Digital Commons Network^™

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Ashutosh Bhagwat, Evan Tsen Lee

Faculty Scholarship

No abstract provided.

The Justice Who Wouldn't Be Lutheran: Toward Borrowing The Wisdom Of Faith Traditions, Marie Failinger

Faculty Scholarship

Although many authors have debated the propriety of the use of religious arguments in public policy discussions and lawmaking, few have critically reviewed the jurisprudence of particular judges through the lens of their own faith-traditions. Preliminarily, this article attempts a modest contribution to the discussion about the use of religious argument in public discussions by suggesting that judicial opinions should be viewed rhetorically and that religious assumptions and claims may legitimately be "borrowed" analogically into such opinions, at least their forensic and epideictic elements. More concretely, it analyzes themes in some of Justice William Rehnquist's opinions to determine how consistent …

Single-Parent Latinas On The Margin: Seeking A Room With A View, Meals, And Built-In Community, Laura M. Padilla

Faculty Scholarship

This article considers the unique challenges of single parent Latinas and and a different way of viewing concerns of single parents. This alternative paradigm uses a holistic approach to the problems I had been pondering, acknowledging their interconnectedness, rather than artificially segmenting them into disjointed issues. I visualized a multi-pronged approach to Latina mothers' many concerns, based on a cohousing model, as modified for the needs of a low-income, racially distinct population of single-parent Latinas. It describes co-housing and proposes that this housing model be more broadly accessible through land use changes and greater acceptance of housing beyond single family …

Joe Six-Pack, U.S. V. O'Hagan, And Private Securities Litigation Reform: A Line Must Be Drawn, Michael H. Dessent

Faculty Scholarship

No abstract provided.

The Gentleman’S Agreement In Legal Theory And In Modern Practice: United States, Herbert Bernstein, Joachim Zekoll

Faculty Scholarship

No abstract provided.

Tax Expenditure Analysis And Constitutional Decisions , Linda Sugin

Faculty Scholarship

This article looks at the significance of the similarities and differences between tax benefits and direct spending for purposes of the equal protection and establishment clauses, with a particular focus on the charitable contribution deduction. Because economic equivalence is not critical under these constitutional provisions, tax expenditure analysis is not relevant to the legal analysis. While this article deals only briefly with numerous provisions of the Code and analyzes only two constitutional provisions, it provides a model for considering the constitutionality of any tax provision.

A Comparative Analysis Of Minnesota Products Liability Law And The Restatement (Third) Of Torts: Products Liability, Michael K. Steenson

Faculty Scholarship

This Article compares the Restatement (Third) of Torts: Products Liability with Minnesota products liability law. The Restatement (Third) of Torts: Products Liability provides a yardstick for measuring products liability law in each individual state. Minnesota's law is largely similar to the rules set out in the Restatement. While Minnesota has not yet adopted all of the positions in all of the rules, the Minnesota Supreme Court has taken positions on the rules governing liability, which are substantially the same. It no longer seems possible to argue that negligence principles do not control in cases involving design defect and failure to …

The Mccleskey Puzzle: Remedying Prosecutorial Discrimination Against Black Victims In Capital Sentencing, Evan Tsen Lee, Ashutosh Bhagwat

Faculty Scholarship

No abstract provided.

The Plausibility Of Legally Protecting Reasonable Expectations, Bailey Kuklin

Faculty Scholarship

No abstract provided.

Charting No Man's Land: Applying Jurisdictional And Choice Of Law Doctrine To Interstate Compacts, Dana Brakman Reiser

Faculty Scholarship

No abstract provided.

The Property Of Death, Tanya K. Hernandez

Faculty Scholarship

Who owns death and why do we care? The question of who owns death is implicitly deliberated each time a legal dispute ensues over who can direct the manner of a decedent's burial. There is no definitive legal rule as to who has the right to control the disposal of mortal remains because there is no agreement as to who owns a body after death or whether the cadaver is subject to traditional property rights. Although most states have probate laws and health codes which authorize a decedent (or in the alternative, a priority list of family members) to direct …

Justice From The Ground Up: Distributive Inequities, Grassroots Resistance, And The Transformative Politics Of The Environmental Justice Movement, Sheila R. Foster

Faculty Scholarship

In this Article, Professor Foster examines the environmental justice movement from the "ground up"-from the perspective of the predominantly poor, African-American residents of Chester, Pennsylvania who attempted to stop the clustering of waste facilities in their community. From this perspective, Professor Foster evaluates the manner in which the phenomenon of environmental injustice is framed, the efficacy of reforms in environmental decision-making processes, and the strategies and possibilities of grass roots efforts in achieving environmental justice. She argues that the distributive paradigm that often frames discussions of environmental injustice obscures the mechanisms and processes underlying inequitable outcomes, thwarting a full understanding …

Kahan On Mistakes, Daniel B. Yeager

Faculty Scholarship

In Ignorance of Law Is an Excuse - but Only for the Virtuous, Professor Dan Kahan reconciles what I had thought was an irreconcilable body of law. To be sure, imposing order on whether and when mistakes of law should pass as responsibility-evading accounts
of untoward actions is far from light work. Yet Kahan somehow pulls it off in just twenty-seven pages. In addition to acknowledging the importance of Professor Kahan's essay, I write here to point out if not correct what might have been two oversights in his view of the meaning and operation of mistakes. First, Kahan …

Hendricks And The Future Of Sex Offender Commitment Laws, Eric S. Janus

Faculty Scholarship

The Supreme Court's decision in Kansas v. Hendricks suggests that few constitutional limitations will be imposed. This article discusses the four elements imposed by the Court in Hendricks, and then discusses the likely implications of the decision, using civil commitment laws currently on the books and actual post-Hendricks decisions. The article concludes that the imbalance between commitments and discharges will cause commitment populations to grow over the foreseeable future. Eventually the huge costs of commitment schemes will force serious assessment of whether the facial logic of these programs hides seriously distorted resource allocation and anti-therapeutic side-effects.

Demons And Angels In Hazardous Waste Regulation: Are Justice, Efficiency, And Democracy Reconcilable?, Michael B. Gerrard

Faculty Scholarship

The Superfund program is perhaps environmental law's best Rorschach test, in which those who write about the national effort to clean up contaminated sites disclose as much about their own philosophies of justice, democracy, and economic efficiency as about environmental legislation. The ten books reviewed here show deep conflicts among these values. I argue, based on these disparate judgments, that many of the Superfund debates have an almost religious character. The law has been shaped to fit the view that demonic polluters were, and remain, at work. The law also reflects a sense of higher duty to future generations – …

"Thinking Like A Lawyer" About Ethical Questions, William H. Simon

Faculty Scholarship

Suppose you had to pick the two most influential events in the recent emergence of ethics as a subject of serious reflection by the bar. Most likely, you would name the Watergate affair of 1974 and the appearance a few years earlier of an article by Monroe Freedman. The article was a discussion of what Freedman called the "Three Hardest Questions" surrounding the responsibilities of criminal defense lawyers^.

Of the two events, Watergate is the most famous but, for our purposes, the least important. It raised no challenging issues of professional responsibility. The lawyer conduct in Watergate that shocked …

The Goals Of Environmental Enforcement And The Range Of Enforcement Methods In Israel And In The United States, Marcia R. Gelpe

Faculty Scholarship

The article examines enforcement of the environmental laws of Israel and of the United States. It concentrates on provisions for enforcement of the laws by government authorities--that is, either by administrative authorities or by the courts at the request of an administrative authority. Environmental laws in many jurisdictions may also be enforced by private actions. These private enforcement actions are not addressed specifically in this article, although much of what is said is also applicable to such actions.

Judicial Opinions Involving Health Insurance Coverage: Trompe L'Oeil Or Window On The World?, William M. Sage

Faculty Scholarship

This essay offers a few thoughts about using judicial decisions as the dataset for research into health insurance coverage. Part I offers a general overview of insurance coverage law. Part II considers why students of health insurance coverage gravitate toward studying published opinions. Part III then discusses what is wrong with the approach, and suggests alternatives. Finally, Part IV turns to what may be right with the approach, concluding that judicial opinions in coverage litigation may reveal the functionality (or dysfunctionality) of the coverage process in managed care. Although the basic critique which the essay presents applies to areas other …

Expanding The Circle Of Membership By Reconstructing The Alien: Lessons From Social Psychology And The Promise Enforcement Cases, Victor C. Romero

Faculty Scholarship

Recent legal scholarship suggests that the Supreme Court's decisions on immigrants' rights favor conceptions of membership over personhood. Federal courts are often reluctant to recognize the personal rights claims of noncitizens because they are not members of the United States. Professor Michael Scaperlanda argues that because the courts have left the protection of noncitizens' rights in the hands of Congress and, therefore, its constituents, U.S. citizens must engage in a serious dialogue regarding membership in this polity while considering the importance of constitutional principles of personhood. This Article takes up Scaperlanda's challenge. Borrowing from recent research in social psychology, this …

Implied Wavier After Seminole Tribe, Kit Kinports

Faculty Scholarship

Part I of this Article briefly traces the history of the Supreme Court's Eleventh Amendment jurisprudence, focusing in particular on the opinions developing the doctrines of implied waiver and abrogation. Part II makes the case that the doctrine of implied waiver retains validity after Seminole Tribe, at least with respect to federal statutes passed pursuant to the Spending Clause that condition the receipt of federal funds on the states' waiver of the Eleventh Amendment and statutes passed under Congress's other Article I powers that regulate an activity voluntarily undertaken by the states. Finally, Part III considers other potential constitutional …

Marriage As Relational Contract, Elizabeth S. Scott, Robert E. Scott

Faculty Scholarship

The evolution of marriage from a relationship based on status to one that is regulated by contractual norms achieved a milestone of sorts recently with the enactment of the Louisiana Covenant Marriage Act. Under this statute, couples entering marriage can choose to have the termination of their relationship regulated under conventional no-fault divorce rules, or they can voluntarily undertake a greater commitment to their marriage. For couples who select covenant marriage, either party can terminate the relationship on fault grounds, but unilateral termination of the marriage is available only after a substantial waiting period. The principal impact of the statute …

