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Articles 1 - 30 of 146
Full-Text Articles in Law
Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer
Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer
David B Oppenheimer
Systematic Content Analysis Of Judicial Opinions, Ronald F. Wright, Mark A. Hall
Systematic Content Analysis Of Judicial Opinions, Ronald F. Wright, Mark A. Hall
Ronald F. Wright
Our article traces the use of “content analysis” — a standard research technique in political science, communications, and other fields — to study judicial opinions. As it turns out, this is a high-growth area that nobody has noticed. We collect over 130 examples of such research projects that other scholars performed between 1956 and 2006, and draw lessons from the ways that scholars have used this technique, for good and for bad. We document the growth of this research technique, and offer guidance to future scholars on how best to adapt the standard requirements of the technique to the specialized …
Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois
Affordable Housing And Civic Participation: Two Sides Of The Same Coin, Goutam U. Jois
Goutam U Jois
Over the past several decades, America’s inner cities have deteriorated socially, economically, and politically. Simultaneously, civic engagement, almost by any measure, has been on the decline: Americans vote less and volunteer less, go out to dinner with friends less and attend PTA meetings less. In this Article, I argue that the two phenomena are linked, at least from the perspective of remedies. Specifically, by rebuilding our inner cities to promote mixed-use, mixed-income development, we can revitalize some of the most impoverished neighborhoods in our country while simultaneously engendering the mechanisms to foster increased civic engagement in our participatory democracy.
The Freedom To Copy: Copyright, Creation And Context, Olufunmilayo B. Arewa
The Freedom To Copy: Copyright, Creation And Context, Olufunmilayo B. Arewa
Olufunmilayo B. Arewa
Although much separates them musically, George Harrison and Michael Bolton share a common legal fate. Both have been held liable in copyright infringement cases in which a court articulated theories of liability based on subconscious infringement. This Article discusses how decisions in the Bolton, Harrison, and other copyright infringement cases reflect a common failing. Such decisions highlight the incomplete nature of the theories of creativity and creation processes in copyright doctrine. After discussing current approaches to questions of creation, this Article suggests ways in which copyright theory can better incorporate a contextualized understanding of creativity and creation processes. Creativity in …
Bridging The Continental Divide In Maternity Protection, Selma Shelton
Bridging The Continental Divide In Maternity Protection, Selma Shelton
Selma Shelton
This paper argues that the inconsistency in application of the PDA coupled with the limitations of the FMLA reflect that the United States has insufficient protection for pregnant employees. The limited legal mandates protecting pregnant women in the United States are easily contrasted with the generous comprehensive protections afforded to pregnant employees in Ireland. However, without being oblivious to the striking demographical, geographical, cultural, social, political, and religious differences between the United States and Ireland, this paper compares the provisions of the two countries with regard to pregnancy and suggests that Ireland’s provisions are attainable goals in the United States …
Adhesion Contracts And The Twenty First Century Consumer, Leon E. Trakman
Adhesion Contracts And The Twenty First Century Consumer, Leon E. Trakman
Leon E Trakman Dean
Ecommerce has transformed the law of contract. Consumers are increasingly subject to myriads of conditions in shrink-wrap, box-wrap, click-wrap and browse-wrap contracts. Opening software wrapping or clicking “I agree” in a dialog box on a computer subjects the user to a series of onerous conditions that restrict end use and limit the supplier’s liability. These developments are counterbalance by the growth of new market-savvy classes of consumers who are willing and able to sue brand name producers in class and other actions. Faced with these Twenty First Century developments, courts struggle to find middle ground between regulating mass transactions in …
Law And Norms In Left-Wing Novels Of The U. S. Mid-Twentieth Century, Walter J. Kendall
Law And Norms In Left-Wing Novels Of The U. S. Mid-Twentieth Century, Walter J. Kendall
Walter J. Kendall lll
Law and Norms in Left-Wing Novels of the U.S. Mid-Twentieth Century Each of the major law-based structuring or ordering systems of society – markets, regulation, litigation, and democracy – should work as a path to a good and just society. However, the scholarship of the last half of the 20th century establishes that none work the way they should ; each is blocked by a wall with doors locked to working people. In such circumstances most people either make an everyday life for themselves through consumption , especially of small systems that do work, like DVDs and microwave ovens; or …
The All-Woman Texas Supreme Court: The History Behind A Very Brief Moment On The Bench, Alice G. Mcafee
The All-Woman Texas Supreme Court: The History Behind A Very Brief Moment On The Bench, Alice G. Mcafee
Alice G. McAfee
On the surface, there is nothing particularly noteworthy about the case of Johnson v. Darr, and, in fact it was not the merits of the case that made the headlines. It was the makeup of the tribunal. Long before women in Texas were even granted the right to serve on juries and before any woman ever served as a judge on any of the lower Texas courts, the judges appointed to hear the case of Johnson v. Darr were all women. This was the first time a woman was appointed in any capacity to serve on the Texas judiciary and …
Hack, Mash & Peer: Crowdsourcing Government Transparency, Jerry Brito
Hack, Mash & Peer: Crowdsourcing Government Transparency, Jerry Brito
Jerry Brito
Hack, Mash & Peer: Crowdsourcing Government Transparency
JERRY BRITO George Mason University - Mercatus Center - Regulatory Studies Program October 21, 2007
Abstract: In order to hold government accountable for its actions, citizens must know what those actions are. To that end, they must insist that government act openly and transparently to the greatest extent possible. In the Twenty- First Century, this entails making its data available online and easy to access. If government data is made available online in useful and flexible formats, citizens will be able to utilize modern Internet tools to shed light on government activities. Such …
Illegal Immigration And The Southwest Border District Courts, Thomas J. Bak
Illegal Immigration And The Southwest Border District Courts, Thomas J. Bak
