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Helping Students Develop A Humanistic Philosophy Of Lawyering, Beth Cohen Jan 2006

Helping Students Develop A Humanistic Philosophy Of Lawyering, Beth Cohen

Faculty Scholarship

This Article considers the need to help students develop a cohesive philosophy of lawyering and suggests some ideas and methods to help introduce these concepts and concerns to students. Although this Article focuses primarily on aspects of the legal research and writing curriculum and pedagogy as well as professional development programs that can enhance the curriculum, the concepts are applicable and transferable to other subjects and courses. The purpose of this Article is to explore the issues raised by a conscious decision to help students consider and develop a beneficial philosophy of lawyering in areas including the development of legal …

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Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick Jan 2006

Creating A Tribal Law Practice Clinic In Kansas: Carving The Peg To Fit The Hole, Aliza Organick

Faculty Scholarship

This article will focus on three main challenges in creating a tribal court practice clinic. The first part will address creating a tribal court focus within an existing clinic curriculum. The second part will address the process of designing a curriculum for the TCPC that includes incorporating the basic doctrinal foundations of federal Indian law, as well as the clinical skills necessary to practice in a tribal court setting. The third part will offer some concluding thoughts on my long-term plans and dreams for TCPC.

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A Legal History Of Blood Quantum In Federal Indian Law To 1935, Paul Spruhan Jan 2006

A Legal History Of Blood Quantum In Federal Indian Law To 1935, Paul Spruhan

Faculty Scholarship

The concept of blood quantum confronts anyone interested in American Indian identity in the United States. Both for federal recognition as an “Indian” and for membership in a tribal nation, a person generally must possess a threshold amount of Indian or tribal “blood,” expressed as one-half, one-quarter, or some other fractional amount. In this context, blood is a metaphor for ancestry, as the amount of Indian blood depends on the status of a person’s lineal ancestors. For instance, a person with one Indian parent and one non-Indian parent has one-half Indian blood, while a person with one Indian grandparent and …

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Latcrit At Ten Years, Margaret E. Montoya Jan 2006

Latcrit At Ten Years, Margaret E. Montoya

Faculty Scholarship

No abstract provided.

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Mad Women And Desperate Girls: Infanticide And Child Murder In Law And Myth, Elizabeth Rapaport Jan 2006

Mad Women And Desperate Girls: Infanticide And Child Murder In Law And Myth, Elizabeth Rapaport

Faculty Scholarship

This article first offers a comparison between the stereotype dominated understanding of infanticide and child homicide in the United States and the statistical landscape it obscures. It then turns to the history of the crime of infanticide, a history which confirms that a fascination with deviant women as long dominated the story of infanticide. The article concludes with the exploration of the "Good Mother Defense." That exploration reveals the extent to which the fate of a woman tried for child homicide hinges on whether the jury sees her as a good mother, rather than on the prosecutors' ability to prove …

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Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen Jan 2006

Supremacy And Diplomacy: The International Law Of The U.S. Supreme Court, Harlan G. Cohen

Faculty Scholarship

In 2003-2004, a Presidential campaign year dominated by debates about international affairs and international law, the U.S. Supreme Court took an unusual number of cases of international import. The Court considered the Alien Tort Claims Act and the future of human rights suits in U.S. courts, the applicability of the Foreign Sovereign Immunity Act to claims involving Nazi-stolen artwork, the applicability of American antitrust law to foreign anticompetitive activity, and the legality of the Guantanamo detentions. A great deal of ink has been spilled analyzing the individual impacts of each of these cases. What has been less considered is how …

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The Ecological Life: Discovering Citizenship And A Sense Of Humanity, Jeremy Bendik-Keymer Jan 2006

The Ecological Life: Discovering Citizenship And A Sense Of Humanity, Jeremy Bendik-Keymer

