Law Commons^™

Beyond The Rhetoric Of Dirty Laundry: Examining The Value Of Internal Criticism Within Progressive Social Movements And Oppressed Communities, Darren L. Hutchinson

Faculty Articles

Several historical reasons explain opposition to the airing of internal criticism by scholars and activists within progressive social movements and by members of subordinate communities. Opponents often contend that such criticism might reinforce negative stereotypes of subordinate individuals and that reactionary movements and activists might appropriate and misuse negative portrayals of the oppressed. A related fear holds that internal criticism will dismantle political unity within oppressed communities and progressive social movements, thereby forestalling social change. While these concerns provide some context for understanding the resistance to internal criticism within progressive social movements, I argue in this essay that they do …

Bajakajian: New Hope For Escaping Excessive Fines Under The Civil False Claims Act, Melissa Ballengee Alexander

Faculty Articles

No abstract provided.

The Diminishing Sphere Of The Cooperative Virtues In American Law And Society, Ana M. Novoa

Faculty Articles

Exploration of destructive developments in American law and society show that family law is completely askew. Although family law deals with the most intimate and basic personal relationships, it applies a legal process based on autonomous individual public and private economic rights to those intimate relational realities. It is a hallowed expression of male virtues and a paradigmatic example of the use of the law to protect vested interests and shape society, rather than a reflection of reality.

The split between the private/family/female and the public/business/male spheres of the nineteenth century created the separation of competitive attributes, virtues, and vices …

Presidential Certifications In U.S. Foreign Policy Legislation, Mark A. Chinen

Faculty Articles

This article has two purposes; the first is to assess the value of certification requirements by describing their operation in foreign affairs legislation and by accounting for their use and the controversies that attend them. The second purpose of this article is to suggest ways to minimize the costs of certification requirements. The findings are presented in four sections. The author begins by sketching the features of certification requirements in current legislation. Next, the author discusses the constitutional background out of which these requirements arise. Then, in what forms the greater part of this article, the author describes and evaluates …

A Lesbian-Centered Critique Of Second-Parent Adoptions, Julie Shapiro

Faculty Articles

When lesbian couples start families, one woman often begins with all the legal entitlements of parenthood, either by giving birth or by virtue of adopting a child, while the other woman has no legal rights. She is a non-legal parent. Absent legal rights she suffers many critical disadvantages. Second-parent adoptions have been developed to allow lesbians to create families with two-legal parents. They have been widely hailed as a solution to the problem of the non-legal parent. This article argues, however, that for many women they may actually make matters worse. Because some women can use second-parent adoptions, women who …

Promoting Human Rights Values In Cuba’S Post-Castro Military, Jeffrey F. Addicott, Manuel Supervielle

Faculty Articles

The United States should develop a specific plan to take advantage of the opportunity to promote human rights values in the post-Castro Cuban military. United States military judge advocates are uniquely qualified to execute this plan and assist the post-Castro Cuban military to internalize respect and protection of human rights as part of its fundamental reason for existence. The development of such a human rights training program is not only a morally correct activity for the United States military to pursue, but given the never ending struggle to promote America’s national security within the framework of a shrinking defense budget, …

Sailing Through Designing Memo Assignments, Lorraine K. Bannai, Anne Enquist, Judith Maier, Susan Mcclellan

Faculty Articles

Sailing and designing memo assignments have a lot in common. At first, both can seem overwhelming - so much to learn, so much to organize sequentially, and so much to get right in a short period of time. Mistakes mean instability, lost time, and possibly capsizing. Avoiding the mistakes, a good skipper can break through to clean water and good air, and teaching writing can be exhilarating. The students and teacher both benefit from and enjoy working with an ideal memo assignment. The process is critical, but the destination is key. No memo assignment is effective if it results in …

Conclusion: Adapting The Seven Principles To Legal Education, Paula Lustbader

Faculty Articles

Professor Lustbader discusses how applying the seven principles to legal education can be done without a complete overhaul of legal pedagogy—several of the principles are now evident in many law schools. Professor Lustbader uses quotations from students to show how the seven principles help to create a more effective learning environment for students. Since the principles maximize the students learning experience, as graduates they will be better prepared to server their clients.

