Law Commons^™

The Holocaust And Mass Atrocity: The Continuing Challenge For Decision, Winston P. Nagan, Aitza M. Haddad

Winston P Nagan

This article begins with an appraisal of a report published by the United States Institute for Peace and authored by the former Secretary of State, Albright, and former Secretary of Defense, Cohen. This Report generated a great deal of interest and reaction from scholars across the globe. The article will introduce the broad outline of this Report and provide a summary of the principal criticisms that it has generated. This sets the stage for approaching the problem that is sensitive to the issue that this phenomenon be explore with a view to developing usable insights and data as well as …

The Tenuous Case For Conscience, Steven D. Smith

Steven D. Smith

If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …

Where Did My Privilege Go? Congress And Its Discretion To Ignore The Attorney-Client Privilege, Don Berthiaume, Jeffrey Ansley

Don R Berthiaume

“The right to counsel is too important to be passed over for prosecutorial convenience or executive branch whimsy. It has been engrained in American jurisprudence since the 18th century when the Bill of Rights was adopted... However, the right to counsel is largely ineffective unless the confidential communications made by a client to his or her lawyer are protected by law.”[1] So said Senator Arlen Specter on February 13, 2009, just seven months before Congress chose to ignore the very privilege he lauded. Why then, if the right to counsel is as important as Senator Specter articulated, does Congress maintain …

Habermas And The Positive Criteria Of Legal Norms, Claudio Bozzi Dr

Claudio Bozzi Dr

Abstract With the publication of Faktizitat und Geltung Jurgen Habermas sought to extend his normative critical arguments to jurisprudence. In this work he argues that the law can mediate and coordinate valid social integration in complex modern societies because it is capable of receiving normative inputs from the public sphere, which are then translated into the administrative system. Throughout his extensive writings, Habermas has referred to a principle of the universalisation of the valid norm. Its role in pluralist societies is therefore not to offer a substantial value, but to guide in the character of a regulative idea. This idea …

Globalization And The Environment: Why All The Fuss?, David A. Wirth

David A. Wirth

The relationship between globalization and environmental policies presents more nuances than the popular paradigm of free trader versus self-serving protectionists, the familiar model of environmentalist battling greedy polluters, or the outmoded view of a progressive multilateral agenda juxtaposed against a parochial, inward-looking domestic one. This piece sets out a structural and analytical framework for addressing the major issues in the field -- including (1) unilateral trade-based measures to protect the environment; (2) science-based tests applied through trade agreements; (3) disciplines on foreign investment that may have a "chilling effect" on environmental regulation; and (4) the relationship between free trade agreements …

Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller

Elisabeth Keller

Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …

Introduction: Law, Torture, And The “Task Of The Good Lawyer” – Mukasey Agonistes , Daniel Kanstroom

Daniel Kanstroom

Following September 11, 2001, there was a challenge to the role of law as a regulator of military action and executive power. Government lawyers produced legal interpretations designed to authorize, legitimize, and facilitate interrogation tactics widely considered to be illegal. This raises a fundamental question: how should law respond to such flawed interpretation and its consequences, even if the ends might have seemed necessary or just? This Symposium examines deep tensions between competing visions of the rule of law and the role of lawyers. Spurred by a controversy over the selection of then-Attorney General Michael Mukasey as commencement speaker, the …

Emerging Models For Alternatives To Marriage, Sanford N. Katz

Sanford N. Katz

Perhaps one of the most important changes in family law in the past thirty years has been the inclusion of certain kinds of friendships in the range of relationships from which rights and responsibilities can flow. Domestic partnership laws, a phenomenon of the 1990s, may be seen as a natural development from the judicial recognition of contract cohabitation and the legislative and judicial response to same-sex couples who, unable to meet statutory requirements for marriage, have sought official recognition of their relationships. This essay discusses an aspect of certain kinds of domestic partnership laws-their formal requirements and the extent to …

New Directions For Family Law In The United States, Sanford N. Katz

Sanford N. Katz

This article provides a survey of one major development in family law in the United States that has occurred during the most recent past. This development is the change that has occurred in marriage-like relationships. The article begins with a discussion of contract cohabitation and the extent to which it reflected a change from traditional views of formal or informal marriage as the only legally acceptable model for adults who desired to live together. It shows how contract cohabitation laid the groundwork for the establishment of domestic partnership laws. These laws were first adopted by municipalities and then by states …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

The Development Of Charity: Anti-Poverty Measures Of Ancient Jewish Law & Jurisprudence, William H. Byrnes Iv

William H. Byrnes

This article describes the ancient Jewish practices, codified in Biblical law and later legal commentary, to protect the needy. The ancient Hebrews were the first civilization to establish a charitable framework for the caretaking of the populace. The Hebrews developed a complex and comprehensive system of charity to protect the needy and vulnerable. The Jews’ anti-poverty measures - including regulation of agriculture, loans, working conditions, and customs for sharing at feasts - were a significant development in the jurisprudence of charity.

