Law Commons^™

Hits, Misses, And False Alarms In Blind And Sequential Administration Of Lineups, Roger C. Park

Faculty Scholarship

No abstract provided.

Some Preliminary Observations On The Proposed Eli/Unidroit Civil Procedure Project In The Light Of The Experience Of The Ali/Unidroit Project, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Rule Of Legal Rhetoric, Geoffrey C. Hazard Jr.

Faculty Scholarship

No abstract provided.

Morris L. Cohen: A Bibliography Of His Works, Camilla Tubbs

Faculty Scholarship

No abstract provided.

Trafficking In Human Beings: Partial Compliance Theory, Enforcement Failure, And Obligations To Victims, Leslie P. Francis, John G. Francis

Utah Law Faculty Scholarship

Trafficking—the coerced exploitation of people—is a major global concern. Primary forms of trafficking include sex trafficking, labor trafficking, trafficking in organs, trafficking in reproduction, and trafficking in child soldiers. This paper explores whether “host” countries — destinations for trafficking — have special obligations to provide trafficked persons with support needed to escape trafficking and to deal with the damage it has caused. This support includes asylum, healthcare, food, and shelter, at least for an initial period of time.

To Be Male: Homophobia, Sexism, And The Production Of “Masculine” Boys, Clifford Rosky

Utah Law Faculty Scholarship

This chapter is about the relationship between homophobia and sexism in family law. By conducting an empirical analysis of custody and visitation cases, it shows that stereotypes about the children of lesbian and gay parents are both sexist and homophobic. In some cases, the relationship between homophobia and sexism becomes especially obvious, when stereotypes explicitly conflate the sexual orientation, gender identity, and gender roles of children and parents. By looking more closely, however, we can find more subtle evidence of this relationship in a much wider range of cases, wherever stereotypes of the children of lesbian and gay parents appear. …

The Spirit Of The Buffalo: The Past And Future Of An American Plains Icon, William Holland

Animal Law Review

Though bison are iconically associated with the United States, their historical fortunes have often been opposite those of the U.S. As the nation expanded westward, government policy, de­mand for bison products, and changing land use perilously re­duced bison numbers. Efforts to restore bison have been complicated by overlapping legal concerns: state, federal, tribal, and constitutional. This Note examines the legal context sur­rounding bison restoration, focusing particularly on the critical herd connected with Yellowstone National Park. Former mem­bers of the Yellowstone herd, in turn, are the subjects of the Montana Supreme Court's 2013 ruling in Citizens for Balanced Use v. Maurier, …

Backlash And Marriage Equality, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Improving Hedge Fund Governance, Houman B. Shadab

Articles & Chapters

This Article provides the first comprehensive scholarly analysis of the internal governance of hedge funds. Hedge fund governance consists of the funds’ underlying legal regime and the practices they adopt in response to lacking permanent capital and to reduce agency costs. Hedge fund governance is important because better governance can improve investor returns and help managers raise and retain capital. I argue that hedge fund governance is best understood as a type of responsive managerialism. It is a type of managerialism because applicable law and contracting structures give managers uniquely wide-ranging control over the fund and its operations. Hedge fund …

Revolution Imagined: Cause Advocacy, Consumer Rights, And The Evolving Role Of Ngos In Thailand, Frank W. Munger

Articles & Chapters

This article describes the founding and evolution of a “Thai-style” NGO dedicated to consumer protection. Through a description of the NGO and the career of its founder, the article brings to light features of the evolution of NGO based advocacy in Thailand from the student uprising in 1973 to the present. The legacy of the 1973 October Generation of activists continues to influence development of NGOs but new emphasis on rights has emerged since the era of constitutional reform in the 1990s. Many NGOs now make use of litigation to attempt to achieve social change, but litigation, like other long-standing …

'Friend To The Martyr, A Friend To The Woman Of Shame': Thinking About The Law, Shame And Humiliation, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper considers the intersection between law, humiliation and shame, and how the law has the capacity to allow for, to encourage, or (in some cases) to remediate humiliation, or humiliating or shaming behavior. The need for new attention to be paid to this question has increased exponentially as we begin to also take more seriously international human rights mandates, especially – although certainly not exclusively – in the context of the recently-ratified United Nations Convention on the Rights of Persons with Disabilities, a Convention that calls for “respect for inherent dignity,” and characterizes "discrimination against any person on the …

Bitcoin Financial Regulation: Securities, Derivatives, Prediction Markets, And Gambling, Jerry Brito, Houman B. Shadab, Andrea Castillo

Articles & Chapters

The next major wave of Bitcoin regulation will likely be aimed at financial instruments, including securities and derivatives, as well as prediction markets and even gambling. While there are many easily regulated intermediaries when it comes to traditional securities and derivatives, emerging bitcoin denominated instruments rely much less on traditional intermediaries such as banks and securities exchanges. Additionally, the block chain technology that Bitcoin introduced for the first time makes completely decentralized markets and exchanges possible, thus eliminating the need for intermediaries in complex financial transactions. In this Article we survey the type of financial instruments and transactions that will …

Performance-Sensitive Debt: From Asset-Based Loans To Startup Financing, Houman B. Shadab

Articles & Chapters

This Article develops a unique theory of performance-sensitive debt and argues that certain revenue-stage startups may be missing out on an important source of capital from asset-based loans. Debt contracts are performance sensitive to the extent any of the borrower’s obligations adjust in response to the performance of the borrower. The three main types of performance sensitivity I identify are (1) a loan’s interest rate adjusting based on the performance of the borrower; (2) the amount of available credit adjusting based on the value of collateral; and (3) renegotiation following breach of a loan covenant. Conceptualizing performance sensitivity as a …

Shareholder Cultivation And New Governance, Tamara Belinfanti

Articles & Chapters

Several formal proposals have been made to address shareholder short-termism and speculative behavior. These include the imposition of a financial transaction tax, changes to the U.S. capital gains tax rate, and the adoption of an Investor Stewardship Code in the United Kingdom. This Article reverses the focus from top-down solutions and instead, focuses on bottom-up grass root solutions that corporations can employ, and in some cases do already employ to achieve substantially the same effect of rewarding certain types of shareholder behavior while discouraging others — a process I refer to as "Shareholder Cultivation." While many of the techniques and …

Empathy And Reasoning In Context: Thinking About Anti-Gay Bullying, Kris Franklin

Articles & Chapters

“Empathy” has negative connotations for many legal theorists, who may conceive of it as subjective, lacking in intellectual rigor, and emphasizing sensitivity over reason. Even those legal scholars who have embraced the importance of empathy in legal work have emphasized its affective dimensions: pointing out that empathy is central to human relations and motivations, and is therefore a crucial lawyering skill. This paper builds on social science literature that identifies both cognitive and affective dimensions to empathy, and recasts empathy as in part a central component to higher-order thinking in law. It draws examples from empathetic reasoning in foundational cases …

All His Sexless Patients: Persons With Mental Disabilities And The Competence To Have Sex, Michael L. Perlin, Alison Lynch

Articles & Chapters

With the growth in the field of mental disability law over the past 50 years, very few topics involving persons with mental illness remain taboo or off limits to scholars and judges who face these issues daily. However, discussions of the question of whether persons with mental disabilities have a right to voluntary sexual interaction often touches a raw nerve in conversations about mental disability law, even with those who are practicing in the field, and the discomfort people feel in examining this topic is exacerbated when discussing individuals who are institutionalized.

Although this often appears to be a difficult …

Exclusion, Punishment, Racism, And Our Schools: A Critical Race Theory Perspective On School Discipline, David Simson

Articles & Chapters

Punitive school discipline procedures have increasingly taken hold in America’s schools. While they are detrimental to the wellbeing and to the academic success of all students, they have proven to disproportionately punish minority students, especially African American youth. Such policies feed into wider social issues that, once more, disproportionately affect minority communities: the school-to-prison pipeline, high school dropout rates, the push-out phenomenon, and the criminalization of schools.

