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Brief For American Association On Mental Retardation, The Arc Of The United States, The Judge David L. Bazelon Center For Mental Health Law, The Arc Of Georgia, And The Georgia Advocacy Office, Stripling V. Head, James W. Ellis, Carol M. Suzuki Ms., Norman C. Bay, Christian G. Fritz

Faculty Scholarship

Pursuant to Rule 37.2(b) of the Rules of this Court, The Arc of the United States, el al., move the Court for leave to file a Brief Amici Curiae in support of the petition in the above-entitled case. Counsel for Petitioner has granted his consent to the filing of this brief. Counsel for Respondent, however, has notified counsel for amici that Respondent does not consent.

Amici include national and state professional and voluntary associations concerned with criminA1 proceedings affecting people with mental disabilities. Amici thus have expertise concerning criminal defendants with mental disabilities and the impediments to fair judicial processes …

Brief For American Association On Mental Retardation, The Arc, The Judge David L. Bazelon Center For Mental Health Law, American Academy Of Psychiatry And The Law, And Tash, Tennard V. Dretke, James W. Ellis, Norman C. Bay, Michael Browde, Christian G. Fritz, April Land, Robert Schwartz

Faculty Scholarship

The obstacles placed by the Fifth Circuit in the path of jurors' fair consideration of a defendant's condition are inconsistent with this Court's teachings about the fundamental importance of the jury's role in determining the appropriate penalty in capital cases.

Subsidized Guardianship: A New Permanancy Option, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

A Miscarriage Of Justice In Massachusetts: Eyewitness Identification Procedures, Unrecorded Admissions, And A Comparison With English Law, Stanley Z. Fisher, Ian K. Mckenzie

Faculty Scholarship

Like many other states, Massachusetts has recently known a number of acknowledged miscarriages of justice. This article examines one of them, the Marvin Mitchell case, in order to ask two questions: "What went wrong?" and "What systemic reforms might have prevented this injustice?" In seeking ideas for reform, we look to English law.

In 1990 Marvin Mitchell was convicted of rape in Massachusetts. Seven years later he became the first Massachusetts prisoner to be exonerated by DNA testing. In this article we describe the two key factors leading to Mitchell's wrongful conviction: faulty eyewitness identification procedures, and inadequate safeguards surrounding …

Archetypal Trials And The Management Of Dissent: Some Insights From Marketing Theory, Pnina Lahav

Faculty Scholarship

Recent marketing theory uses the Jungian concept of the archetype to design strategies for the improvement of product selling. Mark and Pearson propose that archetypes such as the ruler, the hero, the outlaw, and the sage are useful in promoting a product. This article suggests that the concept of archetypes as well as myths such as the Prometheus myth and the myth of the expulsion from Paradise, when combined with the insights offered by Mark and Pearson, may help in understanding the management of trials of dissent as well. The article presents seven motifs that recur in trials of dissent …

Dead To Rights: A Father's Struggle To Secure Mental Health Services For His Son. Georgetown Journal On Poverty Law And Policy, April Land

Faculty Scholarship

This Article analyzes the gap between children's statutory rights and their actual access to services within the educational, medical and juvenile justice systems. This Article lays out the strong statutory rights and protections in the areas of special education and contrasts them with actual experience in trying to secure appropriate education, Medicaid and the juvenile justice system. The Article concludes that the agencies responsible for administering federal law must not be permitted to continue to avoid compliance with clear statutory mandates. They are failing to meet their legal responsibilities by asserting that services should be provided by other agencies, rather …

Attorney-Client Sex: A Feminist Critique Of The Absence Of Regulation, Malinda L. Seymore

Faculty Scholarship

Doctors can't do it. Psychotherapists can't do it. Ministers can't do it. Chiropractors and social workers can't do it. But lawyers can. Lawyers, in most jurisdictions, can have sex with their clients without violating a standard of professional responsibility.

