Law Commons^™

Responsibility For Regime Change, Jay Butler

Faculty Publications

What obligations does a state have after it forcibly overthrows the regime of another state or territory? The Hague Regulations and the Fourth Geneva Convention provide some answers, but their prohibition on interfering with the governing structure of the targeted territory is outmoded. Based on a careful examination of subsequent practice of the parties to the conventions, this Article asserts a new interpretation of these treaties and argues that regime changers are now under positive obligations in the postwar period and beyond.

Through their conduct and evaluation of modern regime-change missions, states, both individually and acting collectively through international organizations, …

Finding A Fix For The Fmla: A New Perspective, A New Solution, Nicole B. Porter

Faculty Publications

When the Family and Medical Leave Act ("FMLA") was enacted in 1993, it was considered landmark legislation.... Yet, despite the promise of the FMLA, by almost all accounts it has not achieved much.... Over the years, scholars have proposed many solutions to improve the FMLA.

[...]

In this article, I am taking a different perspective and proposing a reform that I have not seen proposed before. Of all of the problems with the FMLA, the one that gets the least attention is the frequency with which employees abuse their rights under the FMLA and the difficulty employers have administering the …

Disability, Development, And Human Rights: A Mandate And Framework For International Financial Institutions, Michael Ashley Stein, Penelope J. S. Stein

Faculty Publications

No abstract provided.

Women, Unions, And Negotiation, Nicole B. Porter

Faculty Publications

In a period when union membership is at an all-time low (at least in the private sector), some (or perhaps many) people have given up hope that the labor movement can be revived. I believe that the labor movement still has the potential to be successful but needs to be re-imagined and reinvigorated. One way (among many) of doing this is to increase women's attachment to the labor movement. Now that women comprise nearly 47 percent of the workforce, it makes sense to have a concentrated effort to increase their union participation.

Not only will more women in unions increase …

In Sight, It Must Be Right: Judicial Review Of Va Decisions For Reasons And Bases Vs. Clear Error, David E. Boelzner

Faculty Publications

No abstract provided.

From "War On Poverty" To Pro Bono: Access To Justice Remains Elusive For Too Many, Including Our Veterans, Patricia E. Roberts

Faculty Publications

Fifty years ago, President Lyndon B. Johnson launched the War on Poverty. The Legal Services Program of 1965, along with the Legal Services Corporation formed in 1974, considerably increased civil legal aid to America’s poor. Yet today, there is only one legal aid attorney for every 6,415 people living in poverty. Veterans, comprising 4.6%of those living in poverty, often suffer additional obstacles and extensive legal needs, including assistance in obtaining benefits to which they are entitled. While encouraging additional pro bono service among attorneys incrementally increases the availability of legal services to the poor, law school clinics across the country …

Choices, Bias, And The Value Of The Paycheck Fairness Act: A Response Essay, Nicole B. Porter

Faculty Publications

In the previous article written by Gary Siniscalco, Lauri Damrell, and Clara Morain Nabity [The Pay Gap, the Glass Ceiling, and Pay Bias: Moving Forward Fifty Years After the Equal Pay Act], the authors argue that the pay gap is not primarily caused by employer discrimination, but rather can be attributed to many factors, including the "glass ceiling" and choices made by women regarding occupation, caregiving, and commitment to the workforce. Thus, they argue that we should not place blame on employers and focus on the reach of anti-discrimination laws, and should instead acknowledge that there is a …

Congress's (Limited) Power To Represent Itself In Court, Tara Leigh Grove, Neal Devins

Faculty Publications

Scholars and jurists have long assumed that, when the executive branch declines to defend a federal statute, Congress may intervene in federal court to defend the law. When invalidating the Defense of Marriage Act, for example, no Supreme Court Justice challenged the authority of the House of Representatives to defend federal laws in at least some circumstances. At the same time, in recent litigation over the Fast and Furious gun-running case, the Department of Justice asserted that the House could not go to court to enforce a subpoena against the executive. In this Article, we seek to challenge both claims. …

Property, Exclusivity, And Jurisdiction, James Y. Stern

Faculty Publications

No abstract provided.

The Legacy Of Stop And Frisk: Addressing The Vestiges Of A Violent Police Culture, Kami Chavis Simmons

Faculty Publications

For many years, the New York City Police Department ("NYPD") has engaged in a practice known as "Stop and Frisk." This policy allows officers, based on reasonable suspicion that criminal activity is afoot, to engage in investigatory stops and to conduct a pat down of the outer clothing of the individual if there is reasonable suspicion that the suspect is armed.

While there is an abundance of analysis regarding the detrimental impact of the stop-and-frisk policy, particularly the allegations of racial discrimination, an under examined facet of this policy and its implementation is the inherently violent nature of these encounters. …

Caregiver Conundrum Redux: The Entrenchment Of Structural Norms, Nicole B. Porter

Faculty Publications

Scholars and feminists (and feminist scholars) have been debating ways to ameliorate the work-family conflict for several decades. For some of us writing in this area, it seems as if the debate is endless and ineradicable. Unfortunately, this Article does not end the debate with some brilliant solution. Instead, I attempt to explain why the "caregiver conundrum" is so unwieldy and unyielding. The reason, I argue, is because of the entrenchment of structural norms in the workplace. By structural norms, I am referring to employers' rules and practices regarding hours, shifts, schedules, attendance, leaves of absence, etc.--basically, when and where …

The New Ada Backlash, Nicole B. Porter

Faculty Publications

[T]his paper explores whether courts are using the reasonable accommodation provision or the qualified individual inquiry to limit the number of individuals entitled to the special protection of the ADA...

