Digital Commons Network^™

Faces Of Immigration Reform, Steven W. Bender

Faculty Articles

Recognizing the need for a sympathetic construction of immigrants as a precursor to comprehensive immigration reform that goes beyond enforcement prerogatives, this article surveys the various “faces” of immigration reform - both of advocates for progressive reform and the potentially sympathetic group images they wield. The article concludes that no image - whether of undocumented workers generally, farm laborers, immigrant children and Dreamers, or undocumented veterans - is poised to garner sympathy from voters and policymakers, particularly against the backdrop of the current economic crisis. Reform may hinge, then, on interest convergence so powerful that it transcends the prevailing negative …

Latcrit Xv Symposium Afterword, Steven W. Bender, Francisco Valdes

Faculty Articles

In this afterword, the authors begin to sketch the kind of future that they imagine. This afterword starts with an overview account of the first fifteen years of LatCrit theory, community, and praxis. Then turns to a handful of highlights regarding current or new programmatic initiatives that LatCrit scholars have recently launched or plan imminently to launch-a quick survey intended to connect the past with the present before turning to the future. In the concluding part of this afterword, the authors lay out some of the basic parameters for the LatCritical future that they imagine and that they hope to …

Meeting Across The River: Why Affirmative Action Needs Race And Class Diversity, Deirdre M. Bowen

Faculty Articles

This paper is a response to Richard Sander’s latest work challenging the notion that race based affirmative action is still relevant and demanding that institutions of higher education consider class based affirmative action. To support his thesis, Sander conducts an empirical study on who benefits from affirmative action.

This Article is divided into three sections, each containing a critique of Sander’s arguments and analysis. First, I briefly reframe and reiterate the history of race and ethnicity in affirmative action’s origins to directly confront the assumption that Sander makes about what affirmative action’s original purpose entailed. The goal of Part I …

Matters Of Preference: Tracing The Line Between Citizens, Democratic States, And International Law, Mark A. Chinen, Lana J. Ellis

Faculty Articles

In this Article, we assess the role the aggregation of citizen preferences into the foreign policy choices of a democratic country might play in the legitimization of international law. After addressing some of the theoretical and empirical issues associated with such an approach, we use an anticipated reaction model developed by Michael Bailey to show that even in large democracies there are mechanisms through which citizen preferences can be and are reflected in the policy choices of their representatives.

Incumbents and candidates for office take policy positions in hopes of maximizing their future election chances. Although policymakers each have their …

Global Intellectual Property Governance (Under Construction), Margaret Chon

Faculty Articles

Top down as well as bottom-up models of regulation are shifting to a governance paradigm characterized by the greater interaction among public, private and civil society sectors, as well as potential increased flexibility of law. As applied to intellectual property, particularly in the international context, governance literature is emerging but still episodic. This article examines the World Intellectual Property Organization’s Development Agenda, currently being implemented through its Committee on Development and Intellectual Property. WIPOs efforts to address global development goals with intellectual property can be theorized through the more participatory and dynamic legal mechanisms promised by global governance. Among the …

Sticky Knowledge In Copyright, Margaret Chon

Faculty Articles

Knowledge is sticky because it adheres to people along social routes, lodged within relational and collective modalities, as well as through copyright's proverbial fixed works that can be transacted more freely. Sticky knowledge may in fact constitute a much larger body of knowledge than we usually acknowledge in intellectual property and may intersect with copyright in unexpected ways. This Article delves into sticky knowledge, which has been referenced often outside of intellectual property and sometimes within the laws of patents and trade secrets but almost not at all within copyright law. Under what circumstances will sticky knowledge encourage robust knowledge …

Rodrigo’S Reconsideration: Intersectionality And The Future Of Critical Race Theory, Richard Delgado

Faculty Articles

The author presents a discussion between him and his friend Rodrigo Crenshaw on intersectionality and the future of critical race theory. They discuss the three core critical-race theory ideas which include narrative jurisprudence, integroup coalitions and intersectionality. The author also explains the concept of classical liberalism.

Confronting The Certainty Imperative In Corporate Finance Jurisprudence, Diane Lourdes Dick

Faculty Articles

This Article argues that the methodological constraints of the Imperative have abandoned its underlying goals of certainty and stability in financial markets. Therefore, a new paradigm is needed that will enable courts to allocate rights and remedies in accordance with the economic substance of arrangements, and thus better enhance market stability.

