Digital Commons Network^™

Financial Industry Self-Regulation: Aspiration And Reality, Steven L. Schwarcz

Faculty Scholarship

This essay on financial industry self-regulation responds to Professor Saule Omarova’s recent article on that topic, Wall Street as Community of Fate: Toward Financial Industry Self-Regulation, 159 U. PA. L. REV. 411 (2011).

The New Old Legal Realism, Mitu Gulati, Tracey E. George, Ann Mcginley

Faculty Scholarship

Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …

Transgender Student-­Athletes And Sex-­Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, Erin E. Buzuvis

Faculty Scholarship

This Article discusses the discrimination of transgender students who may be excluded, discouraged, or simply made to feel uncomfortable participating in athletic programs for their natal sex, by the sex-segregated world of athletics. The Author believes that until sports' governing bodies develop and enforce policies of inclusion, transgender students will continue to be denied access to and the benefits of athletic participation. The Author examines the values that should go into the formation of such policies, including legal, medical and educational concerns. Part I of the Article puts transgender students' athletic participation in context by examining educational athletic's deep and …

The Challenge Of Temporary Work In Twenty-First Century Labor Markets: Flexibility With Fairness For The Low-Wage Temporary Workforce, Harris Freeman, George Gonos

Faculty Scholarship

As the Commonwealth wrestles with the social and economic aftershocks of the worst economic recession in 80 years, the widespread use of temporary staffing arrangements is a sober reminder that the “standard” employment relationship, a cornerstone of the prosperity of the post-­World War II era, is no longer available to a large segment of the American workforce. “Job ladders” have disintegrated, depriving capable and dedicated workers of predictable promotions. Regular step increases in pay and cost-­of-­living adjustments are in many occupational categories a thing of the past. Simply put, the “good jobs” working people need to support families, pay the …

Criminalized State: The International Criminal Court, The Responsibility To Protect, And Darfur, Republic Of Sudan, Matthew H. Charity

Faculty Scholarship

The international community continues to struggle with the question of what to do when a nation fails to protect its own people from systemic neglect, mistreatment, or even genocide. For many years, this debate pitted proponents of humanitarian intervention by a third-party against those who believe that all others must defer to the sovereign right of the state to control its own affairs and the affairs of its people. In the midst of this debate, the international community has adopted a middle road: insisting that states must acknowledge their responsibility to protect their populations and if the state manifestly fails …

Caster Semenya And The Myth Of A Level Playing Field, Erin E. Buzuvis

Faculty Scholarship

In August of 2009, policies and procedures to verify the sex of female athletes were called into question when South African runner Caster Semenya
won the 800 meter event of the World Championships in Berlin. Responding to rumors of gender fraud, and fueled by Semenya’s speed, musculature, and deep voice, the International Association of Athletics Federations (IAAF) requested that Semenya submit to sex verification to confirm her eligibility for the women’s division.

This Article discusses the International Olympic Committee's (IOC) policy on sex testing, the myth of sex-verification testing, and the myth of the level playing field. It concludes with …

Victimized Twice: The Reasonable Efforts Requirement In Child Protection Cases When Parents Have A Mental Illness, Jeanne M. Kaiser

Faculty Scholarship

State child protection agencies are required by federal law to exert reasonable efforts to keep families together before seeking termination of parental rights. Some states, however, have created an exception to this requirement when the parent involved suffers from a chronic mental illness. Moreover, even in those states that enforce the requirement, the reunification services provided to parents with a mental illness often do not meet the needs of those parents.

This Article argues that although parents with a mental illness face serious challenges in caring for their children, they should not be categorically excluded from reunification efforts by means …

The Rising Bar For Persecution In Asylum Cases Involving Sexual And Reproductive Harm, Fatma E. Marouf

Faculty Scholarship

This Article argues that there is a rising bar for establishing persecution in U.S. asylum cases involving sexual and reproductive' harm. Analyzing recent cases, the Article shows that adjudicators tend to apply a higher standard for physical harm in these types of cases and largely overlook nonphysical harm, including psychological suffering and the intangible harm caused by deprivation of equality, autonomy, and privacy. The Article focuses specifically on two types of cases where these patterns appear: (1)female genital mutilation (FGM); and (2) involuntary insertion of an intrauterine device (IUD). Regarding FGM, the Article discusses an emerging dispute as to whether …

In The Name Of Watergate: Returning Ferpa To Its Original Design, Mary Margaret Penrose

Faculty Scholarship

This article seeks to proffer an improved definition for “education records” without altering the legislation's original design. Part I provides a historical account of Watergate's climate to illustrate why privacy rights blossomed during the 1970s and provided an atmosphere conducive to the passage of FERPA. Part II details FERPA's legislative history. Part III presents the statute's current definition of “education records” and evaluates how courts interpret FERPA. Part IV suggests a modernized definition that considers the computerization of education and, correspondingly, education records. The section begins with a comparison of FERPA and the Privacy Act of 1974. Thereafter, it exposes …

The “Non-Cumulation Clause”: An “Other Insurance” Clause By Another Name, Chris French

Faculty Scholarship

How long-tail liability claims such as asbestos bodily injury claims and environmental property damage claims are allocated among multiple triggered policy years can result in the shifting of tens or hundreds of millions of dollars from one party to another. In recent years, insurers have argued that clauses commonly titled, “Prior Insurance and Non-Cumulation of Liability” (referred to herein as “Non-Cumulation Clauses”), which are found in commercial liability policies, should be applied to reduce or eliminate their coverage responsibilities for long-tail liability claims by shifting their coverage responsibilities to insurers that issued policies in earlier policy years. The insurers’ argument …

Joining Or Changing The Conversation - Catholic Social Thought And Intellectual Property, Frank Pasquale

Faculty Scholarship

No abstract provided.

Nonbelievers, Nelson Tebbe

Faculty Scholarship

No abstract provided.

A Tale Of Two Decades: War Refugees And Asylum Policy In The European Union And The United States, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

The 2x2 Matrix Of Tort Reform's Distributions, Anita Bernstein

Faculty Scholarship

No abstract provided.

Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin

Faculty Scholarship

The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory, structural and institutional …

Crumbling Infrastructure, Crumbling Democracy: Infrastructure Privatization Contracts And Their Effects On State And Local Governance, Ellen Dannin

Faculty Scholarship

Key arguments for privatizing public infrastructure range from providing money so cash-strapped governments can fix crumbling infrastructure and build much needed new infrastructure to shifting future financial risk from the public to a private contractor. The reality, though, is far different. Provisions commonly found in infrastructure privatization contracts make the public the guarantor of private contractors' expected revenues. Indeed, were it not for provisions that protect contractors from diminution of their expected returns, the contracts would be far shorter and much less complex. An effect of those contract provisions is to give private contractors a quasi-governmental status with power over …

Confidentiality Explained: The Dialogue Approach To Discussing Confidentiality With Clients, Elisia M. Klinka, Russell G. Pearce

Faculty Scholarship

Many lawyers lie to their clients by saying, “Everything you tell me is confidential” despite the existence of some rules that require lawyers to disclose client confidences and others that permit lawyers to disclose confidences to protect themselves or collect fees. In an effort to encourage clients to speak honestly, a number of commentators urge lawyers to provide either a general or specific notice of the exceptions to confidentiality. This Article offers a different approach. It seeks to promote an honest and open dialogue between lawyer and client that will create a relationship of mutual trust and will make it …

Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky

Faculty Scholarship

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …

Renaissance Or Retrenchment: Legal Education At A Crossroads, Lauren Carasik

Faculty Scholarship

This Article begins to synthesize the literature criticizing the current state of legal education with the scholarship proposing solutions, and argues that whatever review is undertaken must be expansive, with a careful and critical look at how each piece supports the endeavor. None of the ideas discussed, taken alone, are novel, as scholarship abounds on all of the topics. Considered together, the analysis suggests that a comprehensive and holistic approach to reform is necessary. In essence, the goal is to catalyze a wholesale reconsideration of the very foundation of legal education. Many of the seemingly disparate themes comprise a Gordian …

Double-Edged Paring Knives: Human Rights Dilemmas For Special Populations, Giovanna Shay

Faculty Scholarship

The United States makes up only 5 percent of the world's population, but it incarcerates 25 percent of the globe's prisoners. This unprecedented level of incarceration has brought increased attention to the problems of particular subsets of prisoners sometimes called "special populations." These groups include female prisoners; lesbian, gay, bisexual, transgender (LGBT), and questioning inmates; older prisoners; and prisoners with mental illness and physical disabilities. This Article discusses human rights dilemmas in the treatment of special populations in prison.

The Article surveys ABA Standards and Resolutions that bear on special populations. While ABA Standards do not have the force of …

Environmental Review Of Western Water Project Operations: Where Nepa Has Not Applied, Will It Now Protect Farmers From Fish?, Reed D. Benson

Faculty Scholarship

The U.S. Bureau of Reclamation operates hundreds of dams in seventeen western states, and storage and release of water at these dams often causes serious environmental impacts. In operating these dams, however, the Bureau has largely been excused from complying with the environmental review requirements of the National Environmental Policy Act. This article explains and analyzes relevant NEPA cases involving these Bureau projects, and argues that the Bureau may want to conduct NEPA reviews for project operations even if they are not legally required. It also describes and critiques District Judge Oliver Wangers recent decisions applying NEPA to the Bureau's …

A Crisis Of Confidence And Legal Theory: Why The Economic Downturn Should Help Signal The End Of The Doctrine Of Efficient Breach, Dawinder S. Sidhu

Faculty Scholarship

To understand subprime behavior and efficient breaches, it is imperative to first examine the necessary social predicate for economic transactions. Accordingly, Part I will offer an overview of society and the market, highlighting the importance of reciprocity and trust to both. Part II will define the economic transactions implicated by this Article: basic contracting, efficient breach of contract, and the subprime behavior of the current economic crisis. Part III will make explicit the nexus between subprime behavior and efficient breaches by explaining that subprime behavior and efficient breaches are linked by shared elements; they are opportunistic in nature, are interested …

Too Hot To Handle: Climate Change And Agricultural Water Use, Denise D. Fort

Faculty Scholarship

The world faces enormous challenges in responding to looming crises in food and water. Responding to this challenge will require flexibility; such flexibility may be impeded by legal institutions. This paper looks at the western United States and discusses the role of irrigated agriculture in that region. Because of climate change, a growing population, declining groundwater, the need to protect ecosystems and other conflicts, the author suggests that all water uses, including long-standing agricultural water rights, need to be examined in light of these changes. Legal systems have tended to serve the status quo, but perhaps the law can help …

Wilkes V. Springside Nursing Home, Inc.:The Backstory, Eric J. Gouvin

Faculty Scholarship

As it appears in most casebooks, the Wilkes v. Springside Nursing Home, Inc. case tells the story of a falling-out among the shareholders in a closely-held corporation and the resulting freeze-out of one of the owners, Mr. Stanley Wilkes. The opinion indicates that the heart of the dispute arose out of Mr. Wilkes’s refusal to allow the sale of a piece of corporate property (the “Annex” at 793 North Street) to one of the other shareholders, Dr. Quinn, at a discount. In real life, that transaction did indeed cause a significant rift in the shareholders’ relationship, but, as this article …

Responding To Our Own Transgressions: An Experimental Writing Study Of Repentance, Offense Rumination, Self-Justification, And Distraction, Charlotte Witvliet, Nova G. Hinman, Julie J. Exline, Timothy Brandt

Faculty Scholarship

This between-subjects experiment focused on offender responses to their past interpersonal transgressions in self-identified Christian undergraduates (55 M, 85 F). Participants completed pre-post measures for one of four randomly assigned 20-minute writing conditions: repentance (i.e., writing about constructive sorrow, apology, restitution, behavior change), offense rumination (i.e., negative wallowing), self-justification (i.e., externalizing blame, minimizing costs), or distraction (i.e., daily details). Offense rumination and repentance writing included the most cost-oriented language; rumination had the most negative emotion language. Mixed within (pre vs. post) X between group ANOVA interactions yielded theoretically meaningful results. Repentance reduced self-condemnation and regret while increasing conciliatory motivations toward …

Deterring Serious And Chronic Offenders, Thomas A. Loughran, Alex R. Piquero, Jeffrey A. Fagan, Edward P. Mulvey

Faculty Scholarship

This chapter examines ways of deterring serious and chronic offenders based on evidence from the Pathways to Desistance Study, which addresses the issue of perceptions of deterrence and looks into the mechanisms of deterrence for serious offenders. After a brief overview of the Pathways study, the chapter reviews empirical evidence that demonstrates the rationality of high-risk adolescents regarding involvement in crime. It argues that offenders take into account rational-choice perceptions in their offending decisions and goes on to discuss the elasticity and malleability of these perceptions, and whether adolescent offenders act differently when they change risk and cost perceptions. It …

Baum Lecture 2010, Lee C. Bollinger

Faculty Scholarship

As part of the Baum Lecture Series at the University of Illinois College of Law, Columbia University President Lee C. Bollinger delivered a lecture on September 14, 2010, on the essential role of a global free press in providing the information needed to understand the many problematic issues we face as a result of globalization. In this presentation, President Bollinger addressed the challenges of maintaining high-quality institutions of American journalism with an international reporting capacity in the face of rapidly changing market forces. He further discussed America’s interest in seeing the rise of a free and independent press in nations …

The United States Supreme Court: An Introduction, Bert I. Huang

Faculty Scholarship

The Supreme Court of the United States has always occupied a center place in the comparative study of judicial institutional design and the role of courts. In this roundtable discussion, National Taiwan University College of Law is honored to have Professor Bert I. Huang from Columbia Law School, United States, who had served as the law clerk of Supreme Court Justice David H. Souter, to unveil the ways that the U.S. Supreme Court functions by introducing the certiorari process and the system of law clerks. Based on his own experience, Professor Huang provides his insight on the institution of law …

Building Pathways Of Possibility From Criminal Justice To College: College Initiative As A Catalyst Linking Individual And Systemic Change, Susan P. Sturm, Kate Skolnick, Tina Wu

Faculty Scholarship

Across the United States, communities, especially marginalized and low income communities, face challenges resulting from the “school-to-prison pipeline”—a continuum of conditions increasing the probability that people from such marginalized communities, particularly black men, will find themselves in prison rather than college.1 Dismantling this pipeline has become a significant national focus of advocates and policy makers. In New York City, a network has emerged in the last ten years to focus on building a new pipeline from criminal justice to college. This network focuses on rebuilding the lives of the over 70 thousand people who have fallen into the school-to-prison pipeline. …

In Memoriam: William J. Stuntz, Pamela S. Karlan, Michael J. Klarman, Martha Minow, Daniel C. Richman, Robert E. Scott, David Skeel, Carol Steiker

Faculty Scholarship

Bill made a lot of errors in his articles. I know that, because he told me so, often in graphic detail, sometimes years after writing them; sometimes days. As anyone familiar with Bill or his work knows, this sort of harsh self-criticism bespeaks not any laxity or insouciance on Bill’s part, or even a false modesty, but rather an intense commitment to intellectual rigor, and (even more astounding for a legal academic) actually “getting it right.”