Law Commons^™

Where Have All The (Legal) Stories Gone?, Nancy B. Rapoport

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This essay examines whether law schools are doing a good job of teaching the art of storytelling to law students.

Human Rights And Military Decisions: Counterinsurgency And Trends In The Law Of, Dan E. Stigall, Christopher L. Blakesley, Chris Jenks

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The past several decades have seen a Copernican shift in the paradigm of armed conflict, which the traditional Law of International Armed Conflict (LOIAC) canon has not fully matched. Standing out in stark relief against the backdrop of relative inactivity in LOIAC, is the surfeit of activity in the field of international human rights law, which has become a dramatic new force in the ancient realm of international law. Human rights law, heretofore not formally part of the traditional juridico-military calculus, has gained ever increasing salience in that calculus. Indeed, human rights law has ramified in such a manner that …

From Imperial Scholar To Imperial Student: Minimizing Bias In Article Evaluation By Law Reviews, Rachel J. Anderson

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This Article is intended to serve as a roadmap for law professors and law review editors alike in their efforts to find a better way for students to evaluate articles. Further, this Article aims to offer low-cost ways to improve the institution of student-run law reviews by strengthening editors' evaluation skills and processes. This Article is divided into three main parts. Part II of this Article, Manifestations of Systemic Bias, develops a theory of the safe-dissent continuum and employs this theory to determine whether there is empirical support for claims of bias in article evaluation and the legal discourse. Part …

Last Best Chance For The Great Writ: Equitable Tolling And Federal Habeas Corpus, Anne R. Traum

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This Article examines an important unsettled question in federal habeas law: whether equitable tolling is available under the statute of limitations applicable to federal habeas petitions filed by state prisoners. The answer to this question will determine access to federal judicial review of thousands of prisoners’ claims that their convictions resulted from violations of their federal constitutional rights in state courts. In twelve cases reviewing the statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), the Supreme Court has curtailed the availability of statutory tolling of the limitations period. Equitable tolling of the statute of …

Remarks: Neuroscience, Gender, And The Law, Stacey A. Tovino

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These remarks, delivered at the Neuroscience, Law, and Government Symposium held at the University of Akron School of Law in 2009, explore how stakeholders are using advances in the neuroscience of three gender-specific and gender-prevalent conditions (the postpartum mood disorders, premenstrual dysphoric disorder, and eating disorders) to secure health care benefits under group health plans and individual health insurance policies and to push for the inclusion of these conditions in mental health parity legislation.

Fixing The Mandatory Arbitration Problem: We Need The Arbitration Fairness Act Of 2009, Jean R. Sternlight

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No abstract provided.

Three Ways Of Looking At A Health Law And Literature Class, Jennifer Bard, Thomas W. Mayo, Stacey A. Tovino

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The authors of this Article participated in a panel at the American Society of Law, Ethics & Medicine Conference in 2008 that discussed the use of literary materials in law school to teach medical ethics (and related matters) in a law school setting. Each author comes at the topic from a different perspective based on his or her own experience and background. This Article and the panel on which it was based reflect views on how literature can play a valuable role in helping law students, as well as medical students, understand important legal and ethical issues and concepts in …

Dispute Resolution And The Quest For Justice, Jean R. Sternlight

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During and since the 1976 Pound conference, the rise of nonlitigation approaches has sparked an intense debate as to whether negotiation, mediation, and arbitration are consistent with justice or rule of law, and whether litigation itself is sufficiently accessible to support a quest for justice. This article offers observations on questions related to this debate, including whether procedure matters, the limits of procedural reform, whether some processes are more just than others, and how procedural reforms enhance justice.

