Law Commons^™

Human Dignity And American Employment Law, David C. Yamada

University of Richmond Law Review

No abstract provided.

Live Performance, Copyright, And The Future Of The Music Business, Mark F. Schultz

University of Richmond Law Review

No abstract provided.

Hearts And Minds And Laws: Legal Compliance And Diplomatic Persuasion, Christopher J. Borgen

Faculty Publications

This Essay considers the role of international legal argument in the war on terror and, in particular, in the attempts to justify the use of military force. Part I looks at challenges posed by the evolution of military conflict and how this affects diplomacy. In particular, I argue that a reputation for honoring one's treaty commitments and for legality, more generally, is an important part of fostering cooperation and undercutting the support of our adversaries. Part II focuses on how the Bush Administration moved between hostility to international law and attempts to rewrite the rules of international law concerning the …

The Jelly Beaner Challenge: How Attorneys Serving As Neutrals Identify And Coordinate The Ethical Mandates Of The 2009 Rules Of Professional Conduct With The Ethical Mandates Of Dispute Resolution, Elayne E. Greenberg

Faculty Publications

(Excerpt)

Many of us may remember as children trying to master the coordination game Jelly Beaner, a joust in which the player is challenged to pat his or her head up and down with one hand while simultaneously rubbing his or her belly in a circular pattern with the other hand. Competing movements, but with practice even those less coordinated can master how to synchronize their hands and play the game. So, too, those of us who are lawyers serving as neutrals are now engaging in a variant of the Jelly Beaner Challenge when it comes to discerning ethical behavior. …

Who Says "I Do"? Reviewing Judith Butler & Gayatri Chakravorty Spivak, Who Sings The Nation-State? Language, Politics, Belonging (2007), Noa Ben-Asher

Faculty Publications

This Book Review offers an analogy between two forms of resistance to legal discrimination by marginalized minorities: singing the national anthem in Spanish on the streets of Los Angeles in the spring of 2006 by undocumented immigrants, and possible future public marriage ceremonies by LGBT people and other marriage outlaws. Based on the conceptual grounds laid by Judith Butler and Gayatri Spivak, and earlier by Hannah Arendt, the Review uses an analogy to the public singing of the anthem in Spanish in order to argue that the performance of public marriage ceremonies by LGBT people and other marriage outlaws may …

Working For (Virtually) Minimum Wage: Applying The Fair Labor Standards Act In Cyberspace, Miriam A. Cherry

Faculty Publications

(Excerpt)

When Congress passed the Fair Labor Standards Act ("FLSA")' in 1938 to help relieve the downward spiral of wages in the Great Depression, America's workers commonly showed up to an employer's place of business, leaving little doubt if they were "working" and thus entitled to the statute's minimum wage. Times, and technologies, have changed. With modem computers, individuals often perform work on someone else's behalf while sitting at home, using not their employer's factory machinery, but rather a computer they purchased for themselves, as well as their own Internet connection. The work is often engaging and is far more …

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

How To Critique & Grade Contract Drafting Assignments, Robin A. Boyle, Sue Payne, David Epstein

Faculty Publications

(Excerpt)

I have to give this disclaimer. I am high grader when it comes to contract drafting. So even though my presentation is on critiquing and grading, truthfully it’s more about critiquing for me. I will get into that in a minute. My name is Robin Boyle, and I teach at St. John’s University School of Law. First, my background. I was an evening student at Fordham and worked in law firms during the day in both litigation and corporate practices. By the time I graduated, I worked at a large law firm, which I had summered at and then …

Detrebling Antitrust Damages In Monopolization Cases, Edward D. Cavanagh

Faculty Publications

(Excerpt)

This article examines the question of whether the statutory rule of mandatory treble damages should continue to apply in monopolization cases brought under Section 2 of the Sherman Act. The law of monopolization "has been a source of puzzlement to lawyers, judges and scholars." Compared to Section 1 of the Sherman Act, which has generated a plethora of case law and an emerging consensus on liability rules and remedies, the law of monopolization remains largely undeveloped with respect to both liability rules and remedies. In the remedies arena, the conversation has focused principally on equitable relief—conduct remedies versus structural …

Old W(H)Ine, Old Bottles: A Reply To Professor Paulsen, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

