Law Commons^™

The First Amendment In The Multicultural Climate Of Colleges And Universities: A Story Ending With Christian Legal Society V. Martinez, Blake M. Lawrence

Blake M Lawrence

This article argues that the “limited public forum” analysis used by the United States Supreme Court in Christian Legal Society v. Martinez correctly addresses the competing concerns of students and university administration when approaching free speech and association on college and university campuses. It extensively analyzes the creation of the “limited public forum” analysis, explains why that particular analysis is ill-equipped for limiting high-school speech, and comprehensively addresses the Christian Legal Society v. Martinez opinion. Further, weaknesses in the dicta of Christian Legal Society v. Martinez are analyzed and points made by dissenting Justices are critiqued.

There’S No Place Like Home – The Lost Children Of Foster Care, Kevin Simpson

Kevin Simpson

The main analysis of this paper centers around the foster care system and the effects of foster care on the children who are thrust into it. The jurisdiction will be focused on the United States as a whole, with some State comparison. In Part II, a general description of foster care will be looked at. Part III distinguishes the two different types of foster care, kinship and non-relative foster care. Part IV contains discussions dealing with the process generally, and what leads children to foster care. Following that section, Part V extensively deals with the effects on the children, including …

Dreams Deferred – Why In-State College Tuition Rates Are Not A Benefit Under The Iirira And How This Interpretation Violates The Spirit Of Plyler, Laura A. Hernandez

Laura A Hernandez

A legal barrier to education. The concept is distinctly un-American. We are well acquainted with the narrative. No matter how humble your childhood circumstances, if you studied hard, dreamed big and worked even harder, access to the United States’ finest universities would be yours. A college degree would provide employment opportunities, the chance to form bonds with scions of the privileged and well connected, and with any luck, a direct entree into that world of financial security.

Because this particular tale of manifest destiny has such a strong hold on the American psyche, it is understandable why the number of …

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

Electronic Discovery: A Survey Of E-Discovery, Its Effect On Corporate Constitutional Rights And Why Corporations May Receive The Fifth Amendment Privilege Against Self-Incrimination During Parallel Civil And Criminal Litigation, Percy Arnell King

Percy Arnell King Esq.

Advancing technology has created more places to seek out relevant information than ever before which, has created a burden for corporations tasked with retaining this information to comply with applicable laws and the prospect of civil or criminal litigation. This article explores how the modern trend of storing information electronically and subsequent electronic discovery allowed in parallel civil and criminal trials is inherently unfair to corporations. Furthermore, corporations have been granted several rights derived from the Bill of Rights, and should also receive the Fifth Amendment privilege against self-incrimination.

New Frontiers Of Reprogenetics: Snp Profile Collection And Banking And The Resulting Duties In Medical Malpractice, Issues In Property Rights Of Genetic Materials, And Liabilities In Genetic Privacy., Stephanie Sgambati

Stephanie Sgambati

ABSTRACT

Single nucleotide polymorphisms (SNPs) represent the portions of our genetic makeup where human differ from each other. Mapping an individual’s profile creates a DNA fingerprint entirely unique to that individual. The primary purpose for the creation of SNP profiles has been validation of medical techniques used in reproductive medicine that require researchers to be able to definitively determine which embryo makes which baby- thus matching DNA fingerprints from infants to those from embryos. In spite of this seemingly narrow use, the potential value of the information contained in the SNP profile is enormous.

In this paper, I explore how …

Is Sexting The New Witchcraft? A Plea For A Common Sense Approach., John O. Hayward

John O. Hayward

Teenagers have enthusiastically embraced digital technology and its myriad assortment of electronic devices and gadgets. But unfortunately they often find themselves the target of numerous laws criminalizing their use. Sending sexy photos of themselves in various stages of undress to their favorite boyfriend or girlfriend earns them unwanted attention from school administrators as well as criminal complaints from the local district attorney accusing them of trafficking in child pornography! This article deals with “sexting,” the practice of “sending, receiving, or forwarding sexually explicit messages, photos, or images via cell phone, computer, or other digital device.” (The term is a combination …

The Invisible Man: How The Sex Offender Registry Results In Social Death, Elizabeth B. Megale

Elizabeth B. Megale

This Article establishes that overcriminalization serves to marginalize unwanted groups of society, and particularly regarding the sex offender registry, it results in social death. The author relies upon the notion of crime as a social construct to establish that the concept of “sex offense” changes over time as society and culture evolve. From there, the author incorporates the work of Michele Foucault involving the relationship of power, knowledge, and sexuality to show how the trend toward more repressive social controls over sex-related activity is related to a shift in this relationship. The Author identifies three characteristics and the associated traits …

Analysis Of Organizational Ethics, Evan Slavitt

Evan Slavitt

Whether an organization is ethical or not has become an increasingly important question both in public and legislative discourse as well as in the application of tort and criminal law. Historical approaches to organizational ethics have either attempted to evade the problem or sought to use paradigms developed for individuals. This Article reviews the various models that have already been proposed and explains why those models are unsatisfactory, focusing particularly on the attempts to articulate an organizational substitute for individual intent. The article then proposes a new framework that differentiates the various aspects of organizations and clarifies how ethical questions …

The Cost Of Democratization: Beyond Economists' Explanations Of Credit Card Debt, Andrea Freeman

Andrea Freeman

The credit card industry’s business model relies on the payment of fees and high interest rates by the poorest consumers to generate profits and subsidize credit card use by the richest. Industry studies indicate that African Americans and Latinos pay higher interest rates and more penalty fees than whites. Compounding credit card debt disparities are recent census statistics revealing that whites now have a median wealth twenty times higher than African Americans and eighteen times higher than Latinos. Despite the high social costs of deepening inequalities, law and economics and behavioral economics have largely ignored their contribution to market failure …

Why Do Citizens Litigate Over The Posting Of The Ten Commandments? A Case Study From Tennessee, Ross Astoria

Ross Astoria

In recent years the federal courts have experienced an increase in litigation over a state’s display of the Decalogue. Common explanations for this increase in litigation refer to general political and sociological categories, such as “fundamentalism” and “urbanization,” while abstracting from the actual intentions of individuals attempting to display the Decalogue. To identify these intentions, I provide a detailed case study of three instances of pro-Decalogue advocacy in Tennessee. In this case study, pro-Decalogue advocates situate their political efforts within a narrative of American decline. This narrative is a jeremiad in which the Supreme Court is the origin and agent …

Online Investigations And The Americans With Disabilities Act: The Resurgence Of Overbroad And Ineffectual Mental Health Inquiries In Character And Fitness Evaluations, Bernice M. Bird

Bernice M. Bird

Nationally, state board bar examiners’ interest to inquire into mental health has been a hotly contested issue invoking the Americans with Disabilities Act (ADA) for the last two decades. After the enactment of the ADA in 1990 a floodgate of litigation resulted in a litany of publications, all surrounding the issue of whether mental health based inquiries into character and fitness violated the ADA. Consequently, narrowly tailored mental health inquiries into specific disorders emerged as the trend in a majority of jurisdictions. This comment analyzes whether fitness boards' mental health inquiries among social networking profiles may cause the resurgence of …

Campaign Finance: Public Funding After Bennett, Nicholas Bamman

Nicholas Bamman

This Article is the first to examine the effects of the Supreme Court’s recent decision Az. Free Enter. Club’s Freedom Club PAC v. Bennett on campaign finance. To comply with Bennett, several states and localities will have to amend their campaign finance laws. This article proposes several public funding options that will survive current constitutional jurisprudence and the policy implications of each.

The Constitutionality & Ethics Of Licensing Lawyers To Advise Designated Foreign Terror Organizations, Elinor R. Jordan J.D.

Elinor R Jordan J.D.

By design, lawyers play a foundational role in U.S. democracy. In representing their client’s causes, they create a bulwark against repressive government action. What would happen to that role if the government had to issue a license before an attorney could legally present her client’s case? Many scholars have reviewed Holder v. Humanitarian Law Project, wherein the Supreme Court held that a statute prohibiting lawyers from giving free legal advice to Designated Foreign Terrorist Organizations (“DFTOs”) does not violate lawyers’ First Amendment rights of free speech and association. However, neither the Court, nor scholars have directly addressed a statutory window …

Be Fruitful And Multiply, By Any Means Necessary: The Time Has Come To Recognize And Enforce Gestational Surrogacy Agreements, Paul G. Arshagouni

