Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law and Society (6)
- Courts (3)
- Immigration Law (3)
- Legal Education (3)
- Legal Writing and Research (3)
-
- Human Rights Law (2)
- International Law (2)
- Sexuality and the Law (2)
- Antitrust and Trade Regulation (1)
- Banking and Finance Law (1)
- Business Organizations Law (1)
- Civil Procedure (1)
- Civil Rights and Discrimination (1)
- Constitutional Law (1)
- Environmental Law (1)
- Family Law (1)
- Law and Economics (1)
- Legal History (1)
- Legal Profession (1)
Articles 1 - 25 of 25
Full-Text Articles in Law
In Memoriam: Joseph M. Williams, Chris Rideout
In Memoriam: Joseph M. Williams, Chris Rideout
Faculty Articles
Professor Chris Rideout pays tribute to Joseph M. Williams, 1933-2008, Professor Emeritus, University of Chicago and author of Style: Ten Lessons in Clarity and Grace, among other highly influential works. Professor Rideout shows his appreciation for Williams' generous support and many contributions to the world of writing instruction, especially legal writing.
Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout
Storytelling, Narrative Rationality, And Legal Persuasion, Chris Rideout
Faculty Articles
Professor Chris Rideout has long been interested in persuasion, and for many years he has included theories of persuasion in an advanced legal writing seminar that he teaches. He always asks his students the same question—“what persuades in the law?”—and after looking at different theories of persuasion, they then develop their own theory of legal persuasion. When he first taught the course, he had in mind rhetorical models of persuasion, starting with Aristotle and Cicero and moving toward more contemporary rhetorical work. Very quickly, however, he had to add narrative models of persuasion, plus a second question—“what is it about …
Documenting Gender, Dean Spade
Documenting Gender, Dean Spade
Faculty Articles
This article provides an analysis of gender reclassification policies - policies that determine when an administrative agency will change an individual's gender marker on its records - in three contexts: policies related to placement in gender-segregated facilities, policies related to changing gender marker on ID, and policies related to the state provision of healthcare that is prohibited based on the gender on record for the person seeking care. The article looks at the significant variation in these policies across agencies to demonstrate the instability of gender as a category of identity verification and to ask whether the assumed usefulness of …
Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill
Environmental Justice In The Tribal Context: A Madness To Epa's Method, Catherine O’Neill
Faculty Articles
Many American Indian tribes and their members are among those most burdened by mercury contamination. When the Environmental Protection Agency (EPA) set out to regulate mercury emissions from coal-fired utilities, it was aware that mercury contamination and regulation affects tribal rights and resources. EPA's inquiry, therefore ought to have been differently framed, given tribes' unique legal and political status. Specifically, EPA ought to have confronted squarely the impact of its decision on tribes' fishing rights, rather than consider these rights as a mere afterthought. EPA 's process, too, should have been differently conducted EPA should have consulted with tribes from …
Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez
Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez
Faculty Articles
Giving the poor legal title to the lands they occupy extra-legally (informally) has been widely promoted by the World Bank and by best-selling author Hernando de Soto as a means of addressing both poverty and the scarcity of affordable housing in the urban centers of the global South. Using Bogota, Colombia, as a case study, this article interrogates de Soto's claims about the causes of informality and the benefits of formal title. The article concludes that de Soto's analysis is problematic in three distinct respects. First, de Soto exaggerates the benefits of formal title and fails to consider its risks. …
The Challenges Of Representing Detained Non-Citizens In Expedited Removal Proceedings From The Perspective Of The Dickinson School Of Law Immigration Clinic, Won Kidane
Faculty Articles
Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages …
Did Harvard Get It Right?, Laurel Oates
Did Harvard Get It Right?, Laurel Oates
Faculty Articles
This article grapples with whether Harvard’s adoption of the casebook method over 150 years ago was correct. It contrasts the reading of judicial decisions for principles with the pedagogy of other disciplines: reading assignments, lectures, and exams that test whether students have learned the information set out in those textbooks and lectures. It details recent research from educational psychologies suggesting that the casebook method is not particularly effective in helping students learn either the law or to how to use the law to solve problems. At the same time, the casebook method may be an extremely effective method of helping …
Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner
Nuremberg’S Legacy Continues: The Nuremberg Trials’ Influence On Human Rights Litigation In U.S. Courts, Gwynne Skinner
Faculty Articles
This article traces the Nuremberg trials' influence on human rights litigation in the United States under the Alien Tort Statute, especially in the area of corporate complicity, and argues that the use of the Nuremberg trials as precedent in modern domestic human rights litigation is appropriate.
Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin
Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin
Faculty Articles
This article provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace. The same-actor principle, in its most potent form, provides that where the same decision-maker engages in an alleged adverse employment action within a short period of time of making a positive employment decision, such evidence creates a strong presumption that the decision-maker harbored no unlawful discriminatory animus. The same-actor doctrine was first recognized by the Fourth Circuit in Proud v. Stone, in which the court deemed the nature …
The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman
The Celotex Initial Burden Standard And An Opportunity To “Revivify” Rule 56, Brooke Coleman
Faculty Articles
This article provides a pragmatic review of the summary judgment process and offers a new methodological approach to critiquing the Federal Rules of Civil Procedure. Using qualitative empirical methods to focus on the defendant's initial burden standard under the watershed case Celotex v. Catrett, the article calls on two new sets of data - a broad survey of published and unpublished district and appellate court opinions and a focused survey of district court cases from a single federal district court - to evaluate the critical responses to the case. The article finds that those who criticize the Celotex initial burden …
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
Faculty Articles
The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …
Focus On Batson: Let The Cameras Roll, Mimi Samuel
Focus On Batson: Let The Cameras Roll, Mimi Samuel
Faculty Articles
While the Supreme Court outlawed discrimination in jury selection over 40 years ago, both empirical studies and candid interviews show that lawyers routinely rely on characteristics such as race, gender, and religion in striking prospective jurors. In large part, this practice continues because, when challenged, attorneys proffer non-verbal factors such as facial expressions, inattentiveness, eye contact (or lack thereof), or even laughing or coughing to justify their peremptory strikes. Without a way to assess the validity of these reasons, the trial judge and then the appellate court on review, have little ability to enforce the anti-discrimination prohibition set forth in …
John Calmore’S America, Robert S. Chang, Catherine Smith
John Calmore’S America, Robert S. Chang, Catherine Smith
Faculty Articles
In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court's Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court's Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify …
The Poetry Of Law, Sidney Delong
The Poetry Of Law, Sidney Delong
Faculty Articles
This article examines the literature of statutory drafting. This underappreciated genre is perhaps the last place one would expect to find a sensitive soul struggling to escape the prison house of language. Yet the economic realities facing today's graduate students mean that many former lit majors will find their way onto legislative drafting committees, whence they peek out at us from under the sub-sections of their lives. It is time that this genre was formally recognized. Of course, its artists struggle against the challenge of the form and their achievements must be measured in millimeters rather than miles. This article …
The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre Bowen
The Parent Trap: Differential Familial Power In Same-Sex Families, Deirdre Bowen
Faculty Articles
Do intact same-sex couples where one member of the couple became pregnant with assisted reproduction or was the primary adopter, and the other member became a parent through second parent adoption, understand the legal protections afforded them? In short the answer is no. An interesting family dynamic arises around those who can claim the true status as parent based on their legal understandings of parenthood and their interactions with the dominant culture. The result of research conducted on this issue indicated that second parent adopters had much less emotional power in the family, but often had more economic power. Even …
You Are Not In Kansas Anymore: Orientation Programs Can Help Students Fly Over The Rainbow, Paula Lustbader
You Are Not In Kansas Anymore: Orientation Programs Can Help Students Fly Over The Rainbow, Paula Lustbader
Faculty Articles
Analogizing Oz to Law School, this article discusses the role of orientation in the law school curriculum and offers implementation strategies to develop an effective orientation. An effective and comprehensive orientation program for law school would have many goals: it should attempt to construct the profession as a calling; create syntactical, substantive, and pedagogical context; communicate care and model empathy and compassion; cultivate community to promote mutual respect, cultural competence, and interdependence; and confirm student self-confidence. In addition to explaining why these are important goals, the article explores possible ways of achieving those goals. It ends with models of different …
Remedial Approaches To Human Rights Violations: The Inter-American Court Of Human Rights And Beyond, Tom Antkowiak
Remedial Approaches To Human Rights Violations: The Inter-American Court Of Human Rights And Beyond, Tom Antkowiak
Faculty Articles
A sustained reflection upon remedial obligations and possibilities is particularly necessary at this juncture in the development of international law, where important mechanisms with reparative functions have recently sprung up around the world: the International Criminal Court, the African Court of Human Rights, and several national schemes, as a result of proliferating transitional justice initiatives. This article argues for a remedial model that emphasizes the restorative measures of satisfaction and rehabilitation, as well as general assurances of non-repetition. The work first examines the case law of the Inter-American Court of Human Rights, the only international human rights body with binding …
Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell
Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell
Faculty Articles
There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a …
The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, Jack Kirkwood
The Fundamental Goal Of Antitrust: Protecting Consumers, Not Increasing Efficiency, Jack Kirkwood
Faculty Articles
This article defines the relevant economic concepts, summarizes the legislative histories, analyzes recent case law in more depth than any prior article, and explores the most likely bases for current popular support of the antitrust laws. All these factors indicate that the ultimate goal of antitrust is not to increase the total wealth of society, but to protect consumers from behavior that deprives them of the benefits of competition. When conduct presents a conflict between protecting consumers and improving the efficiency of the economy (e.g., a merger that raises prices but reduces costs), no court in recent years has chosen …
Revisiting The Rules Of Evidence And Procedure In Adversarial Immigration Proceedings, Won Kidane
Revisiting The Rules Of Evidence And Procedure In Adversarial Immigration Proceedings, Won Kidane
Faculty Articles
This article addresses the concern over the state of deportation proceedings in the United States. Professor Kidane argues that a lack of formal rules of procedure and evidence is the main factor contributing to the unpredictability, and inconsistency inherent in our system of immigration law. The argument is placed in context by reviewing the growth of the administrative agencies up through the adoption of the Administrative Procedure Act (APA). Kidane notes that the APA embodies one approach as a compromise between those advocating strict formal rules of procedure and evidence and those supporting a more relaxed system for administrative proceedings. …
Unlocking The Secrets Of Highly Successful Legal Writing Students, Anne Enquist
Unlocking The Secrets Of Highly Successful Legal Writing Students, Anne Enquist
Faculty Articles
Why are some law students successful in their legal writing classes and others are not? To identify the secrets to success, Professor Enquist did a case study of six second-year law students as they wrote a motion brief and an appellate brief for their 2L legal writing course. Based on their 1L legal writing course, two of these students were predicted to be highly successful, two were predicted to be moderately successfully, and two were predicted to be only marginally successful. Through daily records of all their activities related to writing the briefs, interviews with the study subjects, drafts of …
From Bad To Worse?: Some Early Speculation About The Roberts Court & The Constitutional Fate Of The Poor, Andy Siegel
From Bad To Worse?: Some Early Speculation About The Roberts Court & The Constitutional Fate Of The Poor, Andy Siegel
Faculty Articles
Conventional wisdom - supported in large measure by blackletter law - suggests that discrimination on the basis of wealth or class largely escapes constitutional sanction. If the conventional wisdom is correct, then issues of class and equal protection represent one area in which advocates of a more robust individual rights jurisprudence have little to fear from the Roberts Court. In this essay, prepared for a Symposium on "The Roberts Court and Equal Protection: Gender, Race, and Class," Professor Siegel offers a contrary view. He makes three related observations. First, existing caselaw is more complex than usually acknowledged, offering substantial interstitial …
Controlling Above-Cost Predation: An Alternative To Weyerhaeuser And Brooke Group, Jack Kirkwood
Controlling Above-Cost Predation: An Alternative To Weyerhaeuser And Brooke Group, Jack Kirkwood
Faculty Articles
This article proposes a new legal standard for predatory pricing, predatory bidding, and possibly other forms of exclusionary pricing - the welfare/economic sense standard. Under this standard, the plaintiff would have to show that the challenged conduct was not only profitable to the defendant but harmful to the long-run welfare of consumers or suppliers. Moreover, even if the plaintiff made that showing, the defendant would escape liability if it proved that its conduct made economic sense without regard to its anticompetitive effects. The article argues that the new standard is superior to the below-cost/recoupment standard of Brooke Group and Weyerhaeuser …
The Enforceability Of Default Interest In Real Estate Mortgages, Steven W. Bender
The Enforceability Of Default Interest In Real Estate Mortgages, Steven W. Bender
Faculty Articles
This article examines the use of default interest rate provisions in real estate mortgage loan transactions and the varying ways courts assess the enforceability of such provisions. The authors argue that these provisions are important to lenders, ensuring that they are able to recover the transaction costs and risks associated with defaulting borrowers. The article asserts that, due to the importance of these provisions to lenders' financial stability, courts should apply the unconscionability standard with a deference to freedom of contract principles before refusing to enforce default interest rate provisions. The authors also outline guidelines lenders should follow in both …
Corporations, Veils, And International Criminal Liability, Ronald Slye
Corporations, Veils, And International Criminal Liability, Ronald Slye
Faculty Articles
This article investigates the issue of corporations and their criminal liability. Specifically, it outlines general arguments surrounding the issue. It provides more of a broad overview, identifying the key arguments that are typically made for applying criminal liability to corporations.