Law Commons^™

Emotional Competence, Multicultural Lawyering And Race, Marjorie A. Silver

Marjorie A. Silver

No abstract provided.

Strategic Enforcement, Alex Stein, Margaret H. Lemos

Alex Stein

Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

The Bob Barker Gifts To Support Animal Rights Law, Taimie L. Bryant

Journal of Legal Education

No abstract provided.

Book Review Of Out Of Range: Why The Constitution Can't End The Battle Over Guns, By Mark V. Tushnet, Dennis A. Henigan

Journal of Legal Education

No abstract provided.

Book Review Of The Supreme Court And The American Elite, 1789-2008, By Lucas A. Powe, Jr., Joerg Knipprath

Journal of Legal Education

No abstract provided.

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court …

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic of bisexual erasure, …

Is Three A Crowd? The Role Of The Courts In Sec Settlements, Samantha A. Dreilinger

samantha a dreilinger

In August 2009 Judge Jed Rakoff made the unprecedented decision to reject a settlement proposed by the SEC and Bank of America. Although Judge Rakoff eventually approved the agreement, his decision appears to have sparked a trend of judicial scrutiny for SEC settlements. In contrast with the long tradition of judicial deference, some courts are now requiring evidence that the proposed provisions are "fair, reasonable and in the public interest." In order to promote justice, judges are also questioning light penalties and why executives are not being held accountable for the alleged misconduct of a corporate defendant. Critics of this …

The Meaning Of Justice In The World Today, Louis E. Wolcher

Louis E Wolcher

Justice does not stand in relation to law as a blueprint does to a building. Thus, any human practice that thinks of itself as just is a priori unjust. Justice requires the willingness to notice the tragic particular even though one's own conception of justice does not consider it relevant or important. This essay traces the connections between law and justice, and justice and individual ethical responsibility, to reach a conclusion that many may find surprising if not scandalous: Justice denied is undoubtedly a tragedy, but so too is justice achieved.

When Are Law And Economics Isomorphic?, John Cirace

Golden Gate University Law Review

The legal community generally views the way in which judges decide cases as a rational decision process. However, the concept of judicial rationality is ambiguous, because judges use two rational decision processes: legal rationality and economic rationality. Legal rationality is based on the principle of precedent, or stare decisis, which requires that judges decide like cases alike. Judges determine whether cases are like or distinguishable through the construction of legal classifications and through recognition of factual similarities and differences.

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

How The Payday Predator Hides Among Us: The Predatory Nature Of The Payday Loan Industry And Its Use Of Consumer Arbitration To Further Discriminatory Lending Practices, Michael A. Satz

Michael A Satz

This Article argues that Payday lending is a predatory lending practice that disproportionately targets minority customers, and that the Payday lending industry utilizes consumer arbitration agreements to further the industry’s discriminatory lending practices. The Article proposes that protections enacted into law to protect military service members from payday lenders should be universally enacted on a national level.

The Exclusionary Rule In Immigration Proceedings: Where It Was, Where It Is, Where It May Be Going, Irene Scharf

San Diego International Law Journal

The piece examines the treatment of the Fourth Amendment in immigration courts by surveying its jurisprudential history in those courts and then analyzes the judicial responses thereto. Disparities among circuit court rulings add to the confusion and unpredictability typical of Immigration Court decisions. Finally, the article discusses the difficulties raised by the divergent circuit court opinions and offers suggestions as to how we may resolve these difficulties in accordance with the Constitution's requirement of fair play.

Frames Of Injustice: The Bias We Overlook, Adam Benforado

Indiana Law Journal

The Cultural Cognition Project (CCP) at Yale Law School and the Project on Law and Mind Sciences (PLMS) at Harvard Law School draw on similar research and share a similar goal of uncovering the dynamics that shape risk perceptions, policy beliefs, and attributions underlying our laws and legal theories. Nonetheless, the projects have failed to engage one another in a substantial way. This Article attempts to bridge that gap by demonstrating how the approach taken by PLMS scholars can crucially enrich CCP scholarship. As a demonstration, this Article engages the case of Scott v. Harris, 550 US. 372 (2007), the …

“Bring[Ing] Our Enemies To Justice”: Terrorism And The Court, Anna Elazan

Legislation and Policy Brief

This article focuses on the venue of Mohammad’s trial and is broken into three sections. The first section reviews the historical use of military tribunals. This section begins by looking at the basis for Presidential authority to authorize the use of military commissions. This section then outlines the first use of military commissions since World War II. President George W. Bush’s authorization parallels the provisions in President Franklin Roosevelt’s authorization of the use of commissions in the 1940s. However, following authorization, the military commissions were subject to judicial challenges and significant revision by Congress. Finally, this section tracks recent developments …

The Thirteenth Amendment As A Model For Revolution, Sandra L. Rierson

Sandra L Rierson

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies’ war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and as embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, …

