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2009

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Articles 1 - 30 of 189

Full-Text Articles in Law

Conflict Of Interest And Disqualification In The Federal Courts: Suggestions For Reform, Arthur D. Hellman Dec 2009

Conflict Of Interest And Disqualification In The Federal Courts: Suggestions For Reform, Arthur D. Hellman

Testimony

Although federal judges do not run for election, over the last three decades the process of nomination and confirmation has become politicized to a disturbing degree. There is a real danger that the judges will come to be perceived not as dispassionate servants of the law but as political actors who pursue political or ideological agendas. One consequence of these developments is likely to be increased scrutiny of judges’ responses to motions to recuse. Here as in other aspects of the operations of the judiciary, “just trust us” is no longer sufficient.

Two provisions of Title 28 of the United ...


"Just Like Little Dogs": The Law Should Speak With Veracity And Respect, Scott T. Fitzgibbon Dec 2009

"Just Like Little Dogs": The Law Should Speak With Veracity And Respect, Scott T. Fitzgibbon

Boston College Law School Faculty Papers

This article proposes veracity and respect as basic guides for law. It thus supplements dominant lines of thought which emphasize instrumentalist criteria such as promoting efficiency, maximizing utility, and deterring and remedying harm. This article proposes that it is a great good for a judge, a legislator, and all who speak as the law to exercise the virtue of veracity and to speak with respect, and that it is especially bad in the case of such legal officers to depart from those practices. It points out some implications for family law.


Insolvency And Biased Standards - The Case For Proportional Liability, Alexander Stremitzer, Avraham Tabbach Nov 2009

Insolvency And Biased Standards - The Case For Proportional Liability, Alexander Stremitzer, Avraham Tabbach

Faculty Scholarship Series

We analyze liability rules in a setting where injurers are potentially insolvent and where negligence standards may deviate from the socially optimal level. We show that proportional liability, which sets the measure of damages equal to the harm multiplied by the probability that it was caused by an injurer’s negligence, is preferable to other existing negligence-based rules. Moreover, proportional liability outperforms strict liability if the standard of due care is not set too low. Our analysis also suggests that courts should rely on statistical evidence and bar individualized causal claims that link the harm suffered by a plaintiff to ...


Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey (Book Review), Makau W. Mutua Nov 2009

Mary L. Dudziak's Exporting American Dreams: Thurgood Marshall’S African Journey (Book Review), Makau W. Mutua

Book Reviews

This review of Mary Dudziak’s hugely important book contends that the author conflates the struggle for civil rights in the United States with the struggle for black majority rule in Kenya. While the two struggles are linked by white domination and the quest for blacks to free themselves from that domination, the book fails to interrogate and contextualize the limitations of equal protection norms for minorities in two vastly different political milieus. Dudziak does not problematize Thurgood Marshall’s blind insistence that the independence Kenyan constitution accord the economically dominant and oppressive white minority in colonial Kenya the same ...


Uprooting Identities: The Regulation Of Olive Trees In The Occupied West Bank, Irus Braverman Nov 2009

Uprooting Identities: The Regulation Of Olive Trees In The Occupied West Bank, Irus Braverman

Journal Articles

The Israeli/Palestinian conflict has rarely been associated with trees in the common perception. This article reveals the complex historical and cultural processes that have led to strong identification between the olive tree and the Palestinian people, arguing that this identification is not only a reflection of the olive’s unique economic and cultural status in this region but also an act of resistance to Israel’s occupation. The article also explains how Israel’s tightening of surveillance, practiced in the name of olive protection, actually ends up forcing an alien set of spatial and temporal regimes on the everyday ...


Agenda: World Energy Justice Conference And Appropriate Technology Arcade, University Of Colorado Boulder. Center For Energy & Environmental Security, University Of Colorado Boulder. School Of Law Oct 2009

Agenda: World Energy Justice Conference And Appropriate Technology Arcade, University Of Colorado Boulder. Center For Energy & Environmental Security, University Of Colorado Boulder. School Of Law

World Energy Justice Conference (October 23-24)

The 2009 CEES Energy Justice Conference took place at the University of Colorado Law School on October 23rd and 24th, 2009. It featured 11 sessions, more than 40 speakers, and attracted over 200 attendees. The Conference brought together leading international and U.S. decision-makers in politics, engineering, public health, law, business, economics, and innovators in the sciences to explore how best to address the critical needs of the energy-oppressed poor (EOP) through long-term interdisciplinary action, information sharing, and deployment of appropriate sustainable energy technologies (ASETs).

The Colorado Journal of International Environmental Law & Policy (CJIELP) at the University of Colorado Law ...


Criminalization Tensions: Empirical Desert, Changing Norms & Rape Reform, Paul H. Robinson Oct 2009

Criminalization Tensions: Empirical Desert, Changing Norms & Rape Reform, Paul H. Robinson

Faculty Scholarship at Penn Law

This short Article is part of the organizers’ larger Criminalization Project, which seeks, among other things, to develop theories for how criminalization decisions should be made. The argument presented here is that there is instrumentalist, as well as deontological, value in having criminalization decisions that generally track the community’s judgments about what is sufficiently condemnable to be criminal, but that there are also good reasons to deviate from community views. Interestingly, those in the business of social reform may be the ones with the greatest stake in normally tracking community views, in order to avoid community perceptions of the ...


How (Not) To Think Like A Punisher, Alice G. Ristroph Oct 2009

How (Not) To Think Like A Punisher, Alice G. Ristroph

Georgetown Law Faculty Publications and Other Works

This article examines the several and sometimes contradictory accounts of sentencing in proposed revisions to the Model Penal Code. At times, sentencing appears to be an art, dependent upon practical wisdom; in other instances, sentencing seems more of a science, dependent upon close analysis of empirical data. I argue that the new Code provisions are at their best when they acknowledge the legal and political complexities of sentencing, and at their worst when they invoke the rhetoric of desert. When the Code focuses on the sentencing process in political context, it offers opportunities to deploy both practical wisdom and empirical ...


Same-Sex Relationships And The Full Faith And Credit Clause: Reducing America To The Lowest Common Denominator, Rena M. Lindevaldsen Oct 2009

Same-Sex Relationships And The Full Faith And Credit Clause: Reducing America To The Lowest Common Denominator, Rena M. Lindevaldsen

Faculty Publications and Presentations

This Article examines the legal and policy implications that arise when a state that expressly prohibits recognition or enforcement of any rights arising from a same-sex relationship is confronted with a request to register and enforce a child custody order issued by another state that gives custody or visitation rights to a biological mother's former same-sex partner. As more states confer marital rights to same-sex couples, this issue will occur with increasing frequency. The first reported case in the nation to address the issue, Miller-Jenkins v. Miller-Jenkins, has garnered attention from the national media, including a cover story in ...


From Feudal Land Contracts To Financial Derivatives: The Treatment Of Status Through Specific Relief, John J. Chung Oct 2009

From Feudal Land Contracts To Financial Derivatives: The Treatment Of Status Through Specific Relief, John J. Chung

Law Faculty Scholarship

No abstract provided.


Hope In The Law, Annelise Riles Oct 2009

Hope In The Law, Annelise Riles

Cornell Law Faculty Publications

No abstract provided.