This Article proceeds as follows: Part II articulates the jurisprudential underpinnings of the Imperative. Part III examines the economic theory and assumptions reflected in Imperative-driven decisions, as well as the interpretive methodology that has evolved across a range of judicial decisions and legislative enactments. Part IV introduces a recent …

From Both Sides Now: The Job Talk’S Role In Matching Candidates With Law Schools, Anne Enquist, Paula Lustbader, John B. Mitchell

Faculty Articles

In the heavily competitive law school teaching job market, the so-called “job talk” has assumed increasing importance in the ultimate hiring decision. Nevertheless, there is little published information to assist a law school faculty in structuring or evaluating the job talk and a similar paucity of information for candidates to guide them in creating and preparing for the presentation of their talk. This article is intended to fill that void. The article guides the preparation of faculty and candidates for both the job talk itself and for the crucial Q&A period that follows the talk. The article represents the authors’ …

Labor Values Are First Amendment Values: Why Union Comprehensive Campaigns Are Protected Speech, Charlotte Garden

Faculty Articles

Corporate targets of union “comprehensive campaigns” increasingly have responded by filing civil Racketeer Influenced and Corrupt Organizations Act (RICO) lawsuits alleging that unions’ speech and petitioning activities are extortionate. These lawsuits are the descendants of the Supreme Court’s unexplained treatment of much labor speech as less worthy of protection than other types of speech. Starting from the position that speech that promotes democratic discourse deserves top-tier First Amendment protection, this article argues that labor speech--which plays a unique role in civil society--should be on an equal footing with civil rights speech. Thus, even if union advocacy qualifies as legal extortion, …

An Environmental Justice Critique Of Comparative Advantage: Indigenous Peoples, Trade Policy, And The Mexican Neoliberal Economic Reforms, Carmen G. Gonzalez

Faculty Articles

The free market reforms adopted by Mexico in the wake of the debt crisis of the 1980s and in connection with the North American Free Trade Agreement (NAFTA) have jeopardized the physical and cultural survival of Mexico’s indigenous peoples, increased migration to the United States, threatened biological diversity in Mexico, and imposed additional stress on the environment in the United States. Despite these negative impacts, NAFTA continues to serve as a template for trade agreements in the Americas. Unless this template is fundamentally restructured, future trade agreements may replicate throughout the Western hemisphere many of the economic, ecological and social …

Climate Change, Food Security, And Agrobiodiversity: Toward A Just, Resilient, And Sustainable Food System, Carmen G. Gonzalez

Faculty Articles

The global food system is in a state of profound crisis. Decades of misguided aid, trade and production policies have resulted in an unprecedented erosion of agrobiodiversity that renders the world’s food supply vulnerable to catastrophic crop failure in the event of drought, heavy rains, and outbreaks of pests and disease. Climate change threatens to wreak additional havoc on food production by increasing the frequency and severity of extreme weather events, depressing agricultural yields, reducing the productivity of the world’s fisheries, and placing pressure on scarce water resources. Furthermore, the climate crisis and the biodiversity crisis are occurring at a …

The Global Politics Of Food: Introduction To The Theoretical Perspectives Cluster, Carmen G. Gonzalez

Faculty Articles

In May 2010, the Universidad Interamericana in Mexico City hosted an international conference on The Global Politics of Food: Sustainability and Subordination. Sponsored by Latina and Latino Critical Legal Theory, Inc. and by Seattle University School of Law, the conference took place under the auspices of the South-North Exchange on Theory, Culture and Law (SNX), a yearly gathering of scholars in the Americas that seeks to foster transnational, cross-disciplinary and inter-cultural dialogue on current issues in law, theory and culture. Published in the University of Miami Inter-American Law Review, the conference papers examine the complex ways in which the …

Investment Income Withholding In The United States And Germany, Lily Kahng

Faculty Articles

In a reversal from its historical roots, the United States income tax system now taxes income from labor significantly more heavily than income from capital. It does so not only facially, through explicit preferences for income from capital, but also more subtly, through more hidden features of the tax system – specifically, enforcement strategies. This article focuses on a prominent disparity in enforcement between the two forms of income: Wage income is subject to withholding while investment income is not.

In its critical examination of this disparity, the article first offers a brief history of withholding in the United States, …

“Surplus Humanity" And The Margins Of Legality: Slums, Slumdogs, And Accumulation By Dispossession, Tayyab Mahmud

Faculty Articles

Marooned on the outskirts of the law, more than one billion people worldwide live in urban slums and squatter settlements, mostly in the global South. Law, extra-legality, and illegality commingle in urban slums to produce spaces and subjects at the margins of legal orders and formal economies. Three enduring and inter-related features of capitalism-accumulation by dispossession, a reserve army of labor, and an informal sector of the economy-produce and sustain urban slums. The genesis and persistence of slums and slum-dwellers testify to the iron fist of the state working in concert with the hidden hand of the market in the …

Is It Greek Or Déjà Vu All Over Again?: Neoliberalism And Winners And Losers Of International Debt Crises, Tayyab Mahmud

Faculty Articles

The global financial meltdown and the Great Recession of 2007-2009 have brought into sharp relief the uneven distribution of gain and pain during economic crises. The 2009-2010 debt crisis in Greece resulted in a windfall for financial institutions at the expense of taxpayers, a rollback of welfare systems, and the impoverishment of the working classes. This outcome is consistent with the pattern that has emerged in the international debt crises of the last three decades, including the Latin American crisis during the 1980s and the Asian crisis during the 1990s.

The recurrent international debt crises of the last three decades …

Punctuated Equilibrium: A Model For Administrative Evolution, Mark C. Niles

Faculty Articles

The “public choice” model of the administrative state posits a federal regulatory structure that is dominated by the private entities subject to its policy proscriptions. The formidable advantages in resources and focus enjoyed by the these private entities leave governmental units, like agencies and legislatures, with little realistic chance to resist agency capture and avoid implementing the policy objectives of the parties whom they are charged with regulating.

As theoretically powerful and practically descriptive as this model is, there is one significant question for which it fails to provide a satisfying answer—why, if regulated entities enjoy a strangle-hold on the …

Freedom From Violence: Using The Stages Of Change Model To Realize The Promise Of Civil Protection Orders, Jane K. Stoever

Faculty Articles

This Article is the first legal scholarship to analyze domestic violence civil protection orders and response systems using the Stages of Change Model from the field of psychology. The Stages of Change Model, which describes how domestic violence survivors end relationship violence, includes five stages: (1) pre-contemplation; (2) contemplation; (3) preparation; (4) action; and (5) maintenance. According to the model, ending intimate partner violence is an iterative and complex process, and survivors typically revisit earlier stages as they progress toward maintaining freedom from violence. The model has been validated by numerous studies and is widely accepted in the psychology community. …

A Prudent Approach To Climate Change, John B. Kirkwood

Faculty Articles

Climate change poses large and difficult issues. The potential stakes are enormous, but there is vexing uncertainty about the likelihood of a catastrophe, our ability to mitigate it, the economic costs of taking action, and the desirability of doing so without the participation of the world’s rapidly developing economies. This article outlines a prudent response to these uncertainties. Given the state of the economy, it does not endorse high taxes or other severe curbs on carbon emissions. But unlike John Kunich’s article in the same volume, it does not suggest it would be appropriate to do nothing. Instead, the article …

Slavery, The Rule Of Law, And The Civil War, George Van Cleve

Faculty Articles

No abstract provided.

Neither A Model Of Clarity Nor A Model Statute: An Analysis Of The History, Challenges, And Suggested Changes To The “New” Article 120, Hon. Jack Nevin, Joshua R. Lorenz

Faculty Articles

No abstract provided.

Laws As Tactics, Dean Spade

Faculty Articles

This article will look at how trans scholarship and activism have taken up disciplinary critiques of gender, often influenced by Butler, and suggest that further development of critical trans perspectives focused on sites of regularization is needed, for which Butler's work on governmentality can be useful. To start, it describes some of the key concepts from Butler's work that have been taken up in trans politics and briefly reviews the distinctions Foucault offers between sovereignty, discipline and biopolitics. The article then examines some of the ways that trans politics has critiqued disciplinary norms, looking at resistance to the medicalization of …

Prenatal Maternal Stress Programs Infant Stress Regulation, Elyssia Poggi Davis, Laura M. Glynn, Feizal Waffarn, Curt A. Sandman

Psychology Faculty Articles and Research

Objective: Prenatal exposure to inappropriate levels of glucocorticoids (GCs) and maternal stress are putative mechanisms for the fetal programming of later health outcomes. The current investigation examined the influence of prenatal maternal cortisol and maternal psychosocial stress on infant physiological and behavioral responses to stress.

Methods: The study sample comprised 116 women and their full term infants. Maternal plasma cortisol and report of stress, anxiety and depression were assessed at 15, 19, 25, 31 and 36 + weeks' gestational age. Infant cortisol and behavioral responses to the painful stress of a heel-stick blood draw were evaluated at 24 hours after …

Parental Precaution: Neurobiological Means And Adaptive Ends, Jennifer Hahn-Holbrook, Colin Holbrook, Martie G. Haselton

Psychology Faculty Articles and Research

Humans invest precious reproductive resources in just a few offspring, who remain vulnerable for an extended period of their lifetimes relative to other primates. Therefore, it is likely that humans evolved a rich precautionary psychology that assists in the formidable task of protecting offspring. In this review, we integrate precautionary behaviors during pregnancy and postpartum with the adaptive functions they may serve and what is known of their biological mediators, particularly brain systems motivating security and attachment. We highlight the role of reproductive hormones in (i) priming parental affiliation with young to incentivize offspring protection, (ii) focusing parental attention on …

