Law Commons^™

A Name Of One’S Own: The Spousal Permission Requirement And The Persistence Of Patriarchy, Beth D. Cohen

Faculty Scholarship

This Article addresses a discrete but inequitable issue in the area of name-change law. As the law currently operates in Massachusetts, the process by which a married person, usually a woman, can seek a legal name change requires signed permission—the written assent of a spouse. In the absence of such signed permission or spousal consent, a married person seeking a name change is required to serve his or her spouse by certified mail, as an adversary, in what is otherwise typically a nonadversarial administrative legal process. This requirement of spousal notification and consent, although gender neutral on its face, has …

The New State Postconviction, Giovanna Shay

Faculty Scholarship

This Article examines two October Term 2011 Supreme Court cases – Maples v. Thomas and Martinez v. Ryan – which have a significant impact on the provision of counsel in state postconviction proceedings. In Maples and Martinez the Court expanded the circumstances in which deficient performance by state postconviction counsel can overcome procedural default, to permit the prisoner to litigate defaulted claims on the merits in federal habeas. The Author argues that, given the increased significance of state postconviction under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), Maples and Martinez could have a salutary effect on the development of …

Formalism And State Secrets, Sudha Setty

Faculty Scholarship

The state secrets privilege has received a tremendous amount of scholarly attention in the U.S. in the last decade. In September 2009, the Obama administration created a new policy that mandated a more rigorous internal administrative review prior to invoking the state secrets privilege. It appears as though this internal review process has resulted in little difference with regard to the invocation of the privilege at the pleadings stage in cases that allege torture and other human rights abuses. This chapter of the forthcoming comparative law volume Secrecy, National Security and the Vindication of Constitutional Law (David Cole, Federico Fabbrini …

Deconstructing Corporate Governance: The Mechanics Of Trusting, René Reich-Graefe

Faculty Scholarship

The phenomenon of trust among firm participants is a much neglected academic inquiry in corporate governance research and the theory of the firm. This Article elaborates on the comparatively small sample of existing legal research on the intersection of trust and corporate governance and tries to interrupt the selective (in-)attention given to the philosophical, psychological, political, sociological, economic, and legal phenomenon that is our individual as well as collective, everyday trust (or distrust) in the functionality and explainability of the world tomorrow in accordance with our preferences of today and our experiences of the past. Trust—as a phenomenon—is a concrete …

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Faculty Scholarship

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

Defying Gravity: The Development Of Standards In The International Prosecution Of International Atrocity Crimes, Matthew H. Charity

Faculty Scholarship

The International Criminal Court (the “ICC”), now one decade old, is still in the process of setting norms as to scope, jurisdiction, and other issues. One issue that has thus far defied resolution is a key issue of jurisdiction: the place of complementarity in deciding whether certain criminal issues impacting international standards or interests should be decided before the ICC or national tribunals. Although the Rome Statute crystallizes definitions of core international crimes that may be tried before the ICC, the process of determining whether to leave jurisdiction with the nation or allowing jurisdiction to the ICC continues to lack …

[Including But Not Limited To] Violence Against Women, Giovanna Shay

Faculty Scholarship

This Article highlights three developments in criminal justice in 2012 that marked the move toward more gender-inclusive anti-violence movements: the FBI’s adoption of a gender-neutral definition of rape; the debate regarding the reauthorization of the Violence Against Women Act (VAWA); and the promulgation of new Department of Justice (DOJ) regulations under the Prison Rape Elimination Act of 2003 (PREA). These recent developments reveal a growing movement towards more gender-inclusive conceptions of rape and intimate partner violence. The change to a more gender-inclusive approach will have many implications for criminal justice policy and institutions. One critical project is to ensure that …

"On The Basis Of Sex": Using Title Ix To Protect Transgender Students From Discrimination In Education, Erin E. Buzuvis

