Law Commons^™

State V. Baby: One Step Forward For Maryland— Protecting A Woman’S Right To Withdraw Consent, But Sending A Conflicting Message To Appellate Courts Reviewing Multiple-Conviction Cases, Michelle D. Albert

Maryland Law Review

No abstract provided.

Tributes To Dean James Forsyth , Lynne A. Battaglia, William Reynolds, David S. Bogen, Alan D. Hornstein

Maryland Law Review

No abstract provided.

Like A Hole In The Head, Lief H. Carter

Maryland Law Review

No abstract provided.

Is There A Paradox In Amending A Sacred Text?, Beau Breslin

Maryland Law Review

No abstract provided.

Biblical Interpretation, Constitutional Interpretation, And Ignoring Text, Henry L. Chambers Jr.

Maryland Law Review

No abstract provided.

Atmospheric Harms In Constitutional Law, Frederick Mark Gedicks

Maryland Law Review

No abstract provided.

The Dueling First Amendments: Government As Funder, As Speaker, And The Establishment Clause, Carol Nackenoff

Maryland Law Review

No abstract provided.

Asbestos Fraud Should Lead To Fairness: Why Congress Should Enact The Fairness In Asbestos Injury Resolution Act, Elise Gelinas

Maryland Law Review

No abstract provided.

Teaching Transactional Skills In A Clinic, Robert Statchen, Serge Martinez

Faculty Scholarship

In May 2008, the Center for Transactional Law and Practice at Emory University School of Law held a conference entitled “Teaching Drafting and Transactional Skills—The Basics and Beyond.” This Article reflects the Authors’ discussion of teaching drafting and transactional skills to law students in the context of a law school clinic.

No More Secret Laws: How Transparency Of Executive Branch Legal Policy Doesn't Let The Terrorists Win, Sudha Setty

Faculty Scholarship

One of the key hallmarks of a democratic nation is that there are no secret laws. In the post-September 11, 2001 era, the George W. Bush administration relied on national security concerns and the unitary executive theory of presidential power as justifications for maintaining secret legal policies that govern parts of the war on terrorism that affect serious issues of human rights and civil liberties. These legal policies sometimes staked out positions that are at odds with legislation, treaties, and court decisions—but the parameters of the executive branch legal policies were sometimes unknown because of the lack of public disclosure. …

Taming The Employment Sharks: The Case For Regulating Profit-Driven Labor Market Intermediaries In High Mobility Labor Markets, Harris Freeman, George Gonos

Faculty Scholarship

Over the last quarter century, a profound restructuring of U.S. labor markets has occurred. Long-term job tenure, internal labor markets, and employer-sponsored benefits have waned under the pressures of neoliberal globalization. The trend is toward increasingly precarious, shorter-term, serial employment relationships that offer significantly lower wages, reduced job-related benefits, and formidable obstacles to the exercise of employment rights. This fundamental shift has moved so-called “non-standard” employment arrangements, once viewed as marginal, into the core economy. As a result, a remarkable array of profit-driven labor market intermediaries (LMIs) are now embedded in mainstream labor markets. Temporary help and staffing agencies, payrolling …

Working Group On Chapter 4 Of The Proposed Restatement Of Employment Law: The Tort Of Wrongful Discipline In Violation Of Public Policy, Pauline Kim, Joseph R. Grodin, Paul M. Secunda, Richard A. Bales, Catherine Fisk, Roberto L. Corrada

Scholarship@WashULaw

The purpose of this commentary on Chapter 4 of the Proposed ALI Restatement of Employment Law, concerning the tort of wrongful discipline in violation of public policy, is to closely evaluate the current draft in light of the appropriate purposes for a Restatement. Although some value exists in merely stating the consensus respecting these rules, the mission of the ALI extends beyond that, to better adapt the law to social needs and secure the better administration of justice. Our principal problem with the current Restatement draft is that it does not adequately recognize the dynamic nature of this area of …

Privacy And The Limits Of History, Neil M. Richards

Scholarship@WashULaw

A short review essay of Lawrence Friedman's "Guarding Life's Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy" (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the "Victorian Compromise," a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. "Dark Secrets" undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic–a must-read for anyone interested …

Rethinking Free Speech And Civil Liability, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

One of the most important and unresolved quandaries of First Amendment jurisprudence involves when civil liability for speech will trigger First Amendment protections. When speech results in civil liability, two starkly opposing rules are potentially applicable. Since New York Times v. Sullivan, the First Amendment requires heightened protection against tort liability for speech, such as defamation and invasion of privacy. But in other contexts involving civil liability for speech, the First Amendment provides virtually no protection. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires …

Deliberation And Strategy On The United States Courts Of Appeals: An Empirical Exploration Of Panel Effects, Pauline Kim

Scholarship@WashULaw

Recent studies have established that decision-making by federal court of appeals judges is influenced not only by the preferences of the judge, but also the preferences of her panel colleagues. Although the existence of these panel effects is well documented, the reasons they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects - one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit …

How Should We Study District Judge Decision-Making?, Pauline Kim, Margo Schlanger, Christina L. Boyd, Andrew D. Martin

Scholarship@WashULaw

Understanding judicial decision-making requires attention to the specific institutional settings in which judges operate. Yet much of the existing empirical work on federal district courts has failed to take account of the setting in which those judges operate. Too often, empirical studies of the district courts rely on an implicit assumption that judging at the trial court level is fundamentally the same as judging at the appellate level. We argue that this approach is misguided, because the nature of district judges’ work is substantially different from that of appellate judges. For example, unlike in the typical appellate case, a district …

Kidney Transplantation: Only For The Well-To-Do?, Jennifer M. Smith

Campbell Law Review

No abstract provided.