Becoming Happier Takes Both A Will And A Proper Way: An Experimental Longitudinal Intervention To Boost Well-Being, Sonja Lyubomirsky, Rene Dickerhoof, Julia K. Boehm, Kennon M. Sheldon

Psychology Faculty Articles and Research

An 8-month-long experimental study examined the immediate and longer term effects of regularly practicing two assigned positive activities (expressing optimism and gratitude) on well-being. More important, this intervention allowed us to explore the impact of two metafactors that are likely to influence the success of any positive activity: whether one self-selects into the study knowing that it is about increasing happiness and whether one invests effort into the activity over time. Our results indicate that initial self-selection makes a difference, but only in the two positive activity conditions, not the control, and that continued effort also makes a difference, but, …

Development Of A Positive Psychology Intervention For Patients With Acute Cardiovascular Disease, Jeff C. Huffman, Carol A. Mastromauro, Julia K. Boehm, Rita Seabrook, Gregory L. Fricchione, John W. Denninger, Sonja Lyubomirsky

Psychology Faculty Articles and Research

The management of depression and other negative psychological states in cardiac patients has been a focus of multiple treatment trials, though such trials have not led to substantial improvements in cardiac outcomes. In contrast, there has been minimal focus on interventions to increase positive psychological states in cardiac patients, despite the fact that optimism and other positive states have been associated with superior cardiovascular outcomes. Our objective was to develop an 8-week, phone-based positive psychology intervention for patients hospitalized with acute cardiac disease (acute coronary syndrome or decompensated heart failure). Such an intervention would consist of positive psychology exercises adapted …

David Grove's Metaphors For Healing, David Pincus, Anees A. Sheikh

Psychology Faculty Articles and Research

Within the ever-expanding list of approaches to psychotherapy, there is a tendency to overlook deep imagery approaches. The current article reports on one such metaphor-based therapy developed by David Grove (Grove & Panzer, 1989). The approach is analyzed within the context of mainstream contemporary psychotherapy in general, the state of empirical understanding of common processes to psychotherapy, and in relation to other deep imagery-based approaches to therapy. Next, a step-by-step description of the techniques used within metaphor therapy are presented, along with a case example demonstrating the use of these techniques on a case involving pain symptoms. Finally, it is …

“I Would Feel Uncomfortable If My Child’S Teacher Were Gay”: Examining The Role Of Symbolic Homophobia And Political Affiliation, Michael Moore, Amy C. Moors

Psychology Faculty Articles and Research

Symbolic homophobia is a general negative disposition towards lesbian, gay, and bisexual individuals, which is demonstrated in symbolic forms of prejudice rather than overt actions. Stigma towards lesbian, gay, and bisexual (LGB) individuals has transformed from overt forms of prejudice to slightly less blatant more subtle forms in recent years (Schafer & Shaw, 2009). Based on previous research, it is has also been shown that conservatives will have higher levels of symbolic homophobia. (Linneman, 2004), Thus, in order to assess the more nuanced forms of prejudice in relation to political affiliation, Study 1 created a scale to assess symbolic homophobia. …

Unconscious Vigilance: Worldview Defense Without Adaptations For Terror, Coalition Or Uncertainty Management, Colin Holbrook, Paulo Sousa, Jennifer Hahn-Holbrook

Psychology Faculty Articles and Research

Individuals subtly reminded of death, coalitional challenges, or feelings of uncertainty display exaggerated preferences for affirmations and against criticisms of their cultural in-groups. Terror management, coalitional psychology, and uncertainty management theories postulate this “worldview defense” effect as the output of mechanisms evolved either to allay the fear of death, foster social support, or reduce anxiety by increasing adherence to cultural values. In 4 studies, we report evidence for an alternative perspective. We argue that worldview defense owes to unconscious vigilance, a state of accentuated reactivity to affective targets (which need not relate to cultural worldviews) that follows detection of subtle …

Clinical Social Work And The Biomedical Industrial Complex, Tomi Gomory, Stephen E. Wong, David Cohen, Jeffrey R. Lacasse

The Journal of Sociology & Social Welfare

This article examines how the biomedical industrial complex has ensnared social work within a foreign conceptual and practice model that distracts clinical social workers from the special assistance that they can provide for people with mental distress and misbehavior. We discuss: (1) social work's assimilation of psychiatric perspectives and practices during its pursuit of professional status; (2) the persistence of psychiatric hospitalization despite its coercive methods, high cost, and doubtful efficacy; (3) the increasing reliance on the Diagnostic and Statistical Manual of Mental Disorders, despite its widely acknowledged scientific frailty; and (4) the questionable contributions of psychoactive drugs to clinical …