Law Commons^™

Conflicts And The Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

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Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships. In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like and marriage-lite alternatives(i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) for same-sex …

Promoting Distributional Equality For Women: Some Thoughts On Gender And Global Corporate Citizenship In Foreign Direct Investment, Rachel J. Anderson

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This essay applies a legal theory of global corporate citizenship to the question of women’s distributional equality in foreign direct investment. It proposes ways that a legal theory of mandatory global corporate citizenship can expand the ways we think about regulating transnational corporations and promoting gender equality.

Fighting The New Wars Of Religion: The Need For A Tolerant First Amendment, Leslie C. Griffin

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No abstract provided.

A Writing Life, Linda H. Edwards

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This essay was written on the occasion of the 25th anniversary of the Legal Writing Institute (LWI), celebrated at Mercer University School of Law, LWI’s current home. In a sense the essay is retrospective, for it is written to honor the scholars whose work has moved us toward a vision of legal writing scholarship and all it can offer. Many of those experienced and inspiring scholars have kindly offered their advice for inclusion in this essay. That advice is probably the most important content included here, and it is placed, appropriately, at the end of the text as the essay’s …

Scientific Understandings Of Postpartum Illness: Improving Health Law And Policy?, Stacey A. Tovino

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In its broadest sense, the Article examines the relationship between science and the law in the context of postpartum illness. From classical antiquity to the present day, physicians and scientists have investigated the causes, correlates, and consequences of the depressions and psychoses that develop in some women following their transition to motherhood. The scientific investigation of postpartum illness has been characterized by an open-ended search for knowledge with the recgonition that scientific findings published one day are subject to revision the next. Legislators and judges also have sought to understand postpartum illness as necessary to make laws that affect and …

Rethinking Professional Fees In Chapter 11 Cases, Nancy B. Rapoport

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This article discusses the many ways in which professional fees can spiral out of control in chapter 11 bankruptcy cases and evaluates the possible ways to monitor and control those fees.

Discrimination Redefined, Ann C. Mcginley

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In this Response to Professor Natasha Martin's article Pretext in Peril, Professor Ann McGinley argues that courts' retrenchment in cases interpreting Title VII of the 1964 Civil Rights Act results from a narrow definition of discrimination that focuses on conscious, intentional discrimination. Increasingly social science research demonstrates that much disparate treatment occurs as a result of unconscious biases, but the courts' reluctance to consider this social science has led, in many cases, to a literal, narrow definition of “pretext." Moreover, she posits that the recent Supreme Court case of Ricci v. DeStefano redefines discrimination in an ahistorical and acontextual …

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

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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 Legal Writing Institute: Celebrating 25 Years Of Teaching & Scholarship, Mary Beth Beazley

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Professor Beazley joins a panel of the elite of legal writing professors at Mercer University, celebrating the 25th anniversary of the Legal Writing Institute in this transcript of the proceedings.

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

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In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

Untold Stories Of Goldman V. Weinberger: Religious Freedom Confronts Military Uniformity, Samuel J. Levine

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In 1986, the United States Supreme Court handed down a 5-4 decision ruling that Air Force regulations prohibiting Simcha Goldman from wearing a yarmulke while in uniform did not violate Goldman’s First Amendment right to the free exercise of religion. The Court’s majority opinion, which accepted the government’s assertion that allowing Goldman to wear a yarmulke would unduly upset important military interests, drew unusually harsh responses from both dissenting justices and legal scholars. Yet, upon closer examination, perhaps what stands out most about the events surrounding the Goldman decision is the untold story of the case, which differs in significant …

The Accidental Clinician And The Experienced Director: A Conversation On The Value Of Externships, Marjorie A. Silver, Mary Jo Eyster

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In the summer of 2010, Mary Jo Eyster and Marjorie Silver conversed, via email, about the ways in which externship programs add unique value to the student’s education, separate and apart from their cost-effectiveness as compared to the in-house clinic. The result is this paper, a dialogue between a stand-up teacher who chose to teach the externship seminar and a seasoned clinician.

Mary Jo and Marjorie agree that the well-designed, well-executed program should drive the design, teaching and administration of externships and their accompanying seminars. They share the goals that each of them privilege in the programs they have designed, …

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

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The Supreme Court has held that when a government regulation reduces the value of property, and a property owner challenges the regulation under the Takings Clause of the Fifth Amendment, courts should consider (1) the economic impact of the regulation upon the property owner, (2) the effect of such regulation upon the property owner’s reasonable investment-backed expectations, and (3) the character of the government action. A 2005 Supreme Court decision, Lingle v. Chevron, held that courts must focus primarily on the severity of the burden that government imposes upon property owners. Many courts and commentators interpret this language to mean …

Contested Meanings: Achievement And Ambition At An Elite Law School, Deborah Waire Post

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No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

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This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Empirical Desert And The Moral Economy Of Punishment, Zachary R. Calo

