Digital Commons Network^™

Improving The Odds Of Government Accountability In The Disaster-Prone Era: Using The 9/11 Fund Factors To Remedy The Problem Of Toxic Katrina Trailers, Olympia Duhart

Faculty Scholarship

Olympia Duhart, Improving the Odds of Government Accountability in the Disaster-Prone Era: Using the 9/11 Fund Factors to Remedy the Problem of Toxic Katrina Trailers, 24 Journal of Land Use and Environmental Law 2 (2009). This article analyzes the dangers surrounding the toxicity levels in the trailers issued to Katrina survivors by FEMA, and identifies serious medical complications stemming from the temporary homes. Lack of government oversight in the process led to the distribution of formaldehyde-laced trailers that cost the government more than $2 billion and continue to poison residents years after the storm. Furthermore, the failures connected to …

"Streamlining" The Rule Of Law: How The Department Of Justice Is Undermining Judicial Review Of Agency Action, Shruti Rana

Faculty Scholarship

Judicial review of administrative decision making is an essential institutional check on agency power. Recently, however, the Department of Justice dramatically revised its regulations in an attempt to insulate its decision making from public and federal court scrutiny. These “streamlining” rules, carried out in the name of national security and immigration reform, have led to a breakdown in the rule of law in our judicial system. While much attention has been focused on the Department of Justice’s recent attempts to shield executive power from the reach of Congress, its efforts to undermine judicial review have so far escaped such scrutiny. …

Students Schooling Students: Gaining Professional Benefits While Helping Urban High School Students Achieve Success, Susan P. Leviton, Justin A. Browne

Faculty Scholarship

This article looks at the educational plight of urban low income children and explores the opportunities for success that small urban high schools provide. It then distills commonalities among successful small schools to demonstrate three central points: 1) that small is essential but not sufficient; 2) that small schools offer an opportunity for urban school districts to help improve educational opportunities for disadvantaged students by providing a fertile environment where individualized instruction, more class time, better-trained teachers, and a curriculum that prepares students psychologically and emotionally, as well as intellectually can help them overcome the adverse effects of poverty; and …

Dr. King And The Battle For Hearts And Minds, Wendy B. Scott

Faculty Scholarship

In 1954, a unanimous Supreme Court held that laws requiring dual public school systems, separated solely on the basis of race, violated the rights afforded to African American children under the Fourteenth Amendment Equal Protection and Due Process clauses. Brown v. Board of Education marked the beginning of a judicial assault on what the Court in Loving v. Virginia called statutory schemes and state court decisions that served as “an endorsement of the doctrine of White Supremacy.” Both Chief Justice Earl Warren and Dr. King recognized that the practice of White Supremacy did more than keep people separated. In Brown, …

Putting Community Equity In Community Development: Resident Equity Participation In Urban Redevelopment, Barbara Bezdek

Faculty Scholarship

The special concern of this paper is to recalibrate the benefits and burdens of public-private partnerships as they remake inner city neighborhoods, by braking the rate at which urban land is being reclaimed from low-wealth residents by local government practices to disperse occupants, sweeping aside their tangible and intangible capital. Public oversight requirements have not kept pace with the dispossession, yet the costs that these development decisions impose on the social fabric of communities rend the shared networks necessary to residents’ abilities to meet basic social needs. This destruction of low-wealth communities is a form of equity-stripping, produced by local …

Dispute Resolution And The Post-Divorce Family: Implications Of A Paradigm Shift, Jana B. Singer

Faculty Scholarship

Over the past two decades, there has been a paradigm shift in the way the legal system handles most family disputes – particularly disputes involving children. This paradigm shift has replaced the law-oriented and judge-focused model of adjudication with a more collaborative, interdisciplinary and forward-looking family dispute resolution regime. It has also transformed the practice of family law and fundamentally altered the way in which disputing families interact with the legal system. This essay examines the elements of this paradigm shift in family dispute resolution and explores the opportunities and challenges it offers for families, children and the legal system.

For Both Love And Money: Viviana Zelizer's "The Purchase Of Intimacy", Martha M. Ertman

Faculty Scholarship

Viviana Zelizer’s recent book, The Purchase of Intimacy (2005) presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships--a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer’s critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships, then explains her more three-dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer’s approach to transfers of genetic material, and concluding …

Equality And Sorority During The Decade After Brown, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

Commentary [On Negligent Infliction Of Emotional Distress], Oscar S. Gray

Faculty Scholarship

These comments question the terminology used in the Third Restatement of Torts for psychological effects, partially on the ground of obsolescence in light of developments in the neurosciences. Instead of the distinction emphasized in the Third Restatement between “physical harm” and “emotional disturbance” (or “distress”), they suggest a distinction between “harm” that constitutes an impairment of functionality, which would be treated as a free-standing basis for liability, like conventional diseases or injuries, and “mere feelings”, which would continue to be compensable in negligence only parasitically. Similarly, the interest protected should be regarded not as an interest in freedom from “disturbance” …

