Law Commons^™

Critical Habitat And The Challenge Of Regulating Small Harms., Dave Owen

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This Article investigates how the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on “adverse modification” of “critical habitat.” That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 “biological opinions,” interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, this Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification …

The Most Common Path To A Public Interest Career Is Also The Least Discussed, Leeor Neta

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There are ultimately three avenues to a public interest legal career. The first is a postgraduate fellowship with a public interest organization. The second is a judicial clerkship; clerkships demonstrate a commitment to public service that can attract public interest employers. While these paths to a public interest career are certainly desirable, it is probably fair to say that most future public interest lawyers pursue a third avenue: taking whatever comes, maintaining a long-term perspective, and doing one’s best to exemplify a commitment to public interest in the meantime.

Domestic Worker Organizing: Building A Contemporary Movement For Dignity And Power, Hina Shah, Marci Seville

Publications

The success of domestic worker organizing in the twenty-first century may seem like an anomaly against the backdrop of increased hostility towards unionized labor and an overall decline in wages and benefits for workers. The contemporary domestic worker movement, beginning in the 1990s, builds upon centuries of organizing and agitation by domestic workers and others for a cultural shift that values domestic labor as real work. The current movement fundamentally alters past organizing models, linking the struggle to a broader movement for social justice. Unlike past organizing efforts, domestic workers are at the helm of the contemporary movement. They have …

Offensive Venue: The Curious Use Of Declaratory Judgment To Forum Shop In Patent Litigation, Chester Chuang

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Forum shopping is widespread in patent litigation because there are clear differences in outcomes among the various federal districts. An accused patent infringer that is sued in a particularly disadvantageous forum can file a motion to transfer to a more convenient forum, but the general consensus is that such motions are difficult to win. Accordingly, accused infringers often file declaratory judgment actions to forum shop. Such actions allow accused infringers to preemptively sue the patent owner in the accused infringer’s preferred forum, and are considered by many to be the best way for accused infringers to play the forum shopping …

Women And Poisons In 17th Century France, Benedetta Faedi Duramy

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During the late 1660s and the early 1670s, several mysterious deaths of influential members of the French nobility followed one after the other, leading to a scandal, better known as the "Affair of the Poisons," which involved prominent individuals at the royal court of Louis XIV in France. The King, who was concerned that the widespread use of the practice of poisoning could endanger his own safety and that of the royal family, appointed Nicolas de La Reynie, the Lieutenant General of the Paris Police, to oversee the investigation. In 1679, he also established a special tribunal, known as the …

An Integrated Green Urban Electrical Grid, Deborah N. Behles

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This Article will discuss the vision of a new green urban grid that relies on decentralized generation and storage, energy efficiency, and demand response. Much of the literature focuses on the development of aspects of the green grid, such as energy efficiency, without consideration of how these resources should be integrated to effectively reduce greenhouse gas emissions and pollution, maintain reliability, and create economic opportunity. After discussing the components of the green urban grid, this Article will discuss why integrating these components is essential to meeting renewable policy goals, and finally, this Article will discuss steps that regulators and policymakers …

Book Review: The Oxford Handbook Of Empirical Legal Rearch, William T. Gallagher

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The Oxford Handbook of Empirical Legal Research, edited by Peter Cane and Herbert M. Kritzer, is an excellent scholarly resource that is especially timely given the recent resurgence of interest by (mostly) legal academics in the empirical study of law. As the editors suggest, it is precisely because of this resurgent interest that it is important to understand contemporary empirical legal research in the context of its historical and institutional roots and in light of ongoing scholarly debate about the most appropriate methodologies for conducting this type of research.

Comics, Courts & Controversy: A Case Study Of The Comic Book Legal Defense Fund, Marc Greenberg

Publications

Cartoons and comics have been a part of American culture since this nation’s formation. Throughout that lengthy history, comics and cartoons have also been a subject of controversy, censorship, legislation, and litigation. They have been viewed as a threat to society and a cause of juvenile delinquency; they are scandalous, indecent, and obscene. The Comic Book Legal Defense Fund (“CBLDF”), a New York-based non-profit organization, provides legal defense for comic artists, collectors, distributors, and retailers who face civil and/or criminal penalties for the creation, sale, and ownership of comics, cartoons, graphic novels, and related works.

The Introduction to this article …

A Review Of Great Legal Traditions: Civil Law, Common Law, And Chinese Law In Historical And Operational Perspective, Leslie A. Burton

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Three justices of the German Federal Constitutional Court, resplendent in red regalia, stand tall behind a high wooden bench and under an enormous carved eagle. A high ceiling emphasizes the splendor of the high court. The faces of Confucius, Constantine, and Blackstone, regal in their formal vestments, appear on the left. Superimposed text reads "Great Legal Traditions: Civil Law, Common Law, and Chinese Law in Historical and Operational Perspective." The startlingly vivid book cover commands visual attention, while its title promises an overview of the history of three legal systems along with their presentday procedures. But an impressive cover can …

