Law Commons^™

Linguistic Rights Of Indigenous Peoples In The States Of Latin America, Jose Manuel Perez Fernandez

Intercultural Human Rights Law Review

The protection of language rights of speakers of indigenous languages has experienced important developments in the Latin American sphere, which has served as a framework for the whole process of recognition of cultural and ethnical identity of Indigenous Peoples. This reflects a rejection of assimilation, and an assertion of multicultural and multilingual aspects in Latin American societies. On the one hand, the author focuses on the role that international law instruments related to human rights, those for the general protection of minorities and those specific for the indigenous peoples, may perform in the recognition of linguistic rights when granting legal …

Parental Autonomy And The Role Of The State: Arranged Marriages In India, Marjorie Uzquiano

Intercultural Human Rights Law Review

The doctrine that has become known as Parental Autonomy refers to a belief that parents have a fundamental right to bring up their offspring and to make all sort of decisions concerning the child, free from government intervention, absent a threat to the health and welfare of the offspring. The government has the right to interfere if public health, welfare, safety, and order are jeopardized by parental decisions. The focus of this paper is the issue of parental autonomy in India in the context of arranged marriages, and the role of the state in limiting parental freedom when children are …

Helping Haiti In The Wake Of Disaster: Law Students As First Responders, Melissa Gibson Swain, Jonel Newman

Intercultural Human Rights Law Review

This is the story of how we put an immediate-need and longer-term TPS service effort together, the lessons we learned in doing so, and what we believe to be a sustainable clinical pedagogy, and law school service model built around disaster assistance and recovery. We begin by examining how lawyers and law students have traditionally made valuable contributions to disaster response by using their legal training. All too often, those efforts have been hampered by the post-disaster ad hoc nature in which they have been constructed, and by the limitations inherent in the relatively small number of lawyers available to …

In Times Of Famine, Sweet Potatoes Have No Skin: A Historical Overview And Discussion Of Post-Earthquake U.S. Immigration Policy Towards The Haitian People, Jordan E. Dollar, Allison D. Kent

Intercultural Human Rights Law Review

This article is an examination of the U.S. immigration policy towards Haitians both before and after the January 12, 2010 earthquake. In order to understand the U.S. policy response and the Haitian community's reaction to said policy, it is imperative to first understand the historical framework of the U.S. immigration policy towards Haitians. Fundamentally, the U.S. immigration policy towards Haitians is based on two erroneous premises: (1) Haitians are only economic migrants; and (2) fair immigration treatment of Haitians will lead to a mass migration into the U.S.

Rule Of Law In Haiti Before And After The 2010 Earthquake, James D. Wilets, Camilo Espinosa

Intercultural Human Rights Law Review

When discussing the myriad challenges facing Haiti in the wake of the devastating 2010 earthquake, it is difficult to prioritize the needs of a country where basic needs such as shelter and basic medical care compete for long-term needs such as education, good governance, and economic reconstruction and growth. The current immediate and emergent needs of Haiti in the face of its national calamity have been well identified by international aid bodies and national leaders, and there has been a considerable literature on those needs. What is of equal importance in the long run, however, is building a solid foundation …

Statement By The Honorable Ilean Ros-Lehtinen The Fourth P: Combating Trafficking In Persons Through Public-Private Partnerships, Ileana Ros-Lehtinen

Intercultural Human Rights Law Review

Statement by the Honorable Ilean Ros-Lehtinen, entitled "The Fourth P: Combating Trafficking in Persons through Public-Private Partnerships".

Determining The Outcome Of Legal Grievances: An Application Of Game Theory To Tort Negotiations, Tyler Bodi

Honors Theses

I will begin my work with a description of the legal negotiation process in tort law. Next, I will explain the key facets and usefulness of game theory. Third, I will suggest how game theory might be applied to the legal negotiation of torts and solved in any particular tort case. Finally I will confirm that the elements of my model are, first, the definitive parts in the legal negotiation process, and second, part of a cohesive and complete game.

The Post-Tarp Movement To Regulate Banker Pay, Eric D. Chason

Faculty Publications

No abstract provided.