Before such pervasive racial inequality can be addressed effectively, the social and the psychological mechanisms that create racial inequality in the first place must be examined. This Comment offers insights from the field …

Converting Benchslaps To Backslaps: Instilling Professional Accountability In New Legal Writers By Teaching And Reinforcing Context, Heidi K. Brown

Articles & Chapters

A search in published and unpublished court decisions for derivations of phrases like "poorly written brief" or "failure to follow court rules" yields an alarming multitude of case opinions in which judges admonish lawyers of all levels of experience for shoddy briefs or for flouting non-negotiable substantive and procedural rules. Legal bloggers have affectionately dubbed these public reprimands "benchslaps."

Section I of this article provides a contextual background that professors and practitioners can share with rookie legal writers, using judicial opinions to demonstrate the eight most-common ways that attorney work product falls short of judges' expectations and, more importantly, how …

The Geography Of Marriage, William P. Lapiana

Articles & Chapters

No abstract provided.

Startup Lawyers At The Outskirts, Abraham Cable

Faculty Scholarship

Startup lawyering is a distinctive style of law practice first observed in Silicon Valley decades ago. Like other business lawyers, startup lawyers form entities, protect intellectual property rights, and document financing transactions for clients starting new businesses. But startup lawyers also encourage entrepreneurship more broadly by promoting Silicon Valley’s practices and conventions, such as standard contract terms that streamline negotiations with venture capital investors.

Today, startup lawyers practice not only in established entrepreneurial centers such as Silicon Valley or Boston, but also in the shadow of economic development efforts to promote entrepreneurship. In this new context, startup lawyering is susceptible …

Mad Money: Rethinking Private Placements, Abraham Cable

Faculty Scholarship

Currently, regulations try to limit unregistered sales of stock (private placements) to the “smart money,” either by informing investors through disclosure or excluding unsophisticated investors from the market. In theory, these smart-money approaches promote the dual goals of capital formation and investor protection. But in practice, regulators have struggled to craft effective disclosure or screening mechanisms. In light of these failures, this Article advocates for a new approach—investment caps that allow every investor a limited amount of “mad money” to invest in risky private placements. This mad-money approach can protect investors by encouraging basic diversification and liquidity, while advancing capital …

The Tower Of Babel: Human Rights And The Paradox Of Language, Moria Paz

Faculty Scholarship

Key human rights instruments and leading scholars argue that minority language rights should be treated as human rights, both because language is constitutive of an individual’s cultural identity and because linguistic pluralism increases diversity. These treaties and academics assign the value of linguistic pluralism in diversity. But, as this article demonstrates, major human rights courts and quasi-judicial institutions are not, in fact, prepared to force states to swallow the dramatic costs entailed by a true diversity-protecting regime. Outside narrow exceptions or a path dependent nationalpolitical compromise, these enforcement bodies continuously allow the state actively to incentivize assimilation into the dominant …

Addressing Racial And Hate-Based Discrimination As Experienced By African Immigrants And Refugees In Waterloo Region, Canada, Alicja K. Muszynski, Sadia Gassim

Journal of Hate Studies

Since the early 1990s, the demographics of Waterloo Region (Ontario, Canada) have changed dramatically. Early settlement patterns reflected “chain migrations” of Mennonite farm families moving to the region from Pennsylvania. Subsequent establishment of three urban clusters with German and British roots resulted in a predominantly White regional and Canadian population. A relaxation of Canadian immigration legislation, together with political unrest in many African countries, led to African immigrants and refugees choosing to settle in the Tri-Cities of Waterloo, Kitchener, and Cambridge. Canada has an international reputation as a welcoming country that celebrates diversity. However, the public view that multiculturalism is …

Baptizing Nazism: An Analysis Of The Religious Roots Of American Neo-Nazism, Alon Milwicki

Journal of Hate Studies

The years following the Second World War saw American religious leaders making fervent attempts to bridge the denominational gap and encourage peaceful cooperation among America’s three leading faiths: Protestantism, Catholicism, and Judaism. While the religious revival movement was largely successful, it was not as complete as historians have previously suggested. Scholars of the postwar religious awakening have neglected the darker, conflictual, and even violent strains of religious revival which developed alongside the optimistic, cooperative, and harmonious efforts that have taken center stage. Simply put, the development and propagation of Christian Identity, as propelled by Dr. Wesley Albert Swift, provided a …