Faculty Scholarship

Written as a series of lectures, The Ecological Life offers a humanistic perspective on environmental philosophy that challenges some of the dogmas of deep ecology and radical environmentalism while speaking for their best desires. The book argues that being human-centered leaves us open to ecological identifications, rather than the opposite. Bendik-Keymer draws on analytic and continental traditions of philosophy as well as literature and visual media. He argues for a sense of ecological justice consonant with human rights, and shows how humanistic thinking is committed to deepening respect for life and our ecological orientation. In a clear, jargon-free and conversational …

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Habitat And Fauna Of Deep-Water Lophelia Pertusa Coral Reefs Off The Southeastern Us: Blake Plateau, Straits Of Florida, And Gulf Of Mexico., John K. Reed, Doug C. Weaver, Shirley A. Pomponi Jan 2006

Habitat And Fauna Of Deep-Water Lophelia Pertusa Coral Reefs Off The Southeastern Us: Blake Plateau, Straits Of Florida, And Gulf Of Mexico., John K. Reed, Doug C. Weaver, Shirley A. Pomponi

Faculty Scholarship

Expeditions from 1999 to 2004 for biomedical research explored various deep-sea coral ecosystems (DSCE) off the southeastern U.S. (Blake Plateau, Straits of Florida, and eastern Gulf of Mexico). Habitat and benthos were documented from 57 dives with human occupied submersibles and three with a remotely operated vehicle (ROV), and resulted in ~100 hrs of videotapes, 259 in situ digital images, 621 museum specimens, and > 400 microbial isolates. These were the first dives to document the habitat, benthic fauna, and fish diversity of some of these poorly known deepwater reefs. Fifty-eight fish species and 142 benthic invertebrate taxa were identified. High-definition …

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Teaching Reflective Lawyering In A Small Case Litigation Clinic: A Love Letter To My Clinic Papers Presented At The Ucla/Ials Conference On Enriching Clinical Education, Ian Weinstein Jan 2006

Teaching Reflective Lawyering In A Small Case Litigation Clinic: A Love Letter To My Clinic Papers Presented At The Ucla/Ials Conference On Enriching Clinical Education, Ian Weinstein

Faculty Scholarship

This article describes a live client, small case, teaching and learning centered, criminal defense clinic set in a high volume urban court. It offers concrete suggestions about how clinical educators can help students develop analytic and technical skills. The clinic model is conceived in three phases: giving students the opportunity to develop a contextualized understanding of the client; guiding students through strategic analysis and planning; and focusing students' litigation strategies on executing their tactical vision for their client. The article argues that this clinical setting structures the students' experiences so that they develop a complex and deeply moral lawyerly problem …

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Grave Building: A Tribute To Charles J. Ogletree, Jr., And His Evolving Legacy, Robin A. Lenhardt Jan 2006

Grave Building: A Tribute To Charles J. Ogletree, Jr., And His Evolving Legacy, Robin A. Lenhardt

Faculty Scholarship

This tribute celebrates the tremendous legal career of Professor Charles J. Ogletree, Jr. It highlights his many contributions to the legal profession and academy, including his role in preparing a cadre of lawyers for the 21st Century; body of scholarship focusing on racial justice issues; and instrumental role in developing new approaches to civil rights lawyering.

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Continued Vitality Of Structured Sentencing Following Blakely: The Effectiveness Of Voluntary Guidelines, The , John F. Pfaff Jan 2006

Continued Vitality Of Structured Sentencing Following Blakely: The Effectiveness Of Voluntary Guidelines, The , John F. Pfaff

Faculty Scholarship

In two recent opinions, Blakely v. Washington and United States v. Booker, the U.S. Supreme Court effectively invalidated the binding nature of sentencing guidelines used by many states and the federal government over the past thirty years. Not surprisingly, numerous commentators have asserted that Blakely and Booker profoundly altered the nature of sentencing in the United States. But these claims have been made without any meaningful empirical consideration of whether viable alternatives exist. This Article fills that gap. It explores the extent to which voluntary, nonbinding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it …

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City As An Ecological Space: Social Capital And Urban Land Use, The , Sheila R. Foster Jan 2006