These Rules Are Made To Be Broken Down: Teaching Students The Art Of Deconstructing Rules Of Law, Jeremiah A. Ho

Jeremiah A Ho

ABSTRACT

THESE RULES ARE MADE TO BE BROKEN DOWN: TEACHING STUDENTS THE ART OF DECONSTRUCTING RULES OF LAW

JEREMIAH A. HO

Despite its often contended (and oft-contentious) meanings, legal academics and educators still resort to the now-entrenched phrase,“think like a lawyer,” to describe the goal of law schools in educating their students. But even a brief deconstruction of the phrase brings its varied interpretations to light: What does it mean to “think like a lawyer”? It might easily imply an existing difference from thinking like a doctor, a banker, or a representative from another profession. But within the law, does …

Hart V Finnis: How Will Positivism And Natural Law Account For The Socio-Legal Paradigm In Wikipedia?, Siyuan Chen

Siyuan CHEN

There is little doubt that Wikipedia is one of the world’s most influential websites today – and its sphere of influence is set to grow in days to come. The evidence for this is strong. As of June 2010, Wikipedia is the internet’s 6th most popular website (by virtue of the Alexa Traffic Rank), and it is also the most popular “general reference” site in cyberspace, with more than 3 million articles in the English language edition. It has been and will continue to be the flagship of Web 2.0, with every single edit being potentially scrutinised by a global …

Outfoxed: Pierson V. Post And The Natural Law, Josh Blackman

Josh Blackman

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt. The holding in Pierson v. Post has been …

Religious Rules: The Judeo-Christian Nature Of The Aba Model Rules And What It Means For The Legal Profession, Sarah Montana Hart

Sarah Montana Hart

This article argues that the American Bar Association Model Rules of Professional Conduct are not only biased in favor of Judeo-Christian biblical values, but actually are religious rules based in the Bible. The religious nature of the Model Rules affects lawyers in several different ways. There must be awareness of and a conscious choice about the nature and effects that these rules have on law students, bar applicants, and practicing lawyers.

Islam In The Secular Nomos Of The European Court Of Human Rights, Peter G. Danchin

Peter G. Danchin

Since 2001 the European Court of Human Rights has decided a series of cases involving Islam and the claims of Muslim communities (both majorities and minorities) to freedom of religion and belief. This Article suggests that what is most interesting about these cases is how they are unsettling existing normative legal categories under the ECHR and catalyzing new forms of politics and rethinking of both the historical and theoretical premises of modern liberal political orders. These controversies raise anew two critical questions for ECHR jurisprudence: first, regarding the proper scope of the right to religious freedom; and second, regarding the …

The Intelligibility Of Extralegal State Action: A General Lesson For Debates On Public Emergencies And Legality, François Tanguay-Renaud

Articles & Book Chapters

Some legal theorists deny that states can conceivably act extralegally in the sense of acting contrary to domestic law. This position finds its most robust articulation in the writings of Hans Kelsen and has more recently been taken up by David Dyzenhaus in the context of his work on emergencies and legality. This paper seeks to demystify their arguments and ultimately contend that we can intelligibly speak of the state as a legal wrongdoer or a legally unauthorized actor.

Russia & Legal Harmonization: An Historical Inquiry Into Ip Reform As Global Convergence And Resistance, Boris N. Mamlyuk

Boris Mamlyuk

This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with a specific examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence and tension between state ideology, positive law, and “law in action.” The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has been one of the largest hurdles for Russia’s prolonged accession to the WTO, these historical precedents may help to explain the apparent theoretical or political disconnect between the WTO and Russia. If Russian policymakers …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

Jurisprudence Between Science And The Humanities, Dan Priel

Dan Priel

For a long time philosophy has been unique among the humanities for seeking closer alliance with the sciences. In this essay I examine the place of science in the context of jurisprudential debates, in particular in the context of the idea known as legal positivism. I argue that historically legal positivism has been advanced by theorists who were also positivists in the sense the term is used in the philosophy of social science, i.e. they were committed to the idea that the explanation of social phenomena should be conducted using similar methods to those used in the natural sciences. I …

Sticky Slopes, David Schraub

David Schraub

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

What Mcdonald Means For Unenumerated Rights, Aaron Christopher Bryant

Aaron Christopher Bryant

In June a splintered Supreme Court held in McDonald v. City of Chicago that the Second Amendment applied to state and local governments. But the case was about much more than handguns. It presented the Court with an unprecedented opportunity to correct its erroneous precedent and revive the Fourteenth Amendment’s Privileges or Immunities Clause. The plurality declined the offer not, as Justice Alito’s opinion suggested, out of a profound respect for stare decisis, but rather because at least four Justices like the consequences of that ancient error, especially insofar as unenumerated rights are concerned. This observation in turn raises questions …