Sex between lawyers and clients occurs far more frequently than many believe. In a 1993 nationwide survey of attorneys, 18.9% of the respondents had sex with a client or knew of at least one other attorney who had. Despite this figure, there are only a handful of cases where attorneys have been disciplined for having sex with their clients. The reported …

Traditional Knowledge, Intellectual Property, And Indigenous Culture: An Introduction, Peter K. Yu

Faculty Scholarship

Human communities have always generated, refined and passed on knowledge from generation to generation. Such "traditional" knowledge" [sic] is often an important part of their cultural identities. Traditional knowledge has played, and still plays, a vital role in the daily lives of the vast majority of people. Traditional knowledge is essential to the food security and health of millions of people in the developing world. In many countries, traditional medicines provide the only affordable treatment available to poor people. In developing countries, up to 80% of the population depend on traditional medicines to help meet their healthcare needs. In addition, …

Prevention Perspectives On "Different" Kinds Of Discrimination: From Attacking Different "Isms" To Promoting Acceptance In Critical Race Theory, Law And Economics, And Empirical Research, Clark Freshman

Faculty Scholarship

No abstract provided.

The Modest Promise Of Children’S Relationship Rights, David D. Meyer

Faculty Scholarship

No abstract provided.

A Matter Of Priority: Transplanting Organs Preferentially To Registered Donors, Adam Kolber

Faculty Scholarship

No abstract provided.

Exploring White Resistance To Racial Reconciliation In The United States, Taunya Lovell Banks

Faculty Scholarship

No abstract provided.

'What's Love Got To Do With It?' - 'It's Not Like They're Your Friends For Christ's Sake' : The Complicated Relationship Between Lawyer And Client, Robert J. Condlin

Faculty Scholarship

Should lawyers love their clients and try to be their friends? Highly regarded legal scholars have defended the “lawyer-as-friend” analogy in the past, although usually on the basis of a more contractual understanding of friendship than the understanding currently in vogue. These past efforts were widely criticized on a variety of grounds, and after a period of debate, support for the analogy appeared to wane. That is until recently, when other scholars, looking at the topic from a more religious perspective, have asserted a refined version of the friendship analogy as the proper model for lawyer-client relations. It is this …

From Words To Sacrament, From Sacrament To Flesh: The Concept Of Marriage, Randy Lee

Faculty Scholarship

No abstract provided.

Cognitive Foundation Of The Impulse To Blame, Lawrence Solan

Faculty Scholarship

No abstract provided.

Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Responsibility And Blame: Psychological And Legal Perspectives - Introduction, Lawrence M. Solan

Faculty Scholarship

No abstract provided.

Hearing Voices: Speaker Identification In Court, Lawrence Solan, Peter Tiersma

Faculty Scholarship

No abstract provided.

Cosmetic Compliance And The Failure Of Negotiated Governance, Kimberly D. Krawiec

Faculty Scholarship

Across a range of legal regimes - including environmental, tort, employment discrimination, corporate, securities, and health care law - United States law reduces or eliminates enterprise liability for those organizations that can demonstrate the existence of "effective" internal compliance structures. Presumably, this legal standard rests on an assumption that internal compliance structures reduce the incidence of prohibited conduct within organizations. This Article demonstrates, however, that little evidence exists to support that assumption. In fact, a growing body of evidence indicates that internal compliance structures do not deter prohibited conduct within firms and may largely serve a window-dressing function that provides …

Stuck In A Rut: The Role Of Creative Thinking In Problem Solving And Legal Education, Janet Weinstein, Linda H. Morton

Faculty Scholarship

This article focuses on the mental process of creative thinking. We discuss what it is, why we have difficulty engaging in it, and how we can overcome this difficulty through specific techniques and a more conducive environment. Creative thinking is an essential component to problem solving. In training future lawyers, we must do a better job of incorporating and supporting creative thinking in legal education. We conclude the article with a description of some of our efforts toward this objective.

