Digital Commons Network^™

There's No Place Like Home: Realizing The Vision Of Community-Based Mental Health Treatment For Children, Yael Cannon

Faculty Scholarship

On the heels of the recession, the recent U.S. Census data reveals that the percentage of children living in poverty in the United States has grown to almost a quarter. Because children from low-income families are more likely to be exposed to high levels of stress, violence, abuse, overcrowding and other risk factors, they are far more likely to develop a mental health disorder--and to have their mental health needs go unmet. Rather than receive the necessary educational and mental health services, these children are often suspended and expelled, funneled through the school-to-prison pipeline' into the juvenile and criminal justice …

Tax Exemptions For Charitable Single-Member Limited Liability Companies, Terri Lynn Helge, David M. Rosenberg

Faculty Scholarship

This summer, the IRS issued long-awaited guidance on the deductibility of charitable contributions made to a single-member limited liability company (“SMLLC”) that is wholly-owned by a charitable organization exempt from federal income tax as a organization described in Section 501(c)(3). Previously, in a 2001 private letter ruling, the IRS confirmed that a SMLLC wholly-owned by a U.S. charity did not need to submit a separate application for recognition of federal income tax exemption, but declined to rule on whether contributions made to the SMLLC would be deductible under Section 170 as charitable contributions. An article in the IRS Continuing Professional …

Mandatory Predispute Consumer Arbitration, Structural Bias, And Incentivizing Procedural Safeguards, Nancy A. Welsh

Faculty Scholarship

Within the past several decades, there has been an explosion in the creation, institutionalization and use of “alternative” dispute resolution procedures. Mandatory predispute arbitration has generated the most controversy because it appears beset with structural bias. The recent cases of AT&T Mobility LLC v. Concepcion and Compucredit Corp. v. Greenwood have raised additional concerns as the Supreme Court has announced that corporations can force consumers to arbitrate their private and statutory claims and give up their rights to pursue class relief. This Article begins by arguing that the Supreme Court’s enthusiastic embrace of mandatory predispute arbitration should be understood primarily …

The New Stigma Of Relocated Public Housing Residents: Challenges To Social Identity In Mixed-Income Developments, Mark L. Joseph

Faculty Scholarship

Public housing residents have long experienced stigma as members of an urban “underclass.” One policy response is the creation of mixed-income developments; by deconcentrating poverty and integrating residents into communities in which their residences are indistinguishable from neighbors, such efforts might reduce stigma associated with residency in traditional public housing. Through in-depth interviews with 35 relocated public housing residents and 184 field observations at three mixed-income developments in Chicago, we find this is not the case. Stigma associated with living in public housing is ameliorated, yet residents report that their experience of stigma has intensified in other ways. The negative …

Peer Assessments Of Group Project Work: Infusing Fairness Into Students’ Assessments Of Peer Contributions, Okey Peter Onyia

Faculty Scholarship

This paper contains results of an empirical study that tested the efficacy and acceptability of two templates designed to fully involve students in proper and fair peer-assessments of their group project work (GPW) by providing concrete evidence of independent progressive documentation of their peers’ contributions to the work-process and end-product(s).

Two compatible templates – the Progressive Evaluation Template (PET) and the Peer Assessment Criteria Template (PACT) – were developed to enable students provide progressive documentation of their peers’ contributions to the student-led group project process in order to support the marks they award their peers and, at the same time, …

Nature, Culture, And Social Engineering: Reflections On Evolution And Equality, Linda C. Mcclain

Faculty Scholarship

This book chapter explores evolution and morality by considering the appeal to nature, and in particular to how evolution has shaped female and male brains differently, to explain evident sex differences and the persistence of sex inequality. It uses as illustrative the popularizing accounts of male and female brains found in Louann Brizendine, The Female Brain and The Male Brain, and the portrayal in such accounts of fundamental male and female differences in human mate selection and parenting. Drawing on the work of scientist and philosophers, the chapter critiques these accounts for engaging in an increasingly popular “neurosexism.” Such neurosexism …

The Hidden Limits Of The Charitable Deduction: An Introduction To Hypersalience, Lilian Faulhaber

Faculty Scholarship

Behavioral economics introduced the concept of salience to law and economics. In the area of tax policy, salience refers to the prominence of taxes in the minds of taxpayers. This article complicates the literature on salience and taxation by introducing the concept of “hypersalience,” which is in many ways the mirror image of hidden taxation. While a revenue-raising tax provision must be hidden for taxpayers to underestimate their tax bill, a revenue-reducing tax provision – such as a deduction, exclusion, or credit – must be more than fully salient for taxpayers to underestimate their tax bill. In other words, the …

Un Modo Più Chiaro: Francesco Scannelli, Guercino And The Physiology Of Style, James Hutson

Faculty Scholarship

The mid-seicento in Italy witnessed a sustained proliferation of writers on art scattered throughout more regions than had been common in the previous century, leading to an era defined by arguments over the qualities and values of style.1 In the Preface for his Vite de 'pittori, scultori ed architetti of ca.1673-79, Giovanni Battista Passeri lamented the fact that: «Today it is fashionable for painters to do nothing but squabble among themselves about manner, taste, and style, and this arose because the reasoning is not established according to solid principles ».2 The querulous nature of the age has made it difficult …

Call The Colorado Shootings What They Were: Terrorism, Dawinder S. Sidhu

Faculty Scholarship

No abstract provided.

