Law Commons^™

Ricci V. Destefano: End Of The Line Or Just Another Turn On The Disparate Impact Road?, Charles A. Sullivan

NULR Online

Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano may be exaggerated. Widely praised and widely criticized in the newspapers and the blogosphere, Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact.

As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States,disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than …

Thoughts On The Churn Law, Michael Halley

NULR Online

A grand alliance is forming, and new trenches are being dug on the old and hallowed battleground of the Constitution. Waving the stars and stripes of “constitutional design,” and richly equipping themselves with the weaponry of reason, scholars like Richard Fallon, Sanford Levinson, and Jack Balkin have taken the field to determine “what provisions for judicial review (if any) ought to exist in constitutions for all societies whose people and legislatures are seriously committed to respecting rights,” and to avoiding “constitutional crises” by “careful planning.” Fallon, a self-proclaimed “system-designer,” applauds himself for having “plowed rich ground.” Levinson and Balkin claim …

Why We Should Ignore The "Octomom", Kimberly D. Krawiec

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Few familiar with the story of Nadya Suleman­­—a single, low-income, California mother of six who recently gave birth to octuplets conceived through in vitro fertilization (IVF)—do not instinctively react with outrage. Fourteen children (or even one) are a daunting number under the best of conditions, and the conditions surrounding the Suleman births are far from ideal. Yet, as the old saying goes, “hard facts make bad law,” and Suleman, dubbed “the Octomom” by the media, exemplifies the truth of this adage.

Suleman’s hard facts have led not only to bad regulatory reform proposals, but also to public fury and social …

Who Decides What Number Of Children Is "Right"?, June Carbone

NULR Online

I agree with Professors Cahn and Collins that “eight is enough.” I am perhaps more skeptical than they are about assisting Nadya Suleman, a mother who already has six children, to have more. I wonder whose funds financed fertility treatments for a single, unemployed mom on disability benefits, and, perhaps even more critically, who will fund the children’s ongoing care. I am certainly concerned about the dubious ethical standards of the doctor who provided the reproductive care. But I also have serious reservations about anyone choosing to impose my views—or those of others—on the country as a whole.

I therefore …

Property And Speech In Summum, Joseph Blocher

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City of Pleasant Grove v. Summum is, by its own reckoning, a case about government speech under the Free Speech Clause of the First Amendment. Even so, most commentary has justifiably focused on the decision’s implications for another part of the First Amendment: the Establishment Clause. This brief Article addresses yet another feature of Summum—what itdraws from, and says about, the relationship between speech rights and property ownership. This relationship is not only the driving force behind the majority’s opinion, but is also an important tool for understanding government speech in other cases involving government intrusion into speech markets, …

Privatizing And Publicizing Speech, Nelson Tebbe

NULR Online

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations? Two cases this year call that question to mind. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment.

On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city. The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of …

Deference To Clients And Obedience To Law: The Ethics Of The Torture Lawyers (A Response To Professor Hatfield), W. Bradley Wendel

NULR Online

In the early months of the Obama administration, we are learning a great deal more about the previous administration’s program of using “enhanced interrogation techniques” on alleged al-Qaeda detainees. On April 16, 2009, the new administration released to the public several memos, prepared by lawyers at the Office of Legal Counsel (“OLC”) in the administration of George W. Bush, dealing with certain legal aspects of whether detainees in U.S. custody could lawfully be subjected to torture. I and many others have criticized the quality of legal reasoning in previously disclosed memos, and it is now conventional wisdom that something went …

Keeping The Government's Religion Pure: Pleasant Grove City V. Summum, Christopher C. Lund

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In January, the Supreme Court decided Pleasant Grove City v. Summum. Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park. At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display. But this was a Free Speech case, not an Establishment Clause case. The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their …

Professionalizing Moral Engagement (A Response To Michael Hatfield), Robert K. Vischer

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In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.” In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition. There is no reason to believe, however, that Yoo’s moral intuition would have led …

Imperfect Oaths, The Primed President, And An Abundance Of Constitutional Caution, Bruce Peabody

NULR Online

Presidential inaugurations frequently invite widespread civic celebration, the broad rhetoric of an incoming Chief Executive, and traditions stretching back for decades and even centuries. The inaugural ceremonies of January 20, 2009 offered all this and something more: a set of important constitutional puzzles radiating from Barack Obama’s imperfect recitation of his oath of office.