City As An Ecological Space: Social Capital And Urban Land Use, The , Sheila R. Foster

Faculty Scholarship

One of the goals of land use (and pollution control) law is to force the internalization of these costs. This otherwise economic view of land use law is also rooted, however, in an ecological understanding of urban land use. Legal scholars writing over three decades ago successfully argued, based upon the ecological facts of life, that "[p]roperty does not exist in isolation" because the effects of its uses flow outside of the boundaries of ownership. The notion that property is inextricably part of a network of social and economic relationships, and that its impacts traverse legally defined boundaries and relationships, …

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Court-Ordered Confidentiality In Discovery Symposium: Secrecy In Litigation: I: Article, Howard M. Erichson Jan 2006

Court-Ordered Confidentiality In Discovery Symposium: Secrecy In Litigation: I: Article, Howard M. Erichson

Faculty Scholarship

The debate over discovery confidentiality has raged for over twenty years, since before the Supreme Court's decision in Seattle Times Co. v. Rhinehart, and it shows no sign of fading. If anything, issues of litigation confidentiality appear to have gained increased attention in recent years. The United States District Court for the District of South Carolina attracted nationwide attention in 2002 when it adopted a local rule severely restricting secret settlements and addressing other aspects of court-ordered confidentiality. In 2004 the Federal Judicial Center completed an empirical study of sealed settlements. It seems that each month of 2005 brought new …

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Check Clearing For The 21st Century Act - A Wrong Turn In The Road To Improvement Of The U.S. Payments System, The , Carl Felsenfeld, Genci Bilali Jan 2006

Check Clearing For The 21st Century Act - A Wrong Turn In The Road To Improvement Of The U.S. Payments System, The , Carl Felsenfeld, Genci Bilali

Faculty Scholarship

The Check Clearing for the 21st Century Act' (Check 21 Act) was introduced to Congress by the Federal Reserve System, enacted by Congress, signed by the President on October 28, 2003, and became effective one year later, on October 28, 2004. It makes a modest change in the check-clearing system designed to speed the movement of checks from the depositary to the paying bank. It is anticipated that it will eventually lead to what is called "electronic presentment," a process that may make the clearing of checks almost as swift as to- day's electronic payment systems. This Article gives the …

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Permissive Rules Of Professional Conduct, Bruce A. Green, Fred C. Zacharias Jan 2006

Permissive Rules Of Professional Conduct, Bruce A. Green, Fred C. Zacharias

Faculty Scholarship

No abstract provided.

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Apparent Consistency Of Religion Clause Doctrine, The The Rehnquist Court And The First Amendment, Abner S. Greene Jan 2006

Apparent Consistency Of Religion Clause Doctrine, The The Rehnquist Court And The First Amendment, Abner S. Greene

Faculty Scholarship

A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency-well, apparent consistency- to the doctrine. I say "apparent consistency" because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court's religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of a more …

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Safe-Conduct Theory Of The Alien Tort Statute, The, Thomas H. Lee Jan 2006

Safe-Conduct Theory Of The Alien Tort Statute, The, Thomas H. Lee

Faculty Scholarship

In this Article, Professor Lee introduces a novel explanation of the Alien Tort Statute (ATS) - a founding-era enactment that has achieved modern prominence as a vehicle for international human rights litigation. He demonstrates how the statute was intended to address violations of something called a "safe conduct" - a sovereign promise of safety to aliens from injury to their persons and property. The safe-conduct theory advances a new modern role for the ATS to redress torts committed by private actors - including aliens - with a U.S. sovereign nexus, and not for international law violations committed by anyone anywhere. …

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Antitrust And The Supremacy Clause , Richard Squire Jan 2006

