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Full-Text Articles in Law

Sexual Epistemology And Bisexual Exclusion: A Response To Russell Robinson's "Masculinity As Prison: Race, Sexual Identity, And Incarceration", Michael Boucai Dec 2011

Sexual Epistemology And Bisexual Exclusion: A Response To Russell Robinson's "Masculinity As Prison: Race, Sexual Identity, And Incarceration", Michael Boucai

Journal Articles

No abstract provided.


How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey Dec 2011

How Money For Legal Scholarship Disadvantages Feminism, Martha T. Mccluskey

Journal Articles

A dramatic infusion of outside money has shaped legal theory over the last several decades, largely to the detriment of feminist theory. Nonetheless, the pervasive influence of this funding is largely ignored in scholarly discussions of legal theory. This denial helps reinforce the marginal position of feminist scholarship and of women in legal theory. Conservative activists and funders have understood the central role of developing community culture and institutions, and have helped shift the prevailing framework for discussion of many questions of theory and policy through substantial investments in law-and-economics centers and in the Federalist Society. Comparing the institutional resources ...


Looking At Zoos, Irus Braverman Oct 2011

Looking At Zoos, Irus Braverman

Journal Articles

Looking at zoos from the perspective of zoo personnel, this article explores the importance of vision in the zoo’s presentation of its animals as well as the major technologies that the zoo uses to intensify such animal visions. On the one end of the spectrum, zoogeography and immersion design are used at the zoo exhibit to enable zoogoers to see animals in their naturalistic settings. On the opposite end of the spectrum, animals are caged and cared for in the highly artificial settings of the zoo’s holding area, with little or no exposure to the public gaze. In ...


Australians Get Their First Taste Of New Zealand Apples In Ninety Years, Meredith Kolsky Lewis Sep 2011

Australians Get Their First Taste Of New Zealand Apples In Ninety Years, Meredith Kolsky Lewis

Journal Articles

No abstract provided.


The Unreasonable Case For A Reasonable Compensation Standard In The Public Company Context: Why It Is Unreasonable To Insist On Reasonableness, Stuart G. Lazar Aug 2011

The Unreasonable Case For A Reasonable Compensation Standard In The Public Company Context: Why It Is Unreasonable To Insist On Reasonableness, Stuart G. Lazar

Journal Articles

There is no question that corporate executives are well paid. But does high executive compensation mean excessive or unreasonable compensation? And if so, what is the solution to curbing the problem of excessive executive pay? More specifically, should the Internal Revenue Code be used as a means for regulating the actions of public companies?

This Article briefly explores these issues. In Part I, this Article provides a narrative of the excessive compensation debate. Without drawing a conclusion as to whether executive compensation is reasonably set or excessive in nature, Part I summarizes the history of public outrage surrounding executive pay ...


Causing Infringement, Mark Bartholomew, Patrick F. Mcardle May 2011

Causing Infringement, Mark Bartholomew, Patrick F. Mcardle

Journal Articles

Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement on common law tort rules. But common law tort is an enormous subject. Without further instruction, the subject area is too vast and contradictory to offer a realistic template for reform. Even when the narrower body of tort law for secondary actors is consulted, there is still too much variation in the existing precedent to provide the necessary guidance. Instead ...


A Decade Of Uncertainty: Precon, Leaked Guidance, And Where To Go From Here?, Kim Diana Connolly May 2011

A Decade Of Uncertainty: Precon, Leaked Guidance, And Where To Go From Here?, Kim Diana Connolly

Journal Articles

No abstract provided.


Anonymity And Democratic Citizenship, James A. Gardner May 2011

Anonymity And Democratic Citizenship, James A. Gardner

Journal Articles

Many aspects of modern democratic life are or can be performed anonymously – voting, financial contributions, petition signing, political speech and debate, communication with and lobbying of officials, and so forth. But is it desirable for citizens to perform such tasks anonymously? Anonymity frees people from social pressures associated with observation and identifiability, but does this freedom produce behavior that is democratically beneficial? What, in short, is the effect of anonymity on the behavior of democratic citizens, and how should we evaluate it?

In this paper, I attempt a first pass answer to these questions by turning to both democratic theory ...


