Law Commons^™

Democracy And Dispute Resolution: Systems Design And The New Workplace, Richard C. Reuben

Faculty Publications

There has been growing discussion in law reviews and business journals about the so-called new workplace, which is distinguished from the old, in part, by greater employee mobility and job flexibility. This article extends that discussion by exploring the implications of the new workplace for the design of dispute resolution systems. In particular, it argues that the structure and values of the new workplace correspond to the essential values of democratic governance, and that dispute resolution should be integrated into the new workplace in a way that enhances rather than diminishes these core democratic values. As I have articulated in …

Ethical And Legal Standards In Social Work, Frederic G. Reamer

Faculty Publications

Social workers frequently encounter circumstances involving ethical and legal issues. In many instances, relevant ethical and legal standards complement each other; however, in some circumstances, ethical and legal standards conflict. This article provides a comprehensive overview of the relationship between U.S. ethical and legal standards in social work. The author presents a conceptually based typology of 4 types of relationships between legal and ethical standards. Case examples are included. The author concludes with a decision-making framework designed to enhance social workers' constructive management of difficult decisions involving ethical and legal standards.

The Liberal State's Response To Religious Visions Of Education, James G. Dwyer

Faculty Publications

No abstract provided.

Should Liability Play A Role In The Social Control Of Biobanks?, Larry I. Palmer

Faculty Publications

No abstract provided.

Moderating Politics In Post-Conflict States: An Examination Of Bosnia And Herzegovina, Angela M. Banks

Faculty Publications

The individuals who negotiated the peace agreement that ended the war in Bosnia and Herzegovina considered ethnicity to be the most salient division within Bosnian society. Consequently they organized Bosnia's political structure around ethnic representation. While it is doubtful that peace in Bosnia would have been possible without guarantees for ethnic-based political representation, such guarantees have proven insufficient for building a functioning, stable, and cohesive state. This article analyzes the role that Bosnia's political framework, which focuses exclusively on ethnic representation, has played in impeding the development of a significant cadre of moderate political actors and in hindering the success …

The Limited Path Dependency Of Precedent, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Federal Government Lawyer's Duty To Breach Confidentiality, James E. Moliterno

Faculty Publications

The lawyer's duty of confidentiality springs from the lawyer-client relationship and its parameters are determined by the nature of that relationship. The federal government lawyer's client is like no other. The uniqueness of representing the United States calls for a unique approach to the duty of confidentiality. Unlike the private individual client, the government as a client does not speak with a single, unmistakable voice. Unlike the private entity client, the federal government has a paramount interest in the public good, including the public's right to know about government (the entity's conduct), especially its misconduct. The result is a client …

The Invisible Pillar Of Gideon, Adam M. Gershowitz

Faculty Publications

In 1996, the State of South Carolina charged Larry McVay with common-law robbery. McVay, who was employed part-time and took home less than $160 per week after taxes, claimed that after paying his basic living expenses he had no money left with which to hire an attorney. A South Carolina court disagreed and denied McVay’s request for appointed counsel. Seven years later, Scott Peterson was arrested for the murder of his wife and unborn child in California. Although Peterson owned a home, drove an expensive SUV, and was carrying $10,000 in cash when he was captured, he claimed to be …

Policymaking By The Administrative Judiciary, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Faculty Publications

No abstract provided.

Policymaking By The Administrative Judiciary, Charles H. Koch Jr.

Faculty Publications

No abstract provided.

