Law Commons^™

Regulation Of Encapsulated Placenta, Greer Donley

Articles

The practice of placenta encapsulation is rapidly growing. It typically involves post-partum mothers consuming their placentas as pills in the months after childbirth. The perceived benefits include improved mood and energy, reduced bleeding and pain, and greater milk supply. But these effects are unproven, and consumption comes with health risks. The rise of this trend has sparked a vigorous debate in the recent medical literature, but this Article is the first to consider the legal implications of placenta encapsulation. This Article examines whether FDA should regulate encapsulated placenta, and if so, whether it should be regulated as a drug, supplement, …

The Technologies Of Race: Big Data, Privacy And The New Racial Bioethics, Christian Sundquist

Articles

Advancements in genetic technology have resurrected long discarded conceptualizations of “race” as a biological reality. The rise of modern biological race thinking – as evidenced in health disparity research, personal genomics, DNA criminal forensics, and bio-databanking - not only is scientifically unsound but portends the future normalization of racial inequality. This Article articulates a constitutional theory of shared humanity, rooted in the substantive due process doctrine and Ninth Amendment, to counter the socio-legal acceptance of modern genetic racial differentiation. It argues that state actions that rely on biological racial distinctions undermine the essential personhood of individuals subjected to such taxonomies, …

Firepower To The People: Gun Rights & Self-Defense To Curb Police Misconduct, Spearit

Articles

This Article represents a polemic against the most harmful aspects of the policing status quo. At its core, the work asserts the right of civilians to defend against unlawful deadly police conduct. It argues that existing gun and self-defense laws provide a practical and principled basis for curbing police misconduct. It also examines legislative trends in gun laws to show that much of most recent liberalizing of gun rights is a direct response to self-defense concerns sparked by mass public shootings. The expansion of gun rights and self-defense comes at a time when ongoing police killings of Black civilians menace …

Beyond The 'Resiliency' And 'Grit' Narrative In Legal Education: Race, Class And Gender Considerations, Christian Sundquist

Articles

Law schools have been struggling to adapt to the “new normal” of decreased enrollments and a significantly altered legal employment market. Despite the decrease in traditional attorney jobs, as well as the possibility that artificial intelligence systems such as “ROSS” will displace additional jobs in the future, there still remains a significant gap in legal services available to the poor, middle class, and immigrants. The integration of social justice methodologies in the classroom thus has become critically important to the future of legal education and of the very practice of law.

Many commentators on the future of legal education have …

Keeping It Real: Why Congress Must Act To Restore Pell Grant Funding For Prisoners, Spearit

Articles

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners.

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …

Towards A New Eviction Jurisprudence, Gerald S. Dickinson

Articles

The One-Strike Rule, contemplated in a model lease provision, has been the primary mechanism employed by Congress to eliminate the “scourge of drugs” in public housing projects. The rule gives public housing authorities (PHA) discretion to evict tenants engaged in drug-related criminal activity and hold the tenant equally liable if a guest or family member engaged in the criminal activity, even if the tenant had no knowledge of the offense. The Supreme Court most notably upheld this policy in 2002 in United States Department of Housing and Urban Development v. Rucker.

Today the wisdom of that rule, which has served …

Commons At The Intersection Of Peer Production, Citizen Science, And Big Data: Galaxy Zoo, Michael J. Madison

Book Chapters

The knowledge commons research framework is applied to a case of commons governance grounded in research in modern astronomy. The case, Galaxy Zoo, is a leading example of at least three different contemporary phenomena. In the first place Galaxy Zoo is a global citizen science project, in which volunteer non-scientists have been recruited to participate in large-scale data analysis via the Internet. In the second place Galaxy Zoo is a highly successful example of peer production, sometimes known colloquially as crowdsourcing, by which data are gathered, supplied, and/or analyzed by very large numbers of anonymous and pseudonymous contributors to an …

Twenty Years After The Education Apocalypse: The Ongoing Fall Out From The 1994 Omnibus Crime Bill, Spearit, Mary Gould

Articles

This essay is an introduction to the 2013 National Conference on Higher Education in Prison, organized by the Saint Louis University Prison Program. It is a primer on the current state of higher education in prison, which provides a social-legal framework for the conference and the symposium essays that follow. Beginning with the recent history of the exponential growth of incarceration in the past four decades, it charts the unprecedented reliance on incarceration that, at present, distinguishes the country as a world-class punisher. It was in the middle of this shift that the 1994 Omnibus Crime Bill was born, which …

Retaliation In The Eeo Office, Deborah L. Brake

Articles

This Article examines a new and as-yet unexplored development in retaliation law under Title VII and other anti-discrimination statutes: the denial of protection from retaliation to the class of employees charged with enforcing their employers’ internal anti-discrimination policies and complaint procedures. Through distinctive applications of traditional retaliation doctrine and newer rules formulated specifically for this class of employees, these workers are increasingly vulnerable to unchecked retaliation by their employers. This troubling trend has important implications for workplace retaliation law and for employment discrimination law more broadly. This Article makes two contributions to legal scholarship. First, it traces the legal doctrines …

Muslim Radicalization In Prison: Responding With Sound Penal Policy Or The Sound Of Alarm?, Spearit

