Law Commons^™

Exempting High-Level Employees And Small Employers From Legislation Invalidating Predispute Employment Arbitration Agreements, E. Gary Spitko

Faculty Publications

On February 12, 2009, lawmakers in the U.S.House of Representatives introduced the "Arbitration Fairness Act of 2009. " This bill, if enacted, will invalidate any predispute arbitration agreement between an employer and its employee. Last year, the 110th Congress considered the narrower "Preservation of Civil Rights Protections Act of 2008, " which would have invalidated such predispute arbitration agreements if they required "arbitration of a dispute arising under" federal civil rights laws. This Article explores how best to structure any such invalidation of predispute employment arbitration agreements, both in light of the rationales for and against regulation of the employment …

The Fiduciary Constitution Of Human Rights, Evan Fox-Decent, Evan J. Criddle

Faculty Publications

We argue that human rights are best conceived as norms arising from a fiduciary relationship that exists between states (or statelike actors) and the citizens and noncitizens subject to their power. These norms draw on a Kantian conception of moral personhood, protecting agents from instrumentalization and domination. They do not, however, exist in the abstract as timeless natural rights. Instead, they are correlates of the state’s fiduciary duty to provide equal security under the rule of law, a duty that flows from the state’s institutional assumption of irresistible sovereign powers.

A Pragmatic Defense Of Contract Law, Nathan B. Oman

Faculty Publications

No abstract provided.

Deporting Grandma: Why Grandparent Deportation May Be The Next Big Immigration Crisis And How To Solve It, Marcia A. Yablon-Zug

Faculty Publications

This Article explores the issue of grandparent caregiver deportation. The phenomenon of grandparents raising grandchildren is not new, but the number of children being raised by grandparents is at an all-time high and growing. Numerous circumstances can lead to a grandparent's assumption of caregiving responsibilities, but in most cases, grandparents assume this role because there is no one else. For thousands of children, grandparents are the only family they have, and without them these children would be placed in foster care and subject to the serious problems that plague children in foster care. The importance of grandparent caregivers cannot be …

Leadership Skills Development Is Lawyer Skills Development, Sandee Magliozzi, Michele L. Bendekovic

Faculty Publications

No abstract provided.

Consumer Interest In Corporate Law, David Yosifon

Faculty Publications

This Article provides a comprehensive assessment of the consumer interest in dominant theories of the corporation and in the fundamental doctrines of corporate law. In so doing, the Article fills a void in contemporary corporate law scholarship, which has failed to give sustained attention to consumers in favor of exploring the interests of other corporate stakeholders, especially shareholders, creditors, and workers. Utilizing insights derived from the law and behavioralism movement, this Article examines, in particular, the limitations of the shareholder primacy norm at the heart of prevailing "nexus of contracts" and "team production" theories of the firm. The Article concludes …

The Structural Case For Vertical Maximalism, Tara Leigh Grove

Faculty Publications

Many prominent jurists and scholars, including those with outlooks as diverse as Chief Justice John Roberts and Cass Sunstein, have recently advocated a “minimalist” approach to opinion writing at the Supreme Court. They assert that the Court should issue narrow, fact-bound decisions that do not resolve much beyond the case before it. I argue that minimalism, as employed by the current Supreme Court, is in tension with the structure of the Constitution. Article III and the Supremacy Clause, along with historical evidence from the Founding Era, suggest that the Constitution creates a hierarchical judiciary and gives the Court a “supreme” …

Why The Supreme Court Has Fashioned Rules Of Standing Unique To The Establishment Clause, Carl H. Esbeck

Faculty Publications

The U.S. Supreme Court will hear oral argument this fall in Salazar v. Buono, No. 08-472, a matter that involves a Latin cross located in the Mojave National Preserve located in Southeastern California and operated by the National Park Service. First placed there as a memorial to American’s who served in WWI, this Christian symbol is said to violated the Establishment Clause of the First Amendment. Before reaching the merits, however, the Court must first pass on the question of standing to sue. The plaintiff, Frank Buono, is a former employee of the National Park Service and objects to the …

What Kinds Of Statutory Restrictions Are Jurisdictional?, Scott Dodson

Faculty Publications

Section 411(a) of the Copyright Act of 1976 provides that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made.” In this case, a district court approved a class action settlement that purported to resolve both registered and unregistered copyright claims. The Supreme Court is being asked to decide whether that registration requirement is a limitation on federal court subject-matter jurisdiction.

Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg

Faculty Publications

American energy policy has slowly begun to change the mix in the sources of supply of electricity to residences, industry, and businesses. Renewable sources of electricity have been promoted as future contributors of large portions of the nation's electricity consumption. Wind power has been identified as a potentially substantial future electricity source contributing up to 20% of American demand 2030. To achieve these optimistic goals, there must be: (1) cost-effective, reliable energy technology; (2) sufficient investment capital to finance new construction; and (3) the existence of supportive governmental policies at all levels government. This article discusses the importance of inter-governmental …

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

The Impact Of News Coverage On Conflict: Toward Greater Understanding, Richard C. Reuben

Faculty Publications

This article develops an approach for the empirical study of the news media’s impact on the conflict that it covers. While mass communications research has studied how the news media covers conflict, it has not taken the next step of assessing the impact of that coverage. This article contends that such an inquiry is necessarily an inter-disciplinary task, and joins conflict theory with mass communications research to identify the kinds of questions that may be empirically tested to determine whether the news media is having a constructive or destructive effect on the conflict that it covers.

Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch

Faculty Publications

This paper presents a normative study of patent applicant use of invention-date rights during ex parte prosecution.

From Privacy To Liberty: The Fourth Amendment After Lawrence, Thomas P. Crocker

Faculty Publications

This Article explores a conflict between the protections afforded interpersonal relations in Lawrence v. Texas and the vulnerability experienced under the Fourth Amendment by individuals who share their lives with others. Under the Supreme Court's third-party doctrine, we have no constitutionally protected expectation of privacy in what we reveal to other persons. The effect of this doctrine is to leave many aspects of ordinary life shared in the company of others constitutionally unprotected. In an increasingly socially networked world, the Fourth Amendment may fail to protect precisely those liberties-to live in the company of others free from state surveillance and …

We Have A "Purpose" Requirement If We Can Keep It, James F. Flanagan

Faculty Publications

The Supreme Court in Giles v. California held that a defendant forfeits the right to confront a witness only when he purposefully keeps the witness away. Many see the "purpose" requirement as an unjustified bar to the use of victim hearsay, particularly in domestic violence prosecutions where victims often refuse to appear. The author defends Giles as a correct reading of history, and independently justified by longstanding precedent that constitutional trial rights can only be lost by intentional manipulation of the judicial process. Moreover, the purpose requirement does not prevent prosecutions or convictions because the definition of testimonial hearsay is …

Understanding Pleading Doctrine, A. Benjamin Spencer

Faculty Publications

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in …

Nil: The Value Of Patents In A Major Crisis Such As An Influenza Pandemic, Dennis D. Crouch

Faculty Publications

This essay focuses on the role of patents in relation to a potential global crisis such as an influenza pandemic or other public health crisis. I argue that patent rights will be largely ignored during an epidemic and that any post-crisis compensation would likely be low when compared to traditional patent rewards or settlements entered under threat of injunctive relief. In some situations, such as use of a patented invention by a state or local government, a patentee may have no recourse. Part III of the essay raises a separate issue that stems from the relatively long time frame for …

In With The New, Out With The Old: Expanding The Scope Of Retroactive Amelioration, S. David Mitchell

Faculty Publications

The legislative decision to amend a statute and reduce a sentence but not to apply it retroactively to pending prosecutions or to finalized convictions is in accord with the principles of retroactivity, but contrary to legitimate goals of punishment, i.e. deterrence and retributivism. Genarlow Wilson, convicted at seventeen of aggravated child molestation, a felony, for consensual oral sex with a fifteen-year old classmate, was sentenced to a mandatory minimum of ten years. While his appeal was pending, the Georgia Legislature reclassified the conduct as a misdemeanor and reduced the sentence to a maximum of one year but decided not to …

Legal Writing: Sense And Nonsense, Douglas E. Abrams

Faculty Publications

No abstract provided.

