Digital Commons Network^™

Reforming Divorce: What's Needed And What's Not, Marsha Garrison

Faculty Scholarship

No abstract provided.

Giving Millennials A Leg-Up: How To Avoid The If I Knew Then What I Know No Syndrome, Leslie Larkin Cooney

Faculty Scholarship

While it may not be possible for law schools to train students completely within three years for the practice of law, we can come much closer to this goal and make the transition to professional life an easier and more productive one. This article explores the common traits of members of the generation comprising today's law students who prefer the label Millennial to others because of their expressed wish not to be associated with Generation X. The article discusses ways to enhance clinical education and teach lifelong learning skills so students can continue developing their problem solving expertise long after …

Chimeras: Double The Dna - Double The Fun For Crime Scene Investigators, Prosecutors, And Defense Attorneys?, Catherine Arcabascio

Faculty Scholarship

This article first explores the mythological origins of the term "chimera." It then explores the causes and scientific explanations of chimerism and the various conditions covered by the term chimera in the area of genetics. Although this article will discuss the various chimeric conditions that are thought to exist, its primary focus is on chimerism that is the result of the fusing of embryos in utero. Next, the article will discuss recent cases of chimerism - and of alleged chimerism - and how the genetic differences between chimeras and the general population came to light. It also will discuss …

Minnesota Reflections On A Century Of Change And Stasis: Roscoe Pound's Visit To St. Paul, Jon M. Garon

Faculty Scholarship

No abstract provided.

"In A Case, On The Screen, Do They Remember What They've Seen?" Critical Electronic Reading In The Law Classroom, Debra Moss Curtis

Faculty Scholarship

In 2005, we produced a well-received article and presentation entitled, "'In a Case, In a Book, They Will Not Take a Second Look!' Critical Reading in the Legal Writing Classroom." The article examined the educational foundations of critical reading, as well as, critical reading techniques. The purpose was to establish that law students need instruction in critical reading. In the article, we offered creative solutions that had been successfully used in our legal writing classes. In the two years since, we have found it necessary to reconsider the problem of critical reading in the law school classroom, in light of …

Equal Access To Post-Secondary Education: The Sisyphean Impact Of Flagging Test Scores Of Persons With Disabilities, Helia Garrido Hull

Faculty Scholarship

In view of the social stigma associated with disabilities, and the inherent costs of providing accommodations to disabled students, the opportunity for bias within the admissions selection process is clear. As a result, the practice of flagging standardized tests has come under increasing scrutiny. The practice of distinguishing test takers having a disability from those who do not runs counter to the social policy of inclusion, and prevents disabled individuals from enjoying the benefits of equal citizenship. Part II of this paper provides a brief overview of the prejudice disabled individuals have endured throughout history, and discusses some early movements …

The Danger Of Future Dangerousness In Death Penalty Use, Brian Sites

Faculty Scholarship

In spite of thousands of years of science, humankind is distinctly unable to predict the future. And yet, the judicial system is called upon to do just so daily. In bail considerations, judges predict flight risk. In parole hearings, officials contemplate the likelihood of reoffense. And in three states, a defendant convicted of a capital crime will live or die based on what a judge and jury thinks he will do in an unknown future. It has been observed that “what separates the executioner from the murderer is the legal process by which the state ascertains and condemns those guilty …

U.S. Policy And The United Nations Convention On The Law Of The Sea, John E. Noyes

Faculty Scholarship

This essay examines U.S. attitudes toward the U.N. Convention on the Law of the Sea. Part I characterizes different U.S. perspectives toward foreign policy and international law, noting how these different viewpoints shape attitudes toward U.S. acceptance of the Convention. Part II then compares three concerns that U.S. Convention opponents have raised (relating to navigational freedom, U.S. participation in international institutions, and U.S. leadership in international affairs) to the perspectives associated with of one of the several different foreign policy approaches. Many followers of historically-predominant U.S. foreign policy approaches do not share the concerns of Convention opponents. However, even if …

A Gendered Update On Women Law Deans: Who, Where, Why, And Why Not?, Laura M. Padilla

Faculty Scholarship

This article examines law school deans, how many are women, when they became deans, and what the trajectory is like for their numbers in the future. This article will provide additional empirical information through the 2005-2006 academic year. It will also present results from a survey mailed to all women deans in the fall of 2005 and to a similar number of male deans. Rather than present all the survey summaries at once, I have elected to include results where substantively appropriate.

