Digital Commons Network^™

Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Speaking Volumes: Musings On The Issues Of The Day, Inspired By The Memoir Of Mary Joe Frug, Elizabeth M. Schneider, Regina Austin

Faculty Scholarship

No abstract provided.

Dismembering Civil Society: The Social Cost Of Internally Undemocratic Nonprofits, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

Adoptions By Lesbian And Gay Parents Must Be Recognized By Sister States Under The Full Faith And Credit Clause Despite Anti-Marriage Statutes That Discriminate Against Same-Sex Couples, Barbara Cox

Faculty Scholarship

No abstract provided.

Seventh Aspect Of Self-Hatred: Race, Latcrit, And Fighting The Status Quo, Jerome Mccristal Culp Jr.

Faculty Scholarship

No abstract provided.

Constitutional Analogies In The International Legal System, Laurence R. Helfer

Faculty Scholarship

This Article explores issues at the frontier of international law and constitutional law. It considers five key structural and systemic challenges that the international legal system now faces: (1) decentralization and disaggregation; (2) normative and institutional hierarchies; (3) compliance and enforcement; (4) exit and escape; and (5) democracy and legitimacy. Each of these issues raises questions of governance, institutional design, and allocation of authority paralleling the questions that domestic legal systems have answered in constitutional terms. For each of these issues, I survey the international legal landscape and consider the salience of potential analogies to domestic constitutions, drawing upon and …

Sustaining Progressivity In The Budget Process: A Commentary On Gale & (And) Orszag's An Economic Assessment Of Tax Policy In The Bush Administration, 2001-2004 The State Of Federal Income Taxation Symposium: Rates, Progressivity, And Budget Processes, Linda Sugin

Faculty Scholarship

This Commentary proposes the adoption of pay-go procedural rules for tax lawmaking that favor tax cuts that decrease income inequality, in response to biases in distributional tables and distortions in the political process. It suggests that the failure to use present value analysis in the budget process has had unfortunate, unintended consequences, in particular, a congressional preference for a prepaid-type consumption tax. This Commentary argues that efforts to index the Alternative Minimum Tax (the "AMT") should not deflect attention from the AMT's most fundamental distributional problem-its failure to treat dividends and capital gains as preference items. It suggests that there …

Clinical Teaching At William Mitchell College Of Law: Values, Pedagogy, And Perspective, Eric S. Janus

Faculty Scholarship

A retrospective celebrating thirty years of clinical education at William Mitchell College of Law. These courses are nurtured by the key principles that have shaped clinical education at William Mitchell. They embrace the profession of law, but insist on a critical stance. They recognize that values define the practice of law, and that only through intentional choice of pedagogy and perspective can values education be effective and respectful of the autonomy of our students as they work to define the sort of lawyers they wish to become.

Un/Braiding Stories About Law, Sexuality And Morality, Margaret E. Montoya

Faculty Scholarship

Traditional doctrine insists that we tame sexual desire by pretending that goodness and Godliness is defined by celibacy and abstinence, but the Church is simply wrong to insist that we accept a theology that negates and silences and suppresses a central part of our lives. To the extent that we believe in a life after death, many of us have won a chance at Heaven not by denying and suppressing our sexuality but by struggling to develop our capacity to experience joy through sexual desire and to honor the responsibility of not generating misery for ourselves and others through that …

Mental Retardation And The Death Penalty: A Guide To State Legislative Issues, James W. Ellis

Faculty Scholarship

The interest in State Legislatures in the topic of mental retardation and the death penalty has obviously heightened with the U.S. Supreme Court's decision in Atkins v. Virginia.' The purpose of this document is to provide legislators and advocates with guidance in implementing the Atkins decision, so that each State's death penalty legislation is in full compliance with constitutional requirements.

Homeland Security, Pesticide Regulation And Common Household Chemicals: Are We Adequately Protecting All Our Sources, Leticia M. Diaz

Faculty Scholarship

In the aftermath of the terrorist attacks of September 11, 2001, legislators, business owners, consumers and everyday citizens, all with a view of how to protect our interests, voiced their opinions on how to improve national security with patriotic zest. FIFRA's main purpose is to ensure federal regulation of pesticide distribution and use. This power is of particular importance given the terroristic threat of possible chemical warfare. Chemical professionals were cognizant of the importance of site security even prior to the September 11th terrorist attacks. With respect to the risk of terrorist attacks using pesticides or other chemical agents, EPA …

New Surveillance, The , Sonia K. Katyal

Faculty Scholarship

A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities …

Not Mere Rhetoric: On Wasting Or Claiming Your Legacy, Justice Scalia, Marie Failinger

Faculty Scholarship

The thesis of the article is that the Court’s enterprise is centered on preserving community through an ethics of warranted trust, and that Scalia’s rhetoric often rejects such an ethic. A modern democratic citizen, along with his whole community, instead finds himself in the situation of necessary trust in democratic institutions like the Supreme Court. The willingness of a political community ultimately to place its trust in authority is partially dependent on that authority’s commitment to, and skill at, creating a convincing argument. The practice of rhetoric recognizes the dynamics of a relation of trust: the rhetor must put his …

Privacy As A Legal Principle Of Identity Maintenance, Jonathan Kahn

Faculty Scholarship

This article considers how existing literature on privacy recognizes, constructs and otherwise implicates something the Anglo-American legal tradition recognizes as 'identity'. Integral to this concern is approaching privacy as a regulative principle for constructing and managing relations between the individual and three primary spheres of engagement: society, the market, and the state. Contemporary analyses of privacy tend to concentrate of how privacy protects the individual from state tyranny or the prying eyes of social busy bodies. Much less attention has been paid, however, to privacy as a principle for demarcating a space beyond the reach of market forces. As privacy …

Midwifery: Strategies On The Road To Universal Legalization, Laura Hermer

Faculty Scholarship

Multiple studies have shown that direct-entry midwifery is just as safe, if not safer than, medical care in low-risk childbirth. Most births using direct-entry midwives require fewer interventions than those attended by physicians, yet yield excellent results. The results of these studies indicate that we should return to midwifery for normal births, rather than continuing to rely primarily on medicine. This option, however, has been significantly curtailed by many state legislatures and courts, despite decades of attempts to make incursions on the traditional paradigm of hospital births attended by obstetricians. As a result, where midwifery is more readily available, it …

Currents In Contemporary Ethics, Sharona Hoffmann, Andrew P. Morriss

Faculty Scholarship

Advances in reproductive technology are an established part of the medical landscape. No longer merely the subject of science fiction, new reproductive technologies are more commonly available each year. As these technologies become widespread, the law will need to recognize their existence and consider their impact on legal rules and institutions. Much as family law earlier evolved to include adopted and born-out-of-wedlock children within the legal definition of children, so too will property law need to address the reality of posthumously conceived children. Since at least some of these children will be "planned" posthumous births, simply excluding all such children …

Market Principles For Pesticides, Andrew P. Morriss, Roger E. Meiners

Faculty Scholarship

Overall, pesticide use is growing in developing countries. United States' pesticide use changed in content, but remains substantial in volume. Critics of pesticide policy, including many of the speakers at this symposium, are concerned that pesticide problems are worsening. Surprisingly, thirty years after the Federal Insecticide, Fungicide, and Rodenticide Act ("FIFRA") reforms and the victory over DDT, the critics are not yet prepared to declare victory. Even worse from the perspective of environmental pressure groups is the change in attitude toward DDT, a substance whose name invokes extraordinary invective, where the current picture is not quite what the advocacy groups …

Foreword: Nafta As A Lesson For Globalization, Elizabeth Trujillo

Faculty Scholarship

Since its enactment, NAFTA has impacted international business among its members and it has awakened concerns of the environmental and labor challenges that the participating countries face as they move toward economic integration. Among the many challenges, coping with the economic, legal, and cultural differences that exist among the partners has been difficult. The nations must continue to work together to harmonize their laws in such a way that allows for easier integration without impeding their sovereign power to enact laws that address local needs. At the conference entitled “NAFTA at Ten: Harmonization and Legal Transformation,” held on June 14-15, …

Between A Hard Rock And A Hard Place: Politics, Midnight Regulations And Mining, Andrew P. Morriss, Roger E. Meiners, Andrew Dorchak

Faculty Scholarship

Since the California Gold Rush in 1848, the mining of hard rock minerals (e.g., gold, silver, and similar minerals) on public lands has been based on the principle that discovery and development of mineral resources led to private ownership, promoting exploration and discovery of mineral resources. As with other nineteenth century land disposal statutes, such as the various homestead laws, the General Mining Law of 1872 provides for provision of mineral rights and even fee simple title to land based on the satisfaction of conditions related to use of the land and does not require significant payments to the federal …

More Pieces Of The Ceo Compensation Puzzle, Franklin G. Snyder

Faculty Scholarship

No current issue in corporate governance is more hotly debated than the question, "Why are American CEOs paid such high salaries?" A recent and influential answer, dubbed the "managerial power" approach, has an appealing simplicity: CEOs so thoroughly control their firms' compensation-setting machinery that they simply pay themselves whatever they want, restrained only by the tenuous limits of their own avarice and the vague need to avoid public "outrage." As an explanation for a complex process, however, the simplistic managerial power approach is so flawed as to be nearly useless. The single most intriguing feature of CEO compensation for example, …

Linking Intellectual Property Rights In Developing Countries With Research And Development, Technology Transfer, And Foreign Direct Investment Policy: A Case Study Of Egypt's Pharmaceutical Industry, Sahar Aziz

Faculty Scholarship

This Note focuses on TRIPS' impact on the pharmaceutical industry as well as health care in developing nations. By using Egypt as a case study, this Note aims to emphasize that the benefits of TRIPS for developing nations depends on the linkage between intellectual property rights (IPR) and other legal regimes, particularly drug regulation, technology transfer, and foreign direct investment (FDI) policies. The failure to adopt a holistic approach to the creation of effective and beneficial intellectual property rights regimes will merely increase the western pharmaceuticals' market share and increase drug prices in developing nations.6 By asking whether Egypt, versus …

The Exercise Of Contract Freedom In The Making Of Arbitration Agreements, Thomas E. Carbonneau

Faculty Scholarship

A universal principle of contemporary arbitration law is that contract plays a vital role in the governance of arbitration. The vitality of that role can vary by legal system, court,statute, or treaty. Nonetheless, party agreement often provides the most significant rules for regulating arbitrations and conducting arbitral proceedings. This is especially true in international commercial arbitration. There, the lack of a functional transborder legislativeand adjudicatory process made contract the principal source of law for internationalcommercial transactions and arbitrations. Although law-making is more possible withinindividual national legal systems, the rule of contract freedom is also firmly established inmatters of domestic arbitration. …

Revising The Model Penal Code: Keeping It Real, Gerard E. Lynch

Faculty Scholarship

The thesis of this talk can be simply stated: In any serious discussion of revising the Model Penal Code (MPC), the object of the game cannot be revising the MPC itself. Rather, the object of any revision of the Code is to promote the reform of the nation's actual criminal codes, as adopted by the state legislatures and Congress.

Private Lawyers And Environmental Justice, Michael B. Gerrard

Faculty Scholarship

A private lawyer representing a private client is seldom a crusader. When environmental justice is relevant to a particular matter – the client proposes to build a facility and engages the lawyer to help secure necessary governmental approvals, for example-the lawyer's primary duty must be to the client.

The client in such a case faces two primary types of questions: substantive, such as where and how to build the facility; and procedural, deciding what processes to follow and how much to involve the community in the planning. Typically, by the time the lawyer is brought in, the client already has …

Federalism And The Future Of Health Care Reform, Richard Briffault, Sherry Glied

Faculty Scholarship

An important theme in the ongoing health care reform debate is federalism. During the battle over the Clinton Health Plan in 1993–94, the question of which level of government — federal or state — should take the leading role in health policy was almost as contentious as the particular proposals for extending access to quality health care and controlling health care costs. With the failure in 1994 to achieve comprehensive legislation at the national level, many policymakers and commentators gave fresh attention to the states as potential agents for health care reform.

Towards A New Scholarship For Equal Justice, James S. Liebman

Faculty Scholarship

Over the last thirty years, the legal academy has turned a cold shoulder to the subject matter of this symposium: scholarship for equal justice. I am here to suggest that a thaw may be on the way. By scholarship for equal justice – as distinguished from scholarship about that topic – I mean academic work undertaken for the purpose of improving outcomes for individuals and members of groups who have been systematically held back by their race, sex, poverty, or any other basis for rationing success that our legal system treats with suspicion. With reference to some of my own …

Punishment, Proportionality, And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Aaron Kupchik, Jeffrey A. Fagan, Akiva Liberman

Faculty Scholarship

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and …

Introduction To The Decennial Volume, George A. Bermann

Faculty Scholarship

Ten years ago, when the Columbia Journal of European Law began, the European Union was, as we tend to say, "in a different place" than it is today. The "internal market" or, as it was called, the "1992" program had very largely been achieved, validating the institutional changes wrought by the Single European Act and boosting incalculably the Community's credibility as a regional economic entity and potential international political force. The Member States had just successfully orchestrated what may fairly be regarded as their most ambitious Intergovernmental Conference to date, culminating in the Treaty of Maastricht. While the referendum road …

The Importance Of Recognizing The Underlying Assumptions Of Legal And Moral Arguments: Of Law And Rawls, George C. Christie

Faculty Scholarship

No abstract provided.

Genocide Politics And Policy: Conference Remarks, Madeline Morris

Faculty Scholarship

No abstract provided.