Theories Of The Firm And Judicial Uncertainty, Andrew S. Gold

Faculty Scholarship

No abstract provided.

The Legal Significance Of Adolescent Development On The Right To Counsel: Establishing The Constitutional Right To Counsel For Teens In Child Welfare Matters And Assuring A Meaningful Right To Counsel In Delinquency Matters, Michael J. Dale, Jennifer K. Pokempner, Riya Saha Shah, Mark F. Houldin, Robert G. Schwartz

Faculty Scholarship

No abstract provided.

Dead Document Walking, Gary S. Lawson

Faculty Scholarship

As this symposium commences, originalism is a hot topic to discuss and a cool position to advocate. Either portion of that statement would have been nearly inconceivable two decades ago when I started in academia. Originalism at that time was something of an intellectual backwater, with a very limited set of adherents and an even more limited set of critics who were willing to take originalist ideas seriously.1

Introduction: Symposium On ‘Convicting The Innocent, Brandon L. Garrett

Faculty Scholarship

Examining what went wrong in the first 250 DNA exonerations was a sobering occupation, and I describe what I found in my book Convicting the Innocent, published by Harvard University Press in 2011. Still more haunting is the question of how many other wrongful convictions have not been uncovered and will never see the light of day. The New England Law Review has brought together a remarkable group of scholars who have each made leading contributions to the study of wrongful convictions from different disciplines and scholarly perspectives: Simon Cole, Deborah Davis, Gisli H. Gudjonsson, Richard Leo, and Elizabeth Loftus. …

Intellectual Property And Asian Values, Peter K. Yu

Faculty Scholarship

From Niall Ferguson to Fareed Zakaria, commentators have paid growing attention to the rise of Asia and its implications for the West. Recent years have also seen the emergence of a growing volume of literature on intellectual property developments in Asia, in particular China and India. Few commentators, however, have explored whether Asian countries will take unified positions on international intellectual property law and policy.

Commissioned for the Inaugural International Intellectual Property Scholars Series, this article fills the void by examining intellectual property developments in relation to the decades-old 'Asian values' debate. Drawing on the region's diversity in economic and …

Real Remedies For Virtual Injuries, Anita Bernstein

Faculty Scholarship

No abstract provided.

Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail Moncrieff

Faculty Scholarship

As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the incorporation of substantive libertarian concerns into structural federalism analysis. The breadth and depth of scholarly criticism on this point is surprising, however, given that judges today frequently choose indirect methods for protecting substantive constitutional values, including structural and process-based methods of the kinds at issue in the ACA litigation. Indeed, indirection in the protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed “semisubstantive review” and another …

The Kids Aren't Alright: Every Child Should Have An Attorney In Child Welfare Proceedings In Florida, Michael J. Dale, Louis M. Reidenberg

Faculty Scholarship

This article is a continuation of a discussion as to why, as a matter of Florida constitutional law, public policy, and professional ethics, Florida's children need independent attorneys from the inception of all dependency and termination of parental rights cases to their completion. It is based upon events which have occurred since the authors' last article on this topic in the Nova Law Review, including the Barahona case, the resolution by the American Bar Association (ABA) in August 2011 at its Annual Convention in Toronto adopting the ABA Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency …

Policing School Discipline, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

Lawyers As Insincere (But Truthful) Actors, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Tattoos, Tickets, And Other Tawdry Behavior: How Universities Use Federal Law To Hide Their Scandals, Mary Margaret Penrose

Faculty Scholarship

This Article seeks to expose the inappropriate, if not improper, inversion of FERPA by universities falsely in the name of "student privacy." As will be seen, universities do not hesitate to embrace student-athletes' FERPA waivers when the news is good: Academic All-Americans should have their grades trumpeted to the mountaintops, or at least on ESPN. Bad boys and girls, however, particularly those whose behavior initiates NCAA investigations or criminal charges, are routinely and aggressively shielded by the university. This Article will demonstrate that the use of "student privacy" and FERPA defenses by universities are not genuinely invoked for student well-being, …

Making Reputation Salient: Using The Reputation Index With Law Students, Nancy A. Welsh

