Law Commons^™

Engaging Law Students In Leadership, Faith Rivers James

Faith R Rivers James

The new challenge of legal education is preparing civic-minded lawyers to assume leadership roles in their communities, law firms, the legal profession, and in the public square. Defined as the process of influencing and persuading others to achieve a common purpose, leadership describes the lawyers’ task with individual and organizational clients; considered as a characteristic of people in positions of power, lawyers often assume the mantle of leading organizations. Whether defined as process or position, lawyering involves leadership in the private sector or in the public realm. This article considers the progressive structure of a comprehensive law & leadership program, …

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Non- Profit Charitable Tax Exempt Hospitals- Wolves In Sheep's Clothing:To Increase Fairness And Enhance Compition All Hospitals Should Be For Profit And Taxable, George A. Nation Iii

George A Nation III

Most hospitals in the United States are not-for-profit tax exempt institutions. Legally these hospitals are deemed to be charities and are exempt from federal, state and local taxes, raise money through tax exempt bond offerings and receive charitable contributions that are tax deductible to the donors. Today it is estimated that 47 million Americans lack access to healthcare.5A Moreover, even when the new Patient Protection and Affordable Care Act5B is fully operational, which is estimated to be around 2019, there will still be millions of Americans without health insurance and thus without reliable access to healthcare.5C Notwithstanding the millions of …

War Courts: Terror's Distorting Effects On Federal Courts, Collin P. Wedel

Collin P Wedel

In recent years, federal courts have tried an increasing number of suspected terrorists. In fact, since 2001, federal courts have convicted over 403 people for terrorism-related crimes. Although much has been written about the normative question of where terrorists should be tried, scant research exists about the impact these recent trials have had upon the Article III court system. The debate, rather, has focused almost exclusively upon the proper venue for these trials and the hypothetical problems and advantages that might inhere in each venue. The war in Afghanistan, presenting a host of thorny legal issues, is now the longest …

May It Please The Senate: An Empirical Analysis Of The Senate Judiciary Committee Hearings Of Supreme Court Nominees, 1939-2009, Lori A. Ringhand, Paul M. Collins

Lori A. Ringhand

This paper examines the questions asked and answers given by every Supreme Court nominee who has appeared to testify before the Senate Judiciary Committee since 1939. In doing so, it uses a new dataset developed by the authors. This dataset, which provides a much-needed empirical foundation for scholarship in emerging areas of constitutional law and political science, captures all of the statements made at the hearings and codes these comments by issue area, subissue area, party of the appointing president, and party of the questioning senator. The dataset allows us to quantify for the fist time such things as which …

Reconsidering Federalism And The Farm: Toward Including Local, State, And Regional Voices In America’S Food Syste, Margaret Sova Mccabe

Margaret Sova McCabe

The American food system has pressing problems that affect us all. Our food system's structure contributes to public health problems including obesity, food safety, and environmental degradation. This relationship between the food system and pubic health necessitates understanding the federal government's role in the food system. Federalism contributes to alienating people from food production and consumption. This essay argues that to address public health problems successfully, we must question the federal government's pervasive role in the food system and institute greater state and local roles. The essay reviews the rise of federalism in agriculture. It then examines three recent developments …

Neoformalism And The Reemergence Of The Rights/Privilege Distinction In Public Employment Law, Paul Secunda

Paul M. Secunda

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, the unconstitutional conditions doctrine has now been increasingly used to rob these employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although …

Sticky Slopes, David Schraub

David Schraub

Legal literature is replete with references to the infamous “slippery slope”, basically, where a shift in policy lubricates the path towards further (perhaps more controversial) reforms or measures. Less discussed is the idea of a “sticky slope”. Sticky slopes manifest when a social movement victory acts to block, instead of enable, further policy goals. Instead of greasing the slope down, they effectively make it “stickier”. Despite the lack of scholarly attention, sticky slope arguments show up again and again in legal argument, particularly in areas focused on minority rights. Formal legal doctrine can create sticky slopes insofar as it reduces …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

Lessons In Price Stability From The U.S. Real Estate Market Collapse, Andrea J. Boyack

Andrea J Boyack

The U.S. residential housing market collapse illustrates the consequences of ignoring risk while funding mortgage borrowing. Collateral over-valuation was a foundational piece of the crisis. Over the past few decades, secondary markets, securitization, policy and psychology increased the flow of funds into real estate. At the same time, financial market segmentation divorced risk from reward. Increased mortgage capital availability, unmitigated by proper risk allocation, led to real estate price inflation. Social trends and government policies exacerbated both the mortgage capital over-supply and the risk-valuation disconnect.

The Dodd-Frank Act inadequately addresses the underlying asset valuation problem. Federal regulation may support market …

Large Law Firm Lateral Hire Conflicts Checking, James M. Fischer

James M. Fischer

Lateral lawyer movement between private law firms has become an accepted practice. More than one-half of the lawyers who became partners at AM LAW 100 firms began their professional careers at another firm. Yet, lateral lawyers carry potential risks to their new firms in the form of conflicts of interests that may prevent the firm from representing one of its existing clients. To identify and quantify this risk, firms require that laterals disclose information that enables the firm to conflicts check the lateral.

