Law Commons^™

First Amendment Limits On Libraries’ Discretion To Manage Their Collections, Anne Klinefelter

Faculty Publications

No abstract provided.

Medical Research Regulation After More Than Twenty-Five Years: Old Problems, New Challenges, And Regulatory Imbalance, Richard S. Saver

Faculty Publications

No abstract provided.

Self-Defense, John V. Orth

Faculty Publications

No abstract provided.

The Moral Politics Of Social Control: Political Culture And Ordinary Crime In Cuba, Deborah M. Weissman, Marsha Weissman

Faculty Publications

No abstract provided.

The Death Of Suspicion, Fabio Arcila Jr.

Scholarly Works

This article argues that neither the presumptive warrant requirement nor the presumptive suspicion requirement are correct. Though representative of the common law, they do not reflect the totality of our historic experience, which includes civil search practices. More importantly, modern developments - such as urban life and technological advancements, the rise of the regulatory state, and security concerns post-9/11 - have sufficiently changed circumstances so that these rules are not just unworkable now, they are demonstrably wrong. Worst of all, adhering to them has prevented us from formulating a more coherent Fourth Amendment jurisprudence. A new paradigm confronts us, in …

Applying Jewish Legal Theory In The Context Of American Law And Legal Scholarship: A Methodological Analysis, Samuel J. Levine

Scholarly Works

No abstract provided.

Miranda, Dickerson, And Jewish Legal Theory: The Constitutional Rule In A Comparative Analytical Framework, Samuel J. Levine

Scholarly Works

In this Essay, Professor Levine briefly explores Dickerson v. United States, the important 2000 decision in which a divided United States Supreme Court held that the standard established in Miranda v. Arizona continues to govern the admissibility of confessions, notwithstanding a federal statute enacted subsequent to Miranda that provided an alternative standard. Levine addresses broader theoretical implications of the approaches adopted by the majority and dissenting opinions in Dickerson. Drawing a parallel to the interpretation of the Torah in Jewish legal theory, he proposes a comparative framework for analyzing the division between the majority and dissent over the concept and …

Expert Witnesses: The Nevada Supreme Court Clarifies Adherence To Nrs 50.275 And Judicial Discretion, Expressly Declining To Embrace The Federal Daubert Approach, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Snyder V. Phelps: Searching For A Legal Standard, Leslie C. Griffin

Scholarly Works

No abstract provided.

Book Review: "The Lost History Of The Ninth Amendment", Thomas B. Mcaffee

Scholarly Works

No abstract provided.

Review Essay: Religion And Politics 2008-2009: Sometimes You Get What You Pray For, Leslie C. Griffin

Scholarly Works

No abstract provided.

The Weiner-Rogers Law Library: An Invaluable Legal Resource, Jeanne Price

Scholarly Works

No abstract provided.

Social Security Benefits Formula 101: A Practical Primer, Francine J. Lipman

Scholarly Works

No abstract provided.

Symposium, The Legal Writing Institute: Celebrating 25 Years Of Teaching And Scholarship, Terrill Pollman

Scholarly Works

This is the transcript of Mercer Law Review’s Symposium, The Legal Writing Institute: Celebrating 25 Years of Teaching & Scholarship. In this Symposium Linda Edwards, among other panelists, discussed the work that goes into producing scholarship.

Cyberspace Is Outside The Schoolhouse Gate: Offensive, Online Student Speech Receives First Amendment Protection, Joseph A. Tomain

Articles by Maurer Faculty

Normative and doctrinal analysis shows that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus. The Third Circuit vacated both decisions and is considering these cases in a consolidated en banc appeal. Another case addressing the same …

Competence And Member State Autonomy: Causality, Consequence And Legitimacy, Paul Craig

Articles by Maurer Faculty

The scope of EU competence and the limits on Member State autonomy can validly be analyzed from a variety of perspectives. This chapter considers one such perspective, the prevailing concern about the scope and exercise of EU competence. This concern is often based on the premise that some reified entity called the EU has increasingly arrogated power, with a consequent diminution of national autonomy that the Member States have been unable to resist, and the ECJ is frequently regarded as bearing primary responsibility. it will however be argued in the first half of this chapter that the Community courts were …

The Argument For Same-Sex Marriage (Debate), Deborah A. Widiss, Nelson Tebbe, Shannon Gilreath

Articles by Maurer Faculty

Perry v. Schwarzenegger, in which a federal district court held California's ban on same-sex marriages unconstitutional, is set for expedited review in the Ninth Circuit; many argue that the case will ultimately be decided by the Supreme Court. The arguments for and against the constitutionality of such statutes are thus at a fever pitch. In an article published earlier this year, Professors Nelson Tebbe and Deborah Widiss argued that marriage rights are best conceived of as an issue of equal access, rather than one of equal protection or substantive due process. Nelson Tebbe & Deborah A. Widiss, Equal Access and …

The Many Faces Of Strict Scrutiny: How The Supreme Court Changes The Rules In Race Cases, Evan Gerstmann, Christopher Shortell

Political Science Faculty Publications and Presentations

In this paper, we argue that there is no single test called strict scrutiny when the Court considers claims of racial discrimination. In fact, the Court changes the rules depending on why and how the government is using race. By examining racial redistricting, remedial affirmative action, and diversitybased affirmative action cases, we show how the Court uses at least three very different versions of strict scrutiny. The costs of maintaining the fiction of unitary strict scrutiny is high. In the area of racial profiling, for example, courts refuse to apply strict scrutiny for fear that it will either overly hamper …