Speak Clearly And Carry A Big Stock Of Dollar Reserves: Sovereign Risk, Ideology, And Presidential Elections In Argentina, Brazil, Mexico, And Venezuela, Anthony Petros Spanakos, Lucio Remuzat Renno Junior Oct 2009

Speak Clearly And Carry A Big Stock Of Dollar Reserves: Sovereign Risk, Ideology, And Presidential Elections In Argentina, Brazil, Mexico, And Venezuela, Anthony Petros Spanakos, Lucio Remuzat Renno Junior

Department of Political Science and Law Faculty Scholarship and Creative Works

Partisan theories of political economy expect that bondholders will panic with the election of a left-wing presidential candidate. The latter seems to be what happened in Brazil in the 2002 presidential elections. However, quantitative analysis of perceptions of sovereign credit risk in Argentine, Brazilian, Mexican, and Venezuelan presidential elections from 1994 until 2007 shows no real evidence of a link between partisanship and perceptions of risk, even if the left-right divide is further broken down into left, center-left, center-right, right. Instead, international and domestic economic fundamentals have a stronger influence on risk evaluations. Qualitative analysis of the individual presidential elections ...


All That You Can’T Leave Behind: Making And Administering Laws In The Select Government Localities Of Komenda, Cape Coast, And Accra, Andrew Freeman Oct 2009

All That You Can’T Leave Behind: Making And Administering Laws In The Select Government Localities Of Komenda, Cape Coast, And Accra, Andrew Freeman

Independent Study Project (ISP) Collection

This paper is an attempt to understand how laws are created and maintained on the local level in Komenda, Cape Coast, and Accra. It explains how bylaws are created in those localities through the use of the General Assemblies. The paper then examines the judicial system in those same areas. Komenda uses an Arbitration Committee. Cape Coast and Accra both have a Circuit Court and a High Court. After detailing how the legislative and court system function, the paper compares and contrasts the different ways that the legislative and judicial branches are executed.


Flexible Work Arrangements: Improving Job Quality And Workforce Stability For Low-Wage Workers And Their Employers, Jessica Glenn, Liz Watson Sep 2009

Flexible Work Arrangements: Improving Job Quality And Workforce Stability For Low-Wage Workers And Their Employers, Jessica Glenn, Liz Watson

Published Reports

In 2009, workers and their families across the country felt the impact of serious economic downturn, with unemployment reaching a 26-year high. While recent news suggests things may be improving, we cannot forget that for many low-wage and hourly workers -- who now represent over a quarter of the U.S. workforce -- the recession only exacerbated their ongoing struggle to hold down quality jobs while caring for their families.

Low-wage workers face many of the same challenges that the rest of us face in reconciling our work, family and personal lives, but for many of these workers, it's simply a ...


Conscience And Citizenship: The Primacy Of Conscience For Catholics In Public Life, Gregory A. Kalscheur S.J. Aug 2009

Conscience And Citizenship: The Primacy Of Conscience For Catholics In Public Life, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

In their statement, Forming Consciences for Faithful Citizenship, the U.S. Catholic bishops acknowledge that “the responsibility to make choices in political life rests with each individual in the light of a properly formed conscience.” This essay argues that, in light of this responsibility, it is important to affirm a commitment to the primacy of conscience as that idea has been understood in the Catholic tradition. If we really expect voters and public officials to make responsible, conscientious decisions about matters of public policy, we should not speak in ways that suggest that the proper formation of conscience is simply ...


A Universal Enemy? Legal Regimes Of Exclusion And Exemption Under The ‘Global War On Terror', Darryl Li Aug 2009

A Universal Enemy? Legal Regimes Of Exclusion And Exemption Under The ‘Global War On Terror', Darryl Li

Student Scholarship Papers

This essay argues that the ongoing U.S.-driven “Global War on Terror” stands apart from similar state campaigns in its special focus on confronting “foreign fighters” – armed transnational non-state Islamists operating outside their home countries – in places where the U.S. is no less foreign. This global hunt for foreign fighters animates diverse attempts to exclude similarly “out of place” Muslim migrants and travelers from legal protection by reshaping laws and policies on interrogation, detention, immigration, and citizenship. Yet at the same time, certain other outsiders – namely the U.S. and its allies – enjoy various forms of exemption from ...


