Law and Society Commons^™

Official, National, Common Or Unifying: Do Words Giving Legal Status To Language Diminish Linguistic Human Rights?, Paul C. Hale

Georgia Journal of International & Comparative Law

No abstract provided.

A Comparative Analysis Of Unconscious And Institutional Discrimination In The United States And Britain, Leland Ware

Georgia Journal of International & Comparative Law

No abstract provided.

Beer, Liquor, Or A Little Bit Of Both? Getting To The Bottom Of Properly Classifying Flavored Malt Beverages In The United States And Australia, Bryan A. Schivera

Georgia Journal of International & Comparative Law

No abstract provided.

The Role Of The Judiciary In The European Union's (De)Segregation Of Roma Students, Lindsey M. Green

Georgia Journal of International & Comparative Law

No abstract provided.

Beyond The "Tiers" Of Human Trafficking Victims: Islamic Law's Ability To Push The Muslim World To The Top Of The United States Trafficking Tier Placements And Into Compliance With International Law, Myada O. El-Sawi

Georgia Journal of International & Comparative Law

No abstract provided.

Watson, Walton, And The History Of Legal Transplants, John W. Cairns

Georgia Journal of International & Comparative Law

No abstract provided.

Banking And The Social Contract, Mehrsa Baradaran

Scholarly Works

This article asserts that there exists today and has always existed an interdependent relationship between banks and the state. I refer to this connection and its mutual benefits and responsibilities as a social contract. When Alexander Hamilton responded to President Washington’s inquiry about the advisability of a national bank, he wrote that “such a Bank is not a mere matter of private property, but a political machine of the greatest importance to the State.” This social contract has existed since the inception of banking in the United States and has been reinforced over time, but it has recently become weakened …

Paul D. Moreno's The American State From The Civil War To The New Deal: The Twilight Of Constitutionalism And The Triumph Of Progressivism, Laura Phillips Sawyer

Scholarly Works

Paul Moreno, the Grewcock Chair in Constitutional History at Hillsdale College, sets out to explain how the natural rights constitutionalism of the Founders was replaced by an ‘entitlement-based welfare state of modern liberalism’ by the late 1930s. The book is an ‘analytic narrative’, drawing on both constitutional theory and current ‘public choice’ law and economics, and contributes to recent scholarship by libertarian-minded legal scholars, such as David Bernstein and David Mayer, among others.

Disproving The Myths Of Poverty And Breaking The Cycle Of Homelessness Shades Of Gray: The Future Of Affirmative Action In Higher Education, Ian Lisman, Kristen David Adams, David Whisnant, Alex Scherr

Working in the Public Interest Conferences

Covers the complex subjects of homelessness and poverty and the widespread effect these conditions have on individuals in the South with discussion on both the legal and practical aspects of experiencing homelessness, including eviction, family issues, veterans’ issues, domestic violence, mental and physical health, addiction, and recidivism.

Samantar And Executive Power, Peter B. Rutledge

Scholarly Works

This essay examines Samantar v. Yousuf in the context of broader debate about the relationship between federal common law and executive power. Samantar represents simply the latest effort by the Executive Branch to literally shape the meaning of law through a process referred to in the literature as “executive lawmaking.” While traditional accounts of executive lawmaking typically have treated the idea as a singular concept, Samantar demonstrates the need to bifurcate the concept into at least two different categories: acts of executive lawmaking decoupled from pending litigation and acts of executive lawmaking taken expressly in response to litigation. As Samantar …

Self-Conscious Dicta: The Origins Of Roe V. Wade’S Trimester Framework, Randy Beck

Scholarly Works

One of the controversies arising from Roe v. Wade (1973), has concerned whether the conclusions undergirding the opinion's “trimester framework” should be considered part of the holding of the case, or instead classified as dicta. Different Supreme Court opinions have spoken to this question in different ways. This article reviews materials from the files of Justices who participated in Roe, seeking insight as to what the Court thought about the issue at the time. The article concludes that Justices in the Roe majority understood the opinion’s trimester framework to consist largely of dicta, unnecessary to a ruling on the constitutionality …

