Digital Commons Network^™

The Human Dignity Of Clients, Kate Kruse

Faculty Scholarship

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Insuring Corporate Crime, Miriam H. Baer

Faculty Scholarship

Corporate criminal liability has become an important and much-talked about topic. This Article argues that entity-based liability - particularly the manner in which it is currently applied by the federal government - creates social costs in excess of its benefits. To help companies better deter employee crime, the Article suggests the abolition of entity-wide criminal liability, and in its place, the adoption of an insurance system, whereby carriers would examine corporate compliance programs, estimate the risk that a corporation's employees would commit crimes, and then charge companies for insuring those risks. The insurance would cover the entity's civil penalties associated …

Teaching Ip From An Entrepreneurial Counseling And Transactional Perspective, Sean O'Connor

Faculty Scholarship

No abstract provided.

In Supreme Judgment Of The Poor: The Role Of The United States Supreme Court In Welfare Law And Policy, Bridgette Baldwin

Faculty Scholarship

This Article examines the major Supreme Court rulings since the late 1960s that have directly addressed Aid to Families with Dependent Children (AFDC), commonly known as welfare. The Supreme Court decided cases, such as King v. Smith, Shapiro v. Thompson, and Goldberg v. Kelly, in favor of welfare recipients. The outcomes of these cases suggest that while the Supreme Court viewed welfare policy as a negotiation between federal and state governments, it reserved a special role for the judicial branch in protecting equal rights. The judicial understanding of the relationship between federal and state government power within welfare policy ranged …

Symposium: Cruel And Unusual Punishment: Litigating Under The Eighth Amendment: Preserving The Rule Of Law In America's Jails And Prisons: The Case For Amending The Prison Litigation Reform Act, Margo Schlanger, Giovanna Shay

Faculty Scholarship

Prisons and jails pose a significant challenge to the rule of law within American boundaries. As a nation, we are committed to constitutional regulation of governmental treatment of even those who have broken society’s rules. And accordingly, most of our prisons and jails are run by committed professionals who care about prisoner welfare and constitutional compliance. At the same time, for prisons—closed institutions holding an ever-growing disempowered population—most of the methods by which we, as a polity, foster government accountability and equality among citizens are unavailable or at least not currently practiced. In the absence of other levers by which …

"Think Glocal, Act Glocal": The Praxis Of Social Justice Lawyering In The Global Era, Lauren Carasik

Faculty Scholarship

Millions of people in the world struggle to survive in extreme economic deprivation, and deteriorating conditions have highlighted the failure of international development policies to "lift all boats." The complex and globalized context of poverty compels social justice lawyers to innovate transnational advocacy strategies, expanding human rights norms as part of those efforts. This Article suggests a cross-border, collaborative advocacy model for clinical education. The model is premised on theories of global interconnectedness that integrate progressive lawyering, social change theory and anti-poverty work in the global era, thereby contributing to the discourse about and praxis of combating international economic injustice. …

Book Review: Elizabeth Wicks' Human Rights And Healthcare, Barbara A. Noah

Faculty Scholarship

The Author reviews the book Human Rights and Healthcare, by Elizabeth Wicks and published by Hart Publishing, 2007. Although the book focuses mainly on rights within the United Kingdom, those familiar with healthcare and bioethics issues within the United States or elsewhere will find it an extremely useful comparative resource.

Disturbing Constructions Of Tropical Savannas And The People Who Burn Them, Cynthia Fowler

Faculty Scholarship

The transition from equilibrium to non-equilibrium models of ecosystems in the biological sciences during the past several decades parallels an evolution in the ways that anthropologists understand culture. Reconceptualizations of ecosystem processes (e.g., disturbance) and units (e.g., landscapes) are apparent in fire science where they have influenced a conversion from the belief that fire is a destructive artificial force to the belief that fire is a controllable natural element. What adjustments have fire scientists made in their understandings of people who ignite fires? Even though fire science literature is voluminous, the sociocultural and biophysical relationships surrounding fire are insufficiently understood. …

Asterisk Revisited: Debating A Right Of Reply On Search Results, Frank Pasquale

Faculty Scholarship

No abstract provided.

Asbestos Achievements, Anita Bernstein

Faculty Scholarship

No abstract provided.

Partnership Tax Allocations And The Internalization Of Tax-Item Transactions, Bradley T. Borden

Faculty Scholarship

No abstract provided.

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias In Employer-Defendants, Jessica Fink

Faculty Scholarship

This Article examines the extent to which employment discrimination litigation conducted under the current legal framework increases the biases of those involved in this process, particularly defendant-employers. It examines whether discrimination litigation enhances and exacerbates the negative views that these defendants may have toward not just the plaintiff who initiated the litigation, but also toward the broader protected class to which the plaintiff belongs.

Part I of this Article briefly expands upon the different types of bias that can infect employers' decisions, from the blatant discrimination that largely has disappeared from American society, to intentional discrimination that employers strategically hide …

Peterson V. Balach, Obvious Dangers, And The Duty Of Possessors Of Land In Minnesota, Michael K. Steenson

Faculty Scholarship

The purpose of this article is to analyze Minnesota landowners law, with particular emphasis on the impact of Peterson v. Balach. Following a short history of Minnesota law governing possessors’ duties, including a discussion of pre-Peterson v. Balach and Adee v. Evanson cases, the article considers the question of why the courts, post-Peterson v. Balach/Adee v. Evanson, regularly return to pre-Peterson forms to resolve possessor liability issues, particularly in cases involving obvious dangers, and whether the phenomenon is a result of a wrong turn or is a reflection of a conscious policy choice intended to effectively repudiate the progressive position …

In Re Annandale And The Disconnections Between Minnesota And Federal Agency Deference Doctrine, Mehmet K. Konar-Steenberg

Faculty Scholarship

This article explores each of these differences between Annandale’s view of deference and comparable federal authority. Part II begins the discussion with an explanation of the somewhat complicated legal and factual background that gave rise to Annandale’s unusually thorny agency deference issues. This section includes an extended discussion of the Annandale administrative record and the reasoning of the Minnesota Court of Appeals and Minnesota Supreme Court. Part III then critically analyzes the Annandale court’s claims to have acted consistently with federal agency deference case law in each of the three areas discussed above. Part IV concludes with some post-Annandale developments …

Family Court Reform And Adr: Shifting Values And Expectations Transform The Divorce Process, Nancy Ver Steegh

Faculty Scholarship

During the last fifty years, the process of divorce has undergone a remarkable transformation. This article examines the sweeping breadth of the change and the underlying societal forces behind it. As the family court landscape has changed, a ripple effect has occurred necessitating reconsideration of the roles that lawyers and judges play in the divorce process. Although lack of judicial resources has fueled some of the change, deep funding cuts foreshadow a less positive transformation, one potentially resulting in a two-tiered system of justice for families.

Codes Of Ethics And State Fiduciary Duties: Where Is The Line?, Z. Jill Barclift

Faculty Scholarship

The important function of disclosure under federal securities laws and regulations, and the role of management in running the affairs of the corporation consistent with state fiduciary principles have a history of discord. The recent mandates of the Sarbanes-Oxley Act (“SOX Act” or “SOX”), and the Security and Exchange Commission’s (“SEC”) implementing regulations continue to increase the disclosure obligations of public companies. This article examines the implementation of code of ethics requirements under SOX. It examines the SEC’s regulations, which implement SOX requirements on the disclosure of codes of ethics, and self-regulatory agency (“SRO” or “listing agency”) rules on codes …

Admissibility Regimes The Opinion Rule And Other Oddities And Exceptions To Scientific Evidence The Scientific Revolution And Common Sense, David L. Faigman

Faculty Scholarship

No abstract provided.

Remarks Upon Acceptance Of Michael Franck Award May 29, 2008, Geoffrey C. Hazard, Jr.

Faculty Scholarship

No abstract provided.

Equal Liberty: Assisted Reproductive Technology And Reproductive Equality, Radhika Rao

Faculty Scholarship

No abstract provided.

The Administrative State, Front And Center: Studying Law And Administration In Postwar America, Reuel E. Schiller

Faculty Scholarship

No abstract provided.

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin Feldman

Faculty Scholarship

No abstract provided.

Franklin D. Roosevelt, Commander In Chief, Elizabeth L. Hillman

Faculty Scholarship

No abstract provided.

Minnesota's Distortion Of Rule 609, Ted Sampsell-Jones

Faculty Scholarship

Rule of Evidence 609, which governs the admission of prior convictions of a witness for purposes of impeachment, occupies an important place in the day to day operation of American criminal trials. The rule is a compromise that reflects these competing values. It admits some prior convictions but not all. Crimen falsi offenses such as perjury and fraud are automatically admissible under 609(a)(2). All other felonies are analyzed under the balancing test of 609(a)(1), which allows the admission of a defendant-witness's crimes if the “probative value of admitting this evidence outweighs its prejudicial effect to the accused.” The rule seeks …

Trends In Distressed Debt Investing: An Empirical Study Of Investors' Objectives, Michelle M. Harner

Faculty Scholarship

Increased creditor control in chapter 11 cases has generated considerable debate over the past several years. Proponents of creditor control argue that, among other things, it promotes efficiency in corporate reorganizations. Critics assert that it destroys corporate value and frequently forces otherwise viable entities to liquidate. The increasing involvement of professional distressed debt investors in chapter 11 cases has intensified this debate. In this article, I present and analyze empirical data regarding the investment practices and strategies of distressed debt investors. Based on this data and actual case reports, I reach two primary conclusions. First, although relatively few in number, …

Massachusetts V Epa: Escaping The Common Law's Growing Shadow, Robert V. Percival

Faculty Scholarship

In its first full Term with its newest member, the U.S. Supreme Court marched decidedly to the right with decisions narrowing abortion rights, striking down affirmative action programs, invalidating campaign finance regulations, and making it more difficult for victims of employment discrimination to seek redress. In the face of this rightward shift the most surprising decision of the Term was the Court’s embrace of claims that the U.S. Environmental Protection Agency (EPA) had acted unlawfully by refusing to use the Clean Air Act to combat climate change. In Massachusetts v EPA, the Court held that EPA had the authority to …

U.S. Immigration Policy: Contract Or Human Rights Law?, Victor C. Romero

Faculty Scholarship

The current immigration debate often reflects a tension between affirming the individual rights of migrants against the power of a nation to control its borders. An examination of U.S. Supreme Court precedent reveals that, from our earliest immigration history to the present time, our immigration policy has functioned more like contract law than human rights law, with the Court deferring to the power of Congress to define the terms of that contract at the expense of the immigrant's freedom.

In Good Times And In Debt: The Evolution Of Marital Agency And The Meaning Of Marriage, Marie T. Reilly

Faculty Scholarship

A married person sometimes acts solely for herself and at other times on behalf of her spouse. If she incurs debt solely for herself, then only she is liable to the creditor. If, however, she incurs debt both for herself and on behalf of her spouse, both are liable – the debtor directly and the spouse indirectly by imputed liability. Before married women’s property reform, imputed marital liability followed from marital status. As marriage changed to recognize the legal individuality of both spouses, so too did the scope of a spouse’s imputed liability for the debts of the other spouse. …

Takeover Regulation As A Wolf In Sheep's Clothing: Taking U.K Rules To Continental Europe, Marco Ventoruzzo

Faculty Scholarship

Aesop was an optimist. In his cautionary fable that inspired the famous admonition about wolves in sheep's clothing, the predator intentionally dons a sheep's fleece in order to sneak up on a lamb. His disguise, it turns out, is so effective that he ends up being mistaken for the real thing and killed by another wolf. According to Aesop, even the most effective fraud can turn against its perpetrator, and justice be done. The results are not always so salutary with other clandestine predators, including legal rules that appear aimed at protecting vulnerable groups, but instead provide valuable tools to …

The Role Of Race In Dna Statistics: What Experts Say, What California Courts Allow, David H. Kaye

Faculty Scholarship

When a defendant's DNA matches a sample found at a crime scene, how compelling is the match? To answer this question, DNA analysts typically use numbers - "relative frequencies," "random match probabilities" or "likelihood ratios." They compute and present these quantities for the major racial or ethnic groups in the United States, supplying prosecutors with such mind-boggling figures as "one in nine hundred and fifty sextillion African Americans, one in one hundred and thirty septillion Caucasians, and one in nine hundred and thirty sextillion Hispanics."

A line of California cases rejects this established practice on relevance grounds. The theory of …

Case Comment - People V. Nelson: A Tale Of Two Statistics, David H. Kaye

Faculty Scholarship

In recent years, defendants who were identified as a result of a search through a database of DNA profiles have argued that the probability that a randomly selected person would match a crime-scene stain overstates the probative value of the match. The statistical literature is divided, with most statisticians who have written on the subject rejecting this claim. In People v. Nelson, the Supreme Court of California held that when the random-match probability is so small as to make it exceedingly unlikely that any unrelated individual has the incriminating DNA profile, this statistic is admissible in a database-search case. …