Imperatives, Normativity, And The Law, Gregory Silverman

Faculty Articles

In this article Professor Silverman sets out to resolve the problem of legal normativity. Professor Silverman argues that legal scholars have been prevented from transcending the limited conception of law engendered by a key dogma of nineteenth century jurisprudence: the dogma that laws are a species of commands, orders, or imperatives. As a result, even as we enter the twenty-first century, legal scholars have yet to articulate a legal architectonic that properly situates the normative commitments of a society within a post-modern legal system. An adequate theory of law must offer an account of the normativity of law: an account …

De Facto Parents And The Unfulfilled Promise Of The New Ali Principles, Julie Shapiro

Faculty Articles

Alternative families - those that do not fit the classic nuclear family model - have been the focus of legal reform over the last twenty years. The American Law Institute has produced model legislation recognizing de facto parents as holders of some limited rights. To some this is a more flexible regime that would benefit non-nuclear families, in particular lesbian families. This article critiques the ALI draft, demonstrating that its promise is largely illusory.

Principle 7: Good Practice Respects Diverse Talents And Ways Of Learning, And Conclusion: Adapting The Seven Principles To Legal Education, Paula Lustbader

Faculty Articles

This is one of seven articles from a symposium applying to law school the Principles of Good Teaching Practices that were developed for undergraduate educators. The article presents a good overview of the general issues that impact diverse students such as the institutional climate, admission and selection criteria, academic policies, student support program, curriculum, and law school pedagogy. It provides some concrete suggestions on how law schools can enhance learning. It is a good primer for ASP professionals because it points out the various factors that can hinder students' learning or academic performance.

A History Of Writing Advisors At Law Schools: Looking At Our Past, Looking At Our Future, Anne Enquist, Jessie Grearson

Faculty Articles

The authors, themselves writing advisors at The John Marshall Law School and Seattle University School of Law respectively, have recently surveyed both Directors of Legal Writing and Writing Advisors across the country to learn more about the phenomena of Writing Advisors in law schools. This article will report the results of that survey. First, however, the authors will give a brief history of the events surrounding the arrival of Writing Advisors at law schools, including the rise of the writing-across-the-curriculum (WAC) movement, and then they will describe how these events set the stage for Writing Advisors at law schools. Second, …

Postcolonial Imaginaries: Alternative Development Or Alternatives To Development?, Tayyab Mahmud

Faculty Articles

This review essay critically interrogates the discourse and practice of development. It is argued that models of alternative development remain imprisoned in the ontological categories of the development project, an ideological and institutional devise to consolidate the hegemony of the West over the rest. Finally, a framework to explore alternatives to development is suggested.

The Effect Of Welfare Reform On Immigrant Children, Gillian Dutton

Faculty Articles

Welfare reform's changes in immigration laws-aimed at working-age adults-may have a lasting effect on immigrant children in the United States. By familiarizing themselves with the most common barriers to assistance and ways to overcome them, advocates can help immigrant children access the benefits they need to lead better lives.

Narrative And Client-Centered Representation: What Is A True Believer To Do When His Two Favorite Theories Collide?, John B. Mitchell

Faculty Articles

Professor Mitchell illustrates that Client-centered Representation does not simplistically reduce to a single admonition: Tell the client's story. The concept is far more nuanced than that. It incorporates a constellation of ideas. Listen to the client's story. Hear what they want. Try to be creative about ways to tell the story. Look for opportunities to bring their story into the legal process. At the same time, the attorney must join together to discuss any risks and problems which may result from various strategic choices, including the risks in even telling the story and whether those risks are worth it to …

Apartheid As A Crime Against Humanity: A Submission To The South African Truth And Reconciliation Commission, Ronald Slye

Faculty Articles

This submission made to the TRC by the Allard K. Lowenstein International Human Rights Law Clinic, the Lawyers Committee for Human Rights, and twenty-one international law professors regarding apartheid as a crime against humanity (reproduced below) grew out of the debate within South Africa concerning apartheid, crimes against humanity, genocide, and Nazism. This submission is an authoritative statement by experts in international law concerning the legal status of apartheid and was drafted in part to clarify the relevant issues for a legal evaluation of apartheid-not only within the TRC, but also in broader South African and international society. The submission …

