Law Commons^™

Toward Fundamental Change For The Protection Of Low-Wage Workers: The “Workers’ Rights Are Human Rights" Debate In The Obama Era, Ruben J. Garcia

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In order to avoid the pendulum swings of politics, advocates must argue for more fundamental norms for the protection of labor rights. Statutory protections, while important, will not provide long-lasting change toward establishing workers' rights as fundamental under constitutional and international law principles. Workers' rights must be seen as fundamental to the functioning of a democratic society, rather than as the special interest agenda of unions or plaintiffs' attorneys. This can be done through more advocacy for a minimum set of workers' rights as human rights, including the right to organize labor unions and the right to be free from …

Teaching Problem-Solving And Preventive Law Skills Through International Labour And Employment Law, Ruben J. Garcia

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This essay describes how problem-solving and preventive law principles apply in the teaching of international labor and employment law. This is because the subject itself crosses disciplinary and geographical boundaries. Students are taught about the importance of the lawyer's role as a counselor, rather than simply a litigator, which is at the center of the model of the lawyer as a problem solver.

How Embedded Knowledge Structures Affect Judicial Decision Making: An Analysis Of Metaphor, Narrative, And Imagination In Child Custody Disputes, Linda L. Berger

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We live in a time of radically changing conceptions of family and of the relationships possible between children and parents. Though undergoing "a sea-change," family law remains tethered to culturally embedded stories and symbols. While so bound, family law will fail to serve individual families and a society whose family structures diverge sharply by education, race, class, and income.

This article advances a critical rhetorical analysis of the interaction of metaphor and narrative within the specific context of child custody disputes. Its goal is to begin to examine how these embedded knowledge structures affect judicial decision making generally; more specifically, …

100 Years Strong: Southern Minnesota Regional Legal Services And The On-Going Pursuit For Equal Rights And Equal Justice, Tom I. Romero Ii, Bruce A. Beneke

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No abstract provided.

Race And Essentialism In Gloria Steinem, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper reflects on Angela Harris's essay Race and Essentialism in Feminist Legal Theory.. Harris is one of the foremost law professors in the country. She has co-written or coedited several important critical race theory and feminist theory casebooks as well as a casebook for a first-year course. This particular essay is one of the most cited critical race theory pieces ever, having been referred to in at least 796 articles. Professor Cooper joins a group of distinguished peers, describing the power Harris' work has on them now and when they were developing scholars.

Our First Unisex President?: Black Masculinity And Obama's Feminine Side, Frank Rudy Cooper

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People often talk about the significance of Barack Obama's status as our first black President. During the 2008 Presidential campaign, however, a newspaper columnist declared, "If Bill Clinton was once considered America's first black president, Obama may one day be viewed as our first woman president." That statement epitomized a large media discourse on Obama's femininity. In this essay, Professor Frank Rudy Cooper thus asks how Obama will influence people's understandings of the implications of both race and gender.

To do so, he explicates and applies insights from the fields of identity performance theory, critical race theory, and masculinities studies. …

Teaching Freedom: Exclusionary Rights Of Student Groups, Joan W. Howarth

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Progressive, anti-subordination values support robust First Amendment protection for high school and university students, including strong rights of expressive association, even when those rights clash with educational institutions' nondiscrimination policies. The leading cases addressing the conflicts between nondiscrimination policies and exclusionary student groups are polarized and distorted by their culture war context. That context tainted the leading authority, Boy Scouts of America v. Dale, and is especially salient in the student expressive association cases, many of which are being aggressively litigated by religious groups with strong anti-homosexuality goals. The strength of these First Amendment claims can be difficult to recognize …

Vico And Imagination: An Ingenious Approach To Educating Lawyers With Semiotic Sensibility, Francis J. Mootz Iii

