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2007

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Faculty Publications

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Institution
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Articles 1 - 30 of 214

Full-Text Articles in Law

Top 10 Stories You Probably Missed: Respect Brings Out The Best In Kids And Parents, Douglas E. Abrams Nov 2007

Top 10 Stories You Probably Missed: Respect Brings Out The Best In Kids And Parents, Douglas E. Abrams

Faculty Publications

No abstract provided.


Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith Nov 2007

Who Says You're Disabled? The Role Of Medical Evidence In The Ada Definition Of Disability, Deirdre M. Smith

Faculty Publications

The Americans with Disabilities Act (ADA), enacted by Congress seventeen years ago, offered disabled people a hope of equality and access that has not been fulfilled. 1 Court decisions halt an overwhelming majority of claims, particularly in the employment context, at the summary judgment stage. 2 A key mechanism for fencing out disabled people's claims is the pernicious requirement, based upon the very construction of disability that the ADA's proponents aimed to dispel, that medical evidence is required as a threshold matter to demonstrate that the plaintiff is entitled to seek protection under the statute. 3 The medical evidence requirement …


Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz Nov 2007

Raise The Proof: A Default Rule For Indigent Defense, Adam M. Gershowitz

Faculty Publications

Almost everyone agrees that indigent defense in America is underfunded, but workable solutions have been hard to come by. For the most part, courts have been unwilling to inject themselves into legislative budget decisions. And, when courts have become involved and issued favorable decisions, the benefits have been only temporary because once the pressure of litigation disappears so does a legislature's desire to appropriate more funding. This Article proposes that if an indigent defense system is under-funded, the state supreme court should impose a default rule raising the standard of proof to "beyond all doubt" to convict indigent defendants. The …


Practical Consequences, Institutional Competence, And The Kentucky Bond Case, Bradley W. Joondeph Oct 2007

Practical Consequences, Institutional Competence, And The Kentucky Bond Case, Bradley W. Joondeph

Faculty Publications

On November 5, 2007, the Supreme Court will hear arguments in Department of Revenue of Ky. v. Davis. At issue is whether state income tax preferences for their own municipal bonds impermissibly discriminate against interstate commerce. This article makes two basic arguments as to why the Court should find such preferences constitutional. First, as a doctrinal matter, Davis is essentially indistinguishable from the Court's decision last term in United Haulers Assn., Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth. There, the Court held that laws that "favor the government," that "treat every private business. . . exactly the same," and that …


Challenging Political Boundaries In Post-Conflict States, Angela M. Banks Oct 2007

Challenging Political Boundaries In Post-Conflict States, Angela M. Banks

Faculty Publications

No abstract provided.


Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele Oct 2007

Bringing Light To The Halls Of Shadow, Richard J. Peltz-Steele

Faculty Publications

Appellate judges operate in the shadows. Though they don’t see it that way. “We are judged by what we write,” said U.S. Supreme Court Justice Anthony Kennedy. True too, court proceedings and records are presumptively open to the public. The West Wing of the White House is certainly not so vulnerable to public scrutiny, and the backrooms of legislative chambers are famously smoke-filled. Yet the parts of court activity that we see and hear seem only to whet our appetite for the rest of the process. In this Preface, the author introduces the subject of the journalist and the court, …


Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben Oct 2007

Process Purity And Innovation In Dispute Resolution: A Response To Professors Stempel, Cole, And Drahozal, Richard C. Reuben

Faculty Publications

This article uses a "process characteristics and values" approach to make the case against displacing arbitration finality with substantive judicial review. It responds to a trio of articles in a forthcoming Nevada Law Review symposium on whether and how the Federal Arbitration Act should be amended. In one article, Nevada Law Professor Jeffrey Stempel contends all arbitration awards should be subject to substantive judicial review similar to that of public trial courts. In a second article, Ohio State Professor Sarah Cole argues that substantive review should generally be permitted when the parties agree to it by contract, an issue now …


Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson Oct 2007

Medium-Specific Regulation Of Attorney Advertising: A Critique, Lyrissa Lidsky, Tera Peterson

Faculty Publications

Florida has been one of the most aggressive states in regulating attorney advertising. The Florida Supreme Court recently adopted new and more stringent rules regulating broadcast advertising by attorneys, and the court appears poised to adopt new and more stringent rules governing Internet advertising by attorneys. As this Article details, the problem is that Florida's new and proposed rules violate both the First Amendment and sound public policy principles. This Article provides guidance to states contemplating further regulation of attorney advertising, and it indirectly critiques current commercial speech doctrine.


Can An Eeoc Intake Questionnaire Constitute A Charge Of Discrimination Under The Age Discrimination In Employment Act?, Paul M. Secunda, Mccann Lefeve Oct 2007

Can An Eeoc Intake Questionnaire Constitute A Charge Of Discrimination Under The Age Discrimination In Employment Act?, Paul M. Secunda, Mccann Lefeve

Faculty Publications

No abstract provided.


Envisioning The Constitution, Thomas P. Crocker Oct 2007

Envisioning The Constitution, Thomas P. Crocker

Faculty Publications

If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution …


Those Pesky Footnotes - Part Ii, Douglas E. Abrams Oct 2007

Those Pesky Footnotes - Part Ii, Douglas E. Abrams

Faculty Publications

No abstract provided.


When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck Oct 2007

When Accommodations For Religion Violate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

Faculty Publications

This article sets forth five rules with respect to what government may do to accommodate religious practice and five rules with respect to what government may not do. As it turns out the Supreme Court has said that most religious accommodations are left to the broad discretion of legislators and public officials. So long as the object of the accommodation is to protect or expand religious freedom, as distinct from expanding religion, the accommodation will be permitted.


Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz Oct 2007

Consideration Of 'Contracting Culture' In Enforcing Arbitration Provisions, Amy J. Schmitz

Faculty Publications

The Federal Arbitration Act mandates strict and uniform enforcement of standardized pre-dispute arbitration provisions. This may not be proper, however, in light of the importance of context with respect to these provisions. This Article therefore seeks to remind courts of the importance of exchange context by proposing a "contracting culture" continuum for enforcing these arbitration provisions that acknowledges the impacts of these provisions in a particular communal context. "Contracting culture" encompasses economic and non-economic relational factors that impact dispute resolution agreements, but go beyond common conceptions of "culture" focused on ethnicity, nationality, or religion. It also explores beyond the primary …


A Special Publication, Richard C. Reuben Oct 2007

A Special Publication, Richard C. Reuben

Faculty Publications

As he notes, Richard Reuben was not the first editor of this magazine. But he was surely the dominant one. He took over the position in the spring issue of 1997, and over the ensuing decade he has left an indelible mark of excellence and professionalism on the publication.


Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton Oct 2007

Religious V. Secular Ideologies And Sex Education: A Response To Professors Cahn And Carbone, Vivian E. Hamilton

Faculty Publications

No abstract provided.


Will Marriage Promotion Work?, Vivian E. Hamilton Oct 2007

Will Marriage Promotion Work?, Vivian E. Hamilton

Faculty Publications

No abstract provided.


Investigating The Justice System Response To Domestic Violence In Missouri, Mary M. Beck, Brandi L. Byrd, M. Meghan Davidson, Niels C. Beck, Gregory F. Petroski Sep 2007

Investigating The Justice System Response To Domestic Violence In Missouri, Mary M. Beck, Brandi L. Byrd, M. Meghan Davidson, Niels C. Beck, Gregory F. Petroski

Faculty Publications

One in four women will experience domestic violence in their lifetimes. Each year, 5.3 million domestic violence assaults occur in the United States alone and domestic violence is the leading cause of injury to women. Yet, despite the prevalence of domestic violence, little empirical research on the justice system's response to it exists. This paper seeks to describe a state funded project that was created to assess and compare responses to domestic violence throughout the state of Missouri. The project lasted for three years and was conducted by an interdisciplinary team of University of Missouri-Columbia (MU) professors and students.


Defining International Criminal Law, Beth Van Schaack, Ron Slye Aug 2007

Defining International Criminal Law, Beth Van Schaack, Ron Slye

Faculty Publications

This work is an introductory chapter for a forthcoming book on Understanding International Criminal Law to be published by Aspen Publishers as part of Aspen's Essentials series. This chapter presents a succinct definition of international criminal law (ICL), situating it within the fields of public international law, transnational law, international human rights, and international humanitarian law. Additional chapters in the text will address the history of ICL, the sources of ICL, the major international crimes and defenses, and ICL reasoning and rhetoric. Publication is expected in 2007 for adoption in 2008.


Ethical Issues In Open Adoption, Frederic G. Reamer, Deborah H. Siegel Jul 2007

Ethical Issues In Open Adoption, Frederic G. Reamer, Deborah H. Siegel

Faculty Publications

Total secrecy and confidentiality no longer typify adoption in the United States. Today, most adoptions involve an exchange of information or some form of contact between the birth family and adoptive family - so-called open adoptions. This article provides a comprehensive overview of ethical issues associated with various forms of open adoption, including issues of privacy, confidentiality, self-determination, paternalism, conflicts of interest, deception, and truthtelling.We present guidelines for social work practice in open adoptions, based on current ethical theory and ethical standards in social work.


Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz Jul 2007

Dangers Of Deference To Form Arbitration Provisions, Amy J. Schmitz

Faculty Publications

This Article is part of my larger project exploring what I call "contracting culture," which borrows from legal realism and relational contract theory by considering contextual factors such as negotiators' relations, understandings, and values. As part of this project, I am pursuing various threads, including empirical studies of how contracting realities impact arbitration. In this Article, however, I focus on how these realities in business to consumer contracts combine with the Federal Arbitration Act and formulaic contract law to foster dangerous deference to form arbitration provisions. The Article then invites procedural reforms and offers suggestions for regulations aimed to temper …


Naked And Covered In Monte Carlo: A Reappraisal Of Option Taxation, Eric D. Chason Jul 2007

Naked And Covered In Monte Carlo: A Reappraisal Of Option Taxation, Eric D. Chason

Faculty Publications

The market for equity options and related derivatives is staggering, covering trillions of dollars worth of assets. As a result, the taxation of these instruments is inherently important. Moreover, the importance is made even more acute by the use of options in creating more complex transactions and in avoiding taxes. Consider an equity call option, which entitles, but does not obligate, its holder to buy stock at a set price at a set time in the future. Option theory gives us a way to break the option down into more fundamental units. For example, an equity call option over 10,000 …


International Courts And Tribunals, Lee M. Caplan, Nancy Amoury Combs, Carl Magnus Nesser, Ucheora O. Onwuamaegbu, Cesare P.R. Romano Jul 2007

International Courts And Tribunals, Lee M. Caplan, Nancy Amoury Combs, Carl Magnus Nesser, Ucheora O. Onwuamaegbu, Cesare P.R. Romano

Faculty Publications

This article summarizes significant developments in 2006 concerning international courts and tribunals, particularly events relating to the International Court of Justice, the Permanent Court of Arbitration, the Iran-U.S. Claims Tribunal, the Eritrea-Ethiopia Claims Commission, and arbitral tribunals constituted under the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. This article covers the period of activity from December 1, 2005, to November 30, 2006.


Can We Make The Constitution More Democratic?, Ilya Somin, Neal Devins Jul 2007

Can We Make The Constitution More Democratic?, Ilya Somin, Neal Devins

Faculty Publications

No abstract provided.


Life, Health, And Disability Insurance: Understanding The Relationships, Robert H. Jerry Ii Jul 2007

Life, Health, And Disability Insurance: Understanding The Relationships, Robert H. Jerry Ii

Faculty Publications

This project focuses on the extent to which dis-ability insurers should be allowed to use genetic information in underwriting and rate-setting, but this subject cannot be completely isolated from the related questions of whether life and health insurers should also have this discretion. Federal and state laws place significant restrictions on insurers' use of genetic information in health insurance, but regulation of such use in life and disability insurance is considerably more modest. This essay examines the reasons for this disparity and discusses the implications for future proposals to regulate disability insurers' use of genetic information in underwriting and rate-set-ting. …


Those Pesky Footnotes - Part I, Douglas E. Abrams Jul 2007

Those Pesky Footnotes - Part I, Douglas E. Abrams

Faculty Publications

No abstract provided.


Several Initiatives On Media And Conflict Under Way, Richard C. Reuben Jul 2007

Several Initiatives On Media And Conflict Under Way, Richard C. Reuben

Faculty Publications

Both in Arizona and in other jurisdictions, both in longstanding and newly implemented programs, both currently and more than a decade ago, court-connected arbitration does not appear to reduce, but also does not substantially improve, the effectiveness and efficiency of dispute resolution. It does, however, seem to increase litigants' access to a hearing. How aspects of program structure could enhance arbitration's performance warrants further study.


Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan Jul 2007

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Faculty Publications

Federalism and the Tug of War Within explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the "interjurisdictional gray area" that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism's "strict-separationist" model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-accountability, and localism-protective values of federalism, the Article identifies a problem-solving value inherent in the capacity requirement of American federalism's subsidiarity …


The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman Jul 2007

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …


A Constitutional Conundrum Of Second Amendment Commas, William W. Van Alstyne Jul 2007

A Constitutional Conundrum Of Second Amendment Commas, William W. Van Alstyne

Faculty Publications

Prompted by the court’s decision in Parker v. District of Columbia, this series of correspondence discusses the effect possible forms of punctuation may have on the Second Amendment. The article makes comments on the important grammars during the founding and also two possible writings of the Second Amendment that contain different sets of punctuation.


'There It Is: Take It' Endangered Species And Water Management In The San Francisco Bay Delta, W. David Ball May 2007

'There It Is: Take It' Endangered Species And Water Management In The San Francisco Bay Delta, W. David Ball

Faculty Publications

This paper explores endangered species and water management in the San Francisco Bay Delta. Two endangered species, the Delta Smelt and the Winter-run Chinook Salmon, use the Bay Delta for crucial portions of their life cycle. At the same time, California's agricultural industry, as well as population centers to the South, require substantial outflows of Bay-Delta water. The paper explores the multi-jurisdictional regulation of the Bay-Delta's water, takes a hard look at the purported success of the Environmental Water Account (EWA) program, and reports on the tensions between scientists at regulatory agencies and the political appointees who oversee them. We …