Digital Commons Network^™

"Coming Out": The Practical Battles From Being Visible As A Lesbian, Barbara Cox

Faculty Scholarship

No abstract provided.

Reflections On Inclusionary Housing And A Renewed Look At Its Viability, Laura M. Padilla

Faculty Scholarship

This article explores property rights, housing policy, and affordable housing.

The Transformation Of French Corporate Governance And United States Institutional Investors, James Fanto

Faculty Scholarship

No abstract provided.

The World Trade Organization's Agreement On Government Procurement: Expanding Disciplines, Declining Membership?, Bernard Hoekman, Petros C. Mavroidis

Faculty Scholarship

The Agreement on Government Procurement (GPA) – originally negotiated during the Tokyo Round – was renegotiated for the second time during the Uruguay Round. It is one of the WTO's so-called Plurilateral Agreements, in that its disciplines apply only to those WTO Members that have signed it. In contrast to most of the other Tokyo Round codes – e.g., the agreements on technical barriers to trade (standards), import licensing, customs valuation, subsidies, and antidumping – the GPA could not be 'multilateralized'. With the reintroduction of agriculture and textiles and clothing into the GATT, procurement has therefore become the major 'hole' …

The Developing Role Of Non-Governmental Organizations In Global Policy And Law Making, Charlotte Ku

Faculty Scholarship

The history of international relations in the twentieth century may appear principally to be the story of the state.

At the same time, the history of international relations in the twentieth century is also one of international organizations as a means to support and strengthen the state's ability to discharge its primary functions of promoting order in the international system and ensuring the security of its own citizens.

An even more aggressive approach to meeting the needs of states is through aid programs like the UN Development Program.

These international organizations were created by governments, usually by treaty, to address …

Nonrecourse Debt Revisited, Restructured And Redefined , Linda Sugin

Faculty Scholarship

This article suggests that the foundation for the tax treatment of nonrecourse debt under current law-the true debt approach-is unworkable. It does not reflect economic reality or correctly measure income. It leads to bizarre and unpredictable consequences, and invites abuse, such as inflated seller financing and deduction shifting from low bracket to high bracket taxpayers. Much has been written about the role of nonrecourse debt in making abusive tax shelters profitable, and while abusive tax shelters no longer abound as they once did, nonrecourse debt continues to pose serious problems, even in the post-Tax Reform Act of 19862 era. If …

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

Whose Rules Of Professional Conduct Should Govern Lawyers In Federal Court And How Should The Rules Be Created , Bruce A. Green

Faculty Scholarship

At present, the rules of professional conduct applied in federal judicial proceedings vary from district to district. In reaction to this problem, the Judicial Conference of the United States is studying the question of whether a uniform set of rules of professional conduct should apply in federal judicial proceedings and, if so, what the nature of the rules should be and how they should be developed. The principal proposals under consideration are the adoption of a uniform set of federal rules based on the American Bar Association Model Rules of Professional Conduct or the adoption of a requirement that each …

Policing Federal Prosecutors: Do Too Many Regulators Produce Too Little Enforcement?, Bruce A. Green

Faculty Scholarship

No abstract provided.

Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve The Conduct And Reputation Of The Bar, The, Russell G. Pearce

Faculty Scholarship

The Article explains how the Professionalism Paradigm distinguishes between self-interested businesspersons and altruistic professionals who place the public good above their own interests and those of their clients. The legal profession has used this Business-Profession dichotomy to obtain control of the delivery legal services, including a legislative monopoly on the practice of law. Today, the Professionalism Paradigm faces a crisis as leading lawyers, judges, and scholars complain that law has become a business and is no longer a profession. The Article “identifies this shift as a time for hope rather than as a cause for despair. Applying Thomas S. Kuhn's …

The Fundamental Role Of Privacy And Confidence In The Network, Joel R. Reidenberg

Faculty Scholarship

No abstract provided.

Abuse Of Rights: A Pervasive Legal Concept, Joseph Perillo

Faculty Scholarship

No abstract provided.

Reflections On Group Action And The Law Of The Workplace Symposium: The Changing Workplace, James J. Brudney

Faculty Scholarship

Sixty years after the National Labor Relations Act (NLRA) was passed, collective action appears moribund. Current analysis burying and praising the NLRA has focused primarily on the changed economic realities of the product and labor markets. Yet there is another story to be told involving a comparable transformation of the legal culture. Relying in part on empirical analysis of court decisions, I argue that changes in federal workplace law over the past thirty years have undermined the concept of group action-in particular collective bargaining-as a preferred means of regulating the employment relationship. These changes are the product of leading institutional …

The Limited Relevance Of Plain Meaning, Stephen F. Ross

Faculty Scholarship

In this essay, the author takes the position that linguists' principal expertise - ascertaining how language is used by ordinary speakers of English - is often of little value in interpreting controversial non-criminal federal statutes. Although linguistic techniques might still aid in understanding their meaning, the author's thesis is that extrinsic evidence that is known and accessible to this small sub-community - such as legislative history, established norms of construction, and other evidence about the context in which the legislation arose - is more likely than linguistic analysis to help an outside judge shed light on what Congress meant and …

The Morphology Of Low Surface Brightness Disk Galaxies, Stacy S. Mcgaugh

Faculty Scholarship

We present UBVI and Ha images of a sample of Low Surface Brightness (LSB) disk galaxies. These galaxies are generally late types, if they can be sensibly classified at all. However, they are not dwarfs, being intrinsically large and luminous. The morphology of LSB galaxies is discussed in terms of the physical interpretation of the Hubble sequence. Galaxies with high contrast relative to the sky background are subject to being more finely typed than those that appear merely as fuzzy blobs on photographic plates. This causes the stages of the Hubble sequence to be nonlinear in the sense that large …

The Transformation Of French Corporate Governance And United States Institutional Investors, James A. Fanto

Faculty Scholarship

No abstract provided.

