Law Commons^™

Sexual Politics And Social Change, Darren L. Hutchinson

Darren L Hutchinson

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the “political opportunity” for the Lawrence ruling and made the opinion relatively “safe.” Currently, GLBT rights …

The New Uniform Probate Code's Surprising Gender Inequities, Kristine Knaplund

Kristine Knaplund

The new Uniform Probate Code provisions on assisted reproduction include the five critical elements needed to address the broad range of issues in current law and practice, and in general the provisions work well. But as the sections now stand, they pose a delicious irony regarding children conceived and born long after a parent’s death: they allow a woman, especially a married woman, to alter the property distribution of a man’s estate by having a postmortem conception child, but accord very few men the same power. After centuries of laws giving men complete control over their wives’ property, perhaps the …

To Testify Or Not To Testify: A Comparative Analysis Of Australian And American Approaches To A Parent-Child Testimonial Exemption, Hillary Farber

Hillary B. Farber

Among many legal systems there are certain relationships that are deemed to possess such societal worth that despite the evidentiary value a witness may possess, he is immune from being compelled to testify against the other party in the relationship. In the United States, courts have recognized an evidentiary privilege for spouses, lawyers and their clients, psychotherapists and their patients. Surprisingly, the United States has not adopted a federal common law or statutory parent-child privilege. Among the civil law countries in Europe and Asia, a majority of countries prohibit parents and children from testifying against one another. Australia is the …

Making Debtor Remedies More Effective, Melissa B. Jacoby

Melissa B. Jacoby

Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other …

Heller, Mcdonald And Murder: Testing The More Guns, More Murder Thesis, Don B. Kates, Carlisle E. Moody

Carlisle Moody

We examine several aspects of the more guns, more murder hypothesis. We find that ordinary people typically do not kill in a moment of rage, so that preventing them from owning guns will not save lives. Societies without guns are not typically peaceful and safe. Historically, more guns are associated with less murder. Modern Europe nations with very high gun ownership rates have much lower murder rates than low gun ownership nations. In the United States: the colonial period of universal gun ownership saw few murders and few of those were gun murders. More guns do not mean more murder.

Colonial Cartographies And Postcolonial Borders: The Unending War In And Around Afghanistan, Tayyab Mahmud

Tayyab Mahmud

Many of today’s pervasive and intractable security and nation-building dilemmas issue from the dissonance between the prescribed model of territorially bounded nation-states and the imprisonment of postcolonial polities in territorial straitjackets bequeathed by colonial cartographies. With a focus on the Durand Line, the border between Afghanistan and Pakistan and the epicenter of the prolonged war in the region, this article explores the enduring ramifications of the mutually constitutive role of colonialism and modern law. The global reach of colonial rule reordered subjects and reconfigured space. Fixed territorial demarcations of colonial possessions played a pivotal role in this process. Nineteenth century …

Fcc V. Fox Television Stations, Inc. : Towards An Even More Deferential Judiciary?, Alan Moe

Alan W Moe Jr

Censorship has always been a polemical area of constitutional law. The controversy is further amplified when administrative agencies deal with sensitive areas of constitutional liberties. In FCC v. Fox Television Stations, Inc., 129 S.Ct. 1800, 1807 (2009), the U.S. Supreme Court dealt with an important issue of constitutional law and its intersection with the standard of judicial review for administrative agencies’ actions. In this case, the Court upheld the Federal Communications Commission’s about-face on its relatively conservative approach to the censorship of broadcasts for reasons of indecency in 2004. The FCC applied against Fox Television Stations its new policy of …

Financial Crisis Containment And Its Implications For Institutional And Legal Reform, Seraina N. Gruenewald

Seraina N. Gruenewald

This article analyzes financial crisis containment from a governance perspective. It depicts containment decision making by governments as a complex technical process of different stages. Deviating from the existing well-worn paradigms, the article argues that efficient crisis containment requires a clear allocation of responsibilities with explicit objectives and powers, proper channels of accountability and more transparency. It models a governance framework, the core of which is a crisis containment council. Shared responsibility and accountability on the part of the council members as they seek crisis containment would incentivize them to collaboratively decide on containment policies that correspond to the greatest …

Crumbs From The Table: The Syrophoenician Woman And International Law, Mark Chinen

Mark A. Chinen

In this Article I consider a story from the New Testament for what it might say to international law. A woman of Syrophoenician origin, whose daughter is possessed by an evil spirit, asks Jesus for help. Jesus protests, “First let the children eat all they want, for it is not right to take the children’s bread and toss it to their dogs.” The woman replies, “Yes, Lord, but even the dogs under the table eat the children’s crumbs.” Jesus is impressed by this reply and tells the woman her daughter is well. The way in which the story unfolds is …

Teaching Professional Ethics To Lawyers And Mediators Using Active Learning Techniques, Paula M. Young

Paula Marie Young Prof.