Thomas J. Bak
Abstract This paper examines the increase in immigration filings in federal district courts in the southwest United States during the period from 1993 through 2005, a time when the Border Patrol and U.S. Attorneys in southern California, Arizona, New Mexico, and Texas stepped up enforcement of U.S. immigration laws. It follows the shift in the tide of immigration cases from the Southern District of California (CA,S), eastward, as successive initiatives in different Border Patrol sectors continually diverted the flow of illegal immigrants. A mathematical model is used to show the strong correlation between immigration case filings and Border Patrol staffing, …
Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer
Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer
Howard Schweber
The conventional wisdom about the Australian Constitution is that it neither says what it means, nor means what it says. The gap between language and meaning is starkest in the sections on executive power, in which the explicit language vesting all executive power in the Governor-General is supplanted by the conventions of Responsible Government, according to a universally accepted view of what the constitutional framers intended to create. One consequence of this divergence between language and practice is that constitutional interpretation normally requires a series of finesses, in which much of the text is read out of the document entirely. …
Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer
Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer
Howard Schweber
In this article, we visit the question of whether Australia has a “genuine” constitution with respect to guarantees of individual rights. The Australian constitutional text lacks explicit rights guarantees, but various types of rights protections have been derived from the text through judicial construction. To test the Australian model, we compare three other cases -- the United States, the U.K., and Israel -- with respect to the relationship between text, convention, and constitutional ethos. Australia does not fit cleanly into any of these three models, although it displays elements of each. More importantly, the High Court’s extrapolation of rights from …
Capitalization Of The Nile, Arthur M. Ortegon
Secularization, Legal Indeterminacy, And Habermas's Discourse Theory Of Law, Mark C. Modak-Truran
Secularization, Legal Indeterminacy, And Habermas's Discourse Theory Of Law, Mark C. Modak-Truran
Mark C Modak-Truran
The unexpected vitality of religion has motivated scholars in many fields like anthropology, sociology, political science, international relations, and philosophy to revisit their assumptions about the supposed secularization of their disciplines. Despite this robust re-examination in other disciplines, the secularization of law arguably constitutes the most widely-held but least-examined assumption in contemporary legal theory. Legal scholars and philosophers have surprisingly ignored one exception—Jürgen Habermas’s discourse theory of law. Accordingly, this article focuses on Habermas’s sophisticated awareness of the tension between the secularization of law and legal indeterminacy and treats his discourse theory of law as a significant test of the …
Legal Archaeology And Feminist Legal Theory: A Case Study Of Gender And Domestic Violence, Debora L. Threedy
Legal Archaeology And Feminist Legal Theory: A Case Study Of Gender And Domestic Violence, Debora L. Threedy
Debora L. Threedy
This article examines the case of State v. Jensen, in which a man was convicted for violating a protective order, only to have the conviction overturned by the appellate court on the ground that the female prosecutor, by using her three peremptory challenges to exclude three males from the jury, violated the constitutional guarantee of equal protection. Using the case as a jumping off point, the article goes on to consider how gender affects the legal system’s ability to deal with domestic violence. This paper is located at the intersection of the methodology of legal archaeology and feminist legal theory. …
Base Wretches And Black Wenches: A Story Of Sex And Race, Violence And Compassion, During Slavery Times, Jason A. Gillmer
Base Wretches And Black Wenches: A Story Of Sex And Race, Violence And Compassion, During Slavery Times, Jason A. Gillmer
Jason A Gillmer
This Article examines in detail the local and trial records of a nineteenth-century Texas case to tell the story of a white slave master who had a thirty-year relationship with a female slave. This is a story of complexities and contradictions, and it is a story designed to add depth and detail to our current assumptions about the content of sex between the races during slavery times. Indeed, through these local records—a source traditionally underused by legal historians—the Article provides us with a pathway into the consciousness of ordinary people, and suggests a world with much more flexibility and fluidity …
Regulation And Citizenship For Foreign Spouses In Taiwan―From The Perspective Of Cultural Legal Study, Shu-Chin Grace Kuo
Regulation And Citizenship For Foreign Spouses In Taiwan―From The Perspective Of Cultural Legal Study, Shu-Chin Grace Kuo
Shu-chin Grace Kuo
In this article, taking a “foreign spouse” as an issue that has made a great impact on the local marriage market, I will use the approach of Cultural Legal Study to explore how the state governs and regulates the marriage of immigrants through written law, in which I primarily focus on Immigration Law and Family Law, legal discourse and the rhetoric of legal reform regarding foreign spouses. In fact, there is one international marriage in every five newly married couples in recent years in Taiwan; most of the foreign spouses are female, and come from China, Indonesia, Vietnam, Thailand and …
Regulation And Citizenship For Foreign Spouses In Taiwan―From The Perspective Of Cultural Legal Study, Shu-Chin Grace Kuo
Regulation And Citizenship For Foreign Spouses In Taiwan―From The Perspective Of Cultural Legal Study, Shu-Chin Grace Kuo
Shu-chin Grace Kuo
In this article, taking a “foreign spouse” as an issue that has made a great impact on the local marriage market, I will use the approach of Cultural Legal Study to explore how the state governs and regulates the marriage of immigrants through written law, in which I primarily focus on Immigration Law and Family Law, legal discourse and the rhetoric of legal reform regarding foreign spouses. In fact, there is one international marriage in every five newly married couples in recent years in Taiwan; most of the foreign spouses are female, and come from China, Indonesia, Vietnam, Thailand and …
Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb
Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb
Jacqueline Webb
This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.