Saving Facebook, James Grimmelmann

Faculty Scholarship

This Article provides the first comprehensive analysis of the law and policy of privacy on social network sites, using Facebook as its principal example. It explains how Facebook users socialize on the site, why they misunderstand the risks involved, and how their privacy suffers as a result. Facebook offers a socially compelling platform that also facilitates peer-to-peer privacy violations: users harming each others’ privacy interests. These two facts are inextricably linked; people use Facebook with the goal of sharing some information about themselves. Policymakers cannot make Facebook completely safe, but they can help people use it safely.

The Article makes …

Reframing Domestic Violence Law And Policy: An Anti-Essentialist Proposal, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Autonomy Feminism: An Anti-Essentialist Critique Of Mandatory Interventions In Domestic Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

The Costs Of Multiple Gestation Pregnancies In Assisted Reproduction, Urska Velikonja

Faculty Scholarship

The United States, unlike most developed countries, does not regulate its fertility industry. Rather, it vests control over the industry to professional organizations and to market forces. While lack of regulation has produced a vibrant market for fertility services, it has also produced an undesirable consequence: a high rate of multiple gestation pregnancies, including twin pregnancies. This Article summarizes the data on the medical, psychological, and financial costs associated with multiple pregnancies to the parents, the children, and American society. It suggests that the current U.S. regulatory regime has not only failed to address these costs as they surfaced but …

Red Detachment Of Women And The Enterprise Of Making ‘Model’ Music During The Chinese Cultural Revolution, Clare Sher Ling Eng

Faculty Scholarship

Artworks produced with official sanction during periods marked by turmoil and human suffering are challenging subjects for scholars who would like to discuss them in a fair and responsible manner. If they aestheticize the works’ form and political affiliation, how would they be doing justice to these works whose creation and content are so meshed with the politics of their time? On the other hand, can an approach that takes ideology into account be developed that does not appear to ignore, condone or support the odious acts of violence associated with those periods? This article explores the latter question with …

How To Improve Empirical Desert, Adam Kolber

Faculty Scholarship

No abstract provided.

Improving The Odds Of Government Accountability In The Disaster-Prone Era: Using The 9/11 Fund Factors To Remedy The Problem Of Toxic Katrina Trailers, Olympia Duhart

Faculty Scholarship

This article analyzes the dangers surrounding the toxicity levels in the trailers issued to Katrina survivors by FEMA, and identifies serious medical complications stemming from the temporary homes. Lack of government oversight in the process led to the distribution of formaldehyde-laced trailers that cost the government more than $2 billion and continue to poison residents years after the storm. Furthermore, the failures connected to disaster relief are even more disturbing in this disaster-prone era. More importantly, this paper also proposes the creation of a Toxic Trailer Fund to compensate residents of toxic FEMA trailers. Using the factors implicitly established by …

Of The People, By The People, For The People: Lincoln's Legacy Of Financial And Economic Sovereignty, Timothy A. Canova

Faculty Scholarship

Timothy Canova, Of the People, By the People, For the People: Lincoln's Legacy of Financial and Economic Sovereignty, 12 Chapman Law Review 561 (2009). This article considers Lincoln’s system of public finance in a broad historical perspective. In the weeks prior to Lincoln‘s inauguration, the financial markets were swept by panic, the hoarding of gold, and a crisis perhaps more dangerous than other classic Keynesian liquidity traps, such as in March 1933 and September 2008. In 1861, there was no central bank with the authority to issue currency and inject liquidity into the financial system to try to restrain …

Ecosystem Services In Decision Making: Time To Deliver, James Salzman, Gretchen C. Daily, Stephen Polasky, Joshua Goldstein, Peter M. Kareiva, Harold A. Mooney, Liba Pejchar, Taylor H. Ricketts, Robert Shallenberger

Faculty Scholarship

Over the past decade, efforts to value and protect ecosystem services have been promoted by many as the last, best hope for making conservation mainstream – attractive and commonplace worldwide. In theory, if we can help individuals and institutions to recognize the value of nature, then this should greatly increase investments in conservation, while at the same time fostering human well-being. In practice, however, we have not yet developed the scientific basis, nor the policy and finance mechanisms, for incorporating natural capital into resource- and land-use decisions on a large scale. Here, we propose a conceptual framework and sketch out …

Music And Community: Interdependence And Shared Learning In An Undergraduate Elementary Music Methods Course, Lisa Huisman Koops