The first half begins with a brief history of ancient Jewish civilization, providing context for the development of charity …

Is Free Trade "Free?" Is It Even "Trade?" Oppression And Consent In Hemispheric Trade Agreements, Frank J. Garcia

Frank J. Garcia

In order for free trade as a policy to deliver fully on its social promise, it must be both “free” and “trade.” In fact, it must be free, in the sense of voluntary, to be trade at all. In other words, for normative and practical reasons, free trade requires that global economic relations be structured through agreements which reflect the consent of those subject to them. The neoliberal trading system today only imperfectly lives up to this obligation. In this essay, I will examine the role of consent in trade agreements, drawing on examples from CAFTA as representative of important …

Globalization, Global Community And The Possibility Of Global Justice, Frank J. Garcia

Frank J. Garcia

In this essay, I suggest five ways in which globalization is changing the cosmopolitan/communitarian debate over global justice, by creating, both inter-subjectively and at the regulatory level, the constitutive elements of a limited global community. Members of this global community are increasingly aware of each other’s needs and circumstances, increasingly capable of effectively addressing these needs, and increasingly contributing to these circumstances in the first place. They find themselves involved in the same global market society, and together these members look to the same organizations, especially those at the meta-state level, to provide regulatory approaches to addressing problems of global …

Trade Justice And Security, Frank J. Garcia

Frank J. Garcia

[Refers to Revised Draft, December 9, 2005] The social psychology literature on justice suggests that the perception of injustice produces the strongest human emotional response. Perceptions of injustice can lead to conflicts over the justice of social outcomes, threatening social cohesion and security. Trade law, and globalization more generally, are increasingly perceived as unjust with respect to the interests of developing countries and of the poor in all countries. To the extent that the various stakeholders in globalization perceive a lack of reciprocity between their investment and their return, they will naturally address their claims of injustice towards the global …

The Embattled Social Utilities Of The Endangered Species Act - A Noah Presumption And Caution Against Putting Gasmasks On The Canaries In The Coalmine, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The Endangered Species Act (ESA) is once again poised at the brink of what could become an illuminating national debate. The Act’s congressional reauthorization process is likely to provide the first major indicator of what the 105th Congress will or won’t do to environmental law generally. From the turbulent past and present of the ESA, this essay offers some reminders for the impending battles over the Act.

Clear The Air: Lopsided Journalism In Public Policy Debates, Zygmunt J.B. Plater

Zygmunt J.B. Plater

A point-counterpoint to Professor Plater's article, "Law and the Fourth Estate: Endangered Nature, the Press, and the Dicey Game of Democratic Governance, Environmental Law, 32 (2002): 1-36.

Environmental Law And Three Economies: Navigating A Sprawling Field Of Study, Practice, And Societal Governance In Which Everything Is Connected To Everything Else, Zygmunt J.B. Plater

Zygmunt J.B. Plater

From the Author’s Introduction: This Essay addresses four of the challenges facing academics in this field, two of which are logistical and two conceptual. The two logistical challenges briefly addressed here are endemic in teaching environmental law—choosing what to teach and deciding how to teach it. Today some rough generalizations on strategies for curricular coping can be made, emerging from the evolution of environmental law courses at many American law schools over the past twenty-five years. The conceptual challenges may be even more difficult to tackle, and are addressed here at a greater length: first, how to frame and define …

Through The Looking Glass Of Eminent Domain: Exploring The "Arbitrary And Capricious" Test And Substantive Rationality Review Of Governmental Decisions, Zygmunt J.B. Plater

Zygmunt J.B. Plater

The day-to-day realities of different systems of government can be discerned in the way they handle, in theory and practice, clashes between the individual and the collective will. The structure of contemporary American democracy is no exception. It is comprised of a variegated assortment of judicial formulae for balancing the interests of the individual and the state, most of these formulae tracing back with differing degrees of directness to textual bases in the first nine amendments to the federal Constitution or their state constitutional equivalents. One of these basic structural balancings, encountered early on by every student of American law …

