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"Unchain The Children": Gault, Therapeutic Jurisprudence, And Shackling, Bernard P. Perlmutter Jan 2007

"Unchain The Children": Gault, Therapeutic Jurisprudence, And Shackling, Bernard P. Perlmutter

Articles

No abstract provided.


The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Frank S. Bloch, Jeffrey S. Lubbers, Paul R. Verkuil Jan 2007

The Social Security Administration's New Disability Adjudication Rules: A Significant And Promising Reform, Frank S. Bloch, Jeffrey S. Lubbers, Paul R. Verkuil

Articles

The article evaluates the Social Security Administration's (SSA) new Disability Service Improvement (DSI) process, introduced in 2006, which aims to address inefficiencies and inconsistencies in disability adjudication. The reforms include key innovations such as Quick Disability Determinations (QDDs), the Medical and Vocational Expert System (MVES), and the replacement of the Appeals Council with the Decision Review Board (DRB). While the reforms represent a significant and promising step toward improving the disability determination process, the article identifies remaining concerns, particularly regarding the role of the Federal Reviewing Official (FRO) and rules for submitting evidence at administrative hearings.


Using Comparative Torts Materials To Teach First-Year Torts, Anthony J. Sebok Jan 2007

Using Comparative Torts Materials To Teach First-Year Torts, Anthony J. Sebok

Articles

The article argues that incorporating comparative torts materials, particularly from European jurisdictions such as Germany and Italy, can effectively enhance the teaching of tort damages in first-year law courses. This approach is not about adopting a comparative curriculum but using these materials to provide deeper insights into American tort law.


American Moral Rights And Fixing The Dastar Gap, Justin Hughes Jan 2007

American Moral Rights And Fixing The Dastar Gap, Justin Hughes

Articles

When the United States acceded to the Berne Convention in 1988, Congress concluded that a compendium of causes of action under American law, including Lanham Act claims, provided the moral rights protections mandated by Berne Article 6bis. This claim of patchwork protection of moral rights has always been widely criticized, but became more dubious in the wake of the Supreme Court's 2003 decision in Dastar v. Twentieth Century Fox. In Dastar, the Court held that vis-a-vis works in the public domain there is no Lanham section 43(a) obligation to credit the original creator or copyright owner as the origin of …


Protecting Gay And Lesbian Families From Eviction From Their Homes: The Quest For Equality For Gay And Lesbian Families In Braschi V. Stahl Associates, Paris R. Baldacci Jan 2007

Protecting Gay And Lesbian Families From Eviction From Their Homes: The Quest For Equality For Gay And Lesbian Families In Braschi V. Stahl Associates, Paris R. Baldacci

Articles

No abstract provided.


Motivating Enforcement: Institutional Culture And The Clean Water Act Fourth Iucn Academy Of Environmental Law Worldwide Colloquium: Implementing Environmental Legislation: The Critical Role Of Enforcement And Compliance, William L. Andreen Jan 2007

Motivating Enforcement: Institutional Culture And The Clean Water Act Fourth Iucn Academy Of Environmental Law Worldwide Colloquium: Implementing Environmental Legislation: The Critical Role Of Enforcement And Compliance, William L. Andreen

Articles

No abstract provided.


Ennobling Direct Democracy, Sherman J. Clark Jan 2007

Ennobling Direct Democracy, Sherman J. Clark

Articles

In this essay, Professor Clark argues that we should be attentive to the effect that direct democracy might have on our public character. Building upon earlier work, Clark suggests that the initiative in particular threatens to debase us by undercutting a crucial character trait which might best be called "responsibility-taking." The bulk of this essay is devoted to explaining what this means, and why it matters. Why should we care about the effect of political processes on public character? Why is this particular trait important and worth preserving? How is it threatened by direct democracy? In conclusion, and by way …


The Mystery Of The Individual In Modern Law, Jospeh Vining Jan 2007

The Mystery Of The Individual In Modern Law, Jospeh Vining

Articles

To their murderers these wretched people were not individuals at all. They came in wholesale lots and were treated worse than animals. This was Telford Taylor, beginning the presentation of the "Medical Case" at the Nuremberg Trials. The "Medical Case" was not about genocide or war or the conduct of war. It was about experimentation on human beings, and it was this trial that produced the "Nuremberg Code," the first control of such treatment of human beings by one another, so surprisingly late in the history of modern scientific investigation, midtwentieth century, and so surprisingly absent everywhere before, despite the …


