Law Commons^™

Do The Right Thing:, Julia Mclaughlin

Julia Halloran McLaughlin

This Article focuses on one isolated group of undocumented and unaccompanied children in relation to one provision of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”). Section 235 sets forth the procedural and substantive rights of all unaccompanied and undocumented children (“unaccompanied children”) who cross a U.S. border without proper papers and without a parent or guardian. Although section 235 of TVPRA is but one tiny sliver of an expansive body of immigration law in the United States, it raises legal questions related to the constitutional rights of inadmissible children. This Article explores the legal rights of …

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

California Egg Toss - The High Costs Of Avoiding Unenforceable Surrogacy Contracts, Jennifer Jackson

Jennifer Jackson

In an emotionally charged decision regarding surrogacy contracts, it is important to recognize the ramifications, costs, and policy. There are advantages to both “gestational carrier surrogacy” contracts and “traditional surrogacy” contracts. However, this paper focuses on the differences between these contracts using case law. Specifically, this paper will focus on the implications of California case law regarding surrogacy contracts. Cases such as Johnson v. Calvert and In Re Marriage of Moschetta provide a clear distinction between these contracts. This distinction will show that while gestational carrier surrogacy contracts are more expensive, public policy and court opinions will provide certainty and …

The Cra Implications Of Predatory Lending, Kathleen Engel, Patricia Mccoy

Patricia A. McCoy

Traditionally, policymakers, communities, and industry have regarded the Community Reinvestment Act ("CRA") as a positive mandate for banks and thrifts to do good by increasing investment in low- and moderate-income ("LMI") neighborhoods. When Congress enacted CRA, it was inconceivable that LMI neighborhoods might eventually receive too much credit in the form of abusive mortgages. However, by the late 1990s, predatory mortgages- exploitative high-cost loans to gullible borrowers-were ravaging the inner cities. We address the question: given the surge in predatory lending, how should CRA respond? CRA and federal subsidies to regulated lenders can create perverse incentives for lenders to engage …

Veiled Discrimination, Sahar F. Aziz

Sahar F. Aziz

Should employees have the legal right to “be themselves” at work? Most Americans would answer in the negative because work is a privilege, not an entitlement. An employer’s workplace rules that define professionalism, therefore, are his prerogative and defined by the demands of the marketplace. Underlying this conclusion is the false premise that objective and neutral factors shape modern notions of professionalism. To the contrary, professionalism is a subjective concept dependent on the decision makers’ worldview, norms, values, and definitions of propriety. Employees who belong to the employer’s social group or fall within society’s majority are advantaged as minimal effort …

Chinese Courts' Role In Financial Reform: On The First "Vam Agreement" Case In China, Siyi Huang

Siyi Huang

Traditional belief is that courts in authoritarian regimes are only passive institutions and their authority and influence are extremely limited. Despite the conventional wisdom, it’s been noticed that Chinese courts have played a crucial role in China’s financial reform. Drawing on insights from the judgments of three Chinese courts at different levels on the first “value adjustment mechanism” case in China, this article attempts to explore the functional techniques and decision-making process of Chinese courts. The analysis of the court’ judgments suggests that Chinese courts have performed a policy-making function in deciding controversial economic cases, by transcending social and business …

(S)Killing Me Softly: Unifying The “Soft Skills” Of Law Practice And Legal Education (Synthesizing Leadership, Collaboration, Professionalism, Emotional Intelligence, Conflict Resolution, Problem Solving, And Comprehensive Lawyering), Susan Daicoff

Susan Daicoff

No abstract provided.

Organizing With International Framework Agreements: An Exploratory Study, César Rosado Marzán

César F. Rosado Marzán

No abstract provided.

Copyright And The Tragedy Of The Common, Tracy Reilly

Tracy Reilly

In his 1968 article, The Tragedy of the Commons, biologist Garret Hardin first described his theory on the ecological unsustainability of collective human behavior, claiming that commonly held real property interests would not ultimately be supportable due to the competing individual interests of all who use the property. In the legal field, Hardin’s article is frequently cited to support various theories related to real property and environmental law issues such as ownership, redistribution of wealth, pollution, over population, and global warming. Most scholars claim that a tragedy of the commons does not exist in intellectual property-related goods due to the …

Confucianism And Antitrust: China's Emerging Evolutionary Approach To Anti-Monopoly Law, Thomas J. Horton

Thomas J. Horton

In August, 2007, the People’s Republic of China, through its National People’s Congress, enacted its Anti-Monopoly Law, which took effect in August, 2008. This article discusses the historical, cultural, and philosophical values that have helped to shape and influence China’s current AML. Rather than following the United States and Europe, China appears to be charting its own course in interpreting and enforcing its competition laws. Based upon China’s history, culture, and Confucian ethics and morals, this article forecasts that China’s future AML enforcement will be based upon social, moral, and ethical considerations, as well as economic ones. This article concludes …

Policing Terrorists In The Community, Sahar F. Aziz

Sahar F. Aziz

Twelve years after the September 11th attacks, countering domestic terrorism remains a top priority for federal law enforcement agencies. Using a variety of reactive and preventive tactics, law enforcement seeks to prevent terrorism before it occurs. Towards that end, community policing developed in the 1990s to combat violent crime in inner city communities is being adopted in counterterrorism as a means of collaborating with Muslim communities and local police to combat “Islamist” homegrown terrorism. Developed in response to paramilitary policing models, community policing is built upon the notion that effective policing requires mutual trust and relationships among law enforcement and …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …

Beyond Interpretation: The "Cultural Approach" To Understanding Extra-Formal Change In Religious And Constitutional Law (Invited Symposium Contribution), Mark Rosen

Mark D. Rosen

No abstract provided.

Dirty Harry Meets Dirty Diapers: Masculinities, At-Home Fathers & Making The Law Work For Families, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Who is the “man”? Implicit in that question is whether the man at issue demonstrates traits traditionally associated with masculinity: traits such as power, rejecting all things associated with being female, aggression, and being the family breadwinner. If a man, then, abandons paid work and stays at home full-time with his children, is he still a “man” as typically defined? The answer to this question bears both on whether families are truly evolving away from the gendered construct that places men as family breadwinners and women as caregivers and whether work-family balance law meets the needs of these—and all—families. This …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

A Cultural Lens In The Law School Classroom: A Technique To Promote A Learner-Centered Environment And To Stimulate Self-Assessment, Julie M. Spanbauer

Julie M. Spanbauer

The American Bar Association (ABA) is exerting pressure on United States law schools to improve teaching effectiveness by shifting the evaluation of student learning away from input measures to focus upon output-based assessments. Yet, many legal educators appear to be resistant to and fearful of change, in part, perhaps, due to their comfort with teaching methods such as the Socratic or case dialogue approach, which demands little accountability for teaching effectiveness and provides more time for the pursuit of the traditional goals of scholarly productivity. This method of teaching as currently utilized in law schools is also innately professor-centric performance …

Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel

Katharine A. Van Tassel

According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”

One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …

The Role Of Religion In A Catholic Law School: A Century Of Experience At Loyola University Chicago, Thomas M. Haney

Thomas M. Haney

The purpose of this article is to examine the record of a Catholic law school, the School of Law of Loyola University Chicago, which a few years ago celebrated its centennial. This is a detailed study of how the Catholic identity of Loyola Chicago’s law school has manifested itself over the past century, during several distinct eras. The article concludes that the criteria chosen to identify a truly Catholic law school will determine the result of whether any particular law school is indeed Catholic, and that different scholars and commentators will choose different criteria, therefore arriving at different conclusions. The …

United States V. Jones: Big Brother And The “Common Good” Versus The Fourth Amendment And Your Right To Privacy, Melanie M. Reid

Melanie M. Reid

This Article traces the evolution of Fourth Amendment law and what constitutes a “search” from English property law and trespass to the reasonable expectation of privacy under United States v. Katz to the latest Supreme Court decision in United States v. Jones. The Supreme Court’s recent reliance upon historical property law in Jones impacts law enforcement’s ability to use tracking devices, especially when exigent circumstances exist. The Jones decision may also subsequently impact law enforcement’s use of other investigatory tools, such as trash pulls, stationary cameras, open fields, and undercover agent or informant non-consensual recordings. The decision in Jones brings …

Complexity Theory And The Horizontal And Vertical Dimensions Of State Responsibility, Mark A. Chinen

Mark A. Chinen

In this Article I argue along with other commentators that a gap that has always existed in the law of state responsibility is now becoming more evident, namely the one that exists between a state and its citizens, making it difficult to justify why state responsibility should be distributed to those citizens. If for example a state agrees at the international level to undertake domestic austerity measures, why should its citizens bear the costs of such measures, especially when the same state is obligated under international law to protect those citizens’ human rights?

I use concepts taken from complexity theory …

Lessons From Positive Psychology For Developing Advocacy Skills, Nancy Schultz

Nancy Schultz

Advocacy skills are crucial to law students and lawyers. One of the ways law students develop those skills is in the context of lawyering skills competitions. This article explores whether there is any psychological research that might offer more systematic guidance for advocacy coaches and instructors. Positive psychology does offer some principles that suggest useful approaches to coaching and teaching advocacy. Taken together with instinct and experience, these principles can help coaches and advocacy instructors be more effective in training young lawyers for litigation and dispute resolution practice.

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Lauren Sudeall Lucas

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance …

"A Necessary Cost Of Freedom"? The Incoherence Of Sorrell V. Ims, Tamara R. Piety

Tamara R. Piety

No abstract provided.

Vulnerability And Desert: A Theory Of Sentencing The Mentally Ill, Lea Johnston

E. Lea Johnston

This Article analyzes risks of harm posed to prisoners with serious mental illnesses and asks whether, and how, sentencing theory should take these risks into account. Drawing upon social science research, the Article first establishes that offenders with major mental illnesses are more likely than non-ill offenders to suffer physical and sexual assaults, endure housing in solitary confinement, and experience exacerbation of mental illness during their terms of confinement. This Article represents the first major effort in the legal literature to collect and analyze psychological studies bearing on the increased risk of harm faced by this population. After offering a …

Racing To Justice : Transforming Our Conceptions Of Self And Other To Build An Inclusive Society, John Powell

john a. powell

No abstract provided.

Finding Room For Fairness In Formalism--The Sliding Scale Approach To Unconscionability, Melissa T. Lonegrass

Melissa T. Lonegrass

No abstract provided.

The Place Of Law: The Role And Limits Of Law In Society, Larry Barnett

Larry D Barnett

The Place of Law addresses two questions that are critical to understanding law. Why is law an evidently universal, enduring institution in modern societies? And why do the concepts and doctrines of law differ between jurisdictions (states or nations) at one point in time and vary within a jurisdiction over time? In this stimulating volume, Barnett suggests answers to these questions, and in doing so, he challenges popular assumptions regarding law in structurally complex, technologically advanced, democratic societies. In particular, Barnett questions the assumption that social behaviors central to such societies are effectively controlled by law and the assumption that …

Professional Identity As Advocacy: The Good, The Bad, The Unseen, Robert Rubinson

Robert Rubinson

The legal profession adheres to a story of a unified profession. Nevertheless, the profession has distinct professional sub-groups which repeatedly represent clients with interests adverse to those represented by attorneys who identify with other sub-groups. The idea of “professional identity as advocacy” describes how such professional sub-groups accuse opposing sub-groups of greed, self-aggrandizement, or worse. This is most notable in two areas: personal injury litigation and criminal cases. This process has two seemingly contradictory consequences. First, it renders narrow areas extraordinarily visible, thus defining popular discourse and conceptions about lawyers and law. Second, it masks vast areas of litigation and …