Digital Commons Network^™

Constitutionalism And Political Science: Imaginative Scholarship, Unimaginative Teaching, Mark A. Graber

Faculty Scholarship

No abstract provided.

Practicing What We Teach: The Importance Of Emotion And Community Connection In Law Work And Law Teaching, Ann Juergens

Faculty Scholarship

Personal satisfaction and fine lawyering go hand in hand. Legal education and the legal system, however, do damage to that coupling. The author suggests that lawyers and law students can thwart personal dysfunction and professional dissatisfaction if we allow ourselves to express joy and sadness. To avoid being depleted by grief and rage, which cannot nourish satisfying law work over time, the article suggests that we attend to connections with others (all others). Lawyers who connect with their own communities may have more tools for crafting solutions for clients whose problems often implicate community. As teachers, the best way to …

A New Approach To Health Care Adr: Training Law Students To Be Problem Solvers In The Health Care Context, Linda H. Morton

Faculty Scholarship

This article focuses on the use of actual public health problems to train law students in interdisciplinary problem solving. The author describes the planning, structure, challenges and rewards in teaching her clinical course, Problem Solving and Prevention in Healthcare, to students initially reluctant to work collaboratively in teams, intimidated by a broader community context, and hesitant to interact strategically with other professionals.

Religious Lawyering Critique, The Aals Presentations, Bruce A. Green

Faculty Scholarship

One might think about the relationship between law practice and religion in different ways, depending on how one views either the professional norms or religious belief and observance. Some of the most recent academic literature on "religious lawyering" is premised on a highly critical view of the profession's norms and a claim that religious convictions that bear on the practice of law are incompatible with, and preferable to, aspects of the professional norms. My purpose here is to identify, and raise some questions about, both this critique and this suggestion, and to show how they are in tension with other …

Organizational Form As Status And Signal, Kimberly D. Krawiec

Faculty Scholarship

In this Article, the author analyzes the reactions of 147 New York City law firms to the 1994 enactment of the New York Limited Liability Partnership statute, which provided New York law firm partners with the first convenient mechanism to limit their personal liability for partnership debts. Using both quantitative and qualitative evidence, she evaluates whether the behavior of New York law firms supports the signaling theory of organizational form - that is, the theory that firms use the partnership form to signal to the marketplace that they provide high quality legal services, due to either superior monitoring or to …

Advertising And Intermediaries In Provision Of Legal Services: Bates In Retrospect And Prospect, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Reconceptualizing Advocacy Ethics, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

No abstract provided.

Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen

Faculty Scholarship

Since the mid-1990s, the "religious lawyering movement" has expanded dramatically, receiving greater attention within the academy and the bar. As the movement enters what we term its "second wave" of development, this essay begins with a look back to its "first wave" of path-breaking scholarship and its gradual shift toward more institutionalized structures and programs. It argues that the predominant characteristic of first-wave religious lawyering scholarship was to claim a space within the professional conversation for lawyers to bring religious values to bear on their work. The essay then predicts that in the second wave religious lawyering conversations and scholarship …

Judicial Deference Or Bad Law? Why Massachusetts Courts Will Not Impose Municipal Liability For Failure To Enforce Restraining Orders, Carolyn Grose

Faculty Scholarship

The authors take up the challenge that was thrown down by the Ford v. Town of Grafton court. The first part of this Article examines the somewhat tortured and fascinating history of the Massachusetts Tort Claims Act. It then describes the arguments Catherine Ford made, how the court responded, and why it responded as it did. In Part II, Massachusetts' strong commitment to protecting and assisting victims of domestic violence is examined. A variety of legislative, executive and judicial initiatives that demonstrate commitment are described, but the Massachusetts General Laws Chapter 209A, the restraining order statute, is emphasized. The article …

Hayek & (And) Cowboys: Customary Law In The American West, Andrew P. Morriss

Faculty Scholarship

The settlement of the American West during the nineteenth century produced a flourishing Hayekian legal because of the extended absence of state-based legal systems from large parts of the West. Without the crowding out of private law that accompanies the state's assertion of a monopoly over some areas of the law and subsidized competition in others, individuals created dispute resolution mechanisms and rules based on custom and contract. These examples of systems built by not-particularly-well-educated cowboys, gold miners, and migrants suggest that Hayekian legal orders can serve as effective, complete substitutes for state-provided law.

This paper surveys Hayek's legal theory, …

The Market For Legal Education & Freedom Of Association: Why The Solomon Amendment Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss

Faculty Scholarship

This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest …

Let's Stick Together (And Break With The Past): The Use Of Economic Analysis In Wto Dispute Litigation, Petros C. Mavroidis

Faculty Scholarship

The treatment of a number of issues that are being routinely discussed in WTO dispute settlement practice could benefit substantially, were economists to be institutionally implicated in the process. As things stand, the participation of economists in dispute settlement proceedings is infrequent and erratic: for all practical purposes, it depends on the discretion of WTO adjudicating bodies. There is indirect evidence that recourse to such expertise has been made, albeit on very few occasions. Institutional reforms are necessary; otherwise, it seems unlikely that the existing picture will change in the near future. A look into ongoing negotiations on the DSU …

Constitutional Issues Posed In The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Erwin Chemerinsky

Faculty Scholarship

The stated purpose of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") is to "improve bankruptcy law and practice by restoring personal responsibility and integrity in the bankruptcy system and ensure that the system is fair for both debtors and creditors." Its legislative history stretches over almost a decade, but each iteration of it continued the same core features, the most predominant of which is a complex "means test" to determine whether a debtor may file a Chapter 7 case. This Article seeks to identify the constitutional issues most likely raised by BAPCPA. It cannot identify all …

The Economics Of Limited Liability: An Empirical Study Of New York Law Firms, Kimberly D. Krawiec, Scott Baker

Faculty Scholarship

Since the rapid rise in organizational forms for business associations, academics and practitioners have sought to explain the choice of form rationale. Each form contains its own set of default rules that inevitably get factored into this decision, including the extent to which each individual firm owner will be held personally liable for the collective debts and obligations of the firm. The significance of the differences in these default rules continues to be debated. Many commentators have advanced theories, most notably those based on unlimited liability, profit-sharing, and illiquidity, asserting that the partnership form provides efficiency benefits that outweigh any …

Inadmissible In Iberia: The Fate Of Asylum Seekers In Spain And Portugal, Maryellen Fullerton

Faculty Scholarship

No abstract provided.

Representing Children In Families, Bruce A. Green, Annette R. Appell

Faculty Scholarship

No abstract provided.

Law, Lawyers, And Labor: The United Farm Workers' Legal Strategy In The 1960s And 1970s And The Role Of Law In Union Organizing Today , Jennifer Gordon

Faculty Scholarship

What does law offer labor? It depends. The specifics of the law in question are critical, as are the make-up and funding of the agency that is charged with implementing it and the economic strength, political clout, and strategic creativity of the unions and employers that it governs. Today's discussions of the NLRA from the union perspective are tinged with desperation about what law does for and to organizing-a desperation that is born of labor's sense that it has lost too many important battles before the NLRB and the courts over the interpretation of the NLRA. In despair, however, workers …

The Vocation Of International Arbitrators, Catherine A. Rogers

Faculty Scholarship

This Essay examines the vocation of the international arbitrator. I begin by evaluating, under sociological frameworks developed in literature on Weberian theories of the professions, how the arbitration community is organized and regulated. Arbitrators operate in a largely private and unregulated market for services, access to which is essentially controlled by what might be considered a governing cartel of the most elite arbitrators. I conclude my description with an account of how recently international arbitrators have begun to display a professional impulse, meaning efforts to present themselves as a profession to obtain the benefits of professionalization. Professional status is often …

Legal Status And Rights Of Undocumented Workers: Advisory Opinion Oc-18, Sarah H. Cleveland

Faculty Scholarship

In Advisory Opinion OC-18 of September 17, 2003, the Inter-American Court of Human Rights ruled that international principles of nondiscrimination prohibit discriminating against undocumented migrant workers in the terms and conditions of work. The Court acknowledged that governments have the sovereign right to deny employment to undocumented immigrants, but held that such workers are equally protected by human rights in the workplace once an employment relationship is initiated. In other words, states may not further their immigration policies by denying basic workplace protections to undocumented employees.

Contractual Incompleteness: A Transactional Perspective, Avery W. Katz

Faculty Scholarship

Recent scholarship in the field of contract law has concentrated on contractual incompleteness-that is, on the fact that except in the simplest and most basic transactions, contracting parties do not work out all of the relevant details and contingencies of their relationship at the outset. The reasons for incomplete contracts are varied. Sometimes parties deliberately leave terms unresolved, trusting future negotiations or social norms to fill in any problems that emerge. Other times, they leave terms unresolved without realizing they have done so, in part because they devote limited attention or resources to their negotiations and in part because contracts …

Going-Private Decisions And The Sarbanes-Oxley Act Of 2002: A Cross-Country Analysis, Ehud Kamar, Pinar Karaca-Mandic, Eric L. Talley

Faculty Scholarship

This article investigates whether the passage and the implementation of the Sarbanes-Oxley Act of 2002 (SOX) drove firms out of the public capital market. To control for other factors affecting exit decisions, we examine the post-SOX change in the propensity of public American targets to be bought by private acquirers rather than public ones with the corresponding change for foreign targets, which were outside the purview of SOX. Our findings are consistent with the hypothesis that SOX induced small firms to exit the public capital market during the year following its enactment. In contrast, SOX appears to have had little …

Global Changes In Regulating Corporate Auditors: A Comparative Assessment, Richard Thompson Ainsworth

Faculty Scholarship

Auditor independence was a global concern of financial regulators in the 1990's. Some observers saw this in a positive light, a natural development. Adjusting auditor independence rules was a manifestation of global convergence in corporate governance structures. New rules, especially rules leaning toward a harmonized system were welcome.