Protecting “Any Child:” The Use Of The Confidential Marital Communications Privilege In Child Molestation Cases, Naomi Goodno

Naomi Harlin Goodno

Imagine a grandmother who wants to testify in a criminal trial that her husband confessed to her that he molested their two-year old grandson, but she is prevented from doing so. This is a true example of how a defendant can invoke the confidential martial communications privilege. Federal courts and half of the state legislatures have created exceptions to the confidential martial communications privilege in narrow situations. If a defendant has committed a crime against “the child of either” spouse, or against a “child residing in the home,” then the defendant cannot bar testimony based on the confidential marital communications …

The Political Philosophy Of The Internet - From Locke’S State Of Nature To His Social Contract, Efrat Shuster

Efrat Shuster

No abstract provided.

Cultural Norms And Race Discrimination Standards: A Case Study In How The Two Diverge, Derek W. Black

Derek W. Black

The article analyzes the extent to which the current intentional race discrimination standard is consistent with the public’s understanding of discrimination. The analysis reveals that the public has a broader concept of discrimination than the courts. This finding is important because, as many scholars have argued, race and discrimination are not static concepts controlled by the courts. Rather, they are socially constructed concepts. Courts, however, have too often ignored social norms in arriving at race discrimination standards, limiting the conversation to themselves. While many in the academy have noted the Supreme Court’s disregard for social norms and cultural context in …

Empowering The Sentencing Commission: A Different Resolution To The Cocaine Sentencing Drama, Kip D. Nelson

Kip D Nelson

No abstract provided.

A Post-Racial Voting Rights Act, Jason Rathod (R-Z)

Jason Rathod (R-Z)

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, …

Victims, Lawyers, And Money: Legal Representation In The September 11th Victim Compensation Fund, Brian Bornstein

Brian H Bornstein

We surveyed claimants to the September 11th Victim Compensation Fund about their experiences with legal representation in filing a claim. Most claimants used a lawyer and believed that they received more compensation than they would have without a lawyer. Nearly two-thirds did not pay their attorney, and claimants who paid their lawyer were less satisfied with their outcome. Nearly half of claimants felt pressured to file a claim with the Fund, and they were split on the likely outcome if they had filed a lawsuit instead of going through the Fund. These findings have important implications for public policy and …

Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Michael L Perlin

Scholars have begun to consider the impact of neuroimaging evidence on capital punishment trials, questioning whether reliance on such testimony can actually make “sentencing more rational and humane.” They have also considered the impact of this evidence on criminal sentencing, expressing concern that such evidence will be improperly used “as predictive factors to increase sentences,” and counseling policymakers to “avoid misuse of new techniques.” In an earlier article on neuroimaging and criminal procedure, I considered the questions of a criminal defendant’s competency to submit to neuroimaging testing, and the impact of antipsychotic medications on the results of such testing.

What …

Currency Of Love: Customary International Law And The Battle For Same –Sex Marriage In The United States, Sonia B. Green

Sonia Bychkov Green

The battle for same-sex marriage is likely to be the civil rights issue of this decade. Developments all over the world over the last several years have caused celebration, public outcry and passionate debate. In the last year alone, the first Latin American same-sex wedding was performed, Sweden joined the nations who allow same-sex marriage, and the United States saw the “Proposition 8” debacle in California, and the new federal lawsuits that will inevitably propel the issues toward the Supreme Court. The legal debate in the United States has asked the crucial question: is there a legal right to marriage …

Corporate Social Responsibility After Citizens United, David G. Yosifon

David G. Yosifon

The Supreme Court recently held in Citizens United v. Federal Elections Commission (2010) that the First Amendment forbids Congress from restricting the political speech of corporations. While corporate theory did very little to inform the Court’s thinking in Citizens United, this article argues that the holding in Citizens United requires us to rethink corporate theory. Specifically, this article demonstrates that the shareholder primacy norm in American corporate governance relies on the assumption that corporations can be restrained from influencing external governmental operations. We can enjoy the efficiencies generated by shareholder primacy, mainstream corporate theorists have long argued, because we can …

Charitable Waste: Consideration Of A "Waste Not, Want Not" Tax, Evelyn Lewis

Evelyn A Lewis

CHARITABLE WASTE: CONSIDERATION OF A “WASTE NOT, WANT NOT” TAX EVELYN A. LEWIS Abstract Lavish expenditures by charities occur regularly, even in today’s depressed economy. Many are unwarranted and foolish while some prove to be extremely beneficial and valuable over time. But even the best of charitable splurges involve government waste since all charities are substantially supported by significant government subsidies. Unfortunately, most taxpayers don’t respond to charitable luxury-type waste with the same degree of outrage they do to other forms of government waste. This article first reveals the probable reasons for this different taxpayer reaction and posits that it’ll …

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Jacqueline D Lipton

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

How Incentives Drove The Subprime Crisis, Charles W. Murdock

Charles W. Murdock

How Incentives Drove the Subprime Crisis

In order to address any systemic problem, whether the goal is to change the system, regulate the system, or change the incentives driving a system, it is necessary to appreciate all the drivers operating within the system. In the case of the subprime crisis, one of the drivers was the changing nature of the subprime loans, which was not factored into the models used by the investment bankers, the credit rating agencies, and the issuers of credit default swaps.

