Law Commons^™

Promoting Dignity And Preventing Shame And Humiliation By Improving The Quality And Education Of Attorneys In Sexually Violent Predator (Svp) Civil Commitment Cases, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

In Strickland vs. Washington, the Supreme Court acknowledged that the role of counsel is critical to the ability of the adversarial system to best insure that just results are produced. Yet, the Court did not elaborately define the Sixth Amendment constitutional right to counsel and lower courts, have set the bar shockingly low.

In this article we examine the quality of attorneys who litigate Sexually Violent Predator Act (SVPA) cases, and conclude that a failure to apply a higher standard of adequate counsel – beyond what was set out in Strickland – results in humiliation, shame and lack of dignity …

Fortuitously Present At The Creation, Arthur S. Leonard

Articles & Chapters

No abstract provided.

Land Use Regulation As A Framework To Create Public Space For Speech And Expression In The Evolving And Reconceptualized Shopping Mall Of The Twenty-First Century, Gerald Korngold

Articles & Chapters

Much has been written lately about the “death” of malls and large-scale shopping centers. The data show, however, that the great numbers of these malls and centers are not going extinct but rather are undergoing an evolution from the fortress-type, retail-focused mall of the 1970s to a twenty-first century model better attuned to current tastes of citizens and consumers. There are indeed significant challenges, including purchasing trends, troubled brick and mortar retail, increased online sales, and living choices. But despite some shock-value headlines, the data show that the number of malls and large centers continue to increase. Moreover, owners are …

Statutory Junk, David Schoenbrod

Articles & Chapters

Much as “space junk”—the debris that past space missions have left in earth’s orbit—can disable a current space mission, obsolete statutory commands that Congress has left on the books can keep an administrative agency from accomplishing its current mission. This statutory junk has proliferated in recent decades because Congress has shifted from giving agencies open-ended authority to commanding them in exacting detail, but often fails to revise these commands after changing circumstances have made the old commands perverse. Congress fails because, contrary to the suppositions of some law professors, this delegation allows legislators to shift blame to the agency for …

New York City's "Universal Access" Legislation: One Giant Leap For The Civil Right To Counsel, Andrew Scherer

Articles & Chapters

No abstract provided.

Patent Protection For Microbial Technologies, Jacob S. Sherkow

Articles & Chapters

Microbial technologies often serve as the basis of fundamental research tools in molecular biology. These present a variety of ethical, legal and social issues concerning their patenting. This commentary presents several case studies of these issues across three major microbiological tools: CRISPR, viral vectors and antimicrobial resistance drugs. It concludes that the development of these technologies—both scienti cally and commercially—depend, in part, on the patent regime available for each, and researchers’ willingness to enforce those patents against others.

The Insanity Defense: Nine Myths That Will Not Go Away, Michael L. Perlin

Articles & Chapters

Writing about the insanity defense over a quarter of a century ago, the author of this chapter stated: "Until we 'unpack' the empirical and social myths that underlie our misconceptions about the insane and the insanitydefense and hold us in a paralytic thrall, we cannot begin to move forward." Some five years later, he began a full-length book on the insanity defense by alleging, "Our insanity defense jurisprudence is incoherent." Five years after that, he concluded that "we as a society remain fixated on the insanity defense as a symbol of all that is wrong with the criminal justice system …

Expanded Reporting Obligations For Financial Institutions In The New World Of Tax Transparency, Alan Appel

Articles & Chapters

This article looks at FinCEN's current anti-tax avoidance measures, including the new account opening requirements, along with the requirements relating to cash purchases of high-end real estate with which title insurance companies and U.S. lenders must comply.

Ancillary Agreements In Real Estate Transactions, Andrew R. Berman, Barry Hines, Everett Ward

Articles & Chapters

No abstract provided.

I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.

In this paper, I …

Paying For Privacy And The Personal Data Economy, Stacy-Ann Elvy

Articles & Chapters

Growing demands for privacy and increases in the quantity and variety of consumer data have engendered various business offerings to allow companies, and in some instances consumers, to capitalize on these developments. One such example is the emerging “personal data economy” (PDE) in which companies, such as Datacoup, purchase data directly from individuals. At the opposite end of the spectrum, the “pay-for-privacy” (PFP) model requires consumers to pay an additional fee to prevent their data from being collected and mined for advertising purposes. This Article conducts a simultaneous in-depth exploration of the impact of burgeoning PDE and PFP models. It …

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

Bridges Ii: The Law-Stem Alliance & Next Generation Innovation, Jacob S. Sherkow

Articles & Chapters

No abstract provided.

Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman

Articles & Chapters

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

God Said To Abraham/Kill Me A Son: Why The Insanity Defense And The Incompetency Status Are Compatible With And Required By The Convention On The Rights Of Persons With Disabilities And Basic Principles Of Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Interpretations of the General Comments to the Convention on the Rights of Persons with Disabilities (CRPD) — that command the abolition of the insanity defense and the incompetency status — make no theoretical or conceptual sense, disregard the history of how society has treated persons with serious mental disabilities who are charged with crime, and will lead to predictable torture of this population in prison, at the hands of both prison guards and other prisoners. Such interpretation also flies in the face of every precept of therapeutic jurisprudence. Support of this position exhibits a startling lack of understanding of the …

Triggering Tinker: Student Speech In The Age Of Cyberharassment, Ari Ezra Waldman