Faculty Scholarship

Would negotiation students act the way they do in simulations, if they knew this might come back to haunt them? Analyzing the consequences of basing part of students’ final grades on objective results they achieve in negotiation simulations, Welsh found a need for something to counterbalance the expected incentives to engage in distributive tactics and “sharp practice.” She settled on an explicit focus on reputation. While the “reputation index” compiled for each student is only a small fraction of the student’s grade, it is based on recent thinking about the value of negotiators’ reputations even in the short term, and …

The Practice Of Disaster Law, Clifford J. Villa

Faculty Scholarship

9/11…Katrina…the BP Oil Spill…Few of us probably want to say that our primary practice area is “Disaster Law,” but the reality is that it is an increasingly potent area of focus for many law firms. Clifford Villa tells us that 2011 was an unprecedented year for disasters in the United States, and unfortunately, like death and taxes—it likely will continue to grow.

The Current Transitional State Of Court-Connected Adr, Nancy A. Welsh

Faculty Scholarship

Article Extract:

Obviously, there is much to commend in court-connected mediation and what it offers to people caught up in disputes. With the help of mediators, parties may find it more feasible to reflect on their legal and extra-legal needs, prioritize among these needs, engage in open and thoughtful conversation, develop integrative solutions, and even consider the mediators' dispassionate feedback regarding positions or expectations. Proponents of court-connected mediation can also point to a multitude of accomplishments. For example, and most strikingly, many cases settle in mediation.' For the vast majority of those cases, litigants express satisfaction with the process and …

Regrouping America: Immigration Policies And The Reduction Of Prejudice, Fatma E. Marouf

Faculty Scholarship

Since concerns about cohesion based on race and based on immigration tend to go hand in hand, immigration scholars have long noted the need to take them seriously. This Article contributes to an emerging body of scholarship related to the integration of immigrants by examining how current immigration policies deepen or diminish social divides and presenting a framework for analyzing proposed immigration reforms in terms of their impact on social cohesion. Specifically, the Article draws on social psychological research regarding the relationship between social categorization and intergroup relations to propose a method for analyzing how immigration reforms might impact intergroup …

Saving Smokers From Themselves: The Paternalistic Use Of Cigarette Taxes, Gary M. Lucas Jr.

Faculty Scholarship

Governments at all levels have significantly increased cigarette taxes in recent years. Under the framework traditionally used by tax policy analysts, these tax increases are justified (1) if they are necessary to force smokers to internalize the harm that smoking causes others or (2) if they are a fair and efficient way to fund the government. But economists have generally concluded that on net, smokers do not impose large costs on third parties. In addition, heavily taxing cigarettes places a significant financial burden on low-income smokers and their families, which raises fairness concerns. As a result, scholars who support cigarette …

The Sophisticates: Conflicted Representation And The Lehman Bankruptcy, Milan Markovic

Faculty Scholarship

Scholars have long suggested that attorney conflict of interest rules are too onerous and that sophisticated clients may not need the protection of such rules.

This article utilizes the law firm of Sullivan & Cromwell’s representation of Lehman Brothers during the financial crisis as a case study to contend that attorney conflicts of interest can undermine the representation of even extremely sophisticated corporate clients. This is because the significance of a particular conflict can change during the course of a representation and the fact that a sophisticated client may have previously consented to a conflict does not ensure that the …

Choosing Punishment, Miriam H. Baer

Faculty Scholarship

No abstract provided.

Social Media And The Rise In Consumer Bargaining Power, Wayne R. Barnes

Faculty Scholarship

Consumers are constantly entering into form contracts, both offline and online. They do not read most of the terms, but the duty to read says the contracts are nevertheless fully enforceable. Moreover, consumers lack any real bargaining power when assenting to such contracts with merchants. Not only that, but if the products malfunctions, or they are somehow damaged by it, they will likely face the prospect of being limited in their available remedies because of boilerplate terms which are favorable to the merchant. In the “old days,” the consumer had no real recourse but to call a 1-800 number, and …

An Overview Of State Anti-Bullying Legislation And Other Related Laws, Dena T. Sacco, Katharine B. Silbaugh, Felipe Corredor, June Casey, Davis Doherty

Faculty Scholarship

As a part of its collaboration with the Born This Way Foundation, the Berkman Center is publishing a series of papers that synthesize existing peer-reviewed research or equivalent scholarship and provide research-grounded insight to the variety of stakeholders working on issues related to youth empowerment and action towards creating a kinder, braver world. This series, called the The Kinder & Braver World Project: Research Series (Danah Boyd and John Palfrey, editors), is presented by the Born This Way Foundation & the Berkman Center for Internet and Society at Harvard University, and supported by the John D. & Catherine T. MacArthur …

(Re)Forming The Jury: Detection And Disinfection Of Implicit Juror Bias, Anna Roberts

Faculty Scholarship

No abstract provided.