Digital Commons Network^™

Religious Lawyering's Second Wave, Russell G. Pearce, Amelia J. Uelmen

Faculty Scholarship

Since the mid-1990s, the "religious lawyering movement" has expanded dramatically, receiving greater attention within the academy and the bar. As the movement enters what we term its "second wave" of development, this essay begins with a look back to its "first wave" of path-breaking scholarship and its gradual shift toward more institutionalized structures and programs. It argues that the predominant characteristic of first-wave religious lawyering scholarship was to claim a space within the professional conversation for lawyers to bring religious values to bear on their work. The essay then predicts that in the second wave religious lawyering conversations and scholarship …

Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal

Faculty Scholarship

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the …

United States Court Of Federal Claims: Walker V. United States, Michael J. Graetz

Faculty Scholarship

Walker v. United States, 69 Fed. Cl. 222, (Fed. Cl. 2005) (granting motion for reconsideration upon finding that water, access and forage rights were legally distinct from surface estate rights determined in a prior action).

Judicial Deference Or Bad Law? Why Massachusetts Courts Will Not Impose Municipal Liability For Failure To Enforce Restraining Orders, Carolyn Grose

Faculty Scholarship

The authors take up the challenge that was thrown down by the Ford v. Town of Grafton court. The first part of this Article examines the somewhat tortured and fascinating history of the Massachusetts Tort Claims Act. It then describes the arguments Catherine Ford made, how the court responded, and why it responded as it did. In Part II, Massachusetts' strong commitment to protecting and assisting victims of domestic violence is examined. A variety of legislative, executive and judicial initiatives that demonstrate commitment are described, but the Massachusetts General Laws Chapter 209A, the restraining order statute, is emphasized. The article …

Transgovernmental Networks Vs. Democracy: The Case Of The European Information Privacy Network, Francesca E. Bignami

Faculty Scholarship

No abstract provided.

Public Medical Malpractice Insurance: An Analysis Of State-Operated Patient Compensation Funds, Frank A. Sloan, Carrie A. Mathews, Christopher J. Conover, William M. Sage

Faculty Scholarship

Compared to major tort and insurance reforms, PCFs have received virtually no attention by scholars. With an exception or two, they are not a major focus of public policy debate either. Because they are small organizations and there have been lengthy periods in which medical malpractice markets are quiescent, they have not attracted much scrutiny. Given a lack of quantitative evidence, our evaluation depended on qualitative evidence. Yet PCFs address the fundamental issues of medical malpractice that have led to reoccurring crises in the availability of medical malpractice insurance coverage and in its premiums for such coverage. As such, PCFs …

Medical Malpractice Insurance And The Emperor's Clothes, William M. Sage

Faculty Scholarship

Tom Baker and Mark Geistfeld's contributions to this Symposium offer detailed and persuasive analyses of medical malpractice insurance. Their principal contribution to the malpractice reform debate, however, is simple: confirming that liability insurers should not be left to their own devices between malpractice crises or appeased during crisis periods. Instead, liability insurance must be consciously designed to help the health care system work toward its core goals of high quality, broad access, and affordable cost.

In 2000, the IOM issued a follow-up report to its earlier indictment of medical error, calling upon the health care system to become safe, effective, …

Tax Shelter Disclosure And Penalties: New Requirements, New Exposures, Mary A. Mcnulty, Robert D. Probasco

Faculty Scholarship

One of the primary weapons in the battle against tax shelters has been mandatory disclosure to the IRS. The American Jobs Creation Act of 2004 built on this approach by clarifying and making consistent the various disclosure requirements and strengthening penalties for non-disclosure. To uncover abusive transactions, Congress drew the boundaries of disclosure so broadly that even legitimate tax planning transactions are covered. To understand the dangers in the new rules, one must look at the broad range of transactions covered, the participants covered, and the harsh penalties for nondisclosure.

