Law Commons^™

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

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In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Recalibrating The War On Terror By Enhancing Development Practices In The Middle East, Kevin J. Fandl

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This research paper suggests that the cart has been placed before the horse, that democratization and open markets in the Middle East are more likely the result of effective development than the catalyst for it. The war on terror has been justified by the United States as an effective means of reducing the possibility of terrorist attacks. This paper analyzes the validity of those justifications by reviewing the linkage between democracy and economic growth and that between democracy and peace.

The paper begins by hypothesizing that the war on terror and forced democratization of the Middle East are leading to …

A Tale Of Three Nations?: The Role Of United Nations Peacekeepers And Missions On The Concept Of Nation-State, Nationalism, And Ownership Of The State In Lebanon, The Democratic Republic Of The Congo, And Kosovo, Alexandra R. Harrington

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The concept of nationalism of ideology and shared values has existed since Biblical times, and has only become more prominent in societal structure in the centuries which have followed . Many attempts to define what is and is not nationalism have been made throughout history, yet despite these attempts there is no perfect formula for what gives rise to nationalism or what makes a nation-state and how to create it. However, at its core a nation is made of people, and all nations, regardless of organization, ideology, or ethnicity, turn to law to control – if not shape – their …

Seeing Straight In The Workplace: An Examination Of Sexual Orientation Discrimination In Public Employment In The Aftermath Of Lawrence V. Texas, Devin A. Cohen

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Title VII does not explicitly protect homosexual employees from sexual orientation discrimination and the courts have generally refused to bootstrap sexual orientation discrimination into Title VII as a form of gender discrimination. Therefore, homosexual employees have had to depend on their constitutional rights to protect them from their public employers’ sexual orientation discrimination. Traditionally, the courts have allowed public employers to discriminate against homosexual employees so long as the employers’ reasons were rationally related to legitimate business purposes.

I argue that the Supreme Court’s reasoning in Lawrence v. Texas forces future courts to question the reasonableness of employers’ rational bases. …

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

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This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Identity And Market For Loyalties Theories: The Case For Free Information Flow In Insurgent Iraq, Paul D. Callister

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When monopoly control over the flow of information is lost, the unavoidable consequence is destabilization. Information flow through a society can be understood as a market—not a market exchanging cash for goods, but loyalty for identity. Hence the market is called the “Market for Loyalties"--so labeled by an economics of information theory first developed by Prof. Monroe Price, of Cardozo Law School, and Director of the Howard M. Squadron Program in Law, Media and Society, to explain government regulation of radio, TV, cable and satellite broadcasting.

In post-invasion Iraq, Saddam Hussein lost or monopoly control over the information market, where …

Internationalizing U.S. Legal Education: A Report On The Education Of Transnational Lawyers, Carole Silver

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This article analyses the role of U.S. law schools in educating foreign lawyers and the increasingly competitive global market for graduate legal education. U.S. law schools have been at the forefront of this competition, but little has been reported about their graduate programs. This article presents original research on the programs and their students, drawn from interviews with directors of graduate programs at 35 U.S. law schools, information available on law school web sites about the programs, and interviews with graduates of U.S. graduate programs. Finally, the article considers the responses of U.S. law schools to new competition from foreign …

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

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This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Easing The Burden: Mediating Misdemeanor Criminal Complaints, Gabriel H. Teninbaum

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Overburdened courts are causing critical breakdowns in the criminal justice system. However, some jurisdictions are developing creative programs to ease the burden on courts. This paper focuses on mediation programs by which courts divert criminal cases away from traditional prosecution and allow a victim-offender mediation to occur as an alternative to trials for alleged criminal acts. The new model is beginning to work: annually more than nine thousand cases are referred out of district courts by district attorneys and judges to dispute settlement centers; over seven thousand or more are resolved prior to possible court involvement, and mediation is helping …

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

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No abstract provided.

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

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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 …

The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: The Solution To Inherent Inequalities Exists Outside The Box Of Congress' "Sense" Of Personal Finance Education, Lisa M. Wiltshire

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This Note analzyes the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 in relation to discrepancies between minority and white bankruptcy petition filers.

Causation And Attenuation In The Slavery Reparations Debate, Kaimipono D. Wenger

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The success or failure of slavery reparations will depend on causation. Many criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that harms suffered by modern Blacks cannot be connected to slavery. This Article examines these attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated arguments.

The Article then discusses how ideas about …

Scholarly And Scientific Boycotts Of Israel: Abusing The Academic Enterprise, Kenneth Lasson

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No abstract provided.