Faculty Scholarship

In this study, the author investigated the creation of a community of learners in an under- graduate elementary music methods course. Participants included undergraduate students (n = 23) and a professor at a Midwestern liberal arts college. Data consisted of fieldnotes from class observations and interviews with the professor and students. The following priorities and concepts emerged as themes: interdependence, shared learning, personal growth, safe environment, and inclusiveness. The success of the community of learners seemed to be due in part to the professor’s dynamic, student-centered, interdependent approach to the course. Transferable aspects related to the creation of a community …

The Practice Of Ethics, Jeremy Bendik-Keymer

Faculty Scholarship

The point of this talk is not to school you in the practice of ethics, but to raise questions about the practice of ethics. There is a standard picture of the practice of ethics that goes like this:

Ethical theory is done in a classroom. It is divided into normative theory, meta-ethics, and descriptive ethics. Students learn to see how the ethics in their society and community works; they learn how to discover true ethical beliefs and sometimes discover them during class. Through meta-ethics, they understand what it is to have an ethical belief. Then –and here comes the practice …

The Notsogolden Years Why Hate Crime Legislation Is Failing A Vulnerable Aging Population, Helia Garrido Hull

Faculty Scholarship

No abstract provided.

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism, Thaddeus Mason Pope

Faculty Scholarship

2.6 million Americans die each year. A majority of these deaths occur in a healthcare institution as the result of a deliberate decision to stop life sustaining medical treatment. Unfortunately, these end-of-life decisions are marked with significant conflict between patients' family members and healthcare providers. Healthcare ethics committees (HECs) have been the dispute resolution forum for many of these conflicts.

HECs generally have been considered to play a mere advisory, facilitative role. But, in fact, HECs often serve a decision making role. Both in law and practice HECs increasingly have been given significant authority and responsibility to make treatment decisions. …

My Lawyer Told Me To Say I'M Sorry: Lawyers, Doctors, And Medical Apologies, Peter B. Knapp

Faculty Scholarship

The role of apologies in litigation has received a great deal of attention in the last ten years. This is particularly true of “medical apologies,” those expressions of regret and, in some cases, admissions of responsibility made by health care professionals. Two recent trends have prompted examination of medical apologies. First, widely reported empirical studies suggest that patients and their families may be less likely to bring malpractice lawsuits following adverse outcomes if treating physicians have apologized. Second, over about the past ten years, two-thirds of the states have adopted statutes that exclude these apologies from evidence if there is …

Evaluating The Consequences Of Calibrated Sentencing: A Response To Professor Kolber, Miriam H. Baer

Faculty Scholarship

This is a Response to Adam Kolber's essay, The Subjective Experience of Punishment, 109 Colum. L. Rev. 182 (2009). Kobler criticizes courts for failing to take into account subjective experience of punishment when imposing sentences for criminal conduct. Kolber contends that the failure to calibrate punishment to reflect subjective experience undermines both retributivist and consequentialist arguments for punishment.

This Response grapples with the consequentialist implications of Kolber's argument. Specifically, it argues that calibrated sentencing may be far less desirable than its logical alternative, calibrated policing. Indeed, many would say that we already distribute police resources based on our estimation of …

Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin

Faculty Scholarship

This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through …

Regulating Complexity In Financial Markets, Steven L. Schwarcz

Faculty Scholarship

As the financial crisis has tragically illustrated, the complexities of modern financial markets and investment securities can trigger systemic market failures. Addressing these complexities, this Article maintains, is perhaps the greatest financial-market challenge of the future. The Article first examines and explains the nature of these complexities. It then analyzes the regulatory and other steps that should be considered to reduce the potential for failure. Because complex financial markets resemble complex engineering systems, and failures in those markets have characteristics of failures in those systems, the Article‟s analysis draws on chaos theory and other approaches used to analyze complex engineering …

Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur

Faculty Scholarship

This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …

Best Cass Scenario, Jonathan B. Wiener

Faculty Scholarship

No abstract provided.

The Conscientious Legislator And Public Opinion On Taxes, Lawrence A. Zelenak

Faculty Scholarship

This essay examines some of the difficulties of understanding public opinion on taxes, and offers some suggestions as to how the conscientious legislator might proceed in light of those difficulties. The essay begins by describing two contexts in which public opinion appears to contradict itself, and suggests how the apparent contradictions might be resolved. It then offers three suggestions for the conscientious legislator whose goal is to discern (rather than to manipulate) public opinion on taxes - to be neither unduly optimistic nor despairing about the potential for educating the public on tax policy issues, to understand and guard against …

"Death Is Different" And A Refugee's Right To Counsel, John Mills, Kristen M. Echemendia, Stephen Yale-Loehr

Faculty Scholarship

No abstract provided.