- Transactions Covered. The disclosure requirements apply to six categories …

Look Before You Leap And Keep On Looking: Lessons From The Institutionalization Of Court-Connected Mediation, Bobbi Mcadoo, Nancy A. Welsh

Faculty Scholarship

This article will use the institutionalization of general civil mediation into the courts as a case study, with both hopeful and cautionary lessons for policy makers. This article will (1) examine the goals created for court-connected ADR; (2) assess to what extent court-connected mediation has achieved these goals, from the perspective of judges, lawyers, and parties; and (3) and propose reforms of court-connected mediation to better ensure the achievement of justice.

Rethinking Civil Rico: The Vexing Problem Of Causation In Fraud-Based Claims Under 18 U.S.C. § 1962(C), Randy D. Gordon

Faculty Scholarship

To recover in a private action, the three-part structure of RICO demands proof of particularized crimes at two levels and civil standing to sue for those crimes. The interpretation and application of the standing requirement — which arises from the statute’s mandate that compensable injuries be caused “by reason of” acts of racketeering — have bedeviled courts and litigants for decades. Recent developments in class action law have exacerbated the problem. As more and more courts have rendered it nearly impossible to certify classes asserting state-law claims, class plaintiffs have turned to uniform federal laws like RICO. But civil RICO …

Contemplating A Civil Law Paradigm For A Future International Commercial Code, Wayne R. Barnes

Faculty Scholarship

The international community has worked toward a global law of contracts for the last century. These efforts include the Uniform Law on the International Sale of Goods, the Uniform Law on the Formation of Contracts for the International Sale of Goods, the UNIDROIT Principles of International Commercial Contracts, the Principles of European Contract Law, and the Vienna Convention for the International Sales of Goods (CISG). These texts are all tremendous achievements in their own right. However, they reflect a delicate juxtaposition of the two primary legal systems of the world --- the civil law and the common law. A consequence …

Hélène Cixous's The Perjured City: Nonprosecution Alternatives To Collective Violence, Susan Ayres

Faculty Scholarship

In instances of collective violence — apartheid in South Africa, mass killings in Rwanda, and other crimes against humanity such as slavery — what response provides justice? How can justice be achieved under such a system? Legal justice through prosecution would be unjust. This opens the possibility of nonprosecution alternatives involving forgiveness. Hélène Cixous’s play about forgiveness as an alternative to criminal prosecution, The Perjured City: Or, the Awakening of the Furies, was written in response to an actual case of failed justice in France, known as the Bad Blood Scandal. The play provides a model of forgiveness and a …

Hayek & (And) Cowboys: Customary Law In The American West, Andrew P. Morriss

Faculty Scholarship

The settlement of the American West during the nineteenth century produced a flourishing Hayekian legal because of the extended absence of state-based legal systems from large parts of the West. Without the crowding out of private law that accompanies the state's assertion of a monopoly over some areas of the law and subsidized competition in others, individuals created dispute resolution mechanisms and rules based on custom and contract. These examples of systems built by not-particularly-well-educated cowboys, gold miners, and migrants suggest that Hayekian legal orders can serve as effective, complete substitutes for state-provided law.

This paper surveys Hayek's legal theory, …

Signaling And Precedent In Federal District Court Opinions, Andrew P. Morriss, Michael Heise, Gregory C. Sisk

Faculty Scholarship

Standard economic analysis of judicial behavior, at least with respect to federal judges, has to some extent foundered on the apparent success of the Constitution's framers in designing an institution where almost the whole thrust of the rules governing compensation and other terms and conditions of judicial employment is to divorce judicial action from incentives. That is, the structure takes away the carrots and sticks and the different benefits and costs associated with different behaviors which inform human action in an economic model. Nonetheless, our earlier empirical work, as well as work by others, found significant associations between promotion potential …

Inherently Dangerous: The Potential For An Internet-Specific Standard Restricting Speech That Performs A Teaching Function, H. Brian Holland

Faculty Scholarship

Real or not, we perceive the convergence of several dangers-the physical threat of terrorism, both foreign and domestic; the economic threat of recession, corporate scandal, and globalization; and the social threat of new technology that connects, informs, exposes, and overwhelms us. At this moment, certain First Amendment protections are ripe for circumscription. The question, then, is whether our constitutional right of free speech is relative and conditional. The populist answer is yes. The legal answer is much more complicated.

