Law Commons^™

Why A Disability Rights Tribunal Must Be Premised On Therapeutic Jurisprudence Principles, Michael L. Perlin, Mehgan Gallagher

Articles & Chapters

The authors have previously written about the need for a disability rights tribunal in Asia (DRTAP) along with an information center (DRICAP) as part of that tribunal so that litigants can easily access the controlling domestic case law, statutes and regulations of the participating nations.

We believe a successful DRTAP must be premised on therapeutic jurisprudence (TJ) principles, and that its creation would be hollow without dedicated and knowledgeable lawyers representing the population in question. In accordance with TJ principles, it must incorporate “voice, validation and voluntary participation” to insure that litigants have a sense of voice or a chance …

Life's Hurried Tangled Road: A Therapeutic Jurisprudence Analysis Of Why Dedicated Counsel Must Be Assigned To Represent Persons With Mental Disabilities In Community Settings, Alison Lynch, Michael L. Perlin

Articles & Chapters

This paper will be published as part of a symposium issue of Behavioral Sciences and Law.

Although counsel is now assigned in all jurisdictions to provide legal representation to persons facing involuntary civil commitment, such counsel is rarely available to persons with mental disabilities in other settings outside the hospital. In this paper, we strongly urge that such representation also be made available to this population in community settings. The scope of this representation must include any involvement with the criminal justice system that currently does not fall within the scope of indigent counsel assignment decisions such as Gideon v. …

Breaking Bad Briefs, Heidi K. Brown

Articles & Chapters

This article focuses on the practical effects of bad briefing on our legal process and suggests a holistic remedy: a system-wide commitment to striving to instill in law students and lawyers a respect for legal writing as, not only a fundamental competency of our chosen profession, but a talent that requires initial training, focused study, repeated practice, and conscious evolution throughout the arc of one’s legal education and career. Effective brief-writing is not as simple as a quick cut-and-paste job, a template download, or a stream-of-consciousness exercise, even for lawyers who repeatedly practice one type of case. Part I of …

Tolling For The Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization Of Racial Minorities And Women In Institutional Mental Disability Law, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with mental disabilities have traditionally been and continue to be subjected to rights violations and pervasive discrimination because of their mental disabilities. Seen as “the other,” individuals who are racial minorities and/or are women are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving theright to refuse medication).

It is impossible to examine these questions critically without coming to grips with the ways that expert testimony — testimony that is essential and necessary in all these cases — is infected with bias that leads to …

Transsexual, Transgender, Trans: Reading Judicial Nomenclature In Title Vii Cases, Kris Franklin, Sarah Chinn

Articles & Chapters

No abstract provided.

Open To Justice: The Importance Of Student Selection Decision In Law School Clinics, Deborah N. Archer

Articles & Chapters

No abstract provided.

Patent Law's Reproducibility Paradox, Jacob S. Sherkow

Articles & Chapters

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible; their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine mitigate or even actively dissuade reproducible data in patents. This Article assesses the difficulties …

What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

The Judicial Legacy Of Louis Brandeis And The Nature Of American Constitutionalism, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

Fortuitously Present At The Creation, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Statutory Junk, David Schoenbrod

Articles & Chapters

Much as “space junk”—the debris that past space missions have left in earth’s orbit—can disable a current space mission, obsolete statutory commands that Congress has left on the books can keep an administrative agency from accomplishing its current mission. This statutory junk has proliferated in recent decades because Congress has shifted from giving agencies open-ended authority to commanding them in exacting detail, but often fails to revise these commands after changing circumstances have made the old commands perverse. Congress fails because, contrary to the suppositions of some law professors, this delegation allows legislators to shift blame to the agency for …

Ask The Professor: Will The Recent Supreme Court Case In Salman Result In More Cftc Enforcement Actions Charging Insider Trading?, Ronald H. Filler, Jerry W. Markham

Articles & Chapters

No abstract provided.

New York City's "Universal Access" Legislation: One Giant Leap For The Civil Right To Counsel, Andrew Scherer

Articles & Chapters

No abstract provided.

Bridges Ii: The Law-Stem Alliance & Next Generation Innovation, Jacob S. Sherkow

Articles & Chapters

No abstract provided.

