Law Commons^™

Background Primer For Discussion On Diversity Within The Legal Profession, James M. Donovan

James M. Donovan

Despite its easy use in ordinary conversation, the details of what is meant when a speaker raises questions relating to “diversity” can be more complicated that they at first appear. The materials included here seek to map the more predominant landmarks on that intellectual landscape.

The Open Access Advantage For American Law Reviews, James M. Donovan, Carol A. Watson, Caroline Osborne

James M. Donovan

Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and law reviews can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a …

Encouraging Victims: Responding To A Recent Study Of Battered Women Who Commit Crimes, Carol E. Jordan

Carol E. Jordan

Over many decades, domestic violence statistics have consistently revealed that women from a wide variety of backgrounds are victimized, though the rate of victimization varies depending on a woman’s particular characteristics. Despite this consistency, past and present approaches to domestic violence have failed to attend to the diverse realities of victims. Advocates and researchers first devoted their efforts toward conveying the message that while any woman could potentially become a victim of domestic violence, no woman should become a victim. They then focused on creating laws and policies granting victims greater access to the legal system and making the justice …

Law, Legitimacy, And The Maligned Adverb, James M. Donovan

James M. Donovan

The standard rules for good writing dictate that adverbs should be avoided. They undermine the effectiveness of the text and detract from the author’s point. Lawyers have incorporated this general rule, leading them not only to avoid adverbs in their own writings but also to overlook them in the writings of others, including statutes. However, as philosopher Michael Oakeshott has argued, law happens not in the rules but in the adverbs. Through its adverbs the law allows moral space for the citizen to consent to the social order, rather than merely conforming to an imposed command to comply. To become …

Becoming Director: An Internal Candidate's View, Pat A. Newcombe, James M. Donovan

James M. Donovan

Articles reviewing the challenges of assuming a library directorship typically begin in the middle of the story. The new hire arrives from another campus to face a range of challenges. The accounts from there go on to extract a general map of the initial experiences along with helpful tools to navigate this intimidating terrain. That view, we suggest, obscures natural fault lines within the community of new directors. These divisions can fundamentally influence the initial experiences upon which the authors are offering their advice.

On such variable concerns the route by which the successful applicant has been named the new …

Dear Sec: Please Don't Abdicate Your Jobs Act Responsibility To Make Forthcoming "Regulation A+" Exemption From Registration Available To Small Businesses, Rutheford B. Campbell Jr.

Rutheford B Campbell Jr.

Title IV of the Jobs Act amends Section 3(b) of the Securities Act of 1933 by adding a new Section 3(b)(2). This new statute requires the Commission to adopt regulations (“Section 3(b)(2) Regulations”) that provide an exemption from registration for offerings of up to $50 million. The anticipated Section 3(b)(2) Regulations are often referred to as “Regulation A+”. The name used for Title IV of the Jobs Act – “Small Company Capital Formation” – indicates that the purpose of the legislation is to provide small businesses an efficient access external capital. The provisions of Title IV also suggest Regulation A …

Will An Institutional Repository Hurt My Ssrn Ranking?: Calming The Faculty Fear, James M. Donovan, Carol A. Watson

James M. Donovan

Librarians have every reason to support the creation of an institutional digital repository (IR). An IR preserves the output of the intellectual life of the school, enables anyone with internet access to enjoy the benefits of the new knowledge, and promotes the institution and scholar by bringing to the foreground their intellectual achievements.

Plans for a new IR project within the law school, however, can quickly find such worthy motives swept aside as faculty members invariably voice some version of the following comments: “Won’t posting my articles elsewhere steal downloads away from SSRN? That would lower my rankings in SSRN …

Tenure And The Law Library Director, James M. Donovan, Kevin B. Shelton

James M. Donovan

This essay offers a response to the current discussion concerning the possible rescission of ABA Accreditation Standard 603 governing tenure-track appointment of the law library director.

Part I reviews this discussion, highlighting the terms and arguments on all sides of the debate. Part II offers a defense of the current standard, based upon the need for the director both to receive the protections of academic freedom and to participate in faculty governance of the law school.

The need for tenure to perform a director's professional duties, however, does not make one automatically tenureable. Part III examines the skeptical attitude that …

Open Access: Good For Readers, Authors, And Journals, James M. Donovan, Carol A. Watson

James M. Donovan

Readers, authors, and even law journal publishers will all achieve their different but related interests by adopting open access principles. Readers of every kind will have more efficient access to the materials they need to pursue their intellectual and informational goals; authors will see their works read and cited by a broader audience; and law reviews and journals can raise their own profiles without injuring their revenue streams from fee-based sources. Open access works for everyone, and is the future of information creation and distribution.

Institutional Repositories: A Plethora Of Possibilities, Carol A. Watson, James M. Donovan

James M. Donovan

The law library can be a major contributing partner to the success of its law school by establishing a digital repository to preserve and promote the institution's intellectual memory. Today's law school repositories have matured to include many more types of materials than simply faculty law review and journal articles. Librarians are ideally poised to capture, organize and preserve their institution's history in this new and powerful showcase.