This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …
Motivational Law, Arnold S. Rosenberg
Motivational Law, Arnold S. Rosenberg
Arnold S Rosenberg
This article introduces a new concept of law’s motivational functions and the laws that serve those functions, which I call “motivational law.” Motivational law consists of those rules and principles, a purpose or function of which is to motivate people to comply with laws that regulate their conduct toward each other or their environment. Motivational laws include obscenity and censorship laws, religious laws on diet, dress, liturgy and ritual, military disciplinary rules, “soft law,” the doctrine of consideration in contract law, and even procedural due process.
Drawing on cognitive dissonance theory and other behavioral research, I conclude that motivational law …
Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig
Climate Change, Regulatory Fragmentation, And Water Triage, Robin K. Craig
Robin K. Craig
Fresh water is a regulatorily fragmented resource – that is, water is subject to multiple assertions of regulatory authority and to multiple types of use right claims that those authorities regulate. As fresh water supplies become increasingly unequal to task of meeting the multiple demands for both consumptive and in situ use, and as consumptive and in situ uses of water come increasingly into irreconcilable conflict, the various regulatory schemes governing water have also increasingly come into legal conflict. These courtroom battles have revealed many tensions, overlaps, and gaps in the overall governance of water as a natural resource, especially …
The Hidden Harm Of Law And Economics, Daniel Cohen
The Hidden Harm Of Law And Economics, Daniel Cohen
Daniel Cohen
The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.
Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, Kwasi H. Prempeh
Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, Kwasi H. Prempeh
H. Kwasi Prempeh
One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, since …
Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency Of Post-Authoritarian Africa, H. Kwasi Prempeh
Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency Of Post-Authoritarian Africa, H. Kwasi Prempeh
H. Kwasi Prempeh
ABSTRACT One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, …
"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner
"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner
William B Turner
This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …
The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman
The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman
Jean K Phillips
The Insanity of the Mens Rea Model:
Due Process and the Abolition of the Insanity Defense.
Jean K. Gilles Phillips and Rebecca E. Woodman
Abstract
In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.
During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …
Unpacking The Bar: Of Cut Scores, Competence And Crucibles, Gary S. Rosin
Unpacking The Bar: Of Cut Scores, Competence And Crucibles, Gary S. Rosin
Gary S Rosin
Bar passage rates of first-takers vary widely among both the states and the law schools. State grading practices also vary widely, particularly as to minimum passing scores (“cut scores”) and whether they scale state exam components to the MultiState Bar Exam (“MBE”). The broad ranges of Bar passage rates and of state grading practices call into question the stewardship of the states over admission to the practice of law. This study uses generalized linear modeling, with a logit link function, to isolate the effect on the Bar passage rates of ABA-approved law schools of three factors: (i) the LSAT scores …
Unpacking The Bar: Of Cut Scores, Competence And Crucibles, Gary S. Rosin
Unpacking The Bar: Of Cut Scores, Competence And Crucibles, Gary S. Rosin
Gary S Rosin
Bar passage rates of first-takers vary widely among both the states and the law schools. State grading practices also vary widely, particularly as to minimum passing scores (“cut scores”) and whether they scale state exam components to the MultiState Bar Exam (“MBE”). The broad ranges of Bar passage rates and of state grading practices call into question the stewardship of the states over admission to the practice of law. This study uses generalized linear modeling, with a logit link function, to isolate the effect on the Bar passage rates of ABA-approved law schools of three factors: (i) the LSAT scores …
When Obscenity Discriminates, Elizabeth M. Glazer
When Obscenity Discriminates, Elizabeth M. Glazer
Elizabeth M Glazer
When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …
When Obscenity Discriminates, Elizabeth M. Glazer
When Obscenity Discriminates, Elizabeth M. Glazer
Elizabeth M Glazer
When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …