Law Commons^™

Faithful Hermeneutics, Francis J. Mootz Iii

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This article was presented at the Annual Meeting of the Association of American Law Schools on January 9, 2009 as part of a panel on "Scriptural and Constitutional Hermeneutics." The panel was co-sponsored by the Law and Religion Section, Section on Jewish Law, and Section on Islamic Law, and the papers will be published by the Michigan State Law Review.

My article compares legal and religious hermeneutics by exploring the dual nature of what I term "faithful hermeneutics." The ambiguity evoked by this phrase is intentional. On one hand, it suggests an investigation of the relationship between legal and religious …

"Who's The Man?": Masculinities Studies, Terry Stops, And Police Training, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper examines how masculinity contests specifically, and masculinities studies generally, affect policing. He reviews the hegemonic masculinities school of thought and identifies the following background principles of the hegemonic pattern of masculinities in the United States: (1) men's concern with the opinions of other men; (2) anxiety over whether one has proved one's manhood; (3) a competitiveness reflected in a need to dominate other men and a general aggressiveness; and (4) a denigration of contrast figures reflected in a repudiation of femininity and homosexuality as well as subordination of racial minorities. Then he identifies …

Shelter From The Storm: An Analysis Of U.S. Refugee Law As Applied To Tibetans Formerly Residing In India, Eileen Kaufman

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No abstract provided.

Analytical Jurisprudence And The Concept Of Commercial Law, John Linarelli

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Commercial lawyers working across borders know that globalization has changed commercial law. To think of commercial law as only the law of states is to have an inadequate understanding of the norms governing commercial transactions. Some have argued for a transnational conception of commercial law, but their grounds of justification have been unpersuasive, often grounded on claims about the common content among national legal systems. Legal positivism is a rich literature on the concept of a legal system and the validity conditions for rules in legal systems, but it has not been used to understand legal order outside or beyond …

Exploring The Impact Of The Marriage Amendments: Can Public Employers Offer Domestic Partner Benefits To Their Gay And Lesbian Employees?, Tiffany C. Graham

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Over the course of the past decade, the question of same-sex marriage has been one of the most contentious issues affecting this country. Starting in 1998, forty-five states prohibited the creation or recognition of same-sex marriage, and thirty states solidified their positions through the passage of state constitutional amendments. Eighteen of these amendments extended their prohibitions even farther by refusing to create or recognize civil unions, domestic partnerships, or any other alternative to traditional marriage that was patterned after marriage. It is this last group of amendments that poses a potentially intractable problem: Is the language employed by these amendments …

Supreme Court § 1983 Decisions-October 2008 Term, Martin A. Schwartz

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No abstract provided.

Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson

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This article was inspired by the opportunity to observe a two day negotiation training program' put together by Hamline University School of Law in Rome. It was called "Developing 'Second Generation' Global Negotiation Education." The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare …

The Framers' Search Power: The Misunderstood Statutory History Of Suspicion & Probable Cause, Fabio Arcila, Jr.

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Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated for regulatory purposes. What attention has been paid concludes that the Framers were divided about how accessible search remedies should be. This Article explains why this conventional account is mostly wrong and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law. In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the patterns of preceding British civil search statutes. The …

Cultural Inversion And The One-Drop Rule: An Essay On Biology, Racial Classification, And The Rhetoric Of Racial Transcendence, Deborah W. Post

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No abstract provided.

2009 Ethical Considerations In Land Use, Patricia E. Salkin

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This article is one in a series of annual updates on reported cases and opinions in the area of ethics and land use regulation, A number of themes emerged from the round of litigation in the last year. The most surprising discovery was for a second year in a row, the number of reported cases involving allegations of unethical conduct on the part of land use attorneys. This article reviews these cases, as well as cases involving conflicts based on community involvement, familial relationships, employment and financial interests; and cases involving allegations of bias and prejudgment.

A Quiet Crisis In America: Meeting The Affordable Housing Needs Of The Invisible Low-Income Healthy Seniors, Patricia E. Salkin

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Part I of this article discusses population statistics in greater detail, exploring available financial demographics of seniors and showing that many seniors are likely to be in need of affordable housing today, and that many more will likely join this group in the future. Part II discusses the role of the federal and state governments in providing affordable senior housing and concludes that these programs have typically failed to yield effective results on a wide enough basis. Part III focuses on the impact that local governments can have immediately in helping to address the affordable senior housing crisis through the …

International Law: Practical Authority, Global Justice, John Linarelli

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No abstract provided.

When Does Might Make Right? Using Force For Regime Change, John Linarelli

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Should states use force to bring about regime change? International law recognizes no such grounds. This paper seeks to provide guidance from moral theory. The aim of this paper is to identify the moral grounds for the use of armed force by one state or a group of states, against another state, when the intention of the intervening states is to achieve a fundamental change in the character of the political and legal institutions of the other state. Lawyers tend to place the argument for regime change intervention within putative humanitarian intervention doctrines. The moral justification for humanitarian intervention is …

Community Benefits Agreements And Comprehensive Planning: Balancing Community Empowerment And The Police Power, Patricia E. Salkin, Amy Lavine

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Traditionally, the states have empowered local governments to develop plans and implement regulations for neighborhood and community development. When accomplished at the local or regional level, the interests and benefits of the community as a whole are to be weighed against the detriments to individuals. Much has been studied and written about the lack of meaningful public participation in the planning and land use regulatory process, suggesting that often low-income and minority communities are not fully engaged in the process, even when it may result in decisions negatively impacting their neighborhoods. Case studies have also shown that governments are sometimes …

New York Climate Change Report Card: Improvement Needed For More Effective Leadership And Overall Coordination With Local Government, Patricia E. Salkin

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New York ranks eight out of the 50 states in terms of carbon emissions. While the State government is just beginning to enact meaningful programs and incentives to encourage municipal policies and actions that will reduce the impact of local decisions on our carbon footprint, a number of local governments across the State have already been at work developing and adopting "greening" strategies, policies and regulations. While the New York State Bar Association has released for comment a report of its Task Force on Global Warming which documents an impressive two-dozen current state-level laws and programs on climate change, the …

Sustainability And Land Use Planning: Greening State And Local Land Use Plans And Regulations To Address Climate Change Challenges And Preserve Resources For Future Generations, Patricia E. Salkin

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Although a coordinated national policy on climate change should be developed, initiatives at the local government level through the land use planning and regulatory control processes have tremendous potential to dramatically contribute to the reduction of green house gas emissions, leading to a reduction in the carbon footprint and ultimately to a more sustainable environment. Part I of this article discusses opportunities for using the comprehensive land use planning process to address sustainability and provides examples of how this is being accomplished across the country. Part II mentions the growing number of state and local climate action plans (and cross-references …

Linking Land Use With Climate Change And Sustainability Topped State Legislative Land Use Reform Agenda In 2008, Patricia E. Salkin

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Linking land use with climate change and sustainability topped state legislative land use reform agenda in 2008. The only discernible state land use reform trends in 2008 have focused primarily on themes surrounding sustainability. Many states pursued statutory reforms to address the strong linkages between land use and climate change, green development and affordable housing. Only one state, Michigan, focused on recodification of its planning and zoning enabling acts.

Ica And The Writing Requirement: Following Modern Trends Towards Liberalization Or Are We Stuck In 1958?, Jack Graves

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Article 7 of the Model Law was revised in 2006 to liberalize any requirements of form, consistent with modern commercial practices and modern legal trends reflected in national laws. To the extent adopted by national legislatures, either of the two available options under this revision will effectively eliminate any requirement of a “record of consent,” thus making arbitration agreements more easily enforceable in the adopting jurisdiction. However, any such revision of national laws on arbitration based on the revisions of Article 7 of the Model Law will not necessarily have any effect on enforcement of awards in other jurisdictions under …

Of Inkblots And Omnisignificance: Conceptualizing Secondary And Symbolic Functions Of The Ninth Amendment, In A Comparative Hermeneutic Framework, Samuel J. Levine

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In this Essay, Levine focuses on a particular hermeneutic approach common to the interpretation of the Torah and the United States Constitution: a presumption against superfluity. This presumption accords to the text a considerable degree of omnisignificance, requiring that interpreters pay careful attention to every textual phrase and nuance in an effort to find its legal meaning and implications. In light of this presumption, it might be expected that normative interpretation of both the Torah and the Constitution would preclude a methodology that allows sections of the text to remain bereft of concrete legal application. In fact, however, both the …

Supporting Attorney’S Personal Skills, Marjorie A. Silver

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No abstract provided.

Sprawl In Europe And America, Michael Lewyn

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Defenders of suburban sprawl assert that sprawl is inevitable in affluent societies, based on trends in Western Europe. According to supporters of this Inevitability Theory, European cities have decentralized and become more car-dependent, thus proving that even where governments are more aggressively anti-sprawl than American government, anti-sprawl policies will be futile.

This Article compares Western Europe to the United States, and criticizes the Inevitabilty Theory on the grounds that:

(1) Europe is in fact far less automobile-dependent than the United States;
(2) Europe has not, contrary to the Inevitability Theory's claims, become more car-dependent and suburbanized in recent years; and …

The Supreme Court's Hands-Off Approach To Religious Doctrine: An Introduction, Samuel J. Levine

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Although the current state of the United States Supreme Court's Religion Clause jurisprudence is an area of considerable complexity, the Court's approach is largely premised upon a number of basic underlying principles and doctrines. This Symposium issue explores an underlying principle of the Supreme Court's current Religion Clause jurisprudence, the Court's hands-off approach to questions of religious practice and belief. The Symposium is based on the program of the Law and Religion Section at the 2008 Annual Meeting of the Association of American Law Schools, in which a panel of leading scholars was asked to evaluate the Court's approach. The …

An Analysis Of The Death Penalty Jurisprudence Of The October 2007 Supreme Court Term (The Twentieth Annual Supreme Court Review), Richard Klein

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No abstract provided.

Bourdieu And American Legal Education: How Law Schools Reproduce Social Stratification And Class Hierarchy, Lucille A. Jewel

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The American legal profession has long been organized along hierarchical lines, and in many instances, status inequalities between attorneys are based on perceived differences in attorneys' educational credentials. Relying upon the theories of French sociologist Pierre Bourdieu, this essay will discuss how American legal educational institutions operate to reproduce the stratification within the legal profession and within society as a whole.

American law schools are not equalizing institutions that erase all class differences among students to create a profession that awards all of its members a monolithic class status. By allocating professional status based on a system of educational tiers, …

Environmental Law, Eleventh Circuit Survey, Travis M. Trimble

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The United States Court of Appeals for the Eleventh Circuit decided cases in 2008 that addressed the scope of agency discretion in several contexts. In an issue of first impression under the Clean Air Act (CAA),the court held that the Environmental Protection Agency (EPA) properly exercised its discretion in not objecting to the issuance of an operating permit to a power company that the agency had earlier formally accused of violating the CAA. In another case, the court held that the Federal Emergency Management Agency had the discretion to protect endangered species while administering the National Flood Insurance Act and …

Toward Ethical Plea Bargaining, Erica J. Hashimoto

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Defendants in criminal cases are overwhelmingly more likely to plead guilty than to go to trial. Presumably, at least a part of the reason that most of them do so is that it is in their interest to plead guilty, i.e., they will receive a more favorable outcome if they plead guilty than if they go to trial. The extent to which pleas reflect fair or rational compromises in practice, however, depends upon a variety of factors, including the amount of information each of the parties has about the case. Some level of informational symmetry therefore is critical to the …

Queer Teens And Legislative Bullies: The Cruel And Invidious Discrimination Behind Heterosexist Statutory Rape Laws, Michael J. Higdon

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Most states make an exception to their statutory rape laws for sexual acts involving an adolescent victim, who is below the age of consent, when the defendant is close in age to the victim (i.e., generally no older than three or four years). However, a few states explicitly limit such exceptions (commonly referred to as Romeo and Juliet exceptions) to only those situations involving teens who are of the opposite gender. Thus, adolescents in these states who have sex with someone below the age of consent, and who are also the same gender as the defendant, cannot avail themselves to …

Sense And Sensibility In Securitization: A Prudent Legal Structure And A Fanciful Critique, Thomas E. Plank

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This article responds to a recent critique that the securitization of receivables is a legally shaky financial product that survives only because it is too big to fail. This critique argues that securitization's success in avoiding the costs that the Bankruptcy Code imposes on secured credit, including a bankruptcy trustee's ability to use the cash collateral from the receivables, is a type of fraud that hinders or delays the creditors of the originators of receivables. The critique, however, fails. The cases cited for the author's fraud analysis do not support its thesis. Further, the critique fails to demonstrate that securitization's …

The Enduring Ambivalence Of Corporate Law, Christopher M. Bruner

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Prevailing theories of corporate law tend to rely heavily on strong claims regarding the corporate governance primacy and legitimacy of either the board or the shareholders, as the case may be. In this article I challenge the descriptive power of these theories as applied to widely held public corporations and advance an alternative, arguing that corporate law is, and will remain, deeply ambivalent - both doctrinally and morally - with respect to three fundamental and related issues: the locus of ultimate corporate governance authority, the intended beneficiaries of corporate production, and the relationship between corporate law and theachievement of the …

The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie Wilson

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The Supreme Court's Fourth Amendment jurisprudence has been oft criticized. The criticism is not surprising or undeserved. After all, the express language of the Fourth Amendment requires that the government act reasonably whenever it intrudes on a person's privacy, liberty or dignity by conducting a search or seizure. But the Court's Fourth Amendment opinions have authorized conduct that looks anything but reasonable.

This Article contends that the unreasonableness of the Court's Fourth Amendment decisions is advanced by the Court's poor allocation of mixed issues - those asking someone to determine whether the historical facts in the case satisfy the constitutional …