Longmeyer Exposes Or Creates Uncertainty About The Duty To Inform Remainder Beneficiaries Of A Revocable Trust, David M. English, Turney P. Berry, Dana G. Fitzsimons Jr.

Faculty Publications

This article discusses the surprising Longmeyer decision, handed down by the Supreme Court of Kentucky earlier this year in which a predecessor trustee was held to have a duty to give certain notifications to former remainder beneficiaries of a revocable trust. The authors then examine how Longmeyer might have been decided in other states and under other statutory schemes. The article concludes with observations concerning when certain notices to trust beneficiaries may be conducive to effective trust administration and suggestions to those who administer trusts on how best to comply with beneficiary notice requirements.

Teaching Torture, Beth Van Schaack, Ron Slye

Faculty Publications

This chapter, to appear in the 2nd edition of Beth Van Schaack & Ron Slye's International Criminal Law & Its Enforcement (Foundation Press 2010), covers the crime of torture under international criminal law. It begins with a doctrinal discussion of the elements of torture as elucidated in the international criminal law jurisprudence with a focus on cases concerning gender-based violence and sex crimes. It then enables a comparison of this established doctrine with the "torture memos" produced during the administration of President Bush. Using a rich set of Notes, Questions and Problems, the chapter offers a compelling tool for teaching …

Aall Review: Beyond Copyright: How License Agreements & Digital Rights Management Post Challenges To Fair Use & The Provision Of Electronic Or Media Services, Michele Lucero

Faculty Publications

License agreements and Digital Rights Management (DRM) technologies are common among content suppliers. DRM is the use of technological means to control digital content. Librarians need to understand the connection between copyright and contract, and the implications of fair use.

Be Wise: Revise, Lisa A. Mazzie

Faculty Publications

No abstract provided.

Eva And Her Baby (A Story Of Adolescent Sex, Pregnancy, Longing, Love, Loneliness, And Death), Michelle Oberman

Faculty Publications

I want to tell you the story of how I've come to see a woman I call Eva. It's more than just Eva's story, which is interesting in itself; it's also my story, puny like a pinky.

The story starts on a frigid February morning in 1992, when my friend Jack, a criminal defense lawyer with a solo-practice in downtown Chicago, called to talk with me about his sixteen-year-old client, Eva, who had hidden her pregnancy from her family and then given birth in a toilet. Her case was going to trial. He had never heard a story like hers. …

Book Review Of Global Responsibility For Human Rights: World Poverty And The Development Of International Law, Michael Ashley Stein

Faculty Publications

No abstract provided.

Social Rights And The Relational Value Of The Rights To Participate In Sport, Recreation And Play, Janet E. Lord, Michael Ashley Stein

Faculty Publications

No abstract provided.

Teaching Transactional Skills In First-Year Writing Courses, Wayne Schiess, Craig T. Smith, Pamela Wilkins, Danton Berube, Irene Segal Ayers

Faculty Publications

No abstract provided.

The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity?, S. I. Strong

Faculty Publications

This article addresses a gap in the scholarly literature by comparing interpretive methodologies used by U.S. arbitrators to those used by international arbitrators to determine whether and to what extent U.S.-based class awards are enforceable outside the United States. Since many courts and arbitrators have claimed an analogy between consolidated and class arbitration, the article also considers whether such an analogy is appropriate as a matter of law and policy to identify whether the traditional disinclination to order consolidation can or should be extended to class proceedings. This second portion of the article is applicable to both domestic class arbitrations …

The Spirit Of The Legal Academy – For Three Years Or For Life?: Some Personal Observations, Robert T. Bockman

Faculty Publications

No abstract provided.

The Constitutional Right To A Treaty Preemption Defense, David Sloss

Faculty Publications

The Constitution includes several provisions specifically designed to protect criminal defendants. For example, the Fourth Amendment prohibits "unreasonable searches and seizures," the Sixth Amendment guarantees that criminal defendants have a right to legal representation, and the Eighth Amendment prohibits cruel and unusual punishments. The Constitution' s Founders recognized that state power is at its apex when the state threatens individuals with criminal sanctions. Accordingly, they adopted special constitutional rules to protect "the individual defendant from the awesome power of the State."

The Due Process Clause provides critical protection for criminal defendants; it stipulates that no State shall "deprive any person …