Law Commons^™

Problems Facing The First Generation Of Local Immigration Laws, Huyen Pham

Faculty Scholarship

Colorado made national headlines in 2006 when it passed a series of controversial measures requiring applicants for most state benefits to prove legal immigration status before obtaining that benefit. Signed by out-going Governor Bill Owens, the law makes proof of legal immigration status a prerequisite to obtaining most forms of public assistance (for example, disability payments) and state-issued licenses for professionals and commercial enterprises (for example, licenses for insurance agents and physicians). The law also requires Colorado employers to verify their employees' legal immigration status or risk hefty fines (up to $5000 for a first offense and up to $25,000 …

Sexual Violence As The Language Of Border Control: Where French Feminist And Anti‐Immigrant Rhetoric Meet, Miriam Ticktin

Publications and Research

When I first arrived in the Paris region in 1999 to do research on the struggle by undocumented immigrants (les sans papiers) for basic human rights, discussions of violence against women were remarkably absent from the public arena. Nongovernmental organizations and researchers had begun to broach the topic, but with little public visibility. However, this changed in late 2000, with a media explosion on the issue of les tournantes, or the gang rapes committed in the banlieues of Paris. Such tournantes involve boys “taking turns” with their friends’ girlfriends, both parties usually being of Maghrebian or North …

Controversy Reemerges Over Hiring, Review Of Immigration Judges, Gabriel Pacyniak

Faculty Scholarship

Nearly two years after former Attorney General Alberto R. Gonzales proposed a slate of reforms to quell growing discontent over the quality of decisions from Immigration Judges and the Board of Immigration Appeals (BIA), a series of critical reports this summer thrust the nation's immigration courts back in the national spotlight.

A Sesquicentennial Historic Analysis Of Dynes V. Hoover And The Supreme Court’S Bow To Military Necessity: From Its Relationship To Dred Scott V. Sanford To Its Contemporary Influence, Joshua E. Kastenberg

Faculty Scholarship

This Article is a legal history of a case cited by the Court thirty-six times in determining issues ranging from military jurisdiction over war crimes to the shaping of how the military punitively governs its own members. That is, this Article analyzes the ideologies of the proponents of Dynes, and what those proponents hoped to achieve, as well as how the case has evolved to influence military law to the present day. Part I provides a synopsis of the pre-Civil War development of military law, as well as the factual background and ultimate decision in Dynes. Part II analyzes the …

Book Review: Lincoln And The Court By Brian Mcginty, Joshua E. Kastenberg

Faculty Scholarship

This book is unique in its approach and topic. Its quality ranks with other recent works on Lincoln and the Civil War such as Doris Kearns Goodwin's Team of Rivals, despite its minor shortcomings. The real winner in this book is the reader. Anyone interested in the expansion of military law, particularly in the post-9/ 11 world, will find great merit in McGinty's work.

El Dia De Los Muertos, The Death And Rebirth Of The Environment Movement, Eileen Gauna

Faculty Scholarship

In 2004, in response to an article titled Death of Environmentalism, many in the environmental community engaged in a debate about whether the environmental movement was capable of adequately inspiring the public to effectively respond to climate change. This Article examines the strand of this debate that centered upon responses from environmental justice actors to the larger environmental community. Specifically, the ensuing conversations raised questions about who, precisely, is the environmental community, what is its historical legacy, how should the environment be conceptualized to promote more effective climate policy, the role of technocratic solutions, and the need for transformative coalition …

Cultural Relics, Intellectual Property, And Intangible Heritage, Peter K. Yu

Faculty Scholarship

In recent years, the protection of traditional knowledge and cultural expressions has received widespread international attention. In 2003, delegates of 190 countries adopted the Convention on the Safeguarding of Intangible Cultural Heritage. Two years later, the Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted under the auspices of UNESCO. In 2007, the General Assembly of the United Nations adopted the Declaration on the Rights of Indigenous Peoples. In addition, there are active developments to strengthen protection of traditional knowledge and cultural expressions in the areas of international trade, intellectual property, and biological diversity. Taken …

Conflict Of Laws (2008), James P. George, Stephanie K. Marshall

Faculty Scholarship

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, parallel lawsuits, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This article reviews Texas conflicts cases from Texas state and federal courts during the Survey period from October 1, 2006, through September 30, 2007. The article excludes cases involving federal-state conflicts, intrastate issues such as subject matter jurisdiction and venue, and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases …

The Objective Theory Of Contracts, Wayne Barnes

Faculty Scholarship

The objective theory of contracts is the dominant approach for determining whether there has been mutual assent to the formation of a contract. Under objective theory, a party’s manifestation of assent will be held to mean what a reasonable person in the position of the other party would conclude that the manifestation meant. The objective theory is a sound approach for determining assent because: it reflects the pragmatic reality that the law must be largely based on externals rather than the whim of subjective perception, it protects the basis for economic exchanges in our commercial system by enforcing the expectations …

