Law Commons^™

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

The Place Of Law: The Role And Limits Of Law In Society, Larry Barnett

Larry D Barnett

The Place of Law addresses two questions that are critical to understanding law. Why is law an evidently universal, enduring institution in modern societies? And why do the concepts and doctrines of law differ between jurisdictions (states or nations) at one point in time and vary within a jurisdiction over time? In this stimulating volume, Barnett suggests answers to these questions, and in doing so, he challenges popular assumptions regarding law in structurally complex, technologically advanced, democratic societies. In particular, Barnett questions the assumption that social behaviors central to such societies are effectively controlled by law and the assumption that …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

Customary International Law 2.0, Scott Sullivan

Scott Sullivan

Throughout history, customary law has been legitimized as an instrument to put the power of law behind the aggregated, collective judgment of citizens. Technological advances in communication have created a world where such collective judgments are easier to identify and apply than ever before. Unfortunately, the current regime design of customary international law formation is tethered to a fiction of state consent that is subjecting the system to creeping anachronism.

This Article offers an alternative theoretical “version” for understanding and justifying the creation of customary international law norms. Consistent with the software versioning invoked in the title, this rethinking of …

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll Versus Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

The Federal Government’S Ability To Respond To A Major Terrorist Attack: Issues, Concerns And Inadequacies In The Disaster Law Construct, M. Jonathan Gil

Michael J Gil

The cunning and zeal of the world’s terrorist organizations require that this country prepare itself for large-scale disaster relief operations. As it stands, the Stafford Act, as well as federal and local government policies are lacking. The federal government has floundered in past situations, and Americans have died as a result. In order to remedy these shortcomings, the government should take two different stances: hands on, and hands off. The hands-on approach is designed to address the shortfalls of past disaster response and the current system, while the hands-off approach is designed to allow the entire relief operation to operate …

Reclaiming The Promise Of The Indian Child Welfare Act: A Study Of State Incorporation And Adoption Of Legal Protections For Indian Status Offenders, Thalia Gonzalez

Thalia Gonzalez

No abstract provided.

Selling Sex: Analyzing The Improper Use Defense To Contract Enforcement Through The Lens Of Carroll V. Beardon, Julie M. Spanbauer

Julie M. Spanbauer

The 1963 decision of the Supreme Court of Montana in Carroll v. Beardon, occupies less than three full pages in the Pacific Reporter and involves a simple real estate transaction in which a “madam” sold a house used for prostitution to another “madam.” The opinion is the last in a long line of cases to speak specifically to the issue of enforcement of facially legitimate contracts that in some manner arguably involve or are related to prostitution and is commonly cited in treatises and hornbooks as representative of the movement by courts toward enforcement of such contracts under the law …

Sprawl In Canada And The United States (Powerpoint), Michael E. Lewyn

Michael E Lewyn

PowerPoints for a speech explaining that sprawl in Canada is (1) less extensive than in the USA and (2) caused partially by government regulation.

Rethinking Gps Devices And Fourth Amendment Rights, Allison W. Chan

Allison W Chan

Technology advances rapidly. Constant innovation, however, comes at a cost. Law enforcement is able to engage in wholesale surveillance of suspects by attaching Global Positioning System (“GPS”) devices to their vehicles. Attaching GPS devices to those vehicles has few, if any, restrictions. Law enforcement does not need a warrant. Officers may legally attach a GPS device anytime a vehicle is in “public space.” However, the problem is that courts have been unable to agree on what constitutes public space, especially with regards to residential curtilage. In 2010, the Ninth Circuit held in United States v. Pineda Moreno, 591 F.3d 1212 …

Reflections On Fair Housing Law, Tim Iglesias

Tim Iglesias

This presentation offered reflections on the state of fair housing law in light of numerous studies evaluating its effectiveness. It argues that while enforcement needs to be improved, fair housing advocates must also employ complementary strategies to reform social norms.

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested engineered nanoparticles as a result of their contact with everyday consumer products. Nanoparticles are very small particles that are engineered using innovative technologies to be 1 to 100 nanometers in size. Just how small is small? In comparison, a human hair is 80,000 nanometers wide. Nanoscale materials are increasingly being used in a wide variety of areas, including electronic, magnetic, medical imaging, drug delivery, catalytic, materials applications, and cosmetic products. According to the National Institute of Occupational Health, new nanotechnology consumer products are coming …

The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, K Van Tassel, R Goldman

Katharine A. Van Tassel

Consumers in the United States are being exposed to steadily increasing levels of novel and untested substances as a result of their contact with consumer products containing nanoparticles. Hundreds of consumer products are being marketed for human consumption, including food, dietary supplements, cosmetics and sunscreens. This expanding market ignores the growing scientific understanding that nanoparticles can create unintended human health and environmental risks. This Article discusses the public health, regulatory, legal and ethical issues raised by the developing appreciation of the health risks associated with nanotech products and is arranged as follows. After this Introduction, this Article describes the present …

The Hollow Promise Of Freedom Of Conscience, Nadia N. Sawicki

Nadia N. Sawicki

Two hundred years ago, Thomas Jefferson asserted that no law “ought to be dearer to man than that which protects the rights of conscience against the enterprises of the civil authority." Since then, freedom of conscience has continued to be heralded as a fundamental principle of American society. Indeed, many current policy debates – most notably in the medical and military contexts – are predicated on the theory that claims of conscience are worthy of legal respect. This Article challenges established assumptions, concluding that claims about the importance of conscience in American society have been highly exaggerated.

This Article first …

The Abortion Informed Consent Debate: More Light, Less Heat, Nadia N. Sawicki

Nadia N. Sawicki

State abortion informed consent laws – including those requiring physicians to disclose that abortion terminates the life of a “whole, separate, unique, living human being” or display ultrasound images to patients seeking abortions – are being adopted at a rapid pace. Health law scholars who oppose these laws uniformly criticize them as being fundamentally inconsistent with the doctrine of informed consent. This Article directly challenges this conventional approach. It argues that the doctrine of informed consent does not impose nearly as significant a barrier to abortion disclosure laws as many critics claim. Rather, the ethical and legal principles of informed …

Unclear And Unconvincing: The Truthiness Requirement Of California's Ballot Pamphlet Arguments, Michael Boardman

Michael Boardman

“Truthiness,” as defined by TV satirist Steven Colbert, has found its way into the English lexicon. Unfortunately for California, its principles have also been incorporated into the state’s official ballot pamphlet. Misleading, and often demonstrably false, arguments written by special interests distort the political process yet the state continues to publish and distribute them to voters with little judicial recourse. Admirably, California permits private causes of action challenging the accuracy of these arguments, but the statutory scheme it has created to govern the challenges largely fails to promote its main goal: providing a central and convenient place for voters to …

Is The Attorney-Client Privilege A Privilege Of The Rich? Federal Hmis Database Reporting And Homeless Client Confidentiality, Jennifer Hammitt

Jennifer Hammitt

No abstract provided.

On Butlers, Architects, And Lawyers: The Professionalism Of "The Remains Of The Day" And Of "The Fountainhead", Susan Daicoff

Susan Daicoff

Several commentators have explored the relationship of a fictional character of the butler, Stevens, in Kazuo Ishiguro’s novel, The Remains of the Day, to the proper professional role of the lawyer, since the novel was published. The professionalism of Stevens is here compared to that of another fictional character, the architect, Roark, in Ayn Rand’s novel, The Fountainhead, as they might be applied in the legal profession. The relationship of empirical research on lawyers’ values, wellbeing, and decisionmaking preferences to these divergent approaches to professionalism is then explored. A diversity of approaches to professional role is proposed as most appropriate, …