Digital Commons Network^™

Adoption, Identity, And The Constitution: The Case For Opening Closed Records, Naomi R. Cahn, Jana B. Singer

Faculty Scholarship

No abstract provided.

Toward A Global Critical Feminist Vision: Domestic Work And The Nanny Tax Debate, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

From Property To Personhood: What The Legal System Should Do For Children In Family Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Dreiser's Real American Tragedy, Kathryn M. Plank

Faculty Scholarship

No abstract provided.

Ali To Flood To Marshall: The Most Triumphant Of Words, Alfred Dennis Mathewson

Faculty Scholarship

I am honored to participate in this commentary on the Curt Flood Act of 1998.1 I shall not, however, provide a detailed analysis of its provisions. Instead I Will reflect upon my reactions to the Act. To be honest, I am disappointed. Negotiated by the Major League owners and the Major League Baseball Players Association through collective bargaining and modified by Congress, the Act is certain to become a staple of legislative drafting courses for decades. As others in this commentary may have stated, it is as notable for what it purports to do as for what Congress purports it …

Reflections On A Rose In Its Sixth Season: A Review Of H. Jefferson Powell’S The Moral Tradition Of American Constitutionalism, Randy Lee

Faculty Scholarship

No abstract provided.

Entrenching Interests: State Supermajority Requirements To Raise Taxes, Max J. Minzner

Faculty Scholarship

At the opening of the 104th Congress, the new Republican majority imposed the first supermajority requirement "limited to particular cases" in the history of Congress. The unanswered question is whether the Rule is a good idea, particularly whether this Rule is well designed. The states have extensive experience with supermajority requirements for tax increases. This article attempts to answer the question of supermajority design. If alterations in the tax code are to be restricted, how should they be limited? To what type of bills should a supermajority requirement apply? At what level should the requirement be implemented? When and how …

From Nation State To Failed State: International Protection From Human Rights Abuses By Non-State Agents, Jennifer Moore

Faculty Scholarship

In her seminal 1951 work The Origins of Totalitarianism, the political philosopher Hannah Arendt examined historical developments in Europe during the period between the two World Wars and declared that "the transformation of the state from an instrument of the law into an instrument of the nation had been completed." While Arendt focused on threats to individual and minority rights posed by the repressive "nation-state," her critique also identified the complicity of an international legal system that accorded undue deference to sovereign prerogative. The collapse of the League of Nations, the ascendancy of the Nazi Party in Germany, and the …

[On The] Road Back In: Community Lawyering In Indigenous Communities, Christine Zuni Cruz

Faculty Scholarship

The idea of professional success,especially in the elite legal profession, as being closely linked to community or having corresponding value to the community has directly affected my view of individual lawyering. Excerpts reprinted in: Social Justice: Professionals, Communities and Law, 11 (Mahoney, Calmore, Wildman, eds., 2003); Lawyers Ethics and The Pursuit of Social Justice and Ethics 201 (Susan D. Carle, ed., 2005); Clinical Anthology, Readings for Live-Client Clinics, (2d Ed., A.J. Hurder, et al., eds., 2011).

Introduction: Latcrit Theory: Mapping It's Intellectual And Political Foundations And Future Self-Critical Directions, Margaret E. Montoya

Faculty Scholarship

The third annual gathering of LatCrit scholars has resulted in this cluster of essays and articles that continue the work of defining the foundations and the future directions of this legal scholarship movement. As described in some of the articles within this cluster, LatCrit has had the benefit of learning valuable lessons from other slightly older schools of critical legal theory, most particularly from the Critical Race Theory ("CRT") Workshop. The LatCrit movement has been strengthened because scholars identified primarily with CRT working with and alongside scholars identified primarily with LatCrit have struggled to recognize, name and address the hetero-normativity …

Gagged But Not Bound: The Ineffectiveness Of The Rules Governing Judicial Campaign Speech, Max J. Minzner

Faculty Scholarship

This article argues that while the text and the history of the gag rule would seem to indicate that implied commitments are prohibited, candidates have a wide variety of methods available to signal voters how they might decide cases if they reach the bench. Courts have failed to recognize the importance of limiting speech other than traditional policy promises due to a failure to adequately consider the most important motivating factor behind the gag rule: providing litigants impartial adjudication. Because courts have not made this the primary consideration in the gag rule cases, speech occurs in campaigns that would otherwise …

The American Tradition Of Language Rights, ¡Que Viva Texas!: The Forgotten Right To Government In A “Known Tongue”, Jose R. "Beto" Juarez

Faculty Scholarship

No abstract provided.

Confessions And Culture: The Interaction Of Miranda And Diversity, Floralynn Einesman

Faculty Scholarship

No abstract provided.

Social And Legal Repercussions Of Latinos' Colonized Mentality, Laura M. Padilla

Faculty Scholarship

This essay begins by defining internalized oppression and racism and exposing the harms they cause. It dissects the reasons we engage in internalized racism and explains how once exposed, it will be easier to engage in a conscious effort to eradicate internalized racism. It will then describe how the intersectionality of internalized oppression and racism is expressed in the Latino community. The essay will then re-imagine Latino identity without internalized oppression and racism. It will include ideas on how to overcome internalized oppression and racism generally, both at the corporate and individual levels. The essay concludes that exposing internalized oppression …

Supervisory Liability In Section 1983 Cases, Kit Kinports

Faculty Scholarship

The topic of this presentation is supervisory liability in Section 1983 cases. Assume for present purposes that a plaintiff's constitutional rights have been violated - that some state official has acted in violation of the Constitution. The question to be addressed here is whether that state official's supervisors can be held liable for damages stemming from the constitutional violation.

Rationing Justice—What Thomas More Would Say, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Forum Shopping For Human Rights, Laurence R. Helfer

Faculty Scholarship

The article analyzes a growing trend in international human rights law: the submission of petitions by aggrieved individuals to multiple human rights courts, tribunals, or treaty bodies, each of which is authorized to review the petition and to determine whether the individuals? rights have been violated. Most commentators have viewed this practice of "forum shopping for human rights" as a danger to be avoided. This article questions that conventional wisdom and offers in its place a re-envisioning of the human rights petition system. Although efficiency, finality and other concerns weigh against some varieties of duplicative review, this article argues that …

Child Support Policy: Guidelines And Goals, Marsha Garrison

Faculty Scholarship

No abstract provided.

Codification And Right Answers, Andrew P. Morriss

Faculty Scholarship

Attempting to survey the entire sweep of the nineteenth-century American codification debate is well beyond the scope of this article. Here, I will concentrate on what I view to be the most interesting portion—the debate provoked by draft codes prepared by David Dudley Field for New York during the 1860s. Field's drafts formed the basis for the codes ultimately adopted in Dakota Territory, California, and Montana as well as sparking years of often heated debate in New York.

I concentrate on the debate over the Field Codes, to the exclusion of the successful codifications in Georgia and Louisiana and unsuccessful …

More Lessons From The Laboratories: Cy Pres Distributions In Parens Patriae Antitrust Actions Brought By State Attorneys General, Susan Beth Farmer

Faculty Scholarship

The structure of the article is outlined in the Table of Contents. First, the article introduces a problem - the denial of an effective remedy for consumers overcharged by antitrust conspiracies, then it describes the legislative solution and identifies the unintended consequences that followed. Next, it proposes two alternative means to resolve the newly discovered issue and, finally, structures a proposed test for courts seeking to order the most efficient and effective remedy for consumers in these cases. The article explains that the Hart-Scott-Rodino Antitrust Improvements Act was adopted to fill a gap in antitrust remedies, which had made treble …

Towards A Centralized Perfection System For Cross-Border Receivables Financing, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

The Police-Ization Of The Military, Charles J. Dunlap Jr.

Faculty Scholarship

This essay will briefly review the background of the use of the armed forces in a police capacity, discuss the growth of that role in the I980s and 1990s, and forecast an even greater expansion into that role in the near future due to the emerging threat of "catastrophic terrorism." It will contend that this increased reliance on military resources for policing is not in the interest of either the armed forces or the public. Finally, it will make some observations with a view towards minimizing the dangers of police-ization of the military while ensuring the Nation's public safety.

Can The Legal System Use Experts On Meaning?, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Contribution Of The Fund Profile To Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

The New-Tort Centrifuge, Anita Bernstein

Faculty Scholarship

No abstract provided.

What Europe, Japan And Other Countries Can Learn From The New American Restatement Of Products Liability, Aaron Twerski, J. A. Henderson

Faculty Scholarship

No abstract provided.

Intermediate Sanctions: Controlling The Tax-Exempt Organization Manager, Alex Ritchie

Faculty Scholarship

On August 4, 1988, the Department of the Treasury issued proposed intermediate sanctions regulations that allow the Internal Revenue Service to impose significant excise taxes on executives of tax-exempt organizations who receive compensation in excess of reasonable compensation or in excess of amounts that would ordinarily be paid for like services by like enterprises. Exempt organization theory holds that government provides a tax exemption to further social goals, but those goals are frustrated when management has conflicting incentives. In a for-profit entity, management and firm owners have conflicting goals when control is separated from ownership, but in a tax-exempt entity, …

Testimony, Antoinette M. Sedillo Lopez

Faculty Scholarship

No abstract provided.

Trends In The Regulation Of Investment Companies And Investment Advisers, Tamar Frankel

Faculty Scholarship

Statutes, rules and enforcement actions are tea leaves we can read to predict future trends of mutual fund regulation. While statutes and rules are specific, the trends they signify are far more speculative. This Essay engages in such speculation to envision the long-term implications of the recent new N- 1A disclosure form, I the plain English Rule,² and the profile. ³ More generally, the Essay speculates on future trends in Securities and Exchange Commission ("Commission") enforcement, and predicts a continued and stronger use of informal enforcement by the Commission.

Progressing Towards A Uniform Commercial Code For Electronic Commerce Or Racing Toward Nonuniformity?, Maureen A. O'Rourke

Faculty Scholarship

The Magaziner Report encourages the development of a consistent commercial law environment against which electronic commerce transactions may take place. The author considers the current legal landscape, noting that while many efforts are underway to codify aspects of electronic commerce, these efforts are piecemeal in nature and may lead to the very lack of uniformity against which the Magaziner Report counsels. The author then briefly considers what lessons may be learned from the drafting history of the original U.C.C. as well as proposed Article 2B (now the Uniform Computer Information Transactions Act) governing transactions in computer information. She argues that …