Digital Commons Network^™

Access To Health Care In Texas: A Patient-Centered Perspective, Laura Hermer, William J. Winslade

Faculty Scholarship

Access to health coverage in Texas is, and continues to be, an urgent policy issue. This article provides an overview and evaluation of the primary state- or local-based and private financial means through which Texans gain access to health care, and offers suggestions to the Texas Legislature to help improve coverage access.

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease "--the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of government, …

Affirmative Action And Colorblindness From The Original Position, Guy-Uriel Charles

Faculty Scholarship

In this Article, the author explores Grutter v. Bollinger from the vantage point of the colorblindness principle. He posits that the Grutter decision is noteworthy for two reasons. First, the Court rejected the argument that the Constitution is colorblind and that the classifications based on race are per se unconstitutional. Second, the Court explicitly recognized that racial categorizations are not all morally equivalent. The author uses classical liberalism as a heuristic for exploring whether the colorblindness argument is necessarily a moral imperative. He ultimately concludes that the Court adopted the correct approach in Grutter in rejecting the allure of the …

Modeling A Response To Predatory Lending: The New Jersey Home Ownership Security Act Of 2002, David Reiss, Baher Azmy

Faculty Scholarship

No abstract provided.

Subtle Hazards Revisited: The Corruption Of A Financial Holding Company By A Corporate Client's Inner Circle, James A. Fanto

Faculty Scholarship

No abstract provided.

Merger Of Law And Mediation: Lessons From Equity Jurisprudence And Roscoe Pound, The , Jacqueline Nolan-Haley

Faculty Scholarship

This article examines Roscoe Pound's concerns with the decline of equity jurisprudence in the American legal system, suggesting that they resonate with those of modern ADR scholars who worry about the effects of blending settlement with adjudication and mediation with the law. It examines court-connected mediation with particular emphasis on the historic parallels between equity and mediation. Both equity and mediation offer a form of "individualized justice" unavailable in the official legal system, and each allow room for mercy in an otherwise rigid, rule-bound justice system. Yet, scholars question whether equity today is still equitable and whether institutionalized mediation offers …

[N]Ot A Story To Pass On: Constructing Mothers Who Kill, Susan Ayres

Faculty Scholarship

Toni Morrison has said in her Nobel acceptance speech, “We die. That may be the meaning of life. But we do language. That may be the measure of our lives.” How we “do language” in judicial decisions about infanticide can perhaps be compared to and informed by fiction such as Toni Morrison’s Beloved.

Beloved provides a fictional account of the life of a historical woman, a slave who escaped to freedom and then attempted to kill all four of her children, successfully killing one when her master came to claim her under the Fugitive Slave Act. In addition to …

Difficult Decisions During Wartime: A Letter From A Non–Alien In An Internment Camp To A Friend Back Home, Frank H. Wu

Faculty Scholarship

No abstract provided.

Behind The Process Remembering John Ely's Compassion, Clark Freshman

Faculty Scholarship

No abstract provided.

Who Gets In? The Quest For Diversity After Grutter, Margaret E. Montoya, Athena Mutua, Sheldon Zedeck, Frank H. Wu, Charles E. Daye, David L. Chambers

Faculty Scholarship

Transcript of The 2004 James McCormick Mitchell Lecture. On March 8, 2004, the University at Buffalo Law School hosted its annual Mitchell Lecture,1 a panel discussion entitled, "Who Gets In? The Quest for Diversity After Grutter." The Mitchell Committee decided to focus this year's lecture on innovative proposals to ensure diversity in law school admissions in light of the Supreme Court's ruling in Grutter v. Bollinger, which confirmed that race and ethnicity could be taken into consideration in admission decisions for diversity purposes. Noting that much of the debate about Grutter thus far has emphasized the decision's constitutionality or its …

The Promise And Perils Of "Our" Justice: Psychological, Critical And Economic Perspectives On Communities And Prejudices In Mediation, Clark Freshman

Faculty Scholarship

No abstract provided.

Hitting The Maternal Wall-Before They Reach A "Glass Ceiling" In Their Careers, Women Faculty May Hit A "Maternal Wall", Joan C. Williams

Faculty Scholarship

No abstract provided.

The Implementation Of Fda Determinations In Litigation - Why Do We Defer To The Pto But Not To The Fda?, William G. Childs

Faculty Scholarship

This Article examines the possible inequity of the treatment of licensees' rights in tort litigation in comparison to patent rights in patent litigation. In particular, this Article presents the presumptions afforded from issued patents as a valid model for the proper treatment of FDA approval in litigation. Presently, most academic discussion proposes either preclusion of tort claims or leaving the system more or less as it stands. This Article, on the other hand, proposes a middle ground.

This Article begins by examining the differences between the USPTO and the FDA. In particular, the quantity and quality of the review provided …

Kierkegaard As An Enlightenment Thinker, Jeremy Bendik-Keymer

Faculty Scholarship

What if Kierkegaard were not a counter-Enlightenment thinker, but were a deeper enlightenment thinker? In this talk, I want to propose an interpretation of S.K.’s work under which he continues the Enlightenment, rather than discontinuing it. I will claim that Kierkegaard deepened and advanced one of the most central aspects of “enlightenment”, at least as Kant and the subsequent tradition has defined it. Kierkegaard was an enlightenment thinker (lower case “e”!), and therefore it is misleading to see him as opposed to the heart of the Enlightenment (upper case “e”).

Domesticating Lawrence, David D. Meyer

Faculty Scholarship

No abstract provided.