Paul G Arshagouni

The practice of surrogacy, when one woman carries a child to term on behalf of someone else, has been with us for millennia, with early references found in Greek mythology and the Bible. With the advent of in vitro fertilization just over years 30 ago, surrogacy became option for couples and individuals who could not carry a child to term but did not want to pursue adoption. In the early days of modern surrogacy, states had little or no statutes or case law giving guidance as to the enforceability of surrogacy agreements. That changed with the seminal cases of Baby …

We The People: The Consent Of The Governed In The 21st Century: The People’S Unalienable Right To Make Law., George A. Nation Iii

George A Nation III

My article argues in favor of federal direct democracy. Congress should recognize and facilitate the People’s right to make law via the tools of direct democracy (the initiative and referendum) at the federal level. Arguably, the national People already have this right though they have never used it. What is needed is the establishment of a clear process for the People to follow when exercising this right.

In the United States today the consent of the governed, on which the strength of our democracy depends, is weaker and more diluted than it needs to be or than it should be. …

The Dark Side Of The Creed: Stable Values And Constructed Meaning In American Thought, Joseph Margulies

Joseph Margulies

No abstract provided.

The Public Life Of The Virtual Self, Ari E. Waldman

Ari E Waldman

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from other Internet users, in total control of his online experience and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – …

The Dialectic Of Obscenity, Brian L. Frye

Brian L Frye

The story of Flaming Creatures and the so-called “Fortas Film Festival” illustrates the dialectic of obscenity. When President Johnson nominated Justice Fortas to replace Chief Justice Warren in 1968, Fortas’s opponents investigated his record, hoping to justify a filibuster. Among other things, they discovered Jacobs v. New York, in which Fortas alone voted to reverse obscenity convictions for showing Flaming Creatures, an obscure art film that featured a transvestite orgy. Senator Thurmond showed Flaming Creatures to several senators, convinced them to join the filibuster, and blocked the Fortas nomination. Under the dialectic of obscenity, art protects pornography and pornography protects …

Corruption As Institution Among Small Businesses In Africa, Thomas A. Kelley Iii

Thomas A Kelley III

Suddenly it seems that US-funded international aid programs are all about building rational, predictable institutions to stimulate business in poor countries. The Millennium Challenge Corporation (MCC), a relatively new and increasingly important US aid organization, and the more venerable United States Agency for International Development (USAID), are initiating programs in poor countries around the world based on the assumption that their future stability and prosperity depends on unleashing and guiding the entrepreneurial spirit of small and medium-sized enterprises, and that this can be accomplished by improving the institutions – most particularly the laws and legal enforcement mechanisms – that regulate …

Subsidizing Hate: A Proposal To Reform The Internal Revenue Service's Methodology Test, James A. Reed

Alex Reed

Although a wide variety of organizations may qualify as tax-exempt public charities, reform is needed to ensure that hate groups masquerading as educational organizations do not receive preferential tax treatment. Since 1986, the Internal Revenue Service has utilized a methodology test to determine when advocacy of a particular viewpoint may be deemed educational so as to qualify the underlying organization as a public charity. Because the Service has been reluctant to apply the test rigorously, however, a number of hate groups have been able to obtain charitable status under the guise of operating as legitimate educational organizations. This Article argues …

Sext Appeals: Re-Assessing The Exclusion Of Self-Created Images From First Amendment Protection, Carmen Naso Mr

Carmen Naso Mr

ABSTRACT Only recently could it have been imagined that in less than a minute, a young person could or would create, and possess a sexually explicit photo of him or herself and then send it to hundreds of recipients throughout the country. Nor could one think of web cam chats or phone conversations that would result in spontaneous exhibitions of nudity via the computer or 4th generation cellular technology. Novel to this discussion, this article identifies a solution to the inconsistent and problematic application of individual state law to speech that can be created and globally disseminated in a matter …

"Systemic Poverty As A Cause Of Recessions", Robert Ashford

Robert Ashford

This article argues that the failure to address and ameliorate systemic poverty is a major cause of recessions. Recessions occur (and sub-optimal employment and growth persist) when a critical mass of market participants come to believe that the distribution of future earning capacity is not sufficient to purchase what can be produced despite the physical and technological capacity to employ available labor and capital to produce more over the same period even at lower unit cost. The essence of systemic poverty is widespread inadequate earning capacity. In recessionary periods, with rising unemployment, the problem of inadequate earning capacity (which perennially …