Class Matters, Erica J. Hashimoto

Scholarly Works

Poor people constitute one of the most overrepresented categories of people in the criminal justice system. Why is that so? Unfortunately, we simply do not know, in large part because we have virtually no information that could provide an answer. As a result of that informational vacuum, policymakers either have ignored issues related to socioeconomic class, instead focusing on issues like drug addiction and mental illness as to which there are more data, or have developed fragmented policy that touches on socioeconomic class issues only tangentially. The bottom line is that without better data on the profile of poor defendants, …

Resolving Interstate Conflicts Over Same-Sex Non-Marriage, Hillel Y. Levin

Scholarly Works

States have adopted several different regimes of recognition for same-sex couples. A few states allow same-sex couples to marry; several others offer marriage-like partnerships (usually called civil unions), which provide all or nearly all of the substantive rights and responsibilities associated with marriage; still others offer marriage-lite partnerships (sometimes called reciprocal benefits arrangements), which provide a small subset of the rights and responsibilities associated with marriage; and, of course, others offer no recognition at all.

What happens when these regimes of recognition collide? For example, what happens when a couple marries in Massachusetts and then moves to a marriage-like state, …

Conflicts And Shifting Landscape Around Same-Sex Relationships, Hillel Y. Levin

Scholarly Works

Conflicts and choice of law questions arising from marriage recognition are more multidimensional today than ever before. Traditionally, these conflicts arose because one jurisdiction allowed marriage between two individuals while another prohibited such a marriage. This was the model in the consanguineous, polygamous, and interracial marriage contexts. It has also been the primary model for analyzing conflicts that arise in the context of same-sex relationships.

In a forthcoming article, Resolving Interstate Conflicts Arising from Interstate Non-Marriage, I challenge this model, and suggest that the emergence of marriage-like 2 and marriage-lite3 alternatives (i.e., civil unions, domestic partnerships, reciprocal benefits arrangements, etc.) …

What Are We - Laborers, Factories, Or Spare Parts? The Tax Treatment Of Transfers Of Human Body Materials, Lisa Milot

Scholarly Works

Transfers of human body materials are ubiquitous. From surrogacy arrangements, to sales of eggs, sperm and plasma to clinics, to black markets for kidneys, to pleas for donations of body materials, these transfers are covered and debated daily in popular and academic discourse. The associated philosophical and legal issues have been explored by a wide range of commentators. The appropriate tax treatment of these transactions, however, is mostly unexamined.

Current law is unclear about what the tax consequences of these transfers are. There are no statutory provisions directly on point, Internal Revenue Service guidance is outdated and conflicting, and the …

"Undead" Wartime Cases: Stare Decisis And The Lessons Of History, Harlan G. Cohen

Scholarly Works

References to the “lessons of history” are ubiquitous in law. Nowhere has this been more apparent than in recent debates over U.S. counterterrorism policy. In response to the Bush Administration’s reliance on World War II-era decisions - Johnson v. Eisentrager, Ex Parte Quirin, Hirota v. MacArthur, and In re Yamashita - opponents have argued that these decisions have been rejected by the “lessons of history.” They argue that the history of wartime cases is one marked by executive aggrandizement, panic-driven attacks on civil liberties, and overly quiescent courts - none of which should be repeated.