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

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This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Toward Fundamental Change For The Protection Of Low-Wage Workers: The “Workers’ Rights Are Human Rights" Debate In The Obama Era, Ruben J. Garcia

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In order to avoid the pendulum swings of politics, advocates must argue for more fundamental norms for the protection of labor rights. Statutory protections, while important, will not provide long-lasting change toward establishing workers' rights as fundamental under constitutional and international law principles. Workers' rights must be seen as fundamental to the functioning of a democratic society, rather than as the special interest agenda of unions or plaintiffs' attorneys. This can be done through more advocacy for a minimum set of workers' rights as human rights, including the right to organize labor unions and the right to be free from …

"Who's The Man?": Masculinities Studies, Terry Stops, And Police Training, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper examines how masculinity contests specifically, and masculinities studies generally, affect policing. He reviews the hegemonic masculinities school of thought and identifies the following background principles of the hegemonic pattern of masculinities in the United States: (1) men's concern with the opinions of other men; (2) anxiety over whether one has proved one's manhood; (3) a competitiveness reflected in a need to dominate other men and a general aggressiveness; and (4) a denigration of contrast figures reflected in a repudiation of femininity and homosexuality as well as subordination of racial minorities. Then he identifies …

Teaching Freedom: Exclusionary Rights Of Student Groups, Joan W. Howarth

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Progressive, anti-subordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions' nondiscrimination policies. The leading cases addressing the conflicts between nondiscrimination policies and exclusionary student groups are polarized and distorted by their culture war context. That context tainted the leading authority, Boy Scouts of America v. Dale, and is especially salient in the student expressive association cases, many of which are being aggressively litigated by religious groups with strong anti-homosexuality goals. The strength of these First Amendment claims can be difficult to recognize …

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

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This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. The author examines the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. The author contends that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that …

The Corporate Lawyer's Role In A Contemporary Democracy, Colin Marks, Nancy B. Rapoport

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This paper reviews the traditional arguments for corporate social responsibility and asks the question of what corporate lawyers should do to help their clients do the right thing ethically. It also sets out a test - the technically test -- that highlights when something is usually on the wrong side of the ethical line. (If you have to give legal advice starting with "Well, technically...," you're on the wrong side of the line.)

Neuroscience And Health Law: An Integrative Approach?, Stacey A. Tovino

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Neuroscience is one of the fastest growing scientific fields in terms of the numbers of scientists and the knowledge being gained. In recent years, both the scope of neuroscience and the methodologies employed by nueroscientists have broadly expanded, from biochemical and genetic analysis of individal nerve cells and their molecular constituents, to the recent neuroscientific achievement in the ability of neuroimaging technoloiges, including funtional magnetic resonance imaging (fMRI), to image brain function. Clinicans and scientists use fMRI not only to map sensory, motor, and cognitive function, but also to study the neural correlates of a range of physical and mental …

Faithful Hermeneutics, Francis J. Mootz Iii

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This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious …

The Fair Housing Act At Forty: Predatory Lending And The City As Plaintiff, Ngai Pindell

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The availability of credit, to individual borrowers and to communities, is an integral factor shaping the geography of housing opportunity. Cities are shaped by the housing and borrowing choices of their residents and the attendant mobility -- or lack of mobility -- of families. When lenders deny credit to neighborhoods or borrowers because of race, communities suffer. And when lenders flood these same neighborhoods with subprime or predatory loan products, the communities suffer once again. The economic gains of individuals and of communities in cities over the last several decades are threatened by massive property devaluations, loss of equity, and …

Home Sweet Home? The Efficacy Of Rental Restrictions To Promote Neighborhood Stability, Ngai Pindell

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Homeownership is an enduring and fundamental American tradition whose economic and social benefits are well examined and have received renewed attention in recent articles and books. Tax laws encourage homeownership; debtor-creditor and property laws protect homeowners; and constitutional protections defend homeowners from governmental attempts to exercise eminent domain.

The current economic and housing crises have forced commentators and policymakers to reexamine the connection between traditional conceptions of homeownership and economic stability, particularly for low-income residents. This article questions that traditional conception by exploring how local governments, in an effort to promote regulatory land use goals, frequently limit homeowners' power to …

Faith And Politics In The Post-Secular Age: The Promise Of President Obama, Francis J. Mootz Iii

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If the modern era is properly characterized as the 'age of secularism' - a time when constitutional democracies finally have shed the last vestiges of church authority from the political realm and embrace a rationalist and humanist perspective - then the United States appears to be outside the Western mainstream. In this paper I explore how the relationship between politics and religious faith in the United States might be seen as part of the narrative of secularism that defines most other Western countries, even as the differences in the American experience might suggest an evolution of this narrative. My thesis …

Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii

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Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as ‘‘given’’ even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because …

Saving Private Ryan's Tax Refund, Francine J. Lipman

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No abstract provided.

