Digital Commons Network^™

Nonprofit Takeovers: Regulating The Market For Mission, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

First Amendment Cases In The October 2004 Term, Joel Gora

Faculty Scholarship

No abstract provided.

A Few Ironies Of Western Water Law, Reed D. Benson

Faculty Scholarship

We have a truly outstanding panel of speakers this morning to discuss issues and history relating to water resources in the American West. Water, of course, has always been scarce out here. Some nineteenth century maps of the United States had the words "Great American Desert" written broadly across the West, and that characterization reflected how many people viewed the West in that era. The story goes that President Grant sent a cabinet member to the West with orders to report back on "what it is they need out there." The secretary dutifully wrote back saying, "All this place needs …

Ethical Incentives For Employers In Adopting Legal Service Plans To Handle Employment Disputes, Michael Z. Green

Faculty Scholarship

Given the difficulties for employees in finding a lawyer to handle an employment dispute and with the growth of ADR, this article asserts that employers should adopt legal service plans as an employee benefit. It might seem counterintuitive for employers to provide their employees with a legal service benefit that may be used against them in employment disputes. However, comprehensive dispute resolution systems employ fair mechanisms that allow employees to resolve their disputes as soon as possible. Having sound legal counsel can become a major component of an employer's dispute resolution system because it offers a distinct human resource advantage …

Death Bed, Deborah W. Denno

Faculty Scholarship

Lethal injection is this country's primary method of execution, adopted for use by all but one of the thirty-seven death penalty states, as well as the federal government. It is predictable, then, that questions would arise the moment such a widely accepted form of punishment becomes especially vulnerable to an Eighth Amendment attack, as recent cases have shown. This article discusses this author's involvement as an expert in one of these cases, Baze v. Rees, which concerned a 2005 challenge to the constitutionality of lethal injection in Kentucky. While the Baze court upheld the constitutionality of Kentucky's lethal injection procedure, …

Helping Students Develop A Humanistic Philosophy Of Lawyering, Beth Cohen

Faculty Scholarship

This Article considers the need to help students develop a cohesive philosophy of lawyering and suggests some ideas and methods to help introduce these concepts and concerns to students. Although this Article focuses primarily on aspects of the legal research and writing curriculum and pedagogy as well as professional development programs that can enhance the curriculum, the concepts are applicable and transferable to other subjects and courses. The purpose of this Article is to explore the issues raised by a conscious decision to help students consider and develop a beneficial philosophy of lawyering in areas including the development of legal …

Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick

Faculty Scholarship

This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.

Teaching Reflective Lawyering In A Small Case Litigation Clinic: A Love Letter To My Clinic Papers Presented At The Ucla/Ials Conference On Enriching Clinical Education, Ian Weinstein

Faculty Scholarship

This article describes a live client, small case, teaching and learning centered, criminal defense clinic set in a high volume urban court. It offers concrete suggestions about how clinical educators can help students develop analytic and technical skills. The clinic model is conceived in three phases: giving students the opportunity to develop a contextualized understanding of the client; guiding students through strategic analysis and planning; and focusing students' litigation strategies on executing their tactical vision for their client. The article argues that this clinical setting structures the students' experiences so that they develop a complex and deeply moral lawyerly problem …

City As An Ecological Space: Social Capital And Urban Land Use, The , Sheila R. Foster

Faculty Scholarship

One of the goals of land use (and pollution control) law is to force the internalization of these costs. This otherwise economic view of land use law is also rooted, however, in an ecological understanding of urban land use. Legal scholars writing over three decades ago successfully argued, based upon the ecological facts of life, that "[p]roperty does not exist in isolation" because the effects of its uses flow outside of the boundaries of ownership. The notion that property is inextricably part of a network of social and economic relationships, and that its impacts traverse legally defined boundaries and relationships, …

Court-Ordered Confidentiality In Discovery Symposium: Secrecy In Litigation: I: Article, Howard M. Erichson

Faculty Scholarship

The debate over discovery confidentiality has raged for over twenty years, since before the Supreme Court's decision in Seattle Times Co. v. Rhinehart, and it shows no sign of fading. If anything, issues of litigation confidentiality appear to have gained increased attention in recent years. The United States District Court for the District of South Carolina attracted nationwide attention in 2002 when it adopted a local rule severely restricting secret settlements and addressing other aspects of court-ordered confidentiality. In 2004 the Federal Judicial Center completed an empirical study of sealed settlements. It seems that each month of 2005 brought new …

