Law and Society Commons^™

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

7th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2005, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Aug 2, 2005, Ifc Consultation Advisory No.9, David Wofford, Corrie Shanahan

IFC E&S Performance Standards

No abstract provided.

Search And Persuasion In Trademark Law, Barton Beebe

Michigan Law Review

The consumer, we are led to believe, is the measure of all things in trademark law. Trademarks exist only to the extent that consumers perceive them as designations of source. Infringement occurs only to the extent that consumers perceive one trademark as referring to the source of another. The most "intellectual" of the intellectual properties, trademarks are a property purely of consumers' minds. The simple idealist ontology underlying trademark law is largely responsible for the law's characteristic instability. Since 1992, the Supreme Court has considered - and in some cases, reconsidered - seven trademark cases. The Court's copyright cases garner …

What’S In A Word? Can “Marriage” Mean Something It Never Meant Before?, Deanna M. Stathis

ExpressO

In the article I explore the clash of the two disciplines—lexicography and law—when courts and legislatures invoke lexicography to address and solve legal issues that are driven by societal concerns. I address, specifically, the marriage debate. I describe the process of dictionary making and some of the basic tenets of lexicography, and the historical role of lexicography in law. I point out what I perceive as misunderstandings, in judicial opinions and scholarly articles, on the subject of lexicography. I discuss how words gain new meanings (and how they do not) and how, when, and by whom their definitions are changed. …

New Governance And Soft Law In Health Care Reform, Louise G. Trubek

ExpressO

A contemporary health care reform is underway, associated with a set of reformers who are active nationally and locally at the doctor/patient level, the health care institution level, and the policy level. This reformist energy is associated with processes in law and policy that can be called new governance and soft law. These processes are different from previous understandings of how health care can be governed, such as self-regulation, market forces, and new deal command and control regulation. These processes are taking hold and are visible in the public and private sectors and through out the health care industry. The …

The Medieval Blood Sanction And The Divine Beneficence Of Pain: 1100 - 1450, Trisha Olson

ExpressO

No abstract provided.

Biblical Biopolitics: Judicial Process, Religious Rhetoric, Terri Schiavo And Beyond, Josh E. Perry

ExpressO

While a recent flurry of academic and popular attention has been focused on the saga of Terri Schiavo, this Article begins by presenting the legal doctrine and established bioethical consensus regarding autonomy and guardianship law in the context of end-of-life/PVS disputes. Next, this Article provides a comprehensive examination of the judicial proceedings in Mrs. Schiavo’s case, as well as an analysis of the Religious Right activism that brought this case international attention and unprecedented involvement by all three branches of government at both the federal and state level. In response to widespread confusion, even among the legal community, and outright …

A Foundation For International Taxation: The Institutional Competence Of Nations, Eric T. Laity

ExpressO

This Article proposes a conceptual foundation for the field of international tax law. The Article refers to this foundation as the institutional competence of nations in global economic development. A nation’s institutional competence is its discretion to make decisions in pursuit of our collective goal of global economic development, discretion that is subject to a number of standards and limitations.

The Article constructs the institutional competence of nations in global economic development from institutional economics, simple game theory, and the literature on social norms. The Article expresses the institutional competence of nations through standards and limitations that reduce the abuse …

The Effect Of Myth On Primitive And Ancient Justice , Stuart Madden

ExpressO

THE EFFECT OF MYTH ON PRIMITIVE AND ANCIENT JUSTICE M. Stuart Madden

Abstract In primitive and civilized cultures alike, myth has served as a foundational component of social structure and societal cultural self-image. For peoples with limitation on their skills of scientific inquiry and/or detached social observation, myth has served purposes ranging from explanation of the natural world to early visions of civil justice and a moral ethos. Such application of myth has necessarily and simultaneously provided adherents with the means of rationalizing the caprice and harshness of the natural world, as well as giving a means of accepting, even …

Race Against The Machine: An Argument For The Standardization Of Voting Technology, Jason Belmont Conn

ExpressO

In this article/note, I examine a lingering question from the court cases arising out of the 2000 election: Does Bush v. Gore and the relevant equal protection case law open the door for a legal challenge to a state’s use of different voting machines/technologies and how do racial disparities in machine error rates impact this analysis? In addition to reviewing the current literature and case law on voting machine standardization, I also present an unrecognized and undocumented connection between the “all deliberate speed” order in Brown and the Court’s discussion of voting technology in Bush v. Gore.

Jul. 7, 2005, Draft Cso Talking Points For Us Ed Meetings, Ifc

IFC E&S Performance Standards

No abstract provided.

Jul. 7, 2005, Nikki Reisch, Et Al, Cso Talking Points For Us Ex Dir Mtg, Ifc

IFC E&S Performance Standards

No abstract provided.

From International Law To Law And Globalization, Paul Schiff Berman

ExpressO

International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …

A New Agenda For The Cultural Study Of Law: Taking On The Technicalities, Annelise Riles

Cornell Law Faculty Publications

This article urges humanistic legal studies to take the technical dimensions of law as a central focus of inquiry. Using archival and ethnographic investigations into developments in American Conflict of Laws doctrines as an example, and building on insights in the anthropology of knowledge and in science and technology studies that focus on technical practices in scientific and engineering domains, it aims to show that the technologies of law - an ideology that law is a tool and an accompanying technical aesthetic of legal knowledge - are far more central and far more interesting dimensions of legal practice than humanists …

Law As Communitarian Virtue Ethics, Sherman J. Clark

Buffalo Law Review

No abstract provided.