To that end, this Article carries three goals. The first is to highlight parallel signals from the three branches of government …

The Trouble With Email: Suspect Every Negative Declaration, Frederic White

Faculty Scholarship

Email correspondence is a dilemma for all of us, but for a law school dean, the email onslaught is particularly troublesome because the universal expectation is that we are always available to everyone, whether they are students, staff, faculty, alumni, the university president, or the press. There is no getting around it. What to do?

I've developed some simple rules for taking the sting of out the daily email jolt.

My attitude toward this all-encompassing electronic wonder is embodied in an acronym I developed for the SEND button, a term found on every email system in the world, whether it's …

The Market For Legal Education & Freedom Of Association: Why The Solomon Amendment Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss

Faculty Scholarship

This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest …

Harry Potter And The Law, Jeffrey E. Thomas, James Charles Smith, Danaya Wright, Benjamin H. Barton

Faculty Scholarship

The magnitude of the Harry Potter phenomenon alone would make it worthy of consideration; the fact that it is children's literature, and thus may play a significant part in forming a future generation's attitudes toward law and legal institutions, makes it even more so. The various contributions to this article explore various aspects of law and culture as presented in or viewed through the Harry Potter stories.

P2p And The Future Of Private Copying, Peter K. Yu

Faculty Scholarship

Since the beginning of the P2P file-sharing controversy, commentators have discussed the radical expansion of copyright law, the industry's controversial enforcement tactics, the need for new legislative and business models, the changing social norms, and the evolving interplay of politics and market conditions. Although these discussions have delved into the many aspects of the controversy, none of them presents a big picture of the issues or explains how they fit within the larger file-sharing debate.

Using a holistic approach, this Article brings together existing scholarship while offering some thoughts on the future of private copying. The Article does not seek …

The Trust And Distrust Of Intellectual Property Rights, Peter K. Yu

Faculty Scholarship

In the past, intellectual property issues were considered complex, obscure, and highly technical; they were only of interest and concern to intellectual property attorneys, legal scholars, technology developers, and rightsholders. Thanks to the Internet and new communications technologies, however, intellectual property has now begun to play a more significant role in society.

In December 2003, the first phase of the World Summit on the Information Society (WSIS) was held in Geneva. While the conference affirmed the importance of intellectual property rights and free access to information and knowledge, the resulting Declaration of Principles and Plan of Action fail to address …

The Choice Of Tilting System In Land, Benito Arrunada, Nuno Garoupa

Faculty Scholarship

This paper analyzes the choice of the socially optimal titling system assuming rational individual choices about recording, assurance, and registration decisions. It focuses on the enforcement of property rights to land under private titling and the two existing public titling systems, recording and registration. When the reduction in the expected costs of forfeiture balances the higher cost of initial registration, a registration system is more efficient than a recording system. Implications for title assurance, land improvements, and transactions are also considered.

The Status Of Detainees From The Iraq And Afghanistan Conflicts, Srividhya Ragavan, Michael S. Mireles

Faculty Scholarship

The paper is premised on the idea that the future course of international law will be impacted by the United States' ability to adhere to international treaties to which it is a signatory. Hence, the current administration bears a responsibility to avoid unwisely stretching, distorting, or avoiding the principles of international law for short-term gain in a manner that jeopardizes long-term sustainable policy. The United States should be wary of creating a dangerous precedent - not only for the world, but for itself. If the United States shirks from or misinterprets international legal principles, it leaves the forum open for …

Choosing How To Regulate, Andrew P. Morriss, Bruce Yandle, Andrew Dorchak

Faculty Scholarship

In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency's incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations. Using a case study of EPA's regulation of heavy-duty diesel engines, the Article examines EPA's choices over thirty years as a means of testing the proposed theory. Finally, the Article concludes with a critique of allowing agencies to choose how they will regulate because the choice allows agencies to evade constraints …

Revisiting Medical Error: Five Years After The Iom Report, Have Reporting Systems Made A Measurable Difference, Maxine M. Harrington

Faculty Scholarship

Although the goal of patient safety is a laudable one, it is questionable whether state and national policy can be made on so vague a concept as "medical error." There is neither an accurate baseline nor reliable current data that could be used to validate the effectiveness of reporting systems as tools for improving patient safety. This Article examines the difficulty in estimating the incidence of medical error, including the lack of uniform standards of measurement and the legal and cultural disincentives to accurate reporting of error. Part I provides a brief background of the IOM report and addresses the …

Facial Challenges And Federalism, Gillian E. Metzger

Faculty Scholarship

This Essay addresses the question of whether challenges to legislation as exceeding Congress' powers should be assessed on a facial or an as-applied basis, a question that rose to the fore in the Supreme Court's recent decision in Tennessee v. Lane. The Essay begins by arguing that what distinguishes a facial challenge is that it involves an attack on some general rule embodied in the statute. Such challenges can take a broader or narrower form, and thus the terms 'facial" and "as-applied" are best understood as encompassing a range of possible challenges rather than as mutually exclusive terms. The …

Immigration: Mind Over Matter, Shoba S. Wadhia

Faculty Scholarship

This article examines the current field of debate and legislation on immigration reform and related due process issues. "Comprehensive Immigration Reform" is an expression in the immigration debate and embraces five tenets. First, reform addresses the eleven million people who are living in the United States without documentation and specifically provide them with an incentive to make themselves known to the government, register for some kind of work visa, and if they wish, get on the path to permanent residence. Second, reform embodies what lobbyists in Washington, D.C. call the "future flow," which corresponds to the flow of people who …

Player Restraints And Competition Law Throughout The World, Stephen F. Ross

Faculty Scholarship

This article reviews agreements among clubs participating in league sports in many countries throughout the world that limit competition for the services of players. Under the English common law (which governs in most of the British commonwealth), the competition law provisions of the European Union's governing treaty, the American Sherman Act, and the Canadian Competition Act, the governing standard is quite similar. Player restraints cab only be justified if they are related to a legitimate purpose, which is usually defined as one that demonstrably improves the consumer appeal for the sporting competition. Moreover, and significantly, player restraints must be reasonably …

Regulating International Arbitrators: A Functional Approach To Developing Standards Of Conduct, Catherine A. Rogers

Faculty Scholarship

Some scholars have protested that arbitrators are subject to less exacting regulation than barbers and taxidermists. The real problem with international arbitrators, however, is not that they are subject to less regulation, but that no one agrees about how they should be regulated. The primary reason for judicial and scholarly disagreement is that, instead of a coherent theory, analysis of arbitrator conduct erroneously relies on a misleading judicial referent and a methodologic failure to separate conduct standards (meaning those norms or rules that guide arbitrators' professional conduct) from enforcement standards (meaning those narrow grounds under which an arbitral award can …

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Faculty Scholarship

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all …

An Essay Challenging The Racially Biased Selection Of Arbitrators For Employment Discrimination Suits, Michael Z. Green

Faculty Scholarship

Since 1991, employers have increasingly decided to require that employees agree to arbitrate statutory employment discrimination claims as a condition of employment. This Essay seeks to expose some of the potential discriminatory components that may arise in the arbitrator selection process while highlighting the lack of legal remedy for those who believe that employers, in conjunction with neutral service provders, have stacked the pool in favor of having arbitrators who tend to be older, white and male. The Essay suggests the use of 42 U.S.C. Section 1981 as a potential remedy and challenge to the dearth of arbitrators of color …