Women In The Aftermath Of The 2010 Haitian Earthquake, Benedetta Faedi Duramy

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This Article examines women’s and girls’ struggles in the aftermath of the Haitian earthquake. In particular, it focuses on the grievous conditions in the displacement camps that foster gender-based violence and abuse, often perpetrated by members of armed groups or prison escapees. Indeed, the lack of lighting, private sanitary facilities, secure shelters, and police patrols in the encampment areas endanger women’s and girls’ safety. The devastation and traumatic loss of family and community members following the earthquake further affect women’s resilience and increase their vulnerability to abuse and sexual violence. By examining the conditions and risks faced by women and …

The Case For Local Constitutional Enforcement, Kathleen Morris

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This Article calls for the overruling of the central rule in Hunter v. City of Pittsburgh (1907) on Erie grounds. Hunter announced as a matter of federal law that local governments are powerless instrumentalities of state governments. Legal scholars have criticized Hunter for exacerbating the doctrinal and practical problems that plague local government law. This Article goes further by challenging Hunter directly. It argues first that Erie v. Tompkins (1938), properly read, effectively overruled the central rule in Hunter. Second, it argues that we should not mourn the loss of that rule because its analytic support structures are historically, …

Transformative Properties Of Fdr's Court-Packing Plan And The Significance Of Symbol, Laura A. Cisneros

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In this Article, I begin by laying a basic theoretical foundation for understanding how language choice provides contextual cues to direct interpretation. Next, I analyze cases that use the "Court-Packing Plan" language. I argue that these references are intended to trigger a response in the reader that is sympathetic to judicial independence and, in some instances, to judicial incursions into policymaking. I then analyze references to the "switch in time" language, extracting the arguments about constitutional methodology and judicial activism embedded in that phrase. Here, I argue that the phrase "switch in time" is deployed to remind the reader of …

Youngston Sheet To Boumediene: A Story Of Judicial Ethos And The (Un)Fastidious Use Of Language, Laura A. Cisneros

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My goal in this Article is not to provide a comprehensive survey of the Court's separation of powers cases from 1952 to the present. Rather, I want to present a modest-sized account of this shift from humility to arrogance and to do so not by the direct method of scrupulous narration, but through a combination of stealth and selectivity, with the idea that less could be more. With this model in mind, I have focused on the language of a few representative opinions: Jackson and Frankfurters concurrences in Youngstown, Chief Justice Rehnquist's majority opinion in Dames & Moore v. Regan, …

Judicial Developments In The Application Of International Law To Domestic Violence, Benedetta Faedi Duramy

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Traditionally, international law understood the concept of state accountability only in the context of human rights violations imputed to the government or any of its agents." Because domestic violence is comprised of acts committed by private individuals, these crimes have long been deemed to fall outside the scope of state accountability. More recently, however, the concept of state accountability has been expanded to include not only state actions, but also-and more importantly-state omissions and failures to take appropriate steps to protect women from domestic violence. Therefore, in addition to preventing through its own agents the commission of violence against women, …

The Aspiring Attorney With Adhd: Bar Accommodations Or A Bar To Practice?, Neha M. Sampat, Esme V. Grant

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This Article is the first in the academic literature to examine how a strict application of the childhood history requirement reduces the likelihood that applicants will receive ADHD accommodations on the bar exam based on race, sex, socioeconomic status, location, and age. Part One provides an introduction to ADHD, explaining the diagnostic framework and its limitations, specifically with regard to childhood diagnosis and adult ADHD. Part Two describes the legal and policy framework applicable to bar examiner agencies, focusing on the Americans with Disabilities Act ("ADA"). The Article sets forth, in Part Three, state bar policies and practices regarding ADHD …

Securing Mobile Technology & Financial Transactions In The United States, Eleanor Lumsden

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One of the paradoxes of modern life is the conflict between convenience and security. Advances in technology simultaneously usher in progress and pain. The development of mobile and smartphone technology will have a significant positive impact on financial transactions and the average consumer’s access to financial services. Nevertheless, there are several reasons to secure mobile technology and financial transactions in the United States. First, cell phones increase the risk to personal security and most U.S. wireless carriers are using outdated encryption technology. Second, many cell phone users are more concerned with convenience—caring more about the availability and functionality of smartphone …

Re-Assessing Soviet Union Contribution To The Legal Training Of Third World Lawyers In The Twentieth Century: A Critical Appraisal Of Socialist Legal Education, Christian N. Okeke

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No abstract provided.

Text Is Still A Noun: Preserving Linear Text-Based Literacy In An E-Literate World, Mark Yates

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In this Article, I will argue that, as legal educators, we must balance our use of technology for pedagogical purposes against the importance of preserving linear, text-based literacy. In Part I, I examine recent works that examine the societal impact of digital technology and the Internet. Three important books in particular, by Nicholas Carr, Mark Bauerlein, and Steven Johnson, warrant in-depth discussion because they frame the broader debate about the costs and benefits of new technology. In Part II, I will examine the discussion among legal educators about the use of technology in the classroom and how we have responded …

The Legal Clinic Is More Than A Sign On The Door: Transforming Law School Education In Revolutionary Egypt, Stephen A. Rosenbaum

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There is little consensus on what the January 25, 2011 Revolution in Egypt stands for, or whether Egyptians are living through the Revolution or in a post-Revolutionary State. Skeptics say that what occurred is the overthrow of an autocratic President, the retention of an Old Guard military and civil service establishment, and the potential for free and fair national elections. They contend, however, that this seminal event in the Arab Spring produced no revolutionary leadership and no clear platform or message. Is there a role for law schools in the revolutionary transformation?