The "Other" Intermediaries: The Increasingly Anachronistic Immunity Of Managing General Agents And Independent Claims Adjusters, Jeffrey W. Stempel

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This article addresses the "other" intermediaries involved in the administration of insurance policies, specifically "downstream" intermediaries, who are engaged in the administration of insurance claims. The focus is on managing general agents, third-party administrators and independent contractor claims adjusters, who perform the nuts-and-bolts tasks of the insurance industry, and are generally less well compensated than commercial insurance brokers. Since these "other" intermediaries are immune from judicial claims by policyholders, they are also less incentivized to perform their duties well. The article argues that, in order to improve the claims process, the "other" intermediaries should be held accountable for their misconduct, …

Race And Essentialism In Gloria Steinem, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper reflects on Angela Harris's essay Race and Essentialism in Feminist Legal Theory.. Harris is one of the foremost law professors in the country. She has co-written or coedited several important critical race theory and feminist theory casebooks as well as a casebook for a first-year course. This particular essay is one of the most cited critical race theory pieces ever, having been referred to in at least 796 articles. Professor Cooper joins a group of distinguished peers, describing the power Harris' work has on them now and when they were developing scholars.

Our First Unisex President?: Black Masculinity And Obama's Feminine Side, Frank Rudy Cooper

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People often talk about the significance of Barack Obama's status as our first black President. During the 2008 Presidential campaign, however, a newspaper columnist declared, "If Bill Clinton was once considered America's first black president, Obama may one day be viewed as our first woman president." That statement epitomized a large media discourse on Obama's femininity. In this essay, Professor Frank Rudy Cooper thus asks how Obama will influence people's understandings of the implications of both race and gender.

To do so, he explicates and applies insights from the fields of identity performance theory, critical race theory, and masculinities studies. …

Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble

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In surveying recent literature on difficulties with cross-border injunctions in patent cases, one may conclude that the problem appears to be limited to the phenomenon of pan-European injunctions granted by some courts in Europe in cases concerning infringements of foreign patents. However, even in cases concerning domestic patents, injunctions reaching beyond national borders can be issued; the empirical evidence presented in the paper demonstrates a variety of such instances in U.S. patent cases. Certainly the existence of such injunctions in the U.S. raises concerns about their enforceability in other countries, particularly when they are issued against a foreign entity that …

Lessons From Enron - And Why We Don't Learn From Them, Nancy B. Rapoport

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This article discusses why even the smartest of people can make boneheaded decisions, and it suggests that the only way to avoid future Enrons is to take into account the cognitive mistakes that humans tend to make.

The Real Reason Why Businesses Make Bad Decisions, Nancy B. Rapoport

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This book review examines Professor Jonathan Macey's latest book on corporate governance, and it uses Professor Macey's analysis to explain the latest rash of corporate scandals.

Swimming With Shark, Nancy B. Rapoport

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In this essay, Nancy Rapoport discusses how Sebastian Stark (played by James Woods) seduces the lawyers on his legal team into ignoring legal ethics in favor of Stark's own version of ethics. Stark -- a criminal defense lawyer who becomes a deputy district attorney -- bends the ethics rules past the breaking point in order to put bad guys behind bars. His team of lawyers knows right from wrong but follows Stark's lead in breaking the rules anyway.

Hillary Clinton, Sarah Palin, And Michelle Obama: Performing Gender, Race, And Class On The Campaign Trail, Ann C. Mcginley

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The 2008 Presidential campaign highlighted three strong, interesting, and very different women -- Hillary Clinton, Sarah Palin, and Michelle Obama -- who negotiated identity performances in the political limelight. Because of their diverse backgrounds, experience, and ages, an examination of how these three women performed their identities and the public response to them offers a rich understanding of the changing nature of gender, gender roles, age, sexuality and race in our culture. This essay suggests that optimism that Obama's race and gender performances may have removed the stigma from "the feminine" may be misplaced, at least when it comes to …

Reproducing Gender On Law School Faculties, Ann C. Mcginley

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This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses. More than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not …