Law Commons^™

Makeshift Justice And Mootness: The Mauling Of Frcp Rule 68, Michelle Ferrare

Student Works

No abstract provided.

Three Views Of The Academy: Legal Education And The Legal Profession In Transition, Barbara Glesner Fines

Faculty Works

No abstract provided.

The Disconnected Juror: Smart Devices And Juries In The Digital Age Of Litigation, Patrick C. Brayer

Faculty Works

As we progress toward a post-digital age of individuals becoming one with technology, the legal profession will encounter an increasing number of jurors who have never known life without the Internet, social media or mobile devices. At the same time an increasing number of citizens are becoming dependent on digital technology, state supreme courts, state trial judges, and federal judges from across the nation are banning and confiscating cell phones, tablets, and other devices of connection to prevent jurors from engaging in misconduct. This article illuminates the unintended consequences that arise when courts remove from a sitting juror an individual …

The American Legacy Of Public Land Rebellion, John W. Ragsdale Jr

Faculty Works

The most recent manifestation of the Sagebrush Rebellion is a mind-bending, consciousness altering, looking glass version of logic and reality. The sight of Cliven Bundy with his big hat, massive silver belt buckle, and his equally sizeable paunch, his unemployable spawn, the late, doggedly litigious Wayne Hage and his dutiful descendants, the swat teams of heavily armed, confrontation-seeking acolytes, equipped with flak jackets, AK-47s, second amendment signage, and "patriot" bling is, to be charitable, cartoonish. This clown car has emerged, clad in the sackcloth of "injured innocence" and professing to be the beleaguered natives of the Great Basin's high desert. …

The Second Amendment On Campus, Allen K. Rostron

Faculty Works

No abstract provided.

The Abstract Void In Practice: Has The Statutory Business Judgment Rule Changed The ‘Acoustic Separation’ Between Conduct And Decision Rules For Directors’ Duty Of Care?, Sergio Alberto Gramitto Ricci, Jake Miyairi

Faculty Works

A recent outpouring of director sentiment claims that the stringency of directors’ duty of care is stifling entrepreneurial growth. This article explores whether the statutory business judgment rule has enhanced directors’ protection for legitimate commercial decisions, or clarified their liability for due care — the two express justifications behind its enactment. Directors’ protection for entrepreneurial decision-making cannot be amplified without broadening the pre-existing abstract void between the duty of care — as a conduct rule — and the general law ‘business judgment principle’ — as a decision rule. But Parliament’s desire to clarify and confirm the existing general law business …

The Legitimacy Of International Law, David Lefkowitz

Philosophy Faculty Publications

The conduct of international affairs is subject to three kinds of normative standards. The first of these is prudence or rational self-interest, and its most common manifestation in international affairs involves reference to a state's national interest as a basis for defending or critiquing its international conduct. Justice provides a second metric for assessing the international conduct of states, and sometimes other actors, and a set of normative concepts including freedom, equality and fairness with which to argue for or against particular acts or policies. Law, including both international law and the foreign law of particular states, provides the third …

The President In His Labyrinth: Checks And Balances In The New Pan-American Presidentialism, Andrea Scoseria Katz

Scholarship@WashULaw

This dissertation presents a theory of the separation of powers centered on the President’s “power to persuade.” To meet the imperial public expectations placed on the office in the modern age, the President will reliably try to supplement his limited formal powers by convincing others to support his agenda, the people, party allies, and courts being the most important. The President’s techniques of persuasion fall into three regular categories. First, there is “going public,” or popular leadership, where the President turns the force of popular majorities into a tool for shaping policy or legislative outcomes. Second is executive law-making, whereby …

Taking Bankruptcy Rights Seriously, Rafael I. Pardo

Scholarship@WashULaw

Perhaps more so than any other area of law affecting individuals of low-to-moderate means, bankruptcy poignantly presents an affordability paradox: The system’s purpose is to relieve individuals from financial distress, yet it simultaneously demands a significant commitment of resources to obtain such relief. To date, no one has undertaken a comprehensive study of the complexities and costs of the litigation burden that Congress has imposed on self-represented debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that sometimes necessitates litigation as the path for vindicating a debtor’s statutory right to a …

Guns And Drugs, Benjamin Levin

Scholarship@WashULaw

This Article argues that the increasingly prevalent critiques of the War on Drugs apply to other areas of criminal law. To highlight the broader relevance of these critiques, the Article uses as its test case the criminal regulation of gun possession. The Article identifies and distills three lines of drug-war criticism, and argues that they apply to possessory gun crimes in much the same way that they apply to drug crimes. Specifically, the Article focuses on: (1) race- and class-based critiques; (2) concerns about police and prosecutorial power; and (3) worries about the social costs of mass incarceration. Scholars have …

Your Corrupt Ways Had Finally Made You Blind: Prosecutorial Misconduct And The Use Of Ethnic Adjustments In Death Penalty Cases Of Defendants With Intellectual Disabilities, Michael L. Perlin