Probation Restrictions Impacting The Right To Procreate: The Oakley Error, Jennifer L. Levi

Faculty Scholarship

In State v. Oakley, the all-male four-justice majority held that a probation condition restricting David Oakley's right to have children passed constitutional muster. This Article discusses this question of the appropriate approach to evaluating the constitutionality of probation conditions. The Wisconsin Supreme Court's approach is compared to that of other courts in cases involving, in some way, decisions limiting a probationer's right to have children. The Author concludes that regardless of what constitutional standard or degree of scrutiny courts apply, cases can (and do) go both ways with respect to upholding or striking down probation restrictions on fundamental rights. However, …

Social Justice In European Contract Law A Manifesto, Ugo Mattei

Faculty Scholarship

No abstract provided.

Settlement Advocacy, Kay Elkins-Elliott, Frank W. Elliott

Faculty Scholarship

For many years, law schools have based most of their "practical" instruction on the adversary system's last choice: trials and appeals. First year students are taught how to write an appellate brief and how to make an appellant argument. Maybe this is good, since the odds are that any given student will never again write a brief or make such an argument. After the first year of law school, students are swept into trial advocacy courses, mock trial competitions, and appellate advocacy competitions: learning how to influence the minds of jurors and appellate judges. We all know that these activities …

Abstinence-Only Adolescent Education: Ineffective, Unpopular, And Unconstitutional, James Mcgrath

Faculty Scholarship

Abstinence-only and abstinence-only-until-marriage education programs, ostensibly designed to prevent unwanted pregnancy and sexually transmitted disease ("STD") infection, are a waste of valuable public health resources of both time and money. These ideologically based interventions interfere with serious, effective public health education and must be dismantled. Not only are abstinence-only programs ineffective for their intended purpose, they are dangerous in that they fail to protect our nation's youth against serious and potentially deadly diseases. Furthermore, these programs unconstitutionally violate both the Establishment Clause and the unconstitutional conditions doctrine.

Part I of this Article reviews the history of abstinence-only education funding legislation …

Whistleblowing And The Public Director: Countering Corporate Inner Circles, James A. Fanto

Faculty Scholarship

No abstract provided.

Pernicious Ambiguity In Contracts And Statutes, Lawrence Solan

Faculty Scholarship

No abstract provided.

The Coalition For Consumer Bankruptcy Debtor Education: A Report On Its Pilot Program, Susan Block-Lieb, Corinne Baron-Donovan, Karen Gross, Richard Wiener

Faculty Scholarship

No abstract provided.

Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain

Faculty Scholarship

This article focuses on the place of associations within John Rawls's political liberalism and in feminist liberalism. It revisits crucial components of political liberalism in light of feminist criticisms, such as those of Susan Moller Okin and Martha Nussbaum, that political liberalism's protection of associational life hinders women's free and equal citizenship. Offering a different reading of Rawls, it finds greater potential to draw on political liberalism to support such citizenship. It then brings liberal feminist ideas about the place of associations into dialogue with recent feminist work on gender, rights, and culture calling for models of rights within culture …

Philosophy Of Contract Law, Jody S. Kraus

Faculty Scholarship

This article identifies a set of methodological commitments that help to explain the methodological differences between autonomy (deontic) and economic contract theories that have opposing views about the nature of law and legal theory. It begins with the discussion of the four methodological issues that divide contemporary autonomy and economic theories of contract. The dispute over the relative priority of the normative and explanatory enterprises of contract theory may simply reflect the different theoretical goals of deontic and economic theorists. These intellectual origins may explain not only the different priorities of deontic and economic contract theories, but their different conceptions …

The Abcs Of Global Governance Of Embryonic Stem Cell Research: Arbitrage, Bioethics And Cloning, George J. Annas

Faculty Scholarship

Symposium: Stem Cell Research and Human Cloning: Where Do We Draw the Line: Symposium Transactions

Thank you for that introduction, which reminds me that I used to do regulatory work for the Commonwealth of Massachusetts, primarily as a member of the Board of Registration in Medicine, and we had real regulations, real law, that could be enforced. What I am going to talk about today is not "fake law," but a kind of law that is often seen as more like ethics-international law. There is really no such thing as global bioethics governance, but I would like to think that …

Measuring Share Price Accuracy, Merritt B. Fox

Faculty Scholarship

This Article concerns how to measure share price accuracy. It is prompted by the fact that many scholars believe that the prices established in the stock market affect the efficiency of the real economy. In their view, more accurate prices increase the amount of value added by capital-utilizing enterprises as these enterprises use society's scarce resources for the production of goods and services. More accurate share prices help improve both the quality of choice among new proposed investment projects in the economy and the operation of existing real assets currently in corporate hands.

The proposition that more accurate share prices …

Punishment, Guilt, And Shame In Biblical Thought, George P. Fletcher

Faculty Scholarship

The centrality of guilt in the criminal law provides puzzling perspective in the perennial debate on the nature and purpose of punishment. Why is it that all legal systems use this highly charged moral term to refer to an essential component of liability to punishment? This question is not easily answered. The reliance on the concept of guilt in the criminal law is suffused with paradox and mystery.

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of …

Reappraising T.L.O.'S Special Needs Doctrine In An Era Of School-Law Enforcement Entanglement, Joshua Gupta-Kagan

Faculty Scholarship

This essay presents one doctrinal method for lawyers to defend children accused of criminal charges in juvenile or adult court: attacking the applicability of the nearly twenty-year old case, New Jersey v. T.L.O. to most school searches. T.L.O. established a lower standard for searches of students by school officials, but it explicitly did not decide what standard the government must meet to justify school searches performed by police officers, creating a doctrinal starting point for advocates to raise challenges to searches involving police. More fundamentally, the T.L.O. Court based its decision on the presumption that firm gates separate public school …