Law Commons^™

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

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.

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

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

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

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

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

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

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

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

Arthur M. Ortegon

No abstract provided.

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

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

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

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 …

"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 …

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

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

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.

"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

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

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

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

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

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 …

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on a paradox latent within the nature of creative phenomenon: although one can find strong arguments for control over intangible creations during one’s life, these arguments falter if not fail after the creator dies. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some …

The Cultural Property Claim Within The Same Sex Marriage Controversy, Marc R. Poirier

Marc R. Poirier

The Cultural Property Claim within the Same Sex Marriage Controversy.

Marc R. Poirier, Seton Hall University School of Law

This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim -- the sort of claim that is often made by Native American tribes and other subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, it disagrees with the traditionalist position, and argues that traditionalists should not be allowed to maintain a property-like right to exclude same sex couples from marriage. Nevertheless, the …

Using Federal Law To Prescribe Pedagogy: Lessons Learned From The Scientifically-Based Research Requirements Of No Child Left Behind, Kamina A. Pinder

Kamina A Pinder

Abstract Recent data on national student achievement under the Reading First program has tentatively established it as the most successful federal academic program in the existence of federal education law. Reading First is an early reading intervention program with rigid curricular and accountability provisions and is the centerpiece of the No Child Left Behind Act--the most far-reaching federal encroachment on state and local control of education in our nation’s history. In implementing the Reading First statute, U.S. Department of Education officials are alleged to have violated statutory provisions that prohibit Department officials from influencing state and local choice of curricular …

The Intelligent Construction Of The Universe: A Mathematical Proof - The Link Among Science, Natural Law And Jurisprudence, Ashley Saunders Lipson

Ashley Saunders Lipson

A mathematical proof that the Universe was intelligently constructed. The paper forms the predicate for a new form of jurisprudence (Mathematical Determinism)linking science to Natural Law and morality.

Childsoldiers,Slavery, And The Trafficking Of Children, Susan W. Tiefenbrun

Susan W Tiefenbrun

Despite a proliferation of international human rights treaties, labor laws, and humanitarian laws that should provide children with special protection from abduction into child soldiering, the trafficking of children and their use as soldiers is increasing. This paper will examine the relationship of human trafficking, slavery, and child soldiering. Part I will examine the root causes of the development and expansion of child soldiers. Part II will examine the international and domestic laws that protect against the use of children as soldiers. Part III will examine two literary representations of the use of child soldiers and the significant insights such …