Digital Commons Network^™

Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Brian Glick

Faculty Scholarship

No abstract provided.

Changing U.S. Tax Jurisdiction: Expatriates, Immigrants, And The Need For A Coherent Tax Policy, Jeffrey M. Colon

Faculty Scholarship

One of the most contentious tax legislative battles of the 104th Congress erupted over the Clinton administration's proposal to amend the U.S. tax rules applicable to expatriates. The administration proposed taxing the abandonment of either U.S. citizenship or long-term U.S. tax residency. The administration's proposal responded to a number of articles in the popular press that described the U.S. tax benefits of expatriation and divulged the names of well-heeled expatriates. Proponents claimed that Congress needed to revise the taxation of expatriates to prevent "billionaire Benedict Arnolds" from avoiding "their fair share" of U.S. income taxes. Opponents argued that the Clinton …

Taming Shiva: Applying International Law To Nuclear Operations, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

A Field Trip To Benetton And Beyond: Some Thoughts On Outsider Narrative In A Law School Clinic, Carolyn Grose

Faculty Scholarship

This essay explores the process of teaching students—and ourselves—to listen to and accept different versions of reality. Such exploration results in a proposition that is easy to state but difficult to accomplish: that in order to achieve this goal, we must challenge the students' "common sense”—their sense that they "know" how people act—by offering examples of behaviors that differ from that knowledge, without triggering the very "common sense" we are trying to combat. Toward this end, the first section of the essay presents a hypothetical initial interview with a client, and the student interviewer's reactions to her, which reflect the …

Neighborhood Legal Services As House Counsel To Community-Based Efforts To Achieve Economic Justice: The East Brooklyn Experience, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

The Use Of Social Science And Medicine In Sex Offender Commitment, Eric S. Janus

Faculty Scholarship

Sex offender commitment statutes are a controversial and recurring response to the threat of sexual violence. These statutes, claiming exemption from the strict constitutional limitations of the criminal law, use civil-commitment-like procedures to detain sex offenders in secure "treatment centers." Litigation testing these statutes has sought to locate the border between legitimate exercise of the state's mental health power, and illegitimate preventative detention. This article examines the central roles that medicine and behavioral science play in the operation of sex offender commitment statutes and the litigation testing their constitutional validity. The thesis of this article is that the presence of …

Hiram F. Stevens And The Founding Of The St. Paul College Of Law, Douglas R. Heidenreich

Faculty Scholarship

The St. Paul College of Law, one of William Mitchell College of Law's predecessor institutions, was established by five attorneys in 1900. Especially prominent among these attorneys was Hiram F. Stevens (1852-1904), who served as the first dean and was also a legislator, teacher, scholar, popular orator, and a founding member of the American Bar Association.

Gender Differences In Biological And Sociological Predictors Of Crime, Deborah W. Denno

Faculty Scholarship

One of the many goals of the Biosocial Study that I directed was determining whether there were gender differences among the numerous possible correlates of crime that the study examined. The purpose of my presentation today is to describe the Biological Study and its results, particularly as they relate to gender differences in crime. Another aim is to respond briefly to some of the potential political reactions to the study, despite its results. I will begin with a quick account of historical attitudes toward gender differences in crime. I will then discuss the Biosocial Study and its major findings relevant …

Sex Offender Commitments: Debunking The Official Narrative And Revealing The Rules-In-Use, Eric S. Janus

Faculty Scholarship

Sex offender commitment laws present courts with a difficult choice: either allow creative efforts to prevent sexual violence or enforce traditional constitutional safeguards constraining the power of the state to deprive citizens of their Iiberty. Three state supreme courts have deflected this hard choice while upholding sex offender commitment schemes. As part of their ""official narrative"" that legitimizes sex offender commitments, the courts claim that society can have prevention and still maintain the primacy of the criminal justice system. This narrative neutralizes the conflict in values by claiming that sex offender commitments are just like mental illness commitments, a small, …

"Magnificent Circularity" And The Churkendoose: Llc Members And Federal Employment Law, Daniel S. Kleinberger

Faculty Scholarship

This article seeks to explain under what circumstances federal employment statutes should apply to LLC members. Part I recounts the advent of LLCs and describes the essential characteristics of LLCs and their members. Part II explores how federal employment case law handles the employee vel non question and explains the problems in using that case law to determine whether LLC members are "employees" for federal employment law purposes. Part Ill attempts to make sense of that case law and proposes a rule for determining when a business owner can provide services to the business without becoming an "employee." Part IV …

Towards A More Balanced Treatment Of Bidder And Target Shareholders, Miriam Baer

Faculty Scholarship

No abstract provided.

