Law Commons^™

Raising The Bar: Standards-Based Training, Supervision, And Evaluation, Adele Bernhard

Articles & Chapters

In this short Article, I sketch the methodology my colleagues and I at Pace Law School use to incorporate practice standards into our clinical teaching and reflect on how a standards-based teaching paradigm could be adapted to the training, supervision, and evaluation of public defenders. Then, I briefly consider how standards and standards-based teaching assist in the administration of assigned counsel plans and in the evaluation of the performance of public defender organizations. Although this Article does not cover any of these topics in depth, my goal is to introduce the reader to a standards-based approach to teaching and suggest …

As Old As The Hills: Detention And Immigration, Lenni Benson

Articles & Chapters

No abstract provided.

Introduction: The Market Meltdown Of 2008 And The Future Of Financial Reregulation [Article], Faith Stevelman

Articles & Chapters

No abstract provided.

Too Stubborn To Ever Be Governed By Enforced Insanity: Some Therapeutic Jurisprudence Dilemmas In The Representation Of Criminal Defendants In Incompetency And Insanity Cases, Michael L. Perlin

Articles & Chapters

Little attention has been paid to the importance between therapeutic jurisprudence (TJ) and the role ofcriminal defense lawyers in insanity and incompetency-to-stand-trial (IST) cases. That inattention is especially noteworthy in light of the dismal track record of counsel providing services to defendants who are part of this cohort of incompetency-status-raisers and insanity-defense-pleaders. On one hand, this lack of attention is a surprise as TJ scholars have, in recent years, turned their attention to virtually every other aspect of the legal system. On the other hand, it is not a surprise, given the omnipresence of sanism, an irrational prejudice ofthe same …

Salvation Or A Lethal Dose? Attitudes And Advocacy In Right To Refuse Treatment Cases, Michael L. Perlin

Articles & Chapters

The debate surrounding the right to refuse treatment controversy continues unabated in the relevant law and social science literature. However, there are two areas where scant research attention is found. These include the attitudes of patients and staff regarding right to refuse treatment decisions and the adequacy of counsel availed to patients who assert their constitutionally protected right to refuse. This article examines both issues, mindful of what they tell us about sanism and pretextuality with respect to mental disability law and right to refuse treatment jurisprudence.

The Microsoft Chronicles, Rudolph J.R. Peritz

Articles & Chapters

No abstract provided.

Guilty By Association? Regulating Credit Default Swaps, Houman B. Shadab

Articles & Chapters

A wide range of U.S. policymakers initiated a series of actions in 2008 and 2009 to bring greater regulation and oversight to credit default swaps (CDSs) and other over-the-counter derivatives. The policymakers’ stated motivations echoed widely expressed criticisms of the regulation, characteristics, and practices of the CDS market, and focused on the risks of the instruments and the lack of public transparency over their utilization and execution. Certainly, the misuse of certain CDSs enabled mortgage-related security risk to become overconcentrated in some financial institutions.

Yet as the analysis in this Article suggests, failing to distinguish between CDS derivatives and the …

New York Recognition Of A Legal Status For Same-Sex Couples: A Rapidly Developing Story, Arthur S. Leonard

Articles & Chapters

In New York State at the beginning of 2010, same-sex couples cannot get married but can be married. The state’s highest court, the Court of Appeals, construed the state’s marriage law in 2006 to prohibit state officials from issuing marriage licenses to same-sex couples, but said nothing in that decision about whether same-sex couples married outside the state would be considered married when they were in the state. In February 2008, an intermediate appeals court in Rochester ruled that New York’s marriage recognition law supported extending comity to a same-sex marriage performed in Canada, and several other appellate courts have …

Ask The Professor: Portfolio Margining – How Will Dodd-Frank Impact Its Utilization?, Ronald Filler

Articles & Chapters

This article analyzes the background and current status of portfolio margining, how it has evolved over the past several years, and how the recent Dodd-Frank Act will impact its utilization and effectiveness. Portfolio margining allows a broker-dealer to analyze a client's total overall portfolio from a risk-based analytical model, establishing the proper minimum initial margin requirements for the entire portfolio applying certain parameters. To be a more effective tool, changes to the U.S. Bankrupcty Code were needed. The Dodd-Frank Act made those legislative changes. It's now up to the regulators to make portfolio margining an even more effective and utilized …

Ask The Professor: How Does The U.K. Client Money Rules Differ From The U.S. Customer Segregated Rules When The Custodian Firm Fails To Treat Customer Property Properly?, Ronald Filler

Articles & Chapters

No abstract provided.

