Law Commons^™

Federal Judicial Selection As War: Part Iii --The Role Of Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Drug Wars In Black And White, Joseph E. Kennedy

Faculty Publications

No abstract provided.

Accounting For Science: The Independence Of Public Research In The New Subterranean Administrative Law,, Donald Thomas Hornstein

Faculty Publications

No abstract provided.

A Conceptual Model Of Health Care Fraud Enforcement, Joan H. Krause

Faculty Publications

No abstract provided.

Foreword: Federal-State Conflicts In Health Care, Joan H. Krause

Faculty Publications

No abstract provided.

From North Carolina To Kwazulu Natal: World Library Partnership, Donna L. Nixon

Faculty Publications

No abstract provided.

New Dimensions In Sentencing Reform In The Twenty-First Century, Robert P. Mosteller

Faculty Publications

No abstract provided.

Victim Impact Evidence: Hard To Find The Real Rules, Robert P. Mosteller

Faculty Publications

No abstract provided.

Inference Or Impact? Racial Profiling And The Internment's True Legacy, Eric L. Muller

Faculty Publications

No abstract provided.

The International Law Of Business Method Patents, John M. Conley

Faculty Publications

No abstract provided.

Law, Theory And Aboriginal Peoples, Gordon Christie

All Faculty Publications

Some Aboriginal people see domestic Canadian law as alien and oppressive. This paper explores one source of this perception. By examining the layers of theory and world-view upon which the law is based, it finds conflict with the sensibilities of Aboriginal peoples. The author argues that a liberal vision supports and enlivens the law, and because it is grounded in this vision, the law cannot protect the interests of Aboriginal peoples. In analyzing the current legal approach to the protection of Aboriginal interests, an alternative liberal argument based on group autonomy is also considered. By examining the debate between liberal …

Towards A Single Definition Of Armed Conflict In International Humanitarian Law: A Critique Of Internationalized Armed Conflict, James G. Stewart

All Faculty Publications

The strict division of international humanitarian law into rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature is almost universally criticized. Even though attempts to abandon the distinction were made at every stage of negotiation of the Geneva Conventions and their Protocols, calls for a single body of international humanitarian law have since died out. This article revives those calls by highlighting the inadequacies of the current dichotomy’s treatment of internationalized armed conflicts, namely, armed conflicts that involve internal and international elements. It concludes that the law developed to determine this “internationalization” …

Environmental Management Systems And Public Authority In Canada: Rethinking Environmental Governance, Stepan Wood

All Faculty Publications

Using the example of environmental management systems (EMS) and the ISO 14001 standard, I propose a typology of eight ways in which public authorities interact with voluntary environmental initiatives: 1. Steering (influencing the development, use or content of voluntary initiatives through official policy pronouncements, participation in standards development or creation of legal ground rules or backstops for voluntary initiatives), 2. Self-discipline (applying voluntary initiatives to government operations or agreeing to international trade rules that turn voluntary standards into constraints on regulatory authority), 3. Knowledge production (generating and disseminating ideas, information and expertise about the design, use or value of voluntary …

Nietzschean Critique And Philosophical Hermeneutics, Francis J. Mootz Iii

Scholarly Works

This article appears as part of a Symposium on "Nietzsche and Legal Theory" published by the Cardozo Law Review. It addresses connections between philosophical hermeneutics and Nietzschean critique, and the relevance that these connections might have for legal theory.

Legal practice inevitably is hermeneutical, with lawyers and judges interpreting governing legal texts and the social situations in which they must be applied. Hans-Georg Gadamer's philosophical hermeneutics describes this practice well, but he treats the question of the possibility of a critical hermeneutics in an ambiguous and under-developed manner. Consequently, Gadamer is frequently (and unfairly) accused of conventionalism and quietism. At …

Holding Liability Insurers Accountable For Bad Faith Litigation Tactics With The Tort Of Abuse Of Process, Francis J. Mootz Iii

Scholarly Works

Liability insurers generally do not owe any common law duties to injured third-party claimants who sue their insureds. After establishing (as a conceptual backdrop) the important and recognized public policies favoring prompt and fair payments by liability insurers to injured third-party claimants, this article analyzes whether claimants can effectively use the tort of abuse of process to hold liability insurers accountable when they engage in bad faith litigation tactics. The article identifies the problems that claimants may face in alleging abuse of process in the liability insurance setting, but also indicates that recent trends in this area of law suggest …

