Law Commons^™

Transgender Student-­Athletes And Sex-­Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, Erin E. Buzuvis

Faculty Scholarship

This Article discusses the discrimination of transgender students who may be excluded, discouraged, or simply made to feel uncomfortable participating in athletic programs for their natal sex, by the sex-segregated world of athletics. The Author believes that until sports' governing bodies develop and enforce policies of inclusion, transgender students will continue to be denied access to and the benefits of athletic participation. The Author examines the values that should go into the formation of such policies, including legal, medical and educational concerns. Part I of the Article puts transgender students' athletic participation in context by examining educational athletic's deep and …

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency Fee Environmental Special Counsel Arrangement, Julie E. Steiner

Faculty Scholarship

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with standing to …

Deconstructing Corporate Governance: Absolute Director Primacy, René Reich-Graefe

Faculty Scholarship

Microtheoretical models of the corporation which focus on corporate governance attempt to answer two deceptively simple, but fundamentally elusive questions: ‘Who are in control of the corporation?’ and ‘Whose interests ultimately control those in control of the corporation?’ Both questions remain partially unanswered within the models developed to date by corporate theoreticians. This Article proposes a radically new model: 'absolute director primacy.’ Existing microtheoretical models conceive that we only need to—and, indeed, can—determine the controlling interests guiding corporate decisionmaking in order to prove the existence of control over the decisionmaking latitude of corporate boards. The absolute director primacy …

Rule 15(C) Mistake: The Supreme Court In Krupski Seeks To Resolve A Judicial Thicket, Robert A. Lusardi

Faculty Scholarship

While recognizing the importance of a statute of limitations, Federal Rule of Civil Procedure 15 acts as a counterbalance to such statutes by allowing a plaintiff to freely amend a complaint to assert additional claims, or to name new or additional parties, and have those amendments relate back to a complaint filed within the statute of limitations even though that statute has run.

There have been interpretive problems, particularly with the language of Rule 15 (c)(1)(C)(ii). These problems arise when the "amendment changes the party or the naming of the party" after the statutory period and the conditions of Rule …

The Feminist Case For The Ncaa's Recognition Of Competitive Cheer As An Emerging Sport For Women, Erin E. Buzuvis

Faculty Scholarship

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve …

Caster Semenya And The Myth Of A Level Playing Field, Erin E. Buzuvis

Faculty Scholarship

In August of 2009, policies and procedures to verify the sex of female athletes were called into question when South African runner Caster Semenya
won the 800 meter event of the World Championships in Berlin. Responding to rumors of gender fraud, and fueled by Semenya’s speed, musculature, and deep voice, the International Association of Athletics Federations (IAAF) requested that Semenya submit to sex verification to confirm her eligibility for the women’s division.

This Article discusses the International Olympic Committee's (IOC) policy on sex testing, the myth of sex-verification testing, and the myth of the level playing field. It concludes with …

Interdisciplinary Transactional Courses, Eric J. Gouvin, Robert Statchen, Anthony J. Luppino, William Kell

Faculty Scholarship

This Article represents a panel presentation on interdisciplinary work in law school transactional courses. The Authors’ focus is on the Small Business Clinic at Western New England University School of Law. Topics covered are: interdisciplinary work and the classroom, professional liability and competency issues in rendering services through a clinic, culture class issues, ethical dilemmas, delivering professional products to the client, and co-curricular opportunities.

State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens

Faculty Scholarship

This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what …

Symposium: Fiduciary Duties In The Closely Held Business 35 Years After Wilkes V. Springside Nursing Home: Foreword, René Reich-Graefe

Faculty Scholarship

On October 15, 2010—exactly fifty-nine years to the day after the opening of the original nursing home operation in 1951 which formed the core business asset of the closely held Springside Nursing Home, Inc. corporation—the Western New England University School of Law and School of Business jointly hosted their 2010 Academic Conference on “Fiduciary Duties in the Closely Held Business 35 Years after Wilkes v. Springside Nursing Home.” As with installments from prior years, the Conference was sponsored by the Western New England University Law and Business Center for Advancing Entrepreneurship. This Article examines the case of Wilkes v. Springside …

No Virtue In Passivity: The Supreme Court And Ali Al-Marri, Bruce K. Miller

Faculty Scholarship

This Article discusses the case of Al-Marri v. Spagone, which the U.S. Supreme Court unjustifiably dismissed as moot on March 6, 2009. By dismissing this appeal, the Court ignored its duty to determine whether the military detention of a non-citizen residing lawfully in the United States was authorized by law. And that failure has in turn contributed significantly, and unnecessarily, to the cloud of legal uncertainty which now hovers over the preventive detention measures adopted and proposed by the Obama Administration.