Cracks In The Cost Structure Of Agency Adoption, Andrea B. Carroll Apr 2011

Cracks In The Cost Structure Of Agency Adoption, Andrea B. Carroll

Journal Articles

No abstract provided.


For The Love Of The Case File, Christine P. Bartholomew Apr 2011

For The Love Of The Case File, Christine P. Bartholomew

Journal Articles

No abstract provided.


Procedure, Substance, And Erie, Jay Tidmarsh Apr 2011

Procedure, Substance, And Erie, Jay Tidmarsh

Journal Articles

This Article examines the relationship between procedure and substance, and the way in which that relationship affects Erie questions. It first suggests that "procedure" should be understood in terms of process-in other words, in terms of the way that it changes the substance of the law and the value of legal claims. It then argues that the traditional view that the definitions of "procedure" and "substance" change with the context-a pillar on which present Erie analysis is based-is wrong. Finally, it suggests a single process based principle that reconciles all of the Supreme Court's "procedural Erie" cases: that federal ...


Making The Best Of Felony Murder, Guyora Binder Mar 2011

Making The Best Of Felony Murder, Guyora Binder

Journal Articles

Although scorned as irrational by academics, the felony murder doctrine persists as part of our law. It is therefore important that criminal law theory show how the felony murder doctrine can be best justified, and confined within its justifying principles. To that end, this Article seeks to make the best of American felony murder laws by identifying a principle of justice that explains as much existing law as possible, and provides a criterion for reforming the rest. Drawing on the moral intuition that blame for harm is properly affected by the actor’s aims as well as the actor’s ...


Civilized Borders: A Study Of Israel's New Border Regime, Irus Braverman Mar 2011

Civilized Borders: A Study Of Israel's New Border Regime, Irus Braverman

Journal Articles

At Israel’s new border crossings with the West Bank, modernization has become the buzz-word: not only referring to modernized mechanical means – a Wall, newly designed crossings, and micro-mechanics such as turnstiles, signs, and fences – but also to new and sophisticated scientific technologies, such as sensor machines and scanners, and to modernized means of identification, such as advanced computer systems and biometric cards. This paper considers the transformation of the Israel-West Bank border to be a result of four major processes: reterritorialization, bureaucratization, neoliberalization, and de-humanization. I utilize in-depth interviews with top military and state officials and with human rights ...


Federal Health Care Reform: What’S Happening And Where Are We Going?, Anthony H. Szczygiel Feb 2011

Federal Health Care Reform: What’S Happening And Where Are We Going?, Anthony H. Szczygiel

Journal Articles

No abstract provided.


Academic War Strategies For Nonviolent Armies Of One, Angela Mae Kupenda Jan 2011

Academic War Strategies For Nonviolent Armies Of One, Angela Mae Kupenda

Journal Articles

To engage the legal system in necessary critical action, critical actors are required. The law cannot be uprooted, re-sowed, and re-cultivated, unless future legal professionals engage in such action. And for future legal professionals to engage in such action, generally, they must first be engaged in critical thought during their legal educations. Moreover, for such thought to occur, the legal academy must include a diverse group of voices, minds, and experiences to engage with those seeking such a critical education. These critical voices may be in short supply in the academy for multiple reasons. One specific reason, though, is that ...


Negotiating Social Mobility And Critical Citizenship: Institutions At A Crossroads, Michelle D. Deardorff, Angela Mae Kupenda Jan 2011

Negotiating Social Mobility And Critical Citizenship: Institutions At A Crossroads, Michelle D. Deardorff, Angela Mae Kupenda

Journal Articles

A Black law professor who teaches at a predominantly White law school and a White public law professor who teaches at a historically Black university in the same southern, urban community are co-authors of this Article. Here, in this piece, we explore the tension between the goals of our institutions and many other institutions to improve the socioeconomic status of our students with our personal goals of preparing students to challenge societal injustice and to be critical citizens who are willing to challenge a government that engages in abusive actions or is exploitative of its citizenry.


