Law Commons^™

The Blind Leading The Blind: What If They’Re Not All Visual Or Tactile Learners?, Robin A. Boyle, James B. Levy

Faculty Publications

(Excerpt)

As legal writing professors, we exalt analysis over intuition and are trained to follow the facts rather than engage in guess-work. We train our students to do the same. Yet when it comes to the pedagogy of legal analysis, we sometimes disregard our training by relying on observations and anecdotal evidence. Specifically, we may be assuming that the vast majority of our students are visual and/or tactile learners because they have grown up using computers, and we see students using computers all the time. Implicit in our assumption is that learning styles are determined by environmental factors alone or …

Federalism And Horizontality In International Human Rights, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

The advent of the international human rights system is one of the many changes to international law since the time Missouri v. Holland was decided. As other contributions to this symposium note, one of the challenging federalism questions raised by Holland in this new era is the effect of international human rights treaties and emerging customary international human rights law on U.S. states. And just as the creation of the international human rights regime has affected domestic analysis of federalism, the international human rights system has itself adjusted to the processes of federalism.

The human rights regime is largely …

Unauthorized Payment Transactions And Who Should Bear The Losses, Francis J. Facciolo

Faculty Publications

This article is concerned with how losses should be allocated between account holders that are implicated in payment systems and the financial institutions that participate in those payment systems by acting as intermediaries between account holders. The account holders that are discussed in this article are not limited to individual consumers. This article also examines how an unauthorized transaction can be prevented and what this suggests about who should bear the loss of such a transaction. In doing so, this article looks at two moments at which an unauthorized payment transaction might be prevented: before the first unauthorized transaction, and …

Faith In The Rule Of Law, Marc O. Degirolami

Faculty Publications

This is an essay on Brian Z. Tamanaha's Law as a Means to an End: Threat to the Rule of Law (2006).

For all but the most unflinching consequentialist, "instrumentalism" tends to draw mixed reviews. So it does from Brian Tamanaha. His book, Law as a Means to an End: Threat to the Rule of Law, documents with measured diffidence the ascendancy and current reign of "legal instrumentalism," so entrenched an understanding of law that it is "taken for granted in the United States, almost a part of the air we breathe." Professor Tamanaha shows that in our legal theorizing, …

International Commercial Arbitration And International Courts, Mark L. Movsesian

Faculty Publications

The editors of this symposium have asked us to address an interesting question. Why hasn't international commercial arbitration’s (ICA's) success been repeated in the context of international courts? In the last few decades, states have created scores of permanent tribunals with jurisdiction to resolve disputes about international law. By and large, though, states have not been as receptive to the rulings of these tribunals. What accounts for this comparative lack of hospitality? Why do states treat ICA and international adjudication so differently?

In this essay, I offer an explanation. States treat ICA and international adjudication differently because they are categorically …

The Case For "Thinking Like A Filmaker": Using Lars Von Trier's Dogville As A Model For Writing A Statement Of Facts, Elyse Pepper

Faculty Publications

Part I of this Article introduces movies as a persuasive medium. Part II examines the value of movies as teaching tools in the law school context. Part III breaks down the movie Dogville and demonstrates how it might be used to create two Statements of Facts in a fictionalized criminal case. Part IV recaps the lessons learned from using a film as a model for fact writing.

Persuasion In A Familiar Activity: The Parallels Between Resume Writing And Brief Writing, Patricia Grande Montana

Faculty Publications

(Excerpt)
/="/">To succeed in drafting a “winning” brief, you must approach it like you approach any other persuasive piece of writing in everyday life. A résumé is one such type of writing.Although many writers might not realize that composing a résumé is an exercise in persuasion, it is. The résumé’s purpose is simple: to persuade the employer to hire the applicant. Thus, a good résumé will be tailored to the needs of the employer. To achieve this goal, writers of successful résumés will carefully consider the employer throughout the planning, drafting, and revising processes. They will step into the …

A Tale Of Two Networks: Terrorism, Transnational Law, And Network Theory, Christopher J. Borgen

Faculty Publications

Talk of networks and "network theory" has become almost ubiquitous in the field of counterterrorism. Terrorist organizations are networks. Terrorists have been empowered by the Internet, ethnic diasporas, and cell phones—networks all. Many of the putative targets of terrorists—electrical grids, oil pipelines, and transportation systems, to name a few—are themselves networks. And, perhaps less often mentioned, terrorists are increasingly hampered by national and international laws that foster cooperation and coordination among states—a network of laws.

From "smart mobs" to "net wars," from narco-trafficking to the Internet, network theory has provided insights into decentralized social organizations and their coordinated action. Both …

Supreme Court Clerks' Recollections Of October Term 1951, Including The Steel Seizure Cases, John Q. Barrett, Charles C. Hileman, Abner J. Mikva, James C.N. Paul, Neal P. Rutledge, Marshall L. Small, William H. Rehnquist, Gregory L. Peterson, Ken Gormley

Faculty Publications

A roundtable panel discussion at the Chautauqua Institution. The panel brought together five lawyers who fifty-five years ago served as law clerks to Justices of the Supreme Court of the United States. The panelists discussed the Justices and some of the cases of that Supreme Court Term, including the Steel Seizure Cases,1 which came to the Supreme Court in the spring of 1952. The honored guests and panelists are five lawyers who have led high-achieving, diverse and public-spirited lives: Charles C. Hileman, Abner J. Mikva , James C.N. Paul , Neal Person Rutledge, Marshall L. Small.

The Culture Differential In Parental Autonomy, Elaine M. Chiu

Faculty Publications

When the laws of a community reflect a dominant culture and yet many of its members are from other minority cultures, there is often conflict. When this conflict occurs in the legal regulation of the parent-child relationship, the consequences are tremendous for the children, the parents, and the State. This Article focuses on the federal statute criminalizing female genital surgeries, and, in doing so, it makes two major claims. The first claim is that the decisions of minority parents are scrutinized and regulated to a greater degree than the decisions of parents from the dominant culture, even when their decisions …

Vertical Price Restraints After Leegin, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In Leegin Creative Leather Products, Inc. v. PSKS, Inc., the Supreme Court by a vote of 5-4 overruled the century old per se ban on resale price maintenance ("r/p/r") enunciated in the Dr. Miles case. The Court did not rule that r/p/m is lawful per se but rather held that vertical price restraints should be adjudged under the broader rule of reason analysis. The decision was not unexpected; and, indeed, it was welcomed in many quarters. From one perspective, Leegin is a long overdue ruling that simply brings treatment of r/p/m into line with the treatment of vertical …

Three Narratives Of Medellín V. Texas, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

Every once in a while, a Supreme Court case comes along that holds a mirror up to the changing face of the American polity. Medellín v. Texas (Medellín II) is such a case, reflecting divisive national debates over immigration, the death penalty, victims' rights, the scope of executive power, U.S. adherence to international human rights standards, the salience of international law to national security, and the appropriate role of judicial review of political decisions. Which of those issues stands out among the reflected images depends on who is peering into the mirror.

For international law scholars, the significance of …

Return To Missouri V. Holland: Federalism And International Law, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

Columbia, Missouri is a fitting venue at which to continue the conversation about Missouri v. Holland and explore the intersection of law-making at the international, national and sub-national levels. This symposium revisits the debate over national and local control over foreign affairs and brings together the constitutional doctrinal discussion and accounts of the globalization of regulation that consider the complexity of influences operating within and between multiple systems of law. Both the factual background of Holland (primarily a case about environmental regulation) and the doctrinal context in which it arose (a Supreme Court poised to move toward constitutional endorsement …

Better Revision: Encouraging Student Writers To See Through The Eyes Of The Reader, Patricia Grande Montana

Faculty Publications

(Excerpt)

Revision is an integral part of the first-year legal writing curriculum. Students rewrite most of their writing assignments for a grade, and, in many cases, the rewrites are weighted more heavily than the first drafts. The purposes of a rewrite in legal writing, as with other writing, are to resolve any inconsistencies and fill in gaps, strengthen the analysis and reasoning, and present the information in the clearest way possible. Though legal writing professors devote substantial time to the rewrite phase of assignments, in my experience, law students traditionally treat an assignment as completed as soon as they turn …

Revealing Your Sources: The Case For Non-Anonymous Gamete Donation, Michelle Dennison

Journal of Law and Health

This article argues that both legislating the end of anonymous gamete donation and allowing current children of anonymous gamete donation the ability to access identifying information about their donors is in the best interests of all parties involved in the donation process. Recipient-parents and donor-conceived children will benefit from having increased access to their donor's health information. Records access, including access to a donor's identifying information, will help donor-conceived children avoid potential incest and what is sometimes termed in adoption cases "genealogical bewilderment." Finally, banning anonymous donation will give potential gamete donors the ability to make a truly informed decision …

A Philosophy Of Privatization: Rationing Health Care Through The Medicare Modernization Act Of 2003, Eleanor Bhat Sorresso

