Digital Commons Network^™

Freedom Thwarted Israel's Illegal Attack On The Gaza Flotilla, George Bisharat, Carey James, Rose Mishaan

Faculty Scholarship

No abstract provided.

Gender Dimorphism In The United States Legal System: A "Post-Feminist" And Comparative Critique, James Wilets

Faculty Scholarship

There has been extensive jurisprudential literature positing that the structure, values and processes of the American legal and educational system, focusing heavily on adversarial battle among parties in court, and competition in law school, are fundamentally "male-centered." This "male-female" construct suggests that there is an essential dichotomy between the two genders with respect to resolving disputes that is reflected in the legal system, and that this male-female dichotomy is harmful to all participants and perhaps to justice itself.

This article expands upon this literature by arguing that many of the dysfunctional characteristics of the American legal system labeled "male" in …

Book Review: Responsible Business: Self-Governance And Law In Transnational Economic Transactions Edited By Olaf Dilling, Martin Herberg And Gerd Winter, Laura M. Spitz

Faculty Scholarship

No abstract provided.

Cooperative Institutions In Cultural Commons, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Extraordinary Justice, David C. Gray

Faculty Scholarship

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

Thinking Like A Public Interest Lawyer: Theory, Practice, And Pedagogy, Jocelyn Simonson

Faculty Scholarship

No abstract provided.

Teaching Interdisciplinary Collaboration: Theory, Practice, And Assessment, Linda Morton, Howard Taras, Vivian Reznik

Faculty Scholarship

In this article, we offer our own theory-based methodology for teaching interprofessional collaboration to law students and we present our preliminary data on its effectiveness. Part I explicates the definition and development of interdisciplinary collaboration. Part II describes how we have grounded our course in current theory, and Part III explains the extent to which our efforts have been successful. Finally, in Part IV, we offer additional thoughts regarding the teaching of interdisciplinary collaboration and pose questions and ideas for future data collection.

View From The Trenches: The Struggle To Free William Richards, Jan Stiglitz

Faculty Scholarship

This article discusses the circumstantial evidence against a wrongly convicted man and the California Innocence Project's efforts to seek his release.

A Woman’S Worth, Kimberly D. Krawiec

Faculty Scholarship

This Article examines three traditionally “taboo trades”: (1) the sale of sex, (2) compensated egg donation, and (3) commercial surrogacy. The Article purposely invokes examples in which the compensated provision of goods or services (primarily or exclusively by women) is legal, but in which commodification is only partially achieved or is constrained in some way. I argue that incomplete commodification disadvantages female providers in these instances, by constraining their agency, earning power, or status. Moreover, anticommodification and coercion rhetoric is sometimes invoked in these settings by interest groups who, at best, have little interest in female empowerment and, at worst, …

Narratives Of Diversity In The Corporate Boardroom: What Corporate Insiders Say About Why Diversity Matters, Kimberly D. Krawiec, Lissa Lamkin Broome, John M. Conley

Faculty Scholarship

Over the last generation, the concept of diversity has become commonplace and taken-for-granted in discourses ranging from law to education to business. In higher education, for example, it is hard to imagine a faculty job search or a student admissions discussion that was not heavily laden with talk of diversity, in the sense of the representative inclusion of women and racial and ethnic minorities in a group or organization. In this paper we present the results of an interview-based study of the discourse of diversity in a particular business setting: the corporate boardroom. Our principal observation is that—thirty-one years after …

When Your Body Is Your Business, Mary P. Byrn, Morgan L. Holcomb

Faculty Scholarship

Surrogacy in the United States is a multi-million dollar industry in which well paid professionals seek out highly specialized women to fulfill the difficult job of being a surrogate. Surrogates enter lengthy contracts in which they agree, in intricate detail, to provide a service for significant compensation - surrogates are paid well over $22 million dollars a year. This article argues that surrogates are also professionals in this for-profit industry and are required to report surrogacy compensation as income. As a corollary, surrogates may deduct most of their surrogacy related expenses as business deductions. Being a surrogate is a highly …

Explanation Interpretation In Functionalist Comparative Law — A Response To Julie De Coninck, Ralf Michaels

Faculty Scholarship

Response to Julie de Coninck, The Functional Method of Comparative Law: Quo Vadis?, 74 Rabels Zeitschrift für ausländisches und internationales Privatrecht 318–350 (2010) in which De Coninck criticizes existing functionalist comparative law for what she perceives as lack of interest in empirical foundations.

