Law Commons^™

Private Lawmaking And The Architecture Of Confidentiality In Nonprofit Boardrooms, Norman I. Silber

Norman I. Silber

Abstract

Placement of the boundary line between transparent and confidential deliberation inside a boardroom affects the quality, efficiency, and fairness of corporate decision making. Policies which do not insist upon confidentiality can improve the perceived legitimacy of decisions and of those who make them; confidentiality can improve the ability to implement decisions effectively. The degree of transparency facilitated by these policies affects the volume and quality of available information. In the nonprofit boardroom, the boundaries that are set by governance rules also reflect and give shape to institutional structures and cultural norms.

This article explores justifications for changing from a …

Teaching Ethics In Criminal Justice To First Year Law Students: Or Efforts To Dislodge The Csi Effect, Susan Rutberg

Susan Rutberg

Teaching Ethics in Criminal Justice to First Year Law Students:

Or Efforts to Dislodge the CSI Effect[1]

Susan Rutberg[2]

ABSTRACT

This article discusses the implementation of an innovative first year course at Golden Gate University School of Law entitled “Lawyering Skills: Ethics in Criminal Justice.” The course, offered for the first time in the spring of 2011, was the product of curricular reform set in motion by the 2007 Carnegie Foundation Report, Educating Lawyers: Preparation for the Profession of Law. Golden Gate University has had a longtime focus both on practical legal education and ethical training. We devote a substantial …

Principio De Solidaridad, Acciones Populares Y Derechos Colectivos En Colombia: Aproximaciones Críticas A La Sentencia C-630 Del 2011 De La Corte Constitucional, Daniel Monroy

Daniel A Monroy C

ABSTRACT

This article presents a serious rapprochement to the arguments that the Constitutional Court put forward in the judgment C- 630 of 2011. The main objective of this article is to prove the weakness of the arguments, especially on those that are supported in the constitution´s principle of solidarity and those that derive in “duties’s consideration. This article beginning with some critiques to the class actions rights and it protection´s mechanism, bases in economic analysis. Afterward, base in the general description that the court have establish in the principle of solidarity, this article explain the different way how the court …

Debtor’S Prison In The Neoliberal State: “Debtfare” And The Cultural Logics Of The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005, Linda E. Coco

Linda E. Coco

The enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act (“BAPCPA”) of 2005, amending the Bankruptcy Reform Act of 1978, marks a transformation in bankruptcy law and policy that is representative of larger shifts in dominant economic and political models from “embedded liberalism” to free market “neoliberalism.” BAPCPA’s provisions are part of the new practices of the emergent neoliberal state as they relate to the American middle class segment of the population. In disciplining the middle class, BAPCPA shifts the risk and the responsibility of the lending relationship onto consumer debtors. BAPCPA does this by keeping financially distressed individuals …

Legal Services Programs Can Avoid Service Reductions By Improving Efficiency And Effectiveness, Wayne Moore

wayne moore

This article describes how legal services for low-income people can be maintained or even increased despite recent decreases in funding, if some legal services programs increased their efficiency and effectiveness. Data is presented that indicates that some programs are much less efficient than others. Accepted methods are described for boosting staff output and efficiency without working faster or shortchanging time spent with clients. This can be accomplished using better technology (document generators), methods (telephone conversations can take much less time than face-to-face conversations), and systems (assigning common, routine cases to specially trained staff who use streamlined processes). Effectiveness is defined …

No Justice, Just Peas: Why Wal-Mart Will Not End D.C.’S Food Deserts, Emily R. Citkowski

Emily R. Citkowski

Without a significant policy shift away from corporate subsidies and towards local capital development, local entrepreneurs may need to abandon traditional for-profit business models in favor of alternative non-profit models that build upon existing community assets. Legislation meant to solve the problem of food deserts should prioritize community-based enterprise because of the capacity to localize capital, create living-wage jobs, and build accountability to community.