Void For Vagueness, Carl E. Schneider Jan 2007

Void For Vagueness, Carl E. Schneider

Articles

When law regulates a profession, where does it get its standards? Largely from the profession. Members of professions acquire esoteric and abstract knowledge through formal education and the experience of practice. They use professional judgment in applying this knowledge to each case. Because legislatures and courts lack this expertise, they adopt the standards of the experts. Thus in a malpractice suit, juries are instructed to determine whether the doctor met medicine's standard of care. Furthermore, physicians must be called as expert witnesses to guide juries in that work. Even when lawmakers contemplated intensifying their regulation of medicine by creating the …


Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger Jan 2007

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

Articles

A number of states recognize hedonic damages as a separate category of recovery in tort and tort-like actions. Others consider lost enjoyment of life as an aspect of what are sometimes termed "disability" damages-damages for physical or mental impairment. Many other states permit juries to take account of lost enjoyment of life in setting compensation for pain and suffering or other forms of general damages. In all these jurisdictions, disability has loomed large. And the (explicit or implicit) view of disability is often one of tragic dependency and helplessness. As we show in Part I below, lawyers seeking hedonic damages …


Private Liability For Reckless Consumer Lending, John A. E. Pottow Jan 2007

Private Liability For Reckless Consumer Lending, John A. E. Pottow

Articles

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …


The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow Jan 2007

The Nondischargeability Of Student Loans In Personal Bankruptcy Proceedings: The Search For A Theory, John A. E. Pottow

Articles

In fiscal year 2002, approximately 5.8 million Americans borrowed $38 billion (USD) in federal student loans. This was more than triple the $11.7 billion borrowed in 1990. As a rule of thumb, tuition has been increasing at roughly double the rate of inflation in recent years. This troubling trend of accelerating tuition, coupled with the fact that real income has stagnated for men and increased only modestly for women over the past two decades, means that more and more students are going to need to turn to borrowed money to finance their degrees absent a radical restructuring of the postsecondary …


Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander Jan 2007

Procedural Injustice: How The Practices And Procedures Of The Child Welfare System Disempower Parents And Why It Matters, Vivek Sankaran, Itzhak Lander

Articles

Many of us appear surprised when families involved in the child protective system do not reunify. A parent’s path to reunification seems straightforward. Upon a finding of neglect, the court prescribes a basic regimen, typically consisting of parenting classes, counseling, drug testing, and a psychological evaluation, that a parent must fulfill prior to having the child returned to his/her custody. If a parent successfully completes these seemingly minimal requirements, the law requires reunification unless the return poses a “substantial risk of harm” to the child. With such high stakes involved, a clearly defined path for success, and the prospect of …


An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr Jan 2007

An Inclusive, Progressive National Savings And Financial Services Policy, Michael S. Barr

Articles

How many of us walk by the signs for "Checks Cashed Here," "Money Orders for Sale," and "Payday Loans: Get Cash Quick" without thinking about the implications of those signs for the daily lives of lower-income households? Most of us can take for granted getting our paychecks directly deposited into our bank accounts, writing a check, or storing our money in an account. We often struggle to save for longer-term goals, such as our children's education, or retirement, but most of us, most of the time, do not worry whether our savings or insurance will be enough to get us …


Does Nonprofit Ownership Matter?, Jill R. Horwitz Jan 2007

Does Nonprofit Ownership Matter?, Jill R. Horwitz

Articles

In recent years, policymakers have increasingly questioned whether nonprofit institutions, particularly hospitals, merit tax exemption. They argue that nonprofit hospitals differ little from their for-profit counterparts in the provision of charity care and, therefore, should either lose their tax-exempt status or adhere to new, strict, and specific requirements to provide free services for the poor. In this Article, I present evidence that hospital ownership-whether it is for-profit, nonprofit, or government owned-has a significant effect on the mix of medical services it offers. Despite notoriously weak enforcement mechanisms, nonprofit hospitals act in the public interest by providing services that are unlikely …


Double-Consciousness In Constitutional Adjudication, Richard A. Primus Jan 2007

Double-Consciousness In Constitutional Adjudication, Richard A. Primus

Articles

Constitutional theorists are familiar with epistemic and consequentialist reasons why judges might allow their decision making to be shaped by strongly held public opinion. The epistemic approach treats public opinion as an expert indicator, while the consequentialistapproach counsels judges to compromise legally correct interpretations so as not to antagonize a hostile public. But there is also a third reason, which we can think ofas constitutive. In limited circumstances, the fact that the public strongly holds a given view can be one of the factors that together constitute the correct answer to a constitutional question. In those circumstances, what the public …


The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan Jan 2007

The Meaning Of 'Necessary' In Gatt Article Xx And Gats Article Xiv: The Myth Of Cost-Benefit Balancing, Donald H. Regan

Articles

Conventional wisdom tells us that in Korea–Beef, the Appellate Body interpreted the word ‘necessary’ in GATT Article XX to require a cost–benefit balancing test. The Appellate Body is supposed to have applied this test also in EC–Asbestos, US–Gambling (involving GATS Article XIV), and Dominican Republic–Cigarettes. In this article I demonstrate, by detailed analysis of the opinions, that the Appellate Body has never engaged in such balancing. They have stated the balancing test, but in every case they have also stated the principle that Members get to choose their own level of protection, which is logically inconsistent with judicial review by …


Why Refugee Law Still Matters, James C. Hathaway Jan 2007

Why Refugee Law Still Matters, James C. Hathaway

Articles

I am concerned that the singular importance of international refugee law is profoundly misunderstood. My more specific worry is that erroneous and competing claims by governments and the refugee advocacy community about the structure and purpose of refugee law threaten its continuing ability to play a truly unique human rights role at a time when no meaningful alternative is in sight.


Nsf Fees, James J. White Jan 2007

Nsf Fees, James J. White

Articles

Overdraft fees now make up more than half of banks' earnings on consumer checking accounts. In the past century, overdrafts have gone from the banker's scourge to the banker's profit center as bankers have learned that there is much to be made on these short term loans at breathtaking interest rates. I note that the federal agencies have been complicit in the growth of this form of lending. I propose that the banks and the agencies recognize the reality and attempt to mitigate these rates by encouraging the development of a competitive market.


Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner Jan 2007

Class Gifts Under The Restatement (Third) Of Property, Lawrence W. Waggoner

Articles

The new Restatement (Third) of Property (officially the Restatement (Third) of Property: Wills and Other Donative Transfers), in tandem with the Restatement (Third) of Trusts, is systematically proceeding through the whole field of wills, will substitutes, trusts, and estates. Both of the new Restatements should prove to be handy resources for trust and estate lawyers, not only in preparing to argue cases at both trial and appellate levels, but also in the everyday work of drafting and construing dispositive provisions in wills, trusts, and other types of donative documents. Each Restatement section is followed by a set of Comments explaining …


Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus Jan 2007

Structural Reform In Criminal Defense: Relocating Ineffective Assistance Of Counsel Claims, Eve Brensike Primus

Articles

This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim …


Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson Jan 2007

Regulatory Beneficiaries And Informal Agency Policymaking, Nina A. Mendelson

Articles

Administrative agencies frequently use guidance documents to set policy broadly and prospectively in areas ranging from Department of Education Title IX enforcement to Food and Drug Administration regulation of direct-to-consumer pharmaceutical advertising. In form, these guidances often closely resemble the policies agencies issue in ordinary notice-and-comment rulemaking. However, guidances are generally developed with little public participation and are often immune from judicial review. Nonetheless, guidances can prompt significant changes in behavior from those the agencies regulate. A number of commentators have guardedly defended the current state of affairs. Though guidances lack some important procedural safeguards, they can help agencies supervise …


The Puzzle Of Complete Preemption, Gil Seinfeld Jan 2007

The Puzzle Of Complete Preemption, Gil Seinfeld

Articles

Part I introduces the central themes in the law of federal question jurisdiction. It describes the prevailing interpretations of the constitutional and statutory texts governing the federal courts' jurisdiction to adjudicate disputes involving questions of federal law, and it explores the reasons for the establishment of such jurisdiction. This Part also introduces the well-pleaded complaint rule and examines the reasons for its adoption by the Supreme Court. Part II provides a detailed account of complete preemption doctrine, under which parties are permitted to usher state-law claims into the federal courts despite the apparent absence of any federal question on the …


On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar Jan 2007

On The Fortieth Anniversary Of The Miranda Case: Why We Needed It, How We Got It--And What Happened To It, Yale Kamisar

Articles

Last year (the year I gave the talk on which this article is based) marked the fortieth anniversary of Miranda v. Arizona,' one of the most praised, most maligned-and probably one of the most misunderstood-Supreme Court cases in American history. It is difficult, if not impossible, to evaluate Miranda without looking back at the test for the admissibility of confessions that preceded it.


Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar Jan 2007

Francis A. Allen--Architect Of Modern Criminal Procedure Scholarship, Yale Kamisar

Articles

Francis A. Allen, who spent the last eight years of his distinguished teaching career at the University of Florida, Fredric G. Levin College of Law, died at the age of eighty-seven. He was a leading figure in law teaching, and the legal profession generally, for more than four decades.


The Civil Rights Litigation Clearinghouse: A New Digitized Archive At Washington University In St. Louis, Margo Schlanger Jan 2007

The Civil Rights Litigation Clearinghouse: A New Digitized Archive At Washington University In St. Louis, Margo Schlanger

Articles

In November 2006, Washington University School of Law launched a new internet resource, the Civil Rights Litigation Clearinghouse. Completely free and accessible to the public, its web address is . The Clearinghouse vastly expands tie availability of information about and documents from civil rights cases of many different types, allowing researchers to find and read source documents and litigation summaries for over eighteen hundred litigations (and counting). The collection is organized by case; it follows cases from their start to finish, however many courts or opinions are involved, and however long the case takes. For each entry, in the collection, …


Interdisciplinary Clinical Teaching Of Child Welfare Practice To Law And Social Work Students When World Views Collide, Kathleen Coulborn Faller, Frank E. Vandervort Jan 2007

Interdisciplinary Clinical Teaching Of Child Welfare Practice To Law And Social Work Students When World Views Collide, Kathleen Coulborn Faller, Frank E. Vandervort

Articles

Because child welfare cases in the world of professional practice require interdisciplinary collaboration, it would seem to follow that graduate students, who will become child welfare professionals, should be trained together, both in the classroom and in clinical settings. However, the implementation of interdisciplinary training is far from straightforward. In this Article, we focus on law and social work students. First, we describe the roles of lawyers and social worker in child welfare work. Next we argue that interdisciplinary classroom teaching is easier than clinical teaching, proposing a series of topics to be covered in an interdisciplinary course. Finally, we …


A Hidden History Of Affirmative Obligation, Patrick O. Gudridge Jan 2007

A Hidden History Of Affirmative Obligation, Patrick O. Gudridge

Articles

No abstract provided.


Improved Nitrate Sensing Using Ion Selective Electrodes Based On Urea–Calixarene Ionophores, Benjamin Schazmann, Dermot Diamond Jan 2007

Improved Nitrate Sensing Using Ion Selective Electrodes Based On Urea–Calixarene Ionophores, Benjamin Schazmann, Dermot Diamond

Articles

Urea–calix[4]arenes 1 and 2 were synthesised and incorporated into ISE membranes for assessment as sensors for inorganic anions in water. 1 revealed a strong response to all anions following the Hofmeister selectivity order. For ISEs of 2, the response to a portion of the anion series was suppressed, increasing the margin of selectivity of nitrate over chloride, a common interferant of nitrate in fresh and marine water samples. The performance of ISEs containing 2 was compared to commercially available alkylammonium nitrate ion-exchange salts used for nitrate sensing. Our ISEs performed favourably in terms of sensitivity, linear range and LOD performing …


Identification Of A 17-Nucleotide Splicing Enhancer In Hpv-16 L1 That Counteracts The Effect Of Multiple Hnrnp A1-Binding Splicing Silencers, Ziaomin Zhao, Joanna Fay, Stefan Schwartz, Helen Lambkin Jan 2007

Identification Of A 17-Nucleotide Splicing Enhancer In Hpv-16 L1 That Counteracts The Effect Of Multiple Hnrnp A1-Binding Splicing Silencers, Ziaomin Zhao, Joanna Fay, Stefan Schwartz, Helen Lambkin

Articles

Human papillomavirus type 16 (HPV-16) infections can in rare cases persist and cause lesions that may progress to cervical cancer. Cells in the lesions are not permissive for virus production, nor are cervical cancer cells. The intracellular environment is such that it prevents production of the highly immunogenic, viral structural proteins L1 and L2. One may speculate that inhibition of L1 and L2 expression is a prerequisite for persistence and cancer progression.We have therefore investigated how expression of HPV-16 L1 is regulated.We found that the only splice site in the HPV-16 late region, which is used to produce L1 mRNAs, …