Antitrust And The Supremacy Clause , Richard Squire

Faculty Scholarship

In the course of damning the market giant Standard Oil, the Supreme Court declared that the purpose of the Sherman Antitrust Act is to prevent "monopoly and the acts which produce the same result as monopoly." The Constitution's Supremacy Clause, in turn, requires preemption-that is, non-enforcement--of state laws that conflict with a federal statute. Put together, these propositions suggest that state laws which create monopolies should be prime candidates for preemption via the Sherman Act. But despite the syllogistic logic bearing down on them, monopoly-creating state laws have easily weathered most federal antitrust challenges, even when the state does not …

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Vitality Of Voluntary Guidelines In The Wake Of Blakely V. Washington: An Empirical Assessment, The Articles On Guideline Operation Issues, John F. Pfaff Jan 2006

Vitality Of Voluntary Guidelines In The Wake Of Blakely V. Washington: An Empirical Assessment, The Articles On Guideline Operation Issues, John F. Pfaff

Faculty Scholarship

This Article explores the extent to which voluntary, non-binding criminal sentencing guidelines influence the sentencing behavior of state trial judges. In particular, it focuses on the ability of such guidelines to encourage judges to sentence consistently and to avoid improperly taking into account a defendant's race or sex. It also compares such guidelines to more-binding presumptive guidelines, which were recently found constitutionally impermissible in Blakely v. Washington. In general, the results indicate that voluntary guidelines are able to accomplish much, though not all, that presumptive guidelines were able to, especially with respect to sentence variation. For example, voluntary guidelines appear …

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Mutual Dependency In Child Welfare, Clare Huntington Jan 2006

Mutual Dependency In Child Welfare, Clare Huntington

Faculty Scholarship

The child welfare system is in need of fundamental reform. To the great detriment of parents and children, in the current system the state waits for a crisis in a family and then intervenes in a heavy-handed fashion. The state pays scant attention to the prevention of child abuse and neglect. This article argues that the principle conceptual barrier to the adoption of a prevention-oriented approach to child welfare is the dominant conception of family autonomy, which venerates freedom from state control. This article proposes a novel reconfiguration of family autonomy that encourages engagement with the state, rather than simply …

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Transnational Labor Citizenship, Jennifer Gordon Jan 2006

Transnational Labor Citizenship, Jennifer Gordon

Faculty Scholarship

Over one million new immigrants arrive in the United States each year. This spring, Americans saw several times that number pour into the streets, protesting proposed changes in U.S. immigration and guest work policies. As the signs they carried indicated, most migrants come to work, and it is in the workplace that the impact of large numbers of newcomers is most keenly felt. For those who see both the free movement of people and the preservation of decent working conditions as essential to social justice, this presents a seemingly unresolvable dilemma. In a situation of massive inequality among countries, to …

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Privacy, Power, And Humiliation At Work: Re-Examining Appearance Regulation As An Invasion Of Privacy, Catherine Fisk Jan 2006

Privacy, Power, And Humiliation At Work: Re-Examining Appearance Regulation As An Invasion Of Privacy, Catherine Fisk

Faculty Scholarship

Workplace rules that deny fundamental aspects of personal autonomy are (in many states) and should be actionable invasions of privacy. Perhaps nowhere is the invasion more keenly felt than when an employer demands, under penalty of forfeiting one's livelihood, that one dress or alter one's physical appearance in a way that one finds offensive, degrading, inappropriate, or alien. Clothes and appearance are constitutive of how we see and feel about ourselves and how we construct ourselves for the rest of the world to see. Conventions of appearance for women and men, for racial, ethnic, and religious groups express and observe …

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Understanding Change In International Organizations: Globalization And Innovation In The Ilo, Laurence R. Helfer Jan 2006

Understanding Change In International Organizations: Globalization And Innovation In The Ilo, Laurence R. Helfer

Faculty Scholarship

This Article uses an interdisciplinary approach to explain why the International Labor Organization (ILO) has been given surprisingly short shrift in recent debates over the role of IOs in addressing the many transborder collective action problems that globalization has fostered. I review the ILO's past and its present with two broad objectives in mind. First, I seek to correct a misperception among international lawyers and legal scholars that the ILO is a weak and ineffective institution. The organization's effectiveness in creating and monitoring international labor standards has fluctuated widely during its nearly ninety-year existence. Over the last decade, however, the …