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This paper considers Paul Robinson's theory of empirical desert as an argument for moving beyond the debate between utilitarian and retributivist accounts of punishment. It is argued that empirical desert, in its attempt to replace philosophy with the insights of the social and biological sciences, fails to ground the foundational act of punishment in an adequate theoretical warrant. A particular problem confronting empirical desert is that while Robinson shifts the locus of punishment from theory to the intuitions of the relevant community, he does not adequately account for the dynamic process by which communities shape and structure their internal moral …

Pluralism, Secularism And The European Court Of Human Rights, Zachary R. Calo

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Beginning with its seminal 1993 decision in Kokkinakis v. Greece, the European Court of Human Rights has defined religious pluralism as an essential good of the liberal democratic society. Yet, in subsequent decisions traversing a range of legal issues [e.g. Sahin, Dahlab, Bayatyan, and Lautsi], the Court has rendered decisions facially at odds with the goal of advancing religious pluralism. This paper is concerned with assessing the discontinuity between the Court’s high embrace of normative religious pluralism and its failure to consistently realize this ideal in practice.The paper argues that the Court has failed to consistently render decisions in accord …

Organizations Matter: They Are Institutions, After All, John Linarelli

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Judge Posner (2010) offers a substantial agenda for organization economics. He advises us on how organization economics can shed substantial light on some of the most pressing social problems of the day. I comment on two of the areas he selects for discussion and offer some comments on the relationship of organization economics to new institutional economics. Judge Posner surely is right to argue that organization economics can help us understand the failures of corporate governance in regulating executive pay. Moreover, with additional and more institutionally nuanced theorizing, organizational economics should further our understanding of the work of judiciaries in …

Can Urban University Expansion And Sustainable Development Co-Exist?: A Case Study In Progress On Columbia University, Patricia E. Salkin, Keith H. Hirokawa

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This Article employs sustainability as a framework to analyze the recent proposed physical expansion plans of Columbia University for the purpose of illustrating the complexities that arise in urban development and higher education practices, as well as the problems of trying to simultaneously implement both. Governments and courts traditionally provide a high level of deference and leniency in the application of land-use laws and regulations when it comes to siting and expansion issues for educational institutions, yet institutions of higher education, particularly those located in urban areas, create unique dilemmas for sustainability. For example, available land for expansion is often …

Relationships, The Rules Of Professional Conduct And Land Use: Ethical Quagmires For Land Use Attorneys, Patricia E. Salkin

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This article begins to fill the void by introducing the application of the various Rules of Professional Conduct, as adopted by the specific opining jurisdiction, through a review of the relevant reported opinions of the various committees and sometimes courts, in the land use context. Part I discusses the challenges that arise for lawyers vis-à-vis their clients in the land use context. This is followed by a discussion in Part II of the ethics and professionalism issues that confront lawyers who serve on local boards.

The Tail Still Wags The Dog: The Pervasive And Inappropriate Influence By The Psychiatric Profession On The Civil Commitment Process, William Brooks

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The imposition of substantive and procedural protections in the civil commitment process thirty years ago created the expectation that courts would scrutinize commitment decisions by psychiatrists more closely and serve as a check on psychiatric decision-making. This has not happened.

Today, psychiatrists continue to play an overly influential role in the civil commitment process. Psychiatrists make initial commitment decisions that often lack accuracy because they rely on clinical judgment only. Furthermore, many psychiatrists do not want legal standards interfering with treatment decisions, and the nebulous nature of the concept of dangerousness enables doctors to make pretextual assessments of danger. At …

Suspicion And The Protection Of Fourth Amendment Values, Fabio Arcila Jr.

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Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter …

Supreme Court Criminal Law Jurisprudence - October 2008 Term, Richard Klein

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No abstract provided.

Applying Jewish Legal Theory In The Context Of American Law And Legal Scholarship: A Methodological Analysis, Samuel J. Levine

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No abstract provided.

Contract Law, Party Sophistication And The New Formalism, Meredith R. Miller

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With increasing frequency, courts are mentioning party sophistication as relevant to whether a contract has been formed, whether a contract is enforceable, how the contract should be interpreted, and even, in some instances, the determination of an appropriate remedy. Sophisticated parties are held to a different set of rules, grounded in freedom of contract. It is presumed that a sophisticated party was aware of what to bargain for and read (or should have read) and understood (or should have understood) the terms of a written agreement.

But, just what do courts mean when they call a contracting party “sophisticated”?

“Sophistication” …

Character Counts: The "Character Of The Government Action" In Regulatory Takings Actions, Michael Lewyn

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No abstract provided.

What Would Coase Do? (About Parking Regulation), Michael Lewyn

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Like many government regulations, municipal minimum parking requirements exist to prevent externalities - most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper, such regulations may in fact increase congestion and pollution, thus creating, rather than reducing, externalities.

What Balance In Legal Education Means To Me: A Dissenting View, Lawrence Raful

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No abstract provided.

Federal Governmental Power: Preemption From The October 2008 Term (Twenty-First Annual Supreme Court Review & Selected Excerpts: Practicing Law Institutes Twenty-Sixth Annual Section 1983 Civil Rights Litigation Program), Eileen Kaufman

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No abstract provided.

Focusing Your Firm On Ethics, Alex B. Long

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No abstract provided.