Digital Commons Network^™

Adoption, Identity, And The Constitution: The Case For Opening Closed Records, Naomi R. Cahn, Jana B. Singer

Faculty Scholarship

No abstract provided.

Toward A Global Critical Feminist Vision: Domestic Work And The Nanny Tax Debate, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

From Property To Personhood: What The Legal System Should Do For Children In Family Violence Cases, Leigh S. Goodmark

Faculty Scholarship

No abstract provided.

Dreiser's Real American Tragedy, Kathryn M. Plank

Faculty Scholarship

No abstract provided.

An Interdisciplinary Analysis Of Statements To Mental Health Professionals Under The Diagnosis Or Treatment Hearsay Exception, John J. Capowski

Faculty Scholarship

No abstract provided.

Family Ties: Solving The Constitutional Dilemma Of The Faultless Father, David D. Meyer

Faculty Scholarship

No abstract provided.

Markets And Women's International Human Rights, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

[On The] Road Back In: Community Lawyering In Indigenous Communities, Christine Zuni Cruz

Faculty Scholarship

The idea of professional success,especially in the elite legal profession, as being closely linked to community or having corresponding value to the community has directly affected my view of individual lawyering. Excerpts reprinted in: Social Justice: Professionals, Communities and Law, 11 (Mahoney, Calmore, Wildman, eds., 2003); Lawyers Ethics and The Pursuit of Social Justice and Ethics 201 (Susan D. Carle, ed., 2005); Clinical Anthology, Readings for Live-Client Clinics, (2d Ed., A.J. Hurder, et al., eds., 2011).

Confessions And Culture: The Interaction Of Miranda And Diversity, Floralynn Einesman

Faculty Scholarship

No abstract provided.

Not Quite Grown Up: The Difficulty Of Applying An Adult Education Model To Legal Externs, Linda H. Morton, Janet Weinstein, Mark Weinstein

Faculty Scholarship

Using andragogical theory developed by Malcolm Knowles as a foundation as well as a counterpoint, this article presents a new framework for teaching clinic students. Frustrated by tensions they encountered in teaching students whom they expected to have all the qualities of “adult learners,” the authors developed a new theory that blends humanistic as well as developmental theory. The article describes this new theory and evaluates why it works in clinical teaching.

Bringing Dignity Back To Light: Publicity Rights And The Eclipse Of The Tort Of Appropriation Of Identity, Jonathan Kahn

Faculty Scholarship

Over the years, the privacy-based tort of appropriation has become eclipsed by its flashier cousin, publicity. Such is perhaps to be expected in a world where seemingly everything has been turned into a saleable commodity. When celebrities are perpetually trading on their names and images in the open market, it may seem quaint, at best, to invoke a dignity as a basis for protecting personal identity. But this is exactly what happens. In case after case, even as they demand restitution for the converted monetary value of their names and images, celebrities also invoke dignitary concerns as a prime motivation …

Discontinuous Tradition Of Sentencing Discretion: Koon's Failure To Recognize The Reshaping Of Judicial Discretion Under The Guidelines, The, Ian Weinstein

Faculty Scholarship

Can a judge exercise discretion and follow the law? Some think it impossible, seeing discretion as the opposite of law. Others have harmonized the two ideas, viewing discretion as the exercise of judgment according to and within the bounds of the law. Those who decry judicial discretion urge legislatures to enact more specific laws and leave less room for the vice of inconsistent results. Those who defend discretion would channel it to achieve the virtue of individualized justice. The tension between individualization and uniformity in the law is often unnecessarily heightened by an inadequate analysis of judicial discretion. The exercise …

Five Modern Notions In Search Of An Author: The Ideology Of The Intimate Society In Constitutional Speech Law, Marie Failinger

Faculty Scholarship

In this article, drawing heavily on the work of sociologist Richard Sennett, the author argues that the Court’s jurisprudence lends credence to, and exacerbates, five damaging “common sense” notions about American public social life: that public space and time are naked or empty, and can be imagined as no more than transportation tunnels or even the binoculars of a voyeur, as illustrated by the public forum doctrine; that massed acts of public communication, or “speech crowds” are dangerous and must be controlled by force, as the public forum and “clear and present danger” doctrines suggest; that “shadow” space for deviant …

Bulletproofing The Workplace: Symbol And Substance In Employment Discrimination Law Practice, Susan Bisom-Rapp

Faculty Scholarship

This Article examines how employment lawyers representing management play a role in creating data and affect the perception of employment disputes. More specifically, it explores how defense lawyers attempt to strategically position employers to safeguard these clients against discrimination and other employment-related litigation. A primary focus of their advice is on producing an evidentiary record that an employer can use defensively should the need ever arise. Defense attorneys, therefore, counsel employers to implement and carefully administer standardized employee evaluation systems and train supervisors how to write up and terminate employees without running afoul of the law.

It goes without saying …

The Legal And The Ethical In Legal Ethics: A Brief Rejoinder To Comments On The Practice Of Justice, William H. Simon

Faculty Scholarship

We have here, not the clash of opposites, but a series of family quarrels within what you might call the Party of Aspiration in legal ethics. My seven allies and I all favor lawyers' ethic of more complex judgment, and more responsibility to nonclients than the currently dominant one. The differences among us are not large from the broadest perspective, but they involve issues that are quite important to the elaboration of the sort of alternative ethic we would like to see.

I am enormously grateful for the care and attention the commentators have taken. They have frequently stated my …

Broadening Our World: Citizens And Immigrants Of Color In America, Victor C. Romero

Faculty Scholarship

This article was originally presented at a symposium. The article discusses affirmative action and ways of increasing diversity in higher education.