Evaluating Judges And Judicial Institutions: Reorienting The Perspective, Mitu Gulati, David E. Klein, David F. Levi

Faculty Scholarship

Empirical scholarship on judges, judging, and judicial institutions, a staple in political science, is becoming increasingly popular in law schools. We propose that this scholarship can be improved and enhanced by greater collaboration between empirical scholars, legal theorists, and the primary subjects of the research, the judges. We recently hosted a workshop that attempted to move away from the conventional mode of involving judges and theorists in empirical research, where they serve as commentators on empirical studies that they often see as reductionist and mis-focused. Instead, we had the judges and theorists set the discussion agenda for the empiricists by …

Cooperative Institutions In Cultural Commons, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Penetrating The Silence In Sierra Leone: A Blueprint For The Eradication Of Female Genital Mutilation, Chi Adanna Mgbako, Meghna Saxena, Anna Cave, Nasim Farjad, Helen Shin

Faculty Scholarship

The African grassroots movement to eradicate female genital mutilation (also known as “female genital cutting” and “female circumcision,” hereinafter “FGM”) is widespread. While many African countries and grassroots organizations have made great strides in their efforts to eliminate FGM, Sierra Leone lags behind. In Sierra Leone, FGM is practiced within the bondo secret society, an ancient, all-female commune located in West Africa and also known as the sande. The bondo society’s traditional role was to direct girls’ rites of passage into adulthood. In order to become a member of the bondo, a girl or woman must undergo various rituals, the …

Hate Speech And The Language Of Racism In Latin America: A Lens For Reconsidering Global Hate Speech Restrictions And Legislation Models, Tanya K. Hernandez

Faculty Scholarship

In Latin America, like many countries in Europe, hate speech is prohibited. Yet Latin America is rarely included in the transnational discussion regarding the regulation of hate speech. Instead, the discourse focuses on a comparison of the advisability of Europe's hate speech regulations and free speech acceptance of hate speech in the United States. As a result, the ability to fundamentally examine the connections between hate speech and inequality, in addition to the most effective legal mechanisms for addressing it, is undermined. It is especially critical to broaden the hate speech debate now that we are seeing an apparent rise …

Value Of Intersectional Comparative Analysis To The Post-Racial Future Of Critical Race Theory: A Brazil-U.S. Comparative Case Study, The Commentary: Critical Race Theory: A Commemoration: Response, Tanya K. Hernandez

Faculty Scholarship

This Commentary Article aims to illustrate the value of comparative law to the jurisprudence of Critical Race Theory (CRT), particularly with reference to the CRT project of deconstructing the mystique of "postracialism. " The central thesis of the Article is that the dangerous seductions of a U.S. ideology of "post-racialism" are more clearly identified when subject to the comparative law lens. In particular, a comparison to the Brazilian racial democracy version of "post-racialism"is an instructive platform from which to assess the advisability of promoting post-racial analyses of U.S. racial inequality. In Part I the Article introduces the value of comparative …

The Constitution And Our Debt To The Future, Rena I. Steinzor

Faculty Scholarship

Health and safety laws have always been justified as manifestations of congressional authority to regulate and protect the free flow of interstate commerce under Article I, section 8 of the Constitution. Professor Steinzor argues that reliance on the Commerce Clause can support next generation proposals, including a National Environmental Legacy Act proposed by Professor Alyson Flournoy, which would require that any action on federal land involving the consumption or destruction of resources must be sustainable, as well as pending climate change legislation. But, Steinzor says, a far more desirable constitutional foundation for such laws is the General Welfare Clause found …

A Short History Of Gender Asylum In The United States Resistance And Ambivalence May Very Slowly Be Inching Towards Recognition Of Women's Claims, Karen Musalo

Faculty Scholarship

No abstract provided.

Truth And Consequences: Mitt Romney, Proposition 8, And Public Reason, Frederick Mark Gedicks

Faculty Scholarship

Although formal religious tests for federal office are constitutionally prohibited, they have long been fact of political life in presidential elections. John Kennedy remains the only nonProtestant ever elected President. The "Judeo-Christian tradition" notwithstanding, no major party has ever nominated a Jew for president - let alone a Buddhist, Hindu, Mormon, Muslim, or unbeliever.

Against this electoral history, it was perhaps predictable that mainstream Christian commentators would feel free to legitimate religious attacks on Mitt Romney during the Republican presidential primaries on the ground that Mormonism is a "false" religion. Ironically, however, the Mormon church periodically intervenes in initiative and …

The Role Of Mental Health Professionals In Political Asylum Processing, Karen Musalo, Susan M. Meffert, Akra Osman Abdo

Faculty Scholarship

No abstract provided.

Copyright For A Social Species, Robert E. Suggs

Faculty Scholarship

Arguments about the proper scope of copyright protection focus on the economic consequences of varying degrees of protection. Most analysts view copyright as an economic phenomenon, and the size and health of our copyright industries measure the success of copyright policies. The constitutional text granting Congress the copyright power and the nature of special interest lobbying naturally create this economic focus; but this is a serious mistake. An exclusively economic focus makes no more sense than measuring the nutritional merits of our food supply from the size and profitability of the fast food industry.