In this article, the author describes the changes …

Clinique Togo: Changing Legal Practice In One African Nation In Six Days, Stephen A. Rosenbaum

Publications

In this essay, the author looks at the role of the short-term rule of law consultant in a developing country. The setting is Togo in francophone Africa and the State Department's mandate for the consultant is to help establish a pro bono indigent legal aid program with participation by the national bar association and the country's principal law school — in one week's time. Using the device of a daily journal, the author describes (1) the background for the visit, (2) the series of exchanges with his hosts from the US Embassy, bar association and Université de Lomé, (3) the …

Necessary Suffering?: Weighing Government And Prisoner Interests In Determining What Is Cruel And Unusual, Brittany Glidden

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Part I of this Article gives background on the origins of the Eighth Amendment doctrine concerning prison conditions and identifies persistent conflicts regarding the theoretical underpinnings for the doctrine. This history then provides context for Part II's description of the problems plaguing the current two-prong Eighth Amendment test. Part III includes a brief examination of the theoretical basis underlying other areas of Eighth Amendment jurisprudence, including those challenging criminal sentences, fines, and method of execution cases. This review demonstrates that nearly all of these doctrines rely on a determination of the "excessiveness" of a given punishment, a proportionality analysis that …

Requiring The State To Justify Supermax Confinement For Mentally Ill Prisoners: A Disability Discrimination Approach, Brittany Glidden, Laura Rovner

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The Eighth Amendment has long served as the traditional legal vehicle for challenging prison conditions, including long-term isolation or "supermax" confinement. As described by Hafemeister and George in their article, The Ninth Circle of Hell: An Eighth Amendment Analysis of Imposing Prolonged Supermax Solitary Confinement on Inmates with a Mental Illness, some prisoners with mental illness have prevailed in Eighth Amendment challenges to prolonged isolation. Yet an equal or greater number of these claims have been unsuccessful. This Essay considers why some of these cases fail, and suggests that one reason is that Eighth Amendment jurisprudence does not contain a …

Teaching For Lifelong Learning: Improving The Metacognitive Skills Of Law Students Through More Effective Formative Assessment Techniques, Anthony S. Niedwiecki

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Part II of this article focuses on the need to prepare law students to be expert learners because they will be constant learners in the practice of law. Part III details the concept of metacognition and its role in preparing students to be self-regulated learners. It discusses the components of metacognition, its role in law school, and the current push to include better metacognitive training in law school. Part IV details how formative assessment can be better utilized in improving the metacognitive skills of students. Specifically, it explains the best practices of formative assessment and how professors can adjust their …

"Mommy, Where Is Home?": Imputing Parental Immigration Status And Residency For Undocumented Immigrant Children, Johanna K.P. Dennis

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This Article discusses whether the parent's time in residence and date of admission (immigration status) should be imputed to an unemancipated minor; the two recently decided U.S. Supreme Court cases addressing this issue; the policy implications and impact of an imputation rule on undocumented children; and the impetus and potential vehicles for changing the status quo.

Preventing Strategic Default: Lessons From Japan, Brent T. White

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No abstract provided.

Rethinking Attempt Under The Model Penal Code, William T. Pizzi

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No abstract provided.

Secrets, Lies, And Disclosure, Helen Norton

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This symposium essay suggests that we can sometimes understand those who resist campaign disclosure or disclaimer requirements as interested in keeping a secret and occasionally even in telling a sort of lie about the source or intensity of support for a particular candidate or cause. Such secrets and lies threaten listeners’ autonomy interests when the speaker seeks to keep such secrets (and sometimes seeks to tell such lies) to enhance her ability to influence her listeners’ decisions. For these reasons, I suggest greater attention to the reasons speakers seek to keep secrets (or occasionally tell such lies) in assessing the …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

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This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

Bridging The Great Divide--A Response To Linda Greenhouse And Reva B. Siegel's Before (And After) Roe V. Wade: New Questions About Backlash, Lolita Buckner Inniss

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This essay discusses the history of Roe v. Wade as recently addressed by Linda Greenhouse and Reva B. Siegel. Going beyond their assertions, I suggest that an additional, more encompassing inquiry focuses on what factors are implicated in the politics of abortion and how these factors relate to larger social, political, and cultural conflicts both before and after Roe. By naming party politics and the Catholic Church, Greenhouse and Siegel posit two crucial elements that shaped the abortion debate. I assert, however, that what is not discussed in their Article is the way numerous other factors have figured into …

David Getches: A Tribute To A Leader And Scholar, Matthew L.M. Fletcher, Kristen A. Carpenter

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No abstract provided.