Law And The Fourth Estate: Endangered Nature, The Press, And The Dicey Game Of Democratic Governance, Zygmunt J.B. Plater

Zygmunt J.B. Plater

Building upon the story line of a current book project on the Tellico Dam case, this Essay explores a challenging reality of modern public interest lawyering – the critical role of public perceptions and of the Press’s role in shaping them. Most public interest attorneys come to realize that their lawyering must move simultaneously on two different tracks that determine outcomes – law and public opinion. This double task can be difficult and sometimes impossible. Both tracks require the organization and presentation of facts, but the two contexts can be quite different. A legal case requires proof of each technical …

Understanding Csr: An Empirical Study Of Private Self-Regulation, Benedict Sheehy

Benedict Sheehy

Abstract: The article is a study of an important burgeoning form of regulation—private self-regulation—in the area of Corporate Social Responsibility (CSR). Rather than taking a purely theoretical approach or a social scientific study relying publicly reported data, the article addresses the issue by way of interview based case studies. As a study in regulation it clarifies the difference between various types of self-regulation, trade associations’ codes as private self-regulation and government sponsored self-regulation. This distinction hampers efforts to understand the important aspects of motivation and compliance. This study provides empirical examination of compliance in private self-regulation. Given the impact and …

Tax Compliance And The Love Molecule, Susan Morse

Susan Cleary Morse

If oxytocin is the source of human reciprocity, then perhaps storytelling that evokes close human relationships is the key to using reciprocity to further tax compliance.

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

Use Your Words: Providing Informational Feedback As A Means To Support Self-Determination And Improve Law Student Outlook And Outcomes, Paula J. Manning

Paula J Manning

When law school faculty neglect to make careful and informed choices about the words we use, ignoring the impact of those words on our students’ potential for success in law school, law practice and life, we contribute to our students’ psychological distress and decline in motivation and performance—which may well carry forward to the legal profession and justice system. This article uses the lens of self-determination theory to explore a simple and concrete step law school faculty can take to improve students’ outlook and outcomes, by making changes in feedback practices that contribute to the autonomy thwarting educational environment that …

The Place Of Law: The Role And Limits Of Law In Society, Larry Barnett

Larry D Barnett

The Place of Law addresses two questions that are critical to understanding law. Why is law an evidently universal, enduring institution in modern societies? And why do the concepts and doctrines of law differ between jurisdictions (states or nations) at one point in time and vary within a jurisdiction over time? In this stimulating volume, Barnett suggests answers to these questions, and in doing so, he challenges popular assumptions regarding law in structurally complex, technologically advanced, democratic societies. In particular, Barnett questions the assumption that social behaviors central to such societies are effectively controlled by law and the assumption that …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …

Customary International Law 2.0, Scott Sullivan

Scott Sullivan

Throughout history, customary law has been legitimized as an instrument to put the power of law behind the aggregated, collective judgment of citizens. Technological advances in communication have created a world where such collective judgments are easier to identify and apply than ever before. Unfortunately, the current regime design of customary international law formation is tethered to a fiction of state consent that is subjecting the system to creeping anachronism.

This Article offers an alternative theoretical “version” for understanding and justifying the creation of customary international law norms. Consistent with the software versioning invoked in the title, this rethinking of …

Teaching Social Justice Lawyering: Systematically Including Community Legal Education In Clinical Legal Education, Margaret Johnson, Catherine Klein, Margaret Barry, Lisa Martin, A. Camp

Margaret E Johnson

There is a body of literature on clinical legal theory that urges a focus in clinics beyond the single client to an explicit teaching of social justice lawyering. This Article adds to this emerging body of work by discussing the valuable role community legal education plays as a vehicle for teaching skills and values essential to single client representation and social justice lawyering. The Article examines the theoretical underpinnings of clinical legal education, community organizing and community education and how they influenced the authors’ design and implementation of community legal education within their clinics. It then discusses two projects designed …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World.

From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …

Committing Crimes One Bill At A Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World, Lanessa Owens

Lanessa L. owens

Committing Crimes One Bill At Time; From The White House To The Jail House, Enacting Rational Laws In An Irrational World. From Masters’ and Slaves’, to Gays’ and Straights’, you think they are different; I will convince you they are the same. I will demonstrate how legislatures have historically and continually abused their power to enact laws. Under the disguise of some governmental interest, legislatures continue to create, enact, and enforce bias laws. This article imports Criminal Procedure into Constitutional Law to create a proactive solution to the ongoing problem of law making. It is this author contention that the …