Digital Commons Network^™

The Development Of Domestic Violence As A Field: Honoring Clare Dalton, Elizabeth Schneider, Cheryl Hanna

Faculty Scholarship

No abstract provided.

Envisioning Enforcement Of Freedom Of Association Standards In Corporate Codes: A Journey For Sinbad Or Sisyphus?, James J. Brudney

Faculty Scholarship

Since the 1970’s, multinational corporations (MNCs) in large numbers have adopted codes of conduct declaring their commitment to workers’ rights. These codes, however, do not require adherence to specific labor regulations or standards in a global setting. The MNC record on voluntary compliance has been discouraging, especially in labor-intensive industries like apparel, shoes, and toys, where a global supply chain of contractors effectively controls labor conditions. The persistent gap between aspiration and achievement regarding corporate codes has led to disagreement over their meaning and value. MNCs hope to be judged on the basis of the self-regulatory systems they have established. …

Taming The Beast Of Health Care Costs: Why Medicare Reform Alone Is Not Enough, Susan A. Channick

Faculty Scholarship

The Patient Protection and Affordable Care Act' ("ACA") has, as its primary goal, universal access to health insurance for all American citizens and legal residents. When fully implemented, the ACA will provide insurance to an additional 32 million people who are currently uninsured and to many millions of others who are underinsured. While universal health insurance is certainly a public health goal that this country has sought for many decades, the additional lives that will be added to the insurance rolls as well as new minimum coverage requirements mandated by the ACA will create fiscal burdens for the already expensive …

Equality Beyond The Three-Part Test: Exploring And Explaining The Invisibility Of Title Ix’S Equal Treatment Requirement, Erin E. Buzuvis, Kristine E. Newhall

Faculty Scholarship

It is clear from the proliferation of cases and complaints challenging programmatic disparities in school and college athletic programs that Title IX’s goal of equal treatment has not been fully realized. As the scholarship addressing equal treatment in athletics has been minimal, this Article is an effort to add to this scholarship in order to provide a greater understanding of equal treatment provisions. It examines why many school officials administer athletic departments in apparent oblivion to Title IX’s equal treatment mandate.

The Article provides the history of Title IX’s equal treatment provisions and their enforcement at the high school and …

The Role Of Race In End-Of-Life Care, Barbara A. Noah

Faculty Scholarship

This essay focuses on one important aspect of racial disparities that has received comparatively little attention in the legal literature--the existence and causes of racial differences in end-of-life decision making and in the utilization of palliative and hospice care. African Americans and other racial minorities in the United States utilize palliative care and hospice less frequently than white Americans. These minority populations also tend to resist advance care planning and instead opt to receive more life-prolonging care at the end of life, even when quality of life and prognosis are poor. After a lifetime of limited access to health care …

Including Transgender Athletes In Sex-Segregated Sport, Erin E. Buzuvis

Faculty Scholarship

The Author focuses her chapter on the varying degrees of trans inclusive policies found across the sport spectrum. Presently, private and public policy addressing participation by transgender athletes can be described on a spectrum of least to most inclusive. The Author’s chapter describes and evaluates different ways in which athletic associations and sport organizers are trying to accommodate transgender athletes into single-sex athletic teams. It ends with recommendations for advocacy to promote the inclusion of transgender athletes across all sports.

Illich, Education, And The Wire, Erin E. Buzuvis

Faculty Scholarship

This Article focuses on two texts—first, Illich’s 1971 "Deschooling Society," which calls for abolishing institutionalized education in favor of decentralized, personalized relationships that promote intentional learning; and second, The Wire’s fourth season, which is particularly focused on the exercise in futility that is the Baltimore public school system. Read together, these texts explore the problem of institutionalized education and the solution Illich proposes of intentional learning communities. But while both texts help us understand the shortfalls of institutionalized education, neither is particularly prescriptive when it comes to undoing the current state of affairs and weaning our society off of institutions, …