The expressive culture that copyright protects …

Families Redefined: Kinship Groups That Deserve Benefits, Jane E. Cross, Nan Palmer, Charlene L. Smith

Faculty Scholarship

In Families Redefined: Kinship Groups that Deserve Benefits, the authors examine 1) the nature of kinship families, 2) the benefits accorded to married couples, 3) kinship families that lack protection and benefits, 4) the impact of denying kinship families protection and benefits, 5) the use of contract law in kinship relationships, and 6) using legislation to benefit kinship relationships.

This exploration of expanding family law protections to kinship groups addresses a series of interrelated topics. The first two sections of the article explore the characteristics and creation of kinship families in different societies. The third section addresses the legal …

U.S. Human Rights Activism And Plan Colombia, Winifred L. Tate

Faculty Scholarship

Non-governmental organizations claim to play a central role in defining U.S. foreign policy, particularly in the field of human rights. Here, I will examine the role of human rights and humanitarian groups in the debates over U.S. foreign policy towards Colombia, focusing on the design and subsequent additional appropriations for Plan Colombia, a multi-billion dollar aid package beginning in 2000. I argue that NGOs were able to build on the legacy of prior human rights activism focusing on Latin America, but failed to achieve significant grassroots mobilization around this issue. I examine the structural issues limiting such mobilization, as well …

From Greed To Grievance: The Shifting Political Profile Of The Colombian Paramilitaries, Winifred Tate

Faculty Scholarship

On June 28, 2004, indicted drug trafficker and paramilitary leader Salvatore Mancuso, wearing a fashionable Italian suit and tie, addressed the Colombian Congress from the podium. "The judgment of history will recognize the goodness and nobility of our cause," he told the assembled legislators and press. The day before, Mancuso, along with two other paramilitary leaders, had traveled in an official air force plane from the small northern Colombia hamlet where paramilitary leaders had assembled to begin talks with the Colombian government. After almost a decade of fighting outside the law, Mancuso was now addressing the heart of the state, …

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

Faculty Scholarship

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

The Evolving Architecture Of North American Integration, Laura Spitz

Faculty Scholarship

Given its potential significance for democracy, sovereignty, government, governance, and justice in each of Canada, the United States, and Mexico, North American integration qua integration has thus far received surprisingly little attention from legal scholars and social scientists. While an expanding body of research explores the dynamics of continental integration in other contexts (especially Europe) and/or examines the meaning of globalization, regionalism, and multilateral internationalism in a general sense, the specific constitution of an integrated North American space remains largely undertheorized. This Article aims to advance the literature in this area by examining legal discourse as an example of the …

Beyond Bidil: The Expanding Embrace Of Race In Biomedical Research And Product Development, Jonathan Kahn

Faculty Scholarship

In 2005 the FDA approved BiDil, the first drug ever to include a race-specific indication on its label - to treat heart failure in a “black” patient. In the aftermath of this controversial approval and subsequent marketing of the drug, many have wondered whether BiDil was an anomaly or a harbinger of things to come. This article moves beyond BiDil to explore how similar yet distinct models are developing for the continuing exploitation of race in biomedical practice and product development. It will explore the tensions embedded in the persistent use of racial categories even as specific genetic variations linked …

Race, Genes And Justice: A Call To Reform The Presentation Of Forensic Dna Evidence In Criminal Trials, Jonathan Kahn

Faculty Scholarship

The article considers how and when, if at all, is it appropriate to use race in presenting forensic DNA evidence in a court of law? This relatively straightforward question has been wholly overlooked by legal scholars. By pursuing it, this article promises to transform fundamentally the presentation forensic DNA evidence. Currently, it is standard practice for prosecutors to use race in presenting the odds that a given defendant's DNA matches DNA found at a crime scene. This article takes an interdisciplinary approach to question the validity of this widespread but largely uninterrogated practice. It examines how race came to enter …

Disestablishing Environmentalism, Andrew P. Morriss, Benjamin D. Cramer

Faculty Scholarship

The debate over environmental policy is increasingly conducted in language with strong religious overtones. Both proponents and opponents of various environmental policies appeal to religious doctrine to support their positions: Those who question human-caused global warming are labeled "heretics, " while appeals for environmental "stewardship" echo Biblical texts. Religious groups play an important role in defining environmental policy issues, and both supporters and critics of specific environmental policy views have labeled particular sets of beliefs about the environment a "religion." In this Article we engage in a thought experiment, arguing that there are valuable lessons to be learned from treating …