Mutual Dependency In Child Welfare, Clare Huntington

Faculty Scholarship

The child welfare system is in need of fundamental reform. To the great detriment of parents and children, in the current system the state waits for a crisis in a family and then intervenes in a heavy-handed fashion. The state pays scant attention to the prevention of child abuse and neglect. This article argues that the principle conceptual barrier to the adoption of a prevention-oriented approach to child welfare is the dominant conception of family autonomy, which venerates freedom from state control. This article proposes a novel reconfiguration of family autonomy that encourages engagement with the state, rather than simply …

Transnational Labor Citizenship, Jennifer Gordon

Faculty Scholarship

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to …

Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern

Faculty Scholarship

Stunned by the terrorist attacks of September 11, 2001, the Bush administration adopted a new National Security Strategy in September 2002. The UK government took a similar stance. This new strategy calls for anticipatory attacks against potential enemies with uncertain capacities and intentions, even before their threat is imminent. Rather than wait for evidence of weapons of mass destruction, it shifts the burden of proof, obliging ‘‘rogue’’ states to show that they do not harbor weapons of mass destruction or terrorist cells, or else face the possibility of attack. This new strategy amounts to the adoption of the Precautionary Principle …

Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet

Faculty Scholarship

Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on …

Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman

Faculty Scholarship

This article first sets out the child welfare system's assumption that there is a child welfare exception to the Fourth Amendment and then describes the ways it is used to facilitate child maltreatment investigations. It goes on to analyze the validity of this assumption according to current Fourth Amendment doctrine including under the special needs administrative exception. (This analysis may be particularly useful to both family/children's law scholars as well as to Fourth Amendment scholars, as it examines all of the state and federal appellate cases addressing the subject, and provides a most up-to-date evaluation of the Supreme Court's special …

Brief Amici Curiae In Support Of Respondent, Phillip Morris, Usa, Neil Vidmar

Faculty Scholarship

Brief of Neil Vidmar, et al. Amici Curiae in support of Respondent, Phillip Morris, USA v. Williams, No. 15-1256 (U.S. Supreme Court, September 15, 2006) In Williams v. Philip Morris (1999) an Oregon jury awarded the plaintiff $800,000 in compensatory damages and $79.5 million in punitive damages, a verdict upheld by the Oregon Supreme Court, but appealed to the U.S. Supreme Court (oral argument set for Oct 31, 2006). Critics of punitive damages argue that (a) juries are incompetent, irrational or biased in awarding punitive damages and (b) judges and appellate courts fail to police excessive verdicts. This amicus brief …

Harnessing And Sharing The Benefits Of State Sponsored Research, Arti K. Rai, Rebecca S. Eisenberg

Faculty Scholarship

In recent years data-sharing has been a recurring focus of struggle within the scientific research community as improvements in information technology and digital networks have expanded the ways that data can be produced, disseminated, and used. Information technology makes it easier to share data in publicly accessible archives that aggregate data from multiple sources. Such sharing and aggregation facilitate observations that would otherwise be impossible. But data disclosure poses a dilemma for scientists. Data have long been the stock in trade of working scientists, lending credibility to their claims while highlighting new questions that are worthy of future research funding. …

Eu Law As Private International Law? Re-Conceptualising The Country-Of-Origin Principle As Vested Rights Theory, Ralf Michaels

Faculty Scholarship

One of the most pertinent issues in contemporary European conflict of laws is the tension between Community law and traditional choice of law rules. The biggest problem comes not from the transposition of member state rules on choice of law into methodologically comparable EC Regulations, but rather from the so-called country-of-origin principle. This principle holds, broadly, that EU member states may not impose obligations on a provider of goods and services that go beyond the obligations imposed by the provider's home state. Originally conceived mainly with public law obligations in mind, the principle has an impact on choice of law …

Commandeering And Its Alternatives: A Federalism Perspective, Neil S. Siegel

Faculty Scholarship

This inquiry argues that current Tenth Amendment jurisprudence causes net harm to federalism values under certain circumstances. Specifically, New York v. United States and Printz v. United States protect state autonomy to some extent by requiring the federal government to internalize more of the costs of federal regulation before engaging in regulation, and by addressing any accountability problems that commandeering can cause. But anticommandeering doctrine harms state autonomy in situations where the presence of the rule triggers more preemption going forward. Preemption generally causes a greater compromise of federalism values than does commandeering by eroding state regulatory control. While it …

In Defense Of Regulatory Peer Review, James Salzman, J.B. Ruhl

Faculty Scholarship

The debate over application of peer review to the regulatory decisions of administrative agencies has heated up in the last year. Part of the larger and controversial sound science movement, mandating peer review for certain types of agency decisions has recently been championed by the White House and proponents in Congress. Indeed, this past January the Office of Management and Budget finalized guidelines requiring peer review for large classes of agency activities. These initiatives have not gone unchallenged, and a fierce debate has resulted between those who claim peer review will strengthen the scientific basis of agency decisions and those …

Book Review: Michele Goodwin's Black Markets: The Supply And Demand Of Body Parts, Barbara A. Noah

Faculty Scholarship

The Author reviews Michele Goodwin’s book BLACK MARKETS: THE SUPPLY AND DEMAND OF BODY PARTS, published by Cambridge University Press, 2006. The book discusses the shortage of cadaveric organs available for transplantation. It argues that the shortage disproportionately impacts racial minorities. It then analyzes existing organ procurement laws and proposed alternatives, with a focus on market solutions.