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

The Failure Of The Federal Sentencing System: A Structural Analysis, Frank O. Bowman Iii

Faculty Publications

For most of the last decade, I numbered myself among the supporters of the Federal Sentencing Guidelines and wrote extensively in their defense, while chronicling their defects. In the past year, I have reluctantly concluded that the federal sentencing guidelines system has failed. This Article explains the Guidelines' failure. The Sentencing Reform Act was intended to distribute the power to make sentencing policy and rules and to control individual sentencing outcomes among a range of national and local actors - the U.S. Sentencing Commission, Congress, the federal appellate courts, and the Department of Justice at the national level, and district …

Core Principles For Effective Banking Supervision: An Enforceable International Financial Standard?, Duncan E. Alford

Faculty Publications

The Basel Committee on Banking Supervision serves as an international forum to discuss international bank supervision issues. Because of the gravity and frequency of banking crises since the demise of the Bretton Woods System in the early 1970s, international financial standards have emerged as a method to minimize these crises. In 1998, the Basel Committee issued a comprehensive standard on bank super vision that built upon its work over the previous two and a half decades. In this Article, the author analyzes this comprehensive standard the Core Principles for Effective Banking Supervision-and assesses its implementation in the European Union, the …

Reopening The Emmett Till Case: Lessons And Challenges For Critical Race Practice, Margaret M. Russell

Faculty Publications

As part of the symposium panel on "Re- Trying Racial Injustices," I devote this Essay to an expansion of themes addressed in my earlier work on the reopening of civil rights era prosecutions. I draw upon this work, as well as upon the insights of my co-panelists Anthony Alfieri and Sherrilyn Ifill, to examine the reopening of the Emmett Till case and its critical race practice possibilities.

In this Essay, I consider other aspects of these "cleansing moments." Are they illusory? Do they provide a misleading sense of closure at the expense of the ongoing hard work of racial justice …

Universal Service: Problems, Solutions, And Responsive Policies, Allen S. Hammond Iv

Faculty Publications

Affordable access to telecommunications networks is extremely important to all Americans. The federal universal service policy is critical to ensuring affordable access for low income Americans and those living in rural and high cost areas, and on tribal lands. Consequently the nation’s commitment to preserving universal service has been longstanding and continues to this day.

While reform of the telecommunications universal service policy is clearly warranted, ignoring the impact of IP-enabled intermodal competition is counterproductive. In an era of IP-enabled convergence, ultimately, proposals and policies that solely focus on one technology platform will be less successful. Too often they will …

Immigration And The Allure Of Inclusion, Ediberto Román

Faculty Publications

Essentially, all immigrant stories concern labels and their consequences, including the fiction of the legal and illegal "alien. ' These labels in turn are created by immigration regimes that have the effect of establishing identities of both welcomed and unwelcome newcomers into a society. These fictions or labels occur within what can be described as the legal fiction of the nation-state. In many respects, all immigrant debates and accounts are tales of inclusion and membership within legal frameworks that decide which groups of people are deemed worthy of eventual formal membership within a political structure. Indeed, the label of "alien" …

Cheers, Profanity, And Free Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

Sending The Right Signals: Using Rent-Seeking Theory To Analyze The Cuban Central Bank, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Tort, Race, And The Value Of Injury, 1900-1949, Jennifer Wriggins

Faculty Publications

The Article begins a systematic examination of race and torts. Despite the barriers posed by racist exclusionary structures and violence, many African-Americans sued for and received compensation for personal injuries in the first half of the twentieth century, winning verdicts and appellate decisions in all regions. However, the fact that black plaintiffs sometimes won does not mean that they were treated equally with whites. Examples from all stages of the litigation process demonstrate that race and racism have been significant in devaluing injuries to black plaintiffs. The process of racial categorization was a significant mechanism in devaluing black plaintiffs’ claims. …

The Federal Arbitration Act: Federal Preemption Of State Law Regulating Arbitration, W. Mark C. Weidemaier

Faculty Publications

No abstract provided.

Who Judges The Judges?, John V. Orth

Faculty Publications

No abstract provided.