At 12:04 p.m., Mr. Obama attempted to fulfill the Constitution’s requirement that each President take a prescribed thirty-five word oath “[b]efore he enter on the Execution of his Office . . . .” During the recitation, Chief Justice John Roberts (who was administering the oath) prompted …

Professionalizing Moral Deference, Michael Hatfield

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As I write this Essay, legal memoranda about torture, once again, are headline news. This Essay considers these memoranda. However, this Essay does not address the legality of torture or the legal limits of interrogation or even if lawyers who provide bad advice on these issues should be punished. Instead, this Essay uses what has come to light about the “torture memoranda” to consider broader issues about the contemporary state of becoming and being an American lawyer. With new memoranda being released, for the sake of convenience, this Essay refers only to the best-known example (at least as things currently …

Lessons Learned From Forest Grove School District V. T.A.: How The Supreme Court Can Refine The Approach To Private School Tuition Reimbursement Under The Idea, Courtney Rachel Baron

NULR Online

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A., a case that addresses a deeply contested issue in special education litigation. Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA) entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school. Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue. In fact, in 2007, the Supreme Court addressed the …

The Synergy Of Early Offers And Medical Explanations/Apologies, Christopher J. Robinette

NULR Online

Medical malpractice law has been subjected to strong criticism by both medical and legal commentators. It has been challenged as inefficient, inaccurate, and even counterproductive. Although many reforms have been proposed, most tend to benefit one group—either physicians or patients—to the exclusion of the other. Professor Jeffrey O’Connell’s “early offers” proposal provides a reform of the system that is beneficial to plaintiffs, defendants, and society as a whole. Although some attention has been paid to combining early offers with explanations of the incident or with apologies, the idea has never received a focused analysis. Recent scholarship on explanations and apologies …

Eight Is Enough, Naomi R. Cahn, Jennifer R. Collins

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No abstract provided.

Mitigating Dysfunctional Deference Through Improvements In Board Composition And Board Effectiveness, Marc Goldstein

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No abstract provided.

Keeping The Label Out Of The Case, Pearson Bownas, Mark Herrmann

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No abstract provided.

Quick Off The Mark? In Favor Of Empowering The President-Elect, Nina A. Mendelson

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No abstract provided.

Interrogations And The Guiding Hand Of Counsel: Montejo, Ventris, And The Sixth Amendment's Continued Vitality, Ben G. Cohen, Bidish J. Sarma, Robert J. Smith

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No abstract provided.

Law Upside Down: A Critical Essay On Stoneridge Investment Partners, Llc V. Scientific-Atlanta, Inc., Franklin A. Gevurtz

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No abstract provided.

Lost In Space: Laurence Tribe's Invisible Constitution, Eric J. Segall

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No abstract provided.

The Mother's Milk Of Politics Is Corrupting Absolutely, Dan Walker

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No abstract provided.

Remand And Appellate Review Issues Facing The Supreme Court In Carlsbad Technology, Inc. V. Hif Bio, Inc., Deborah J. Challener, John B. Howell Iii

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No abstract provided.

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

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No abstract provided.

The Permanent And Presidential Transition Models Of Political Party Policy Leadership, David Fontana

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No abstract provided.

A Team Production Approach To Corporate Law And Board Composition, Bernard S. Sharfman, Steven J. Toll

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No abstract provided.

The Lds Church, Proposition 8, And The Federal Law Of Charities, Brian Galle

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No abstract provided.

Combating Midnight Regulation, Jack M. Beermann

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No abstract provided.

Intellectual Property Rights: The View From Competition Policy, Shubha Ghosh

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No abstract provided.

Choose The Best Answer: Organizing Climate Change Negotiation In The Obama Administration, Jonathan Zasloff

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No abstract provided.

A Lawyer's Worst Nightmare: The Story Of A Lawyer And His Nurse Clients Who Were Both Criminally Charged Because The Nurses Resigned En Mass, Mitchell H. Rubinstein

NULR Online

No abstract provided.