Law Commons^™

How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt

Nathan A Greenblatt

Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently …

White Women In Peril On Broadcast And Cable Television News, Prof. Leonard M. Baynes

Prof. Leonard M. Baynes

Abstract White Women in Peril on Broadcast and Cable Television News By Leonard M. Baynes It has been approximately forty years since the U.S. Supreme Court found the Fairness Doctrine constitutional and approximately twenty years since the Federal Communications Commission (the “FCC”) eliminated it. The Fairness Doctrine provided that the broadcasters were required to air important issues and to make sure that the other side of the issue was also covered. In 1969 in Red Lion, the U.S. States Supreme Court found the Fairness Doctrine constitutional under the First Amendment. In the late 1980s, the FCC decided that because of …

Getting Property Right: Informal Mortgages In The Japanese Courts, Frank George Bennett

Frank George Bennett Jr.

In Japan's civil law property system, courts recognize a form of extra-statutory security, the jōto tanpo or “title-transfer security interest”, that is created by conveying legal title to the creditor, with a promise to restore title to the debtor upon repayment. This commercial practice pre-dates the deployment of the nation's modern system of alienable title, and as such its modern treatment in the courts provides an informative window on forces that shape a property system undergoing rapid change in the face of economic expansion. When the Civil Code was enacted at the end of the 19th century, recognition of “title-transfer …

The St. Thomas Effect: Law School Mission And The Formation Of Professional Identity, Jennifer Wright

Jennifer Wright

The legal profession has long been criticized for declining standards of professionalism. Recent studies have pointed to the crucial role of legal education in forming the professional identity of lawyers. Law schools must take seriously their duty to intentionally and thoughtfully shape their students’ sense of what it means to be a lawyer and of how their professional identities will align and coexist with their other personal and ethical commitments. In this article, I examine a case study of one law school, the University of St. Thomas School of Law, whose self-proclaimed raison d’etre is to produce a “different kind …

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

Modern Disparities In Legal Education: Emancipation From Racial Neutrality, David Mears

David Mears

Abstract

Wealth, leadership and political power within any democratic society requires the highest caliber of a quality legal education. The Black experience is not necessarily a unique one within legal education but rather an excellent example of either poor to substandard quality disseminated unequally among racial and socioeconomic stereotypes based upon expected outcomes of probable success or failure. It is often said, “Speak and so it will happen” – many within the halls of academia work hard to openly predict failure yet seemingly do very little to foster success internally within the academic procedures and processes based on the customer …

People As Crops, Evelyn L. Wilson

Evelyn L. Wilson

In 1807, Congress passed a law prohibiting the importation of slaves. The South began to feel the effect of labor shortages and prices escalated. To meet this demand, farmers in the upper south states, especially Virginia, began the systematic breeding of slaves for sale to the southwest. Through the use of statements from Virginia statesmen and from some of Virginia’s former slaves, my paper discusses slave breeding, first as a consequence of slavery, as an added benefit to the labor obtained from the slave.

My father was born in Virginia, as was his father, as was his father, as was …

If They Could Only Eat Efficiency: How Airline Deregulation And The Bankruptcy Code Joined Forces To Undermine Airline Workers And What Can Be Done About It, Ashton S. Phillips

Ashton S. Phillips `

As a species of mass transportation, the airline industry is incapable of making a sustained profit in an unregulated economy. Without regulation, easy access to reorganization and government subsidies only facilitate bloated supply in the air travel market. Bloated supply leads to decreased market price of airfare. This decrease helps consumers, but it doesn't help airlines achieve profitability. Under the current legal scheme, if airlines can't achieve profitability, airline workers will continue to subsidize the industry with radically decreased pay and lost retirement benefits. If Congress increases airline workers' rights in bankruptcy and merger contexts, their positions will be temporarily …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Hanging In A Balance: Freedom Of Expression And Religion, Puja Kapai, Anne Sy Cheung

Puja Kapai

When the liberty to freely express oneself is at odds with another’s right to freedom of religion, we are confronted with the classic dilemma of choosing between two equally fundamental, constitutionally and internationally protected rights. The contours of the said two rights however, are far from clear. Whilst freedom of expression is not an absolute right, its limits are controversial. Equally, while it is undisputed that freedom of religion is an internationally protected human right enshrined in various international instruments, there is no comprehensive international treaty which addresses as its subject the content and extent of the right of freedom …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Can State Health Reform Initiatives Achieve Universal Coverage? California's Recent Failed Experiment, Susan A. Channick

Susan Channick

No abstract provided.

Happy To Be Equal, Shay Gurion

Shay Gurion

The public discourses regarding happiness are burgeoning in current times, especially in the fields of positive psychology and philosophy. However, policy oriented disciplines, such as economics and law, seem to almost suspiciously, avoid this discussion, leaving one of life's most important aspects, academically and politically, unexplored. This paper tries to fill this void by offering an explanation to why humans beings are equally happy and how does this provide us with a rational basis for human equality and a corresponding perception of human rights. The explanation offered in this paper of why people are equally happy lies greatly on the …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Nasty As They Wanna Be, Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

A Troubled House Of Cards: Examining How The “Housing And Economic Recovery Act Of 2008” Fails To Resolve The Foreclosure Crisis, Chad Emerson

Chad Emerson

No abstract provided.

A Critique Of The Aals Hiring Process, Allen R. Kamp

Allen R. Kamp

The article citiques the process of hiring professors in legal academia.

The New York City Campaign Finance System: A Model System That Violates State And Federal Law, Daniel A. Katz

Daniel A. Katz

The New York City campaign finance system was amended in 2007 from a voluntary program into a mandatory regulatory scheme that is applicable to all candidates. Because the requirements of the law can no longer be avoided, the law is in conflict with provisions of state law that govern local elections. A United States Supreme Court decision, Davis v. FEC, handed down in June of 2008 has further undermined the validity of the New York City campaign finance system. The decision held that asymmetrical contribution limits applicable to candidates based on the candidate’s use of their own wealth violate the …

Do You Want To Be An Attorney Or A Mother? Arguing For A Feminist Solution To The Problem Of Double Binds In Employment And Family Responsibilities Discrimination, Heather Bennett Stanford

Heather P Bennett

This article is a research paper analyzing and proffering solutions to family responsibilities discrimination in the workplace. The article centers around a case filed in the United States District Court for the Western District of Pennsylvania. This case was filed by a female partner at the law firm Dickie, McCamey & Chilcote claiming discrimination based on family responsibilities. I chose this topic because I feel that it is an increasingly important and emerging area of employment discrimination law. This article introduces the background of the case and analyzes possible outcomes in light of caselaw involving employment discrimination in various contexts. …

The Meaning Of Race In The Dna Era: Science, History And The Law, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has changed dramatically over time. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to be …

Fairness And The Distribution Of Primary Goods, Nathan W. Dean

Nathan W. Dean

I consider whether any one of the schemes of distributive justice envisioned by John Rawls, Robert Nozick, or G.A. Cohen is truly fair. By means of a close and critical reading of their work on distributive justice, I conclude that their schemes of distributive justice in some instances fail to correct for elements of unfairness and at other times introduce unfairness in the furtherance of other largely unacknowledged ends. More specifically, I (1) describe the ways in which Rawls, Nozick, and Cohen fail to show us what a fair scheme of distributive justice would look like, (2) sketch what I …

Dreams And Images: The Roles Of Particularism And Principlism In The Law, R George Wright, Faith A. Knotts

R. George Wright Professor

The term ‘particularism’ is rarely used in connection with the law, but the idea of ‘particularism’ itself is of great importance throughout the law. Particularism de-emphasizes the roles of principles, rules, standards, policies, formulas, and tests in the law. Instead, particularism emphasizes vivid and concrete analogies, hypotheticals, stories, images, instructive fables, parables, particular incidents, myths and legends, evocative dreams, and similar sorts of narratives.

This Article establishes the contrast between particularism and its opposite, principlism. The Article notes the contrast between these two approaches to the law, particularly in the vital area of the historical legal battle over slavery, segregation, …

Forensic Genetics And The Ascendancy Of Modern “Race Science:” Establishing The Inadmissibility Of Dna Estimates Of Race, Christian B. Sundquist

Christian B. Sundquist

The meaning of “race” has been vigorously contested throughout history. Early theories of race assigned social, intellectual, moral and physical values to perceived physical differences among groups of people. The perception that race should be defined in terms of genetic and biologic difference fueled the “race science” of the Eighteenth and Nineteenth centuries, during which time geneticists, physiognomists, eugenicists, anthropologists and others purported to find scientific justification for denying equal treatment to non-white persons. Nazi Germany applied these understandings of race in a manner which shocked the world, and following World War II the concept of race increasingly came to …

United States V. Hatahley: A Legal Archaeology Case Study In Law And Racial Conflict, Debora L. Threedy

Debora L. Threedy

This paper is a case study of United States v. Hatahley, a leading case in the Remedies canon, using the methodology of “legal archaeology” to reconstruct the historical, social and economic context of the litigation. In 1953, a group of individual Navajos brought suit under the Federal Tort Claims Act for the destruction of over a hundred horses and burros. The first section of the paper presents two contrasting narratives for the case. The first relates what we know about the case from the reported opinions, while the second locates the litigated case within the larger social context by examining …

The Harry Potter Lexicon And The World Of Fandom: Fan Fiction, Outsider Works, And Copyright, Aaron Schwabach

Aaron Schwabach

Fan fiction, long a nearly invisible form of outsider art, has grown exponentially in volume and legal importance in the past decade. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of issues of property, sexuality, and gender. This article examines three disputes over fan writings, concluding with the recent dispute between J.K. Rowling and Steven Vander Ark over the Harry Potter Lexicon, which Rowling once praised and more recently succeeded in suppressing. The article builds on and adds to the emerging body of scholarship on fan fiction, concluding that much fan fiction is fair …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Pro Bono Publico As A Conscience Good, Deborah A. Schmedemann

Deborah Schmedemann

Pro bono work performed by American lawyers serves a critical role in the American civil justice system. This paper seeks to explain pro bono through the lens of social science research into volunteering, in particular the economic concept of a conscience good. The paper presents the results of an empirical study involving over 1,100 law students and lawyers. The results include data on lawyers’ motivations to perform pro bono, the impact of various pro bono rules and invitations to perform pro bono, the satisfactions of pro bono work, emotions triggered by pro bono work and pro bono clients, and the …

Passions We Like...And Those We Don't: Anti-Gay Hate Crime Laws And The Discursive Construction Of Sex, Gender, And The Body, Yvonne Zylan

Yvonne Zylan

This article examines an oft noted, but largely unexplored, aspect of law’s functioning: its ability to constitute social reality. Specifically, I investigate the ways in which law helps define and delimit sexuality as a set of practices, experiences, and identifications. I do so by analyzing the discursive dimensions of anti-gay hate crime laws, demonstrating that such laws produce discrete discursive objects (doctrine and argument) within a specific set of institutional practices (the juridical field), and that these objects and practices in turn legitimate certain limiting narratives, instantiating them as social knowledge and as the ground of sexed and gendered performances. …

Resisting Guantanamo: Rights At The Brink Of Dehumanization, Muneer I. Ahmad

Muneer I Ahmad

The Supreme Court’s June 2008 decision in Boumediene v. Bush, granting constitutional habeas corpus rights to terrorist suspects at Guantánamo Bay, appeared to usher in a rights moment in which legal advocacy achieved transformative results. But the history of rights-based litigation at Guantánamo suggests that such victories often are fleeting, with court pronouncements failing to produce the meaningful change—freedom of prisoners, closure of Guantánamo—expected of such landmark decisions. This reflects not simply a failure of the courts, but a limitation of rights in the face of extreme state violence. This Article argues that the work of rights—and of lawyers—at Guantánamo …

Left Hand, Third Finger: The Wearing Of Wedding (Or Other) Rings As A Form Of Assertive Conduct Under The Hearsay Rule, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the social phenomena of making use of what I call “ring evidence” to determine an individual’s marital status or sexual orientation. More specifically, I note the common practice of identifying people as married based on the presence of a ring on the ring finger of the left hand, as gay and in a committed relationship based on the presence of a ring on the ring finger of the right hand, and as single based on the absence of a ring.

Next, I identify two problems with making use of ring evidence to draw conclusions about …