The Tenure Of A Law School Dean: It's Not How Long You Make It - It's How You Make It Long, Jim Rosenblatt Jan 2011

The Tenure Of A Law School Dean: It's Not How Long You Make It - It's How You Make It Long, Jim Rosenblatt

Journal Articles

In May 2003, I attended the New Deans Course in Jackson Hole, Wyoming. This event took place several months before I assumed my responsibilities as the Dean of Mississippi College School of Law in Jackson, Mississippi (“MC Law”). Although some “repeat deans” attended this course, the great majority were serving as deans for the first time. A topic of discussion amongst those deans was the question of how long they planned to serve. Even at this early juncture, some knew that in the not too distant future they would be returning to the faculty to resume teaching. Others took the ...


(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda Jan 2011

(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda

Journal Articles

Rather than acting as a whitening agent, the law should reflect the natural (re)complexioning of society and adapt to the melting pot that is America. The term "(re)complexioning" is used because the idea that the complexion of America was white at the beginning is false. Prior to the "discovery" of America, native citizens were indeed more deeply complexioned than Whites. Any (re)complexioning of the law since, to reflect the colors of America, then, is just to resort to the recognition of factual premises unjustly rejected when America was usurped from those of color and denied to others ...


Raise Your Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility, Donald E. Campbell Jan 2011

Raise Your Hand And Swear To Be Civil: Defining Civility As An Obligation Of Professional Responsibility, Donald E. Campbell

Journal Articles

The need to reclaim "civility" in the practice of law has become a rallying cry in the profession. Lack of civility has been blamed on everything from an increase in the cost of litigation to the cause of the public's lost faith in the legal profession. Further, courts are increasingly willing to sanction a lawyer solely for "uncivil" conduct. This article examines the puzzle of civility by addressing two fundamental questions. First, what are the obligations of civility? This question is answered using content analysis to analyze civility codes adopted by thirty-two state bar associations. From this analysis ten ...


Measure 26: Fear Mongering, Self-Execution & Potential Implications For Birth Control, Jonathan Will Jan 2011

Measure 26: Fear Mongering, Self-Execution & Potential Implications For Birth Control, Jonathan Will

Journal Articles

Depending on what we mean by “fertilization,” there could be impacts on many reproductive choices including birth control, fertility treatments like in vitro fertilization (IVF), and of course, women’s ability to choose to have an abortion. Certain proponents of Measure 26 suggest that even discussing these implications (other than perhaps abortion) amounts to fear mongering. While primarily focusing on birth control, the goal of this essay is to introduce readers to why the concerns regarding these reproductive choices are very real, and how these concerns are further complicated by the issue of whether, if passed, Measure 26 would be ...


Hydraulic Fracturing And The Safe Drinking Water Act, Keith B. Hall Jan 2011

Hydraulic Fracturing And The Safe Drinking Water Act, Keith B. Hall

Journal Articles

No abstract provided.


Reconstituting Land Use Federalism To Address Transitory And Perpetual Disasters: The Bimodal Federalism Framework, Blake Hudson Jan 2011

Reconstituting Land Use Federalism To Address Transitory And Perpetual Disasters: The Bimodal Federalism Framework, Blake Hudson

Journal Articles

Scholars analyzing the intersection of federalism and disaster law and policy have primarily focused on the difficulties federalism poses for interjurisdictional coordination of disaster response. Though scholars have highlighted that rising disaster risks and costs are associated with “land-use planning that exacerbates, rather than mitigates, disaster risk,” a more holistic analysis of land-use-related disaster law and policy is needed. This Article provides a more comprehensive framework within which to analyze prospective mitigation or prevention of disaster risk and costs through a rebalancing - or reconstituting - of the respective roles of the federal and state governments in land-use planning. The federal government ...


Punishing Without Free Will, Luis E. Chiesa Jan 2011

Punishing Without Free Will, Luis E. Chiesa

Journal Articles

Most observers agree that free will is central to our practices of blaming and punishment. Yet the conventional conception of free will is under sustained attack by the so-called determinists. Determinists claim that all of the events that take place in the universe – including human acts – are the product of causally determined forces over which we have no control. If human conduct is really determined by factors that we cannot control, how can our acts be the product of our own unfettered free will and what would that mean for the criminal law? The overwhelming majority of legal scholars and ...


