Law Commons^™

How Not To Incorporate Voluntary Standards Into Smart Regulation: Iso 14001 And Ontario's Environmental Penalties Regulations, Stepan Wood, Lynn Johannson

All Faculty Publications

In June, 2007 the province of Ontario, Canada, released environmental penalties (EPs) regulations. EPs (or administrative penalties, as they are called in the US) are the environmental equivalent of speeding tickets for facilities that violate pollution laws. They are found in numerous jurisdictions and are widely understood as part of a move toward smart regulation. The Ontario regulations offer reduced EPs to facilities with an environmental management system (EMS) that meets the requirements of ISO 14001 or the chemical industry's Responsible Care initiative. We argue that non-governmental, consensus-based standards such as ISO 14001 can and should play a constructive role …

Beyond Cardboard Clients In Legal Ethics, Katherine R. Kruse

Scholarly Works

This Article argues that the construction of cardboard clients in legal ethics has disserved legal ethics by obscuring what is arguably a more central problem of legal professionalism: the problem of legal objectification. The problem of legal objectification is the tendency of lawyers to "issue-spot" their clients as they would the facts on a blue-book exam, overemphasizing the clients' legal interests and minimizing or ignoring the other cares, commitments, relationships, reputations and values that constitute the objectives clients bring to legal representation. This Article proposes an alternative ideal of legal professionalism for "three-dimensional clients" based on helping clients articulate and …

In Re Gault And The Promise Of Systemic Reform, Katherine R. Kruse

Scholarly Works

The right to counsel for juveniles in delinquency cases that the Supreme Court declared in In re Gault can be seen as an effort at systemic reform - a purposeful alteration of the structure, procedure, or resources of a law-administering system that aims to better align the system's operation with the principles or ideals on which it is based. Although the Court articulated the benefits of counsel in terms of individual representation, juvenile defenders are increasingly called upon to expand their role to include broader forms of advocacy aimed at reforming juvenile justice system practice and procedure. The predominant stakeholder …

The Human Dignity Of Clients, Katherine R. Kruse

Scholarly Works

This essay reviews David Luban's forthcoming book, Legal Ethics and Human Dignity. At the heart of this new book is an argument that interactions between lawyers and clients ought to be at the center of jurisprudential inquiry. Pointing out that most cases do not go to trial and that much transactional work occurs outside the litigation context, he argues that law's defining moments occur when a "client sketches out a problem and a lawyer tenders advice," rather than when a judge decides a litigant's case. This review essay examines how Luban might elaborate a new "jurisprudence of lawyering" by examining …

Neuroimaging Research Into Disorders Of Consciousness: Moral Imperative Or Ethical And Legal Failure?, Stacey A. Tovino

Scholarly Works

This article explores the ethical and legal implications of enrolling individuals with disorders of consciousness (DOC) in neuroimaging research studies. Many scientists have strongly emphasized the need for additional neuroimaging research into DOC, characterizing the conduct of such studies as morally imperative. On the other hand, institutional review boards charged with approving research protocols, scientific journals deciding whether to publish study results, and federal agencies that disburse grant money have limited the conduct, publication, and funding of consciousness investigations based on ethical and legal concerns. Following a detailed examination of the risks and benefits of neuroimaging research involving individuals with …

Only Skin Deep: The Cost Of Partisan Politics On Minority Diversity Of The Federal Bench: Why Care Whether Judges Look “Like America” If, Because Of Politics, A “Voice Of Color” Has Become A “Whisper Of Color”?, Sylvia R. Lazos

Scholarly Works

This article explores the difficulties encountered in diversifying the federal bench and why the partisanship of the confirmation process decreases the diversity of viewpoints on the bench. Presidents value diversity in nominating judges. While Bill Clinton and George W. Bush had very contrasting political styles and judicial philosophies, the judges appointed by these two presidents now account for almost 80% of the current active federal minority judges. There has been progress in the area of descriptive diversity; currently 18% of the active federal bench is made up of minority judges according to data compiled from the Judicial Center. However, there …

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

Scholarly Works

Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.

The Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii

Scholarly Works

This Article offers a critique of Nevada's Harnisch cases and calls for the Nevada Supreme Court to reconsider its ruling. The authors begin by examining the historical development of the automobile exception, beginning with Carroll v. United States. There the Supreme Court reasoned that both probable cause and the exigency of the mobility of automobiles justified a search without a warrant. But almost seventy-five years later, in Maryland v. Dyson, the Court clarified its conclusion that the automobile exception has no separate exigency requirement. In turn, the authors will then examine Nevada's application of the automobile exception prior to 1998's …

The "Foundations" Of Anti-Foundationalism — Or, Taking The Ninth Amendment Lightly: A Comment On Farber's Book On The Ninth Amendment, Thomas B. Mcaffee

Scholarly Works

The Ninth Amendment has served two purposes in constitutional discourse - to refute textualists and originalists, and to supply the historical grounds for reading the Constitution as a rights-foundationalist document. Professor McAffee's review of Professor Farber's book on the amendment raises the question whether, given Farber's prior rejection of foundationalism, it is possible for him to reconcile these two ends. It also suggests that, even if the amendment did grow from the environment that gave us the Declaration of Independence, the history gives reason to doubt that its purpose was to provide for the legal enforcement of unstated moral claims, …

Claims To Information Qua Information And A Structural Theory Of Section 101, Kevin Emerson Collins

Articles by Maurer Faculty

In this article, I start from the premises that claims to inventive information qua information are not and should not be patentable, and I pursue two lines of inquiry. First, I argue that a structural theory of Section l0l of the Patent Act provides a policy-driven, conceptually coherent and statutorily justified interpretation that explains why claims to inventive information qua information should be excluded from the realm of patentable subject matter. In brief, patentable subject matter must be restricted in this manner to preserve the duality of claiming and disclosing upon which the entire patent regime is constructed.

Second, I …

The Reach Of Literal Claim Scope Into After-Arising Technology: On Thing Construction And The Meaning Of Meaning, Kevin Emerson Collins

Articles by Maurer Faculty

Broadly speaking, courts and commentators have offered two theories to explain the relationship between the literal scope of a patent claim and after-arising technology (AAT), i.e. technology that is not discovered until after a claim has been filed. The fixation theory asserts that claim scope is and/or should be fixed on the date a claim is filed and that this fixation makes it impossible for the claim to encompass AA T because a claim must grow in some sense after the filing date in order to encompass AA T. In stark contrast, the growth theory argues that literal claim scope …

The Emerging Importance Of "Social Visibility" In Defining A Particular Social Group And Its Potential Impact On Asylum Claims Related To Sexual Orientation And Gender, Fatma E. Marouf

Scholarly Works

An emerging issue in U.S. asylum claims based on "membership in a particular social group" is the relevance of social visibility in determining whether such a group exists. Of the five protected grounds for asylum, "membership in a particular social group" has always generated the most debate. In 2002, the United Nations High Commissioner for Refugees (UNHCR) issued guidelines that present the "protected characteristic" and "social perception" approaches as alternative ways of establishing a particular social group, instructing States Parties to the 1951 Refugee Convention (the "Convention") to determine first if there is a protected characteristic and, only if no …

Séances, Ciénegas, And Slop: Can Collaboration Revive The Colorado Delta?, Bret C. Birdsong

Scholarly Works

Issues of transboundary allocation of water resources and its environmental effects are, virtually by their very nature, ones that require collaborative solutions. In the absence of international law norms and institutions to resolve sovereign claims to the waters of international rivers, much of the decisionmaking is left to the collaborative, or negotiated, arrangements between the countries involved and their respective domestic stakeholders. This Article examines collaborative efforts to allocate waters in the Colorado River basin as they relate to the lowest reaches of that great river, the ecologically important but very fragile Colorado River Delta in Mexico. Collaboration is sometimes …

Applying The Lessons Of Gps Monitoring Batterers To Sex Offenders, Pamela Foohey

Articles by Maurer Faculty

GPS monitoring of batterers appears to be an ingenious solution to one of the major flaws of the current domestic violence protective order system. What makes GPS monitoring so attractive in the case of batterers and other criminals should make it equally attractive in the case of sex offenders. Although GPS monitoring has been questioned as potentially unconstitutional as applied to sex offenders, when individually tailored, it may prove to be an effective solution to the problem of monitoring sex offenders. In the future, states and municipalities would do their citizens a service by reflecting on the lessons of GPS …

Potential National Voluntary Gamete Donor Registry Discussed At Recent Health Law Symposium, Pamela Foohey

Articles by Maurer Faculty

No abstract provided.

Adam, Martin And John: Iconography, Infrastructure, And America's Pathological Inconsistency About Medical Insurance, Jeffrey W. Stempel

Scholarly Works

Following the ongoing health care and insurance debate, which has once again moved toward center stage in American politics, one might understandably get the impression that the most important names in the area are politicians such as Hillary Clinton, Barack Obama, John Edwards, John McCain, or Mitt Romney. Similarly, public intellectuals and pundits such as David Broder, David Brooks, Paul Krugman (or at least the New York Times and Wall Street Journal editorial pages) come to mind. Alternatively, health care scholars such as the instant Symposium participants or other health policy scholars such as Uwe Reinhardt, Troyen Brennan or Theodore …

No Law Respecting The Practice Of Religion, Leslie C. Griffin

Scholarly Works

No abstract provided.

Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh

Journal of Dispute Resolution

This essay will focus on three factors that may help to explain why it seems to be so difficult for many lawyers to escape the confines of a narrow, legalistic framing of issues-or more poetically, why they may be predisposed against looking down "the road less traveled by." These factors should be taken into account as challenges to the widespread adoption of innovative, more humanistic approaches to lawyering. First, the essay will turn to research regarding the psyches and psychological needs of the people who choose to attend law school and become lawyers. Second, the essay will consider what is …

Table Of Contents - Issue 2

Journal of Dispute Resolution

No abstract provided.

Evolution Of The New Lawyer: How Lawyers Are Reshaping The Practice Of Law, The, Julie Macfarlane

Journal of Dispute Resolution

In this paper, I shall first briefly examine some of the most significant changes affecting legal practice, especially civil litigation, and ask what adjustments in the professional identity and role of the lawyer these imply or perhaps even require from lawyers. I shall also consider what evidence we have for the evolution of the "new lawyer." I shall then approach these questions from a practice-based perspective, looking specifically at client advocacy, legal negotiation, and the lawyer-client relationship.

Why Should Businesses Hire Settlement Counsel, Kathy A. Bryan

Journal of Dispute Resolution

As a former in-house litigation manager, I hired separate settlement counsel in only a few cases and with varying results. With responsibilities for hiring and managing a large portfolio of outside firms, I was loath to increase case-staffing ranks for many reasons-and cost was only one factor. Internal resources must oversee litigation, and having another set of outside lawyer relationships on the same case generally seemed duplicative. Worse, it demanded more of my scarce time to manage both the relationship and the primary litigation firm

Collaborative Family Law, The New Lawyer, And Deep Resolution Of Divorce-Related Conflicts, Pauline H. Tesler

Journal of Dispute Resolution

Unlike many of the contributions to this Symposium issue, mine is a speculative, idiosyncratic opinion piece. I want to explore what we know, what we think we know, what we do not know, and what we need to know about Collaborative Law and interdisciplinary team Collaborative Divorce Practice as they presently exist in the field of family law, in two respects: what these processes offer to clients (the "deep resolution" part of my title) and what effect the practice of these processes has on lawyers (the "new lawyer" part of my title). Instead of citing to authority, this essay draws …

Collaborative Law Practice: An Unbundled Approach To Informed Client Decision Making, Forrest S. Mosten

Journal of Dispute Resolution

This article is intended to explore the commonality of the development of informed decision making/consent for unbundled legal services and Collaborative Law utilizing the unbundled approach of bifurcating the attorney role between advisor and provider to give clients a full and balanced education of the process of Collaborative Law, the various models of Collaborative Practice available, and to help the client make an informed decision prior to commencing a Collaborative Law engagement.

Practical Insights From An Empirical Study Of Cooperative Lawyers In Wisconsin, John Lande

Journal of Dispute Resolution

This article proceeds as follows. After Part II describes the research methodology, Part III depicts DCI members' general orientation toward cooperation and their reactions to litigation-oriented and Collaborative Practice. This Part highlights the distinctions between the three types of practice. Not surprisingly, DCI members' interest in Cooperative Practice reflects some dissatisfaction with both litigation-oriented and Collaborative Practice. Part IV describes DCI members' accounts about Cooperative Practice, including their goals, how they define Cooperative cases, their views about appropriateness of Cooperative Practice, how cases are initiated, the number and characteristics of these cases, and the procedures used in Cooperative Practice. It …

Ethics Of Collaborative Law, The, Scott R. Peppet

Journal of Dispute Resolution

This article argues that Collaborative Law can be permissible under the current rules of legal ethics. At the same time, it contends that this is not a foregone conclusion, and that certain Collaborative Law contracts or arrangements are more suspect than others. In short, it argues that collaborative lawyers need to be extremely careful in how they go about their practice if they wish to withstand ethical scrutiny.

Rejecting The Intertwining Doctrine: Favoring Adr While Hindering Judicial Efficiency And Economy, Michael Bekesha

Journal of Dispute Resolution

Often the scope of arbitration clauses does not include all potential claims. When the provision fails to provide for all disputes, courts may proceed in one of two ways to resolve both arbitrable and nonarbitrable claims: enforce the arbitration clause with respect to arbitrable claims, or ignore the private contract and litigate all issues at once. The Colorado Supreme Court, in Ingold v. AIMCO, chose the former - rejecting the intertwining doctrine. In doing so, Colorado aligned itself with the position that the United States Supreme Court embraced over twenty years ago. This casenote will discuss whether the Colorado Supreme …

Suing For Small Potatoes: Consumer Class Action Waivers In Arbitration Agreements Distinguished By The Ninth Circuit, Jaimee Conley

Journal of Dispute Resolution

In Shroyer, the Ninth Circuit laid a foundation for looking at consumer class action arbitration waivers with greater scrutiny, using a much narrower test. In doing so, it communicates a clear message to large corporations that arbitration agreements that include class action waivers for the purpose of cheating consumers out of small amounts of money will not be tolerated. This case note will address the significance of the Ninth Circuit's decision and the policy arguments supporting such an approach.

Beyond The Box Score: A Look At Collective Bargaining Agreements In Professional Sports And Their Effect On Competition, Ryan T. Dryer

Journal of Dispute Resolution

Most sports fans have at least the limited understanding that collective bargaining agreements govern the employer-employee relationships between the owners of professional sports teams and players' associations. Indeed, sports have become a big business in the United States, and the media coverage of sports has extended beyond reporting statistics and scores to include all dealings associated with the business.' Every year (at various times depending on the sport), fans are bombarded with numbers detailing signing bonuses, salary cap implications, arbitration results, incentive-laden contracts, and a multitude of other terms that boggle the mind of the layperson. As most sports fans …

Expanding The Power Of U.S. Courts In Private International Arbitration - Moderation Loses To An Extreme, Amy Moore

Journal of Dispute Resolution

Since its inception, 28 U.S.C. § 17822 has been the subject of revisions, amendments, and much debate. This history is symptomatic of the evolving nature of United States presence in the international legal and business world; however, the statutory changes have not always been clear in purpose or application. In 2004, the Supreme Court granted certiorari for Intel Corp. v. Advanced Micro Devices, Inc., in order to solidify interpretation of § 1782's latest rendition, a 1964 congressional revision. Unfortunately, in expanding the accepted scope of § 1782, the Court created new ambiguity, especially in how the statute should relate to …

Interest Arbitration Clauses In Sec. 8(F) Pre-Hire Agreements: Effective For Achieving Genuine Collective Bargaining Or Enabling Parties To Underhandedly Gain Majority Bargaining Power, Thomas Riske

Journal of Dispute Resolution

In Sheet Metal Workers' International Ass'n, Local Union No. 2 v. McElroy's Inc., the United States Court of Appeals for the Tenth Circuit considered whether an employer was required to submit to interest arbitration with a union under the pre-hire agreement entered into by the parties. The applicability of the statutory standards for pre-hire agreements to bargained-for labor and employment contracts is an essential element of this case. When interpreting federal statutory law, the majority of jurisdictions permit unilateral repudiation upon the expiration of a pre-hire agreement and a small minority of jurisdictions allow for the agreement to be repudiated …