International law is “everywhere” in the United States: informing state CO2 emissions standards; providing inspiration for local civil rights codes; and overseeing the more than three trillion dollars in annual trade in goods, to name just a few examples. A reader of Professor Michael Stokes Paulsen’s essay, The Constitutional Power To Interpret International Law, might be forgiven for missing these important trends, because rather than focus on the ubiquity of international law and the myriad ways in which it has permeated U.S. legal, social, economic, and political life, Paulsen returns us to old arguments over whether international law …

The President, Congress And The Security Council: Counterterrorism And The Use Of Force Through The Internationalist Lens, Margaret E. Mcguiness

Faculty Publications

(Excerpt)

This symposium is focused on the powers of the U.S. presidency, a topic that typically implies questions of constitutional law. More narrowly, the topic of presidential powers in the area of counterterrorism typically raises questions of how the Constitution addresses the shared war powers of the President and Congress. U.S. legal scholars have generally not framed the question of presidential power to use force against transnational terrorist groups as one of international law or international institutions. Rather, the separation of powers question has focused on historical and functional views of the President's war powers and whether and to what …

Legal Holes, Noa Ben-Asher

Faculty Publications

(Excerpt)

In the years that followed the events of September 11, 2001, a debate crystallized between those who think that “legal grey and black holes”—which I call simply “legal holes”—are necessary and integral to U.S. law and those who think that they are dangerous and should be abolished. Legal black holes “arise when statutes or legal rules ‘either explicitly exempt[] the executive from the requirements of the rule of law or explicitly exclude[] judicial review of executive action.’” Grey holes, in contrast, “arise when ‘there are some legal constraints on executive action . . . but the[y] are so insubstantial …

The Hidden Legacy Of Holy Trinity Church: The Unique National Institution Canon, Anita S. Krishnakumar

Faculty Publications

This Article explores an underappreciated legacy of the Supreme Court's (in)famous decision in Church of the Holy Trinity v. United States. Although Holy Trinity has been much discussed in the academic literature and in judicial opinions, the discussion thus far has focused almost exclusively on the first half of the Court's opinion—which declares that the "spirit" of a statute should trump its "letter"—and relies on legislative history to help divine that spirit. Scholars and jurists have paid little, if any, attention to the opinion's lengthy second half. In that second half, the Court tells a detailed narrative about the country's …

Representation Reinforcement: A Legislative Solution To A Legislative Process Problem, Anita S. Krishnakumar

Faculty Publications

One of the most valuable—and disturbing—insights offered by public choice theory has been the recognition that wealthy, well-organized interests with narrow, intense preferences often dominate the legislative process while diffuse, unorganized interests go under-represented. Responding to this insight, legal scholars in the fields of statutory interpretation and administrative law have suggested that the solution to the problem of representational inequality lies with the courts. Indeed, over the past two decades, scholars in these fields have offered up a host of John Hart Ely-inspired representation reinforcing "canons of construction," designed to encourage judges to use their role as statutory interpreters to …

The Language Of Law And The Practice Of Politics: Great Powers And The Rhetoric Of Self-Determination In The Cases Of Kosovo And South Ossetia, Christopher J. Borgen

Faculty Publications

If international law is all but irrelevant to international relations why do states spend so much time and effort justifying their actions under international law? The immediate reaction by many is to dismiss this as "cheap talk," a rhetorical fig leaf or simple bluster of little consequence. This Article aims to debunk the notion that the rhetoric surrounding international law is of little consequence. Rather than mere cheap talk, the rhetoric of international law is at times used by great powers (and other states) in an attempt to gain tactical, if not strategic, advantages.

This Article seeks to elucidate what …

We Can Work It Out: Entertaining A Dispute Resolution System Design For Bankruptcy Court, Elayne E. Greenberg

Faculty Publications

On October 2, 2009, dispute resolution scholars and bankruptcy court jurists courageously began the difficult conversation about the feasibility of an expanded dispute resolution system design for bankruptcy court. This commentary distills that conversation through a dispute resolution system design lens. Dispute resolution system design offers a framework for organizations to more effectively manage and resolve recurring conflicts. The design of a dispute resolution system requires clarifying ideas, elucidating values, prioritizing goals, considering options and incorporating that information into a more workable process to respond to conflict. All the while, the stakeholders and dispute resolution designers work together to clarify, …

Defining Race: The Obama Phenomenon And The Voting Rights Act, Janai S. Nelson

Faculty Publications

This piece publishes remarks delivered at a symposium organized by the Albany Law Review and the Albany Journal of Science and Technology exploring the definition of race. The topic, “Defining Race,” is related to the recent presidential election and, in particular, to Barack Obama's successful candidacy to become the first black President of the United States. Rather than deconstruct, redefine, or explore the definition of race, these remarks explore briefly whether race relations in the electoral arena have changed to such a degree that race and race-based remedies are no longer needed, and what evidence from this presidential election would …

A New Look At Judicial Impact: Attorney's Fees In Securities Class Actions After Goldberger V. Integrated Resources, Inc., Theodore Eisenberg, Geoffrey Miller, Michael A. Perino

Faculty Publications

Political scientists have long been interested in what impact judicial decisions have on their intended audiences. Compliance has been defined as the lower court's proper application of standards the superior court has enunciated in deciding all cases raising similar or related questions. Most studies find widespread compliance in lower courts, with only rare instances of overt defiance.

This Article attempts to address three questions in the extant judicial impact literature. First, existing studies use rather insensitive measures of compliance and thus may fail to identify instances of subtle resistance to higher court rulings. Second, judicial impact literature has a restrained …

Culpability In Creating The Choice Of Evils, Marc O. Degirolami

Faculty Publications

Can an actor justify criminal conduct when he was criminally culpable in creating the conditions making it necessary? Virtually every American jurisdiction answers that he cannot and bars the necessity defense under those circumstances. Whereas many scholars have condemned that response, this Article takes the very different view that the exclusion of the defense for purposeful, knowing, and reckless criminal conduct that directly causes the conditions leading to the allegedly justified act represents a sound retributivist check on what is an otherwise cruder evaluation of whether conduct is socially valuable, worthy of praise, or, in a word, justified. Criminal "created …

The Case For Limiting The Use Of Technology To Teach, Patricia Grande Montana

Faculty Publications

(Excerpt)

There has been much discussion recently over how best to integrate technology into the classroom to meet the needs of our students, many of whom use computers, the Internet, and other technology to take notes, draft and revise assignments, and conduct research. Before exploring what technology to use to teach, we must first decide how to use technology in the classroom in a way that will benefit our students. Just because students rarely use pen and paper does not mean that they now learn differently. Thus, we might not need to dramatically change our teaching methods, especially when teaching …

Lessons From The Carnegie And Best Practices Reports: A Look At St. John's University School Of Law's Street Law Program As A Model For Teaching Professional Skills, Patricia Grande Montana

Faculty Publications

(Excerpt)

The attitude toward professional skills in legal education has improved significantly in recent years. Law schools now recognize that there is a need for greater attention to professional skills instruction. Many law schools are experimenting with teaching methods other than the traditional case style of teaching. In fact, one of the leading academic institutions in the United States, Harvard Law School, has already changed its curriculum to offer more skills-based courses to their students. Other law schools have also followed this trend.

In 2007, two very influential institutes published reports that favored this new approach to legal education. The …

Introduction: Adr Meets Bankruptcy, G. Ray Warner

Faculty Publications

(Excerpt)

On October 2, 2009, the American Bankruptcy Institute Law Review, the Hugh L. Carey Center for Dispute Resolution, and the St. John's Institute for Bankruptcy Policy convened respected bankruptcy jurists and dispute resolution scholars to host "ADR Meets Bankruptcy: Cross-Purposes or Cross-Pollination." Bankruptcy is a dispute resolution process unlike other forms of court adjudication, both in the flexibility of the process and in the systemic goals. In many ways, bankruptcy is a form of alternative dispute resolution. Yet there has been little formal engagement between students and practitioners of bankruptcy and students and practitioners of the nominally separate …

The "Accidental Procreation" Argument For Withholding Legal Recognition For Same-Sex Relationships, Edward D. Stein

Articles

This article examines “the accidental procreation argument,” an argument against same-sex marriage that still has some traction in United States appellate courts. The accidental procreation argument is meant to take the place of one of the central arguments made by states — and almost universally accepted by courts — in the first batch of cases in the United States about same-sex marriage. That original procreation-based argument — now widely acknowledged to be inadequate — posited that marriage is crucially related to procreation; therefore, since same-sex couples cannot procreate, same-sex couples should not be allowed to marry. The accidental procreation argument …

Some Thoughts On Judicial Review And Collaborative Governance, Michael Herz

Articles

No abstract provided.