Lying In The Scanner: Covert Countermeasures Disrupt Deception Detection By Functional Magnetic Resonance Imaging, Giorgio Ganis, J. Peter Rosenfeld, John B. Meixner Jr., Rogier Kievit, Haline Schendan

Scholarly Works

Functional magnetic resonance imaging (fMRI) studies have documented differences between deceptive and honest responses. Capitalizing on this research, companies marketing fMRI-based lie detection services have been founded, generating methodological and ethical concerns in scientific and legal communities. Critically, no fMRI study has examined directly the effect of countermeasures, methods used by prevaricators to defeat deception detection procedures. An fMRI study was conducted to fill this research gap using a concealed information paradigm in which participants were trained to use countermeasures. Robust group fMRI differences between deceptive and honest responses were found without, but not with countermeasures. Furthermore, in single participants, …

Damage Anchors On Real Juries, Shari Seidman Diamond, Mary R. Rose, Beth Murphy, John B. Meixner Jr.

Scholarly Works

Experiments reveal anchoring as a powerful force, even when participants see the anchor as irrelevant. Here, we examine the reactions of real deliberating jurors to attorney damage requests and concessions in 31 cases involving 33 plaintiffs in which the jury awarded damages. Jurors were critical consumers of attorney suggestions. They reacted more negatively to, and were less influenced by, plaintiff ad damnums for pain and suffering than to damage requests in categories grounded in more objective evidence. Deliberations revealed that jurors often perceive plaintiff ad damnums not only as irrelevant, but also as outrageous, impressions reflected in their verdicts. These …

Can You Really Keep Your Health Care Plan? The Limits Of Grandfathering Under The Affordable Care Act, Elizabeth Weeks Leonard

Scholarly Works

This article examines the rhetoric and reality of President Obama's repeated hallmark promise during federal health reform that "you can keep your health plan," as one example of the Administration's equivocal stance toward deregulation. Although rhetorically supporting the popular preference for decreased government involvement in health care, the Obama Administration, in several instances, has achieved significant re-regulation through the intricacies of executive branch rule-making. The Affordable Care Act's "grandfather rule" (Section 1251, "Preservation of Right to Maintain Existing Coverage") purports to uphold the "you can keep your health plan" promise. But the regulatory requirements for plans to retain grandfathered status …

Wilderness, The Courts And The Effect Of Politics On Judicial Decisionmaking, Peter A. Appel

Scholarly Works

Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of …

Congressional Manipulation Of The Sentencing Guideline For Child Pornography Possession: An Argument For Or Against Deference?, John Gabriel Woodlee

Duke Law Journal

Many proponents of the Federal Sentencing Guidelines envisioned a system in which a politically insulated agency would craft guidelines based on empirical study. This vision of the now-advisory Guidelines survives in Supreme Court opinions that appear to accept that the work of the U.S. Sentencing Commission, the agency tasked with formulating the Guidelines, is driven largely by empirical analysis. This vision has created uncertainty, however, about how much deference courts should show particular Guidelines-such as Section 2G2.2, the Guideline applicable to possession of child pornography- that do not reflect empirical study by the Commission, but that have instead been shaped …

Journal Staff

Duke Law Journal

No abstract provided.

Dodd-Frank, Liability Structure, And Financial Instability Cycles: Neither A (Ponzi) Borrower Nor A Lender Be, Jose M. Gabilondo

Faculty Publications

No abstract provided.

Regulating Mandatory Arbitration, Thomas V. Burch

Scholarly Works

Over the last twenty-five years, the Supreme Court has relied on party autonomy and the national policy favoring arbitration to expand the Federal Arbitration Act’s scope beyond Congress’s original intent. Choosing these loaded premises has allowed the Court to reach the outcomes it desires while denying that it is making any political or moral judgments in its decisions – a type of bureaucratic formalism. One controversial outcome of the Court’s formalism, overall, has been the increased prevalence of mandatory arbitration. Although it reduces judicial caseloads and lowers companies’ dispute-resolution costs, it also restricts or eliminates individual rights and reduces public …

Assessing The African Union Concerns About Article 16 Of The Rome State Of The International Criminal Court, Charles Chernor Jalloh, Dapo Akande, Max Du Plessis

Faculty Publications

This article assesses the African Union’s (AU) concerns about Article 16 of the Rome Statute of the International Criminal Court (ICC). It seeks to articulate a clearer picture of the law and politics of deferrals within the context of the AU’s repeated calls to the United Nations Security Council (UNSC, or the Council) to invoke Article 16 to suspend the processes initiated by the ICC against President Omar Al Bashir of Sudan. The UNSC’s failure to accede to the AU request led African States to formally withhold cooperation from the ICC in respect to the arrest and surrender of the …

An Overview Of The Capital Jury Project For Military Practitioners: Aggravation, Mitigation, And Admission Defenses, Eric R. Carpenter

Faculty Publications

No abstract provided.

Clarifying Stereotyping, Kerri Lynn Stone

Faculty Publications

This Article addresses the largely undefined, misunderstood-yet-often-resorted-to concept of “stereotyping” as a basis for, or sufficient evidence of, liability for employment discrimination. Since, the concept’s genesis in Supreme Court jurisprudence in 1989, Price Waterhouse v. Hopkins, plaintiffs have proffered remarks alleged to be tinged with, or indicating the presence of, impermissible stereotypes as evidence of discrimination based on protected-class status – be that sex, race, color, religion, or national origin – in contravention of Title VII of the Civil Rights Act of 1964. The Article examines the language in Hopkins and its precise mandates and guidance for lower courts. It …

Substantial Limitations: Reflections On The Adaaa, Kerri Lynn Stone

Faculty Publications

This Article advocates several ways to reform the American with Disabilities Act Amendments Act of 2008 (ADAAA) and its jurisprudence. It begins with the premise that the “otherwise qualified,” “reasonable accommodation,” and “undue hardship” analyses are questions that call for a focus on, respectively, the plaintiff at issue, the accommodation at issue, and the employer at issue. The article calls for the abolition of the need to demonstrate a major life activity limitation required for coverage under the statute in accommodation cases, noting that this has already effectively occurred in the context of the rest of the ADA’s antidiscrimination jurisprudence. …

Transgender Student-­Athletes And Sex-­Segregated Sport: Developing Policies Of Inclusion For Intercollegiate And Interscholastic Athletics, Erin E. Buzuvis

Faculty Scholarship

This Article discusses the discrimination of transgender students who may be excluded, discouraged, or simply made to feel uncomfortable participating in athletic programs for their natal sex, by the sex-segregated world of athletics. The Author believes that until sports' governing bodies develop and enforce policies of inclusion, transgender students will continue to be denied access to and the benefits of athletic participation. The Author examines the values that should go into the formation of such policies, including legal, medical and educational concerns. Part I of the Article puts transgender students' athletic participation in context by examining educational athletic's deep and …

Rule 801(D)'S Oxymoronic 'Not Hearsay' Classification: The Untold Backstory And A Suggested Amendment, Sam Stonefield

Faculty Scholarship

This Article examines Rule 801(d)’s oxymoronic treatment of admissions and prior statements as “not hearsay.” This “not hearsay” label is inaccurate – the evidence is hearsay, as defined in Rule 801(c) – and is inconsistent with the analytically important and well-established use of the term not hearsay to describe evidence that is actually not hearsay.

The Article tells the story of how the drafters of the Federal Rules of Evidence ended up with such a confused and confusing label and proposes an amendment that would classify admissions and prior statements as hearsay exceptions and place each in a new, separate, …

The Challenge Of Temporary Work In Twenty-First Century Labor Markets: Flexibility With Fairness For The Low-Wage Temporary Workforce, Harris Freeman, George Gonos

Faculty Scholarship

As the Commonwealth wrestles with the social and economic aftershocks of the worst economic recession in 80 years, the widespread use of temporary staffing arrangements is a sober reminder that the “standard” employment relationship, a cornerstone of the prosperity of the post-­World War II era, is no longer available to a large segment of the American workforce. “Job ladders” have disintegrated, depriving capable and dedicated workers of predictable promotions. Regular step increases in pay and cost-­of-­living adjustments are in many occupational categories a thing of the past. Simply put, the “good jobs” working people need to support families, pay the …

Deconstructing Corporate Governance: Absolute Director Primacy, René Reich-Graefe

