Law Commons^™

From Federalism To Intersystemic Governance: The Changing Nature Of Modern Jurisdiction, Robert B. Ahdieh

Faculty Scholarship

At heart, this introductory essay aspires to encourage scholars who write in widely divergent areas, yet share a focus on the changing nature of jurisdiction, to engage one another more closely. From Jackson's study of "convergence, resistance, and engagement" among courts, Kingsbury's study of "global administrative law," and Bermann's analysis of "transatlantic regulatory cooperation," to Resnik's evaluation of "trans-local networks," Weiser's account of "cooperative federalism" in telecommunications law, and Thompson's concept of "collaborative corporate governance," a related set of questions is ultimately at stake: How ought we understand the reach of any given decision-maker's jurisdiction? What are the implications of …

From Federal Rules To Intersystemic Governance In Securities Regulation, Robert B. Ahdieh

Faculty Scholarship

In this brief essay, prepared as part of a symposium on The New Federalism: Plural Governance in a Decentered World, I explore the regulatory dynamics at work: (1) in the operation of Securities Exchange Act Rule 14a-8, (2) in the interventions of then-Attorney General Eliot Spitzer in the national securities markets, and (3) in recent steps by the Securities and Exchange Commission to reconcile U.S. and international accounting standards. In each case, a distinct dynamic of regulatory interaction - what I term intersystemic governance - can be observed. In such cases, overlapping jurisdiction combines with various sources of interdependence to …

Dual Subordination: Muslim Sexuality In Secular And Religious Legal Discourse In India, Aziza Ahmed

Faculty Scholarship

Muslim women and Muslim members of the Lesbian, Gay, Bisexual, and Transgender (LGBT) community face a specific form of dual subordination in relation to their gender and sexuality. A Muslim woman might seek solace from India's patriarchal religious judicial structures only to find that the secular system's patriarchal structures likewise aid in their subordination and create a space for new forms of such subordination. Similarly, a marginalized LGBT Muslim might attempt to reject an oppressive religious formulation only to come to find that the secular Indian state might criminalize a particular form of sexuality. This analysis explores how Indian laws …

Reflections Of A Community Lawyer, Luz E. Herrera

Faculty Scholarship

In May 2002, I opened a law office in one of the most underserved communities in Los Angeles County. Many questioned the sanity of such a career path when evaluating my financial stability and the personal toll that such a career path can exact. Given that I graduated from some of the best universities in the country, my friends, family, and strangers were even more perplexed at my choice. I cannot say that my decision to build a law practice in Compton, California, has been easy. However, time and time again, I found myself rejecting more secure and prestigious job …

Second Class For The Second Time: How The Commercial Speech Doctrine Stigmatizes Commercial Use Of Aggregated Public Records, Brian N. Larson, Genelle I. Belmas

Faculty Scholarship

This Article argues that access to aggregated electronic public records for commercial use should receive protection under the First Amendment in the same measure as the speech acts the access supports. In other words, we view commercial access to aggregated public records as an essential means to valuable speech. For many, however, the taint of the commercial speech doctrine is turning all “information flows” into commercial ones. This, in turn, is threatening the access to government records.

Creeping Impoverization: Material Conditions, Income Inequality, And Erisa Pedagogy Early In The 21st Century, Maria O'Brien

Faculty Scholarship

To say that poverty remains one of the most pressing issues of our time is a colossal understatement. A staggering number of people on the planet live in poverty. In the United States alone, the working poor and those living at or below the poverty line make up 12.6 percent of our populace.' While these individuals may not all be in imminent danger of starving or homelessness, they often lack basic safeguards that those in the upper socio-economic levels of society take for granted: basic health insurance, access to pension programs, disability coverage, and the certainty of a living wage …

Symposium: Current Issues In Community Economic Development: Foreword: Entrepreneurship, Race, And The Current Environment For Community Economic Development, Eric J. Gouvin

Faculty Scholarship

On March 30, 2007, the Western New England College School of Law and the School of Business jointly hosted the second annual academic conference on Current Issues in Community Economic Development, sponsored by the Western New England College Law and Business Center for Advancing Entrepreneurship. The Conference promotes the two primary goals of the Law and Business Center: (1) to provide technical legal and business assistance to entrepreneurs and (2) to sponsor educational and outreach events focused on entrepreneurship and economic development. The Law and Business Center is a unique resource in Western Massachusetts. The combination of legal and business …

Subverting The Marriage-Amendment Crusade With Law And Policy Reform, Anita Bernstein

Faculty Scholarship

No abstract provided.

Race, Redistricting, And Representation, Guy-Uriel Charles

Faculty Scholarship

This Essay, which was written for the Ohio State Law Journal's symposium on Election Law and the Roberts Court, examines the Court's decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority's worry in LULAC and that the case is the first application of Justice Kennedy's representation rights concept first introduced in Vieth.

