Law Commons^™

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

Do The Right Thing:, Julia Mclaughlin

Julia Halloran McLaughlin

This Article focuses on one isolated group of undocumented and unaccompanied children in relation to one provision of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”). Section 235 sets forth the procedural and substantive rights of all unaccompanied and undocumented children (“unaccompanied children”) who cross a U.S. border without proper papers and without a parent or guardian. Although section 235 of TVPRA is but one tiny sliver of an expansive body of immigration law in the United States, it raises legal questions related to the constitutional rights of inadmissible children. This Article explores the legal rights of …

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones

Brian Christopher Jones

Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a "Constitution". Difficulties arise because over …

Regulation And Regulatory Processes, Cary Coglianese, Robert Kagan

Robert Kagan

Regulation of business activity is nearly as old as law itself. In the last century, though, the use of regulation by modern governments has grown markedly in both volume and significance, to the point where nearly every facet of today’s economy is subject to some form of regulation. When successful, regulation can deliver important benefits to society; however, regulation can also impose undue costs on the economy and, when designed or implemented poorly, fail to meet public needs at all. Given the importance of sound regulation to society, its study by scholars of law and social science is also of …

Al Bai Bithaman Ajil- The Grant Of Ibra In Customer Default Situations, Jonathan Chen Yeen Muk

Jonathan Muk

The Al Bai Bithaman Ajil (“BBA”) facility is an Islamic financing facility based on underlying purchase and sales agreements. When bank customers default on their instalment obligations under the facility, the grant of ibra (rebate) in Al Bai Bithaman Ajil (“BBA”) facilities is a contentious issue. This article provides an analysis of the Malaysian judgments with respect to ibra and BBA facilities. It seeks to identify the best way for courts to approach ibra in the absence of legislation or executive direction. It is suggested that while implied terms, unconscionability and even recharacterisation of the BBA facilities have been used …

Take Two Tablets And Do Not Call For Judicial Review Until Our Heads Clear: The Supreme Court Prepares To Demolish The 'Wall Of Separation' Between Church And State, Terence Lau, William Wines

Terence Lau

In this article, we examine the issues that bring First Amendment jurisprudence to the grant of certiorari in Pleasant Grove v. Summum, scheduled for oral argument in the Supreme Court of the United States in November. We examine the historical basis for America’s religious heritage, the historical judicial treatment of the religious clauses, and the erosion of the wall of separation between church and state. We examine the Ten Commandments, finding inherent discrimination present in modern-day attempts to advance a particular version of the Ten Commandments as secular. By drawing upon Rousseau’s civic religion, we suggest alternative routes for the …

The Conservatives’ 2015 Fiscal Charter: A Wanting Desire For Constitutional Change, Brian Christopher Jones, Paolo Sandro

Brian Christopher Jones

Dangerous Dicta, David Gray

David C. Gray

In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is …

Learning From And About The Numbers, Carole Silver, Louis Rocconi

Carole Silver

In this article, we enter the debate about the value of legal education, taking aim at the issue of the ways in which law schools prepare students for practice. But rather than focusing on skills training, our concern is with the approach of law schools to preparing students to understanding the context of the legal issues they will encounter, and specifically on their preparation for working with numbers, whether with regard to business, finance or information presented in statistical form generally.

Our contribution to this debate is to emphasize the importance of data in analyzing the value of law school, …

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …

How Far Out Of Step Is The Supreme Court Of The United States?, Brian Christopher Jones

Brian Christopher Jones

A Tale Of Three “Professions”: Search Engine Optimization, Lawyering & Law Teaching, Ray Campbell

Ray W Campbell

The question has been posed: is legal practice today a profession? This leads, naturally enough, to another question: should society treat it as one? Using the concept of ‘profession’ in different ways, some argue that one thing modern legal practice needs is a good dose of 'professionalism;' others argue that, whatever once might have been true, treating law practice as a ‘profession’ is a rum game best abandoned.

These questions matter. Law enjoys special regulatory privileges and market protections that make little sense if law has become just another form of business – a specialized form of consulting, perhaps. At …

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

Gender Biases In Cyberspace: A Two-Stage Model For A Feminist Way Forward, Shlomit Yanisky-Ravid, Amy Mittelman

Shlomit Yanisky-Ravid Professor of Law

Increasingly, there has been a focus on creating democratic standards and procedures in order to best facilitate open exchange of information and communication online—a goal that fits neatly within the feminist aim to democratize content creation and community. Collaborative websites, such as blogs, social networks, and, as focused on in this Article, Wikipedia, represent both a Cyberspace community entirely outside the strictures of the traditional (intellectual) proprietary paradigm and one that professes to truly embody the philosophy of a completely open, free, and democratic resource for all. In theory, collaborative websites are the solution that social activists, Intellectual Property opponents …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Yes To Infill, No To Nuisance, Michael Lewyn

Michael E Lewyn

This article argues against the use of private nuisance suits to exclude apartments from residential neighborhoods, based on the public interest in affordable housing and walkable infill development.