This paper will proceed in five parts. Part II provides a brief history of the ADA, both of its structure and legislative history. It then proceeds to a discussion of the major Supreme Court cases that dramatically narrowed the coverage of the ADA through a narrow interpretation of what it means to be an individual with a disability. I will also discuss why courts may have narrowly construed the statute. …

The Coming Crisis In Law Enforcement And How Federal Intervention Could Promote Police Accountability In A Post-Ferguson United States, Kami Chavis Simmons

Faculty Publications

The proliferation of aggressive, and sometimes militarized, police tactics represents the "coming crisis" in law enforcement, although many residents of [inner city] communities might argue that the crisis arrived long ago. Even more disturbing is that these heavy-handed police strategies are employed almost exclusively against racial and ethnic minorities.

This Essay argues that in order to alleviate racial bias in policing and gain the trust and legitimacy of police officers in racially and ethnically diverse communities, local police departments must not only ensure that they are hiring police officers capable of implementing community policing, but must also focus on institutional …

The Democratic Life Of The Union: Toward Equal Voting Participation For Europeans With Disabilities, János Fiala-Butora, Michael Ashley Stein, Janet E. Lord

Faculty Publications

This Article puts forward preliminary legal scholarship on equal political participation by persons with disabilities and what international human rights law requires for its attainment. The goal is to provoke an informed dialogue on the neglected but fundamental human right to enfranchisement by persons with disabilities while also acknowledging that a complete and just resolution requires further information and reflection.

The Article argues that the fundamental right to vote cannot be curtailed on the basis of an alleged lack of capacity. Disenfranchisement based on individual assessment unjustly excludes a certain number of voting-capable individuals. Since all those affected are persons …

Jailing Black Babies, James G. Dwyer

Faculty Publications

No abstract provided.

Robert Bork's Forgotten Role In The Transaction Cost Revolution, Alan J. Meese

Faculty Publications

The last few decades have witnessed a scientific revolution in the field of industrial organization in the form of transaction cost economics (TCE). This revolution has radically altered economists’ understanding and interpretation of both partial and complete economic integration. Not surprisingly, this sea change has substantially influenced antitrust law and policy, impelling the Supreme Court to reverse or greatly modify various precedents.

This essay supplements the received historiography of the TCE revolution. It contends that Robert Bork played a hitherto underappreciated role in that revolution. In particular, the essay contends that in 1966, before the official onset of the transaction …

Supporting And Promoting Scholarly Life In Turbulent Times, A. Benjamin Spencer

Faculty Publications

One of the most important contributions a law school can make is to the development of the law through scholarly research. As one of the three pillars of being an academic-the other two being teaching and service-producing legal scholarship in one's respective area of expertise is an enterprise that nearly all law schools would like to support. However, during these challenging times for legal education arising from enrollment declines and the resultant adverse budgetary impacts, fully supporting legal scholarship can be particularly challenging. Having served as Associate Dean for Research I at Washington & Lee University School of Law ("W …

Measuring Circuit Splits: A Cautionary Note, Aaron-Andrew P. Bruhl

Faculty Publications

A number of researchers have recently published new measures of the Supreme Court’s behavior in resolving conflicts in the lower courts. These new measures represent an improvement over prior, cruder approaches, but it turns out that measuring the Court’s resolutions of conflicts is surprisingly difficult. The aim of this methodological comment is to describe those difficulties and to establish several conclusions that follow from them. First, the new measures of the Court’s behavior are certainly imprecise and may reflect biased samples. Second, using the Supreme Court Database, which some studies rely on to assemble a dataset of cases resolving conflicts, …

Magna Carta, Civil Law, And Canon Law, Thomas J. Mcsweeney

Faculty Publications

No abstract provided.

Sovereignty, Territoriality, And The Enforcement Of Foreign Judgments, George Rutherglen, James Y. Stern

Faculty Publications

No abstract provided.

A Theory Of Civil Liability, Nathan B. Oman

Faculty Publications

No abstract provided.

A Defining Moment: A Review Of Disability & Equity At Work, Why Achieving Positive Employment Outcomes For Individuals With Disabilities Requires A Universal Definition Of Disability, Nicole B. Porter

Faculty Publications

This book, Disability & Equity at Work, describes its goal as "to discuss factors contributing to disabled persons' inequality at work and to offer proposals for leveling this uneven playing field." The book is an interdisciplinary, international review of the laws, policies, initiatives, and studies regarding the employment situation of individuals with disabilities. It is a compilation of fifteen different chapters by different authors, which cover a wide variety of subject matters. Some chapters focus on low- and middle-income countries, where individuals with disabilities often have low employment and high poverty rates. And some chapters focus on problems that …

The Year Of Magical Thinking: Fraud, Loss, And Grief, Jayne W. Barnard

Faculty Publications

In The Year of Magical Thinking, her wrenching memoir of the year following the death of her husband John Gregory Dunne, Joan Didion describes the episodes of magical thinking that forestalled her acceptance of Dunne's sudden absence from her life. In the hours after his death, she charged his cell phone. Weeks later, she gave his clothes to charity but kept his shoes because, she thought, "He would need shoes if he were to return."

Modern grief theory tells us that episodes like these are common during the months following a loved one's death, particularly when the death, like …