The Lawyer Is Not The Protagonist: Community Campaigns, Law, And Social Change, The Symposium: Race, Economic Justice, And Community Lawyering In The New Century: Concluding Essay, Jennifer Gordon

Faculty Scholarship

Stories about law and social change can have a sameness to them. Yet in many ways, the tales told in this volume stand out from the crowd. Each story is shaped around a campaign undertaken by a community organization or coalition deeply engaged in the struggle for racial and economic justice. Attorneys appear as supporting players rather than main characters, seeking to help organizations build the power needed to achieve their goals. These lawyers translate information about the law into lay language, pressure opponents, defend the organization, open up spaces for community voice and action, and seek to establish new …

Changing Name Changing: Framing Rules And The Future Of Marital Names, Elizabeth F. Emens

Faculty Scholarship

What laws should govern spouses' names at marriage? If a man and a woman marry, should the woman's name change automatically? Or should the woman's name remain the same unless she goes through more or less complicated steps to change it? Contrary to convention, should the man's name change to the woman's? Should both their names be hyphenated? Many variations could be imagined.

The law of marital names has undergone a significant transformation over the past forty years. For about a hundred years of U.S. history, states required married women to take their husbands' names in order to engage in …

Links And Choices: Popular Legal Culture In The Work Of Lawrence M. Friedman, Jo Carrillo

Faculty Scholarship

No abstract provided.

Integrative Lawyering: Navigating The Political Economy Of Urban Redevelopment Symposium: Race, Economic Justice, And Community Lawyering In The New Century, Sheila R. Foster

Faculty Scholarship

This shift from defending and reacting to creating and envisioning requires a more engaged organizational role for the lawyer. The lawyer is now expected to do more than translate the organization/community's grievance into discreet legal frameworks and discourse---e.g., a civil rights violation, a nuisance, participatory right, etc. The lawyer now intervenes in negotiations from which the organization or community has been excluded. This new role requires a shifting, flexible mix of skills and a more dynamic interaction with the organization and its varied functions-policy, community education, lobbying, and organizing. This new role is what we call "integrative lawyering," an emergent …

Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams

Faculty Scholarship

No abstract provided.

Property And Empire: The Law Of Imperialism In Johnson V. M’Intosh, Jedediah Purdy

Faculty Scholarship

Chief Justice's Marshall's opinion in Johnson v. M'Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies …

Shape Stops Story, Elizabeth F. Emens

Faculty Scholarship

Storytelling and resistance are powerful tools of both lawyering and individual identity, as I argue in this brief essay published in Narrative as part of a dialogue on disability, narrative, and law with Rosemarie Garland-Thompson and Ellen Barton. Garland-Thompson's work shows us the life-affirming potential of storytelling, its role in shaping disability identity, and its role in communicating that identity to the outside world. By contrast, Barton powerfully shows how those same life-affirming narratives can force a certain kind of storytelling, can create a mandate to tell one story and not another. In short, Barton reminds us of the need …

An Answer To The Question: "What Is Poststructuralism?", Bernard E. Harcourt

Faculty Scholarship

What is poststructuralism? It has always struck me as odd that so many critical theorists are reluctant to offer an answer to this question. In this essay, I unpack the term and provide a synoptic answer. Poststructuralism, I suggest, is a style of critical reasoning that focuses on the moment of ambiguity in our systems of meaning, as a way to identify the ethical choices that we make when we overcome the ambiguity and move from indeterminacy to certainty of belief in our efforts to understand, interpret, and shape our environment. Post-structuralism concentrates on the moment when we impose meaning …

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the right to …

Moral And Religious Convictions As Categories For Special Treatment: The Exemption Strategy, Kent Greenawalt

Faculty Scholarship

My topic differs from the usual inquiries about morality and law, such as how far law should embody morality, whether legal interpretation (always or sometimes) includes moral judgment, and whether an immoral law really counts as law. Concentrating on exemptions from ordinary legal requirements, I am interested in instances when the law might make especially relevant the moral judgments of individual actors. I am particularly interested in whether the law should ever treat moral judgments based on religious conviction differently from moral judgments that lack such a basis.

A striking example for both questions is conscientious objection to military service. …

Foreign Authority, American Exceptionalism, And The Dred Scott Case, Sarah H. Cleveland

Faculty Scholarship

At least since Alexis de Tocqueville wrote in 1831, the idea that America is distinctive from other nations has permeated much political and social commentary. The United States has been variously perceived as unique in its history, its culture, its national values, its social movements, and its social and political institutions. While the term technically refers only to distinctiveness or difference, "exceptionalism" may have positive or negative aspects – what Harold Koh has called "America's Jekyll-and-Hyde exceptionalism." In the legal realm, claims of exceptionalism have been offered to support what Michael Ingnatieff identifies as "legal isolationism" – or refusal by …

The Cost Of Norms: Tax Effects Of Tacit Understandings, Alex Raskolnikov

Faculty Scholarship

Most human interactions take place in reliance on tacit understandings, customary practices, and other legally unenforceable agreements. A considerable literature studying these informal arrangements (commonly referred to as social norms) has a decidedly positive flavor, arguing that many, if not most, of these norms are welfare enhancing. This Article looks at the less-appreciated darker side of social norms. It combines an analysis of modern sophisticated tax planning techniques with existing empirical studies of commercial relationships to reveal a disturbing connection. By relying on tacit understandings rather than express contractual terms, many taxpayers shift some of their tax liabilities to those …