Law Commons^™

The Weiner-Rogers Law Library: An Invaluable Legal Resource, Jeanne Price

Scholarly Works

No abstract provided.

Book Review: "For The Common Good: Principles Of American Academic Freedom", David S. Tanenhaus

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No abstract provided.

Social Security Benefits Formula 101: A Practical Primer, Francine J. Lipman

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No abstract provided.

Saving Private Ryan's Tax Refund: Poverty Relief For All Working Poor Military Families, Francine J. Lipman

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No abstract provided.

Symposium, The Legal Writing Institute: Celebrating 25 Years Of Teaching And Scholarship, Terrill Pollman

Scholarly Works

This is the transcript of Mercer Law Review’s Symposium, The Legal Writing Institute: Celebrating 25 Years of Teaching & Scholarship. In this Symposium Linda Edwards, among other panelists, discussed the work that goes into producing scholarship.

Report And Recommendations On The Status Of Clinical Faculty In The Legal Academy, Katherine R. Kruse

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"Report and Recommendations on the Status of Clinical Faculty in the Legal Academy" identifies and evaluates the most appropriate modes for clinical faculty appointments in the legal academy, concluding that legal education is best served when full-time clinical faculty are appointed predominantly on a unitary tenure-track model. Drawing on data collected through a survey of clinical program directors and faculty, the Report analyzes the five most identifiable clinical faculty models: unitary tenure track; clinical tenure track; long-term contract; short-term contract; and clinical fellowships. It determines that, despite great strides in the growth of clinical legal education in the last 30 …

Book Review, Chad J. Schatzle

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Welfare's Forgotten Past: A Socio-Legal History of the Poor Law is a timely reminder of society's legal duty to the poor. In an era of global economic turmoil, with recent welfare reform and heated debates over the extension of unemployment benefits here in the United States, it is easy to forget that laws for the relief of poverty have roots reaching back more than 400 years. Author Lorie Charlesworth, Reader in Law and History at Liverpool John Moores University, focuses her book on the poor law-a historical, English system derived largely from the seventeenth-century laws of settlement and removal, which …

Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum

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This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it the author adapts some of his earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction.” The author makes two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, the author doubts the ultimate utility of the distinction as part of a “true and correct” model …

Refugee Credibility Assessment And The “Religious Imposter” Problem, Michael Kagan

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Credibility assessment in refugee status determination (RSD) poses unique challenges when the outcome of asylum applications turns on the question of whether an asylum seeker is actually a member of a persecuted religious minority. These cases require secular adjudicators to delve into matters of religious identity and faith that are, by their nature, subjective and beyond the realm of objective analysis. This Article explores practical means of addressing this challenge through a case study of the RSD interviews of Eritrean asylum seekers in Egypt who based their refugee claims on Pentecostal religious associations. Analysis of the interview methods used in …

Studying And Teaching “Law As Rhetoric”: A Place To Stand, Linda L. Berger

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This article proposes that law students may find a better fit within the legal culture of argument if they are introduced to rhetorical alternatives to counter narrowly formalist and realist perspectives on how the law works and how judges decide cases. To support this proposal, the article describes and evaluates an upper-level elective course in Law & Rhetoric, which I have offered at two law schools since 2003.

The article makes a two-part argument: first, introducing law students to rhetorical alternatives allows them to envision their role as lawyers as constructive, effective, and imaginative while grounded in law, language, and …

Symposium, The Legal Writing Institute: Celebrating 25 Years Of Teaching And Scholarship, Linda L. Berger

Scholarly Works

This is the transcript of Mercer Law Review’s Symposium, The Legal Writing Institute: Celebrating 25 Years of Teaching & Scholarship. In this Symposium Linda Edwards, among other panelists, discussed the work that goes into producing scholarship.

The Procedural Foundation Of Substantive Law, Thomas O. Main

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The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible-leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about …

A Tale Of Two Theories Of Well Known Marks, Leah Chan Grinvald

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The well-known marks doctrine presents a conundrum in international trademark law. Although protecting foreign well-known trademarks has been a treaty obligation since 1925, courts around the world, and in the United States and China in particular, do not uniformly apply the doctrine. This lack of uniform protection leads to the question of whether these countries are complying with their international obligations. While brand owners and some commentators would answer this question in the negative, this Article provides a different perspective. This Article offers an alternative approach to answering the compliance question: Before considering the question, one must examine the perspective …

Facilitating Wage Theft: How Court Use Procedural Rules To Undermine Substantive Rights Of Low-Wage Workers, Nantiya Ruan

