Law Commons^™

Aligned Incentives: Envisioning Syzygy, Karl T. Muth

Karl T Muth

In the wake of the failure of AIG, this paper deals with the question of whether incentive alignment is truly the problem with contemporary insurance products (as many in the media and the economics community have alleged) by examining two hypothetical types of insurance where incentives are extraordinarily well-aligned.

Brave New Eugenics: Regulating Assisted Reproductive Technologies In The Name Of Better Babies, Kerry Macintosh

Kerry L Macintosh

Infertile men and women have been using assisted reproductive technologies (“ART”) to conceive children since the first “test-tube baby” was born in 1978. During the past decade, however, the federal government has begun to clamp down on ART, asserting safety concerns as grounds for banning novel technologies such as cloning, nuclear transfer, and ooplasm transfer. Some scholars and policymakers now want to extend governmental regulation to include conventional ART such as in vitro fertilization (“IVF”) and intracytoplasmic sperm injection (“ICSI”). They claim children conceived through ART face an increased risk of birth defects and other health problems. This Article examines …

Democracy Will Live As Long As Citizens Maintain Respect, Randy Lee

Randy Lee

No abstract provided.

Imitando La Intermediación Financiera Indirecta: El Caso De Los Bancos De Alimentos, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

De un tiempo a esta parte se observa un enorme desarrollo de supermercados, sea de gran envergadura, sea pequeña escala. Correlativamente, y pesar del sólido progreso macroeconómico, aún existe un segmento considerable de la sociedad en estado de desamparo y que requiere de medidas asistenciales por parte del Estado. Sin embargo en países como los recursos son excesivamente limitados, por ello resulta importante las alternativas de responsabilidad social empresarial que se vienen implementando o de modo directo la participación privada para colaborar en los esfuerzos asistenciales. Es en este marco donde se inserta la actuación de los Bancos de Alimentos.

Portland's Exiles: Pricing Out African Americans, Henry Mcgee

Henry W McGee Jr.

Abstract Displacement of Blacks by unprejudiced whites who are willing to live next door to people of color continues to plague African Americans who suffer disrupted neighborhoods. African Americans in Portland, Oregon in the period between 1990 and 2000, were displaced by whites who moved to Northeast Portland because of significantly lower house prices, a consistent characteristic of Black neighborhoods. Hitherto insulated from inflated house prices because of racial prejudice, African Americans developed businesses and social institutions over the decades in which they were able only to purchase homes in Portland’s Black “ghetto.” A sea change in racial attitudes has …

Fourth-Generation Environmental Law: Integrationist And Multimodal, Craig Anthony (Tony) Arnold

Craig Anthony (Tony) Arnold

The Parentless Child's Right To A Permanent Family, Joseph S. Jackson, Lauren G. Fasig

Joseph S. Jackson

Abstract More than 420,000 children in the United States are in foster care, and more than 110,000 of them are waiting to be adopted. State adoption statutes typically seek to achieve adoption for these children as promptly as possible, but some limit the pool of potential adoptive parents in one way or another. In this Article, we argue that such restrictions violate the State’s constitutional duties to parentless children in its care. Specifically, we contend that children in State custody have a substantive liberty interest in a secure and stable family relationship, because such a relationship is essential in order …

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

Jennifer Hammitt

The Homeless Management Information System (HMIS) is a new database reporting system mandated by the Department of Housing and Urban Development to track the usage of HUD services by homeless people. The HMIS requires collecting identifiable personal information about the individuals who use the services and entering that information into a database that enables information sharing and referral services. This comment arose out of an investigation into the HMIS database and confidentiality issues that I did while working at Legal Services of Greater Miami, Inc., as part of the Homeless Legal Assistance Project in the summer of 2009. As this …

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 …

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.