An Apology For A Pathological Brute (Reviewing Tim Jeal, Stanley: The Impossible Life Of Africa's Greatest Explorer (2007)), Makau Mutua Aug 2009

An Apology For A Pathological Brute (Reviewing Tim Jeal, Stanley: The Impossible Life Of Africa's Greatest Explorer (2007)), Makau Mutua

Book Reviews

This is a review of Tom Jeal’s Stanley: the Impossible Life of Africa’s Greatest Explorer. Although perhaps the most carefully researched of the many books of Stanley, the book suffers from its zealous attempt to absolve Stanley of his inhumanity in spite of the most extensive historical evidence of the abominations that he committed against Africans. Instead, Jeal sets out to humanize a historical monster who paved the way for many pogroms committed by the colonial hegemons in Africa. Even deep flaws of character, including self-denial, that were so evident in Stanley are either explained away or excused ...


Thug Life: Hip Hop’S Curious Relationship With Criminal Justice, André Douglas Pond Cummings Jul 2009

Thug Life: Hip Hop’S Curious Relationship With Criminal Justice, André Douglas Pond Cummings

Faculty Scholarship

I argue that hip hop music and culture profoundly influences attitudes toward and perceptions about criminal justice in the United States. At base, hip hop lyrics and their cultural accoutrements turns U.S. punishment philosophy upon its head, effectively defeating the foundational purposes of American crime and punishment. Prison and punishment philosophy in the U.S. is based on clear principles of retribution and incapacitation, where prison time for crime should serve to deter individuals from engaging in criminal behavior. In addition, the stigma that attaches to imprisonment should dissuade criminals from recidivism. Hip hop culture denounces crime and punishment ...


Affirmatively Denied: The Detrimental Effects Of A Reduced Grant Rate For Affirmative Asylum Seekers, Rachel D. Settlage Jul 2009

Affirmatively Denied: The Detrimental Effects Of A Reduced Grant Rate For Affirmative Asylum Seekers, Rachel D. Settlage

Law Faculty Research Publications

No abstract provided.


Book Review (Judith Kilpatrick's There When We Needed Him: Wiley Austin Branton, Civil Rights Warrior), Sophia Z. Lee Jul 2009

Book Review (Judith Kilpatrick's There When We Needed Him: Wiley Austin Branton, Civil Rights Warrior), Sophia Z. Lee

Faculty Scholarship at Penn Law

No abstract provided.


Sexual Politics And Social Change, Darren Lenard Hutchinson Jul 2009

Sexual Politics And Social Change, Darren Lenard Hutchinson

UF Law Faculty Publications

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the "political opportunity" for the Lawrence ruling and made the opinion relatively "safe".

Currently ...


Activating Victim Constituency In International Criminal Justice, Mark Findlay Jul 2009

Activating Victim Constituency In International Criminal Justice, Mark Findlay

Research Collection School Of Law

This article lays out why in the context of global crime, crime control and the legitimacy of global governance, a victim constituency makes sense in terms of the stated aims of international criminal justice and of a wider ‘new morality’ on which it should be grounded. The incapacity to confront appropriately the consequences to victims of global crime has tended to mean that international criminal justice and the governance that flows from it are unsatisfactorily entwined with sectarian international relations and narrow cultural inclusion. Therefore, in governance terms alone, the conceptualization of global crime victims should be expanded and emancipated ...


Instream Flows And The Public Trust, Timothy M. Mulvaney Jul 2009

Instream Flows And The Public Trust, Timothy M. Mulvaney

Faculty Scholarship

Empirical evidence suggests that diversion of instream flows for human use, coupled with the potential impacts of changing climatic conditions, is threatening the sustainability of aquatic life. Nonetheless, several states merely prevent stream flows from being reduced below the "7Q10 flow," or the average flow during the driest consecutive seven-day period that has a likelihood of recurring only once every ten years. Overwhelming scientific consensus suggests that 7Q10 merely preserves water quality standards by calculating the concentration of pollutants in point source discharges, without considering water quantity and numerous other core principles of instream management.