Moral Disengagement Of Medical Providers: Another Clue To The Continued Neglect Of Treatable Pain, Kelly Dineen

Kelly Dineen

The neglect of treatable pain is an ongoing reality for patients in all health care settings despite decades of research, education, institutional and organizational initiatives and regulatory reform. Most recently the Accountable Care Act and the Institute of Medicine have called for further work to understand and correct the continued inadequate treatment of pain. To date, research has identified a variety of barriers to treatment from educational deficits to biases to regulatory scrutiny with little change in practice. Yet, very little research has addressed the social cognitive mechanisms used by providers who continue to undertreat pain. This article explores the …

Too Many Teeth: Understanding The Medicare Secondary Payer Act And Its Threat To Businesses, James J. Hennelly Iii

James J. Hennelly III

The Medicare Secondary Payer Act (“MSP”), first enacted in 1980, has undergone several changes over the past three decades in an effort by the government to recoup some of its losses from conditional payments it makes on behalf of Medicare beneficiaries. In light of Congress’s many cost-cutting exploits of late, more attention should be drawn towards recent amendments to the MSP in an effort to find a healthy balance between the government’s interest in recouping its losses and private businesses’ interest in staying in business. Congress reacted to increasing Medicare costs in 2003 by inserting in the Medicare Modernization Act …

Non-Recourse Mortages – A Fresh Start, Ron Harris, Asher Meir

Ron Harris

In about a quarter of US states, all residential mortgages are essentially non-recourse, meaning that in case of default, the lender can only repossess the house but cannot collect on the private assets and future income of the borrower. This American innovation is now beginning to attract extensive interest abroad, but ironically in the US itself is getting a bad name. The law has been blamed for exacerbating the financial crisis, while stricken homeowners who take advantage of it have been scolded by lenders and even by the Secretary of the Treasury. We propose a fresh and more balanced look …

Whistleblowing, Public Employees, And The First Amendment, Mark Strasser

Mark Strasser

Recent revelations of extensive public wrongdoing illustrate the need for whistleblower protection so that governmental wrongdoing is more likely to come to light. While there is some statutory protection of whistleblowing as long as certain conditions have been met, a separate issue is the degree to which the Constitution protects whistleblowers under the First Amendment. Ironically, the constitutional protections for whistleblowers have decreased over the past several decades, leaving an impoverished system of protection for discussions of great public interest. This article analyzes the respects in which First Amendment protections for matters of great public import were once fairly robust …

Our Children, Ourselves: Ensuring The Education Of America's At-Risk Youth, Elizabeth Lamura

Elizabeth LaMura

This Article suggests using Connecticut as a model for (1) effective re-enrollment legislation and (2) framing litigation to challenge inequities in the education of at-risk youth. Children who are removed from the mainstream public school system – suspended, expelled or arrested and subsequently adjudicated delinquent – face innumerable obstacles when attempting to reintegrate into the public school system. In some circumstances, these youth are completely foreclosed from educational opportunities. In addition, instead of ensuring re-enrollment into public school, these youth are often diverted into Alternative Education Placements which provide inadequate learning environments and sub-par educational instruction, further hindering their ability …

Accommodating Vulnerability, Annette Ruth Appell

annette appell

Unlike other social categories, such as race, gender, sexual identity, and disability, the category of childhood has received little critical examination in the legal academy. Like other socio-legal categories with natural referents, however, childhood masks the contingency and normativity of behavior, expectations, power, and regulation, rendering the social order natural and inevitable. Childhood also scripts behavior and produces subordination and privilege in a manner unique to the adult–child dichotomy, but which also intersects with class, gender, race, sexuality, sexual identity, and ability. As such, the category bears examination not only for what it reveals about ourselves—adults, but also how to …

The Frozen Embryo: Scholarly Theories, Case Law, And State Proposals, Shirley D. Howell

Shirley D. Howell

Executive Summary

Fertility experts have been able to create human embryos outside the body since the 1970’s. Yet today both moral and legal questions persist regarding the use of In Vitro Fertilization (IVF). Seemingly, the use of IVF to assist infertile individuals and couples to procreate would be regarded almost uniformly positively. The procedure, however, has produced serious unintended consequences that continue to trouble theologians, physicians, and the courts. The ongoing legal debate centers on two principal questions: First, whether a frozen embryo should be regarded as a person, property, or something else; and, second, how to resolve disputes between …

Minors & Cosmetic Surgery: An Argument For State Intervention, Derrick Diaz

Derrick Diaz Mr.