Noaa Cioert Report: Survey Of The Deep-Sea Coral And Sponge Ecosystem Of Pourtalés. Noaa Ship Nancy Foster Florida Shelf-Edge Exploration Ii (Flosee) Cruise Leg 2-September 23-30, 2011. (Noaa Project Number: Nf-11-09-Cioert)., John K. Reed, Stephanie Farrington, Andrew David, Charles G. Messing, Esther A. Guzman, Shirley A. Pomponi

Faculty Scholarship

In September 2011, a three week research cruise was conducted by the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute-Florida Atlantic University (HBOI-FAU) in collaboration with NOAA. This CIOERT Florida Shelf-Edge Exploration II (FLoSEE) Cruise was conducted in two legs using the NOAA Ship Nancy Foster and the University of Connecticut’s (UCONN) Kraken 2 ROV. This Preliminary Cruise Report is for Leg 2 of the cruise which was funded in part by the NOAA Deep Sea Coral Research and Technology Program (DSCRTP) which supported seven days of ROV time to explore and sample deep-sea …

Noaa Cioert Report: Survey Of The Pulley Ridge Mesophotic Reef Ecosystem. Noaa Ship Nancy Foster Florida Shelf-Edge Exploration Ii (Flosee) Cruise Leg 1-September 12-19, 2011., John K. Reed, Stephanie Farrington, Shirley A. Pomponi, Dennis M. Hanisak, Joshua Voss

Faculty Scholarship

In September 2011, a three week research cruise was conducted by the Cooperative Institute for Ocean Exploration, Research, and Technology (CIOERT) at Harbor Branch Oceanographic Institute-Florida Atlantic University (HBOI-FAU) in collaboration with NOAA. This CIOERT Florida Shelf-Edge Exploration II (FLoSEE) Cruise was conducted in two legs using the NOAA Ship Nancy Foster and the University of Connecticut’s (UCONN) Kraken 2 ROV. CIOERT is grateful for the funding and resources provided by the NOAA Office of Ocean Exploration and Research (OER), the NOAA Deep Sea Coral Research and Technology Program (DSCRTP), and the NOAA Office of Marine and Aviation Operations (OMAO) …

Federal/State Tensions In Fulfilling Medicaid’S Purpose, Laura Hermer

Faculty Scholarship

Medicaid has been subject to reconsiderations of the proper role of government in providing for the health and welfare of populations over recent decades. Over the last decade in particular, a number of states have transferred many functions that they once performed to private entities, including, in a number of cases, express policymaking functions. The Patient Protection and Affordable Care Act (ACA) takes some crucial steps towards readjusting the equilibrium of Medicaid. Rather than further prioritizing the market in its reforms, it gives the federal government stronger charge of Medicaid policy, refocusing the program more directly on expanding eligibility and …

The "Silent But Gifted" Law Student: Transforming Anxious Public Speakers Into Well-Rounded Advocates, Heidi K. Brown

Faculty Scholarship

No abstract provided.

Three Principles For Federal Housing Policy, David Reiss

Faculty Scholarship

No abstract provided.

Protected By Association? The Supreme Court’S Incomplete Approach To Defining The Scope Of The Third-Party Retaliation Doctrine, Jessica Fink

Faculty Scholarship

For decades, courts have struggled with how to treat claims of "third-party retaliation"- situations where one employee engages in some protected activity for purposes of Title VII but where the employer retaliates not against that employee, but rather against one of her coworkers-her spouse, or sibling, or mere workplace acquaintance. With its January 2011 decision in Thompson v. North American Stainless, LP, the U.S. Supreme Court finally has weighed in on this issue, deeming employees protected against third-party retaliation under Title VII.

This Article stands as one of the first in-depth examinations of Thompson and its potential impact on both …

A Modest Proposal: The Aged Of Death Row Should Be Deemed Too Old To Execute, Elizabeth Rapaport

Faculty Scholarship

My exploration of the case for an Eighth Amendment bar against executing the long-serving elderly will begin with a review of the representation of the elderly on Americas death rows and a survey of the very limited avenues of relief currently available to them on the basis of age. I will then discuss the attribution problem by asking at whose door should 'fault' for long delays between condemnation and consummation of a capital sentence be laid--the prisoner, the state, or the working through of due process? For many jurists, attribution of fault is critical to resolving the question of whether …

Remediating Discrimination Against African American Females At The Intersection Of Title Ix And Title Vi, Alfred Dennis Mathewson

Faculty Scholarship

In Part I, I present a brief treatment of intersectionality in anti-discrimination law focusing on the distinction between cause of action and remedy. Harm caused by gender or racial discrimination may give rise to causes of action based on equal protection principles." In Part II, I go further and argue that the primary intersectionality problem presented by Title IX is one of remedy. I conclude that the differences in the remedial effects of Title IX result, in part, from unremedied racial discrimination, a conclusion that begins with Professor Jerome Dees's argument that Brown v. Board of Education and anti-discrimination laws …

Performance Isn't Everything: The Importance Of Conceptual Competence In Outcome Assessment Of Experiential Learning, Serge A. Martinez, Stefan H. Krieger

Faculty Scholarship

This article scrutinizes—and ultimately rejects—the recommendations of the Carnegie Report for outcome assessments in experiential legal education. The Carnegie Report argues that practical education should focus on teaching students to mimic the actions of expert lawyers by encouraging students to follow expert protocols, procedures, rules, and checklists that can enable them to deal effectively with lawyering situations. To the contrary, however, an extensive body of cognitive science and neuroscienceresearch on the development of expertise questions the theoretical underpinnings of the Carnegie Report and suggests that educators should focus not on what experts are doing but on what they are thinking …

North American Border Wars: The Role Of Canadian And American Scholarship In U.S. Labor Law Reform Debates, Michael J. Zimmer, Susan Bisom-Rapp

Faculty Scholarship

The economies of Canada and the United States and the organization of their societies are deeply interrelated but significant differences exist. This article briefly traces the interaction between the two countries in the development of labor relations laws with a particular emphasis on the impact of scholarly work on U.S. labor law reform debates in the last two decades. Instructive for that purpose is the work of Professor Paul Weiler, a prominent figure in labor law policy discussions in both countries. A significant architect of labor law in Canada, Professor Weiler came to Harvard Law School in 1978 and brought …

Scaling The Patent System, Christina Mulligan, Timothy B. Lee

Faculty Scholarship

No abstract provided.

High-Interest Loans And Class: Do Payday And Title Loans Really Serve The Middle Class?, Ernesto A. Longa, Nathalie Martin

Faculty Scholarship

Most of us would never dream of paying 300-600% per annum for a loan. Yet every year between two and four percent of the U.S. population does just that, by taking out a high-cost credit product such as a payday loan. Others take out expensive title loans. What would you expect the general demographic characteristics of the payday and title loan users to be? Would they be primarily middle-income Americans or people closer to the poverty level? Would they be primarily homeowners or renters? This article describes the demographic characteristics of high-cost loan users by reporting on studies done by …

Punishing Disloyalty?: Treason, Espionage, And The Transgression Of Political Boundaries, Youngjae Lee

Faculty Scholarship

This Article examines the idea of betraying or being disloyal to one’s own country as a matter of criminal law. First, the Article defines crimes of disloyalty as involving failures to prioritize one’s own country’s interests through participating in efforts to directly undermine core institutional resources the country requires to protect itself or otherwise advance its interests by force. Second, this Article canvasses various potential arguments for the existence of a duty not to be disloyal to one’s own country and argues that they fail. Finally, this Article argues that we should interpret the wrong of disloyalty crimes as involving …

Changing The Conversation In Education Law: Political Geography And Virtual Schooling Book Review Essay, Aaron J. Saiger

Faculty Scholarship

In Five Miles Away, A World Apart, James E. Ryan concludes that the educational reforms of the hour, school accountability and school choice, will exacerbate rather than undermine the systematic educational advantages enjoyed by wealthier Americans. Paul Peterson, in his Saving Schools, argues that increasingly centralizing American schools have become sufficiently centralized that, as a labor-intensive industry, few productivity gains are available from governance reform, even as demand escalates for the customization of education to individual needs. Both volumes therefore pin their hopes for change upon political geography-the relationship between people and educational institutions in space. Ryan argues that changing …

Women Religious In A Changing Urban Landscape: The Work Of Catholic Sisters In Metropolitan Cleveland, Robert L. Fischer, Jennifer Bartholomew

Faculty Scholarship

In many communities, women religious play a vital role in addressing the needs of the poor, neglected, and vulnerable members of society. Catholic Sisters have long been active in the areas of education, health care, outreach, and advocacy in northeast Ohio. In high-poverty urban areas such as Cleveland, women religious continue to provide essential services, support, and spiritual guidance. The experience in Cleveland is relevant to other cities where the population has shifted from an urban center to suburban areas, leaving inner-city churches with declining membership and support. Survey data collected from 164 Catholic Sisters from fifteen religious orders in …

Do You Have A Conscience?, Jeremy Bendik-Keymer

Faculty Scholarship

“Do you have a conscience?” There was a time when this would have been a question that was immediately intelligible to people, like asking whether a person holding a ball can throw it. For much of the history of philosophy—that ancient Greek invention—the name for what allows one to stay in touch with moral principles in the midst of particular decisions was “conscience” (Langston 2001). To ask whether I have a conscience was tantamount to asking whether I can keep my decisions moral, whether I was capable of being a mature human being. Since morality is the domain of duties …

The Micro And Macro Causes Of Prison Growth, John F. Pfaff

Faculty Scholarship

No abstract provided.

Broadband Localism, Olivier Sylvain

Faculty Scholarship

Today, local governments are supplying broadband service to residents to fill the service gap left by major providers. Municipalities are joining forces with local anchor institutions and private providers to close the digital divide and incubate novel public-minded service models. This is the new broadband localism. Some stakeholders fear that local public participation in the broadband market will negatively impact competition. They have articulated this concern in state legislation across the country: nineteen states forbid or otherwise restrict municipal ownership or administration of broadband and three may enact similar restrictions this year. No matter the substantive policy merits of such …

The Virtue Of Low Barriers To Becoming A Lawyer: Promoting Liberal And Democratic Values [With Sinna Nasseri], Russell G. Pearce, Sinna Nasseri

Faculty Scholarship

This article offers a new perspective on how to determine whether barriers to practicing law are appropriate. It identifies a connection between those barriers and the role of legal services providers (‘lawyers’) in permitting individuals to obtain their basic political and economic rights in a liberal democracy. Democratic values require making legal services as equally available as possible to all citizens, while liberal values dictate that each individual has access in order to enforce human rights, compete in a market economy, and engage in a legal system grounded in the rule of law. Liberal and democratic values therefore require the …

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

Response: One Market We Do Not Need, Giovanna Shay

Faculty Scholarship

The Author responds to Alexander Volokh’s, Prison Vouchers, 160 U. Pa. L. Rev. 779 (2012). She argues that Professor Volokh is right that American prisons are considered to be “low quality,” and that they suffer from “high violence rates, bad medical care, [and] overuse of highly punitive measures like administrative segregation . . . .” But his proposed solution—a system of “prison vouchers” that would permit prisoners to choose their facilities and thus create a market for prison services—would provide only an illusion of choice. Even worse, such a system runs the risk of strengthening the self-interested forces that drive …

Exhausted, Giovanna Shay

Faculty Scholarship

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer’s Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this Article argues that Justice Breyer’s concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with …

Illich (Via Cayley) On Prisons, Giovanna Shay

Faculty Scholarship

This Article considers whether, more than a dozen years after publication of Cayley’s book "The Expanding Prison: The Crisis in Crime and Punishment and the Search for Alternatives," Illich’s theories help us to make sense of America’s “prison-industrial complex.” The Author concludes that our current situation reflects in part the dynamics of his theory of “counterproductivity,” but that Illich did not take sufficient account of the salience of race and class in American criminal punishment.