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 …

Reigning In Charities: Using An Intermediate Penalty To Enforce The Campaigning Prohibition, Samuel D. Brunson

Samuel D. Brunson

Congress has prohibited public charities from campaigning for or against any candidate for office continuously since 1854. However, the IRS routinely fails to penalize public charities that accidentally violate or deliberately flout the prohibition. And the IRS’s reluctance is understandable: the penalty for violating the campaigning prohibition is loss of the public charity’s tax-exempt status, a death-knell for many public charities. This Article argues that the IRS’s underenforcement of the prohibition is predictable. The prohibition has provoked firestorms of debate among academics, policymakers, and directors of public charities themselves. Where the penalty for violating controversial laws is a hard shove, …

Memory And Punishment, Orlando Carter Snead

O. Carter Snead

This article is the first scholarly exploration of the implications of neurobiological memory modification for criminal law. Its point of entry is the fertile context of criminal punishment, in which memory plays a crucial role. Specifically, this article will argue that there is a deep relationship between memory and the foundational principles justifying how punishment should be distributed, including retributive justice, deterrence, incapacitation, rehabilitation, moral education, and restorative justice. For all such theoretical justifications, the questions of who and how much to punish is inextricably intertwined with how a crime is remembered — by the offender, by the sentencing authority, …

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 …

What Would Coase Do (About Parking Regulation)?, Michael E. Lewyn

Michael E Lewyn

Like many government regulations, municipal minimum parking requirements exist to prevent externalities- most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper and make walking more difficult, such regulations may in fact increase driving, thus increasing congestion, pollution and greenhouse gas emissions.

Book Review: Law And Happiness, Jeffrey L. Harrison

Jeffrey L Harrison

There has been a huge surge in writing about happiness and law. Part of the rationale for the interest in happiness is that it is a potential substitute for conventional notions of efficiency. Every conventional efficiency-oriented standard is based on expectations that one will be better off. For example, demand is based on willingness to pay but not on the outcome of the actual purchase. Happiness, on the other hand, is about how things turn out. Indeed, the importance of a topic is evident when two well-published and eminent law professors present a book of readings on the topic. Law …

From The Schoolhouse To The Poorhouse: The Credit Card Act's Failure To Adequately Protect Gen Y Consumers, Eboni Nelson

Eboni S Nelson

Whether through personal experiences or through the experiences of our friends and family, most, if not all, of us are all too familiar with the credit card industry’s unrelenting attempts to saddle young, naïve college students with debt that they cannot afford to repay. Students thoughtlessly apply for and use credit cards without considering the negative effects credit card debt can have on their academic, personal, and financial wellbeing. In May 2009, Congress attempted to address the pervasive problem of young consumer indebtedness by passing the Credit Card Accountability Responsibility and Disclosure Act of 2009. While this Article recognizes and …

Disintermediating Avarice: A Legal Framework For Commercially Sustainable Microfinance, Steven L. Schwarcz

Steven L Schwarcz

Although microfinance has emerged as a key tool to alleviate poverty, the need for microfinance lending vastly exceeds the amount of funds that can be raised from charitable donors. Commercial bank lending is supplementing donor money, but microfinance loans made by banks are expensive and sometimes even exploitive. This article examines how innovative legal structures can enable microfinance loans to be funded directly from lower-cost, and virtually limitless, capital market sources by removing, or “disintermediating,” the need for a bank intermediary. In that context, the article identifies and attempts to resolve the resulting law-and-business issues of first impression and also …

Playing God: The Legality Of Plans Denying Scarce Resources To People With Disabilities In Public Health Emergencies, Wendy F. Hensel, Leslie E. Wolf

Wendy F. Hensel

The threat of an international pandemic captivated much of the news media in 2009. The spread of H1N1 in the United States ultimately prompted President Obama to declare a state of national emergency. It was predicted that hospitals would be overburdened and shortages would occur, necessitating difficult decisions about who should get access to scarce medical resources, such as ventilators and critical care beds. Few questions are more ethically or legally loaded than determining who will receive scarce medical resources in the event of a wide-spread public health emergency. The answer will often mean the difference between life and death …

Grutter's Regrets: An Empirical Investigation Of How Affirmative Action Is(N'T) Working, Deirdre Bowen

Deirdre M Bowen

This exploratory empirical work examines whether students of color enjoy the benefits articulated by the U.S. Supreme Court in the Grutter decision that rationalized the continuation of affirmative action based on diversity interests. Specifically, the Court stated that affirmative action was permissible because students of all backgrounds would increase their racial understanding and decrease their racial stereotyping of minorities. Supporters and opponents were skeptical that such benefits would really materialize for students of color. Supporters argued that minority students would merely be tokens in which only white students would benefit from a diverse classroom. Opponents argued that this diversity rationale …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

"Censorship In The Video Game Industry: Government Intervention Or Parental Controls?", Richard J. Hunter Jr., Hector R. Lozada, Ann Mayo

Richard J Hunter Jr.