Articles & Chapters

In a recent masterful article, Professor Robert Sanger revealed that, since the Supreme Court's decision in Atkins v. Virginia, some prosecution experts have begun using so-called "ethnic adjustments" to artificially raise minority defendants' IQ scores, making such defendants-who would otherwise have been protected by Atkins and, later, by Hall v. Florida-eligible for the death penalty. Sanger accurately concluded that ethnic adjustments are not logically or clinically appropriate when computing a person's IQ score for Atkins purposes. He relied further on epigenetics to demonstrate that environmental factors-such as childhood abuse, poverty, stress, and trauma-can cause decreases in actual IQ scores, and …

The Changing Life Science Patent Landscape, Arti K. Rai, Jacob S. Sherkow

Articles & Chapters

Over the past two decades, patent law in the life sciences has been buffeted by numerous controversies. With courts, legislatures and patent offices all responding, one could be forgiven for believing that the main constant has been change. In the following article, we look back at some of the major events in life science intellectual property (IP) law and business practice over the past 20 years and then suggest where IP practice in the life sciences may be heading in the coming years.

Should The Law Convict Those Who Act From Conviction? Reflections On A Demands-Of-Conscience Criminal Defense, David Lefkowitz

Philosophy Faculty Publications

How should the judge or jury in a just criminal court treat a civil disobedient, someone who performs a conscientiously motivated communicative breach of the criminal law? Kimberley Brownlee contends that all else equal a court of law should neither convict nor punish such offenders. Though I agree with this conclusion, I contend that Brownlee mischaracterizes the nature of the criminal defense to which civil disobedients are entitled. Whereas Brownlee maintains that such actors ought to be excused for their criminal breach, I argue that they ought to enjoy a justification defense. Acts of civil disobedience are not (morally) wrongful …

High-Quality Community Life Engagement Supports: Four Guideposts For Success (Engage: A Brief Look At Community Engagement, Issue No. 3, 2016), Jaimie Ciulla Timmons, Jennifer Sullivan Sulewski, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

Community Life Engagement refers to supporting people with intellectual and developmental disabilities (IDD) to access and participate in their communities outside of employment as part of a meaningful day. States and providers report growing numbers of individuals with IDD in Community Life Engagement, yet the role of services related to engagement and participation in community life has to date been largely undefined.

Furthermore, the Department of Justice’s guidance around the provision of day and employment supports in integrated settings (U.S. Department of Justice, 2014; United States v. State of Rhode Island, 2014) has illustrated the need to define and provide …

Policy And State-Level Strategies To Promote Employment (Bringing Employment First To Scale, Issue No. 3), Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

At the national level, integrated employment has become an important policy priority. Greater expectations are being placed on those charged with delivering employment supports, and disability systems are responding. However, the promise of integrated employment has yet to be realized for individuals with intellectual and developmental disabilities (IDD). The number of individuals supported in integrated employment by state IDD agencies has remained the same since 2000, participation in non-work services has grown rapidly, and promising practices for employment supports identified in the research are not widely implemented. What are the state-level strategies that can change this trajectory?

This brief: Describes …

Organizational Transformation: Guiding Principles For Community Providers (Bringing Employment First To Scale, Issue No. 6), Jaimie Ciulla Timmons, Amie Lulinski, Cindy Thomas, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

A key area of focus for our Rehabilitation Research and Training Center (RRTC) is organizational transformation, leading to improved employment outcomes for those served by community provider organizations. Community provider organizations and their staff are the primary source of day and employment supports for people with intellectual and/or developmental disabilities (IDD). Among this large provider community, variation of services and employment philosophies exists. Many believe that facility-based programs are essential for individuals with disabilities who are having difficulty getting or maintaining competitive work in the labor force, and have limited plans to expand competitive integrated employment. Others believe that all …

Who Are Employment Consultants? Characteristics Of The Workforce That Connects Job Seekers With Intellectual And Developmental Disabilities To Employment (Bringing Employment First To Scale, Issue No. 7), Oliver Lyons, Alberto Migliore, Kelly Nye-Lengerman, Derek Nord, John Butterworth, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

In 1987, the Institute for Community Inclusion (ICI) at the University of Massachusetts Boston began a series of surveys aimed at providing a longitudinal description of the characteristics and service delivery provided by Community Rehabilitation Providers (CRPs)(Domin & Butterworth, 2012). Despite direct support staff comprising one of the nation’s largest labor market segments, there has been very little research into the wages and stability of that workforce (Bogenschutz, Hewitt, Nord, & Hepperlen, 2014). Additionally, most of the literature regarding employment consultants has focused on service outcomes of the individuals served. However, according to Luecking, Fabian, and Tilson (2004), “…Regardless of …

Achieving Best Practice In Employment Supports: Defining Measures Of Effectiveness (Bringing Employment First To Scale, Issue No. 4), Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

People with intellectual and developmental disabilities (IDD) are among the most likely Americans to be unemployed, live in poverty, or rely on public programs. In 2013, only 23% of working-age people with cognitive disabilities—a broad demographic category that includes individuals with IDD—were employed, compared to 72% of people without disabilities. While over 30 states have adopted an Employment First policy (a declaration that employment is the priority outcome for people with disabilities), a key challenge is ensuring that supports meet the standards for best practice. Employment supports are delivered by what we refer to as “employment consultants.” We use this …

Knowledge Translation And Support For Individuals And Families (Bringing Employment First To Scale, Issue No. 5), Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

With the persistently low competitive employment rate for working-age people with intellectual and developmental disabilities (IDD), a main focus area for the field of disability research has been on the interaction between the individual and the service system. Yet we know much less about the interaction between systems and families around employment. Family engagement is key to successful employment and life planning, often leading individuals with disabilities on the path to employment when family members serve as role models for work ethic and behavior. Family members may also provide logistical support, including coaching and advice, help with planning and organizing …

Statedata: The National Report On Employment Services And Outcomes, 2016, Jean Winsor, Jaimie Ciulla Timmons, John Butterworth, John Shepard, Cady Landa, Frank A. Smith, Daria Domin, Alberto Migliore, Jennifer Bose, Lydia Landim, Thinkwork! At The Institute For Community Inclusion At Umass Boston

All Institute for Community Inclusion Publications

This report provides statistics over 25 years from several national datasets that address the status of employment and economic self-sufficiency for individuals with intellectual and developmental disabilities. The authors use abbreviations for both intellectual disability (ID) and intellectual and developmental disabilities (IDD) in this report. This is because data sources vary in the specific target groups that can be described. Please refer to each chapter for the disability definition used in that chapter. We provide a comprehensive overview that describes national trends in employment for people with IDD, and the appendices provide individual state profiles with data from several sources. …

Prosecutorial Accountability 2.0, Bruce A. Green, Ellen Yaroshefsky

Faculty Scholarship

No abstract provided.

The Myths Of Macpherson, Benjamin C. Zipursky, John C.P. Goldberg

Faculty Scholarship

For a symposium marking the centenary of MacPherson v. Buick, we identify three common characterizations of Cardozo’s famous opinion that purport to explain its importance. Unfortunately, each of these characterizations turns out to be a myth. MacPherson is worthy of celebration, but not because it recognizes that negligence law’s duty of care is owed to the world, nor because it displays the promise of an instrumental, policy-oriented approach to adjudication, nor because it embraces a nascent form of strict products liability. These myths of MacPherson reflect deep misunderstandings of tort law, and of Cardozo’s distinctively pragmatic approach to adjudication. Ironically, …

Thinking In The Box In Legal Scholarship: The Good Samaritan And Internet Libel, Benjamin C. Zipursky

Faculty Scholarship

No abstract provided.

Elder Law: An Annotated Bibliography, 2011-2016, Nancy Levit

Faculty Works

No abstract provided.

Using Infographics To Report Research Results, Ayyoub Ajmi

Faculty Works

This article uses infographics to share how cross-departmental collaboration and open communication between librarians and IT professionals can lead to successful implementation of technology initiatives in libraries, and how shared services bring access to specialized personnel whom most law libraries and law schools wouldn’t have access to otherwise.

The Concept Of The Speech Platform: Walker V. Texas Division, Abner S. Greene

Faculty Scholarship

In Walker, the Court deemed Texas’ specialty license plate program government speech, and thus applied no First Amendment review to the state’s refusal to allow a Confederate battle flag specialty plate, even though the reason for the refusal was that the plate was offensive. The dissent considered this unconstitutional viewpoint discrimination in a limited public forum. This article argues that the Walker result was correct, but for the wrong reason. Government should have the power to forbid hateful or vulgar speech from limited public forums such as specialty or vanity license plates, transit ads, and after-school extracurricular activities, even though …

Cases And Case-Lawyers, Richard A. Danner

Faculty Scholarship

In the nineteenth century, the term “case-lawyer” was used as a label for lawyers who seemed to care more about locating precedents applicable to their current cases than understanding the principles behind the reported case law. Criticisms of case-lawyers appeared in English journals in the late 1820s, then in the United States, usually from those who believed that every lawyer needed to know and understand the unchanging principles of the common law in order to resolve issues not found in the reported cases. After the Civil War, expressions of concern about caselawyers increased with the significant growth in the amount …

Data Note: Comparing Vr Outcomes For Individuals With And Without Intellectual Disabilities Who Receive Postsecondary Education Services, John Shepard, Frank A. Smith, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

This Data Note explores the provision of postsecondary education services to vocational rehabilitation customers with and without intellectual disabilities who exited the VR system in FY2014.

Data Note: The Engagement Of Young Adults With Intellectual Disabilities In Vocational Rehabilitation: 2010–2014 State Trends, Alberto Migliore, Jean Winsor, Caro Narby, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

In this Data Note, we look at the average number of young adults with intellectual disabilities (ID) who between 2010 and 2014 exited vocational rehabilitation (VR) programs in each of the 50 states and the District of Columbia.

Data Note: State Intellectual And Developmental Disability Agencies' Service Trends, Jean Winsor, Thinkwork! At The Institute For Community Inclusion At Umass Boston

Data Note Series, Institute for Community Inclusion

This Data Note summarizes findings from the FY 2014 National Survey of State Intellectual and Developmental Disability Agencies' (IDD Agencies) Day and Employment Services.