High-Level, "Tenured" Lawyers, Thomas W. Merrill

Faculty Scholarship

Government lawyers can be broadly categorized as either political or civil service appointees. The political appointees constitute a thin layer at or near the top of the hierarchy of government lawyers. They include, most prominently, presidential appointees – "Officers of the United States" who must be nominated and confirmed by the Senate prior to their appointment. They also include a variety of lesser lawyers who are exempt from most of the civil service laws. Such exempt "inferior Officers" include, for example, the lawyers in the White House Counsel's office and so-called "Schedule C" lawyers who hold positions "of a confidential …

Guns, Youth Violence, And Social Identity In Inner Cities, Jeffrey Fagan, Deanna L. Wilkinson

Faculty Scholarship

While youth violence has always been a critical part of delinquency, the modern epidemic is marked by high rates of gun violence. Adolescents in cities possess and carry guns on a large scale, guns are often at the scene of youth violence, and guns often are used. Guns play a central role in initiating, sustaining, and elevating the epidemic of youth violence. The demand for guns among youth was fueled by an "ecology of danger," comprising street gangs, expanding drug markets with high intrinsic levels of violence, high rates of adult violence and fatalities, and cultural styles of gun possession …

Toward A Framework Of Mutualism: The Jewish Community In Genetics Research, Karen H. Rothenberg, Amy B. Rutkin

Faculty Scholarship

No abstract provided.

Global Labor Rights And The Alien Tort Claims Act, Sarah H. Cleveland

Faculty Scholarship

Are labor rights human rights? Are some worker rights so fundamental that must be respected by all nations, and all corporations, under all circumstances? If so, who has the authority to define such rights, and how should they be enforced? What is the effect on the global economy of enforcing international worker rights? These are some of the questions confronted by the authors of Human Rights, Labor Rights, and International Trade, a compilation of essays by an international group of scholars, labor rights activists, and corporate executives addressing contemporary topics in the dialectic among labor, trade, and human rights.

Autonomy Through Separation?: Environmental Law And The Basic Law Of Hong Kong, Benjamin L. Liebman

Faculty Scholarship

One hundred days after taking office as Chief Executive of the Hong Kong Special Administrative Region (Hong Kong SAR) of the People's Republic of China, Tung Chee-hwa pledged both to take steps to improve Hong Kong's environment, and to increase coordination of environmental policy with officials in neighboring Guangdong Province. Tung's comments marked a rhetorical shift from environmental policy in British Hong Kong: eight years earlier, the Hong Kong government's first White Paper on environmental policy, Pollution in Hong Kong – A Time to Act, made only passing mention of China. Yet the White Paper was not alone in …

The Internal Relations Of Government: Cautionary Tales From Inside The Black Box, Peter L. Strauss

Faculty Scholarship

Both the structure of the Constitution and elementary civics texts imagine an Executive Branch under the close, unitary control of an elected chief executive, the President. Doubtless from the start, and unmistakably in the administrative state, the reality has been quite different. Those to whom Congress has delegated authority to act, particularly in that domain that we have in mind when invoking a "government of laws," conduct their business within a web more aptly described as coordination than control. In regulatory matters, the coordinating impulses run through the Department of Justice ("DOJ") and, increasingly, the Office of Information and Regulatory …

Judicial Review Of Discount Rates Used In Regulatory Cost-Benefit Analysis, Edward R. Morrison

Faculty Scholarship

Executive orders, statutes, and precedent increasingly require cost-benefit analysis of regulations. Presidential executive orders have long required executive agencies to submit regulatory impact analyses to the Office of Management and Budget ("OMB") before issuing regulations, and recent federal legislation exhibits a trend toward mandatory cost-benefit analysis. For example, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act, and the recent Safe Drinking Water Act Amendments require the Environmental Protection Agency to balance costs and benefits in regulating chemicals and pesticides. In 1995, Congress passed the Unfunded Mandates Act, requiring cost-benefit analysis of all significant federal regulations that …

Declining Homicide In New York City: A Tale Of Two Trends, Jeffery Fagan, Franklin E. Zimring, June Kim

Faculty Scholarship

The mass media pay plenty of attention to crime and violence in the United States, but very few of the big stories on the American crime beat can be classified as good news. The driveby shootings and carjackings that illuminate nightly news broadcasts are the opposite of good tidings. Most efforts at prevention and law enforcement seem more like reactive attempts to contain ever expanding problems rather than discernable public triumphs. In recent American history, crime rates seem to increase on the front page and moderate in obscurity.

The recent decline in homicides in New York City is an exception …

Libraries Turn New Leaf With Gis, Pat Newcombe

Faculty Scholarship

The Author discusses why libraries are appropriate facilities for the management and distribution of GIS maps and data. They are neutral, unbiased institutions, and are an established nationwide infrastructure. People who need access to information automatically think of libraries. It is libraries that users depend on for their data needs, and for resources that can interpret data. In addition, librarians are proficient in collection development, cataloging, access and preservation issues. All this makes for a strong case to provide GIS services in libraries.