Faculty Scholarship

Microtheoretical models of the corporation which focus on corporate governance attempt to answer two deceptively simple, but fundamentally elusive questions: ‘Who are in control of the corporation?’ and ‘Whose interests ultimately control those in control of the corporation?’ Both questions remain partially unanswered within the models developed to date by corporate theoreticians. This Article proposes a radically new model: 'absolute director primacy.’ Existing microtheoretical models conceive that we only need to—and, indeed, can—determine the controlling interests guiding corporate decisionmaking in order to prove the existence of control over the decisionmaking latitude of corporate boards. The absolute director primacy …

Criminalized State: The International Criminal Court, The Responsibility To Protect, And Darfur, Republic Of Sudan, Matthew H. Charity

Faculty Scholarship

The international community continues to struggle with the question of what to do when a nation fails to protect its own people from systemic neglect, mistreatment, or even genocide. For many years, this debate pitted proponents of humanitarian intervention by a third-party against those who believe that all others must defer to the sovereign right of the state to control its own affairs and the affairs of its people. In the midst of this debate, the international community has adopted a middle road: insisting that states must acknowledge their responsibility to protect their populations and if the state manifestly fails …

The Feminist Case For The Ncaa's Recognition Of Competitive Cheer As An Emerging Sport For Women, Erin E. Buzuvis

Faculty Scholarship

This Article examines whether a university can count opportunities in competitive cheer to demonstrate compliance with Title IX. A federal court in Connecticut recently considered this question for the first time. Although it held that the sport as it currently exists is not sufficiently similar to other varsity sports to qualify for Title IX compliance, the decision has mobilized two separate governing bodies to propose more organized and competitive versions of competitive cheer as possible NCAA emerging sports. This Article argues that these proposals would satisfy regulators and the courts. It then discusses how competitive cheer has potential to improve …

Caster Semenya And The Myth Of A Level Playing Field, Erin E. Buzuvis

Faculty Scholarship

In August of 2009, policies and procedures to verify the sex of female athletes were called into question when South African runner Caster Semenya
won the 800 meter event of the World Championships in Berlin. Responding to rumors of gender fraud, and fueled by Semenya’s speed, musculature, and deep voice, the International Association of Athletics Federations (IAAF) requested that Semenya submit to sex verification to confirm her eligibility for the women’s division.

This Article discusses the International Olympic Committee's (IOC) policy on sex testing, the myth of sex-verification testing, and the myth of the level playing field. It concludes with …

Rule 15(C) Mistake: The Supreme Court In Krupski Seeks To Resolve A Judicial Thicket, Robert A. Lusardi

Faculty Scholarship

While recognizing the importance of a statute of limitations, Federal Rule of Civil Procedure 15 acts as a counterbalance to such statutes by allowing a plaintiff to freely amend a complaint to assert additional claims, or to name new or additional parties, and have those amendments relate back to a complaint filed within the statute of limitations even though that statute has run.

There have been interpretive problems, particularly with the language of Rule 15 (c)(1)(C)(ii). These problems arise when the "amendment changes the party or the naming of the party" after the statutory period and the conditions of Rule …

Prophylactic Rules And State Constitutionalism, Arthur Leavens

Faculty Scholarship

When the post-Warren Supreme Court began trimming back individual rights, some state courts responded by interpreting analogous or cognate state constitutional provisions to find broader protections, prompting a vigorous debate concerning the legitimacy and interpretive methodology of such state constitutionalism. How can two constitutional provisions, sharing the same language and history, mean different things? This Article looks at that question in the context of so-called prophylactic rules—those specific constitutional rules meant to guide the implementation of broader federal constitutional principles. Miranda ’s warning-and-waiver construct is probably the best known prophylactic rule, but such rules abound, particularly in criminal procedure.

This …

The First Of Thousands? The Long View Of Local 1330'S Challenge To Management Rights And Plant Closings, Harris Freeman

Faculty Scholarship

This Article introduces and frames a symposium issue of Harvard Law School’s Unbound, Journal of the Legal Left that is devoted to an assessment of Local 1330, United Steel Workers v. U.S. Steel (6th Cir. 1980) on the 30th anniversary of the decision. The Author provides a historical and legal context for the federal courts’ decisions on the Steelworkers’ novel community property and contractual claims brought by the plaintiffs in an effort to prevent U.S. Steel from closing its manufacturing operations Youngtown, Ohio. In this context, the Author discusses the relationship of the plaintiffs’ community property claim to the origins …