Digital Commons Network^™

Toward A Race-Conscious Critique Of Mental Health-Related Exclusionary Immigration Laws, Monika Batra Kashyap

Faculty Articles

This Article employs the emergent analytical framework of Dis/ability Critical Race Theory (DisCrit) to offer a race-conscious critique of a set of immigration laws that have been left out of the story of race-based immigrant exclusion in the United States—namely, the laws that exclude immigrants based on mental health-related grounds. By centering the influence of the white supremacist, racist, and ableist ideologies of the eugenics movement in shaping mental health-related exclusionary immigration laws, this Article locates the roots of these restrictive laws in the desire to protect the purity and homogeneity of the white AngloSaxon race against the threat of …

Hostile Restructurings, Diane Lourdes Dick

Faculty Articles

The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing. These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, …

Emotions And Intellectual Property Law, Margaret Chon

Faculty Articles

Emotions constitute an integral part of the diverse approaches that we bring to bear upon our most pressing law and policy issues. This article explores the role of emotions in intellectual property, information, and technology law (IP). Like other areas of law, IP commits to, prioritizes, and even honors, reason, logic, and facts—which can result in the sidelining of the affective components of law. Yet our affective responses to legal and other phenomena influence both cognition and reason. Part I of the article provides a general overview of the field of law and emotions, pointing out how this approach to …

Afterword: Collective Knowledge Production Toward Transformative Social Change: A Community-Grounded Model, Steven Bender

Faculty Articles

No abstract provided.

The 14th Amendment And Me: How I Learned Not To Give Up On The 14th Amendment, Robert Chang

Faculty Articles

No abstract provided.

Opposition From Within – Israeli Soldiers Resist The Occupation, Maia Hallward, Lina Tuschling

Faculty Articles

Protests in response to Israeli military action in the Occupied Territories have a long history in Israel. While such opposition movements in many countries are comprised of civil society activists, the dynamics of protest differ in Israel because of the country’s mandatory military service. From the 1980s to present day, former and current Israeli soldiers have used a wide range of methods, tactics, and strategies to challenge Israeli military actions. Using insights from nonviolent resistance theories, we examine how the approaches and goals of military opposition groups in Israel have changed over the past decades. Specifically, we develop a typology …

Understanding Type 2 Diabetes Mellitus Among Haitian American Women: A Cultural Perspective, Balkys L. Bivins, Indra R Hershorin, Lonar M. Umadhay

Faculty Articles

The prevalence of type 2 diabetes mellitus (T2DM) is 19.7% in Haiti (DeGennaro et al., 2018). Haitian American women (HAW) experience difficulties with adherence to T2DM treatment and management (Bivins, 2016; Magny-Normilus et al., 2019; Vimalananda et al., 2011; Huffman et al., 2013); however, no previous study was found that focused exclusively on Haitian American women with T2DM. Van Manen's six research activities guided this phenomenological qualitative inquiry. Recruitment included 25 Haitian American women (N = 25) with T2DM from three South Florida counties. Data were collected using a vignette and audio-recorded semi-structured interviews with open-ended questions. Recordings were then …

American Military Justice: Retaining The Commander's Authority To Enforce Discipline And Justice, David A. Schlueter, Lisa Schenck

Faculty Articles

This white paper recommends that Congress reject proposals that would remove a commander’s prosecutorial discretion and instead place it in the hands of senior armed forces lawyers. There are currently two proposed legislative provisions that would adversely affect the commander’s prosecutorial discretion and undermine the commander’s ability to enforce good order and discipline. The first proposed provision was included in Section 540F of the 2020 National Defense Authorization Act, where Congress mandated that the Department of Defense report to the congressional armed services committees on the feasibility of creating a pilot program that would remove a commander’s authority to prefer, …

Thirdspace Investigations: Geography, Dehumanization And Seeking Spatial Justice In Kinesiology, Brian Culp

Faculty Articles

The 39th Annual Dudley A. Sargent Lecturer challenges the kinesiology professions to be intentional in addressing issues related to spatiality. Beginning with an outline of how such a focus has viability for the profession, the author overviews: (a) spatial justice and mobility through the lens of Gordon Parks; (b) surfing, localism and cityhood efforts; (c) notions of space and dehumanization as defined by Herbert Kelman; and (d) the need for a renewal of kinesthetic consciousness in the face of unrestricted technocracy in physical education. The second part of the lecture presents an interpretation of Edward Soja’s theory of Thirdspace in …

Contract Lore As Heuristic Starting Points, Colin P. Marks

Faculty Articles

What Professor Hillman labels as lore are better thought of as a series of heuristic starting points. I do not label them heuristics in and of themselves as they do not represent shortcuts to the ultimate answer. But, as I explain, all of the areas that Professor Hillman identifies as lore are actually quite nuanced, sometimes filled with exceptions; other times, they simply represent the first step in a long inquiry. Heuristics as a teaching device has been recognized in law and other disciplines as an effective tool in not only conveying information, but also prodding the student to conduct …

A Comparative Study Of Trademarks: Usmca (U.S.-Mexico-Canada Agreement) And Nafta (North American Free Trade Agreement), Roberto Rosas

Faculty Articles

The definition of a trademark has expanded under the U.S. -Mexico-Canada Agreement ("USMCA "'), which provides more protection for rights holders. Currently, these three countries are bound by the North American Free Trade Agreement ("NAFTA"'), which has a narrow definition for trademarks. The North American Free Trade Agreement ("NAFTA"'), which came into effect on January 1, 1994, was a significant agreement between some of the largest, strongest, and well-developed economies in the world: United States and Canada. It also helped to invigorate Mexico's future economic development. NAFTA's broad purpose was to regulate the exchange of capital, goods, and services across …

Pirates On The High Seas: An Institutional Response To Expanding U.S. Jurisdiction In Troubled Waters, Marshall B. Lloyd, Robert Summers

Faculty Articles

Collective efforts among governments and regional organizations is a vital part of the fight against piracy that represents a security threat to all nation states with respect to freedom to navigate the high seas. This paper provides a concise overview of piracy, contemporary maritime drug laws, and cases among the circuit courts to illustrate the procedural concerns that affect fundamental constitutional principles of jurisdiction. A possible solution to existing substantive and procedural due process issues is establishment of a regional judicial institution with broad powers to preside over criminal prosecutions that include maritime crimes. The suggestion may be a viable …

Thinking In Circles: Using Ooda To Sharpen Legal Analysis, Kenneth D. Chestek

Faculty Articles

One thing many law students ' and practicing lawyers ' often struggle with is critically thinking about the entirety of the case they are working on Shallow analysis of the full range of possible legal issues presented by a situation can lead an advocate to be unprepared when new issues arise unexpectedly in a case My article proposes OODA ' Observe Orient Decide Act ' as a useful way to approach litigation planning and strategy formationbrbrOODA was conceived by military strategist Col John Boyd as a way to outthink and outmaneuver an enemy But it turns out that OODA is …

Self-Talk: Mentoring And Empowering Faculty To Contribute To Organizational Change, Brian Culp

Faculty Articles

We can effectively mentor if in possession of qualities to empower mentees, which include: effective communication skills, knowledge of the professional realm, enthusiasm, passion and the ability to create an equitable and supportive organizational environment with the mentee. The authors of this article propose that self-talk (ST) or inner speech is a helpful means of inspiring mentors, colleagues, teachers, and friends in navigating communication challenges with themselves and others. A three-step approach to implementing ST for the purpose of mentoring involves: (1) awareness of the ST they are currently using; (2) follow-up with the mentee’s active reflection of and recording …

Covid-19 Pandemic: Policy And Legal Issues, Jeffrey F. Addicott

Faculty Articles

Most Americans are unfamiliar with governmental powers during a pandemic, which makes it useful to examine applicable legalities, powers and authorities. Importantly, that power can mandate quarantine, isolation, vaccination, decontamination, destruction of infected property, eviction, closing businesses, social distancing, sheltering in place, specimen testing, and mandating health information disclosure and health care responses.

All The World's A Platform?: Some Remarks On 'Marketplace Platform' Employment Laws, Michael C. Duff

Faculty Articles

This paper addresses the enactment of marketplace platform laws which have arisen as a remarkable feature of the gig economy in recent years A marketplace platform law decides the question of whether an individual worker is an independent contractor or an employee ' an ongoing controversy in all employment law including workers' compensation law ' by emphasizing factors other than those normally considered in traditional legal analyses As of this writing seven states appear to have enacted marketplace platform lawsbrbrIn short marketplace platform laws ' developed substantially and lobbied aggressively by the company Handy Inc ' make it much easier …