But what does it really …

Killing, Letting Die, And The Case For Mildly Punishing Bad Samaritanism, Ken Levy

Georgia Law Review

For over a century now, American scholars(among others) have been debating the merits of "bad-Samaritan" laws-laws punishing people for failing to attempt "easy rescues." Unfortunately, the opponents of bad-Samaritan laws have mostly prevailed. In the United States, the "no-duty-to-rescue" rule dominates. Only four states even have bad-Samaritan laws, and these laws impose only the most minimal punishment-either sub-$500 fines or short-term imprisonment. This Article argues that this situation needs to be remedied. Every state should criminalize bad Samaritanism. For, first, criminalization is required by the supreme value that we place on protecting human life, a value that motivates laws against …

The Burden Of Knowledge, Christian Turner

Scholarly Works

Sometimes we are better off not knowing things. While we often hear that "ignorance is bliss," there has not been a comprehensive consideration in the legal academy of the virtues of ignorance and its regulation. Though the distribution of knowledge, like the distribution of other goods, is affected both directly and indirectly by law, several characteristics of knowledge distinguish it from other kinds of property. Much has been written about the impact of the nonrival and nonexclusive nature of knowledge on its production and distribution. This Article centers around two other attributes of knowledge that combine to create a special …

Drug Treatment Courts In The Twenty-First Century: The Evolution Of The Revolution In Problem-Solving Courts, The Honorable Peggy F. Hora, Theodore Stalcup

Georgia Law Review

Covering developments in the drug treatment court movement in the years since the turn of the millennium, Judge Hora and Mr. Stalcup inform the reader about updates relevant to the subject and address the arguments and concerns of other authors. The Article reviews drug treatment court basics, describes their function, and evaluates legal aspects of drug treatment court practice. The authors' analysis includes the latest in genetic research, penal statistics, and recent court cases that bear on the subject. Beginning with the premise that traditional criminal case processing does not address the underlying causes of much criminal behavior, the authors …

The Burden Of Knowledge, Christian Turner

Georgia Law Review

Sometimes we are better off not knowing things. While we often hear that "ignorance is bliss," there has not been a comprehensive consideration in the legal academy of the virtues of ignorance and its regulation. Though the distribution of knowledge, like the distribution of other goods, is affected both directly and indirectly by law, several characteristics of knowledge distinguish it from other kinds of property. Much has been written about the impact of the nonrival and nonexclusive nature of knowledge on its production and distribution. This Article centers around two other attributes of knowledge that combine to create a special …

The Price Of Misdemeanor Representation, Erica J. Hashimoto

Scholarly Works

Nobody disputes either the reality of excessive caseloads in indigent defense systems or their negative effects. More than forth years after Gideon v. Wainwright, however, few seem willing to accept that additional resources will not magically appear to solve the problem. Rather, concerned observers demand more funds while state and local legislators resist those entreaties in the face of political resistance and pressures to balance government budgets. Recognizing that indigent defense systems must operate in a world of limited resources, states should reduce the number of cases streaming into those systems by significantly curtailing the appointment of counsel in low-level …

"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells

Scholarly Works

Analysis of a Supreme Court opinion ordinarily begins from the premise that the opinion is a transparent window into the Court's thinking, such that the reasons offered by the Court are, or ought to be, the reasons that account for the holding. Scholars debate the strength of the Court's reasoning, question or defend the Court's candor, and propose alternative ways of justifying the ruling. This Article takes issue with the transparency premise, on both descriptive and normative grounds. Especially in controversial cases, the Court is at least as much concerned with presenting its holding in a way that will win …

"Lawyers" Not "Liars": A Modified Traditionalist Approach To Teaching Legal Ethics, Lonnie T. Brown

Scholarly Works

As attorneys, we undeniably should be faithful confidantes to, and staunch allies for, our clients, but we must also never lose sight of the fact that we are not simply client representatives; we are concurrently officers of the court and keepers of the public trust. Though I strive diligently to make my students aware of the specific ethical duties owed to clients, I always stress even more intently the importance of these latter two components of their professional obligation. They are what set the practice of law apart from other occupations, and they are what should serve to inspire us …