The article is a comprehensive review of the constitutional issues surrounding legislation which regulates the video game industry in the context of the Illinois Sexually Explicit Video Game Law (SEVGL). The article reviews the process of the Entertainment Software Rating Board (ESRB), the application of strict scrutiny analysis by the Court of Appeals, the discussion relating to the constitutionality of the SEVGL, and revisits the important precedents found in Ginsberg and Miller. The article offers a suggestion for future legislative efforts in the area of regulation of this important industry.

No Role For Apology: Remedial Work And The Problem Of Medical Injury, Steven Raper

Steven E Raper MD

The past decade has produced ample evidence that patients are injured by medical care. A landmark document “To Err is Human” articulated a way to protect patients based on analysis of health care organizations according to complex systems and principles of human performance rather than “blame and shame”. To understand how to prevent injury, full – but protected – disclosure is required as well as institutional will to change. The literature is full of success stories all of which are based on frank and honest reporting of adverse events. Central to such reporting and analysis is the ability to discuss …

Law As Referent, Craig G. Bateman

C. G. Bateman

In this article I suggest that “the Law,” (hereinafter the LAW) can be most functionally understood as a conglomeration of referent ideals which emanate from the minds of law creators, and are the source of what we regularly understand as laws. I separate from the concept of the LAW the usual suspects of constitutions, codes, acts, and charters, etc. I separate these from their inceptional ideals and suggest we ascribe a label to these familiar kinds of categories such as “lower order laws,” being careful to confine our discussions of them with the exclusive use of a small “l” (law), …

Drawing Bisexuality Back Into The Picture: How Bisexuality Fits Into Lgbt Legal Strategy 10 Years After Bisexual Erasure, Heron Greenesmith

Heron Greenesmith

In 2000, Kenji Yoshino published a paper exploring the social erasure of bisexuality. He introduces the paper by empirically proving that bisexuality was invisible through a quick survey of popular news sources that featured volumes more articles about homosexuality than bisexuality. Once he shows that bisexuality is invisible, he makes sure to distinguish between the incidental invisibility of bisexuality, perhaps because of the low number of bisexuals, and its deliberate erasure. Erasure is a deliberate act that involves the participation of people who seek to erase. Yoshino theorizes that monosexuals (heterosexuals and homosexuals) created an epistemic contract to erase bisexuality …

Putting The Gene Back In The Bottle: Why California Needs Stronger Protection Of Genetic Privacy In The Wake Of Affordable Dna Testing, Farid Zakaria

Farid Zakaria

In recent years, many “direct-to-consumer” genetic testing companies have started offering a DNA analysis service to the public. Based on the analysis of the DNA contained in saliva, these companies are able to inform the customer about his or her likelihood of having certain traits and of developing a number of diseases. Given the sensitive nature of this kind of information, this paper considers whether it is sufficiently protected under the current legal and regulatory framework. Specifically, the paper studies whether current federal, state, and common law that protects medical and private information also guarantees the privacy of genetic information. …

¿Quién Tiene Mayor Necesidad De Pagar Impuestos?: Un Esbozo Crítico Desde La Perspectiva De Un No-Especialista, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

El objetivo de la presente nota es muy sencillo: evidenciar que si bien la mayoría de los ciudadanos tenemos un rechazo al pago de tributos y en particular de impuestos, somos más dependientes de ellos de lo que se suele percibir. Empero, para lograr tal constatación debemos modificar la perspectiva bajo la que se analiza una noción casi institucional como la capacidad contributiva. Todo ello, cabe resaltar, es propuesto sólo con la libertad que nuestra calidad de no-especialistas nos brinda.

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

Would They Make Us Safer?, Ryan Williams

Ryan T. Williams

No abstract provided.