The Past, Present And Future Of Copyright Protection Of Soundalike Recordings, Kent Milunovich

Faculty Articles

This article suggests that copyright law can cover soundalike musical recordings. First, the facts and holding of Midler will be discussed as well as the court's motivation for not deciding the case on a copyright infringement basis. Second, an historical background for copyright infringement of music follows. This section involves a discussion of copyright infringement, parody, and fair use as well as a summary of existing case law regarding each topic. After an illustration of the dilemma of what copyright may protect involving the jazz-rock band Blood, Sweat & Tears, the focus shifts to what could have been done to …

Colonialism And Modern Constructions Of Race: A Preliminary Inquiry, Tayyab Mahmud

Faculty Articles

This article aims at an examination of the colonial career of the modern construction of race and its traces in post-coloniality. It locates race in regimes of legality and illegality attendant to British colonial rule over India to underscore the defining role of colonialism in modern constructions of race. The first part recounts the modern grammar of racial difference rooted in the colonial encounter between modern Europe and its colonies. The second part identifies three specific sites of deployment of colonial racial stereotypes in colonial India, namely, "martial races," "criminal tribes," and indentured labor. The last part traces the shadow …

Facing History, Facing Ourselves: Eric Yamamoto And The Quest For Justice, Robert S. Chang

Faculty Articles

Professor Robert Chang reviews Professor Eric Yamamoto’s Interracial Justice: Conflict And Reconciliation In Post-Civil Rights America. Professor Chang illustrates the analytic framework in Interracial Justice that shows us some of the ingredients necessary for a successful resolution. This book is the culmination of several years of activist lawyering and academic writing. In his book, Professor Yamamoto shares the lessons he has learned as an advocate and law professor.

Introduction: Critical Race Praxis And Legal Scholarship, Margaret Chon

Faculty Articles

In this introduction, Professors Margaret Chon and Keith Aoki situate both Professor Yamamoto's work and the articles that respond to it. They also follow Yamamoto's advice and "perform" critical race praxis as it might relate to legal education and legal scholarship. Thus, the latter part of this introduction takes the form of an epistolary exchange, culled loosely from various e-mail messages between Professors Aoki and Chon. It is intended (in both form and content) to illustrate how conceptual tools that Yamamoto provides can be used to address the intergroup racial justice issues that permeate law schools.

A True Crime: A Review Of Janet Malcolm, The Crime Of Sheila Mcgough (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

Barriers To Protection At Home And Abroad: Mexican Victims Of Domestic Violence And The Violence Against Women Act, Lee J. Teran

Faculty Articles

Undocumented domestic violence victims face many challenges in proving they will suffer extreme hardship if deported. Heralded as the most significant legislation to aid victims of domestic violence, the Violence Against Women Act of 1994 (“VAWA”) recognized two main ideas. First, domestic violence is a serious national problem in the United States. Second, the undocumented immigration status of victims and their fear of deportation exacerbates domestic abuse. VAWA commands that immigration laws remedy, rather than perpetuate, violence in families of citizens and lawful permanent residents. However, requiring victims of domestic violence to prove they will suffer extreme hardship if deported …

“Loss Of Earning Capacity” Benefits In The Community Property Jurisdiction--How Do You Figure?, Aloysius A. Leopold

Faculty Articles

In the interest of uniformity, benefits for the loss of earning capacity should be subject to the same legal principle when determining marital property rights, regardless of the context in which those rights arise. However, courts throughout the United States have relied upon four different methods to determine title to loss of earning capacity benefits upon divorce. These approaches include the unitary approach, the analytic approach, the mechanistic approach, and the case-by-case approach.

Because the determination of title to benefits varies tremendously, the need for certainty in this area of the law is necessary particularly in light of the Texas …

Professor Steele’S Opus, Gerald S. Reamey

Faculty Articles

Walter Steele is a consummate teacher precisely because he always is teaching. To observe him, to converse with him, to listen to him, to read him, is to learn something. He would not talk about ethical behavior in the classroom, only to cut corners in his private life. He would not demand razor-sharp logic from his students, and then allow himself to be sloppy in his own thinking.

Over the years, the word former students seem to use most often to describe Professor Steele is “intimidating.” He is intimidating because of his power; not the power some law professors wield …

Gay Rights For Gay Whites: Race, Sexual Identity, And Equal Protection Discourse, Darren L. Hutchinson

Faculty Articles

My argument proceeds in four parts. Part I situates my discussion of the synergistic relationship among race, class, gender, and sexuality within a broader body of research on the "intersectionality'' of systems of oppression and of identity categories. Part I then examines how my scholarship attempts to advance this literature both substantively and conceptually. Part II expounds my claim that the comparative and essentialist treatment of race and sexuality within pro-gay and lesbian theory and politics marginalizes gay, lesbian, bisexual, and trans­gendered persons of color and constructs and reinforces the notion that the gay and lesbian community is uniformly white …

The Daishonin’S Path: Applying Nichiren’S Buddhist Principles To American Legal Education, John W. Teeter Jr

Faculty Articles

The fundamental aspects of Nichiren Daishonin's teachings merit modern attention. The Daishonin was a tireless mentor for his disciples, and his call for compassion, critique, courage, and wisdom are essential for law students and teachers alike. A remarkable man, the Daishonin's perceptions ought to inform the way professors teach and advise their students, and encourage others to reflect on their own sources of spiritual sustenance and examine the contributions they can make toward deepening the relevance, meaning, and joy of legal education.

The Daishonin emphasized the primacy of The Lotus Sutra, which declares that all living beings inherently possess the …

Secured Transactions History: The Fraudulent Myth, George Lee Flint Jr

Faculty Articles

England first adopted Germanic law banning nonpossessory secured transactions because at the time, England was controlled by the Normans. The ban persisted as long as statutes favored alternative security devices, namely the pledge and the collusive judgment, the major competing security device. But the allowance of interest after 1571 obviated the advantage of the pledge to surreptitiously generate interest under the usury ban. The 1677 Statute of Frauds destroyed the priority of the collusive judgment, changing its priority from date of the judgment entered to the delivery of the writ of execution to the sheriff for execution. The nonpossessory secured …

Secured Transactions History: The Impact Of Textile Machinery On The Chattel Mortgage Acts Of The Northeast, George Lee Flint Jr

Faculty Articles

The northeastern states passed chattel mortgage statues in the 1830s to replace the rebuttable rule acknowledging third party rights to the collateral, which created litigation to enforce a nonpossessory secured transaction. The rebuttable rule presumed that debtor possession of the collateral was fraud, but also allowed the secured party to present rebuttal evidence of his good faith in the transaction. The rebuttable rule negatively affected the textile machinery industry, allowing third parties to collect over the original creditor. In an effort to maneuver around the rebuttable rule, machinery manufacturers turned to a host of legal remedies, but eventually decided on …

What Place For Family Privacy?, Martha Albertson Fineman

Faculty Articles

This nuclear unit is thought to be in "crisis" because of the tendency of many marriages to dissemble and dissolve. Some people claim that society is also in a state of crisis as a result of marital instability. Many are concerned by the assembling of "deviant" and competing intimate entities claiming entitlement to the benefits and privileges previously extended to marriage." The family has become the symbolic terrain for the cultural war in which our society is increasingly mired. If one believes the family is not inherently limited to any essential or natural form, but is as contrived as any …

Appellate Law In The New Millennium: Bridging Theoretical Foundation With Practical Application, Bill Piatt

Faculty Articles

For the appellate lawyer, bridging the gap between theoretical foundation and practical application is an important challenge. An attorney who is unable to bring these two notions together is only partially effective as an advocate. Without a firm theoretical foundation that embraces both the law and policy that underlie the lawyer’s argument, the substance of the appellate advocate’s position will not persuade the court effectively. Similarly, without having mastered the practical side of appellate advocacy, the lawyer will be ineffective in communicating the substance of the argument altogether.

This Symposium provides the appellate specialist and non-appellate attorney alike with a …