What Should We Celebrate On Constitution Day?, Alan E. Garfield

Georgia Law Review

Congress recently created a new national observance, Constitution Day, to be marked each year on September 17. This observance presents a valuable opportunity for the vastly diverse American populace to celebrate its shared values. But what, exactly, should Americans celebrate about the Constitution? The Constitution's text, after all, is hardly perfect, and judicial interpretations of the Constitution are similarly problematic. This Article sets out to identify the Constitution's core meaning for Americans. If first draws lessons from two contemporary Establishment Clause disputes (the teaching of intelligent design and the displaying of Ten Commandments monuments). These examples illustrate why the Constitution,and …

Reflections On Hope, Erica J. Hashimoto

Georgia Law Review

Fighting for a more just society-a society that treats all of its members with dignity and respect-calls for courage, passion, and vision. People with those qualities who choose to work in the public interest will discover the joy of having a "job" that many days is exhilarating and rewarding and often is just plain fun.' There will also, however, be difficult days. Surviving those days and sticking around for the next day's fight requires a somewhat irrational anti- cynicism in the face of overwhelming odds, a sentiment more commonly known as hope.

Hear Today, God Tomorrow?: To Be In But Not Of The Law With Moses, And Milner Ball, Aviam Soifer

Georgia Law Review

It is increasingly clear, Milner once wrote, that "the external world keeps reflecting back what we bring to it." 5 He extends his emphasis on reciprocity between observer and observed from nature and language to the realm of faith. Those who seek to be observant only of settled rules or texts have missed the crucial roles of context, reciprocity, and change. In the Hebrew Bible, for example, Milner argues that Moses hears and speaks as "counsel for a situation" as someone whose word "does not return empty."6 Indeed, Moses is able to be "mouth for the people exactly because he …

The Word And The Law, James B. White

Georgia Law Review

The Word and the Law is an extraordinary combination of law, personal statement, literary criticism, and theology. In a sense its central question is whether it is possible to have a life in the law that is good, and the answer is yes-yes, though not at all easy. I have often suggested it as reading to students who are worried about the profession they have chosen, and they frequently return to me with deep thanks for the introduction. Milner's commitment throughout is not to abstraction or theory or generalization, but to particular realities. Partly for this reason he begins the …

A Theology Of Justice: Some Reflections On Milner Ball's Non-Religious Practice Of Belief, Stephen Wizner

Georgia Law Review

For the past twenty years, during the first weekend in March, law students, law teachers, and public interest lawyers have gathered in the snowy woods of rural New Hampshire for a public interest retreat. The annual event is dedicated to the memory and legacy of Robert Cover, a beloved law professor, brilliant legal scholar, and committed social activist who died in 1986 at the age of forty-two. Robert Cover and Milner Ball were close friends and intellectual fellow travelers. They shared not only an academic interest in the inter-relationships between law, theology, and literature, but also a passionate commitment to …

The Gift Of Milner Ball, Thomas L. Shaffer

Georgia Law Review

My friend and teacher Milner Ball speaks of the law as "systemic injustice." I find that a bit harsh and tend instead toward a way of looking at injustice that comes from the equally melancholy reflections of Robert E. Rodes, Jr., also my friend-my colleague, too-and also my teacher (in two senses, including the I-once-paid- tuition sense). Bob Rodes has noticed injustice as much as Milner has, but Bob, who tends to be an Erastian, would say it is not the law that is the source of injustice; it is not even the "system"; it is lawyers who are the …

Representing Saddam Hussein: The Importance Of Being Ramsey Clark, Lonnie T. Brown, Jr.

Georgia Law Review

This Article examines the professional life of former U.S. Attorney General Ramsey Clark in an effort to understand the many controversial representations and causes that he has undertaken during his post-government career. Professor Brown does so through the vehicle of perhaps Ramsey Clark's most perplexing client choice-deposed Iraqi President Saddam Hussein. Although Hussein had other competent attorneys prepared and willing to represent him, Ramsey Clark nevertheless felt compelled to volunteer his services to the defense team. Why would he do so, and was his decision an ethically proper one under the circumstances? These are the specific questions that this Article …