the activities of law professors. First, the blog-as-scholarship debate raises fundamental questions about ...


Regulating Bankruptcy: Public Choice, Ideology, & Beyond, A. Mechele Dickerson Jan 2006

Regulating Bankruptcy: Public Choice, Ideology, & Beyond, A. Mechele Dickerson

Washington University Law Review

For almost a decade, members of Congress fiercely debated legislation that would make it harder for people to discharge their debts in bankruptcy. The legislation was finally enacted on April 20, 2005, when the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) was signed into law. BAPCPA became fully effective for cases filed on or after October 17, 2005. At one of the earliest hearings on the proposed bankruptcy legislation, one of the bill’s sponsors suggested that “it is probably incorrect to suggest this is a credit card versus consumer problem.” Yet throughout Congressional debates on the ...


Blogs And The Legal Academy, Orin S. Kerr Jan 2006

Blogs And The Legal Academy, Orin S. Kerr

Washington University Law Review

This paper's focus is on today’s technology and ask whether blogs as we know them today are conducive to advancing scholarship. This paper's conclusion is that relative to other forms of communication, blogs do not provide a particularly good platform for advancing serious legal scholarship. The blog format focuses reader attention on recent thoughts rather than deep ones. The tyranny of reverse chronological order limits the scholarly usefulness of blogs by leading the reader to the latest instead of the best.

This doesn’t mean that blogs can’t advance scholarship. The impact of any blog depends ...


Blogging At Blackprof, Paul Butler Jan 2006

Blogging At Blackprof, Paul Butler

Washington University Law Review

Commenting on the papers by Doug Berman Lawrence Solumn, this paper raises questions concerning the emergence of blogging and its relationship with legal scholarship. These insights suggest that blogging can reach a wider audience and introduce a new way of connecting to certain issues in a way that law reviews cannot reproduce.