Interdisciplinary Problem Solving Courses As A Context For Nurturing Intrinsic Values, Janet Weinstein, Linda Morton

Faculty Scholarship

Intrinsic values and motivations are important foundations for career satisfaction and professionalism. The research of Lawrence Krieger and Kennon Sheldon highlights factors critical to the development of intrinsic values and motivations. Our aspiration was to create courses that could stimulate such development in our law students. This article discusses the foundation and goals for our courses, describes our courses, reviews our successes and failures, and poses questions for further study. Throughout our discussion we provide anecdotal data from comments by students and the professionals with whom they worked, indicating the degree to which students seem to be incorporating the goals …

The Constitution Outside The Constitution, Ernest A. Young

Faculty Scholarship

Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a …

Toward A New Civil Rights Framework, Guy-Uriel Charles

Faculty Scholarship

No abstract provided.

Wands Away (Or Preaching To Infidels Who Wear Earplugs), Laura Spitz

Faculty Scholarship

The juxtaposition between doing--what we might call "practice"--and reading or thinking about doing--what we might call the study of "theory" or "doctrine" or both--evokes familiar debates on what a law school is and the pedagogical choices made by teachers and administrators.

How A Marriage Discrimination Amendment Would Disrespect Democracy In Minnesota, Anthony S. Winer

Faculty Scholarship

The proposed marriage discrimination amendment to the Minnesota Constitution is profoundly anti-democratic. It is extremely wide-ranging in its scope, it obliterates the opportunity of the LGBT community to legislatively advance its interests in the area, it falsely assumes characteristics of the state judiciary that do not in fact exist, and it is drafted with language that is particularly hostile to LGBT concerns and democracy in general. It was a triumph for reason and democracy that this amendment was defeated in 2006. It should never be introduced again. In the unfortunate event that it is introduced again, it should be resoundingly …

The Controversy Over The Legacy Highway In Utah: An Opportunity For Invitational Rhetoric, Carlo A. Pedrioli

Faculty Scholarship

Beginning in the mid 1990s, residents of Utah began to debate the merits of the “Legacy Highway,” a large highway that would run near the Great Salt Lake in an attempt to alleviate the clogged commute on Interstate-15, which runs north/south through Salt Lake City, the state’s capital. Perhaps not surprisingly, environmental groups were upset with this proposed governmental project. Groups like the Advocates for Safe and Efficient Transportation and the Utah Department of Transportation faced off against the Sierra Club, Stop the Legacy Highway, and Utahns for Better Transportation. Generous amounts of rhetoric, including public discussion and litigation, resulted …

A Decision Theory Approach To The Business Judgment Rule: Reflections On Disney, Good Faith, And Judicial Uncertainty, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Medical Futility Statutes: No Safe Harbor To Unilaterally Refuse Life-Sustaining Treatment, Thaddeus Mason Pope

Faculty Scholarship

Over the past fifteen years, a majority of states have enacted medical futility statutes that permit a health care provider to refuse a patient's request for life-sustaining medical treatment. These statutes typically permit the provider to unilaterally stop LSMT where it would not provide significant benefit or would be contrary to generally accepted health care standards. But these safe harbors are vague and imprecise. Consequently, providers have been reluctant to utilize these medical futility statutes.

This uncertainty probably cannot be reduced. Consensus on substantive measures of medical inappropriateness has proven unachievable. Only a purely process-based approach like that outlined in …

Rethinking Medical Liability: A Challenge To Defense Lawyers, Trial Lawyers, Medical Providers, And Legislators: An Introduction To The Symposium, Thaddeus Pope

Faculty Scholarship

The 2007 University of Memphis Law Review Symposium, Rethinking Medical Liability: A Challenge for Defense Lawyers, Trial Lawyers, Medical Providers, and Legislators, was held on February 16, 2007, at the University of Memphis FedEx Institute of Technology in Memphis, Tennessee. The Symposium brought together scholars and practitioners to assess the traditional malpractice system and quality of care. Americans are engaged in an earnest and profound debate about how to improve and rethink medical liability and improve the quality of medical care. The Symposium presentations and the resulting articles in this issue not only advance the ongoing debate but also offer …

Recovering The Face-To-Face In American Immigration Law, Marie Failinger

Faculty Scholarship

Professor Failinger’s article begins with stories of the Chinese Exclusion period and modern Arizona border immigration. Tracing Emmanuel Levinas’ argument about violence and totalization of the vulnerable Other as it is manifested in discriminatory legislation in these periods, she argues for a return to the Face-to-Face in deciding immigration requests for admission to the U.S. through a rubric of equitable guided discretion.

From Right To Wrong: A Critique Of The 2000 Uniform Parentage Act, Mary P. Byrn

Faculty Scholarship

In 1973, the National Conference of Commissioners on Uniform State Laws (the Conference) proposed a Uniform Parentage Act (UPA) that radically changed how parentage was determined in the United States. Prior to 1973, the parentage laws of most states failed to identify two legal parents for thousands of children merely because their parents were not married. These "illegitimate" children were considered a "child of no one" under the law and were denied the significant emotional, financial, and legal benefits of having two legal parents. By the early 1970s, however, the conference recognized that such treatment of children was becoming scientifically, …

Mediation At The End Of Life: Getting Beyond The Limits Of The Talking Cure, Thaddeus Mason Pope, Ellen A. Waldman

Faculty Scholarship

Mediation has been touted as the magic band-aid to solve end-of-life conflicts. When families and health care providers clash at the end of life, bioethicists and conflict theorists alike have seized upon mediation as the perfect procedural balm. Dissonant values, tragic choices, and roiling grief and loss would be confronted, managed, and soothed during the emotional alchemy of the mediation process. But what is happening in a significant subset of end-of-life disputes is not mediation as we traditionally understand it. Mediation's allure stems from its promise to excavate underlying needs and interests, identify common ground, and push disputants toward more …

A Home Of Its Own: The Role Of Poverty Law In Furthering Law Schools' Mission, Marie Failinger

Faculty Scholarship

This author argues that poverty advocates who are willing to carefully attend to their law school’s mission and vision, and to give careful thought to how poverty law may play an important role in achieving that vision, may win a more lasting place for poverty law in the curriculum than it has heretofore managed to achieve in most law schools. This article will argue that poverty law can be a key piece in the curriculum of law schools who define their mission, at least in part, as educating lawyers according to one of five paradigms: 1) lawyers as public citizens …

A Suspicionless Search And Seizure Quagmire: The Supreme Court Revives The Pretext Doctrine And Creates Another Fine Fourth Amendment Mess, Edwin J. Butterfoss

Faculty Scholarship

This Article contends the Supreme Court's use of a primary purpose test to regulate suspicionless searches and seizures by the government is misguided and will provide little or no protection against the evils that apparently led the Court to strike down recent schemes by government officials. The evil of the government schemes is less the purpose of the schemes than their expansion into areas and activities in which citizens should be protected from government intrusion in the absence of any suspicion of wrongdoing. Rather than facing this head on and carefully assessing whether the government schemes infringe on such areas …

The Politics Of Risk: Pre-Litigation Site Assessment In Houston, Texas, Gregg P. Macey

Faculty Scholarship

No abstract provided.

Pain Detection And The Privacy Of Subjective Experience, Adam Kolber

Faculty Scholarship

No abstract provided.

A Moratorium On Intersex Surgeries?: Law, Science, Identity, And Bioethics At The Crossroads, Laura Hermer

Faculty Scholarship

Should the law prevent all parents and guardians from requesting and consenting to cosmetic genital surgeries on children with certain intersex conditions before the children are mature enough to decide the matter for themselves? While such surgeries ought not to be encouraged, banning the surgeries altogether, as some advocate, would hobble, if not eliminate, the burgeoning scientific investigation of the best treatment practices for different intersex conditions. It would also remove a surgical option that, according to data in a number of studies, has resulted in subjectively satisfactory outcomes for many patients.

Economic Growth And The Interests Of Future (And Past And Present) Generations: A Comment On Tyler Cowen, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Tax Reform Unraveling, Michael J. Graetz

Faculty Scholarship

The Tax Reform Act of 1986 was widely heralded as the most significant change in our nation’s tax law since the income tax was extended to the masses during World War II. It was the crowning domestic policy achievement of President Ronald Reagan, who proclaimed it “the best antipoverty measure, the best pro-family measure and the best job-creation measure ever to come out of the Congress of the United States” (Reagan, 1986). This journal published a symposium on the Tax Reform Act in its first issue. The law’s rate reductions and base broadening reforms were mimicked throughout the countries belonging …

Enron And The Special Purpose Entities - Use Or Abuse - The Real Problem - The Real Focus, Neal Newman

Faculty Scholarship

On the heels of Enron's debacle came the Sarbanes-Oxley Act of 2002, the far reaching legislative reform that was designed to shore-up the accounting and corporate governance shortfalls that the legislature and the investing public believed allowed Enron to do what it did unabated. Supplementing the reforms set forth in the Sarbanes-Oxley Act are a number of accounting rules, guidelines, and interpretations that are designed to curtail the type of accounting fraud Enron perpetrated through its use (or more accurately abuse) of what are referred to as special purpose entities (SPEs). Although much has been written chronicling and analyzing the …

Overcharging The Uninsured In Hospitals: Shifting A Greater Share Of Uncompensated Medical Care Costs To The Federal Government, James Mcgrath

Faculty Scholarship

In addressing problems with our health care payment system, one of the most contentious debates has been whether the United States should adopt a plan of universal health care. The debate intensifies over whether this country should adopt a single payer health care system, which one commentator describes as a system "in which a federal agency would centrally administer a single, comprehensive benefits package financed through general tax dollars..." Under a single payer plan, everyone in the country would receive at least some level of access to health care for which the federal government would pay.

The federal government already …