The Expansion Of Defense Counsel Liability To Include Malpractice Claims By Insurance Companies: How The West Was Won, Johnny Parker

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Guest Editor's Introduction, Special Issue: Ensuring Access To Justice For Self-Represented, Amy Applegate

Articles by Maurer Faculty

I am pleased to be the guest editor of his special issue of Family Court Review, which focuses on "Access to Justice for Self-Represented Litigants." I am even more pleased that this issue includes articles written by some of the leaders of Indiana's pro bono legal community; several outstanding students; my collaborators who conduct research about the effect of self-representation in the mediation context, especially where there is intimate partner violence or abuse (IPVA); and colleagues in the national clinical and law school pro bono community whose students provide pro bono services to disadvantaged or marginalized individuals with family …

Getting Right Without Lincoln, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Transnational Legal Practice 2009, Carole Silver, Laurel S. Terry, Ellyn S. Rosen

Articles by Maurer Faculty

This article identifies some of the most important U.S. and international developments in transnational legal practice and provides citations for further research. The article begins by briefly reviewing the impact of the recession on legal services. The second section focuses on international developments. It identifies some of the ongoing efforts to implement the 2007 U.K. Legal Services Act, including the issuance of the influential Hunt and Smedley reports. It also provides information about law reform initiatives in France, Scotland and Korea. This section of the article also provides information about Canadian and Australian developments regarding admission of foreign applicants and …

Academic Freedom And Academic Responsibility, Nancy B. Rapoport

Scholarly Works

In this review of Matthew W. Finkin & Robert C. Post, For the Common Good: Principles of Academic Freedom (Yale University Press 2009), I examine Finkin & Post's study of academic freedom in U.S. higher education institutions and link the issues surrounding academic freedom to the issues surrounding shared governance. I argue that the problems with shared governance can create a race to the bottom in academic units.

Minimizing The Harm Of State Fiscal Volatility, David Gamage, Jeremy Bearer-Friend

Articles by Maurer Faculty

This report’s primary concern is how U.S. state governments should respond to the fiscal volatility created by their balanced budget constraints. Applying the principles of risk allocation theory to this recurring problem, we conclude that states should primarily adjust the rates of broad-based taxes as their economies cycle, rather than fluctuating public spending.

Managing Fiscal Volatility By Redefining "Tax Cuts" And "Tax Hikes", David Gamage, Jeremy Bearer-Friend

Articles by Maurer Faculty

This report analyzes how states should cope with fiscal volatility at the level of institutional-design policy. We propose that states reconsider how they define terms like ‘‘tax cuts’’ and ‘‘tax hikes.’’ By adopting a new baseline for defining those terms, states can increase the likelihood of using tax rate adjustments to cope with fiscal volatility rather than more harmful spending fluctuations.

The Legal Writing Institute: Celebrating 25 Years Of Teaching & Scholarship, Mary Beth Beazley

Scholarly Works

Professor Beazley joins a panel of the elite of legal writing professors at Mercer University, celebrating the 25th anniversary of the Legal Writing Institute in this transcript of the proceedings.

Scientific Understandings Of Postpartum Illness: Improving Health Law And Policy?, Stacey A. Tovino

Scholarly Works

In its broadest sense, the Article examines the relationship between science and the law in the context of postpartum illness. From classical antiquity to the present day, physicians and scientists have investigated the causes, correlates, and consequences of the depressions and psychoses that develop in some women following their transition to motherhood. The scientific investigation of postpartum illness has been characterized by an open-ended search for knowledge with the recgonition that scientific findings published one day are subject to revision the next. Legislators and judges also have sought to understand postpartum illness as necessary to make laws that affect and …

The Insurance Policy As Social Instrument And Social Institution, Jeffrey W. Stempel

Scholarly Works

Insurance policies are classified as a species of contract. Although this characterization is correct, it is unduly narrow if used as the exclusive lens for assessing insurance policies, which are not merely contracts but also are designed to perform particular risk management, deterrence, and compensation functions important to economic and social ordering. Recognizing this has significant implications regarding the manner in which insurance policies are construed in coverage disputes and suggests that policy construction can be improved by not only performing traditional contract analysis of disputed policies but also by appreciating the particular function of the insurance policy in question …

A Writing Life, Linda H. Edwards

Scholarly Works

This essay was written on the occasion of the 25th anniversary of the Legal Writing Institute (LWI), celebrated at Mercer University School of Law, LWI’s current home. In a sense the essay is retrospective, for it is written to honor the scholars whose work has moved us toward a vision of legal writing scholarship and all it can offer. Many of those experienced and inspiring scholars have kindly offered their advice for inclusion in this essay. That advice is probably the most important content included here, and it is placed, appropriately, at the end of the text as the essay’s …

W(H)Ither Economic Substance?, Leandra Lederman

Articles by Maurer Faculty

Transactions that claim inappropriate tax benefits are a perennial problem. When the IRS claims a transaction is abusive, courts generally examine whether the taxpayer had a business purpose and whether the transaction had economic substance (essentially a prospect of profit before taxes). This two-pronged "economic substance doctrine" developed from a series of Supreme Court cases.

Unfortunately, the economic substance doctrine provides a poor proxy for the real question, which was the focus of the early cases-whether the claimed tax results are consistent with Congress's intent. One important drawback of the shift from a focus on congressional intent to a focus …