Journal of Law and Health

The trend in coping with these rising Medicare costs has been to increase the role that private insurance plays in providing coverage for Medicare recipients. Much of this movement towards an increased "privatization" of Medicare has been born of the belief that the private sector of health care insurance coverage has been made more efficient by existing market forces and will provide a way to both continue providing health care to elderly Americans while containing Medicare costs through these increased efficiencies as exemplified through the managed care model. This premise will be further explored in this article. First, this article …

Real Art Calls For Real Legislation: An Argument Against Adoption Of The Design Piracy Prohibition Act, Anya Jenkins Ferris

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Inflating Goodyear's Bottom Line: Paying Women Less And Getting Away With It, Amalia Goldvaser

Cardozo Journal of Equal Rights & Social Justice

The note critiques the U.S. Supreme Court's decision in Ledbetter v. Goodyear Tire & Rubber Co., arguing that it unjustly limits the ability of employees, particularly women, to seek redress for pay discrimination under Title VII of the Civil Rights Act of 1964. The decision held that a claim for pay discrimination must be filed within 180 days of the initial discriminatory pay-setting decision, even if the employee did not discover the disparity until later. The note contends that this ruling ignores the reality that pay discrimination is often hidden and cumulative, making it difficult for employees to identify …

Wedlock, Blood Relationship, And Citizenship, Logan Bobo

Cardozo Journal of Equal Rights & Social Justice

The note examines the conflicting interpretations of U.S. nationality law under the Immigration and Nationality Act (INA), particularly focusing on whether citizenship transmission requires a blood relationship or can be based on the legal status of the parents' marriage. It argues that the Ninth Circuit's interpretation, which does not require a blood relationship for children born in wedlock, better aligns with the INA's goals of promoting family unity and avoiding gender-based discrimination. The note critiques the State Department's interpretation, as outlined in the Foreign Affairs Manual (FAM), for lacking statutory and judicial support, and highlights the need for congressional or …

Rejection Of The Need For Informed Consent In Prostate Tissue Sample Research, William Hanes

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Strict Liability And Negligent Rape: Or How I Learned To Start Worrying And Question The Criminal Justice System, Dini Rosenbaum

Cardozo Journal of Equal Rights & Social Justice

The note critiques strict liability and negligent rape standards, advocating for a more nuanced approach that prioritizes subjective fault and societal education to address the limitations of current rape laws. It emphasizes the need to align legal standards with the defendant's actual state of mind while addressing systemic barriers to justice, particularly in date rape cases. The analysis highlights the gap between legal reforms and their practical application, suggesting that education could be a more effective tool for prevention than relying solely on legal changes.

Introduction, Rachel Kalman

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Reporting Sexual Assault Of Women In The Military, Jodie Friedman

Cardozo Journal of Equal Rights & Social Justice

The note examines the underreporting of sexual assaults in the military and the impact of policy changes aimed at addressing this issue. It highlights the challenges faced by victims, including fears of retaliation and the lack of confidentiality, and evaluates the effectiveness of the 2005 restricted reporting policy. The analysis suggests that while progress has been made, systemic issues persist, and further reforms are needed to protect victims' rights and ensure justice.

Product Placement In The United States: A Revolution In Need Of Regulation, Sandra Lee

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Privacy From Photography: Is There A Right Not To Be Photographed Under New York State Law?, Ariella Goldstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Section 117 Adaptation Defense And Krause V. Titleserv, Inc.: An Analysis Of The Various Circuits' Approaches, Logan Marc

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Developing Better Lawyers And Lawyering Practices: Introduction To The Symposium On Innovative Models Of Lawyering, John Lande

Journal of Dispute Resolution

To examine innovations in legal practice, the University of Missouri Center for the Study of Dispute Resolution and the Journal of Dispute Resolution held a symposium on October 12, 2007, featuring leading practitioners and scholars to analyze innovative models of lawyering, including Collaborative Law and other processes. David Hoffman gave an outstanding keynote address, which was followed by two panels of experts. This issue of the Journal of Dispute Resolution presents papers from that symposium was so productive that we did not have time for presentations from some participants and do not have space for all the papers in this …

Paparazzi/Blogger Face-Off: Opportunity Knocking For A Fair Use Limit?, Eaton O'Neill

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Defining Expeditious: Uncharted Territory Of The Dmca Safe Harbor Provision, Debra Weinstein

Cardozo Arts & Entertainment Law Journal

No abstract provided.

A Defense Of Patenting Human Gene Sequences Under U.S. Law: Support For The Patenting Of Isolated And Purified Substances, Lauren M. Nowierski

Cardozo Arts & Entertainment Law Journal

No abstract provided.