Paying For Privacy And The Personal Data Economy, Stacy-Ann Elvy

Articles & Chapters

Growing demands for privacy and increases in the quantity and variety of consumer data have engendered various business offerings to allow companies, and in some instances consumers, to capitalize on these developments. One such example is the emerging “personal data economy” (PDE) in which companies, such as Datacoup, purchase data directly from individuals. At the opposite end of the spectrum, the “pay-for-privacy” (PFP) model requires consumers to pay an additional fee to prevent their data from being collected and mined for advertising purposes. This Article conducts a simultaneous in-depth exploration of the impact of burgeoning PDE and PFP models. It …

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman

Articles & Chapters

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

Race, Law & Inequality, Fifty Years After The Civil Rights Era, Frank W. Munger

Articles & Chapters

Over the last several decades, law and social science scholars have documented persistent racial inequality in the United States. This review focuses on mechanisms to explain this persistent pattern. We begin with policy making, a mechanism fundamental to all the others. We then examine one particularly important policy, the carceral state, which can be described as the most important policy response to the civil rights era. A significant body of scholarship on employment discrimination presents a site for explaining the transformation of law on the books into the law in action. Finally, we review scholarship on the persistence of segregation …

Triggering Tinker: Student Speech In The Age Of Cyberharassment, Ari Ezra Waldman

Articles & Chapters

This essay challenges the common assumption that public schools have limited authority to regulate cyberbullying that originates and takes place off campus. That argument presumes a level of myopia, clarity, and literalism in the law that simply does not exist. First, even assuming it existed, a geographic requirement is an outdated creature of a preinternet age. Cyberbullying poses unique challenges to young people, educators, and schools not contemplated when the Court decided its student speech cases. If it existed then, it should adapt to today’s realities. Second, I argue that a campus presence requirement for regulating any kind of off-campus …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Lynch

Articles & Chapters

Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Articles & Chapters

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust.

Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows …

Teaching Legal Technology, Camille Broussard, Kathleen Brown, Daniel Cordova, Sarah Mauldin

Articles & Chapters

No abstract provided.

Hybrid Transactions And The Internet Of Things: Goods, Services, Or Software?, Stacy-Ann Elvy

Articles & Chapters

The Internet of Things (IOT) has been described by the American Bar Association as "one of the fastest emerging," potentially most "transformative and disruptive technological developments" in recent years. Thesecurity risks posed by the IOT are immense and Article 2 of the UCC should play a central role in determinations regarding liability for vulnerable IOT products. However, the lack of explicit clarity in the UCC on how to evaluate Article 2's applicability to hybrid transactions that involve the provision of goods, services, and software has led to conflicting case law on this issue, which contradicts the UCC's stated goals of …

Introduction, Brandt Goldstein

Articles & Chapters

No abstract provided.

Social Control Of Wealth In Antebellum New York, William P. Lapiana

Articles & Chapters

No abstract provided.

The Insanity Defense: Nine Myths That Will Not Go Away, Michael L. Perlin

Articles & Chapters

Writing about the insanity defense over a quarter of a century ago, the author of this chapter stated: "Until we 'unpack' the empirical and social myths that underlie our misconceptions about the insane and the insanitydefense and hold us in a paralytic thrall, we cannot begin to move forward." Some five years later, he began a full-length book on the insanity defense by alleging, "Our insanity defense jurisprudence is incoherent." Five years after that, he concluded that "we as a society remain fixated on the insanity defense as a symbol of all that is wrong with the criminal justice system …

Ancillary Agreements In Real Estate Transactions, Andrew R. Berman, Barry Hines, Everett Ward

Articles & Chapters

No abstract provided.

Expanded Reporting Obligations For Financial Institutions In The New World Of Tax Transparency, Alan Appel

Articles & Chapters

This article looks at FinCEN's current anti-tax avoidance measures, including the new account opening requirements, along with the requirements relating to cash purchases of high-end real estate with which title insurance companies and U.S. lenders must comply.

I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.

In this paper, I …

How To Salvage Article I: The Crumbling Foundation Of Our Republic, David Schoenbrod

Articles & Chapters

No abstract provided.