Digital Commons Network^™

Governmental Conservation Easements: A Means To Advance Efficiency, Freedom From Coercion, Flexibility, And Democracy, Gerald Korngold

Articles & Chapters

Over the past twenty-five years, courts and commentators have recognized and upheld conservation easements as an important vehicle to preserve natural and ecologically sensitive land, focusing primarily on easements held by nonprofit organizations (NPOs). During the same period, courts and commentators have supported property rights of owners against governmental land use regulation. This paper maintains that these two independent developments militate for the increased use of consensual conservation easements by governmental entities to achieve public land preservation goals. Governmental conservation easements can realize the benefits of efficiency, consent and free choice, and conservation, while avoiding the coercion implicit in public …

They’Re Planting Stories In The Press: The Impact Of Media Distortions On Sex Offender Law And Policy, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

Individuals classified as sexual predators are the pariahs of the community. Sex offenders are arguably the most despised members of our society and therefore warrant our harshest condemnation. Twenty individual states and the federal government have enacted laws confining individuals who have been adjudicated as “sexually violent predators” to civil commitment facilities post incarceration and/or conviction. Additionally, in many jurisdictions, offenders who are returned to the community are restricted and monitored under community notification, registration and residency limitations. Targeting, punishing and ostracizing these individuals has become an obsession in society, clearly evidenced in the constant push to enact even more …

Marriage Rights And The Good Life: A Sociological Theory Of Marriage And Constitutional Law, Ari Ezra Waldman

Articles & Chapters

This is the first in a series of three Articles investigating the underappreciated role that the social theory of Emile Durkheim plays in the quest for the freedom to marry for gay Americans. To that end, this Article begins the discussion by examining the Durkheimian legal arguments that go unnoticed in equal protection and due process claims against marriage discrimination. This Article challenges two assumptions: first, that the most effective legal argument for marriage rights is a purely liberal one, and second, that the substance and rhetoric of liberal toleration cannot exist symbiotically in the marriage discrimination debate with a …

Introduction: Trial By Jury Or Trial By Motion? Summary Judgment, Iqbal, And Employment Discrimination, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Ask The Professor: How Will The Seventh Circuit Rule In Sentinel Ii?, Ronald H. Filler

Articles & Chapters

No abstract provided.

Yonder Stands Your Orphan With His Gun: The International Human Rights And Therapeutic Jurisprudence Implications Of Juvenile Punishment Schemes, Michael L. Perlin

Articles & Chapters

In the last decade, the US Supreme Court has ruled that the death penalty, a life sentence without possibility of parole (LWOP), and mandatory LWOP for homicide convictions violate the Eighth Amendment when applied to juvenile defendants. These decisions were premised, in large part, on findings that "developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds," and that those findings both lessened a child's "moral culpability" and enhanced the prospect that, as the years go by and neurological development occurs, his "deficiencies will be reformed."

These decisions have, by and large, been welcomed …

Wisdom Is Thrown Into Jail: Using Therapeutic Jurisprudence To Remediate The Criminalization Of Persons With Mental Illness, Michael L. Perlin

Articles & Chapters

The common wisdom is that there are two related villains in the saga of the “criminalization of persons with mental illness”: the dramatic elimination of psychiatric hospital beds in the 1970s and 1980s as a result of the “civil rights revolution,” and the failure of the deinstitutionalization movement. Both of these explanations are superficially appealing, but neither is correct; in fact, the causal link between deinstitutionalization and criminalization has never been rigorously tested. It is necessary, rather, to consider another issue to which virtually no attention has been or is being paid: the near-disappearance of mental status issues from the …

Mezzanine Debt And Preferred Equity In Real Estate, Andrew R. Berman

Articles & Chapters

No abstract provided.

John Brown Went Off To War: Considering Veterans’ Courts As Problem-Solving Courts, Michael L. Perlin

Articles & Chapters

In this paper, I seek to contextualize veterans courts in light of the therapeutic jurisprudence (TJ) movement, the turn to problem-solving courts of all sorts (especially focusing on mental health courts), and the societal ambivalence that we have shown to veterans in the four decades since the Vietnam war.

I argue that TJ’s focuses on how law actually impacts people’s lives, on the law’s influence on emotional life and psychological well-being and on the need for law to value psychological health and avoid the imposition of anti-therapeutic consequences whenever possible can serve as a template for a veterans courts model …

Striking For The Guardians And Protectors Of The Mind: The Convention On The Rights Of Persons With Mental Disabilities And The Future Of Guardianship Law, Michael L. Perlin

Articles & Chapters

In many nations, entry of a guardianship order became the “civil death” of the person affected. It has been accurately characterized as “civil death” characterization because a person subjected to the measure is not only fully stripped of their legal capacity in all matters related to their finance and property, but is also deprived of, or severely restricted in, many other fundamental rights, [including] the right to vote, the right to consent or refuse medical treatment (including forced psychiatric treatment), freedom of association and the right to marry and have a family.

Guardianship is also frequently entered. In Hungary, for …

The Judge, He Cast His Robe Aside: Mental Health Courts, Dignity And Due Process, Michael L. Perlin

Articles & Chapters

One of the most important developments in the past two decades in the way that criminal defendants with mental disabilities are treated in the criminal process has been the creation and the expansion of mental health courts, one kind of “problem-solving court.” There are now over 300 such courts in operation in States, some dealing solely with misdemeanors, some solely with non-violent offenders, and some with no such restrictions. There is a wide range of dispositional alternatives available to judges in these cases, and an even wider range of judicial attitudes. And the entire concept of “mental health courts” is …

Myths About Shareholder Value, Faith Stevelman

Articles & Chapters

The concept of unitary "shareholder value" and its reflection in nearterm stock prices formed the centrepiece of contemporary corporate governance up to the 2008 financial crisis. The crisis has elicited both more critical and clearer, book-length accounts of the relationship of law, corporate governance and finance. The concepts analysed in Lynn Stout's The Shareholder Value Myth are considered herein, as part of a commentary on the continuing evolution of academic corporate law and governance.

Fostering The Human Rights Of Youth In Foster Care: Defining Reasonable Efforts To Improve Consequences Of Aging Out, Ramesh Kasarabada

Articles & Chapters

No abstract provided.

There Must Be Some Way Out Of Here: Why The Convention On The Rights Of Persons With Disabilities Is Potentially The Best Weapon In The Fight Against Sanism, Michael L. Perlin

Articles & Chapters

It is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism permeates all aspects of the legal system – judicial opinions, legislation, the role of lawyers, juror decision-making – and the entire fabric of society. For those unfamiliar with the term, I define "sanism" as an irrational prejudice of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry, that permeates all aspects of mental disability law and affects all participants in the mental …

Visual Jurisprudence, Richard Sherwin

Articles & Chapters

Lawyers, judges, and jurors face a vast array of visual evidence and visual argument inside the contemporary courtroom. From videos documenting crimes and accidents to computer displays of their digital simulation, increasingly, the search for fact-based justice is becoming an offshoot of visual meaning making. But when law migrates to the screen it lives there as other images do, motivating belief and judgment on the basis of visual delight and unconscious fantasies and desires as well as actualities. Law as image also shares broader cultural anxieties concerning not only the truth of the image, but also the mimetic capacity itself, …

Marini V. Ireland: Protecting Low Income Renters By Judicial Shock Therapy, Richard H. Chused

Articles & Chapters

No abstract provided.

Worker Cooperative Creation As Progressive Lawyering: Moving Beyond The One-Person, One-Vote Floor, Gowri Krishna

Articles & Chapters

Community Economic Development (CED) scholars posit that creating worker cooperatives, businesses owned and managed by their workers, is a progressive approach to CED that has the potential to go beyond job creation and spur grassroots political activism. Yet many workers’ rights organizations and workers’ rights advocates, especially those serving low-wage immigrant workers, struggle with how to connect worker cooperatives to broader efforts for change. This Article argues that forming a worker cooperative that acts as a change agent requires more than simply structuring the business as a worker cooperative. Cooperative corporation laws and cooperative principles set a floor — typically, …

The Song Is Over: Why It's Time To Stop Talking About An International Investment Arbitration Appellate Body, Barry Appleton

Articles & Chapters

No abstract provided.

Introduction Of The Panelists: The Untold Secrets Of Eagle Street (Symposium), Penelope Andrews, Vincent Martin Bonventre, Patrick M. Connors, Rosemary Queenan, Michael J. Hutter, Donna E. Young

Articles & Chapters

No abstract provided.