While conflicts checking of laterals is accepted practice by firms, it raises a question whether laterals in …

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Corruption As Institution: Roadblocks To U.S.-Funded "Business Formalization" Programs In Niger, Thomas A. Kelley Iii

Thomas A Kelley III

Suddenly it seems that US-funded international aid programs are all about building rational, predictable institutions to stimulate business in poor countries. The Millennium Challenge Corporation (MCC), a relatively new and increasingly important US aid organization, and the more venerable United States Agency for International Development (USAID), are initiating programs in poor countries around the world based on the assumption that their future stability and prosperity depends on unleashing and guiding the entrepreneurial spirit of small and medium-sized enterprises, and that this can be accomplished by improving the institutions – most notably the laws and legal enforcement mechanisms – that regulate …

From Innocent Boys To Dirty Old Men: Amending The Sex Offender Registry To Actually Protect Children From Dangerous Predators, Elizabeth B. Megale

Elizabeth B. Megale

The article initially focuses on the purposes of sex offender registries: (1) to make communities safer by informing the public (2) to discourage recidivism and reoffense; and (3)to aid law enforcement in the investigation of crimes. The sex offender registry fails to protect the public because it does not offer individuals any strategies for effectively using the information provided, it can actually hinder law enforcement in the investigation of crimes because it requires individuals to register even if they do not actually present a danger to society, and it does not discourage recidivism and reoffense because it stigmatizes people convicted …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

Book Review Of Daniel Markovits' A Modern Legal Ethics, Dorothy M. Hong

Dorothy M Hong

Modern Legal Ethics demands lawyerly virtue of fidelity to limit liability and avoid cost by lawyer's occupying a role with skill and expertise for each client for each case each time embracing cosmopolitanism and realist approach to lawyering to describe understanding of human condition that would tend to favor client without portraying an understandable scenario that would seem appropriate for his audience betraying nastalgia.

Emergent Disability & The Limits Of Equality: A Critical Reading Of The Un Convention On The Rights Of Persons With Disabilities, Elizabeth R. Ribet

Elizabeth R Ribet

The UN Convention on the Rights of Persons with Disabilities marks a shift in international legal relationships to and conceptions of disability. The Convention is the first binding international instrument of its kind related to disability. Its premises differ from the earlier World Programme on Disability, and more closely integrate the frameworks of U.S. domestic equal protection and disability civil rights law. Drawing on critical race and feminist theoretical literature, this paper critically examines the implications of internationalizing a U.S. disability law framework, with particular attention to the problem of "emergent disability", or disability which is specifically produced as a …

A Final Obstacle: Barriers To Divorce For Immigrant Victims Of Domestic Violence In The United States, Mariela Olivares

Mariela Olivares

Low-income immigrant victims of domestic violence face significant—and understudied—social, legal and political obstacles in obtaining divorces from their abusive spouses. Moreover, funding restrictions on legal service providers often prohibit their representation of victims in divorce proceedings, which further reduces immigrant victims’ ability to obtain meaningful divorce relief. These issues are virtually unexamined in the scholarly literature; the problem of the abused, immigrant wife seeking a divorce has been given short shrift. This Article examines the problems confronting this community then proposes reforms to address its particular needs. Part I explores the unique condition of the immigrant living in the United …

Resurrecting The Argument For Judicial Empathy: Can A Dead Duck Be Successfully Repackaged For Sale To A Skeptical Public?, Tobin Sparling

Tobin Sparling

President Obama's campaign to promote judicial empathy has proved a failure, rejected by his own judicial nominees and the public at large. Based on an examination of current popular conceptions of justice and a survey of scientific understanding of what empathy is and how it works, this article examines whether judicial empathy is a cause worth saving and, if so, whether it can, indeed, be saved. It argues that the advocacy of judicial empathy can and should be revived and suggests a strategy for politicians, judges, and others who desire to promote it. This strategy operates from two basic presumptions. …

Good Deficits: Protecting The Public Interest From Deficit Hysteria, Neil H. Buchanan

Neil H. Buchanan

President Obama has come under increasingly fierce criticism for the size of the federal budget deficit, as both Democratic and Republican politicians loudly proclaim that federal spending should be cut. This article explains why such anti-deficit fervor is misguided and simplistic, and why, perhaps counter-intuitively, cutting government spending can hurt the country, rather than help it, in both the short run and the long run.

In the short run, cutting deficit spending can be disastrous to the economy, especially if the economy is already in decline. In addition, because the federal budget fails to separate spending that provides long-term benefits …

Teens, Technology, And Cyberstalking: The Domestic Violence Wave Of The Future?, Andrew J. King-Ries

Andrew J King-Ries

While the legal system has made progress in combating domestic violence in the last 30 years, this progress is threatened by the intersection of two recent developments: teenagers normalizing unhealthy relationship patterns through pervasive use of technology and law enforcement’s inability to adequately respond to cyberstalking. The combination of these trends suggests America is producing a new generation of domestic violence batterers.