"With Faces Hidden While The Walls Were Tightening": Applying International Human Rights Standards To Forensic Psychology, Michael L. Perlin

Articles & Chapters

Although there are now robust bodies of literature in both Alaw and psychology and in international human rights law, there has been remarkably little written about the specific relationship between forensic psychology and international human rights standards (and about the relationship between mental disability law and such standards in general). Attention is paid when it appears that state psychiatry or psychology is used as a tool of political oppressions e.g., in the former Soviet Union or in China, but the literature is strangely silent on questions dealing with the extent to which forensic psychology practice comports withinternational human rights norms. …

Looking Back And Looking Ahead As The Home Mortgage Disclosure Act Turns Thirty-Five: The Role Of Public Disclosure Of Lending Data In A Time Of Financial Crisis, Richard D. Marsico

Articles & Chapters

This article examines the history of the Home Mortgage Disclosure Act (HMDA) and makes proposals for improving it to help prevent another economic crisis. Passed in 1975, HMDA requires most lenders to disclose information about their home mortgage loans, including the number of home mortgage applications it received; the purpose of each application; the type of loan; the decision on the application; the race, gender, and income of the loan applicant/borrower; the location of the loan and the median income and racial composition of the neighborhood; and the interest rate on the loan. HMDA was originally conceived of as a …

Single Asset Real Estate And Development Projects: The Kara Homes Mistake, Marshall E. Tracht

Articles & Chapters

The Kara Homes decision held that various affiliates of Kara Homes, Inc., each of which owned a separate real estate project, were "single asset real estate" ("SARE'') cases under the Bankruptcy Code's definition. According to the author of this article, the designation as single asset real estate substantially increased the difficulty faced by the debtors in maintaining their reorganization efforts, and has given lenders and their counsel a significant amount of comfort. However, the definition runs against the actual wording of the Bankruptcy Code, the intent underlying the SARE provisions, and the political winds. It should, and may well, be …

In Praise Of Martin Chanock, Stephen Ellmann, Heinz Klug, Penelope Andrews

Articles & Chapters

No abstract provided.

Beyond Compliance: Rethinking Why International Law Really Matters, Robert Howse, Ruti G. Teitel

Articles & Chapters

The conceptual, and more recently empirical, study of compliance has become a central preoccupation, and perhaps the fastest growing sub-field, in international legal scholarship. The authors seek to put in question this trend. They argue that looking at the aspirations of international law through the lens of rule-compliance leads to inadequate scrutiny and understanding of the diverse complex purposes and projects that multiple actors impose and transpose on international legality, and especially a tendency to oversimplify if not distort the relation of international law to politics. Citing a range of examples from different areas of internationallaw-ranging widely from international trade …

Introduction: The Law School's Role In Documenting And Analyzing The Increasingly Rapid Development Of Broadband, Michael Botein

Articles & Chapters

No abstract provided.

Courts And Temperance “Ladies”, Richard H. Chused

Articles & Chapters

In 1873 and 1874, parts of southern Ohio were gripped by a remarkable string of marches, religious gatherings, and sit-ins by conservative, Christian, white women intent on shutting down the distribution of alcohol in their communities. A fascinating series of issues relating to the use of legal institutions to control these demonstrative women arose during these "temperance crusades." Many women in Hillsboro opposed using available legal avenues to suppress the liquor trade, preferring strategies based on moral suasion. But, as with other major controversies in our history, aspects of the temperance crusade ended up in court despite the desires of …

A Bittersweet Heritage: Learning From The Making Of South African Legal Culture, Stephen Ellmann