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In race and sex discrimination class actions, if a defendant employer makes a Rule 68 offer of judgment to the named plaintiffs, courts routinely refuse to dismiss the class claims. In stark contrast, in collective actions for failure to pay lawful wages, if a defendant employer makes a Rule 68 offer of judgment, courts will often dismiss the entire collective action as having been mooted by the named plaintiffs’ recovery. The outcome of such a dichotomy is that low-wage workers are increasingly unable to challenge unlawful wage violations successfully because the aggregation mechanism is too easily defeated. Without an ability …

The Power Of Priming In Legal Advocacy: Using The Science Of First Impressions To Persuade The Reader, Kathryn M. Stanchi

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The contribution of this Article is the synthesis of legal advocacy and the psychological studies of priming. It shows advocates how priming can help them make better strategic decisions in their briefs and gives specific examples of different ways to use priming in persuasive writing. Part I defines the basic concept of priming and gives examples of different ways that priming works. Part II begins the application of the priming studies to law. The focus of Part II is on priming the reader's emotional response through theme and story. It also examines how emotions can impact decision making in unexpected …

Perelman's Theory Of Argumentation And Natural Law, Francis J. Mootz Iii

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Chaim Perelman resuscitated the rhetorical tradition by developing an elegant and detailed theory of argumentation. Rejecting the single-minded Cartesian focus on rational truth, Perelman recovered the ancient wisdom that we can argue reasonably about matters that admit only of probability. From this one would conclude that Perelman’s argumentation theory is inalterably opposed to natural law, and therefore that I would have done better to have written an article titled “Perelman’s Th eory of Argumentation as a Rejection of Natural Law.”

However, my thesis is precisely that Perelman’s theory of argumentation connects to the natural law tradition in interesting and productive …

Misclassifying The Insurance Policy: The Unforced Errors Of Unilateral Contract Characterization, Hazel G. Beh, Jeffrey W. Stempel

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Insurance policies are traditionally classified as unilateral or “reverse-unilateral” contracts, a characterization we find largely incorrect, with problematic consequences for adjudication of insurance coverage disputes. In addition to the general difficulties attending the unilateral classification, the concept as applied to insurance policies is not only unhelpful but incorrect. Insurance policies are more accurately viewed as bilateral contracts. In addition, the unilateral characterization of insurance policies introduces error and inconsistency into the litigation of insurance controversies. In particular, the unilateral view tends toward excessive formalism and focus on so-called “conditions” precedent to coverage, eschewing material breach analysis and encouraging needless forfeitures …

In Search Of The Reasonable Woman: Anti-Discrimination Rhetoric In The United States, Francis J. Mootz Iii

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This article emerged from my participation in a Symposium addressing global perspectives on the topic, "Anti-Discrimination Discourse and Practices," sponsored by The Jean Monnet Chair of European Law at Cagliari University, Sardinia. The article examines the rhetorical development of the "reasonable woman" standard of hostile work environment sexual harassment under Title VII. I argue that the rhetorical framing of the standard has unnecessarily limited its impact, perhaps to the point of undermining its potential to radically revise our understanding of gender discrimination. I suggest how the rhetorical power of the standard might be recovered.

Ugly American Hermeneutics, Francis J. Mootz Iii

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This article will appear in a Symposium on comparative legal hermeneutics that includes four articles by American scholars and four articles by Brazilian scholars. I argue that the "ugly American" hermeneutics exemplified in Justice Scalia's opinion in District of Columbia v. Heller is unfortunate, even if we supplement Justice Scalia's hermeneutical fantasy with the much more careful and balanced philosophical work by Larry Solum, Keith Whittington and other scholars. Nevertheless, the pragmatic work of interpretation by lawyers and judges in the day-to-day world of legal practice shows a plain-faced integrity of which we Americans can be proud.

Setting Foot On Enemy Ground: Cease-And-Desist Letters, Dmca Notifications And Personal Jurisdiction In Declaratory Judgment Actions, Marketa Trimble

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In declaratory judgment actions brought by alleged infringers against rights holders, such as actions for declaration of invalidity or non-infringement of intellectual property rights, U.S. courts have long maintained that sending a cease-and-desist letter alone, absent other acts in an alleged infringer's forum, is not a sufficient basis for personal jurisdiction over the rights holder who mailed them to the alleged infringer's forum. Notwithstanding the similarities between cease-and-desist letters and notifications under the Digital Millennium Copyright Act (DMCA), the Tenth Circuit Court of Appeals recently decided that sending a notification alone does establish a basis for personal jurisdiction over the …

Debtor Counsel's Fiduciary Duty: Is There A Duty To Rat In Chapter 11?, Nancy B. Rapoport, C. R. Bowles

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This article discusses what duties counsel to the debtor-in-possession owe (and to whom they owe these duties) when the debtor-in-possession wants to do something illegal or just plain dumb.