Recent studies document extensive use of technology—email, texts, social networking—by teenagers in their intimate relationships. Teenagers’ use of technology in their dating relationships often mimics relationship patterns present in violent adult relationships. Teenagers appear to be normalizing unhealthy …

Linguistic Colonialism: Law, Independence, And Language Rights In Puerto Rico, Andrea Freeman

Andrea Freeman

Events surrounding Puerto Rico’s 2004 and 2008 gubernatorial elections highlight two of the problems that exemplify the current state of linguistic colonialism that characterizes the relationship between the United States and Puerto Rico. One arose from the requirement that federal jurors be proficient in English, a mandate that conflicts with the Sixth Amendment’s guarantee of a jury representing a fair cross-section of the community. The other stemmed from a lack of anticipation of the existence of an English-speaking minority in a territory ruled by the United States, compelling the district court to struggle for authority to order bilingual ballots for …

Impeding Reentry: Agency And Judicial Obstacles To Longer Halfway House Placements, S. David Mitchell

S. David Mitchell

Over 700,000 prisoners were released into their communities in 2008, at least 50,000 of those from federal custody. Once an obscure cause, nearly everyone agrees that prisoner reentry – the process by which former prisoners return to their community as free citizens – is of national importance. Absent adequate attention to transitional services, ex-offenders are often homeless, unemployed, and suffer from untreated substance abuse addictions. Accordingly, President Obama and his two predecessors have devoted considerable attention to the issue. Congress passed the Second Chance in 2007, amending two federal statutes, sections 3624(c) and 3621(b) and giving inmates a longer time …

Avoiding The "Big Black Hole" Of Development Aid: The Legal Promise And Inherent Challenges Of Community-Directed Development, Allison Wells

Allison Wells

In the face of recent natural disasters in places such as Haiti and Pakistan, as well as the chronic underdevelopment in many regions of the world, development aid funnels billions of dollars around the globe every year in an effort to improve the lives of suffering populations. However, the distribution of those funds is constantly controversial, and much is said about the potential for mismanagement in international development, as well as the risk of political paternalism in dictating what needy communities are lacking. Community-Directed Development (CDD) is a growing trend in international aid that improves upon many of these pitfalls …

The Not-So-Risky Business Of High-End Escorts And The Internet In The 21st Century, Robert R. Rigg

Robert R. Rigg

The advent of the Internet has changed the advertising and marketing of prostitution. This advertising and marketing has expanded greatly since the days of advertisements in newspaper classifieds, as seen in the movie, Risky Business. Today, Internet websites allow escorts much greater exposure.

This Article focuses on “high-end” escorts—escorts charging more than $500 per act or session. These service providers use the Internet in ways different than their low-end or mid-range counterparts. These high-end escorts have sophisticated websites, geared toward discretion—for both the provider and client.

Criminal law has begun focusing on escorts who use the Internet for advertising and …

A Kind Of Judgment: Searching For Judicial Narratives After Death, Timothy W. Waters

Timothy W Waters

This Article is a work of original research interrogating the relationship between international criminal law and post-conflict reconciliation. Much of international criminal law’s attraction rests on the authoritative narrative theory: the claim that law’s authoritative judgments create incontestable narratives, which form the foundation for reconciliation in divided societies. So what happens when there is no judgment? By turning scholarship’s attention towards a terminated trial, this Article develops an indirect but powerful challenge to one of the dominant views about what international criminal law is for, with interdisciplinary implications for international law, international relations, diplomacy and political science. What can be …

The Rise Of The Corporation, The Birth Of Public Relations, And The Foundations Of Modern Political Economy, Donald J. Smythe

Donald J. Smythe

The rise of the modern corporation was an integral part the Second Industrial Revolution. This important economic and social transformation would not have occurred if business firms had been unwilling to make the large investments necessary to implement the new technologies that drove the industrial growth and development, and business firms would have been reluctant to make the investments without the shield of limited liability and the opportunity to spread their risks across diversified portfolios of corporate stocks. Nonetheless, the rise of the modern corporation created problems. The most successful corporations grew to unprecedented proportions, and the public’s concerns about …

Conceptual Analysis In Science And Law, Aaron Rappaport

Aaron Rappaport

Ever since H. L. A. Hart’s magisterial work, The Concept of Law, conceptual analysis has been viewed as the dominant method of doing jurisprudence. Far less appreciated is the fact that it is also a central tool in the field of cognitive science. That may be surprising to some, given the differences in these disciplines’ mission: Legal theorists struggle with abstract questions about the “nature” of Law and Justice; cognitive scientists explore the workings of the human mind. If cognitive scientists and legal philosophers are doing different things when they do conceptual analysis, how do they differ? This paper offers …

Combating Cyber-Victimization, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …