Law Commons^™

The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the constitutionality …

If You Think Law Schools Teach Students To "Think Like A Lawyer"...Think Again!, Douglas Rush

Douglas Rush

Law school faculty and deans purport to teach law students to “think like a lawyer.” Indeed, this phrase has been repeated so often that it has become legal pedagogical dogma. Professor Wegner, co-author of the Carnegie Report Educating Lawyers: Preparation for the Profession of Law, has stated that “thinking like a lawyer” has been embraced as a ”trope of the core identity” of the legal academy. Unfortunately, whether law schools truly teach their students to “think like a lawyer” has not been previously subjected to empirical analysis.

This article is an empirical examination using logistic regression analysis of two different …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Staring Down The Sights At Mcdonald V. City Of Chicago: Why The Second Amendment Deserves The Kevlar Protection Of Strict Scrutiny, James J. Williamson Ii

James J. Williamson II

In District of Columbia v. Heller, the Supreme Court found that a federal law that restricted the possession of handguns within a federal enclave to be in direct conflict with the Second Amendment, and therefore, unconstitutional. Two years after that decision, the Supreme Court, in McDonald v. City of Chicago, held that the Second Amendment is applicable to the States through the Due Process Clause of the Fourteenth Amendment. In both cases, however, the High Court failed to articulate a standard of review by which future Second Amendment challenges should be adjudicated. This note argues that the appropriate standard of …

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court …

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic of bisexual erasure, …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

The Meaning Of Justice In The World Today, Louis E. Wolcher

Louis E Wolcher

Justice does not stand in relation to law as a blueprint does to a building. Thus, any human practice that thinks of itself as just is a priori unjust. Justice requires the willingness to notice the tragic particular even though one's own conception of justice does not consider it relevant or important. This essay traces the connections between law and justice, and justice and individual ethical responsibility, to reach a conclusion that many may find surprising if not scandalous: Justice denied is undoubtedly a tragedy, but so too is justice achieved.

Law, Institutions And Corruption Cleanups In Africa, John Mukum Mbaku

JOHN MUKUM MBAKU

ABSTRACT Since independence, virtually all African countries have suffered and continue to suffer from extremely high rates of bureaucratic corruption. Today, corruption remains one of the most important constraints to social, political and economic development. Despite the efforts made, in several countries, to deal with corruption and other forms of political opportunism (e.g., rent seeking), these phenomena remain entrenched in these countries and continue to constrain entrepreneurship and creation of the wealth that is needed to deal with extremely high rates of poverty and material deprivation. Part of the reason why many African countries have not been able to effectively …

Understanding The Medical Record In Shoulder Dystocia Cases. Why These Cases Sometimes Should Have A No-Fault Recovery, Paul A. Race

Paul A Race

Shoulder dystocia is one of the most common causes of litigation in Obstetrics and Gynecology. The most common serious complication from shoulder dystocia is brachial plexus injury although death of the baby can also occur. Brachial plexus injuries lead to paralysis of the arm of the neonate. While most of the injuries eventually resolve, a small percentage will remain permanent. This article explores the areas of litigation involved with brachial plexus injuries. It discusses what the attorney should look for in the medical record. It reviews the standard of care both pre-labor and post-labor. It also looks at the controversial …

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

"One Free Swerve”?: Requiring Police To Corroborate Anonymous Tips In Order To Establish Reasonable Suspicion For Warrantless Seizure Of Alleged Drunk Drivers, Michael B. Kunz

Michael B Kunz

While the Supreme Court holds that warrantless searches and seizures are presumptively unreasonable, it has carved out exceptions to the warrant requirement that provide law enforcement officials flexibility with which to conduct their day-to-day investigations. However, in Florida v. J.L. the Court recognized a limit to one such exception by holding that reasonable suspicion cannot be based exclusively on a bare-boned anonymous tip. Nevertheless, the Court complicated this rule by hypothesizing that police might be able to act on a lesser showing of reliability when an anonymous tip alleges a sufficiently great danger. Relying on this abstract idea, a number …

The Mortgage Market Crisis: A Game Theory Analysis, Raquel Mato

Raquel Mato

The mortgage market experienced a global bubble during the early 2000s. The bubble burst in 2006, creating a global financial crisis with widespread repercussions. In this paper, I will discuss how the mortgage market normally works and what changes occurred leading up to the 2000s that allowed for the rapid expansion of the mortgage market. I will talk about contributing factors such as: deregulation of the market, government encouragement of homeownership, the mortgage backed securities market, existing legislation, and a general lack of responsibility by all parties involved. I will use various aspects of game theory to explain how this …

Outfoxed: Pierson V. Post And The Natural Law, Josh Blackman

Josh Blackman

Think back to first year property class. You are a bright-eyed 1L, and one of the first cases you read deals with hunting foxes on the beaches of Long Island, New York. The fact pattern seems obscure enough, but Pierson v. Post is the seminal case used to teach generations of law students about the acquisition of property. The interest in Pierson has recently been reinvigorated thanks to the uncovering of the original record of this case. Last year the Law and History Review dedicated an entire issue to this famous foxhunt. The holding in Pierson v. Post has been …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

A Decision Procedure For Making And Evaluating Ccp 998 Offers, Ryan J. Vlasak

Ryan J Vlasak

This paper puts forth a decision procedure for making and evaluating offers to compromise pursuant to CCP section 998.

Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay

Patrick A McKay

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover …

Engaging Law Students In Leadership, Faith Rivers James

Faith R Rivers James

The new challenge of legal education is preparing civic-minded lawyers to assume leadership roles in their communities, law firms, the legal profession, and in the public square. Defined as the process of influencing and persuading others to achieve a common purpose, leadership describes the lawyers’ task with individual and organizational clients; considered as a characteristic of people in positions of power, lawyers often assume the mantle of leading organizations. Whether defined as process or position, lawyering involves leadership in the private sector or in the public realm. This article considers the progressive structure of a comprehensive law & leadership program, …

Making Sense Of State Action, Lauren E. Tribble, John Dorsett Niles, Jennifer N. Wimsatt

Lauren E. Tribble

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883. Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak …

Is It Greek Or Déjà Vu All Over Again?: Neoliberalism, And Winners And Losers Of International Debt Crises, Tayyab Mahmud

Tayyab Mahmud

The global financial meltdown and the Great Recession of 2007-09 have brought into sharp relief the uneven distribution of gain and pain in economic crises. The 2009-10 debt crisis of Greece has resulted in a windfall for financial institutions at the expense of tax-payers, a rollback of welfare systems, and impoverishment of the working classes. This result is in tune with a pattern evidenced by the ubiquitous international debt crises of the last three decades, including the Latin American crisis of the 1980s, and the Asian crisis of 1990s. The recurrent international debt crises of the last three decades and …

Insulating Agencies: Avoiding Capture Through Institutional Design, Rachel E. Barkow

Rachel E Barkow

So-called independent agencies are created for a reason, and often that reason is a concern with agency capture. Agency designers hope that a more insulated agency will better protect the general public interest against interest group pressure. But the conventional approach to independent agencies in administrative law largely ignores why agencies are insulated. Instead, discussions about independent agencies in administrative law have focused on three features that have defined independent agencies: whether their heads are removable at will or for cause by the President, whether they must submit regulations to the President’s Office of Information and Regulatory Affairs for cost-benefit …

The Path Of Posner's Pragmatism, Edward Cantu

Edward Cantu

It is no secret that formalist methodologies like originalism are not nearly as scientific as they pretend to be. Banking on this fact, pragmatism offers a prescriptive alternative: instead of expending intellectual energy attempting “fidelity” to antecedent “authority” (precedent, Framers’ intent, etc.) judges should embrace their inevitable roles as de facto policy makers, and focus on producing the best social results they can through the cases they decide. The article discusses the current state of legal pragmatism in the form espoused by its chief proponent Judge Richard Posner, and asks whether it has proven itself capable of contributing anything useful …

Perpetuating Ageism Via Adoption Standards And Practices, Sara C. Mills

Sara C Mills

More than a quarter of Americans consider adoption at some point in their lives. During the adoption process, courts strive to promote and foster the children’s best interests, but this often involves discriminatory decisions that deprive older adoptive parents of the same opportunities as younger adoptive parents. Discrimination in adoption proceedings is nothing new, and legislators, courts, and scholars have explored how it impacts minorities, same-sex couples, single parents, and divorcees. However, age discrimination in adoption also exists, and courts condone it by approving placements that are dictated by private agencies’ discriminatory ideologies. This article thus provides the first systematic …

All The News That's Fit To Fund: The Low-Profit Limited Liability Newspaper, Christopher J. Hickman

Christopher J. Hickman

The traditional media, specifically the newspaper industry, is in a period of significant upheaval. Newspapers are overburdened by economic hardship and the ascension of new models of news-gathering and distribution, particularly the Internet. This Note proposes that the newspaper industry's old, ineffective business platform should be cast aside in favor of a hybrid social enterprise model, specifically the low-profit limited liability company (the “L3C”). The L3C, a "for-profit with a non-profit soul," will function as both an engine for moderate profits for investors and a platform for socially conscious values in the news reporting context.

Rendition Operations: Does U.S. Law Impose Any Restrictions?, Daniel L. Pines

Daniel L Pines

For centuries, the United States has seized individuals oversees and, outside any formal extradition process, brought such individuals to the United States to stand trial. A more recent wrinkle has been the transfer of such individuals to other countries for the purposes of prosecution or interrogation. Known as “rendition operations,” such transfers have often been criticized. Numerous commentators, asserting that many of these activities violate U.S. law, have called on the U.S. government to cease such operations and prosecute U.S. officials who engage in them. Nonetheless, a Special Task Force established by President Obama recently advocated the continued used of …

How Powerful Is The Ioc? – Let’S Talk About The Environment, Marc A. R. Zemel

Marc A. R. Zemel

The International Olympic Committee (IOC) is in a unique position as the supreme administrator of an immensely popular international mega-event and a self-proclaimed champion of environmental issues and sustainable development. Every two years, cities from all over the world spend millions of dollars for the mere privilege of competing to host the Olympic Games, and those cities must play by the IOC’s rules. In addition, Article 2 of the Olympic Charter, the constitution-like instrument governing the IOC and the Olympic Movement, requires the IOC to ensure that the Olympics are held to promote sustainable development and show concern for the …

The Red And Blue Golden State: Why California’S Proposition 11 Will Not Produce More Competitive Elections, Anthony E. Chavez

Anthony E Chavez

No abstract provided.

Combating Cyber-Victimization, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Translation Services Not Required: The Civil Rights Act Of 1964 Does Not Require Special Accommodations For Limited English Proficiency Individuals, Carrie L. Flores

Carrie L. Flores

Is an employer or health care provider required to provide special accommodations to applicants or patients unable to speak English proficiently? If so, to what extent must they accommodate them? Must they provide free translation services? This scenario sets forth a hotly contested issue: whether Limited English Proficiency (LEP) individuals are entitled to receive special accommodations.

The Civil Rights Act (“CRA”) prohibits discrimination based on national origin. However, the CRA does not clearly answer whether an LEP individual is entitled to receive special accommodations because of his LEP status. Notwithstanding this, President Clinton issued an executive order requiring recipients of …

Unfounded Allegations That John Yoo Violated His Ethical Obligations As A Lawyer: A Critical Analysis Of The Torture Memo, Carrie L. Flores

Carrie L. Flores

In 2003, John C. Yoo, then Deputy Assistant Attorney General for the United States Department of Justice’s Office of Legal Counsel, signed a memorandum issued to the U.S. Department of Defense. This memorandum provided a legal opinion regarding the standards governing military interrogations of alien unlawful combatants detained outside of the U.S. It is now commonly referred to as the “Torture Memo.”

The Torture Memo contained several highly controversial legal conclusions, including a definition of torture, and although it was classified information when it was originally issued, the Memo was later declassified and made available to the public in 2008. …