Narrative Implications Of Evidentiary Rules, Bruce Ching Jan 2011

Narrative Implications Of Evidentiary Rules, Bruce Ching

Journal Articles

Advocates are increasingly conscious of courtroom disputes as forms of story-battles, in which the parties present competing narratives. But the rules of evidence -- determining which facts can be incorporated into the presentation of the parties' stories -- can also often best be understood from a narrative point of view. This paper examines narrative features underlying evidentiary rules dealing with leading questions, "speaking objections," and hearsay.


Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer Jan 2011

Competition And Regulation In The Insurance Sector: Reassessing The Mccarran-Ferguson Act, Susan Beth Farmer

Journal Articles

This article was presented at a symposium entitled “Public and Private: Are the Boundaries in Transition?” sponsored by the American Antitrust Institute on June 24, 2010. It proposes a different paradigm, which more precisely describes regulation and competition in the insurance sector. This relationship is the shifting boundary between state and federal regulation instead of a boundary between the public and private sectors. The McCarran-Ferguson Act was adopted to protect firms acting in the business of insurance from federal antitrust scrutiny, but its language and impact goes far beyond federal competition law. So broad is the exemption that the modern ...


The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome Jan 2011

The Church Abuse Scandal: Were Crimes Against Humanity Committed?, Dermot Groome

Journal Articles

Increasingly shocking revelations about sexual abuse by members of Catholic religious congregations and diocesan priests have recently raised the question of whether such widespread abuses constitute crimes against humanity. This paper considers that question in the context of a report issued by the Ryan Commission, an independent quasi-judicial commission that spent 10 years conducting detailed investigations into childcare institutions operated by Catholic religious congregations in Ireland. The Ryan Commission’s findings with respect to both widespread physical and sexual abuse provide a factual basis upon which to consider whether crimes against humanity were in fact committed. Contrasting the intentionality of ...


On The Evolution Of The United Nations’ 'Protect-Respect-Remedy' Project: The State, The Corporation And Human Rights In A Global Governance Context, Larry Cata Backer Jan 2011

On The Evolution Of The United Nations’ 'Protect-Respect-Remedy' Project: The State, The Corporation And Human Rights In A Global Governance Context, Larry Cata Backer

Journal Articles

The advent of contemporary economic globalization has substantially altered the regulatory environment in which economic enterprises operate. Once assumed to be creatures of the states that recognized and regulated their existence, economic enterprises today are increasingly capable of arranging their activities beyond the regulatory scope of any state or groups of states. That gap between operational and regulatory capacity has produced a sustained reaction at the national and international levels. States have sought to extend their power over corporations beyond their borders. International organizations have sought to develop supra national legal governance frameworks. This paper examines one of the more ...


The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford Jan 2011

The Chapter 13 Alternative: A Legislative Solution To Undersecured Home Mortgages, Samuel Bufford

Journal Articles

This article discusses minor changes to the U.S. Bankruptcy Code that would make avoiding foreclosure possible for a homeowner who (a) is presently not able to make the mortgage service payments but (b) could make payments for a mortgage that is reduced to the market value of the property and to a fixed market mortgage rate. This article does not address the political issue of what protections Congress might decide to provide mortgage owners and servicers as a part of such legislation.


All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet Jan 2011

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Journal Articles

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of ...


Hotness Discrimination: Appearance Discrimination As A Mirror For Reflecting On The Body Of Employment Discrimination Law, William R. Corbett Jan 2011

Hotness Discrimination: Appearance Discrimination As A Mirror For Reflecting On The Body Of Employment Discrimination Law, William R. Corbett

Journal Articles

This essay considers the topic of appearance-based employment discrimination. The essay introduces the topic by juxtaposing the “hot” story of the summer, the bank employee who claims that she was fired for “being too hot,” with Professor Deborah Rhode’s recently published book, The Beauty Bias: The Injustice of Appearance in Life and Law. In the essay, I argue that although appearance discrimination is one of the most common forms of discrimination in employment and other areas of life and generally is regarded as at least unfair and perhaps immoral, neither federal nor many state employment discrimination laws will be ...