This article focuses on whether a state may intervene to prevent minors from obtaining medically unnecessary cosmetic surgery. The article concludes that a state may prohibit such a procedure without running afoul of parental liberty interests by showing severe risk of harm to the minor. Furthermore, the article proposes that minors not have access to cosmetic surgery unless found by a court to be medically necessary. If medical necessity has been shown, then the parental presumption must control. However, if medical necessity has not been shown, then the service should be prohibited the same as any regulated service or product …

The Ppaca In Wonderland, David B. Kopel, Gary Lawson

David B Kopel

The question whether the Patient Protection and Affordable Care Act (“PPACA”) is “unconstitutional” is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word “unconstitutional.” The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution’s text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term “unconstitutional,” as well as the problem of determining the “constitutionality” of a lengthy statute when only some portions …

Missouri's Innocent Citizens: An Examination Of Missouri's Response To Domestic Violence Incidents Against Children And Teens, Keith P. Freie

Keith P Freie

In 2010 the Missouri Attorney’s General’s Office created a Domestic Violence Task Force for the purpose of analyzing Missouri’s Domestic Violence laws. In 2011, the Missouri General Assembly enacted Senate Bill 320 which included several changes to Missouri’s domestic violence laws stemming from several recommendations from the Attorney General’s Task Force. While Missouri’s 2011 domestic violence law is a comprehensive solution to the many unaddressed needs of child and teen domestic violence victims, additional solutions need to be considered to fully address the problem. Those solutions may include creating special domestic violence and child abuse courts and creating educational programs …

Bearing Injustice: Foster Care, Pregnancy Prevention, And The Law, Taylor I. Dudley

Taylor I Dudley

The State has numerous responsibilities to children and youth in and emancipating from foster care. Ensuring a foster child’s medical welfare is among the most imperative of the State’s obligations. Pregnancy prevention is a unique component of medical welfare and long-term well-being. Indeed, it stands out as a responsibility that the State must fulfill to counteract the likelihood of diminished life outcomes that so many former foster children face. However, like many problems facing foster children, pregnancy is noticed, yet unaddressed; contemplated, yet unresolved. The State’s failure to adequately address pregnancy prevention among youth in foster care is unconstitutional under …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H Byrnes IV

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

A Parent Is A Parent, No Matter How Small, Kendra H. Fershee

Kendra H Fershee

Every parent in America has constitutional rights to parent his or her children. But if a parent is under the age of eighteen, those rights are tenuous. There is no question that adolescent parents face difficulties while trying to juggle school, parental responsibilities, work, their social lives, and more. Add to that long list of challenges the legal infirmities all minors share and a picture of impending disaster begins to appear for the adolescent parent and his or her child. And once a minor parent enters the family court system, instead of getting the services, training, and supervision that may …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew Taslitz

Andrew E. Taslitz

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

Social Capital Benefits Of Peer Mentoring Relationships In Law School, Meera E. Deo, Kimberly A. Griffin

Meera E Deo

Scholars have addressed the rigors of law school and suggest mentorship may help students better navigate their educational environments. However, literature largely addresses the role of faculty mentors, less often considering peer mentors in the law school context. This study explores first year law students’ motivation in forming peer mentoring relationships and the roles peer mentors play in students’ lives. Analyses of survey and focus group data collected from 203 first-year law students at 11 institutions reveal that the majority rely on peer support, forming formal, informal, and “organizational” peer mentoring relationships. Relationship formation is motivated by students’ acknowledged need …

Gray Matters: Autism, Impairment, And The End Of Binaries, Kevin M. Barry

Kevin M Barry

First diagnosed by psychiatrist Leo Kanner in 1943, Autism has exploded into the public consciousness in recent years. From science to science fiction, academia to popular culture, Autism has captured the world’s attention and imagination. Autism has also ignited a fierce debate among stakeholders who seek to define its essence. Many parents of Autistic children regard Autism as a scourge and press for a cure. The Neurodiversity Movement, comprised mostly of Autistic adults, regards Autism as a different way of being worthy of respect and even celebration. The Autism war is well underway and, given Autism’s swelling ranks and proposed …

Reorienting Feminist Strategies Relating To Adult Transactional Sex, Suzanne Bouclin

suzanne bouclin

Feminist-informed policies around transactional sex continue to highlight and reinforce the ontological, epistemological and aesthetic disagreements between abolitionists and sex workers’ rights advocates. In this paper, I examine the Canadian context to provide some geographic and social specificity to such debates occurring through the global West. I review the anchoring concepts of feminist perspectives on the sale of sexual services by adults. I then suggest an intersectional understanding of sex work and deploy it to provide guidelines for addressing feminist concerns around commercial sex that avoid checkmated arguments and binary distinctions that do little to reduce the conditions of oppression …