Is The Shingle Theory Dead?, Roberta S. Karmel

Faculty Scholarship

No abstract provided.

The Identity Crisis: A Vision Of The Right Of Publicity In The Year 2020 [Symposium, Moderator], Beryl R. Jones-Woodin

Faculty Scholarship

No abstract provided.

Edited Comments On Political Participation, Jerome M. Culp

Faculty Scholarship

From Symposium: Affirmative Action and the Law

The Ghost At The Banquet: Slavery, Federalism, And Habeas Corpus For State Prisoners, Marc Arkin

Faculty Scholarship

No abstract provided.

History 'Lite' In Modern American Constitutionalism, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Linguistic Indeterminacy And The Rule Of Law: On The Perils Of Misunderstanding Wittgenstein, Christian Zapf, Eben Moglen

Faculty Scholarship

The central article of faith of the traditional understanding of the Rule of Law is that precedent uniquely determines the outcome of legal cases. Skepticism about that faith, however, is widespread. Critical Legal Scholars, as well as their intellectual ancestors, the Legal Realists, have frequently attacked the legitimacy of the received model and the formalist view of the relationship between the law and its individual applications that underlies the model. The common aim of these attacks is to demonstrate that the law is indeterminate in outcome and that the supposed constraints of the Rule of Law on judges are fictions.

Twenty-Fifth Amendment: An Explanation And Defense, The, John D. Feerick

Faculty Scholarship

In this article, Dean Feerick reviews the history of presidential succession before the Twenty-fifth Amendment's ratification, the debate and discussion leading to the amendment's adoption, and current criticisms of the amendment from the medical and political community. In particular, Feerick addresses current suggestions for the creation of an independent medical panel to determine presidential inability. He argues that such a panel would be contrary to both the principle of separation of powers and the philosophy of the Twenty-fifth Amendment that those closest to the President ,and those accountable to the public, should be entrusted with the power to declare a …

Sentencing Advocacy In The Massachusetts District Courts, Wendy J. Kaplan

Faculty Scholarship

A number of recent legislative initiatives' have brought significant changes to the sentencing practices in the Massachusetts district courts. This article outlines some of these changes, and describes the variety of available district court sentences, in order to assist district court practitioners in their pursuit of effective sentencing advocacy.2 The importance of sentencing advocacy cannot be underestimated. In a system where only a small percentage of cases actually go to trial,3 it is clear that the dispositional decision, deemed a criticial stage of any criminal proceeding, presents an important opportunity for effective advocacy.4 The first section addresses the legislative changes …

The Central Mistake Of Sex Discrimination Law: The Disaggregation Of Sex From Gender, Katherine M. Franke

Faculty Scholarship

Contemporary sex discrimination jurisprudence accepts as one of its foundational premises the notion that sex and gender are two distinct aspects of human identity. That is, it assumes that the identities male and female are different from the characteristics masculine and feminine. Sex is regarded as a product of nature, while gender is understood as a function of culture. This disaggregation of sex from gender represents a central mistake of equality jurisprudence.

Antidiscrimination law is founded upon the idea that sex, conceived as biological difference, is prior to, less normative than, and more real than gender. Yet in every way …

Scenes From The Continuum: Sustaining The Maccrate Report's Vision Of Legal Education Into The Twenty-First Century, J. Michael Norwood

Faculty Scholarship

In 1992, the ABA Task Force on Legal Education and the Profession, under the leadership of its Chairman Robert MacCrate, came out with what has become popularly known as the MacCrate Report. This epochal document has redefined the scope of the current debate on how law school should be taught and what values should make up the core of legal education. In this article, Professor Norwood provides background on the Report and an overview of its contents. He then forecasts the effect it is likely to have in the coming years, noting impediments likely to arise from law schools reluctant …

Federal Environmental Citizen Provisions: Obstacles And Incentives On The Road To Environmental Justice, Eileen Gauna

Faculty Scholarship

This article attempts to examine the special problems that community-based groups in low income and minority communities might encounter in prosecuting citizen suits under highly technical environmental statutes. To set the context for this inquiry, part II of this article describes the environmental justice movement and investigates the charge that communities of color are disproportionately and unjustly burdened with environmental hazards. Part II also explores the differences in perspective that underlie much of the conflict among environmental justice activists, mainstream environmental organizations, and EPA. Part II concludes with a look at social forces that have contributed to environmental inequities and …

Crossing The Racial Divide: Challenging Stereotypes About Black Jurors, Richard A. Boswell

Faculty Scholarship

No abstract provided.

Too Many And Yet Too Few: New Principles To Define The Proper Limits For Federal Criminal Jurisdiction, Sara Sun Beale

Faculty Scholarship

No abstract provided.

Girls And The Getaway: Cars, Culture, And The Predicament Of Gendered Space, Carol Sanger

Faculty Scholarship

What does law tell us about our relations to material things? Property theorists maintain that there are no legal relations between persons and things. Things can be owned, transferred, bequeathed, assigned, repossessed, and so on, but such arrangements really describe relationships among different persons with regard to the object rather than relationships between persons and things.

Yet the quality or shape of the legal relations among persons often depends on the cultural meaning of the thing in question, a meaning (or meanings) that exists, in some form anyway, prior to or independent of, legal concepts traditionally attached to things such …