Articles & Chapters

This essay challenges the common assumption that public schools have limited authority to regulate cyberbullying that originates and takes place off campus. That argument presumes a level of myopia, clarity, and literalism in the law that simply does not exist. First, even assuming it existed, a geographic requirement is an outdated creature of a preinternet age. Cyberbullying poses unique challenges to young people, educators, and schools not contemplated when the Court decided its student speech cases. If it existed then, it should adapt to today’s realities. Second, I argue that a campus presence requirement for regulating any kind of off-campus …

"Toiling In The Danger And In The Morals Of Despair": Risk, Security, Danger, The Constitution, And The Clinician's Dilemma, Michael L. Perlin, Alison Lynch

Articles & Chapters

Persons institutionalized in psychiatric hospitals and “state schools” for those with intellectual disabilities have always been hidden from view. Such facilities were often constructed far from major urban centers, availability of transportation to such institutions was often limited, and those who were locked up were, to the public, faceless and often seen as less than human.

Although there has been regular litigation in the area of psychiatric (and intellectual disability) institutional rights for 40 years, much of this case law entirely ignores forensic patients – mostly those awaiting incompetency-to-stand trial determinations, those found permanently incompetent to stand trial, those acquitted …

Dispute Resolution And Spiritual Congruity, F. Peter Philips

Articles & Chapters

A survey of various conflict resolution approaches suggests a correlation between spiritual traditions and conflict resolution strategies. Moreover, Western societies' approaches to dispute resolution appear incongruent with stated spiritual and cultural values.

Editors' Introduction, Penelope Andrews

Articles & Chapters

No abstract provided.

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Articles & Chapters

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust.

Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows …

Rethinking Prosecutors' Conflicts Of Interest, Bruce Green, Rebecca Roiphe

Articles & Chapters

Conflicts of interest are endemic to almost all prosecutors’ discretionary decisions, and are the source of many instances of misconduct and abuse. Prosecutors’ decisions are riddled with complex motivations, beliefs, and interests that potentially divert them from their duty to do justice. Understood as any personal belief or interest that could interfere with the prosecutors’ ability to serve the public interest, conflicts of interest threaten to undermine the efficacy and legitimacy of the criminal justice system. The traditional regulatory system barely addresses the problem and could never effectively do so. Drawing on experimentalism, which mandates that local actors design and …

Teaching Legal Technology, Camille Broussard, Kathleen Brown, Daniel Cordova, Sarah Mauldin

Articles & Chapters

No abstract provided.

Hybrid Transactions And The Internet Of Things: Goods, Services, Or Software?, Stacy-Ann Elvy

Articles & Chapters

The Internet of Things (IOT) has been described by the American Bar Association as "one of the fastest emerging," potentially most "transformative and disruptive technological developments" in recent years. Thesecurity risks posed by the IOT are immense and Article 2 of the UCC should play a central role in determinations regarding liability for vulnerable IOT products. However, the lack of explicit clarity in the UCC on how to evaluate Article 2's applicability to hybrid transactions that involve the provision of goods, services, and software has led to conflicting case law on this issue, which contradicts the UCC's stated goals of …

Patent Protection For Crispr: An Elsi Review, Jacob S. Sherkow

Articles & Chapters

The revolutionary gene-editing technology, CRISPR, has raised numerous ethical, legal, and social concerns over its use. The technology is also subject to an increasing patent thicket that raises similar issues concerning patent licensing and research development. This essay reviews several of these challenges that have come to the fore since CRISPR’s development in 2012. In particular, the lucre and complications that have followed the CRISPR patent dispute may affect scientific collaboration among academic research institutions. Relatedly, universities’ adoption of “surrogate licensors” may also hinder downstream research. At the same time, research scientists and their institutions have also used CRISPR patents …

Patent Law's Reproducibility Paradox, Jacob S. Sherkow

Articles & Chapters

Clinical research faces a reproducibility crisis. Many recent clinical and preclinical studies appear to be irreproducible; their results cannot be verified by outside researchers. This is problematic for not only scientific reasons but legal ones: patents grounded in irreproducible research appear to fail their constitutional bargain of property rights in exchange for working disclosures of inventions. The culprit is likely patent law’s doctrine of enablement. Although the doctrine requires patents to enable others to make and use their claimed inventions, current difficulties in applying the doctrine mitigate or even actively dissuade reproducible data in patents. This Article assesses the difficulties …

Immigration Adjudication: The Missing Rule Of Law, Lenni B. Benson

Articles & Chapters

No abstract provided.

Tolling For The Aching Ones Whose Wounds Cannot Be Nursed’: The Marginalization Of Racial Minorities And Women In Institutional Mental Disability Law, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

Individuals with mental disabilities have traditionally been and continue to be subjected to rights violations and pervasive discrimination because of their mental disabilities. Seen as “the other,” individuals who are racial minorities and/or are women are marginalized to an even greater extent than other persons with mental disabilities in matters related to civil commitment and institutional treatment (especially involving theright to refuse medication).

It is impossible to examine these questions critically without coming to grips with the ways that expert testimony — testimony that is essential and necessary in all these cases — is infected with bias that leads to …

Introduction, Brandt Goldstein

Articles & Chapters

No abstract provided.

Transsexual, Transgender, Trans: Reading Judicial Nomenclature In Title Vii Cases, Kris Franklin, Sarah Chinn

Articles & Chapters

No abstract provided.

Open To Justice: The Importance Of Student Selection Decision In Law School Clinics, Deborah N. Archer

Articles & Chapters

No abstract provided.