Digital Commons Network^™

Fourth Amendment Accommodations: (Un)Compelling Public Needs, Balancing Acts, And The Fiction Of Consent, Guy-Uriel Charles

Faculty Scholarship

The problems of public housing-including crime, drugs, and gun violence- have received an enormous amount of national attention. Much attention has also focused on warrantless searches and consent searches as solutions to these problems. This Note addresses the constitutionality of these proposals and asserts that if the Supreme Court's current Fourth Amendment jurisprudence is taken to its logical extremes, warrantless searches in public housing can be found constitutional. The author argues, however, that such an interpretation fails to strike the proper balance between public need and privacy in the public housing context. The Note concludes by proposing alternative consent-based regimes …

A Grotian Tradition Of Theory And Practice: Grotius, Law, And Moral Skepticism In The Thought Of Hedley Bull, Benedict Kingsbury

Faculty Scholarship

No abstract provided.

Nothing And Everything: Race, Romer, And (Gay/Lesbian/Bisexual) Rights, Robert S. Chang, Jerome Mccristal Culp Jr.

Faculty Scholarship

In this Article, Professors Chang and Culp propose that the Supreme Court's decision in Romer v. Evans, viewed by some scholars as a progressive case about gay/lesbian/bisexual rights, has little to do with gay/lesbian/bisexual rights as such. They argue that whatever protection Romer provides to gays, lesbians, and bisexuals is provided not because of their sexuality but, rather, despite it. The authors demonstrate their thesis by examining the racial underpinnings of the Court's opinion, which begins with Justice Harlan's famous dissent in Plessy v. Ferguson and which relies on a specific vision of color-blindness. This submerged racial jurisprudence provides the …

Construction Of Race And Class Buffers In The Structure Of Immigration Controls And Laws, The Symposium: Citizenship And Its Discontents: Centering The Immigrant In The Inter/National Imigination: Part Ii: Section Three: Rethinking Agency: Global Economic Restructuring And The Immigrant, Tanya K. Hernandez

Faculty Scholarship

In the midst of current anti-immigration sentiment, which is motivating dramatic changes in the United States immigration laws, there exists the myth that prior immigration laws were more equitable and humanitarian. Yet historical analysis reveals that immigration law has been put to uses far from idyllic, and has always been concerned with the racial makeup of the nation. Specifically, national preoccupation with the maintenance of a "White country" is reflected in immigration law. The continued national preference for White immigrants is explicitly featured in the visa profiling codes of U.S. embassies and consulates. This Essay employs a race-conscious lens to …

Securities Disclosure In A Globalizing Market: Who Should Regulate Whom, Merritt B. Fox

Faculty Scholarship

One of the most dramatic examples of increasing interaction across national boundaries in recent years has been the burgeoning volume of transnational transactions in corporate equities. Most developed capitalist countries impose affirmative obligations on issuers of corporate equity to disclose certain information about themselves. While these obligations are imposed on issuers, they are triggered by transactions. The growth in transnational transactions is thus increasingly raising difficult issues concerning the reach of differing national regimes. Given the magnitude of legal resources devoted to compliance with such disclosure regulations, they promise to feature prominently in the larger discussion of the role of …

Lawyers, Clients, And Mediation , Jacqueline Nolan-Haley

Faculty Scholarship

That the growth of mediation practice is changing the practice of law is obvious. The inability of many lawyers to understand the conceptual differences between adversarial lawyering and mediation practice strongly suggests the need to develop a theory of "good" representational mediation practice that takes into account competing client interests. On the one hand, lawyers must encourage client voice and participation. At the same time, however, the demands of professionalism require that lawyers guide their clients toward responsible decisionmaking. Representational lawyering in mediation may involve a number of distinct and traditional lawyering functions-- client counseling, negotiation, evaluation and advocacy. In …

Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Coercion, Deception, And Other Demand-Increasing Practices In Antitrust Law, Mark R. Patterson

Faculty Scholarship

No abstract provided.

Legal Coherentism, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Academic Mestizaje: Re/Producing Clinical Teaching And Re/Framing Wills As Latina Praxis, Margaret E. Montoya

Faculty Scholarship

What follows is an analysis that draws connections between activist teaching and activist scholarship and posits that it is the activism, the focus on the needs of Latinas/as, that makes them community service. In Part I, I describe the community lawyering program, one of the clinical law options, available at the University of New Mexico School of Law. In Part Il, I undertake to re-frame the law of wills in order to make this end-of-life ritual more relevant to the lives of Latinas/os. I then I enact a LatCritique of academic discussions and Outsider discourses. I conclude by examining our …

Alternative Visions Of American Constitutionalism: Popular Sovereignty And The Early American Constitutional Debate, Christian G. Fritz