Education, Labor Rights, And Incentives: Contract Teacher Cases In The Indian Courts, Varun Gauri, Nick Robinson

Varun Gauri

Since the liberalization of India\'s economy beginning in the early 1990\'s, the government has increasingly employed contract workers to perform various state functions, including in the education sector. Yet, little research has been done to examine how courts have reacted to this shift in government labor policy. This paper looks at all reported cases involving contract teachers in the Indian Supreme Court and four High Courts over the last thirty years. It finds that although almost never explicitly overturning precedent, the judiciary in India has increasingly become less sympathetic to contract teachers demands, particularly at the Supreme Court level. The …

All Your Eggs In One Basket: Why Contract Law Proves Unreliable In Frozen Embryo Adoption Cases, Austin R. Caster

Austin R Caster

This article will show why infertile couples cannot unequivocally rely on good faith, consensual contracts in cases of assisted reproductive technology because the law is so unsettled. Each section will show why, because of alleged public policy implications, contract doctrines or clauses such as (1) the termination of parental rights, (2) the doctrine of waste, and (3) liquidated damages still remain almost completely unreliable in a matter regarding assisted reproductive technology. Though this uncertainty affects infertile couples trying to complete their families through various methods including adoption, surrogacy, in vitro fertilization, and artificial insemination, this article will focus on cases …

“Charitable” Discrimination: Why Taxpayers Should Not Have To Fund 501(C)(3) Organizations That Discriminate Against Lgbt Employees, Austin R. Caster

Austin R Caster

Until now, the first amendment protection of religious liberty has allowed—and even publicly funded—discrimination against LGBT employees, but this article argues that Christian Legal Society v. Martinez changes that analysis. According to Bob Jones University v. United States, organizations that base admissions decisions on racial discrimination violate public policy and cannot receive taxpayer funding. Similarly, Christian Legal Society v. Martinez shows us that universities do not have to fund student organizations that discriminate on the basis of sexual orientation. Therefore, because discrimination based on an immutable minority trait bars taxpayer funding in one instance, this article argues it should also …

Why Europe Should Say No To The Proposed Framework Of Economic Governance: A Legal And Policy Analysis In Light Of The Establishment Of The European Stability Mechanism And The Euro Plus Pact, Vasileios Paliouras

Vasileios Paliouras

The eurozone sovereign debt crisis, despite all the pain and suffering that has caused to the peoples of the affected countries of the European periphery, has the potential to serve the purpose of European integration, if the right signals are transmitted to the political establishment of Europe. Clearly, the crisis has challenged the basic premise that underpinned the creation of the Economic and Monetary Union (EMU), namely that coordination of economic policies would be enough to safeguard the consensus over the common currency. During the last year the leaders of eurozone Member States have taken unprecedented action to make up …

A Foster Child’S Right To Informed Consent: A Call To Address The Unique Circumstances Of Foster Children, Patricia A. Cross

Patricia A Cross

Foster care is a term used to describe a system that provides for the needs of children who are without a family member willing or able to take care of them. Caregivers certified by the state in which the child resides will often provide for their basic needs. The Code of Federal Regulations defines foster care as a “24-hour substitute care for children outside their own homes.” How foster children may provide informed consent in medical situations is an important issue that has been largely unexplored. Children, in general, lack the competency to provide independent consent for medical decisions and …

Globalization Versus Normative Policy: A Case Study On The Failure Of The Barbie Doll In The Indian Market, Priti Nemani

Priti Nemani

The Barbie doll leads in the world of young females, with her vast wardrobe, her extensive life experiences, and her many diverse friends. Barbie’s maker- Mattel, Inc. – has sold the doll around the world by making superficial ethnic and racial modifications to the doll; however, the international marketing of Barbie has not been wholly triumphant. Mattel no longer promotes the Barbie in India; rather, the global company now mainly markets gender neutral products, like board games, to the Indian market. Why did the Indian family reject Barbie as the appropriate toy for their daughters?

This article argues that, despite …

The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson

Jennifer L. Aronson

Law and literature comes in two forms: law as literature and law in literature, the latter referring to the exploration of legal issues in great literary texts. Law in literature scholars place a high value on the "independent" view of the literary writers as he or she sees the law. They believe that these authors have something to teach legal scholars and lawyers about the human condition. “The Trial” by Franz Kafka, concerns human beings caught up in social and political dilemmas. Kafka offers readers an insight to the nature of totalitarianism and forces us to ask hard questions about …