How To Make A New Tort: Three Paradoxes, Anita Bernstein

Faculty Scholarship

No abstract provided.

Constitutional Aspects Of Physician-Assisted Suicide After Lee V. Oregon, Simon Canick

Faculty Scholarship

On November 8, 1994, Oregon voters narrowly passed the highly controversial Death with Dignity Act (Measure 16), which marked the first time that physician-assisted suicide was explicitly legalized anywhere in the world. In Lee v. Oregon, a group of physicians, several terminally ill persons, a residential care facility, and individual operators of residential care facilities sought to enjoin enforcement of the new law, claiming various constitutional infirmities. The U.S. District Court for the District of Oregon enjoined enforcement of the law, acknowledging that it raised important constitutional issues including possible violations of the Equal Protection and Due Process Clauses of …

Getting To Death: Are Executions Constitutional?, Deborah W. Denno

Faculty Scholarship

This Article addresses the question of when a method of executing a capital defendant amounts to cruel and unusual punishment under the Eighth Amendment. This Article contends that execution methods cases, while reaching the right result, fail to provide a sufficiently comprehensive Eighth Amendment standard for determining the constitutionality of any execution method. The Article proposes a test that better comports with the Court's Eighth Amendment case law and more appropriately considers scientific determinations of excessive pain. To apply this test, the Article studies each state's legislative changes in execution methods during the Twentieth Century as well as accounts of …

Ethics, Professionalism, And Meaningful Work, William H. Simon

Faculty Scholarship

Much of the anxiety and dissatisfaction associated with legal ethics arises from the categorical quality of the bar's dominant norms. These norms take the form of relatively inflexible rules insensitive to all but a few of the circumstances of the cases they govern. Hence they often require the lawyer to take actions that contribute to injustice or to refrain from actions that would avert injustice.

For example, many lawyers believe that a criminal defender is obliged to impeach a truthful complaining witness even though the only immediate purpose of this tactic is to encourage the trier to draw a mistaken …

Campaign Finance, The Parties And The Court: A Comment On Colorado Republican Federal Campaign Committee V. Federal Elections Commission, Richard Briffault

Faculty Scholarship

Last term, In Colorado Republican Federal Campaign Committee v. Federal Election Commission, the Supreme Court considered a direct attack on the constitutionality of the Federal Election Campaign Act's ("FECA") limits on political party expenditures. Colorado Republican was the Court's first campaign finance case in six years and the first in which the four Justices appointed by Presidents Bush and Clinton had an opportunity to participate. Colorado Republican was also the first case in the twenty-year regime of Buckley v. Valeo concerned with the constitutionality of restrictions on parties. Coming at a time of rising public concern, increased legislative activity, …

Breast Cancer, The Genetic "Quickfix," And The Jewish Community: Ethical, Legal, And Social Challenges, Karen H. Rothenberg

Faculty Scholarship

No abstract provided.

Terminal Decisions: Landmark Cases In The Path Toward Ethical End-Of-Life Care, Phebe Saunders Haugen

Faculty Scholarship

This brief article discusses the history of end-of-life care from a legal perspective. The article highlights important cases in Minnesota.