There was a more sobering view. This view held that global regulators were less concerned with convergence than they were with a sense of impending disaster. Things had gone too far. Significant, maybe even radical change was needed. The independence of corporate auditors had eroded; trust had been fundamentally compromised in the …

Bridging The Barriers: Public Health Strategies For Expanding Drug Treatment In Communities, Ellen M. Weber

Faculty Scholarship

States around the country have begun to adopt programs to divert drug offenders from jails and prisons to community-based drug treatment services. For this strategy to succeed, local officials will need to expand the availability of outpatient and residential treatment programs and address the barriers to siting treatment services, the most significant of which are community opposition and government zoning policies that facilitate community resistance. Civil rights laws, including the Americans With Disabilities Act (ADA) and the Fair Housing Act (FHA), prohibit zoning discrimination against persons with histories of alcoholism and drug dependence and provide a solid legal foundation for …

Law Student Admissions And Ethics - Rethinking Character And Fitness Inquiries, Susan Saab Fortney

Faculty Scholarship

This article expands on the use and recommended methods of including criminal background inquiries on law school applications. Part I of this article begins with an introduction to the ethics issues arising in connection with the admission of law students. Part II focuses on different purposes served by criminal background questions on the law school admission application, including screening applicants’ fitness to practice law. Part III considers the various ways law schools handle applicants’ nondisclosure and expands on the benefits of a modified amnesty program. Part IV explores how criminal background inquiries differ in depth, spanning from questions asking about …

Finding Lawyers For Employees In Discrimination Disputes As A Critical Prescription For Unions To Embrace Racial Justice, Michael Z. Green

Faculty Scholarship

At such a crucial time in our history, major concerns exist regarding the viability of labor unions and the capability of employees to pursue racial justice in the workplace with any success. Continued improvement within both movements may depend upon finding a cohesive intersection between them. With the race and class divide affecting relations between organized labor and black workers (a dilemma which must be explored in more detail), this Article offers the thesis that there remains an area of opportunity for justice where interests of unions and black employees may coalesce: providing legal assistance to unrepresented black employees in …

The Enterprise Of Liability, Anita Bernstein

Faculty Scholarship

No abstract provided.

Conflict Of Laws (2004), James P. George, Anna K. Teller

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2002, through November 1, 2003. The article excludes cases involving federalstate conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Fla. St. U. L. Rev., Huyen Pham

Faculty Scholarship

In the fanfare that surrounded the announcement of the National Security Entry-Exit Registration System,' Attorney General John Ashcroft's comment that the Department of Justice (DOJ) would ask state and local police to enforce both civil and criminal immigration laws seemed like an afterthought. State authorities, DOJ concluded, have "inherent authority" as sovereign entities to enforce these laws, though Ashcroft was careful to limit this invitation to local participation only to "our narrow anti-terrorism mission."

But to attorneys, law enforcement officers, and others working in the immigration field, Ashcroft's announcement was a bombshell. Not only was DOJ's announced position a reversal …

The Inherent Flaws In The Inherent Authority Position: Why Inviting Local Enforcement Of Immigration Laws Violates The Constitution, Immigr. & Nat'lity L. Rev., Huyen Pham

Faculty Scholarship

After 9/11, Attorney General John Ashcroft announced that state and local authorities have "inherent authority" as sovereigns to enforce federal immigration laws. This announcement, a reversal from previous legal positions taken by DOJ, sent shockwaves through the immigrant and law enforcement communities. Previously, immigration law had been treated, both by law and in practice, as the exclusive province of the federal government.

This article considers the constitutional barriers to local enforcement. Although the fascinating interplay among immigration law, national security and anti-terrorism, and federalism has been highlighted in some of the debate up to now, the federalism-related issues go beyond …

Legal Malpractice Insurance: Surviving The Perfect Storm, Susan Saab Fortney

Faculty Scholarship

This article serves as a practical guide to legal malpractice insurance. Part I introduces the topic of legal malpractice insurance with a brief overview of the changes that occurred in market conditions in 2000 and the subsequent effect on insurance premiums and coverage. Part II outlines the different types of insurance coverage that are available to legal professionals by describing common policy terms, exclusions, and conditions that affect coverage. Part III describes changes in law firms that may affect coverage. Part IV provides legal professionals with useful advice to consider when choosing an insurance policy. Part V reveals important factors …