Multi-Institutional Healthcare Ethics Committees: The Procedurally Fair Internal Dispute Resolution Mechanism, Thaddeus Mason Pope

Campbell Law Review

No abstract provided.

The 2009 Revision To The Phrma Code On Interactions With Healthcare Professionals: Challenges And Opportunities For The Pharmaceutical Industry In The Age Of Compliance, Howard L. Dorfman

Campbell Law Review

This Article will describe the basic tenets of the 2009 PhRMA Code, how the 2009 PhRMA Code has been relied upon by at least one state in crafting its own response to the industry-healthcare professional debate, and it will conclude with a brief overview of pending activity apart from the self-policing guidance of the 2009 PhRMA Code with an outlook on the future of the compliance debate.

A Primer On North Carolina And Federal Use Of Force Law: Trends In Fourth Amendment Doctrine, Qualified Immunity, And State Law Issues, J. Michael Mcguinness

Campbell Law Review

This Article analyzes recent trends and updates the status of use of force law under North Carolina and federal standards.

Why Affirmative Action Remains Essential In The Age Of Obama, Reginald T. Shuford

Campbell Law Review

No abstract provided.

The Hidden Dichotomy In The Law Of Morality, Justin P. Nichols

Campbell Law Review

This Comment will begin by exploring the dichotomy itself, and then carefully distinguishing civil and religious morality. The analysis will then examine Lawrence and clarify how the opinion affected the dichotomy. Next, this Comment will apply the post-Lawrence understanding of the rational basis test to several issues of concern raised by opponents of the decision. Finally, this Comment will speculate as to the possible implications of Lawrence for moral issues lying on the horizon.

Toward A Comprehensive Program For Regulating Vacant Or Abandoned Dwellings In North Carolina: The General Police Power, Minimum Housing Standards, And Vacant Property Registration, C. Tyler Mulligan

Campbell Law Review

Part I of this Article provides a brief introduction to North Carolina's experience thus far with the foreclosure crisis and introduces the broad array of statutorily granted tools local governments might employ to deal with vacant or abandoned dwellings in varying stages of neglect. Part II discusses the general police power that serves as the first line of defense against the decline of vacant or abandoned housing, as well as how that power is limited by state statutes governing minimum housing standards. Part III then turns to those minimum housing statutes to examine their operation and limitations. Part IV analyzes …

Putting Amotion In Motion: Removal Of An Elected Official By A Municipal Governing Body For Just Cause, Cathryn M. Little

Campbell Law Review

This Article will examine the development and application of North Carolina common law addressing the removal of an elected municipal official through the process of "amotion." Amotion is recognized as an "inherent power" of the governing body of a municipal corporation to remove an elected official for reasonable and just cause due to misconduct or unfitness to hold office.

Arresting Development: A Call For North Carolina To Expand Its Forensic Database By Collecting Dna From Felony Arrestees, John Maddux

Campbell Law Review

For nearly twenty years, state and federal law enforcement agencies have turned to DNA databases as a means of identifying offenders, generating leads in cold cases, and on occasion, exonerating the innocent. Naturally, the larger the database, the more likely it is that a new DNA profile entered into the system will generate a match. Currently, fifty states maintain DNA databases, and of those, forty-seven-including North Carolina-collect and store DNA profiles from all persons convicted of any felony offense. Statutes requiring the collection of DNA profiles from convicts are a positive step toward improving the database tools; however, by only …

The Forgotten Freedom Of Assembly, John D. Inazu

Scholarship@WashULaw

The freedom of assembly has been at the heart of some of the most important social movements in American history: antebellum abolitionism, women's suffrage in the nineteenth and twentieth centuries, the labor movement in the Progressive Era and after the New Deal, and the civil rights movement. Claims of assembly stood against the ideological tyranny that exploded during the first Red Scare in the years surrounding the First World War and the second Red Scare of 1950s McCarthyism. Abraham Lincoln once called 'the right of the people peaceably to assemble' part of 'the Constitutional substitute for revolution'. In 1939, the …

No Future Without (Personal) Forgiveness: Reexamining The Role Of Forgiveness In Transitional Justice, John D. Inazu

Scholarship@WashULaw

The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …

Making Sense Of Schaumburg: Seeking Coherence In First Amendment Charitable Solicitation Law, John D. Inazu

Scholarship@WashULaw

The Supreme Court shaped its approach to charitable solicitation in a trilogy of cases in the 1980s: Schaumburg v. Citizens for a Better Environment (1980), Secretary of State of Maryland v. Joseph H. Munson Co. (1984), and Riley v. National Federation of the Blind of North Carolina (1988). Owing largely to ambiguity surrounding the concepts of content analysis, tiered scrutiny, and commercial speech emerging during that era, the Court failed to articulate a coherent framework for evaluating regulations of charitable solicitation. The result has left the Court without a clear rationale for the value of charitable solicitation and lower courts …

An Examination Of Strategic Anticipation Of Appellate Court Preferences By Federal District Court Judges, Christina L. Boyd, James F. Spriggs

Scholarship@WashULaw

This Essay tackles the complicated relationships within the federal judicial hierarchy with a focus on the relatively understudied connection between the Supreme Court and district courts.

The Sec In A Time Of Discontinuity., Joel Seligman

Scholarship@WashULaw

In Jack Coffee and Hillary Sale’s article, Redesigning the SEC: Does the Treasury Have a Better Idea?, the authors address the dominant reality today—that “[t]he natural superiority of the U.S. model for securities regulation is no longer an article of faith” and analyze whether the Department of the Treasury Blueprint provides a wiser structure of financial regulation.

Jim Cox in Coping in a Global Marketplace: Survival Strategies for a 75-Year-Old SEC similarly begins, “data bear witness to the fact that government agencies come and go,” but highlights the complexities of creating an international approach to accounting standards.

Judge Easterbrook begins …