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Full-Text Articles in Law

Officiating Removal, Leah Litman Dec 2015

Officiating Removal, Leah Litman

Articles

For the last several years, the Commonwealth of Pennsylvania has quietly attempted to curtail capital defendants' representation in state postconviction proceedings. In 2011, various justices on the Pennsylvania Supreme Court began to call for federally funded community defender organizations to stop representing capital defendants in state postconviction proceedings. The justices argued, among other things, that the organizations' representation of capital defendants constituted impermissible federal interference with state governmental processes and burdened state judicial resources. The court also alleged the community defender organizations were in violation of federal statutes, which only authorized the organizations to assist state prisoners in federal, but …


Measuring The Impact Of Plausibility Pleading, Alexander A. Reinert Dec 2015

Measuring The Impact Of Plausibility Pleading, Alexander A. Reinert

Articles

Ashcroft v. Iqbal and its predecessor, Bell Atlantic Corp. v. Twombly, introduced a change to federal pleading standards that had remained essentially static for five decades. Both decisions have occupied the attention of academics, jurists, and practitioners since their announcement. Iqbal alone has, as of this writing, been cited by more than 95,000 judicial opinions, more than 1,400 law review articles, and innumerable briefs and motions. Many scholars have criticized Iqbal and Twombly for altering the meaning of the Federal Rules of Civil Procedure outside the traditional procedures contemplated by the Rules Enabling Act. Almost all commentators agree that …


Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association Dec 2015

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

Articles

These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …


What The Marriage Equality Cases Tell Us About Voter Id, Ellen D. Katz Nov 2015

What The Marriage Equality Cases Tell Us About Voter Id, Ellen D. Katz

Articles

Two years ago, United States u. Windsor tossed out the Defense of Marriage Act ("DOMA"). Thereafter, proponents of marriage equality secured dozens of notable victories in the lower courts, a smattering of setbacks, and last June, the victory they sought in Obergefell v. Hodges. During this same period, opponents of electoral restrictions such as voter identification have seen far less sustained success. Decided the day before Windsor, Shelby County v. Holder scrapped a key provision of the Voting Rights Act ("VRA") while making clear that plaintiffs might still challenge disputed voting regulations under Section 2 of the VRA and the …


Trends In Prisoner Litigation, As The Plra Enters Adulthood, Margo Schlanger Apr 2015

Trends In Prisoner Litigation, As The Plra Enters Adulthood, Margo Schlanger

Articles

The Prison Litigation Reform Act (PLRA), enacted in 1996 as part of the Newt Gingrich "Contract with America," is now as old as some prisoners. In the year after the statute's passage, some commenters labeled it merely "symbolic." In fact, as was evident nearly immediately, the PLRA undermined prisoners' ability to bring, settle, and win lawsuits. The PLRA conditioned court access on prisoners' meticulously correct prior use of onerous and error-inviting prison grievance procedures. It increased filing fees, decreased attorneys' fees, and limited damages. It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions. It made …


Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger Apr 2015

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

Articles

This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …


The Constitution, Desegregation, And Public Opinion: Swan V. Charlotte-Mechlenburg Board Of Education, James L. Hunt Jan 2015

The Constitution, Desegregation, And Public Opinion: Swan V. Charlotte-Mechlenburg Board Of Education, James L. Hunt

Articles

The first three words of the preamble to the Constitution are "We the People." Yet the vast majority of constitutional scholarship is limited to the opinions of judges, lawyers, law professors, and other political and economic elites. This article takes a different approach to constitutional understanding. It describes the legal thoughts of the citizens for whom the Constitution exists. It does so through an analysis of the public's reaction to the federal court decisions in Swann v. Charlotte-Mecklenburg Board of Education, a desegregation case. The lead attorney for the Swann plaintiffs was Julius LeVonne Chambers, an alumnus and future …


Foreword Snx 2014: Challenges To Justice Education: South-North Perspectives, Sheila I. Velez Martinez Jan 2015

Foreword Snx 2014: Challenges To Justice Education: South-North Perspectives, Sheila I. Velez Martinez

Articles

“Towards an Education for Justice: South North Perspectives” was the theme of the XI LatCrit South North Exchange on Theory, Culture and Law, convened at the Universidad de los Andes in Bogotá, Colombia in 2014. Scholars, students and activists from more than 10 countries encompassing the Global South and Global North engaged in a critical and animated exchange on the changing space of legal studies and how this change can be stirred towards acknowledging the need to integrate a concern for justice as part of legal education. The premise of the Conference was that the dominant model of legal education, …


The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos Jan 2015

The Ada And The Supreme Court: A Mixed Record, Samuel R. Bagenstos

Articles

According to conventional wisdom, the Supreme Court has resisted the Americans with Disabilities Act (ADA) at every turn. The Court, the story goes, has read the statute extremely narrowly and, as a result, stripped away key protections that Congress intended to provide. Its departure from congressional intent, indeed, was so extreme that Congress passed a statute that overturned several key decisions and codified broad statutory protections. That statute, the ADA Amendments Act of 2008 (ADAAA). passed with widespread bipartisan support, and President George W. Bush signed it into law. The conventional wisdom leaves out a major part of the story. …


Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia Narine Jan 2015

Fifty Years After The Passage Of Title Vii: Is It Time For The Government To Use The Bully Pulpit To Enact A Status-Blind Harassment Statute, Marcia Narine

Articles

No abstract provided.


On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake Jan 2015

On Not 'Having It Both Ways' And Still Losing: Reflections On Fifty Years Of Pregnancy Litigation Under Title Vii, Deborah L. Brake

Articles

This article, published in the B.U. Law Review Symposium issue, “The Civil Rights Act of 1964 at 50: Past, Present and Future,” reflects on the past fifty years of conflict and struggle over how to treat pregnancy discrimination under Title VII. Pregnancy has played a pivotal role in debates among feminist legal scholars and women’s rights advocates about the limitations of both the equal treatment and special treatment anti-discrimination frameworks. The article’s title references the much-discussed Wendy W. Williams cautionary note that if we cannot have it “both ways” we need to decide which way we want to have it …


Normalizing Disability In Families, Mary Crossley Jan 2015

Normalizing Disability In Families, Mary Crossley

Articles

In “Selection against Disability: Abortion, ART, and Access,” Alicia Ouellette probes a particularly vexing point of intersection between ART (assisted reproductive technology) and abortion: how negative assumptions about the capacities of disabled persons and the value of life with disability infect both prospective parents’ prenatal decisions about what pregnancies to pursue and fertility doctors’ decisions about providing services to disabled adults. This commentary on Ouellette’s contribution to the symposium titled “Intersections in Reproduction: Perspectives on Abortion and Assisted Reproductive Technologies" first briefly describes Ouellette’s key points and her article’s most valuable contributions. It then suggests further expanding the frame of …


Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman Jan 2015

Bridging The Gap Between Unmet Legal Needs And An Oversupply Of Lawyers: Creating Neighborhood Law Offices - The Philadelphia Experiment, Jules Lobel, Matthew Chapman

Articles

In the United States there is, simultaneously, an abundance of unemployed lawyers and a significant unmet need for legal care among middle-class households. This unfortunate paradox is protected by ideological, cultural, and practical paradigms both inside the legal community and out. These paradigms include the legal chase for prestige, the consumer’s inability to recognize a legal need, and the growing mountain of debt new lawyers enter the profession with. This article will discuss a very successful National Lawyers Guild experiment from 1930s-era Philadelphia that addressed a similar situation, in a time with similar paradigms, by emphasizing community-connected lawyering. That is, …


Resistance Songs: Mobilizing The Law And Politics Of Community, Anthony V. Alfieri Jan 2015

Resistance Songs: Mobilizing The Law And Politics Of Community, Anthony V. Alfieri

Articles

No abstract provided.


Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit Jan 2015

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …


Disability Cultural Competence In The Medical Profession, Mary Crossley Jan 2015

Disability Cultural Competence In The Medical Profession, Mary Crossley

Articles

People with disabilities make up 19% of the U.S. population, and many of them are heavier consumers of health care than people without disabilities. Yet relatively few physicians – the persons responsible for providing medical care to this significant fraction of the patient population – have disabilities themselves, and the percentage of medical students with disabilities is even smaller. This Essay highlights how the relative rareness of doctors with disabilities may contribute to a generally low level of understanding within the medical profession of the social context of disability and how non-medical factors affect the health of people with disabilities. …


Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti Jan 2015

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

Articles

This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …