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Volume 95, Winter 2011 - Table Of Contents, Marquette University Law Review

Marquette Law Review

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Provocation At Face Value, Kyron Huigens

Marquette Law Review

To take provocation at face value is to plead and prove it as a manslaughter offense, as it is defined in most criminal codes. To do this seems to be both unnecessary and impossible. The defendant has the best access to evidence of provocation and will benefit from the proof of this partial defense, so why should he not be required to prove it? The prosecution has no incentive to prove provocation manslaughter because the definition of this offense includes a murder. Why would the prosecution, having proved a murder, set out to prove a lesser crime than the crime …

Redirecting Direct Democracy: Non-Essential Spending As Political Speech, Stephanie R. Hoffer

Marquette Law Review

Direct voting on taxes and spending have created an imbalance between direct democracy and representative democracy at local levels of government. Overreach by voters, unable to engage in debate and compromise, can force representatives into defensive and suboptimal decision-making, resulting in either underproduction or overproduction of certain public goods. As a consequence, some scholars have called for extreme limitation, or even abolition, of direct democracy in tax and spending decisions. This need not be the solution. Empirical studies of human behavior suggest that channeling direct democratic decision-making would produce results superior to those of limitation or abolition. Building a bridge …

Fueling Controversy, Randy Beck

Marquette Law Review

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Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth G. Thornburg, Camille Cameron

Faculty Journal Articles and Book Chapters

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

The Elusive Ideal Of Market Competition In U.S. Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

This chapter, in the book Health Care and EU Law (TMC Asser Press 2011), explores how market competition has both driven and (somewhat ironically) undermined U.S. health reform efforts over the past few decades. More than its peers, the U.S. health care system looks to market-inspired theories and policy instruments, even in public programs like Medicare. But decades of promoting market ideals has not given Americans the health care system we desire. Still, the market question remains the basic dividing line in U.S. health policy.

This chapter explores how the U.S. health care system remains an international outlier, exploring American …

Latin America’S Indigenous Women, Courtney Hall

Human Rights & Human Welfare

Latin America’s indigenous women are as diverse as the land they inhabit. Their uniqueness is shaped by belonging to groups that have their own distinct history, traditions, and identity. Yet despite this diversity, indigenous women confront the same human rights challenges: racial, gender, and socio-economic discrimination. Without ignoring the diversity of indigenous women, a better understanding of their fundamental struggles can be gained by weaving these issues together in a comprehensive narrative.

Peeking Out From Behind The Curtain, Ian Reese

Human Rights & Human Welfare

Absconded by airport security to middle-of-nowhere Russia, Nikolai Alexeyev sat for several days in early September 2010 unaware of his infractions or of his fate. Like a page from a Cold-War spy novel, the point of his abduction was to terrorize; Alexeyev’s abductors psychologically tortured and berated him with homophobic remarks. Nikolai Alexeyev is the leading gay rights activist in Russia and has been a twisting thorn in the side of local and national government for several years. Upon his release, he resolved to agitate further by leading a public demonstration to boycott the Swiss International Air Lines for its …

Winter 2011 Utton Center Newsletter, Utton Center, University Of New Mexico - School Of Law

Publications

No abstract provided.

Distributed Graduate Seminars: An Interdisciplinary Approach To Studying Land Conservation, Jessica Owley, Adena R. Rissman

Articles

No abstract provided.

Rebecca J. Cook & Simone Cusack, Gender Stereotyping: Transnational Legal Perspectives Book Review, Zanita E. Fenton

Articles

No abstract provided.

At The Conjunction Of Love And Money: Comment On Julie A. Nelson, Does Profit-Seeking Rule Out Love? Evidence (Or Not) From Economics And Law, William Wilson Bratton

Articles

No abstract provided.

The Conundrum Of Zealous Representation (Book Review), Scott E. Sundby

Articles

No abstract provided.

Debate: The Future Of Mass Torts, Sergio J. Campos, Howard M. Erichson

Articles

No abstract provided.

Federal Law In State Court: Judicial Federalism Through A Relational Lens, Charlton C. Copeland

Articles

Enforcing federalism is most commonly thought to involve the search for a constitutional delegation of substantive power. Although in modern times the substantive power might be overlapping or shared authority, federalism enforcement proceeds from a determination about the site of substantive power. This conception of federalism enforcement preserves the Constitution's commitment to fractionated authority by determining whether power is legitimately possessed. Thus we understand significant federalism disputes in our age as framed by whether Congress has the authority to enact comprehensive health care reform legislation, or whether Congress has exceeded its authority in reenacting the Voting Rights Act's preclearance requirements. …

Unwilling Avatars: Idealism And Discrimination In Cyberspace, Mary Anne Franks

Articles

No abstract provided.

More Therapeutic, Less Collaborative? Asserting The Psychotherapist-Patient Privilege On Behalf Of Mature Minors, Bernard P. Perlmutter

Articles

No abstract provided.

Reuven Avi-Yonah's Citizens United And The Corporate Form: Still Unuseful, William Wilson Bratton

Articles

I welcome Avi-Yonah's new deployments of descriptive theories of the corporation. But I traversed this territory years ago and came away with a skeptical view of the enterprise. Although Avi-Yonah's interventions are compelling in the encounter, I remain unconvinced that the theories have important lessons to teach us.

Critical Race Materialism: Theorizing Justice In The Wake Of Global Neoliberalism, Sumi Cho, Francisco Valdes

Articles

Critical Race Theory's (CRT's) first two decades produced a rich and diverse literature deconstructing law and society using a racial lens. CRT's emergence and rise occurred at a moment in history where the U.S. was still the uncontested unipolar superpower whose privileged elites enjoyed unprecedented prosperity and status. Despite its dominant standing in the world economy and polity, prevailing "social structures of accumulation" within the United States were already in decline. For CRT's next iteration, we argue that a critical race materialist approach is necessary to interpret the history of how economic and social structures of identity are inextricably linked. …

The Geometry Of Inside And Outside, David Abraham

Articles

These are two important books. The Citizen and the Alien provides a rigorous and illuminating scrutiny of the conundrum faced by making out current concept and politics of citizenship work within liberal moral and political philosophy. The Birthright Lottery, a book with many virtues, recasts birthright citizenship in a manner analogous to the end of entailed property transmission brought about by liberal reform. This essay suggests that Bosniak is unduly pessimistic about bounded communities and that Shachar is unduly optimistic about the relationship between property rights and democracy.

Federal Regulation And The Problem Of Adjudication, Marcia L. Mccormick

Saint Louis University Law Journal

After decades of deregulation, the United States seems to be entering a period of re-regulation, regulation to prevent harm that many activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the crises of tomorrow, this …

University Of Baltimore Law Review Volume 40 Number 3 (Spring 2011) Front Matter

University of Baltimore Law Review

No abstract provided.

Improving Clinical Judgment In Lawyering With Multidisciplinary Knowledge About Brain Function And Human Behavior: What Should Law Students Learn About Human Behavior For Effective Lawyering?, Beryl Blaustone

University of Baltimore Law Review

No abstract provided.

Keynote Address: Why Are There So Many Injuries To Our Young Athletes? Professionalization And Specialization In Youth Sport, James R. Andrews M.D.

University of Baltimore Law Review

Keynote address at the Amateur Sports Symposium: Death of Amateurism: Implications for Sport and Health, delivered at the University of Baltimore School of Law on Thursday, October 28, 2010

The Underwhelming Impact Of The Americans With Disabilities Act Amendments Act, Stacy A. Hickox

University of Baltimore Law Review

The 2008 amendments to the Americans with Disabilities Act (ADA) were intended to expand the protection against discrimination for persons with disabilities beyond the Supreme Court's narrow interpretation of who is "disabled." While the amendments and the Equal Employment Opportunity Commission (EEOC) Americans with Disabilities Act Amendments Act (ADAAA) regulations address some of the Court's narrow interpretations of the ADA, lower courts may still be able to limit coverage of persons with disabilities who are still able to perform tasks that involve a major life activity, which is limited by their impairment, and persons who have impairments with temporary or …

Does The Supreme Court's Burlington Northern Decision Require Reconsideration Of The Aceto Line Of "Arranger" Liability Cases?, Aaron Gershonowitz

University of Baltimore Law Review

No abstract provided.

A Fine Line, Redefined: Moving Toward More Equitable Asylum Policies, Heather M. Kolinsky

University of Baltimore Law Review

No abstract provided.

Mobile Legal Research: Do We Need An App For That?, Roger V. Skalbeck

Law Faculty Publications

A month after the conference, Thomson Reuters launched the WestlawNext iPad app. Current marketing touts mobile access to WestlawNext that is suitable on four major smartphone platforms. At right is a screen shot from the native iPad app as well as WestlawNext in Apple's Safari browser. The iPad app does not let you send documents to your Kindle, and in fact does not let you download or print items directly, as shown in the highlighted screen element in each.

Using this as a starting point, below I suggest arguments for and against using apps for mobile legal research. The focus …

Introduction: The Deepwater Horizon Incident, Charles H. Norchi

Faculty Publications

In this symposium, the contributors appraise the regulatory and institutional pathologies that contributed to the incident, offer projections based on current practices and legal frameworks, propose alternative institutional and regulatory approaches, and recommend policies to achieve a preferred future for marine ecosystems and dependent human activity.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.