The Carrot Approach To Accounting Standard Setting, Neal Newman

Faculty Scholarship

In December 2006, Conrad Hewitt, the chief accountant at the Securities and Exchange Commission (SEC), promised that the issue of complexity in accounting would be addressed early in 2007 and would be a leading focus of work by his office in 2007. The goal in financial reporting is to disseminate transparent, understandable, financial information that fairly presents the financial condition of the reporting company. Oftentimes, however the information public companies disseminate is overly complex, quagmired in legalistic form at the expense of true economic substance, and is devoid of conveying true, meaningful and understandable information regarding the company.

In this …

Injunctions For Defamation, Juries, And And The Clarifying Lens Of 1868, Stephen A. Siegel

Buffalo Law Review

No abstract provided.

At The Altar Of Autonomy: The Dangerous Territory Of Abigail Alliance V. Von Eschenbach, Andrea Beth Ott

Buffalo Law Review

No abstract provided.

The Concept Of "Less Eligibility" And The Social Function Of Prison Violence In Class Society, Ahmed A. White

Buffalo Law Review

No abstract provided.

Judicial Nullification? Judicial Compliance And Non-Compliance With Jury Improvement Efforts, Paula L. Hannaford-Agor

Northern Illinois University Law Review

Many jury trial procedures and practices are left to "the sound discretion of the trial court." This discretion provides judges with flexibility to meet the individual needs of each trial. Using information from the State-of-the-States Survey of Jury Improvement Efforts, this article documents the extent to which trial judges exercise that discretion with respect to trial procedures and practices designed to improve jury comprehension, performance, and satisfaction. It describes legal, cultural, and case-specific factors that contribute to jurisdictional variation in the use of these procedures and practices, including judicial non-compliance with prohibited and mandatory practices. Finally, it discusses whether judicial …

Slapped In Illinois: The Scope And Applicability Of The Illinois Citizen Participation Act, Mark J. Sobczak

Northern Illinois University Law Review

This article examines the origins, structure, and consequent effectiveness of the recently enacted Illinois Citizen Participation Act. Designed to combat a particular breed of vexatious litigation known as "Strategic Lawsuits Against Public Participation," or "SLAPPs," the Citizen Participation Act conditionally immunizes potential civil defendants from liability when they are sued for acts implicating their First Amendment rights. The article briefly examines the nature of SLAPPs, why they stand contrary to public policy, and outlines some proposed solutions to eliminate or reduce their use. The article then explores the substantive and procedural mechanisms employed by Illinois to bring about the objectives …

Transnational Legal Practice 2006-2007, Laurel S. Terry, Carol Silver, Ellyn Rosen, Carol A. Needham, Robert E. Lutz, Peter D. Ehrenhaft

All Faculty Scholarship

Law practice continues to expand across borders, and lawyers and law firms from the United States and other countries are substantially invested in representations that take them outside of their home jurisdictions.[1] Unfortunately, reliable information relating to the extent of internationalization of the legal market is scarce. Neither the number of lawyers and law firms working in the international legal services market nor the receipts generated from internationally-related work are readily and reliably available. Nevertheless, statistics from both the United States and United Kingdom provide a sense of the numbers from the largest present sources of international legal practice.

In …

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Osgoode Hall Law Journal

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …

Judicial Review And American Constitutional Exceptionalism, Miguel Schor

Osgoode Hall Law Journal

This article challenges the conventional view of the pervasiveness of American-style judicial review. It questions why social movements contest constitutional meaning by fighting over judicial appointments in the United States, and why this strategy makes little sense in democracies that constitutionalized rights in the late twentieth century. The United States has been both a model and an anti-model in the global spread of judicial review, as the hope of Marbury (constitutionalized rights) has been tempered by the fear of Lochner [courts run amok). In reconciling Marbury and Lochner, other polities have adopted stronger mechanisms of judicial accountability that make it …

Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque

Osgoode Hall Law Journal

Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation marked the first in-depth inquiry by non-US scholars into transnational human rights litigation. In this article, the author canvasses a range of new developments in the field since its publication in 2001. Of special note are five transnational human rights claims, decided after September 11, that were brought in Canadian and British courts. The author mines these cases for insights into other important developments involving the American Alien Tort Statute (Part I) corporate complicity in human rights abuses (Part II) the expansion of common law jurisdiction to include …

Unilateral Home State Regulation: Imperialism Or Tool For Subaltern Resistance?, Sara L. Seck