Articles

This article assesses radicalization among Muslim prisoners in the post- 9/11 era by analysis of ethnographic data in light of the available research. There are two primary motives that drive this inquiry: (1) to determine whether prisons are “fertile soil for jihad” as claimed, and (2) to the extent prisoner radicalization does occur, determine the ideological motives. In the last decade, politicians and analysts have clamored about the “danger” and “threat” posed by Islam in American prisons. Yet these characterizations sit in tension with several decades of sustained Islamic outreach in prison to support inmate rehabilitation and re-entry. They also …

A Response To Professor Leff’S Tax Planning 'Olive Branch' For Marijuana Dealers, Philip Hackney

Articles

Professor Benjamin Leff argues in a forthcoming article entitled Tax Planning for Marijuana Dealers that a tax-exempt social welfare organization described in Internal Revenue Code section 501(c)(4) may sell medical marijuana without putting its exempt status in jeopardy. He argues that (1) the “public policy” doctrine applicable to charitable organizations under section 501(c)(3) does not apply to social welfare organizations, and (2) a social welfare organization may consider “community” law and ignore federal law in considering whether its activity meets the idea of social welfare. I argue that Leff is wrong and that the public policy doctrine applicable to charitable …

Stasis And Change In Environmental Law: The Past, Present And Future Of The Fordham Environmental Law Review, Gerald S. Dickinson

Articles

The past twenty years of environmental law are marked as much by legislative stasis as by profound change in the way that lawyers, policymakers, and scholars interact with the field. Although no new federal legislation was passed over the past two decades, much has changed about the field of environmental law. This change is the result of a set of conceptual and legal challenges to the field posed by intellectual and policy movements that took root in the early 1990s. The intellectual and policy movements that have most profoundly shaped the field of environmental law in the past twenty years …

Special Report: Kosovo After The Icj Opinion, Introduction, Ronald A. Brand

Articles

On October 22-25, 2012, judges, government officials, and scholars from Kosovo and the United States gathered at the University of Pittsburgh for a conference on “Kosovo after the ICJ Opinion.” The conference was organized by the Center for International Legal Education (CILE) at the University of Pittsburgh School of Law, and the University of Prishtina Faculty of Law. It was co-sponsored by the Ministry of Justice, Kosovo; the Ministry of Foreign Affairs, Kosovo; the Forum for Civic Initiatives, Kosovo; the American Society of International Law (ASIL); and the Center for Russian and Eastern European Studies at the University of Pittsburgh …

Tax Reform DisCourse, Anthony C. Infanti

Articles

Our tax system is supposed to serve the public good by fairly raising the revenue that we need to fund public expenditures — for example, the common defense, social safety net programs such as Social Security and Medicare, etc. But the tax reform debate has shifted away from discussing how best to distribute the burden of these common expenditures and instead has come to focus on how tax reform can be used to spur economic growth. Especially in times of economic crisis, these two goals — equitably funding public expenditures and spurring economic growth — sound equally important and somehow …

Open Secrets, Michael J. Madison

Book Chapters

The law of trade secrets is often conceptualized in bilateral terms, as creating and enforcing rights between trade secret owners, on the one hand, and misappropriators on the other hand. This paper, a chapter in a forthcoming collection on the law of trade secrets, argues that trade secrets and the law that guards them can serve structural and institutional roles as well. Somewhat surprisingly, given the law’s focus on secrecy, among the institutional products of trade secrets law are commons, or managed openness: environments designed to facilitate the structured sharing of information. The paper illustrates with examples drawn from existing …

'We, The Paparazzi': Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton

Articles

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation - the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

Deconstructing The Duty To The Tax System: Unfettering Zealous Advocacy On Behalf Of Lesbian And Gay Taxpayers, Anthony C. Infanti

Articles

In this article, I consider how the tax lawyer's generally-acknowledged duty to the tax system should be applied in the representation of lesbian and gay clients. Due to the significant initial advantages that taxpayers are thought to have over the government in the tax compliance and enforcement process, this duty to the tax system requires a tax lawyer to avoid both questionable positions and the temptation to play the audit "lottery." The tax lawyer is asked to temper the zealousness of her advocacy in this way in order to preserve the integrity and, ultimately, the proper functioning of the tax …

Minority Rights, Minority Wrongs, Elena Baylis

Articles

Many of the new democracies established in the last twenty years are severely ethnically divided, with numerous minority groups, languages, and religions. As part of the process of democratization, there has also been an explosion of “national human rights institutions,” that is, independent government agencies whose purpose is to promote enforcement of human rights. But despite the significance of minority concerns to the stability and success of these new democracies, and despite the relevance of minority rights to the mandates of national human rights institutions, a surprisingly limited number of national human rights institutions have directed programs and resources to …

The War On Terrorism And Civil Liberties, Jules Lobel

Articles

Throughout American history, we have grappled with the problem of balancing liberty versus security in times of war or national emergency. Our history is littered with sordid examples of the Constitution's silence during war or perceived national emergency. The Bush Administration’s War on Terror has once again forced a reckoning requiring Americans to balance liberty and national security in wartime. President Bush has stated, "[w]e believe in democracy and rule of law and the Constitution. But we're under attack.” President Bush, Attorney General Ashcroft and other governmental leaders have argued that in war, "the Constitution does not give foreign enemies …