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Full-Text Articles in Law

Rights Myopia In Child Welfare, Clare Huntington Jan 2005

Rights Myopia In Child Welfare, Clare Huntington

Faculty Scholarship

For decades, legal scholars have debated the proper balance of parents' rights and children's rights in the child welfare system. This Article argues that the debate mistakenly privileges rights. Neither parents' rights nor children's rights serve families well because, as implemented, a solely rights-based model of child welfare does not protect the interests of parents or children. Additionally, even if well-implemented, the model still would not serve parents or children because it obscures the important role of poverty in child abuse and neglect and fosters conflict rather than collaboration between the state and families. In lieu of a solely rights-based …


Essay: The Romance Of Nuremberg And The Tease Of Moral Justice The Nuremberg Trials: A Reappraisal And Their Legacy, Thane Rosenbaum Jan 2005

Essay: The Romance Of Nuremberg And The Tease Of Moral Justice The Nuremberg Trials: A Reappraisal And Their Legacy, Thane Rosenbaum

Faculty Scholarship

Moral justice is an illusion, a pipe dream of the pious, a fantasy of the just, nothing more than a mere myth for the rest of us. It is a mirage of civilized society, something we can envision but seldom receive, a lure that is painfully alluring but ultimately ungraspable.


Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal Jan 2005

Sexuality And Sovereignty: The Global Limits And Possibilities Of Lawrence Symposium: Legal Rights In Historical Perspective: From The Margins To The Mainstream, Sonia K. Katyal

Faculty Scholarship

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the …


Reconceptualizing Advocacy Ethics, Fred C. Zacharias, Bruce A. Green Jan 2005

Reconceptualizing Advocacy Ethics, Fred C. Zacharias, Bruce A. Green

Faculty Scholarship

No abstract provided.


Constitutional Right Against Excessive Punishment, The, Youngjae Lee Jan 2005

Constitutional Right Against Excessive Punishment, The, Youngjae Lee

Faculty Scholarship

When is a death sentence, a sentence of imprisonment, or a fine so "excessive" or "disproportionate" in relation to the crime for which it is imposed that it violates the Eighth Amendment? Despite the urgings of various commentators and the Supreme Court's own repeated, albeit uncertain, gestures in the direction of proportionality regulation by the judiciary, the Court's answer to this question within the past few decades is a body of law that is messy and complex, yet largely meaningless as a constraint. In the core of this ineffectual and incoherent proportionality jurisprudence lies a conceptual confusion over the meaning …


New Business Entities In Evolutionary Perspective, Henry Hansmann, Reiner Kraakman, Richard Squire Jan 2005

New Business Entities In Evolutionary Perspective, Henry Hansmann, Reiner Kraakman, Richard Squire

Faculty Scholarship

The new types of business forms that have developed over the past thirty years all combine the freedom of contracting that is traditional to the partnership with the pattern of creditors' rights that is traditional to the business corporation. Legal scholars differ on the issue of whether these new business forms are more partnership-like or corporation-like. Those taking the partnership-like view argue that the degree of freedom of contract is the essential difference between the traditional corporation and partnership forms, while those adhering to the corporation-like view argue that the pattern of creditors' rights is the essential difference. The authors …


Supermajoritarianism And The American Criminal Jury, Ethan J. Leib Jan 2005

Supermajoritarianism And The American Criminal Jury, Ethan J. Leib

Faculty Scholarship

I argue in this article that supermajority decision rules would be more appropriate than unanimity or majority rule for criminal jury convictions and that majority decision rules would be more appropriate than either unanimity or supermajoritarian rules for acquittals. I first summarize some of the advantages and disadvantages of various decision rules as a matter of general democratic theory. I next outline the arguments made for various decision rules in the context of the criminal jury. Finally, I offer an argument for supermajoritarian requirements for conviction rooted in our general constitutional commitment to supermajoritarianism. I present a coherentist account for …


Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez Jan 2005

Critical Race Feminism Empirical Research Project: Sexual Harassment & (And) The Internal Complaints Black Box, A Defining The Voices Of Critical Race Feminism, Tanya K. Hernandez

Faculty Scholarship

In this Article, I present a Critial Race Feminism (CRF) empirical sexual harassment project I recently conducted as a case study of how empirical research can be valuable to the future of CRF. Part I introduces the sexual harassment study and discusses the empirical questions it sought to explore. Part II then presents the empirical research design and the general trends that the data provided. Part III analyzes the key findings of the study and how it contributes to an understanding of how the application of sexual harassment law implicates race. The statistical analysis of survey responses from a group …