Law Commons^™

Why Punctuation Matters: Part Three, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Playing To The Audience, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Giving Purpose To Your Life As A Legal Writer, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Constitutional Uncertainty And The Design Of Social Insurance: Reflections On The Obamacare Case, Michael J. Graetz, Jerry L. Mashaw

Faculty Scholarship

In 2010, Barack Obama signed the Patient Protection and Affordable Care Act (the ACA), a complex statute of more than nine hundred pages that fulfilled his goal of extending health-insurance coverage to virtually all Americans – an objective that previous U.S. presidents had sought and failed to achieve for a century. This legislation was hotly contested in the Congress, passing with the support of very few Republicans in the Senate and none in the House.

To broaden access to health insurance, the ACA relies primarily on two devices: (1) an expansion to Medicaid – a joint federal-state health-insurance program for …

The Landmark That Wasn't: A First Amendment Play In Five Acts Case Study And Commentaries, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

What follows is an original case study of our First Amendment law of free expression and how it is created by the Supreme Court. Drawing heavily on heretofore unpublished internal papers from the chambers of Justice William Brennan and other Justices, this Article reveals how the 1964 landmark decision in New York Times Co. v. Sullivan was once in serious jeopardy of being overruled. In the course of this discussion, and in their examination of the evolution of the Court’s decision in Dun & Bradstreet v. Greenmoss Builders (1985), the authors describe and analyze: (1) how and to what extent …

Promoting Language Access In The Legal Academy, Jayesh Rathod, Gillian Dutton, Beth Lyon, Deborah M. Weissman

Scholarly Articles in Law Reviews & Journals

Since the 1960s, the United States government has paid increasing attention to the rights of language minorities and to the need for greater civic and political integration of these groups. With the passage of the Civil Rights Act of 1964, the issuance of Executive Orders, and intervention by the federal judiciary, progress has been made in the realm of language access. State and local courts have likewise taken steps (albeit imperfectly) to provide interpretation and translation assistance to Limited English Proficient persons. Most recently, responding to both lack of services and inconsistent practices, the American Bar Association has set out …

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

International Law Weekend, American Branch Of The International Law Association Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Preface, John Shuford

Journal of Hate Studies

This volume and Volume 12 focus primarily on presenting peerreviewed scholarly articles developed from the selected proceedings f the Third International Conference on Hate Studies. Themed “The Pursuit of Justice: Understanding Hatred, Confronting Intolerance, Eliminating Inequality,” the conference was co-organized and hosted by the Gonzaga Institute for Hate Studies, the Gonzaga School of Law, and the Washington State Task Force on Race and the Criminal Justice System. Presenters and attendees from two dozen countries worldwide came to Spokane, Washington for four days in April 2013 in order to concentrate on how fear and ignorance of the “other” manifest in hatred, …

Is Peacemaking Unpatriotic?: The Function Of Homophobia In The Discursive World, Mari J. Matsuda

Journal of Hate Studies

Self-doubt is not the custom in public debate. In adversarial speech performance, the voice of certainty carries weight. Probing, intersubjective, self-reflective conversation is odd. Yet if speech is a cornerstone of democracy, if developing better ways to live on this planet without destroying it is a prerequisite to our survival, we need to bring all the necessary ideas to the table. The First Amendment can save your life; the wrong idea can kill you. This is why I am concerned about the mechanisms by which speech is suppressed in daily life, and am searching to understand the ways in which …

Islamophobia, Hateful Speech, And The Need To Practice Democratic Virtues, Shannon Dunn

Journal of Hate Studies

This essay examines the relationship between hateful speech and its potential and realized harmful effects socially and politically vulnerable groups, particularly Muslims, in a democratic society. I critically evaluate the assumption that free speech is an absolute value of secularism and the corresponding definition of Muslims as religious “others” in European and American democratic culture. Instead of arguing strictly for the legal regulation of hateful speech, however, I contend that the cultivation of civic virtues—specifically charity and solidarity—may counteract the harmful effects of such speech, and can lend moral justification for the right of free speech.

Evil Black Guns: Hate, Instrumentality, And The Neutrality Of Firearms, Christopher B. Strain

Journal of Hate Studies

In the wake of mass shootings in Aurora, Colorado, where 12 moviegoers were killed and 70 injured; Newtown, Connecticut, where 20 children and 6 adult staff members were killed at Sandy Hook Elementary School; and elsewhere, concerned citizens may question whether guns are neutral actors in the rage killings and rampage murders that have become increasingly familiar in U.S. society. Rather than revisit the well-worn aphorism “guns don’t kill people: people do,” this article considers a provocative counter thesis—that firearms may serve not only as mechanisms of violence in shooting rampages but also as catalysts. Can guns themselves cause violence, …

Cutting Off Our Nose To Spite Our Face: The Real Consequences Of I-9 Audits Considered Through A Case Study Of Brewster, Washington, Gregory C. Cunningham

Journal of Hate Studies

The phrase “cutting off one’s nose to spite the face” has many meanings, most of them violent and, historically, sometimes literal. In our times, its meaning is colloquial and suggests a needless, disproportionate, and self-destructive response to a perceived threat. This strangely violent phrase aptly describes what is happening in small agricultural communities across the country. One such community is Brewster, Washington, where Immi- gration and Customs Enforcement (ICE) carried out I-9 audit of Gebbers Farms, Brewster’s major employer, in December of 2009. After presenting the Gebbers Farms case, I discuss what this example from one small town in North …

Reclaiming Justice And Eliminating Inequality Through Compassionate Migration: The Relentless Struggle Of Migrants Living In The Shadows, William F. Arrocha

Journal of Hate Studies

This article elaborates on the emerging concept of “compassionate migration” as a counter-hegemonic response to the institutions and systems that criminalize unauthorized immigration, including the assistance provided by those who aid such migrants out of a sense of compassion. In the name of human dignity, it is imperative that those who live in the shadows of United States immigration law and its enforcement system sense that social justice is a tangible possibility, and that they indeed may be able to free themselves from the structures that criminalize them and render them vulnerable to various forms of discrimination and other human …

The Price Of Sunshine: Open Dependency Courts And Their Risks To Lgbtq Child Abuse And Neglect Victims, William Wesley Patton

Journal of Hate Studies

The following analysis surveys the vast child and adolescent psychiatric evidence regarding the significant risks that LGBTQ youth suffer from the fear of disclosure and/or the actual publicity of their sexual orientation once child dependency proceedings are presumptively opened to the media and the public in general.

The Society Of Jesus And The Eradication Of Hate, Michael W. Maher

Journal of Hate Studies

The reality of vendettas, and violent responses against real or supposed breaches of personal or familial honor, marked the landscape of Europe during the early modern period, from nautical expansion, which began in 1450, through the French Revolution in the 1790s. In particular, in cultures identified as Mediterranean, as described as a discrete cultural archetype by historian Fernand Braudel (1972), specific societies held codes of honor and “face,” the term used to designate a personal appearance that reflected a status of inner dignity and exterior relations. Subsequently, violent out- breaks resulted from attempts to return honor, good face, and the …

Film Review: S. Leo Chiang’S Mr. Cao Goes To Washington, Jessica Maucione

Journal of Hate Studies

S. Leo Chiang’s documentary-biopic, Mr. Cao Goes to Washington, opens in New Orleans in 2010 as Joseph Cao closes out his two years in the U.S. House of Representatives and hopes desperately but doubtfully for re-election—a situation Cao likens to “waiting to see a dentist before you get your teeth pulled out.” Part character study and part exposé of the current state of partisan politics in Congress, the film tells the story of Cao’s 2008 victory—the biggest upset of the 2008 Congressional elections—and his two years of service. During his term, Congressman Cao goes from enthu- siastic idealist to a …

Book Review: Joseph G. Bock’S The Technology Of Nonviolence: Social Media And Violence Prevention, Tyler Branson

Journal of Hate Studies

In the wake of the 2009-2012 Arab Spring protests—the first large- scale wave of Arab demonstrations in the Internet age—many pondered the significance of the use of Information and Communication Technology (ICT) in the movement. While the actual impact of technology in the Arab Spring is contested (Morozov, 2012), we can nevertheless tentatively note that the examples of technology being used throughout the Arab Spring are at the very least compelling for the field of peacebuilding, including vio- lence prevention. In this unique cultural and technological contemporary moment, scholars who study violence should be asking themselves: in socially and politically …

Incubator Cities: Tomorrow's Economy, Yesterday's Start-Ups, Abraham Cable

Faculty Scholarship

Venture development funds (“VDFs”) are products of state and local government law that use public funds to invest in local start-ups, in the hope that these companies will then attract venture capital investment. Existing analysis by legal scholars largely assumes that establishing a private venture capital market is essential to encouraging entrepreneurship. This article challenges that assumption. It argues that VDFs and other policies focused on encouraging venture capital are outmoded and inconsistent with the ultimate economic development goals of state and local governments.

In many industries, entrepreneurs can now get by with less capital because the cost of developing …

The End Of Men?: Gender Flux In The Face Of Precarious Masculinity, Joan C. Williams

Faculty Scholarship

No abstract provided.

Paved With Good Intentions: Sentencing Alternatives From Neuroscience And The Policy Of Problem-Solving Courts, Emily R. Murphy

Faculty Scholarship

No abstract provided.