This paper is an attempt to look dispassionately at the subprime crisis from a particular …

Obama Vs. Bush On Steroids: Two Different Approaches To A Pseudo-Controversy—Or Is Major League Baseball Steroid Use Really Worthy Of Note In A State Of The Union Address?, Danyahel Norris

Danyahel Norris

Since Sports has such a unique impact on American life, it is appropriate to use sports as a gauge to ascertain the effectiveness of each presidential administration...The Bush administration used sports as a means to punish “offenders,” while at the same time, using the specter of steroid abuse as a means to de-emphasize the real turmoil in Iraq. The Obama administration, on the other hand, has used sports as a metaphor to educate and, also as a bully-pulpit to reinforce “good” values.

Constitutional Faith And Dynamic Stability: Thoughts On Religion, Constitutions, And Transitions To Democracy, David C. Gray

David C. Gray

This essay, written for the 2009 Constitutional Schmooze, explores the complex role of religion as a source of both stability and instability. Drawing on a broader body of work in transitional justice, this essay argues that religion has an important role to play in the complex web of overlapping associations and oppositions constitutive of a dynamically stable society and further contends that constitutional protections which encourage a diversity of religions provide the best hope of harnessing that potential while limiting the dangers of religion evidenced in numerous cases of mass atrocity.

Saving Seaborn: Ownership Not Marriage As The Basis Of Family Taxation, Dennis Ventry

Dennis Ventry

Later this year, one of the most famous Supreme Court tax cases will celebrate its eightieth birthday. In Poe v. Seaborn, the Court reified two principles of the federal income tax: ownership determines tax liability and state law determines ownership. This article establishes that tax liability for families continues to follow ownership not marriage, despite the federal government’s position that the “ownership equals taxability” principle applies exclusively to heterosexual spouses. Verifying the broad application of this principle carries significant implications for all families. Under the aegis of Seaborn, it authorizes members of state-recognized relationships—marriages, domestic partnerships, civil unions—to file federal …

The Roberts’S Supreme Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commission, Allen E. Shoenberger

Allen E Shoenberger

The methodology of the Supreme Court in its recent decision permitting unlimited corporate financing of election advertisements is more troubling that the specific holding. All signs of constitutional restraint are abandoned as the court employs a sledgehammer to smash Congresses attempt to eliminate the actuality and fear of corruption from electoral politics.

The Political Consequences Of Legal Victories: Ballast Regulation And The Clean Water Act, Zdravka Tzankova

Zdravka Tzankova

Federal conservation policy has seen a new development recently: the use of the Clean Water Act (CWA) as a tool for regulating ballast water discharges from ships and, thereby, for preventing biological invasions caused by the discharge of nonindigenous organisms in ballast. Some outcomes of this new method for regulating ballast water discharge are obvious, others are much less so. Superimposing CWA regulatory authority on an already existing system of U.S. ballast law and regulation is likely to change the politics of ballast regulation. What do such changes in regulatory politics spell for the future of regulatory protections against biological …

The Persistence Of Low Expectations In Special Education Law Viewed Through The Lens Of Therapeutic Jurisprduence, Richard Peterson

Richard Peterson

For more than thirty-five years a paradigm of low expectations has infected efforts to educate children with disabilities and has been a persistent and stubborn obstacle to the successful implementation of the Individuals with Disabilities Education Act (IDEA), and its predecessor, the Education of All Handicapped Children Act (EAHCA). This dilemma raises questions addressed in this paper: What is meant by low expectations in the context of Special Education Law? What are the root causes of this phenomenon, and what makes it so resistant to change? How does it impede implementation of the IDEA? And lastly, in what ways does …

Extraordinary Justice, David Gray

David C. Gray

This article is squarely opposed to views advanced by Eric Posner, Adrian Vermeule, and others that transitional justice is just a special case of “Ordinary Justice.” Paying special attention to debates about reparations, this article argues that transitional justice is extraordinary, reflecting the source and nature of atrocities perpetrated under an abusive regime, and focused on the challenges and goals that define transitions to democracy. In particular, this Article argues that transitional justice is not profane, preservative, and retrospective, but, rather, Janus-faced, liminal, and transformative. The literature on reparations in transitions is divided between critics who regard reparations as quasi-tort …

Commentary On Predicting Crime, Tom Bell

Tom W. Bell

The market mechanisms proposed in Predicting Crime offer many virtues. The authors describe several of these—unbiased information collection; incentives that encourage disclosure; opinions weighted by conviction; information aggregation; instantaneous and continuous feedback—and convincingly argue that these structural features stand to help prediction markets outperform alternative institutions in forecasting the interplay of crime rates and crime polices. In that, Predicting Crime adopts an economic point of view and speaks in terms of practical experience. After all, similar structural features have already appeared in other successful prediction markets, such as those offering trading in claims about the weather, flu outbreaks, or box …