BLACK MARKETS is impeccably researched and persuasively argued, though some of its points are certainly controversial. The book is aimed at and very accessible to a general audience, but it will also prove interesting and informative to legal, medical and public health academic …

Book Review: Tom Baker's The Medical Malpractice Myth, Barbara A. Noah

Faculty Scholarship

The Author reviews THE MEDICAL MALPRACTICE MYTH by Tom Baker, published by University of Chicago Press, 2005. Baker’s book confronts the idea that medical malpractice litigation is exploding and underserving plaintiffs and that their attorneys receive unjustified rewards while physicians struggle under the burden of high costs. The book strives to debunk the various aspects of this myth and offers directions for reform. Throughout the book, Baker very effectively connects the legal arguments and the insurance and litigation data to his broader points about the politics of tort reform. Baker’s style is concise, lively, and very readable. He effectively weaves …

Clothes Don't Make The Man (Or Woman), But Gender Identity Might, Jennifer L. Levi

Faculty Scholarship

The Ninth Circuit's recent decision in Jespersen v. Harrah's Operating Co., Inc. reflects the blinders on many contemporary courts regarding the impact of sex-differentiated dress requirements on female employees. Although some courts have acknowledged the impermissibility of imposing sexually exploitive dress requirements, they have done so only at the extreme outer limits, ignoring the concrete harms experienced by women (and men) who are forced to conform to externally imposed gender norms. On the other hand, some transgender litigants have recently succeeded in challenging sex-differentiated dress requirements. This success is due in part to their incorporation of disability claims based on …

You Drink, You Drive, You Lose: Or Do You?, Tina Wescott Cafaro

Faculty Scholarship

This Article explores different ways to effectively discourage the crime of alcohol impaired driving. Part I analyzes the trend of utilizing preventive educational measures to counteract societal acceptance of this crime and the shortcomings of relying exclusively on this measure. Part II discusses OUI prevention based on deterrence and the use of stricter penalties, such as mandatory jail sentences, to stop alcohol impaired drivers. This section explores whether the trend of increasing the severity of the punishment for OUI offenses is effective in stopping the crime. This section also discusses the shortcomings of OUI legislation that make deterrence of OUI …

A Drug By Any Other Name ... ? Paradoxes In Dietary Supplement Risk Regulation, Lars Noah, Barbara A. Noah

Faculty Scholarship

Dietary supplements present vexing regulatory challenges for the Food and Drug Administration (FDA). Although several observers have called for reform or repeal of Dietary Supplement Health and Education Act (DSHEA), and the FDA often has lamented its lack of meaningful authority over dietary supplements, this Author suggests that the agency actually possesses the regulatory muscle to adopt a more aggressive risk identification and risk management strategy within the confines of DSHEA, and that it need not ask Congress to amend the statute.

The Role Of Religion In The Schiavo Controversy, Barbara A. Noah

Faculty Scholarship

The brief life of Theresa Marie Schiavo and the dispute over her end-of-life care captured public awareness in a way that few such cases have done. The reasons for the nearly unprecedented public attention to her case are two-fold. The decision by various religious groups and governmental entities to intervene in the dispute surrounding her care in order to promote conservative causes (some of them only tenuously related to her particular medical circumstances) prompted unusually intense media coverage. In addition, the ensuing publicity surrounding Theresa's tragic condition--an unexpected cardiac arrest left her in a permanent vegetative state at the age …

A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus

Faculty Scholarship

No abstract provided.

Team Disputes At End-Of-Life: Toward An Ethic Of Collaboration, Debra Gerardi

Faculty Scholarship

No abstract provided.

Description And Evaluation Of An Interprofessional Patient Safety Course For Health Professions And Related Sciences Students, Debra Gerardi

Faculty Scholarship

No abstract provided.

Conflict At End Of Life: A Growing Need For Dispute Resolution Practices, Debra Gerardi, Jacquelin N. Font-Guzman

Faculty Scholarship

No abstract provided.