Academic Freedom And Academic Responsibility, Nancy B. Rapoport

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In this review of Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of Academic Freedom (Yale University Press 2009), I examine Finkin & Post's study of academic freedom in U.S. higher education institutions and link the issues surrounding academic freedom to the issues surrounding shared governance. I argue that the problems with shared governance can create a race to the bottom in academic units.

Ricci V. Destefano: A Masculinities Theory Analysis, Ann C. Mcginley

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This Article applies masculinity theory to explore the aspects Ricci v. Destefano and its political reverberations. Empirical evidence showed that virtually all written tests have a disparate impact on minorities, that a neighboring city had reached less discriminatory results using a different weighting system, and that other fire departments used assessment centers to judge firefighters' qualifications for promotions. While the black male and all female firefighters were made invisible by the case and the testimony, the fact that Ricci's and Vargas' testimony lionized a particularly traditional form of heterosexual masculinity was also invisible. While the command presence required of a …

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

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In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a litigant cast the deciding vote to relieve the litigant of a $50 million liability. The Court reached this result, one I view as compelled by common sense, through a 5-4 vote, with the dissenters, led by Chief Justice John Roberts and Justice Antonin Scalia, minimizing the danger of biased judging presented by the situation and questioning the practical feasibility of the Court's approach as well as the wisdom of …

The Insurance Policy As Statute, Jeffrey W. Stempel

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Insurance policies are classified as a subspecies of contract. Although the taxonomy is correct, rigid adherence to this classification system limits the legal system's ability to deal with some of the most problematic and frequently litigated questions of insurance coverage. Restricting conception of insurance policies to the contract model unduly limits analysis of the meaning and function of the policies. In addition, restricting characterization of insurance as a matter of “contract” does not necessarily produce swift, inexpensive, efficient, or uniform decisions (to say nothing about accuracy, justice, or fairness). Within contract law, scholars, and courts differ over the respective primacy …

Refocusing Away From Rules Reform And Devoting More Attention To The Deciders, Jeffrey W. Stempel

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The issue of judicial competence and integrity is particularly troubling in the wake of Caperton v. A.T. Massey Coal Co., where the U.S. Supreme Court vacated a state supreme court decision in which a justice—who had received at least $3 million in campaign support from a litigant—cast the deciding vote to relieve the litigant of a liability award of $50 million ($82 million with interest). The Court reached this result, one I view as compelled by common sense, through a 5-4 vote. The dissenters, led by Chief Justice Roberts and Justice Scalia, minimized the danger of biased judging presented by …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

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In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel

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Insurance policies are classified as a species of contract. Although this characterization is correct, it is unduly narrow if used as the exclusive lens for assessing insurance policies, which are not merely contracts but also are designed to perform particular risk management, deterrence, and compensation functions important to economic and social ordering. Recognizing this has significant implications regarding the manner in which insurance policies are construed in coverage disputes and suggests that policy construction can be improved by not only performing traditional contract analysis of disputed policies but also by appreciating the particular function of the insurance policy in question …

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

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Do participants in mediation and arbitration have attorneys? Do they need them? Although the phenomenon of pro se litigation has received substantial attention in recent years, few commentators or policymakers have focused on these questions. The failure to focus on the possible need for representation in mediation and arbitration is based on an often unstated premise that because ADR processes are purportedly non-adversarial or less adversarial than litigation, disputants need representation less in ADR than they do in litigation. This Article suggests that the failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. …

The Past, Presence, And Future Of Legal Writing Scholarship: Rhetoric, Voice, And Community, Linda L. Berger, Linda H. Edwards, Terrill Pollman

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This article welcomes a new generation of legal writing scholars. In the first generation, legal writing professors debated whether they should be engaged in legal scholarship at all. In the second generation, assuming that they should be engaged in scholarship, legal writing professors discerned and defined different genres of and topics for the scholarship in which some or all of us were or should be engaged. In this article, we map the contours of a third generation of legal writing scholarship - one that integrates the elements of our professional lives and allows us to engage more effectively with our …