The Rise Of Sublocal Structures In Urban Governance, Richard Briffault

Faculty Scholarship

The dominant law and economics model of local government, based on the work of Charles M. Tiebout, assumes that decentralization of power to local governments promotes the efficient delivery of public goods and services. In his seminal article, A Pure Theory of Local Expenditures, Tiebout contended that the existence of a large number of local governments in any given area permits a "market solution" to the question of how to determine the level and mix of government services that people desire. The multiplicity of local governments in an area means that, as long as each locality is free to …

Asteroids And Comets: U.S. And International Law And The Lowest-Probability, Highest Consequence Risk, Michael B. Gerrard, Anna W. Barber

Faculty Scholarship

Asteroids and comets pose unique policy problems. They are the ultimate example of a low probability, high consequence event: no one in recorded human history is confirmed to have ever died from an asteroid or a comet, but the odds are that at some time in the next several centuries (and conceivably next year) an asteroid or a comet will cause mass localized destruction and that at some time in the coming half million years (and conceivably next year), an asteroid or a comet will kill several billion people. The sudden extinction of the dinosaurs, and most other species 65 …

Recent Legislation: Constitutional Law – Congress Imposes New Restrictions On Use Of Funds By The Legal Services Corporation – Omnibus Consolidated Rescissions And Appropriations Act Of 1996, Pub. L. No. 104-134, 110 Stat. 1321, Benjamin L. Liebman

Faculty Scholarship

Fierce political battles have raged about the Legal Services Corporation (LSC) for much of its twenty-three year history. Critics have attacked LSC for pursuing a "radical agenda" and for "engaging in dubious litigation that is of no real benefit to poor people," while supporters have termed LSC "the one program in the entire war on poverty that made a difference" and have decried the "campaign to deny the right of legal representation to the poor." Last year, in the Omnibus Consolidated Rescissions and Appropriations Act of 1996 (OCRAA), Congress reduced LSC funding by thirty percent – to $278 million in …

Institutionalization: Savior Or Saboteur Of Mediation?,, Sharon Press

Faculty Scholarship

This article is a reflection on the history and spread of the field of alternative dispute resolution (ADR). The author focuses on the increased institutionalization of ADR – particularly in relation to mediation within the court system, with examples drawn from Florida’s experience.

Learning Our Limits: The Decline Of Textualism In Statutory Cases, Lawrence Solan

Faculty Scholarship

No abstract provided.

Democracy, Distrust And The Public Trust: Process-Based Constitutional Theory, The Public Trust Doctrine And The Search For A Substantive Environmental Value, William D. Araiza

Faculty Scholarship

No abstract provided.

The Improbability Of Religion Clause Theory, Frederick Mark Gedicks

Faculty Scholarship

No abstract provided.

Housing Abandonment And New York City's Response, David Reiss

Faculty Scholarship

No abstract provided.

Recent Developments, Kevin Washburn

Faculty Scholarship

Summary of cases in the areas of environmental law, taxation of natural resources, and water rights cases involving Native American tribes.

Sexuality, Rape, And Mental Retardation, Deborah W. Denno

Faculty Scholarship

In this article, Professor Denno addresses the question of when sexual relations with a mentally retarded individual should be considered nonconsensual and therefore criminal. The article first explores the early treatment of mental retardation. It next demonstrates how old stereotypes influence the moralism inherent in modern conceptions of consent in rape determinations. Illustrating the point with reference to the Glen Ridge rape case, the article shows how courts applying contemporary rape statutes typically hold mentally retarded individuals to a higher standard of consent than nonretarded individuals. As a result, courts are hurting the very people they are supposed to protect …

Achieving Full Effectiveness Of Community Law: The Court Of Justice's Third Stage Of Enforcement Rules Implementation, Compliance And Effectiveness: Emerging Issues On Compliance And Effectiveness Within The European Union, Roger J. Goebel

Faculty Scholarship

Today we will be considering the experience of the European Union (EU) as a possible model for international law. We will start with Roger J. Goebel, director since 1984 ofthe Center of European Union Law, Fordham Law School.

Toward Uniform Standards Of Conduct For Mediators Symposium: The Lawyer's Duties And Responsibilities In Dispute Resolution, John D. Feerick

Faculty Scholarship

It can no longer be doubted that alternative dispute resolution ("ADR") as a substitute for court-based litigation is growing in appeal. The high costs, adversarial nature, and time of traditional litigation have led to the development and popularity of other dispute resolution alternatives. ADR is making substantial inroads into the legal mainstream and is increasingly used in a wide variety of contexts by courts; federal, state, and local governments; businesses and private individuals. According to a recent survey conducted by the National Institute for Dispute Resolution, twenty-eight state courts now have mandatory, non-binding arbitration programs; more than half of the …