Osgoode Hall Law Journal

Home state reluctance to regulate international corporate activities in the human rights context is sometimes characterized as an imperialistic infringement of host state sovereignty. This concern may be explicit, or it may be implicit in an expressed desire to avoid conflict with the sovereignty of foreign states. Yet, in the absence of a multilateral treaty directly addressing business and human rights, a regulatory role for home states in preventing and remedying human rights harms is increasingly being suggested. This paper seeks to explore theoretical perspectives that support unilateral home state regulation. Having established that unilateral home state regulation could serve …

Modern Constitutional Democracy And Imperialism, James Tully

Osgoode Hall Law Journal

To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which …

Jesting Pilate, Carl E. Schneider

Articles

I have two goals this month. First, to examine a case that's in the news. Second, to counsel skepticism in reading news accounts of cases. Recently, I was talking with an admirable scholar. He said that transplant surgeons sometimes kill potential donors to obtain their organs efficiently. He added, "This isn't just an urban legend - there's a real case in California." A little research turned up California v. Roozrokh. A little Googling found stories from several reputable news sources. Their headlines indeed intimated that a transplant surgeon had tried to kill a patient to get transplantable organs. CNN.com: …

In The Vanguard Of The American Jury: A Case Study Of Jury Innovations In The Northern District Of Iowa, Kirk W. Schuler

Northern Illinois University Law Review

Since taking the oath of office nearly fifteen years ago, United States District Court Judge Mark Bennett has made it a priority to champion the American jury. While jurors are typically less than thrilled to be summoned for service, Judge Bennett makes sure their "day in court" is memorable and rewarding. This article discusses how Judge Bennett does it: from creating the "evidence corridor" to debriefing the jury post-verdict. Some techniques are simple, some complex, but most all are innovations. Moreover, with at least 300 jury trials under his belt, Judge Bennett's techniques are battle tested and proven, and ripe …

Jury Nullification: An Empirical Perspective, Irwin A. Horowitz

Northern Illinois University Law Review

Prominent jurists have suggested that it may be permissible to inform juries of their power to decide verdicts according to their conscience, regardless of the law. Juries may be informed of their power, known as jury nullification, to nullify the law either by carefully crafted instructions from the judge or by permitting the defense counsel to make a nullification argument during closing statements. This article examines these proposals in light of the latest empirical research on these issues. This article also presents a short history of jury nullification and its current status in the U.S. legal system. Current research suggests …

People V. Coughlin And Criticisms Of The Criminal Jury In Late Nineteenth-Century Chicago, Eizabeth Dale

Northern Illinois University Law Review

The last decades of the nineteenth century and the first decades of the twentieth century are often described as the era in which the criminal jury trial came to an end. Criminal juries did not completely disappear, of course, but their role became smaller in those decades. Studies of the phenomenon typically attribute that decline to the rise of plea bargains in that same period. These studies note that institutional factors, such as caseloads and the political pressure on elected prosecutors to be "tough on crime," made plea bargains an increasingly attractive option for the State, and conclude from this …

Leegin Creative Leather Products, Inc. V. Psks, Inc.: The Final Blow To The Use Of Per Se Rules In Judging Vertical Restraints - Why The Court Got It Wrong, Christopher S. Kelly

Northern Illinois University Law Review

This case note provides an in depth discussion of Leegin Creative Leather Products, Inc. v. PSKS, Inc., in which the United States Supreme Court held that minimum resale price maintenance should be analyzed under the rule of reason, and thus striking down the century-old per se rule against vertical price fixing. After providing a brief overview of antitrust law, with a particular emphasis on Supreme Court vertical restraint jurisprudence, an in depth discussion of both the majority and dissenting Leegin opinions is provided. Next, the note argues that the Court erred in striking down the per se rule by finding …

The Federalization Of Punitive Damages And The Effect On Illinois Law, Frank A. Perrecone, Lisa R. Fabiano

Northern Illinois University Law Review

Punitive damages have traditionally been a matter of state law, left to state courts and legislatures to review and regulate. But in the midst of the tort reform movement of the 1990s, the United States Supreme Court took sides in the policy debate, fashioning a novel substantive due process right limiting punitive damage awards and suppressing the power of juries to punish and deter egregious conduct. This article traces the evolution of the federalization of punitive damages based on questionable authority, criticizes the Supreme Court's intrusion into an area of state law, demonstrates how Supreme Court precedent has been misapplied …

Vol. 28, No. 3, Summer 2008: Table Of Contents, Northern Illinois University Law Review

Northern Illinois University Law Review

No abstract provided.

The Federal Government's Implied Guarantee Of Fannie Mae And Freddie Mac's Obligations: Uncle Sam Will Pick Up The Tab, David Reiss

Faculty Scholarship

No abstract provided.

Sanctioning The Ambulance Chaser, Anita Bernstein

Faculty Scholarship

No abstract provided.