Faculty Scholarship

This Article explores the revolutionary period and the early national period of American constitutionalism, examining popular sovereignty as the foundation of American governance and political power. It intends to challenge standard perspectives on American constitutionalism, in particular the notion that the United States Constitution was the model constitution and reflected the mature, complete understanding of how to translate revolutionary theory into republican practice. The Federal Constitution was not the culmination of the "correct" understanding of popular sovereignty, but merely one version that ultimately produced a distinct constitutional tradition. An alternative vision, however, existed, survived, and gave coherence to a rather …

Whose Water Is It? Private Rights And Public Authority Over Reclamation Project Water, Reed D. Benson

Faculty Scholarship

The American West, for the most part, is an arid place. The average annual precipitation in the seventeen western states is twenty-one inches, but in many places is far less. Often there is too little water to go around, even in places such as Oregon that are ommonly believed to be wet.' Water is valuable everywhere because it is indispensable; it is even more precious in the West because it is scarce.

Restoring The Humanitarian Character Of U.S. Refugee Law: Lessons From The International Community, Jennifer Moore

Faculty Scholarship

This response essay will first characterize UNHCR's role in the international protection of refugees, as a means of assessing the relevance of UNHCR's perspective to U.S. judicial decision-making in the area of asylum. The paper will then respond to each of the three problematic issues which Professor Fitzpatrick identifies in contemporary U.S. asylum law, by presenting, in each case, a broad proposition of international law which will then be substantiated with reference to relevant principles, guidelines and insights from the international refugee protection community of which UNHCR is a part. Finally, the essay's conclusion will offer a possible rationale for …

Of 'Subtle Prejudices,' White Supremacy And Affirmative Action: A Reply To Paul Butler, Margaret E. Montoya

Faculty Scholarship

I analyze the connection of affirmative action to two models of race and racism. I contend that the Supreme Court Justices who continue to support affirmative action adhere to a "prejudice" model in which race is a concept to be overcome and racism is merely a condition of individual ignorance. 13 On the other hand, I posit that Professor Butler's proposals fall within a "white supremacy" model, which looks at race as a historically contingent concept that has been used to subordinate non-white peoples from precolonial times through the present. This historical perspective offers the possibility that the concept of …

Images Of Women And Capital Sentencing Among Female Offenders: Exploring The Outer Limits Of The Eighth Amendment And Articulated Theories Of Justice, Jenny E. Carroll

Faculty Scholarship

This Note explores the effect on women of this process of demarcating boundaries of unacceptable behavior within the context of a capital punishment system. Additionally, this Note explores the Eighth Amendment implications of these boundaries within capital jurisprudence. Part I examines the two most prominent theories put forth by feminist scholars to explain sentencing patterns among female capital offenders-the "chivalry theory" and the "evil woman" theory. These theories attempt to account for both the limited use of the death penalty for women and the presence of certain women on death row. In Part II, this Note considers the limited empirical …

Specialized Labor And Employment Law Institutions In New Zealand And The United States, Andrew P. Morriss

Faculty Scholarship

Legal specialization takes several forms: decision-makers and advocates can specialize in particular types of cases, specialized rules can govern particular types of disputes, facts may be found by experts, appeals heard by special courts, or some or all of these combined. The American and New Zealand employment and labor law regimes make different use of specialized decision-makers, in part because of differences in their use of specialized legal rules for labor and employment law. These differences provide an opportunity to assess the appropriateness of specialization in legal decisionmaking.

Specialization in the legal system is simply one form of the more …

Ending The Irs As We Know It: Thoughts From Outside The Beltway, J. Clifton Fleming Jr.

Faculty Scholarship

No abstract provided.

State Regulation Of Managed Care And The Employee Retirement Income Security Act, Wendy K. Mariner

Faculty Scholarship

The federal Employee Retirement Income Security Act (ERISA)1 is the federal law that governs employee-benefit plans offered by private employers and unions. ERISA has long hindered state efforts to expand access to health care, because it prohibits states from requiring all employers to offer benefits to their employees.2 States have shifted their attention from seeking universal insurance coverage for health care to regulating the benefits of people who already have health insurance. Reports describing how some managed-care organizations limit the care provided to their enrollees have prompted a rash of legislative efforts intended to protect patients from receiving …

Average Cost Basis And Compliance Complexity, Alan L. Feld

Faculty Scholarship

When the second Clinton administration submits tax recommendations to Congress in 1997, it probably will recycle some of the proposals it made earlier this year. One likely candidate concerns the determination of adjusted basis for substantially identical securities. This viewpoint gets a head start in evaluating the administration's proposal.