Why Do Citizens Litigate Over The Posting Of The Ten Commandments?, Ross Astoria

Ross Astoria

In recent years the federal courts have experienced an increase in litigation over a state’s display of the Decalogue. Common explanations for this increase in litigation refer to general political and sociological categories, such as “fundamentalism” and “urbanization,” while abstracting from the actual intentions of individuals attempting to display the Decalogue. To identify these intentions, I provide a detailed case study of three instances of pro-Decalogue advocacy in Tennessee. In this case study, pro-Decalogue advocates situate their political efforts within a narrative of American decline. This narrative is a jeremiad in which the Supreme Court is the origin and agent …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

Scott A Moss

Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs’ class certification motion. But for certain employment rights cases – mainly wage claims but also age discrimination and gender equal pay claims – 29 U.S.C. § 216(b) allows not class actions but “collective actions” covering just those opting in affirmatively. Courts in collective actions assume a gatekeeper role as they do in Rule 23 class action, disallowing many actions by requiring a certification motion …

Arbitration Agreements Used By Nursing Homes: An Empirical Study And Critique Of At&T Mobility V. Concepcion, Lisa Tripp

Lisa Tripp

Although the health care industry had historically been one of the fields that had not embraced pre-dispute binding arbitration agreements, that reluctance appears to be changing in at least one sector of the health care field. An examination of admission contracts used by North Carolina nursing homes and telephone survey of North Carolina nursing homes revealed that 43 percent of nursing homes now incorporate pre-dispute binding arbitration provisions into their admission contracts. All of the major nursing home chains operating in North Carolina use pre-dispute binding arbitration agreements in at least some of their facilities, while smaller operators use them …

Voice Without Say: Why More Capitalist Firms Are Not (Genuinely) Participatory, Justin Schwartz

Justin Schwartz

Why are most capitalist enterprises of any size organized as authoritarian bureaucracies rather than incorporating genuinely employee participation that would give the workers real authority? Even firms with employee participation programs leave virtually all decision making power in the hands of management. The standard answer is that hierarchy is more economically efficient than any sort of genuine participation, so that participatory firms would be less productive or efficient and lose out to more traditional competitors. This answer is indefensible. After surveying the history, legal status, and varieties of employee participation, I examine and reject as question-begging the argument that the …

Formalism, Facts And The Brandeis Brief: The Making Of A Myth, Noga Morag-Levine

Noga Morag-Levine

The Brandeis Brief has long been central to historical accounts of the struggle and ultimate triumph of progressive jurisprudence over legal formalism. Yet this familiar storyline is difficult to reconcile with the historical record on two counts. The first is its incompatibility with the presence of extra-legal evidence in cases and briefs well predating that of Brandeis. The second is the fact that, contrary to the prevailing account, conservatives were not the vanguard of opposition to such extra-legal evidence. In practice, it was progressive defenders of social legislation who long sought to exclude proof regarding the alleged health and other …

Do We Value Our Cars More Than Our Kids? The Conundrum Of Care For Children, Palma Joy Strand

palma joy strand

Formal child care workers in the United States earn about $21,110 per year. Parking lot attendants, in contrast, make $21,250. These relative wages are telling: The market values the people who look after our cars more than the people who look after our kids. This article delves below the surface of these numbers to explore the systemic disadvantages of those who care for children—and children themselves. The article first illuminates the precarious economic position of children in our society, with a disproportionate number living in poverty. The article then documents both that substantial care for children is provided on an …

Spatial Diversity, Nicholas Stephanopoulos

Nicholas Stephanopoulos

Why do Supreme Court opinions denounce some districts as political gerrymanders but say nothing about other superficially similar districts? Why does the Court deem some majority-minority districts unnecessary under the Voting Rights Act, or even unconstitutional, but uphold other apparently analogous districts? This Article introduces a concept -- “spatial diversity” -- that helps explain these and many other election law oddities. Spatial diversity refers to the variation of a given factor over geographic space. For example, a district with a normal income distribution is spatially diverse, with respect to earnings, if most rich people live in one area and most …