Faculty Scholarship

Transgender students are vulnerable to discrimination, exclusion, and harassment, and it is not clear to what extent this discrimination is prohibited by law. Title IX, the federal law prohibiting discrimination "on the basis of sex" in federally-funded schools, does not expressly prohibit discrimination against transgender students. Yet it is possible to interpret the prohibition on sex discrimination in a number of different ways that would make the law available to transgender plaintiffs in some, many, or all cases of discrimination otherwise covered by the statute. Since Title IX has only been invoked in a handful of transgender rights cases, litigants …

Transsexual And Intersex Athletes, Erin Buzuvis

Faculty Scholarship

In her chapter, the Author examines the impact of both past and present policies enacted by many sport organizations, such as the International Olympic Committee (IOC) on intersex and transsexual athletes. At the root of many of these policies, and therefore the issues, are the binary gender system and the concern that fraudulent competitors could gain an advantage relative to the rest of the field. While no longer mandatory, women athletes are still subject to varying degrees of sex verification testing on a case-by-case basis, as evidenced by the 2009 testing of South African runner, Caster Semenya.

Recent policies point …

Preparing "Main Street" Lawyers: Practicing Without Big Firm Experience, Lisa Reel Schmidt, Steve Garland, Robert Statchen

Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panelists advance two premises: First, that law schools need to teach transactional skills because many students will either focus on transactional law or practice general law where transactional skills are necessary; and second, that some of the transactional skills the schools teach should be specific to main street lawyering because a number of students will be main street lawyers. The panelists explain how the transactional skills necessary for main street lawyering differ from skills needed in litigation and big law firms. They …

The Lawyer's Toolbox: Teaching Students About Risk Allocation, Dana Malkus, Scott Stevenson, Eric J. Gouvin, Usha Rodriques

Faculty Scholarship

This Article is the transcript of a panel presented at Emory’s Third Biennial Conference on Transactional Education. The panel focuses on techniques for teaching risk allocation as part of transactional skills classes. The panelists describe their approaches to teaching risk allocation, from syllabus design to final evaluations. How can a professor help students to understand the basic concepts of risk, the role risk plays in business and legal decisions, and how they can help clients manage risk. The techniques for teaching risk allocation include hypotheticals, visual aids, and hands-on assignments. The panelists each take their students down a different path …

Two Conflicts In Context: Lessons From The Schiavo And Bland Cases And The Role Of Best Interests Analysis In The United Kingdom, Barbara A. Noah

Faculty Scholarship

This Essay considers the different approaches to end of life decision making for incapacitated patients in the United States and in the United Kingdom. In the United States, individual patient autonomy is the primary guidepost for making end of life decisions for incapacitated patients. In the United Kingdom, patient preference is openly and deliberately supplemented with a careful consideration of the patient’s best interest. To contrast the two approaches, the Essay focuses on two cases involving patients in permanent vegetative states (PVS) for whom little was known about their respective individual preferences, and it analyzes the differences in conceptualization and …

In Denial: The Role Of Law In Preparing For Death, Barbara A. Noah

Faculty Scholarship

Only approximately 20% of Americans have engaged in any form of advance care planning and, even among older Americans, the process frequently is delayed until an acute illness provides sufficient pressure to act. End of life law, though flawed, offers some opportunity to express individual values and preferences via advance directives of various kinds in order to prepare for death before it is imminent. Yet many people avoid making these preparations because the thought of death is uncomfortable to confront. This Article considers the utility of existing law in preventing and resolving end of life disputes and avoiding over-utilization of …

Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay

Faculty Scholarship

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following …

Securing Equal Access To Sex-Segregated Facilities For Transgender Students, Harper Jean Tobin, Jennifer L. Levi

Faculty Scholarship

If Title IX is to have any real meaning for transgender students, it must protect a student's ability to live and participate in school as a member of the gender with which they identify. This means that students must be permitted to use gender-segregated spaces, including restrooms and locker rooms, consistent with their gender identity, without restriction. Denial of equal access to facilities that correspond to a student's gender identity singles out and stigmatizes transgender students, inflicts humiliation and trauma, interferes with medical treatment, and empowers bullies. A student subjected to these conditions is, by definition, deprived of an equal …