Who Are The Good Guys? The Legacy Of Watergate And The Tangled Webs We Weave, Jeffrey A. Breinholt

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This article examines the astounding revelation that Deep Throat, the anonymous source that brought down the Nixon Presidency, was Mark Felt, the man who ran the FBI during the Watergate Scandal. Was Mark Felt a hero or a villain? Thanks to the recent publication of Bob Woodward’s The Secret Man in combination with historical case law, we now have more historical evidence about what motivated Felt and how he reacted to his own legal misfortunes. This article examines this record and shows that categorizing Felt along the hero/villain continuum is not an easy task, but argues that this type of …

Bankruptcy Abuse: An Empirical Study Of Consumer Exemptions Cases, Bernard Trujillo

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On April 20, 2005, the President of the United States signed a sweeping legislative overhaul of the consumer bankruptcy system. The bankruptcy reform legislation is based on an empirical assertion: that sophisticated debtors with the means to re-pay their debts were instead filing for bankruptcy and acquiring a discharge, thereby abusing the bankruptcy system.

This Article presents the results of an empirical study of bankruptcy court doctrine in consumer exemptions proceedings over a twenty-year period. The findings suggest a serious empirical flaw in the premise of the bankruptcy reform legislation. The study shows that the bankruptcy system minimizes abuse by …

Project Bioshield, More Than Meets The Eye: A Critique Of The U.S.’S Proposed Silver Bullet For Responding To Bio-Terrorism, Jodi A. Phillipo

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No abstract provided.

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

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The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

Fighting Fraud On Faith: Federal Securities Regulation And The Limits Of Disclosure, Shannon R. Selden

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In the past ten years, Congress passed three major reform acts to address two diametrically opposed concerns: It first restrained what it believed was an excess of securities fraud litigation, then responded to an explosion of securities fraud. This Article contends that despite the competing provocations and ambitions of the reforms, they share an unwarranted adherence to the principle of disclosure as the best means to attack market malfeasance: The Article examines the basis for and consequences of that undeserved legislative fidelity. Applying behavioral economics and cultural theory to the recent legislation and its underpinnings, the Article concludes that a …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

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No abstract provided.

The Limits Of Equality - Wishing For Discrimination?, Yifat Bitton

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The Limits of Equality – Wishing for Discrimination? Yifat Bitton Abstract The article focuses on the different manner in which antidiscrimination regimes treat groups that have been discriminated-against de jure and de facto. The Article approaches the prerequisite of antidiscrimination laws that there be some past or on-going discrimination in a manner that diverges from the dominant view that discrimination is a purely destructive force. The central argument is that the way in which de jure, overt and blatant discrimination necessarily must create a coherent group identity recognized by law allows groups that are discriminated against in this manner to …

Prisons Of The Mind: Social Value And Economic Inefficiency In The Criminal Justice Response To Mental Illness, Amanda C. Pustilnik

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This Article employs a “New Chicago School” law and economics analysis to examine why the staggering economic and human costs of channeling non-violent mentally ill adults and children into the criminal system not only are countenanced but embraced by voters and lawmakers. Analyzing legislation, statements by lawmakers and jurors, and historical sources, the Article contends that certain social value is created through the incarceration of this marginalized group. That is, there is a taste for the punishment of these people that incarceration satisfies but that therapeutic alternatives would not. The willingness to pay for this contestable taste keeps entrenched this …

Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley

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No abstract provided.

Controlling Conflicts Of Interest: A Tale Of Two Industries, Ahmed E. Taha

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Large corporate conglomerates are being formed in many industries. Although a conglomerate may be able to use its multiple businesses to offer better products or services or lower prices, conglomeration can also create conflicts of interest within a corporation, harming consumers. Other researchers and observers have long been aware of these conflicts of interest, however, this Article’s empirical analyses identify what specific characteristics of a conglomerate cause conflicts of interest to actually result in harm to consumers. In doing so, the Article also guides policymakers regarding how to regulate conflicts of interest.

This Article examines two industries – financial services …

Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

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This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …

The Semi-Sovereign Corporation, Daniel J.H. Greenwood

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For at least a generation, corporate law scholars have worked within a paradigm of the corporation as a nexus of contracts, using metaphors drawn from contract, property, agency and trust to describe the relationships between shareholders and the firm as something like those of strangers in a market.

But historically, corporations were understood to be political organizations much like a miniature state or sovereign. The political view emphasizes that the participants in a firm include more than the public shareholders, that they have relationships with each other that extend beyond the momentary contact of strangers in a spot-market, and most …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

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The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

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In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Shifts In Policy And Power: Calculating The Consequences Of Increased Prosecutorial Power And Reduced Judicial Authority In Post 9/11 America, Chris Mcneil

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Among many responses to the attacks of September 11, 2001, Congress and the states have shifted to the executive branch certain powers once held by the judicial branch. This article considers the impact of transferring judicial powers to prosecutorial officers, and compares the consequent increased powers of the prosecutor with those powers traditionally held by prosecutors in Japanese criminal courts. It considers the impact of removing from public view and judicial oversight many prosecutorial functions, drawing comparisons between the largely opaque Japanese prosecutorial roles and those roles now assumed in immigration and anti-terrorism laws, noting the need for safeguards not …

How And Understanding Of The Second Personal Standpoint Can Change Our Understanding Of The Law: Hart's Unpublished Response To Exclusive Legal Positivism, Robin B. Kar

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This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, …