The protection of instream flows ...


Sexual Politics And Social Change, Darren L. Hutchinson Jul 2009

Sexual Politics And Social Change, Darren L. Hutchinson

Articles in Law Reviews & Other Academic Journals

The Article examines the impact of social movement activity upon the advancement of GLBT rights. It analyzes the state and local strategy that GLBT social movements utilized to alter the legal status of sexual orientation and sexuality following the Supreme Court’s ruling in Bowers v. Hardwick. Successful advocacy before state and local courts, human rights commissions, and legislatures fundamentally shifted public opinion and laws regarding sexual orientation and sexuality between Bowers and the Supreme Court’s ruling in Lawrence v. Texas. This altered landscape created the “political opportunity” for the Lawrence ruling and made the opinion relatively “safe.”

Currently ...


Certificate: Appreciation To Rodney Hurst From Durkeeville Historical Society Jun 2009

Certificate: Appreciation To Rodney Hurst From Durkeeville Historical Society

Textual material from the Rodney Lawrence Hurst, Sr. Papers

Certificate of appreciation to Rodney Hurst for his valuable contributions to Durkeeville Historical Society Inc. June 27, 2009.


Shadow Lawyering: Nonlawyer Practice Within Law Firms, Paul R. Tremblay Jun 2009

Shadow Lawyering: Nonlawyer Practice Within Law Firms, Paul R. Tremblay

Boston College Law School Faculty Papers

Lawyers commonly associate with nonlawyers to assist in their performance of their lawyering tasks. A lawyer cannot know with confidence, though, whether the delegation of some tasks to a nonlawyer colleague might result in her assisting in the unauthorized practice of law, because the state of the law and the commentary about nonlawyer practice is so confused and incoherent. Some respected authority within the profession tells the lawyer that she may only delegate preparatory matters and must prohibit the nonlawyer from discussing legal matters with clients, or negotiating on behalf of clients. Other authority suggests that the lawyer may delegate ...


The Transparency President? The Obama Administration And Open Government, Cary Coglianese Jun 2009

The Transparency President? The Obama Administration And Open Government, Cary Coglianese

Faculty Scholarship at Penn Law

President Obama has trumpeted transparency as a major part of his reform agenda, promising an "unprecedented" degree of governmental openness and overseeing a variety of open government reforms, from changes in Freedom of Information Act policies to the creation of new websites like Recovery.Gov. Although transparency is politically popular, and the Obama Administration benefits in the short run by contrasting itself with the Bush Administration's reputation for secrecy, in the long run President Obama's rhetoric on openness in government may backfire politically. Too much emphasis on making government a fishbowl will only raise expectations about an unattainable ...


New-School Trademark Dilution: Famous Among The Juvenile Consuming Public, Alexandra J. Roberts Jun 2009

New-School Trademark Dilution: Famous Among The Juvenile Consuming Public, Alexandra J. Roberts

Law Faculty Scholarship

The recently enacted Trademark Dilution Revision Act of 2006 recalibrated the degree of fame necessary to garner protection: the TDRA applies only to a mark "widely recognized by the general consuming public of the United States as a designation of source of the goods or services of the mark’s owner." By privileging those major players who succeed in turning their brands into household names, the TDRA strengthens incentives for mark-owners to ensure their logos and brand names are well-recognized not only among adult consumers, but also among children. This Article examines a set of marketing behaviors aimed at children ...


Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman Jun 2009

Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman

Testimony

In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from ...


(Still) Not Fit To Be Named: Moving Beyond Race To Explain Why 'Separate' Nomenclature For Gay And Straight Relationships Will Never Be 'Equal', Courtney Megan Cahill Jun 2009

(Still) Not Fit To Be Named: Moving Beyond Race To Explain Why 'Separate' Nomenclature For Gay And Straight Relationships Will Never Be 'Equal', Courtney Megan Cahill

Scholarly Publications

No abstract provided.