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Law is a specialized semiotic realm, but lawyers generally are ignorant of this fact. Lawyers may manage meaning, but they also are managed by meaning. Seemingly trapped by the weight of pre-existing signs, their attempts to manage these meanings generally are limited to technical interventions and instrumentalist strategies. Signs have power over lawyers because they are embedded in narratives, a semiotic economy that confronts the lawyer as ‘‘given’’ even though it is dynamic and constantly under construction. Most lawyers do not make meaning through legal narratives; rather, they parrot bits of the controlling narratives in response to certain problems. Because …

Lessons From Enron - And Why We Don't Learn From Them, Nancy B. Rapoport

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This article discusses why even the smartest of people can make boneheaded decisions, and it suggests that the only way to avoid future Enrons is to take into account the cognitive mistakes that humans tend to make.

The Real Reason Why Businesses Make Bad Decisions, Nancy B. Rapoport

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This book review examines Professor Jonathan Macey's latest book on corporate governance, and it uses Professor Macey's analysis to explain the latest rash of corporate scandals.

Swimming With Shark, Nancy B. Rapoport

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In this essay, Nancy Rapoport discusses how Sebastian Stark (played by James Woods) seduces the lawyers on his legal team into ignoring legal ethics in favor of Stark's own version of ethics. Stark -- a criminal defense lawyer who becomes a deputy district attorney -- bends the ethics rules past the breaking point in order to put bad guys behind bars. His team of lawyers knows right from wrong but follows Stark's lead in breaking the rules anyway.

Hillary Clinton, Sarah Palin, And Michelle Obama: Performing Gender, Race, And Class On The Campaign Trail, Ann C. Mcginley

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The 2008 Presidential campaign highlighted three strong, interesting, and very different women -- Hillary Clinton, Sarah Palin, and Michelle Obama -- who negotiated identity performances in the political limelight. Because of their diverse backgrounds, experience, and ages, an examination of how these three women performed their identities and the public response to them offers a rich understanding of the changing nature of gender, gender roles, age, sexuality and race in our culture. This essay suggests that optimism that Obama's race and gender performances may have removed the stigma from "the feminine" may be misplaced, at least when it comes to …

Reproducing Gender On Law School Faculties, Ann C. Mcginley

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This article demonstrates that there is a gender divide on law school faculties. Women work in inferior sex-segregated jobs and teach a disproportionate percentage of female-identified courses. More than 80% of law school deans are men. Men teach the more prestigious male-identified courses. Women suffer from differential expectations from colleagues and students and often bear the brunt of their colleagues' bullying behaviors at work. Using masculinities studies and other social science research to identify gendered structures, practices, and behaviors that harm women law professors, this article provides a theoretical framework to explain why women in the legal academy do not …

The Insurance Policy As Thing, Jeffrey W. Stempel

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Insurance policies are a type of contract. But characterizing them only as contracts misses much of the richness of the insurance arrangement, policyholder-insurer relations, and the degree to which insurance policies, which are heavily standardized, are designed to perform a particular function. Because of their mass standardization and deployment to address particular risk management issues, insurance policies are in many respects like products or chattels. Insurers and the insurance trade press in fact frequently speak of a line of insurance "products" or a new "product" being introduced to address an emerging risk. Appreciating this aspect of the insurance policy can …

Chief William's Ghost: The Problematic Persistence Of The Duty To Sit Doctrine, Jeffrey W. Stempel

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The duty to sit concept or “doctrine”—or at least what I term the “pernicious” version of the concept—emphasizes a judge's obligation to hear and decide cases unless there is a compelling ground for disqualification and creates a situation in which judges are erroneously pushed to resolve close disqualification issues against recusal when the presumption should run in exactly the opposite direction. In close cases, judges should err on the side of recusal in order to enhance public confidence in the judiciary and to ensure that subtle, subconscious, or hard-to-prove bias, prejudice, or partiality does not influence decision-making. The pernicious version …

Playing Forty Questions: Responding To Justice Roberts' Concerns In Caperton And Some Tentative Answers About Operationalizing Judicial Recusal And Due Process, Jeffrey W. Stempel

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The Chief Justice of the United States would probably have excelled as a negative debater in high school forensics competitions. Good negative debaters are, as my high school English teacher put it, “great point-pickers” in that they frequently challenge affirmative proposals with a series of “what if?” or “how about?” or “what would you do if?” questions designed to leave the affirmative resolution bleeding to death of a thousand cuts. Less charitable observers might call it nit-picking. After reading Chief Justice Roberts's dissenting opinion in Caperton v. A.T. Massey Coal Co., one can easily imagine him as a high school …

Dispute Resolution And The Quest For Justice, Jean R. Sternlight

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During and since the 1976 Pound conference, the rise of nonlitigation approaches has sparked an intense debate as to whether negotiation, mediation, and arbitration are consistent with justice or rule of law, and whether litigation itself is sufficiently accessible to support a quest for justice. This article offers observations on questions related to this debate, including whether procedure matters, the limits of procedural reform, whether some processes are more just than others, and how procedural reforms enhance justice.

Toward Global Corporate Citizenship: Reframing Foreign Direct Investment Law, Rachel J. Anderson

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This article argues that modern foreign direct investment law is a vestige of the colonial era during which early forms of transnational corporations emerged. Unlike international trade law and despite the dramatic developments of the twentieth century, foreign direct investment law remains largely unchanged. Due to a lack of political will, prior multilateral efforts to implement comprehensive foreign direct investment law reforms have been largely unsuccessful. However, in recent years, growing political will has emerged under the umbrella of Global Corporate Citizenship and related movements. This article posits that Global Corporate Citizenship is an opportunity to reframe and reform foreign …

Public Utilities, Eminent Domain, And Local Land Use Regulations: Has Texas Found The Proper Balance?, Michael B. Kent Jr.

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No abstract provided.

Pavesich, Property And Privacy: The Common Origins Of Property Rights And Privacy Rights, Michael B. Kent Jr.

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No abstract provided.

Queer Lockdown: Coming To Terms With The Ongoing Criminalization Of Lgbtq Communities, Ann Cammett

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The criminal justice system exacts a toll on some Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) communities. The experience of living in poverty and the concomitant exposure to a variety of governmental systems puts all poor, but especially LGBTQ low-income people of color, at risk of incarceration. What typically goes unexamined are the myriad ways that LGBTQ people are drawn into and experience the carceral system because of sexual identities and expression. This negative effect surfaces at every conceivable level: the marginalization and subsequent criminalization of queer youth; anti-gay bias in the judicial system; the rerouting of domestic violence cases …

Rethinking The Legal Reform Agenda: Will Raising The Standards For Bar Admission Promote Or Undermine Democracy, Human Rights, And Rule Of Law?, Samuel J. Levine, Russell G. Pearce

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This Article offers a critique of, and alternative to, the American Bar Association's efforts, supported by the United States government, to promote the requirement of a college education in law as prerequisite for becoming a lawyer in developing countries. Using the examples of China, which currently has a far more open system for becoming a legal services provider, and South Africa, which already has a system consistent with the goals of the ABA, the Article argues that more stringent education requirements actually undermine democracy, human rights, and rule of law. In China, where the most significant advocates for human rights …

Torture, Necessity, And Supreme Emergency: Law And Morality At The End Of Law, Zachary R. Calo

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This paper employs Michael Walzer's concept of "Supreme Emergency" to address the permissibility of torture under conditions of necessity. It proposes moving beyond both utilitarian and deontological approaches to legal authority in order to understood necessity as a moral category. A full account of right action under conditions of necessity therefore demands taking account of the distinct yet cooperative function provided by legal and moral norms. A political official might therefore possess moral but not legal warrant to act in contravention of binding legal norms. Preserving the validity of law is essential to the economy of social reconstitution in the …

Cooperative Federalism And Wind: A New Framework For Achieving Sustainability, Patricia E. Salkin, Ashira Ostrow