Nourishing Justice And The Continuum: Implementing A Blended Model In An Immigration Law Clinic, Irene Scharf

Faculty Publications

The purpose of this Article is to describe how the new Immigration Law Clinic at Southern New England School of Law has combined attention to the School's mission of educating students and expanding justice by serving the community with the broader goal of addressing the continuing educational needs of recent law school graduates. The Clinic not only offers direct legal services to clients but also trains and mentors recently graduated local attorneys, who offer both pro bono client representation as well as student supervision. Through the Immigration Law Clinic, these attorneys are trained in both immigration law and clinical supervision. …

The Story Of Ymps (“Yield Maintenance Premiums”) In Bankruptcy, Michael G. Hillinger, Ingrid Michelsen Hillinger

Faculty Publications

This article tries to tell the story of YMPs in bankruptcy. It is not an easy story to tell. It has so many subplots: the court’s position on freedom of contract, the debtor’s solvency or insolvency, the effect of recognizing the YMP on other creditors, whether the YMP claim arose pre- or post-petition, the proper relationship between section 502 claim allowance and section 506(b) which permits oversecured claims to include reasonable fees, costs, or charges as provided for in the loan agreement, and the effect of YMP enforcement on chapter 11 plan configuration.

In terms of basic plot line though, …

Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford

Faculty Publications

This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and …

Mobile Home Mania? Protecting Procedurally Fair Arbitration In A Consumer Microcosm, Amy J. Schmitz

Faculty Publications

Consumers' lack of warranty remedies prompted Congress to enact the 2000 Manufactured Housing Improvement Act (MHIA). Under the Act, the Office of Housing and Urban Development (HUD) must develop a program for resolving MH warranty disputes by the end of 2005. This article provides input regarding that program. It also calls for broader protection of procedural fairness in arbitration of disputes regarding warranties for mobile or manufactured homes (referred to in the article as MHs for ease of reference). Although HUD's program aims to create a process for resolving warranty disputes among manufacturers, dealers and installers, this article proposes that …

Faith-Based Miranda: Why The New Missouri V. Seibert Police Bad Faith Test Is A Terrible Idea, Joelle A. Moreno

Faculty Publications

No abstract provided.

Correcting The Empirical Foundations Of Ipo-Pricing Regulation, Royce De R. Barondes

Faculty Publications

Recent events are replete with stories of fraudulent or opportunistic behavior in the initial public offering (IPO) process - behavior that extended to the highest-reputation investment banks. Curiously, notwithstanding this evidence, recent financial economics literature asserts investment bank conflicts of interest certify IPO issuers. This Article develops new empirical evidence that casts doubt on this certification hypothesis by examining the pre-IPO price adjustment of IPOs involving qualified independent underwriters (QIUs), particularly IPOs in which more than ten percent of the net proceeds are being directed to participating investment banks (e.g., to repay a prior extension of credit). These offerings have …

Beyond Bandaids: A Proposal For Reconfiguring Federal Sentencing After Booker, Frank O. Bowman Iii

Faculty Publications

This Article proposes a simplified sentencing table consisting of nine base sentencing ranges, each subdivided into three sub-ranges. The base sentencing range would be determined by combining offense facts found by a jury or admitted in a plea with the defendant's criminal history. A defendant's placement in the sub-ranges would be determined by post-conviction judicial findings of sentencing factors. No upward departures from the base sentencing range would be permissible, but defendants might be sentenced below the low end of the base sentencing range as a result of an acceptance of responsibility credit or due to a downward departure motion. …

The Supreme Court And The Dig: An Empirical And Institutional Analysis With Michael E. Solimine, Rafael Gely, Michael E. Solimine

Faculty Publications

Almost all cases reach the docket of the United States Supreme Court through the discretionary writ of certiorari. In the normal course of events, the vast majority of petitions for a writ are denied. For those few petitions that are granted, the case is then briefed, orally argued, and decided on the merits. However, in a small number of cases the normal course is diverted, and the Court changes its mind by dismissing the writ of certiorari as improvidently granted. This action is usually referred to by the pithy acronym “DIG,” a convention we will use as well. Few cases …