Of Child Welfare And Welfare Reform: The Implications For Children When Contradictory Policies Collide, Kay P. Kindred

Scholarly Works

On August 22, 1996, President Bill Clinton signed into law the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (hereinafter, “PRWORA” or the “welfare reform law”), which replaced the Aid to Families and Dependent Children Program (“AFDC”), the nation’s primary cash-assistance program, with the Temporary Assistance to Needy Families Program (“TANF”), funded by block grants to states. PRWORA represented a dramatic change in social welfare policy in the United States. Among the many changes effected by the law in the nation’s social welfare programs were: (1) the increased authority of the states over cash-assistance programs for needy families, giving …

The Latina/O And Apia Vote Post-2000: What Does It Mean To Move Beyond “Black And White” Politics?, Sylvia R. Lazos

Scholarly Works

This Article frames the challenges to LatCrit theory and activism posed by voting rights, electoral process, and minority politics. In order to focus on the key challenges, The Article poses this question: What does a LatCrit theorist mean when she proposes to move beyond the "Black-White" paradigm? The Article discusses the changes in the U.S. electorate that in post-2000 have made the Latina/o and APIA vote the darling of both major parties. In the process of being perceived as an important electoral group, Latinas/os and Asian Pacific Islands Americans are at times being depicted as "model minorities." The Article concludes …

Is There Hope For Hope Vi?: Community Economic Development And Localism, Ngai Pindell

Scholarly Works

HOPE VI is a competitively funded, public housing redevelopment program with several competing goals. First, it seeks to revitalize deteriorated inner city communities. Second, the program attempts to transform dense, high-rise public housing that has housed the lowest income tenants into developments that are more integrated with surrounding communities in terms of architecture, economics, and aesthetics. Third, the program aspires to provide public housing residents opportunities for social and economic mobility through improvements in physical design and program offerings. The HOPE VI design encompasses demolishing existing "distressed" public housing developments, rebuilding these developments with fewer public housing units, and housing …

Further Thoughts On Better Writing, Terrill Pollman

Scholarly Works

As writing teachers, we frequently witness the mystery of how writing and re-writing clarifies thinking. We teach our students to let the writing process show them the gaps in their reasoning. As student edit, they learn that paring away the superfluous allows us to see the line and structure of the argument. When a section or sentence “won’t write,” it is often because we are trying to ignore a flaw in our understanding. Form is related to content. The attempt to simplify out message teaches us what is it we have to say.

To Err Is Human: The Judicial Conundrum Of Curing Apprendi Error, Joshua Fairfield

Articles by Maurer Faculty

No abstract provided.

Note, A Woman’S Life, A Woman’S Health: Equalizing Medicaid Abortion Funding In Simat Corp. V. Arizona Health Care Cost Containment System, Sara Gordon

Scholarly Works

This casenote discusses the Arizona Supreme Court’s decision in Simat Corp. v. Arizona Health Care Cost Container System. In a decision deviating from those of the United States Supreme Court, the Arizona Supreme Court declared the Arizona statute and accompanying Arizona Heath Care Cost Containment System provisions unconstitutional because they did not survive strict scrutiny analysis under the Privileges and Immunities Clause of the Arizona Constitution. Where the state of Arizona has undertaken to fund abortions for indigent women whose lives are directly threatened by pregnancy, it cannot refuse to pay for abortions for similarly indigent women whose health, …

Introduction To Symposium, The Rights Of Parents With Children In Foster Care: Removals Arising From Economic Hardship And The Predicative Power Of Race, Ann Cammett

Scholarly Works

Professor Cammett introduces a symposium at the Association of the Bar of the City of New York exploring the predicament posed by the surge of child removals through neglect petitions, and the subsequent placement of those children in foster care. The panel’s published comments offer some poignant reflections on the crisis of the child welfare system.