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This Article proposes a federal wind siting policy modeled on the cooperative federalism framework of the TCA’s Siting Policy. Part I describes some advantages of wind energy, focusing specifically on the environmental, economic, and social benefits. This Part also discusses several technical obstacles to wind energy development, including the need to supplement wind energy with conventional energy sources and the lack of adequate transmission infrastructure. Part II assesses the current regulatory regime for the siting of wind turbines, reviewing general practices across the United States at both the state and local levels. Although a number of states have been active …

Can You Hear Me Up There? Giving Voice To Local Communities Imperative For Achieving Sustainability, Patricia E. Salkin

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Sustainable development is an international challenge that demands attention at all levels of government. The calls to action to achieve sustainability have varied over the last few decades. For example, in the 1970s and 1980s attention was focused on the need for environmental review and growth management strategies. In the 1990s the rhetoric shifted to smart growth and livable communities, and today, the issue has been reframed as advocates view sustainability through the lens of global warming and climate change. Regardless of the nomenclature, however, the end game is the same. While the United States as a whole speaks through …

God And The Land: A Holy War Between Religious Exercise And Community Planning And Development, Patricia E. Salkin, Amy Lavine

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This article is a brief introduction to The Albany Government Law Review symposium on God and the Land. This piece sets forth a brief history of the Religious Land Use and Institutionalized Persons Act (RLUIPA) setting the backdrop for the controversy that has surrounded the Act and its impact on religious entities and municipalities. Since the enactment of RLUIPA, the floodgates have burst open with litigation in attempts to clarify many ambiguities in the statute. The remainder of the piece provides a sneak preview of the articles contained in The Albany Government Law Review by Professors Angela Carmella, Marci Hamilton, …

Modernization Of New York's Land Use Laws Continues To Meet Growing Challenges Of Sustainability, Patricia E. Salkin, Jessica A. Bacher

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There has never been a more challenging time to practice land use planning and zoning law in New York. With goals of sustainability at the forefront of the land use regulatory agenda, this brief account of recent developments in land use law highlights some discernable trends, namely: the modernization and increased flexibility of New York State planning and zoning enabling acts, the inspired local initiatives and lethargic State response to affordable housing issues, and the increasing impact of alternative energy systems on local regulatory schemes.

Part I of this article explores the impacts on community development caused by the many …

Teaching Sicko, Elizabeth Weeks

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This article provides insights in how to make up cancelled law classes to ensure compliance with American Bar Association accreditation instructional hours requirements. How to cover the missed course content. How to find mutually agreeable make-up class times and locations with a group of busy, upper-level law students. Faced with the prospect of having to make up two hours each of my Health Care Financing and Regulation course and my Public Health Law seminar, I turned to the teacher's little helper: the DVD player

Introduction: The Constitutional Law Of International Commercial Arbitration, Peter B. Rutledge

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An exceptional feature of international arbitration is the extensive and meaningful dialogue that takes places between scholars and practitioners in the field. Unlike some other disciplines where the camps appear to talk past each other, international arbitration enjoys a rich relationship between the two. Practitioners have written some of the most important scholarly works in the field, while scholars have worked on some of the most important cases. In January 2009, the University of Georgia Law School and its Dean Rusk Center were pleased to bring together an elite group of scholars and practitioners for a day-long conference on the …

A New Way Forward: A Response To Judge Weinstein, Elizabeth Chamblee Burch

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This short essay responds to Judge Jack Weinstein's essay, Preliminary Reflections on Administration of Complex Litigations, 2009 Cardozo De Novo 1. In so doing, it also provides a condensed version of my earlier article, Litigating Groups, which analyzes group dynamics within nonclass aggregation. By drawing on the literature of moral and political philosophy as well as social psychology, I contend that, in the face of hard cases, of instability and disunity, plaintiffs who have made promises and assurances to one another can invoke social norms of promise-keeping, social agglomeration, compatibility, and the desire for means-end coherence to achieve consensus, mitigate …