Physician Peer Review Immunity: Time To Euthanize A Fatally Flawed Policy, Charles R. Koepke M.D.

Journal of Law and Health

Dr. X is a young, charismatic, board-certified surgeon at the local hospital. While popular among her patients and non-surgical colleagues, to the established surgical "Old Guard," she appears somewhat of a threat. Her training in new advanced techniques, coupled with splendid bedside manner, has caused her practice to become quite busy. However, disruption in some well-established referral patterns has occurred, and business has been siphoned away from her older colleagues. . . . This hypothetical - but not uncommonly recurring - fact pattern demonstrates the destruction of a promising medical career, elimination of competition, promotion of status quo cronyism, and …

Dying To Wait: How The Abigail Court Got It Wrong, Juan Joel Tovanche

Journal of Law and Health

At age twenty-one, Abigail Kathleen Burroughs met a fate usually reserved for aged men who have spent much of their lives drinking and smoking. Diagnosed with cancer at nineteen, Abigail battled the squamous cell carcinoma that invaded her body even as she struggled to maintain her characteristic optimism. Abigail struggled with more than her illness, however. In the last years of her life, Abigail and her family also wrestled with Food and Drug Administration (FDA) regulations that denied her access to medication that could have saved her life. The policy at issue was the FDA's practice of progressive testing, which …

Pregnant Employees, Working Mothers And The Workplace - Legislation, Social Change And Where We Are Today , Thomas H. Barnard, Adrienne L. Rapp

Journal of Law and Health

Accordingly, the focus of this Article is on the legal and social evolution resulting from the Civil Rights Act's prohibition of sex-based discrimination- and, in particular, pregnancy-related discrimination - in the workplace. Section II of this Article details the reluctance with which courts and employers initially extended workplace rights to women. Sections III and IV discuss Title VII's prohibition against "sex" discrimination and initial court hesitation to interpret that prohibition to include employees discriminated against on the basis of pregnancy. Sections V and VI provide an overview of federal and Ohio law granting pregnancy-related rights to women, including the PDA, …

The Neglect Of The Umbilical Cord: Ohio's Failure To Adequately Promote Banking Of Umbilical Cord Blood Stem Cells And The Need For New Legislation, Shannon Folger

Journal of Law and Health

Because current legislation, including OH H.B. 237, is insufficient in that it does not have the potential to significantly increase the number of cord blood donations, it will be necessary to enact legislation that is more demanding. Such legislation should be modeled after current "required request" organ donation laws, which mandate that health professionals actively pursue organ donations by expressly asking the family to consent to donation. Modeled after these laws, better legislation will not only require that state health departments generate information about donation opportunities, but also that health professionals then provide each maternity patient with materials about cord …

Discretion To Follow The Law: The Collision Of Ohio's Nursing Home Bill Of Rights With Ohio's Political Subdivision Tort Liability Act, Peter Traska Elk & Elk Co., Ltd., Katherine Knouff

Journal of Law and Health

The Ohio Political Subdivision Tort Liability Act confers general immunity on political subdivisions. Therefore, government owned homes seek to avoid liability by raising the defenses provided by the Ohio Political Subdivision Tort Liability Act, despite the resident's rights under the Nursing Home Bill of Rights. The result is that residents of government owned nursing homes have inferior remedies for the tortious acts of a county home's employees. The disparate treatment meted out to residents of county owned homes opens the Political Subdivision Act to another challenge: equal protection. The law formerly recognized that government actors taking part in the marketplace …

Germs On A Plane: Legal Protections Afforded To International Air Travelers And Governments In The Event Of A Suspected Or Actual Contagious Passenger And Proposals To Strengthen Them, Alexandra R. Harrington

Journal of Law and Health

This article calls for the creation of an international public health do-not-fly list akin to those used by Interpol and the United States government as a stop-gap measure to ensure that passengers who have been diagnosed with infectious diseases or have been exposed to infectious diseases are unable to travel until it is established that it is medically safe for them to do so. This article has also called for amendments to the IHR and the Vienna Conventions to clarify the rights and obligations of travelers and states in the event of a suspected or established case of infectious disease …