The federal income tax establishes a general framework for the taxation of profits from appreciation in investments. It allows investors to defer recognition of gain until a realization event occurs. If the investment property constitutes a capital asset and if the investor has held the property long enough, now more than …

Lending Discrimination: Economic Theory, Econometric Evidence, And The Community Reinvestment Act, Keith N. Hylton, Vincent D. Rougeau

Faculty Scholarship

Although it has been settled law for almost two decades, there has been a heightened interest in the Community Reinvestment Act (CRA) over the last several years. One factor driving this interest is the continuing economic decline of the inner cities and the consequent widening of the wealth gap between cities and surrounding suburbs in many areas of the country. A second factor is the consolidation of the banking industry, which has encouraged expansion-oriented banks to improve their CRA ratings to gain the approval of regulators. A recent effort to enhance enforcement of the statute, in part the result of …

Spectral Content And Dispersion Of Hyper-Rayleigh Scattering, S. F. Hubbard, Rolfe G. Petschek, Kenneth D. Singer

Faculty Scholarship

We have used a high-intensity tunable picosecond infrared laser source to measure the spectral content of light scattered near the second harmonic for two well-known organic dyes, p-Nitroaniline and Disperse Red 1, at a number of wavelengths in the near infrared. We found that in Disperse red 1 a broad two-photon fluorescence competes with the sharp hyper-Rayleigh peak. Further, dephasing of the virtual excited state leads to elimination of hyper-Rayleigh scattering in favor of fluorescence if the harmonic is in the linear absorption tail. We determined the dispersion of the magnitude of the first hyperpolarizability for both dyes, using a …

Property Law: 1996 Survey Of Florida Law, Ronald B. Brown, Joseph M. Grohma

Faculty Scholarship

No abstract provided.

A Year In Practice: The Journal Of A Reflective Clinician, Stacy Caplow

Faculty Scholarship

No abstract provided.

Principled Opinions: Response To Brickman, Susan P. Koniak

Faculty Scholarship

Professor Brickman is not pleased. Indeed, he is outraged, if the sound and fury of his article is to be taken at face value. He and twenty-five others, lawyers and legal educators, sent the American bar Association Standing Committee on Ethics and Professional Responsibility (the "Committee" or "Ethics Committee") a letter (the "Letter") asking for an opinion. They got one which Professor Brickman describes as "wrong as a matter of ethics law, malevolent as a matter of public policy, disingenuous in its presentation, unfounded it [its] critical assumptions ... and blatantly self-interested in elevating lawyers' financial interests above their traditional …

Rules, Story And Commitment In The Teaching Of Legal Ethics, Roger C. Cramton, Susan P. Koniak

Faculty Scholarship

The ABA requires each "approved" law school to provide each student "instruction in the duties and responsibilities of the legal profession." First adopted in August, 1973, in the midst of the Watergate disclosures, this requirement has never been interpreted and is infrequently referred to or enforced in the accreditation process. The professional responsibility requirement is the only substantive teaching requirement imposed by the ABA.

Should the ethics teaching requirement be scrapped? We consider that question in Part I. Although we ultimately conclude the rule should be maintained, we believe this fundamental question must be asked. Given the disdain many legal …

Under Cloak Of Settlement, Susan P. Koniak

Faculty Scholarship

In this Article, we discuss examples of class action settlements in which the conduct allegedly engaged in by class counsel-and in some instances by the defendants and their lawyers--could constitute a civil wrong or a criminal act under state or federal law, but a court nevertheless blessed the conduct by approving the settlement. We argue that the findings made by federal and state courts in blessing these settlements, namely, findings on the adequacy of class counsel, the lack of collusion between class counsel and the defendants, and the fairness of the settlement terms, should not immunize the conduct of the …

Comments Worth Making: Supervising Scholarly Writing In Law School, Elizabeth Fajans, Mary R. Falk

Faculty Scholarship

No abstract provided.

Does Low Surface Brightness Mean Low Density?, Stacy S. Mcgaugh

Faculty Scholarship

We compare the dynamical properties of two galaxies at identical positions on the Tully-Fisher relation, but with different surface brightnesses. We find that the low surface brightness galaxy UGC 128 has a higher mass-to-light ratio, and yet has lower mass densities than the high surface brightness galaxy NGC 2403. This is true for the gas surface density, the stellar surface density, and the total mass density. © 1996. The American Astronomical Society. All rights reserved.

Neighborhood Entrepreneurs Program In New York City, David Reiss

Faculty Scholarship

No abstract provided.

The Executive Power Of Constitutional Interpretation, Gary S. Lawson, Christopher D. Moore

Faculty Scholarship

It is emphatically the province and duty of the President to say what the law is, including the law embodied in the Federal Constitution. In the mid-1980s, a claim of this sort would have been received by the legal intelligentsia with some combination of bemusement and outrage. One would have heard, loudly and often, that it is the special province of the federal courts to declare the meaning of the Constitution, -Lnd that any attempt to question the judiciary's supreme interpretative role, especially in favor of an interpretative role for the President, was an attack on the rule of law …