Book Review, David S. Tanenhaus

Scholarly Works

This concise book explores the origins and early history of the Cook County Juvenile Court, the world’s first such court. The court, which opened on July 3, 1899, in Chicago, reflected its founders’ profound faith both in science to solve social problems and the power of the state to provide for the best interests of its children. Yet, as Getis argues, the juvenile court did not live up to its initial promise, and “instead of a place of experimentation and reform—which it could have been—or a place of individualized justice guided by science—perhaps an unattainable goal—the court became an institution …

Is Truth In The Eye Of The Beholder? Objective Credibility Assessment In Refugee Status Determination, Michael Kagan

Scholarly Works

Credibility assessment is often the single most important step in determining whether people seeking protection as refugees can be returned to countries where they say they are in danger of serious human rights violations. Despite its importance, credibility-based decisions in refugee and asylum cases are frequently based on personal judgment that is inconsistent from one adjudicator to the next, unreviewable on appeal, and potentially influenced by cultural misunderstandings. Some of the people who need protection most are especially likely to have trouble convincing decision-makers that they should be believed.

This article sets out principles, standards, and criteria drawn from international …

Transnationalism As A Social Movement Strategy: Institutions, Actors And International Labor Standards, Ruben J. Garcia

Scholarly Works

In the context of changing global realities, the UC Davis Journal of International Law & Policy (“JILP”) held its March 2003 Symposium, “Workers and International Economic Institutions: Challenges and Possibilities in a Global Economy.” The conference attracted a diverse array of academics, policymakers, and community activists. The participants examined the problems and possibilities that government, business, and nonprofits present for creating and maintaining labor standards in the global economy. In this introduction, the author will place each of the Symposium contributions into a framework of the choices that institutions and actors must make in deciding the best course for raising …

Ghost Workers In An Interconnected World: Going Beyond The Dichotomies Of Domestic Immigration And Labor Laws, Ruben J. Garcia

Scholarly Works

Beginning with the September 11, 2001 ("9/11") terrorist attacks, the labor movement's plans to organize immigrant workers and achieve immigration reform have met serious challenges. After 9/11, the political climate surrounding immigrants put the AFL - CIO's hopes for legislative reform on hold, because of socially perceived connections between immigrants and terrorism. Then, in a March 2002 decision titled Hoffman Plastic Compounds, Inc. v. NLRB, the U.S. Supreme Court held that undocumented immigrant workers could not collect back pay under the National Labor Relations Act (NLRA) when their rights to join unions are violated. According to the Court, back …

Across The Borders: Immigrant Status And Identity In Law And Latcrit Theory, Ruben J. Garcia

Scholarly Works

Immigrants make up a large and increasing portion of the American community. The recent census found an unprecedented number of immigrants within the United States. Immigrants, however, have fewer legal protections than almost any other individuals within our borders. This lack of protection is especially disconcerting given that immigrants are often the most subordinated members of our communities. Particularly after the events of September 11, 2001, the rights and protections available to immigrants—whether they are documented or not—are tenuous. As LatCrit scholars have pointed out, immigration law is intensely racialized, and yet other bodies of law, such as civil rights …

Book Review. Boundary Issues In Central Asia By Necati Polat, Elizabeth Larson Goldberg

Articles by Maurer Faculty

No abstract provided.

Adr Is Here: Preliminary Reflections On Where It Fits In A System Of Justice, Jean R. Sternlight

Scholarly Works

Reviewing some of the anthropological and other literature regarding other societies' resolution of disputes, I saw that historically many societies have placed far greater emphasis on harmony and healing, and far less emphasis on individualistic adversarial approaches, than we do in the United States today. Just as settlements occur in the "shadow of the law," that is, that the possibility of a litigated solution is often what drives disputants to resolve the dispute through mediation or negotiation, so too does litigation take place in the shadow of settlement. Despite the entanglement of various forms of dispute resolution, significant choices must …

The Activist Insecurity And The Demise Of Civil Rights, John Valery White

Scholarly Works

Civil rights law is today moribund. An impressive edifice, built upon the ruins of Jim Crow, with the blood and sweat of the civil rights movement, and intended to both dismantle that system and ensure the civil liberties that Jim Crow illustrated were all too easily lost, civil rights law was to be the lasting monument of the civil rights struggle. Fortified by this legacy, civil rights law retains a symbolic value, implying that there are formidable forces working to protect citizens from abusive state action, to ensure a broad anti-discrimination ethic, and to fix the wrongs of Jim Crow. …