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

Proposed Improvements To The Division Of The Parties' Beneficial Interests Beyond The Women's Charter: Chan Yuen Lan V See Fong Mun, Jonathan Muk

Jonathan Muk

In Chan Yuen Lan v See Fong Mun [2014] SGCA 36, the Singapore Court of Appeal had the opportunity to consider its approach towards ascertaining the parties’ beneficial interests under the common law. It took the opportunity to revist its earlier decision of Lau Siew Kim v Teo Guan Chye Terence [2008] 2 SLR(R) 108 and establish an approach for future cases. It is submitted that the CA’s approach could have gone further to first, establish the common intention constructive trust analysis as the starting point for ascertaining beneficial interests under the common law, second, reform the presumption of advancement …

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

Some Basic Marxist Concepts To Understand Income Tax, John Passant

John Passant

The paper introduces readers to some basic Marxist concepts to give the building blocks for an alternative understanding of tax and perhaps even to inspire some to use these concepts and ideas in their future research. It argues that the tax system reflects the phenomena of wealth and income and that there is a deeper reality obscured and ignored by the income tax system as an outcrop of a capitalist system which does the same. This deeper reality is that capital exploits workers and that profit, rent, interest and the like are the money form of the unpaid labour of …

Nsfw: An Empirical Study Of Scandalous Trademarks, Megan M. Carpenter

Megan M Carpenter

This project is an empirical analysis of trademarks that have received rejections based on the judgment that they are “scandalous." It is the first of its kind. The Lanham Act bars registration for trademarks that are “scandalous” and “immoral.” While much has been written on the morality provisions in the Lanham Act generally, this piece is the first scholarly project that engages an empirical analysis of 2(a) rejections based on scandalousness; it contains a look behind the scenes at how the morality provisions are applied throughout the trademark registration process. We study which marks are being rejected, what evidence is …

California’S Good Samaritan Law: Correcting Ambiguities To Induce Action, Sara Popovich

Sara Popovich

This Note argues that California should amend its Good Samaritan law by either creating a duty to assist or clarifying the statute. It first outlines the history of Good Samaritan law in California and describe developments in the law through today. It then argues that Good Samaritan law in California is ineffective because citizens still fear legal liability and thus refuse to assist during emergencies. Finally, it proposes specific changes to the California Good Samaritan law.

Commodification And Contract Formation: Placing The Consideration Doctrine On Stronger Foundations

David Gamage

Under the traditional consideration doctrine, a promise is only legally enforceable if it is made in exchange for something of value. This doctrine lies at the heart of contract law, yet it lacks a sound theoretical justification – a fact that has confounded generations of scholars and created a mess of case law. This paper argues that the failure of traditional justifications for the doctrine comes from two mistaken assumptions. First, previous scholars have assumed that anyone can back a promise with nominal consideration if they wish to do so. We show how social norms against commodification limit the availability …

Gentrification And Urban Public School Reforms: The Interest Divergence Dillema, Erika Wilson

Erika K. Wilson

Across the country cities are experiencing rapid increases in gentrification: the influx of middle-class, often white residents, into cities with large minority populations. In some gentrifying cities, significant numbers of white middle-class residents are enrolling their children in city public schools, reversing a long standing trend of white flight out of city schools. Local officials value the renewed interest in public schools by these residents because it represents an opportunity to keep them, and their tax dollars, from fleeing to the suburbs once they have school aged children. This Article chronicles the ways in which local officials in gentrifying cities …

Why The Bar Examination Fails To Raise The Bar, Carol Goforth

Carol Goforth

Ferguson, The Rebellious Law Professor, And The Neoliberal University, Harold A. Mcdougall Iii

Harold A. McDougall III

Neoliberalism, a business-oriented ideology promoting corporatism, profit-seeking, and elite management, has found its way into the modern American university. As neoliberal ideology envelops university campuses, the idea of law professors as learned academicians and advisors to students as citizens in training, has given way to the concept of professors as brokers of marketable skills with students as consumers. In a legal setting, this concept pushes law students to view their education not as a means to contribute to society and the professional field, but rather as a means to make money. These developments are especially problematic for minority students and …

On Becoming Charitable: Predicting And Encouraging Charitable Bequests In Wills, Kristine Knaplund

Kristine Knaplund

On Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills Kristine S. Knaplund, Professor of Law What causes people to leave their property to charity in their wills? Many scholars have explored the effects of tax laws on charitable bequests, but now that more than 99% of Americans’ estates are exempt from federal taxes, what non-tax factors predict charitable giving? This Article explores charitable bequests before the federal estate tax and a deduction for charitable bequests were enacted by Congress. By examining two years of probate files in Los Angeles and St. Louis, in which 16.6% of St. Louis testators, …