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Inside The Corporate Veil: The Character And Consequences Of Executives’ Duties, Deborah A. Demott Jan 2006

Inside The Corporate Veil: The Character And Consequences Of Executives’ Duties, Deborah A. Demott

Faculty Scholarship

This paper is based on a keynote address to the 2006 annual workshop of the Australian Corporate Law Teachers' Association on "The Pathology of Corporate Law." The paper's thesis is that fuller understanding of many corporate malfunctions requires examination of organizational structures and patterns of interaction below the level of the board within a corporation's hierarchy. The paper argues that there is merit to mandating duties of skill and care at the executive level, drawing on examples of executive conduct in recent corporate fiascos. The paper also explores the application of the business judgment rule to officers. As conventionally formulated, …

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A Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky Jan 2006

A Look Back At The Rehnquist Era And An Overview Of The 2004 Supreme Court Term, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern Jan 2006

Precaution Against Terrorism, Jonathan B. Wiener, Jessica Stern

Faculty Scholarship

Stunned by the terrorist attacks of September 11, 2001, the Bush administration adopted a new National Security Strategy in September 2002. The UK government took a similar stance. This new strategy calls for anticipatory attacks against potential enemies with uncertain capacities and intentions, even before their threat is imminent. Rather than wait for evidence of weapons of mass destruction, it shifts the burden of proof, obliging ‘‘rogue’’ states to show that they do not harbor weapons of mass destruction or terrorist cells, or else face the possibility of attack. This new strategy amounts to the adoption of the Precautionary Principle …

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Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin Jan 2006

Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin

Faculty Scholarship

The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …

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Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet Jan 2006

Behavioural Genetics In Criminal Cases: Past, Present And Future, Nita A. Farahany, William Bernet

Faculty Scholarship

Researchers studying human behavioral genetics have made significant scientific progress in enhancing our understanding of the relative contributions of genetics and the environment in observed variations in human behavior. Quickly outpacing the advances in the science are its applications in the criminal justice system. Already, human behavioral genetics research has been introduced in the U.S. criminal justice system, and its use will only become more prevalent. This essay discusses the recent historical use of behavioral genetics in criminal cases, recent advances in two gene variants of particular interest in the criminal law, MAOA and SLC6A4, the recent expert testimony on …

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Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2006

Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

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Deepsea Coral Collection Protocols: A Synthesis Of Field Experience From Deep-Sea Coral Researchers, Designed To Build Our National Capacity To Document Deep-Sea Coral Diversity., P. Etnoyer, S. D. Cairns, J. A. Sanchez, John K. Reed, Jose V. Lopez, W. W. Schroeder, S. D. Brooke, L. Watling, A. Baco-Taylor, G. C. Williams, A. Lindner, Scott C. France, A. W. Bruckner Jan 2006

Deepsea Coral Collection Protocols: A Synthesis Of Field Experience From Deep-Sea Coral Researchers, Designed To Build Our National Capacity To Document Deep-Sea Coral Diversity., P. Etnoyer, S. D. Cairns, J. A. Sanchez, John K. Reed, Jose V. Lopez, W. W. Schroeder, S. D. Brooke, L. Watling, A. Baco-Taylor, G. C. Williams, A. Lindner, Scott C. France, A. W. Bruckner

Faculty Scholarship

Around the time that the thirteen original Atlantic colonies were fighting for independence from Britain, there existed little agreement among naturalists as to the nature of corals. Were they inanimate (stones), plants, animals, or intermediate between the latter two (zoophytes)? This diversity of definition and opinions undoubtedly produced considerable confusion and disagreement among naturalists interested in such things. The symbiotic nature of algal cells in the tissues of some corals was also not well understood. It was not until the Darwinian period in the nineteenth century that little doubt remained, and therefore it was generally agreed, that corals were actually …

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