Judgment Proofing: A Rejoinder, Steven L. Schwarcz

Faculty Scholarship

No abstract provided.

Organized Violence And The Future Of International Law: A Practitioner's View Of The Emerging Issues, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Book Review, Matthew D. Adler

Faculty Scholarship

Reviewing, Incommensurability, Incomparability and Practical Reason (Ruth Chang ed., 1997)

Technology And The 21st Century Battlefield: Recomplicating Moral Life For The Statesman And The Soldier, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Face-Ing The Other: An Ethics Of Encounter And Solidarity In Legal Services Practice, Marie Failinger

Faculty Scholarship

In this article, the author proposes that those who work in any capacity with impoverished clients and embattled minority communities imagine practice from within Levinas' key images. First, that ethics is first philosophy - that knowledge of the self, the Other and the context in which ethical action is possible does not precede ethical understanding, decision-making and action, but that rather that we become human in the ethical encounter with the incommensurable Other. Second, that representing a client is in each moment an encounter with the face of the Other. We look up into the face of the Other calling …

Japan's Experience With Deposit Insurance And Failing Banks: Implications For Financial Regulatory Design?, Curtis J. Milhaupt

Faculty Scholarship

This Article examines three decades of Japanese experience with deposit insurance andfailing banks, and analyzes the implications of that experience for bank safety net reform in other countries. To date, the literature and policy debate on deposit insurance have been heavily colored by U.S. banking history and have focused almost exclusively on explicit deposit protection schemes. Analysis of Japan's safety net experience suggests that (a) deposit insurance, for all its flaws, is superior to the real-world alternative-implicit government protection of depositors and discretionary regulatory intervention in bank distress, (b) a well-designed explicit deposit insurance system that includes a credible bank …

The Cutting Edge Of Poster Law, Michael A. Heller

Faculty Scholarship

Students place tens of thousands of posters around law schools each year – in staircases, on walls, and on bulletin boards. Rarely, however, do formal disputes about postering arise. Students know how far to go – and go no farther despite numerous avenues for postering deviance: blizzarding, megasigns, commercial or scurrilous signs. What is the history of poster law? What are its norms and rules, privileges and procedures? Is poster law effident? Is it just?

The Contribution Of The Fund Profile To Investor Education, James A. Fanto

Faculty Scholarship

No abstract provided.

Testing For Genetic Traits: The Need For A New Legal Doctrine Of Informed Consent , Elizabeth B. Cooper

Faculty Scholarship

Innovative medical technology has made it possible to test whether you are at increased risk for certain types of cancer. The mere processing of a vial of blood can reveal whether you have a genetic predisposition to develop breast, ovarian, or prostate cancer, or other life-threatening conditions. The Human Genome Project, an international endeavor seeking to map our genetic structures, has facilitated this increasing ability to test for genetic flaws. It is expected that as the human genetic map is filled in, and as flaws in our fundamental building blocks are identified, there will be a concomitant drive to test …

Reviving The Public/Private Distinction In Feminist Theorizing Symposium On Unfinished Feminist Business, Tracy E. Higgins

Faculty Scholarship

The public/private distinction has been a target of thoroughgoing feminist critique for quite some time now. Indeed, attacking the public/private line has been one of the primary concerns (if not the primary concern) of feminist legal theorizing for over two decades. If Carole Pateman is correct, one would think that this particular problem might be assigned to the category of "finished business" by this time. In this Essay, I do argue that the critique is, in certain ways, finished business in that it is no longer particularly useful in its most common forms. More importantly, however, I suggest several ways …

Diseases Of Meaning, Manifestations Of Health, And Metaphor, Peter J. Whitehouse

Faculty Scholarship

Disease and health are commonly thought of as distinct opposites. We propose a different view in which both may be seen to be facets of healthy functioning, each necessary for the other, each giving rise to the other. Thus, disease may be thought of as a manifestation of health. It is the healthy response of an organism striving to maintain physical, psychologic, and spiritual equilibrium. Disease is not necessarily to be avoided, blocked, or suppressed. Rather, it should be understood to be a process of transformation. The process should therefore be facilitated because it is an integral part of the …

The Inherent Irrationality Of Judgment Proofing, Steven L. Schwarcz

Faculty Scholarship

In recent articles in the Yale Law Journal and the Stanford Law Review, Professor Lynn M. LoPucki has sparked much academic discussion arguing that recent developments in corporate law have led to an erosion in the system of corporate liability, such that it might one day prove impotent. LoPucki has argued that transactions such as asset securitizations, sale-leasebacks, and corporate structures in which liabilities are placed in asset-poor subsidiaries are driving this change. One early critic to the LoPucki thesis, Professor James J. White, has argued that empirical data show no evidence of increasing use of judgement proofing techniques. In …

Commenting On Student Writing, Beth Cohen, Jocelyn Cuffee, Harris Freeman, Jeanne M. Kaiser, Myra G. Orlen

Faculty Scholarship

The Authors from Western New England College School of Law discuss perspectives on and approaches to responding to student writing.

Judicial Hostility Toward Labor Unions--Applying The Social Background Model To A Celebrated Concern , James J. Brudney, Sara Schiavoni, Deborah J. Merritt

Faculty Scholarship

Brudney, Schiavoni, and Merritt address an important debate dividing lawyers And political scientists: To what extent do extra doctrinal factors such as political party, gender, and professional experience influence judicial decision making? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of Judicial bias. By including every federal court of appeals decision applying the Act over a seven year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decision …