The Law And Economics Of Critical Race Theory, Mitu Gulati, Devon W. Carbado

Faculty Scholarship

Legal academics often perceive law and economics (L&E) and critical race theory (CRT) as oppositional discourses. Using a recently published collection of essays on CRT as a starting point, we argue that the understanding of workplace discrimination can be furthered through a collaboration between L&E and CRT. L&E's strength is in its attention to incentives and norms, specifically its concern with explicating how norms incentivize behavior. Its limitation is that it treats race as exogenous and static. Thus, the literature fails to consider how institutional norms affect, and are affected by, race. To put the point another way, L&E does …

Beyond Words: An Empirical Study Of Context In Contract Creation, Deborah A. Schmedemann

Faculty Scholarship

This article reports on an empirical study into how judges interpret contracts. In general, the study demonstrates that key participants do look to context for guidance on issues of contract creation. Part II summarizes the modem legal perspective on these questions, as stated in the Restatement (Second) of Contracts, as posited in the scholarly debate about relational contracts, and as exemplified in case law regarding employment contracts. Part III describes a study designed to capture the thinking on these questions of participants in an employment contract. Part IV presents the results obtained from respondents who represented the parties to the …

Stubbornness Of Pretexts, Daniel B. Yeager

Faculty Scholarship

This Article will reflect on (1) how the Whren v. United States failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure, and (2) the extent to which the Court in Sullivan compounded that failure, which I hope to lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

A Prescription For Gender: How Medical Professionals Can Help Secure Equality For Transgender People, Jennifer L. Levi

Faculty Scholarship

Transgender people have made tremendous legal gains in the last several years. We live in a period of rapid social change, hopefully approaching a time when transgender individuals and our families enjoy the same legal rights and privileges afforded to other members of society. However, we are not there yet. This essay discusses the role medical professionals must play if transgender people are to achieve full humanity in light of legal developments in the areas of employment and family law. Medical professionals are at the heart of directing and implementing policies that have an enormous effect on the lives of …

Punishment, Proportionality, And Jurisdictional Transfer Of Adolescent Offenders: A Test Of The Leniency Gap Hypothesis, Aaron Kupchik, Jeffrey A. Fagan, Akiva Liberman

Faculty Scholarship

In the past two decades, nearly every state has expanded its authority and simplified its procedures to transfer adolescent offenders from juvenile to criminal (adult) courts. As a result, the use of jurisdictional transfer has grown steadily. These developments reflect popular and political concerns that punishment in juvenile courts is too lenient for serious crimes committed by adolescents. Yet there is mixed evidence that expanded transfer authority has produced more certain or severe punishments for adolescents prosecuted in criminal courts. Some empirical studies show that adolescents transferred to criminal court are more likely to be convicted, sentenced to prison, and …

Posner On Teaching Evidence, Roger C. Park

Faculty Scholarship

No abstract provided.

Privacy As A Legal Principle Of Identity Maintenance, Jonathan Kahn

Faculty Scholarship

This article considers how existing literature on privacy recognizes, constructs and otherwise implicates something the Anglo-American legal tradition recognizes as 'identity'. Integral to this concern is approaching privacy as a regulative principle for constructing and managing relations between the individual and three primary spheres of engagement: society, the market, and the state. Contemporary analyses of privacy tend to concentrate of how privacy protects the individual from state tyranny or the prying eyes of social busy bodies. Much less attention has been paid, however, to privacy as a principle for demarcating a space beyond the reach of market forces. As privacy …

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

Proxies For Loyalty In Constitutional Immigration Law: Citizenship And Race After September 11, Victor C. Romero

Faculty Scholarship

The purpose of this article is to share some thoughts about using citizenship and race as proxies for loyalty in constitutional immigration discourse within two contexts: one historical and one current. The current context is the profiling of Muslim and Arab immigrants post-September 11, and the historical context is the distinction the Constitution draws between birthright and naturalized citizens in the Presidential Eligibility Clause.

Intimate Affiliation And Democracy: Beyond Marriage?, Linda C. Mcclain

Faculty Scholarship

This article takes up the question: Should family law and policy move beyond marriage? It assesses a spectrum of answers to that question. Rejecting proposals, on the one hand, to shore up traditional marriage, and, on the other, to abolish marriage, it argues that family law and policy should not move wholly beyond marriage, but should support marriage in a way that better fosters greater equality within and among families. The article is part of a symposium on "Marriage, Families, and Democracy," published in 32 Hofstra Law Review 23-421 (2003).