Remedies Reveals The Seamless Web, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Remedies is a course that consolidates many of the concepts learned in the first year of law school and some from the second. A typical Remedies course will reintroduce principles from constitutional law, compare and contrast torts and contracts, and apply criminal concepts in civil contexts. Teaching Remedies can be both challenging and rewarding. Challenging because it crosses a wide variety of subject areas. Rewarding because it weaves a variety of subject areas into the "seamless web" of the law, eliciting from students an occasional "aha." Early classes in law school tend to separate courses into discrete subject areas, …

The Pre-Session Recess, Peter L. Strauss

Faculty Scholarship

In the brief remarks following, I do not address the Burkean argument that practice has established the permissibility of recess appointments during the week-or-more adjournments of Congress that modern transportation modalities permit. We can perhaps let President Eisenhower’s recess appointments of Chief Justice Warren, Justice Brennan, and Justice Stewart stand witness to that understanding. Rather, I want to suggest flaws in the originalist analysis used by the Canning court and in the Senate’s ruse of meeting every three days over the winter period of 2011-12 that many take to place the January 4, 2012 recess appointments President Obama made to …

Law And Ethics For Autonomous Weapon Systems: Why A Ban Won't Work And How The Laws Of War Can, Kenneth Anderson, Matthew C. Waxman

Faculty Scholarship

Public debate is heating up over the future development of autonomous weapon systems. Some concerned critics portray that future, often invoking science-fiction imagery, as a plain choice between a world in which those systems are banned outright and a world of legal void and ethical collapse on the battlefield. Yet an outright ban on autonomous weapon systems, even if it could be made effective, trades whatever risks autonomous weapon systems might pose in war for the real, if less visible, risk of failing to develop forms of automation that might make the use of force more precise and less harmful …

Critical Legal Histories In Eu Law, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: A workshop aiming to narrate the history of EU Law took place in November 2012 at a critical time for the very existence of the Union and its role as a global actor. On the one hand, the current financial crisis is weakening some of the foundations and values that, in the last sixty years, EU lawyers, judges, and scholars have relied on. On the other hand, the U.S. government is pursuing a Transatlantic Free Trade and Investment Agreement with the EU, aimed at creating a Western bloc to resist the rising Chinese power. The fascination of current EU …

Fee Effects, Kathryn Judge

Faculty Scholarship

Intermediaries are a pervasive feature of modern economies. This article draws attention to an under-theorized cost arising from the use of specialized intermediaries – a systematic shift in the mix of transactions consummated. The interests of intermediaries are imperfectly aligned with the parties to a transaction. Intermediaries seek to maximize their fees, a transaction cost from the perspective of the parties. Numerous factors, including the requirement that a transaction create value in excess of the associated fees to proceed and an intermediary’s interest in maintaining a good reputation, constrain an intermediary’s tendency to use its influence in a self-serving manner. …

Perspectives On Crimes Of Sexual Violence In International Law, Susana Sacouto

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: Sexual and gender-based violence (SGBV) during conflict and periods of repression has been a problem in every region of the globe.' Historically, these crimes were rarely prosecuted, particularly when government leaders were responsible for tolerating, encouraging, or orchestrating these crimes. However, the last two decades have seen an incredible transformation in the treatment of SGBV under international law. Great strides have been made in the investigation and prosecution of sexual and gender-based crimes, particular by the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda, and the Special Court for Sierra Leone This essay examines the way …

The Republic Of Choosing: A Behaviorist Goes To Washington, William H. Simon

Faculty Scholarship

Cass Sunstein’s book Simpler recounts the author’s efforts during his tenure in the first Obama administration to apply the policy tools he helped derive from behavioral economics. In this review, I suggest that, while Sunstein reports some notable achievements, he exaggerates the utility of the behaviorist toolkit. Behaviorist-inspired interventions are marginal to most of the largest policy problems, and they played little role in the Obama administration’s most important initiatives. The book also reflects a misguided political strategy.

Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

We reported in a recent paper that during the 2008-09 financial crisis, for the average firm, idiosyncratic risk, as measured by variance, increased by five-fold. This finding is important for securities litigation because idiosyncratic risk plays a central role in event study methodology. Event studies are commonly used in securities litigation to determine materiality and loss causation. Many bits of news affect an issuer’s share price at the time of a corporate disclosure that is the subject of litigation. Because of this, even if an issuer’s market–adjusted price changes at the time of the disclosure, one cannot determine with certainty …

Courts Rulings Accept Climate Science, Michael Gerrard

Faculty Scholarship

Viewers of certain television networks, readers of certain newspapers, and anyone visiting Capitol Hill would come away with the impression that there are serious questions about whether climate change is occurring and, if it is, whether it is mostly caused by human activity. One place where there are few such questions is the courts. In fact it appears that (with one lone exception in a dissent) not a single U.S. judge has expressed any skepticism, in a written opinion or dissent, about the science underlying the concern over climate change. To the contrary, the courts have uniformly upheld this science, …