Misogyny And Marginalization In Criminal Justice Systems: Women’S Experiences In Two Post-Conflict Societies, Erin Tunney

Journal of Hate Studies

In Northern Ireland and South Africa, two countries that are attempting to rebuild their societies after extended periods of armed conflict, women who seek redress from gender-based violence through the criminal justice system encounter barriers to justice. Such barriers emerge from misogynistic attitudes toward women that prevent police from appropriately responding to reports of sexual and domestic violence, diminish the capacity of police and court officials to empathize with rather than blame victims, and impede judges from sentencing convicted perpetrators in proportion to their crimes. Despite the striking differences between these two countries, in each society women face similar patterns …

Discrimination Based On “Sameness,” Not “Difference”: Re-Defining The Limits Of Equality Through An Israeli Case For Discrimination, Yifat Bitton

Journal of Hate Studies

T

his article points to a general weakness in liberal rights discourse, and specifically in the antidiscrimination stratagem. It argues that this stratagem is of limited effectiveness due to its perception of “difference” as constituting the heart of the notion of discrimination. Reliance on “difference” in formatting discrimination fails to acknowledge discrimination held against a group within settings characterized by “sameness,” thereby rendering the antidiscrimination principle too narrow to protect some discriminated-against groups. This point is exemplified by analyzing the case of the de facto discrimination against Mizrahi Jews in Israel, or Jews of Arab/Muslim descent, who are conceptualized under …

What Communities Want: Recognizing The Needs Of Hate Crime Targets, Barbara Perry

Journal of Hate Studies

The theme of the Third International Conference on Hate Studies, “The Pursuit of Justice: Understanding Hatred, Confronting Intolerance, Eliminating Inequality,” took me immediately to the subject matter of this article: Who is meant to be served by the subthemes of this conference, if not the targets or potential targets of hate crime? An equally important set of questions would ask: What justice looks like from the perspectives of those individuals and groups? What do hate crime victims want, and what do they need? And, what do vulnerable communities want and need?

From Thrill To Defensive Hate Crimes: The Impact Of September 11, 2001, Jack Levin

Journal of Hate Studies

For a period of time following the original usage of the term “hate crimes” in the late 1980s, there existed a gap in the literature of criminology and social science generally regarding important factors underlying the motivation of hate crime offenders. Researchers recognized that certain criminal behavior had its basis in hostility toward people who were different in socially significant ways from the perpetrator. Yet little was systematically articulated to connect various hate crimes with relevant sociological and social psychological explanatory variables. As a result, those practitioners who deal with hate crimes on a daily basis—for example, prosecu- tors and …

Fighting For The Right To Be White: A Case Study In White Racial Identity, Dianne Dentice, David Bugg

Journal of Hate Studies

Membership in extremist groups, such as White Revolution and the Ku Klux Klan, embody specific behavioral attributes. These attributes include practicing endogamy and exhibiting racial pride. There is general consensus among members as to what it means to be part of a socially constructed extremist group. There are also strong motivational factors that support maintaining in-group solidarity and dominant status. By adhering to the rules dictated by group membership, both the self and the group are uplifted based on white racial identity. The process of self-categorization for white racial activists accentuates their own physical similarities along with perceived negative physical …

Uniting The Right: Anti-Immigration, Organizing, And The Legitimation Of Extreme Racist Organizations, Stanislav Vysotsky

Journal of Hate Studies

This article analyzes the use of anti-immigration rhetoric and organizing efforts by extreme rightwing racist groups to present themselves as political actors. The authors analyze this process through a case study of the Keystone State Skinheads/Keystone United, a Pennsylvania-based hate group. The authors identify the manner in which this countercultural group uses anti-immigrant rhetoric to frame itself as a political organization. White racist organizations utilize issues such as the opposition to immigration to minimize stigma associated with their beliefs. This strategy has allowed them to participate at the forefront of anti-immigration organizing over the course of the last decade. By …