What’S In A Name? How Nations Define Terrorism Ten Years After 9/11, Sudha Setty

Faculty Scholarship

Ten years after the attacks of September 11, 2001, it almost goes without saying that the acts of grotesque violence committed on that day have had enormous effects on national security law and policy worldwide. To be labeled a terrorist, or to be accused of involvement in an act of terrorism, carries far more severe repercussions now than it did ten years ago. This is true under international law and under domestic law in nations that have dealt with serious national security concerns for many years.

Given the U.N.’s global mandate to combat terrorism and that being defined as a …

Clinicians, Practitioners, And Scribes: Drafting Client Work Product In A Small Business Clinic, Robert Statchen

Faculty Scholarship

The recent and rapid growth of transactional clinics, and more specifically small business clinics (SBCs), mandates that time and attention be given to pedagogical methods within this specialized clinical structure. This Article focuses on the drafting component of an SBC. It is often asserted that legal education does not effectively provide students with business-oriented, practical skills training. At the heart of an SBC, is the necessity to prepare appropriate written client work product. SBCs also provide an excellent opportunity for students to acquire interviewing, researching, drafting, counseling, problem-solving, and other areas of expertise. This Article attempts to provide a process …

Double-Edged Paring Knives: Human Rights Dilemmas For Special Populations, Giovanna Shay

Faculty Scholarship

The United States makes up only 5 percent of the world's population, but it incarcerates 25 percent of the globe's prisoners. This unprecedented level of incarceration has brought increased attention to the problems of particular subsets of prisoners sometimes called "special populations." These groups include female prisoners; lesbian, gay, bisexual, transgender (LGBT), and questioning inmates; older prisoners; and prisoners with mental illness and physical disabilities. This Article discusses human rights dilemmas in the treatment of special populations in prison.

The Article surveys ABA Standards and Resolutions that bear on special populations. While ABA Standards do not have the force of …

Renaissance Or Retrenchment: Legal Education At A Crossroads, Lauren Carasik

Faculty Scholarship

This Article begins to synthesize the literature criticizing the current state of legal education with the scholarship proposing solutions, and argues that whatever review is undertaken must be expansive, with a careful and critical look at how each piece supports the endeavor. None of the ideas discussed, taken alone, are novel, as scholarship abounds on all of the topics. Considered together, the analysis suggests that a comprehensive and holistic approach to reform is necessary. In essence, the goal is to catalyze a wholesale reconsideration of the very foundation of legal education. Many of the seemingly disparate themes comprise a Gordian …

Victimized Twice: The Reasonable Efforts Requirement In Child Protection Cases When Parents Have A Mental Illness, Jeanne M. Kaiser

Faculty Scholarship

State child protection agencies are required by federal law to exert reasonable efforts to keep families together before seeking termination of parental rights. Some states, however, have created an exception to this requirement when the parent involved suffers from a chronic mental illness. Moreover, even in those states that enforce the requirement, the reunification services provided to parents with a mental illness often do not meet the needs of those parents.

This Article argues that although parents with a mental illness face serious challenges in caring for their children, they should not be categorically excluded from reunification efforts by means …

Deconstructing Corporate Governance: Director Primacy Without Principle?, René Reich-Graefe

Faculty Scholarship

If profit-maximizing is not enforced by corporate law, why does it nonetheless happen as a matter of almost overwhelming routine in today’s corporate reality? If indeed, director primacy is absolute and our theoretical models are all reliant on protolegal variables to explain general investor confidence ex-ante-investment despite the lack of director accountability ex-post-investment, then how can director primacy be understood and explained as a principled and, thus, just cor-porate governance structure in the first place? Or is director primacy not only absolute, but also without principle?

This Article provides a roadmap for purposes of answering this inquiry. Part II …

Similarly Situated, Giovanna Shay

Faculty Scholarship

In recent marriage equality litigation, opponents of same-sex marriage have argued that gay and straight couples are not “similarly situated” with respect to the purposes of the marriage statutes. Courts in Iowa,Connecticut, and California have rejected these arguments (although the California result was overturned by Proposition 8, which itself was invalidated by a district court as this Article was being written). The Iowa and California courts also questioned the structure of the “similarly situated” analysis asserted by the opponents. Marriage equality opponents in those states pressed a “threshold”-type similarly situated analysis.Under this scheme, if the two groups are not similarly …

The Challenge Of Temporary Work In Twenty-First Century Labor Markets: Flexibility With Fairness For The Low-Wage Temporary Workforce, Harris Freeman, George Gonos

Faculty Scholarship

As the Commonwealth wrestles with the social and economic aftershocks of the worst economic recession in 80 years, the widespread use of temporary staffing arrangements is a sober reminder that the “standard” employment relationship, a cornerstone of the prosperity of the post-­World War II era, is no longer available to a large segment of the American workforce. “Job ladders” have disintegrated, depriving capable and dedicated workers of predictable promotions. Regular step increases in pay and cost-­of-­living adjustments are in many occupational categories a thing of the past. Simply put, the “good jobs” working people need to support families, pay the …

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Faculty Scholarship

When the post-Warren Supreme Court began trimming back individual rights, some state courts responded by interpreting analogous or cognate state constitutional provisions to find broader protections, prompting a vigorous debate concerning the legitimacy and interpretive methodology of such state constitutionalism. How can two constitutional provisions, sharing the same language and history, mean different things? This Article looks at that question in the context of so-called prophylactic rules—those specific constitutional rules meant to guide the implementation of broader federal constitutional principles. Miranda ’s warning-and-waiver construct is probably the best known prophylactic rule, but such rules abound, particularly in criminal procedure.

This …

Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield

Faculty Scholarship

This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay.

The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, …

Criminalized State: The International Criminal Court, The Responsibility To Protect, And Darfur, Republic Of Sudan, Matthew H. Charity

Faculty Scholarship

The international community continues to struggle with the question of what to do when a nation fails to protect its own people from systemic neglect, mistreatment, or even genocide. For many years, this debate pitted proponents of humanitarian intervention by a third-party against those who believe that all others must defer to the sovereign right of the state to control its own affairs and the affairs of its people. In the midst of this debate, the international community has adopted a middle road: insisting that states must acknowledge their responsibility to protect their populations and if the state manifestly fails …

Upper-Level Courses: Three Exemplars, Eric J. Gouvin, Mark Fagan, Tamar Frankel, Kathy Z. Heller

Faculty Scholarship

This Article presents three exemplars of upper-level law school classes, and is divided into three parts. Part I discusses "Securitization and Asset-Backed Securities"; Part II discusses "Using Transactions to Teach Secured Transactions"; and Part III discusses "Teaching Deals Through a Focus on the Entertainment Industry."

Wilkes V. Springside Nursing Home, Inc.:The Backstory, Eric J. Gouvin

Faculty Scholarship

As it appears in most casebooks, the Wilkes v. Springside Nursing Home, Inc. case tells the story of a falling-out among the shareholders in a closely-held corporation and the resulting freeze-out of one of the owners, Mr. Stanley Wilkes. The opinion indicates that the heart of the dispute arose out of Mr. Wilkes’s refusal to allow the sale of a piece of corporate property (the “Annex” at 793 North Street) to one of the other shareholders, Dr. Quinn, at a discount. In real life, that transaction did indeed cause a significant rift in the shareholders’ relationship, but, as this article …

The First Of Thousands? The Long View Of Local 1330'S Challenge To Management Rights And Plant Closings, Harris Freeman

Faculty Scholarship

This Article introduces and frames a symposium issue of Harvard Law School’s Unbound, Journal of the Legal Left that is devoted to an assessment of Local 1330, United Steel Workers v. U.S. Steel (6th Cir. 1980) on the 30th anniversary of the decision. The Author provides a historical and legal context for the federal courts’ decisions on the Steelworkers’ novel community property and contractual claims brought by the plaintiffs in an effort to prevent U.S. Steel from closing its manufacturing operations Youngtown, Ohio. In this context, the Author discusses the relationship of the plaintiffs’ community property claim to the origins …