The Shifting Law Of Sexual Speech: Rethinking Robert Mapplethorpe, Amy M. Adler

Faculty Articles

This Article explores the dramatic changes that have occurred over the last thirty years in the First Amendment doctrines governing sexual speech. As a prism through which to evaluate these changes, I consider the thirtieth anniversary of the landmark Robert Mapplethorpe trial, the first censorship prosecution against an art museum in the history of this country and the defining battle in the culture wars that roiled post-Reagan America. The target was the exhibition of formally beautiful, sexually hard-core photographs by Robert Mapplethorpe on view at a museum in Cincinnati. The controversy that erupted over those images—fueled by anxieties about AIDS, …

Policing's Information Problem, Barry Friedman, Elizabeth G. Jánszky

Faculty Articles

We spend over $100 billion each year on policing in the United States, yet have very little idea of what keeps us safe. From the adoption of new technologies like facial recognition to militarization to stop-and-frisk tactics, and much else, police in the United States pursue public safety strategies without understanding the full range of costs or benefits. There is a particularly troubling tendency to ignore the social costs (the impact policing practices have on individuals)—and the distributional costs (how policing regularly falls most heavily on racial and marginalized communities). As a result, we don’t know what keeps us safe, …

Participation And Polarization, Richard H. Pildes

Faculty Articles

Campaign-finance reformers have turned in recent years to a novel form of publicly-financed elections—small-donor matching programs—as the way to reduce the perceived corruption that arises from the current role of money in American elections. The rise of the Internet and social media have transformed the way campaigns are funded and turned small donors into a major force in American campaigns. The 2018 elections dramatically demonstrated the new power of small donors. Building on this transformation, the focus of reform efforts are now programs that match small donations ($200 or less) with public funds, which typically provide $6 in public funds …

Using The Corporate Prosecution And Sentencing Model For Individuals: The Case For A Unified Federal Approach, Rachel E. Barkow

Faculty Articles

This essay explores the different approaches the Department of Justice and Sentencing Commission have taken to individual and corporate defendants and explain why aspects of the corporate model should apply to individual cases as well. Part I will describe the key attributes of the modern federal model for individuals. Its emphasis is on controlling the discretion of line prosecutors and judges and shows a marked preference for severity. Part II will explain how the approach to corporate criminal law enforcement emphasizes individual assessment, the need to balance the costs of punishment with its benefits, and an emphasis on considering other …

Revising Boilerplate: A Comparison Of Private And Public Company Transactions, Robert E. Scott, Stephen J. Choi, Mitu Gulati

Faculty Articles

The phenomenon of “sticky boilerplate” causing inefficient contract terms to persist exists across a variety of commercial contract types. One explanation for this failure to revise suboptimal terms is that the key agents on these transactions, including attorneys and investment bankers, are short sighted; their incentives are to get the deal done rather than ensure that they are using the best terms possible for their clients. Moreover, these agents face a first mover disadvantage that deters unilateral revisions to inefficient terms. If agency costs are indeed driving the stickiness phenomenon, we expect that the pace of revision will vary across …

Constitution By Convention, Samuel Issacharoff, Trevor W. Morrison

Faculty Articles

Constitutionalism has never been exclusively reduced to the written text either in terms of its commands or its interpretation. In the United States, lived experiences and institutional arrangements “can inform our determination of what the law is,” as the Supreme Court recently noted. Nevertheless, the precise relation between written text and settled institutional practice remains a subject of disagreement and even confusion. The scholarly literature has only recently begun to treat these issues with the seriousness they deserve. We bring to this debate a sensibility that beneath the constitutional text there lies a world of institutional settlement—or constitution by convention—in …

Post-Traumatic Stress Disorder (Ptsd) Coverage And Other Expanding Benefit Changes In The Workers' Compensation Insurance Marketplace: Academic Legal Perspective, Michael C. Duff

Faculty Articles

This paper discusses the increased use of causation presumptions in workers compensation cases involving firefighters and other first responders It also considers increasing workers compensation coverage of post traumatic stress disorder with respect to those same categories of workersThe paper discusses how workers compensation coverage of certain conditions tends to parallel the growth of potential tort liability observes that disease presumptions were a feature of early 20th century workers compensation statutes and so are not new and argues that recognition of workers compensation mentalmental claims has been consistent with zone of danger expansion of the negligent infliction of emotional distress …