Why Law?, James M. Donovan

James M. Donovan

Fairness, then, not order, is the special domain of law. The accompaniments of law we expect in our society flow less from law itself, and more from our changing understanding of what is fair. As our understanding of fairness changes, we expect the law to change as well. Because fairness criteria have been shown empirically to vary from society to society, we can expect legal diversity to remain an enduring feature of the jurisprudential landscape. But now we know why.

Citation Advantage Of Open Access Legal Scholarship, James M. Donovan, Carol A. Watson

James M. Donovan

In this study focusing on the impact of open access on legal scholarship, the authors examine open access articles from three journals at the University of Georgia School of Law and confirm that legal scholarship freely available via open access improves an article’s research impact. Open access legal scholarship—which today appears to account for almost half of the output of law faculties—can expect to receive fifty-eight percent more citations than non–open access writings of similar age from the same venue.

Back Away From The Survey Monkey!, James M. Donovan

James M. Donovan

In an environment of too many—and too many ill-designed—surveys, our twin aims should be to reduce the number of surveys overall and to improve the quality of those that do circulate. This burden falls on both those who distribute questionnaires—to make them as efficient as possible—and those answering—to decline to participate in any project that shows signs of unthoughtful design, thereby forcing surveyors to “up their game.” Good surveying, a difficult task in the best of circumstances, becomes even more complicated when pushed through the favored medium of the online discussion list (commonly called a listserv), a choice that can …

Broun Is Mere Opportunist, James M. Donovan

James M. Donovan

Only Congressman Paul Broun could compress so many misleading statements and factual errors into such a brief space, beginning with his appeal to the Founding Fathers.

Online version available at http://www.onlineathens.com/stories/051509/let_439920953.shtml

Gay Marriage: The Issue, James M. Donovan

James M. Donovan

Comment in response to Bob Ostertag, "Why Gay Marriage Is the Wrong Issue," Flagpole, January 14, 2009.

Slightly different version available online at http://flagpole.com/Weekly/Comment/GayMarriageTheIssue.11Feb09

Libraries As Doppelgängers: A Meditation On Collection Development, James M. Donovan

James M. Donovan

Debates about the balance between electronic and paper resouces typically employ points on economics or patron access. That line of argument can be shown to depend upon an understanding of libraries as reducible to their contents. After showing that this premise must be discarded as logically inconsistent with the broader assertions made in favor of digital materials, the question is posed as to what qualities of libraries are not reducible to the materials they contain. The attractiveness of digital content, even if conclusive from a merely economic perspective, may still founder on the intrinsic properties of library qua "library."

One …

The Moral Significance Of Social Roles, James M. Donovan

James M. Donovan

Outside of specialized contexts, moral philosophy lacks an appreciation of the ethical commitments embedded within social roles such as that of "friend" and "spouse." The costs of this blindspot become especially high when considering certain problems that depend upon commonsense intuitions to discern what is or is not the "right" outcome. The problem of partiality--viewing one's relationships and projects as having intrinsic worth in themselves, rather than as a means to some other end, such as can be the case in some forms of utilitarianism--is one such example.

The present paper shows how unpacking the moral entailments of the roles …

Rights As Fairness, James M. Donovan

James M. Donovan

Edmundson characterizes the historical emergence of the idea of human rights out of the conceptual divergence between objective and subjective right, which he places in the Middle Ages. Objective right recognizes the justice of a given state of affairs. “Suppose I take St. Francis’ sandals without his permission. ‘Thou shalt not steal’—I have violated objective right, I have transgressed God’s commandment. But where does St. Francis come into the picture? We want to add, ‘St. Francis has a right to his sandals’” (Edmundson 2004, p. 9). He considers the appearance of this psychological foregrounding of the right-holder as a necessary …

Current Awareness Alerts Make The Internet Revolve Around You, James M. Donovan

James M. Donovan

Shares ways for busy lawyers to utilize tech-savvy methods to receive desired news and information.

Legal Anthropology: An Introduction, James M. Donovan

James M. Donovan

LEGAL ANTHROPOLOGY: AN INTRODUCTION offers an initial overview of the challenging debates surrounding the cross-cultural analysis of legal systems. Equal parts review and criticism, the author outlines the historical landmarks in the development of the discipline, identifying both strengths and weaknesses of each stage and contribution. LEGAL ANTHROPOLOGY suggests that future progress can be made by treating as the distinguishing feature of law the perceived fairness of structural inequalities of social systems, rather than the traditional emphasis upon sanction or dispute resolution.

Human Nature Constraints Upon The Realistic Utopianism Of Rawls And Nussbaum, James M. Donovan

James M. Donovan

As Christopher Bobonich (1993, p. S92) reminds us, “The idea of basing an ethical theory on human nature has attracted Western philosophers from the very beginning of philosophical reflection on ethics.” Unfortunately many philosophers have not kept apace with the best research in the empirical disciplines exploring that topic, with the result that their works contain more impractical idealism than they intend. In order to ensure the soundness and persuasiveness of their ethical conclusions, philosophers should routinely confront the relevant social scientific literature and situate their initial assumptions within that corpus. Before expounding on how humans ought to live, the …

Prolegomenon To A Fairness-Centered Anthropology Of Law, James M. Donovan

James M. Donovan

Legal anthropology, which began with Malinowski’s holistic reflections on law, has today drifted toward an emphasis on the study of dispute resolution. Part I outlines the three historical phases of this development—Holism, Realism, and Processualism—and identifies two shortcomings of viewing the dispute as the central problem for legal anthropology: (1) the collapse of law into dispute analyses has not been, and perhaps cannot be, fully theorized; and (2) the most pressing of current problems, such as human rights and intellectual property issues, cannot be reduced without distortion to the disputing paradigm. Part II offers fairness as an alternative organizing concept …

Corporate Domestic Partner Benefits, James M. Donovan

James M. Donovan

Despite the common use of the term domestic partner, it remains unclear what that term means either in identifying a specific individual or in its relationship to the status of marriage. Is it a temporary substitute based on equity, or a challenger looking toward social reform? Because these positions are mutually exclusive, domestic partner benefits activists must clarify what it is they hope to achieve.

The justification for withholding equitable compensation tends to fall back on the federal DOMA and ERISA laws, which unquestionably complicate the benefits terrain. But experts agree that while these federal laws may serve as a …

Delimiting The Culture Defense, James M. Donovan, John Stuart Garth

James M. Donovan

This essay builds upon the arguments of Alison Dundes Renteln in her influential book, THE CULTURAL DEFENSE 2004), in which she argues persuasively for a uniformly recognized culture defense in certain litigations. Critiquing some of her details, we recast her three-prong culture defense test to more effectively balance the competing interests of minority culture members to have their ways of life taken seriously by the courts, and of members of the dominant tradition who wish to preserve the rule of law with its necessary perception as treating all parties equally. The offered formulation now includes the following five elements:

1. …

A Foundation For Transnational Obligations, James M. Donovan

James M. Donovan

Human rights have, over the last fifty years, risen to the forefront of foreign relations. Whereas Marx could refer them as the “so-called human rights,” few today would be so bold as to question the cogency of the category itself. Despite this pervasive influence, the concept of human rights sits uneasily with other deeply-entrenched categories, not least being the sovereign state. Without some ethical reconciliation between these two, enforcement of these rights will remain opportunistic.

Some will argue that, just as the rights are predicated on the universal concept of the human, the mechanisms for their enforcement should also be …

Sexual Orientation And The Law: A Research Bibliography Selectively Annotating Legal Literature Through 2005, James M. Donovan

James M. Donovan

SEXUAL ORIENTATION AND THE LAW: A RESEARCH BIBLIOGRAPHY is a project of the Standing Committee on Lesbian and Gay Issues of the American Association of Law Libraries. This almost-500 page volume includes several features that the Standing Committee hopes will be useful to librarians and their patrons. These include: a description of the bibliography project from its origins in 1987; an introduction by Brad Sears, Executive Director of the Williams Institute on Sexual Orientation Law and Public Policy that places this literature into intellectual, historical and legal perspective; a reprint of the original 1994 bibligraphy as it appeared in Law …

The Possibility Of Technical Definition In Later Wittgenstein, James M. Donovan

James M. Donovan

Wittgenstein’s philosophy remains influential. If its tenets impose constraints on either the possibility of scientific definition at all, or upon the kinds that will be valid, then those limits should be recognized and to the extent possible, observed. Locating the locus of meaning in ordinary use does appear to preclude certain types of definitional strategies. Stipulative definitions of terms that have ordinary currency but which are idiosyncratic and not grounded in that common usage would appear to be most troublesome. It is not that one could not attempt such definitions (quite the contrary, they are offered at every turn), but …

Quality Online Legal Researching -- On The Cheap!, James M. Donovan

James M. Donovan

Summarizes issues to consider when exploring the internet for free but reliable legal resources, and offers a table of links to federal and Georgia state materials.

Act Up/Anita Bryant/Drugs, Religion, And Law/Lambda Legal Defense And Education Fund/Right To Reply And Right Of The Press/Sincerity Of Religious Belief, James M. Donovan

James M. Donovan

Six entries in the Encyclopedia of American Civil Liberties (Paul Finkelman, ed.).

"Anticipatory Self-Defense" And Other Stories, Jeanne M. Woods, James M. Donovan

James M. Donovan

We argue that the specious justification for the invasion of Iraq -- a war based on a pretext of anticipatory self-defense -- necessarily exacerbates the inherent tendency of war to dehumanize and humiliate the enemy. This tendency is particularly evident in the variant of anticipatory self-defense that we have denominated as "capacity preemption," a type of claim that by definition depends upon characterizations of the opponent as utterly inhuman.

The Bush Doctrine tells a timeless story of self-defense. This story is shaped by an identifiable and predictable narrative structure, one that is able to transform the morally outrageous -- an …