Articles & Chapters

This essay responds to Martin Chanock's argument that race tainted the entire enterprise of South African judging. It seeks to understand how that could have been so, and looks to such driving forces as whites' guilt, denial, identity-building, self-protection, and legitimation for explanations. Then it asks whether an institution so tainted should now be altogether abandoned as part of the rebuilding of post-apartheid South Africa. The essay answers that much should be changed, but that the existence of a judiciary laying claim to a special expertise and responsibility in interpreting law and protecting rights a key heritage of the old …

Counterparty Regulation And Its Limits: The Evolution Of The Credit Default Swaps Market, Houman B. Shadab

Articles & Chapters

Over-the-counter (OTC) derivatives are widely regarded as “unregulated” financial instruments. While it is true that OTC derivatives are subject to relatively minimal federal regulation, OTC derivatives are in fact subject to a robust form of control and governance in the form of counterparty regulation. Counterparty regulation arises when two or more parties are continually exposed to counterparty credit risk for the duration of a long-term contract, and it consists of specific governance mechanisms such as the daily adjustment of collateral and the netting out of redundant trades. Counterparty regulation governs derivatives transactions but not securities transactions.

This essay reviews recent …

Unasked (And Unanswered) Questions About The Role Of Neuroimaging In The Criminal Trial Process, Michael L. Perlin, Valerie Mcclain

Articles & Chapters

The robust neuroimaging debate has dealt mostly with philosophical questions about free will, responsibility, and the relationship between brain abnormalities, violence and crime. This debate, however, obscures several important issues of criminal procedure to which little attention has as of yet been paid: 1) an indigent defendant's right of access to expert testimony in cases where neuroimaging tests might be critical, 2) a defendant's competency to consent to the imposition of a neuroimaging test; and 3) the impact of antipsychotic medications on a defendant's brain at the time that such a test is performed. This article will consider these questions …

They Keep It All Hid: The Ghettoization Of Mental Disability Law And Its Implications For Legal Education, Michael L. Perlin

Articles & Chapters

The Supreme Court has, since 1972, decided more than fifty cases involving persons with mental disabilities, a docket spanning virtually every aspect of constitutional law and criminal procedure. These cases have dealt with the substantive and procedural limitations on the commitment power, the conditions of confinement in psychiatric institutions, the application of the Americans with Disabilities Act to persons institutionalized because of mental illness, the substantive and procedural aspects of the criminal incompetency inquiry and the insanity defense, the relationship between mental disability and sexually violent predator laws, and all aspects of the death penalty. Thousands of cases have been …

Good And Bad, I Defined These Terms, Quite Clear No Doubt Somehow: Neuroimaging And Competency To Be Executed After Panetti, Michael L. Perlin

Articles & Chapters

There has been little consideration, in either the caselaw or the scholarly literature, of the potential impact of neuroimaging on cases assessing whether a seriously mentally disabled death row defendant is competent to be executed. The Supreme Court's 2007 decision in Panetti v. Quarterman significantly expanded its jurisprudence by ruling that such a defendant had a constitutional right to make a showing that his mental illness "obstruct[ed] a rational understanding of the State's reason for his execution." This article considers the impact of neuroimaging testimony on post-Panetti competency determination hearings, and looks at multiple questions of admissibility of evidence, adequacy …

Dealing With Excessive Caseloads With Litigation - Panel Two (National Public Defense Symposium: Achieving The Promise Of The Sixth Amendment: Non-Capital And Capital Defense Services), Adele Bernhard

Articles & Chapters

No abstract provided.

Delphic Dictum: How Has The Icj Contributed To The Global Rule Of Law By Its Ruling On Kovoso Kosovo In The Icj - The Case, Robert Howse, Ruti Teitel

Articles & Chapters

No abstract provided.

Reflections On Substance And Form In The Civil Rights Classroom, Doni Gewirtzman

Articles & Chapters

Legal education typically treats substance and form as unrelated entities -- the same pedagogical structure and tools are used regardless of the nature of the course. This Essay attempts to align the way we teach civil rights law with the nature of the subject matter by exploring three central conflicts that touch on both substance and form: the battle between coercion and freedom, the battle between public and private, and the battle between law and love. It argues that while the form of legal education polarizes each of these divides, the substance of civil rights law takes a more ambiguous …