Making Sense Of The Sense Of Justice, Markus Dirk Dubber

Buffalo Law Review

No abstract provided.

Giving The Gift Of Public Office, James A. Gardner

Buffalo Law Review

This interpretive essay, written for the Buffalo Law Review's annual essay issue, identifies an increasingly common pathology of American democracy in which voters treat the election of public officials not as an instrumental act designed to influence public policy, but as an opportunity to present public office as a gift to those who have pleased, entertained, or moved them. The reelection of Strom Thurmond to the Senate at age 93 and the election of nearly forty congressional widows to their late husbands' seats exemplify this trend. Although this behavior bears a passing resemblance to eighteenth-century habits of political deference and …

Arnold Schwarzenegger And Our Common Future, Sarah Krakoff

Buffalo Law Review

No abstract provided.

Autonomy And End-Of-Life Decision Making: Reflections Of A Lawyer And A Daughter, Ray D. Madoff

Buffalo Law Review

No abstract provided.

A New Agenda For The Cultural Study Of Law: Taking On The Technicalities, Annelise Riles

Buffalo Law Review

No abstract provided.

Unfortunately, White-Collar Is The Default Setting: Boys And Higher Education, John Henry Schlegel

Buffalo Law Review

No abstract provided.

The Role Of Groups In Norm Transformation: A Dramatic Sketch, In Three Parts, Robert B. Ahdieh

Faculty Scholarship

Legal scholars, as well as economists, have focused limited attention on the role of coordinated groups of market participants - committees, clubs, associations, and the like - in social ordering generally and in the evolution of norms particularly. One might trace this neglect to some presumptive orientation to state actors (expressive law) and autonomous individuals (norm entrepreneurs) as the sole parties of interest in social change. Yet, alternative stories of social ordering and norm change might also be told. Dramatic recent changes in the contracting practices of the sovereign debt markets offer one such story.

Using the latter by way …

From "Federalization" To "Mixed Governance" In Corporate Law: A Defense Of Sarbanes-Oxley, Robert B. Ahdieh

Faculty Scholarship

Since the very moment of its adoption, the Sarbanes-Oxley Act of 2002 has been subject to a litany of critiques, many of them seemingly well-placed. The almost universal condemnation of the Act for its asserted 'federalization' of corporate law, by contrast, deserves short shrift. Though widely invoked - and blithely accepted - dissection of this argument against the legislation shows it to rely either on flawed assumptions or on normative preferences not ordinarily acknowledged (or perhaps even accepted) by those who criticize Sarbanes-Oxley for its federalization of state corporate law.

Once we appreciate as much, we can begin by replacing …

Introduction – 21st Century Law, Technology And Ethics: The Lawyer’S Role As A Public Citizen Serving The Public Good, Irma S. Russell

Faculty Works

The lawyer's role as a "public citizen" also involves a duty to "seek improvement of the law." Changing technology has changed the way lawyers practice law. As public citizens lawyers have an affirmative commitment to the social goal of a just society. Ethical issues arise in the use of technology in society, and lawyers play a central role in social ordering. The idea that advocates in an adversary system have special responsibilities is not new.

The Rise And Fall Of Israel's Senior Citizens’ Law, Israel Doron

ExpressO

Within the broad and complex framework of laws in Israel relating to the older population, this article focuses on a single act of legislation: the Senior Citizens Law, 5750-1989 (hereinafter “the Senior Citizens’ Law”). During its hitherto brief life, this law has undergone numerous transformations, ups and downs, additions and deletions, successes and failures. At the time of its enactment, there were those who placed great hopes for the future of older people's rights on the law. As of today, however, this article will attempt to argue that the law has failed to realize its objectives. The article includes two …

Police And Democracy, David Alan Sklansky

Michigan Law Review

Part I of the Article describes the emergence in postwar America of a particular understanding of a democracy, an understanding generally referred to as "democratic pluralism," "analytic pluralism," "pluralist theory," or simply "pluralism." We will spend a fair bit of time unpacking pluralism, because its fine points will prove important when we turn to the task of tracing its reflections in criminal procedure. That task is taken up in Part II, which examines the ways in which the central tenets of democratic pluralism found echoes in criminal procedure - construed broadly to include not only jurisprudence and legal scholarship but …

Abu Ghraib, Diane Marie Amann

Scholarly Works

This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Strategic Judging Under The United States Sentencing Guidelines: Positive Political Theory And Evidence, Max M. Schanzenbach, Emerson Tiller

Public Law and Legal Theory Papers

We present a positive political theory of criminal sentencing and test it using data from the United States Sentencing Commission. The theory posits that, faced with appellate review, federal district court judges applying the Sentencing Guidelines strategically use "sentencing instruments" -- fact-based and law-based determinations made during the sentencing phase -- to maximize the judges' sentencing preferences subject to the Guideline’s constraints. Specifically, district court judges are more likely to use law-based departures when they share the same party ideology with the overseeing circuit court than when there is no party alignment between the two courts. Fact-based adjustments, on the …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …