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Legal Beagle Blog (May 2009), Roger Williams University School Of Law Library

Law Library Newsletters/Blog

No abstract provided.

The Hidden Foreign Law Debate In Heller: The Proportionality Approach In American Constitutional Law, Moshe Cohen-Eliya, Iddo Porat

San Diego Law Review

This Article first describes the unique attributes of the use of foreign law in the Heller dissent, and then addresses the soundness of the specific claim that the United States and Europe share the common methodology of proportionality. This Article argues that Justice Breyer was correct in his contention that a doctrinal framework very similar to proportionality is embedded in American constitutional law in the guise of balancing. However, this Article argues that Breyer missed an important divergence between the two doctrines: the significantly different ways in which balancing and proportionality are situated in America and Europe, respectively, owing to …

V.46-2, 2009 Masthead

San Diego Law Review

No abstract provided.

“Let’S Do The Time Warp Again”: Assessing The Competence Of Counsel In Mental Health Conservatorship Proceedings, Grant H. Morris

San Diego Law Review

Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients' interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the "paternalistic attitude" …

State Laws For Student Suspension Procedures: The Other Progeny Of Goss V. Lopez, Perry A. Zirkel, Mark N. Covelle

San Diego Law Review

In the Supreme Court’s seminal 1975 decision, Goss v. Lopez, the Court held: [D]ue process requires, in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against him and, if he denies them, an explanation of the evidence the authorities have and an opportunity to present his side of the story. In his dissent to the Goss decision, writing on behalf of three other members of the Court, Justice Powell countered: The Court holds for the first time that the federal courts, rather than educational officials and state …

Evidence And Ideology In Assessing The Effectiveness Of Financial Literacy Education, Lauren E. Willis

San Diego Law Review

Financial literacy education has long been promoted as key to consumer financial well-being. It is widely embraced as an effective alternative to substantive legal regulation. Yet its effectiveness has never had more than negligible empirical support. This review (1) sets forth the model of financial literacy education subscribed to by policymakers today, (2) identifies pervasive and serious limitations in existing empirical research used by policymakers as evidence of the effectiveness of this education, and (3) recommends a number of alternative public policies suggested by the existing research. Researchers should be particularly cautious in the presentation of their findings, so that …

The Violent Bear It Away: Emmett Till And The Modernization Of Law Enforcement In Mississippi, Anders Walker

San Diego Law Review

Sometime during the summer of 1955, Emmett Till left the bustling metropolis of Chicago for the quiet pastoral of the Mississippi Delta. Till’s mother had arranged for her son to spend time with his uncle, Moses Wright, who lived in a small town named Money, not far from the sleepy oak-lined streets of Greenwood. Only fourteen, Till knew little of Mississippi’s past or of its strict code of racial conduct, a code that was enforced both legally, through an elaborate system of statutory prohibitions on interracial contact, and extralegally, through vigilante action. Till’s unfamiliarity with local norms made him bold …

“Looking And Feeling Your Best”: A Comprehensive Approach To Groom And Dress Policies Under Title Vii, Elizabeth Malcom

San Diego Law Review

Employers use groom and dress policies to broadly regulate the appearance of employees, dictating all aspects from the most basic appearance requirements, such as cleanliness and proper attire, down to the minutest details, including hair style, nail length, and even lipstick color. However, when an employer differentiates between male and female employees in appearance policies, the employer runs the risk of violating Title VII, a federal statute that prohibits sex discrimination in the workplace. Title VII was enacted to eradicate the discriminatory treatment of men and women resulting from sex stereotypes, and to eliminate the traditional obstacles faced by women …

Kennedy And The Tail Of Minos, J. Richardson Broughton

Louisiana Law Review

No abstract provided.

A Coroner System In Crisis: The Scandals And Struggles Plaguing Louisiana Death Investigation, Robert D. Felder

Louisiana Law Review

No abstract provided.

The State Of Mental Health Care In Post-Katrina New Orleans, Heather D'Antonio

Louisiana Law Review

No abstract provided.

A Turn To Politics: Sanford Levinson's Our Undemocratic Constitution And Debates In Contemporary Constitutional Theory, Kenneth D. Ward

Northern Illinois University Law Review

In the last generation, politics has replaced philosophy as constitutional theory's center of gravity. While theorists once focused on judicial authority and looked to philosophy to validate the principles of justice that judges enforced, they now tend to consider how judges fit into the broader political process that defines constitutional doctrine. This essay considers how the change obscures important questions about the nature of democratic government. It does so by examining Sanford Levinson's recent book, Our Undemocratic Constitution--an attempt to bridge academic theory to the practice of politics that is emblematic of constitutional theory's emphasis of politics over philosophy.

The Proverbial Axe To The Judicial Oak: The Impact Of Stoneridge On Plaintiff's Actions Under § 10(B), Laura D. Mruk

Northern Illinois University Law Review

This article analyzes the United States Supreme Court decision of Stoneridge Investment Partners, LLC v. Scientific-Atlanta, in which the Court held that fraud claims under section 10(b) of the Securities Exchange Act of 1934 cannot be sustained against third parties that did not directly mislead investors. After providing a brief overview of section 10(b) and rule l0b-5 jurisprudence, this note will discuss the facts surrounding the Stoneridge decision and provide an in-depth discussion of the majority opinion. This article ultimately advances the argument that the Stoneridge Court erred in its analysis of the plain language of the statute, previous case …

Torture, Interrogation, And American Modernist Literature, Caleb Smith

Northern Illinois University Law Review

Originally given as part of a special session panel, "Torture and Interrogation," at the annual convention of the Modern Language Association in San Francisco, California, on December 27, 2008, this paper connects contemporary critical discussions of interrogation to the representation of lynching and police brutality in the early twentieth-century United States. It places American modernist literature, especially William Faulkner's Light in August, within a broad cultural tradition of thought about extralegal violence, and it argues that the novel's poetic strategies for depicting and analyzing such violence offer a diagnostic alternative to the sentimental discourse that dominates debates about interrogation in …

Torture And Habeas Corpus As Information-Forcing Devices, Marc D. Falkoff

Northern Illinois University Law Review

The habeas lawyer, I therefore suggest modestly, is the legal mirror-image of the state as torturer and as outlaw information-gatherer. One of my clients was kept in total darkness for weeks before being transferred to Guantanamo; he was subjected to blaring music in what is commonly known as the "Dark Prison" at Bagram, with the darkness and noise interrupted only by an occasional interrogation session which took place in a red-lit room. I also find compelling her definition of torture as the sum of pain and questioning-an equation that, interestingly, allows Scarry to argue that the torturer asks his questions …

Center For Terrorism Law: Monthly Activity Report, 2009-05, St. Mary's University School Of Law Center For Terrorism Law

Monthly Report

No abstract provided.

The Shot Heard Around The Lgbt World: Bowers V Hardwick As A Mobilizing Force For The National Gay And Lesbian Task Force, Elizabeth Sheyn

Journal of Race, Gender, and Ethnicity

No abstract provided.

Charting The Course To Same Sex Marriage, William J. Rich

Journal of Race, Gender, and Ethnicity

No abstract provided.

Felon Disenfranchisement As A Legitimate State Regulation, Boyoung Kang

Journal of Race, Gender, and Ethnicity

No abstract provided.

Program: Jacksonville Historic Preservation Commission Preservation Awards

Textual material from the Rodney Lawrence Hurst, Sr. Papers

Jacksonville Historical Preservation Commission awards held on May 1, 2009

Arrow's Theorem And The Exclusive Shareholder Franchise, Grant Hayden, Matthew Bodie

Vanderbilt Law Review

The doctrine of shareholder primacy has received substantial attention from its legions of proponents, its indefatigable opponents, and even its disinterested observers. The notion that a corporation should be run in the interests of its shareholders is the theoretical foundation upon which modern corporate law stands. Almost all empirical study in corporate law is premised on a notion of shareholder primacy, and these results would lose much of their meaning if the theory were somehow disproved. Perhaps most importantly, shareholders do in fact have primacy of place within the corporation, as they alone generally have the right to elect the …

"One Of The Dirty Secrets Of American Corrections": Retaliation, Surplus Power, And Whistleblowing Inmates, James E. Robertson

University of Michigan Journal of Law Reform

Retaliation is deeply engrained in the correctional office subculture; it may well be in the normative response when an inmate files a grievance, a statutory precondition for filing a civil rights action. This Article, the first to address comprehensively the sociological and constitutional aspects of retaliation, argues for protecting grievants through safeguards much like those accorded whistleblowers. Part I of the Article provides a socio-legal primer on correctional officer retaliation by addressing the frequency of retaliation, its causes, and its constitutional taxonomy. Part II describes the elements of a prima facie case of unconstitutional retaliation under § 1983. Part III …

Duty Of Fair Representation Jurisprudential Reform: The Need To Adjudicate Disputes In Internal Union Review Tribunals And The Forgotten Remedy Of Re-Arbitration, Mitchell H. Rubinstein

University of Michigan Journal of Law Reform

One of the best kept secrets in American labor law is that duty of fair representation jurisprudence simply does not work. It does not work for plaintiff union members because they must satisfy a close-to-impossible burden of proof and have a short statute of limitations window in which to assert their claim. It does not work for defendant unions because they are often forced to file pointless grievances in order to avoid the cost of litigation. It does not work for defendant employers because they are often brought into these lawsuits because they have the "deep pockets."

This Article makes …

"An Opportunity For Effective Cross-Examination": Limits On The Confrontation Right Of The Pro Se Defendant, Alanna Clair

University of Michigan Journal of Law Reform

The rights of a defendant to confront his accusers and conduct his defense without the assistance of counsel are sacrosanct in the American judicial system. The rights of the defendant are even sometimes exalted at the expense of the rights of the public or of victims of crime. This Note examines the problem of a pro se defendant using his confrontation right to intimidate or harass his alleged victims testifying against him. It is well-established that the confrontation right is not unconditional. The problem comes in determining whether the courts can place limits on the confrontation right of a pro …

Connecting The Dots Between The Constitution, The Marshall Trilogy, And United States V. Lara: Notes Toward A Blueprint For The Next Legislative Restoration Of Tribal Sovereignty, Ann E. Tweedy

University of Michigan Journal of Law Reform

This law review Article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court's drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments' inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The Article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law …

The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun

University of Michigan Journal of Law Reform

Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. They cause dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …

Conditions On Taking The Initiative: The First Amendment Implications Of Subject Matter Restrictions On Ballot Initiatives, Anna Skiba-Crafts

Michigan Law Review

Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote-precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment. This Note argues that-rather than limiting "expressive conduct" protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protectionsubject matter restrictions on ballot …

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English …

Reawakening "Privileges Or Immunities": An Originalist Blueprint For Invalidating State Felon Disenfranchisement Laws, John B. Schrader

Vanderbilt Law Review

Terrence Johnson, Jim Harris, and Alexander Friedman, all Tennessee residents, have a few things in common. All are convicted felons: Johnson for federal wire fraud, Harris for drug offenses and burglary, and Friedman for assault and aggravated armed robbery.' All had completed their respective terms of imprisonment, parole, and probation for those offenses by February 2008. But all nevertheless were saddled with various unpaid legal obligations: Johnson with $40,000 in restitution in connection with his offense and $1,200 in overdue child support payments; Harris with $2,500 in overdue child support payments; and Friedman with $1,000 in restitution in connection with …

Administering Marriage: Marriage-Based Entitlements, Bureaucracy, And The Legal Construction Of The Family, Kristin A. Collins

Vanderbilt Law Review

In 1985, Gertrude Thomas sought Social Security survivors' benefits as Joseph Thomas's widow. Gertrude had been married to Joseph-or thought herself to have been-for forty-seven years. She bore and raised ten children over the course of their marriage. Gertrude knew Joseph had been married briefly before they wed, but she thought that his first marriage had ended in divorce. When the Department of Health and Human Services asked Gertrude for proof of her marriage to Joseph, she could not produce a marriage certificate or any other record of her marriage. She did have a statement signed by Joseph acknowledging their …