The Hollowed Out Common Law, Samuel Issacharoff, Florencia Marotta-Wurgler

Faculty Articles

The electronic marketplace poses novel issues for contract law. Contracts created through browsewrap, clickwrap, and shrinkwrap (contracts whose embedded terms are only available after purchase) poorly fit doctrines that emerged from face-to-face offer and acceptance, the mutual execution of a common set of documents, or the rituals of mass market transactions involving physical fine print. Not surprisingly, these contracts of the new electronic marketplace require doctrinal elaboration. Our Article asks not about the specific resolution of new doctrinal challenges, but about how the common law of contracts will be elaborated. Specifically, the Article begins with empirical observations about the domain …

An Intersection Of Gender, Race, And Sports: Guidelines For Universities Determining Whether Athletes Accused Of Title Ix Violations Should Be Removed From Their Teams, David A. Grenardo

Faculty Articles

Sexual assault on college campuses remains an epidemic. As universities attempt to handle Title IX complaints regarding sexual misconduct, they must protect the academic environment and integrity of their schools. Since athletes are three times more likely to be accused of sexual assault than non-athletes, and schools have historically mishandled complaints against athletes, the proposed guidelines in this Article provide an equitable approach for determining when an athlete should be removed from his team based on accusations of a Title IX violation. The guidelines are based on the newly implemented Title IX regulations and take into account the interests and …

Loopholes For The Affluent Bankrupt, David R. Hague

Faculty Articles

Recent bankruptcy cases are exposing a problem. Affluent individuals filing for bankruptcy are treated more favorably under the Bankruptcy Code than those debtors with little to no means of financial sustenance or income. Did Congress intend this result? The legislative history is unclear. But one thing seems certain: The United States Bankruptcy Code contains a set of loopholes that appear to be designed for the well-to-do segment of society. Courts throughout the United States are either overlooking these provisions or simply condoning their utilization under the defensible conviction that the Bankruptcy Code permits it.

In this Article, I argue that …

Migration Through The Mirror: Mexican Women’S Perspectives Of What It Means For Them When Mexicans Move North: A Binational Conversation (Book), Roberto Rosas

Faculty Articles

The content of the themes discussed during the binational conversation, “Mexican Women, their empowerment and contribution to the United States,” led to the publication of this book by the members of the Center for Mexicans in Globalization and St. Mary’s University School of Law. The binational conversation is an important exercise regarding the analysis of the theme of migration.  The goal is to highlight the fundamental role of each woman who participated, whose involvement regarding the diverse themes and the sharing of personal experiences contributes to the enrichment of the subject.

There Oughta Be A Law: What Corporate Social Responsibility Can Trach Us About Consumer Contract Formation, Colin P. Marks

Faculty Articles

The Restatement of Consumer Contracts has been a controversial project since its inception. Some have argued that the project is unnecessary as there is no separate law of consumer contracts. Others have argued that the project is more appropriate for a Principles of Law project than for a Restatement. Substantively, the project has also drawn criticism from both consumer and business advocates. Consumer advocates have argued that some of the sections, in particular section 2 which addresses standard terms, favor businesses and subject consumers to terms and conditions that they never truly assented to.9 Business advocates have argued, among other …

How Much Is Too Much? A Test To Protect Against Excessive Fines, Daniel S. Harawa

Faculty Articles

Fines are the most common form of punishment in the United States, and are disparately imposed against poor people of color. The stories of fines ruining lives abound. Yet until last year, in most state courts, it was not clear whether a person could challenge financial punishment imposed against them as unconstitutional. That changed when the Supreme Court held in Timbs v. Indiana that the Eighth Amendment’s Excessive Fines Clause applies to the states. Despite the fact that all state and federal courts must now be equipped to decide whether financial punishment violates the Eighth Amendment, the Supreme Court has …

Manning V. Caldwell: A Harbinger?, Daniel S. Harawa

Faculty Articles

Last term, the Fourth Circuit heard three cases en banc. One case, Manning v. Caldwell, involved a challenge to Virginia's habitual drunkard statute. In Manning, the Fourth Circuit split 8-7. The majority opinion, written jointly by Judges Motz and Keenan, garnered eight votes. The principal dissent, authored by Judge Wilkinson, was joined by five judges. Judge Diaz wrote a separate dissent. While the various opinions in Manning are interesting, this Article is not about their reasoning. It is about the conflict they revealed. Judge Keenan wrote a separate concurrence lamenting the tone of the principal dissent, and Judge Wilkinson wrote …