Law and Society Commons^™

Creating A Roadmap For Achieving Intergenerational Environmental Justice, Clifford Rechtschaffen

The Climate of Environmental Justice: Taking Stock (March 16-17)

Presenter: Clifford Rechtschaffen, Professor of Law and Director, JD Environmental Law Program; Co-Director, Environmental Law and Justice Clinic, Golden Gate University School of Law

5 pages.

Agenda: The Climate Of Environmental Justice: Taking Stock, University Of Colorado Boulder. School Of Law

The Climate of Environmental Justice: Taking Stock (March 16-17)

On March 16-17, The Climate of Environmental Justice: Taking Stock conference gathered 125 academics and practitioners from around the country to consider the pressing issues facing low-income and/or communities of color that continue to be subjected to a disproportionate share of environmental maladies.

"Some people are more equal than others when it comes to bracing ourselves for the impacts of climate change," said conference organizer Professor Maxine Burkett. "Whether it's because poor folks lived in the lowest areas of New Orleans when Katrina floodwaters rushed in, or are less able to afford the cooling bill during increasingly frequent heat waves, …

Mandatory Guidelines: The Oxymoronic State Of Sentencing After United States V. Booker, Hon. Graham C. Mullen, J. P. Davis

University of Richmond Law Review

No abstract provided.

Reading, Writing, And Race: The Constitutionality Of Educational Strategies Designed To Teach Racial Literacy, Michael J. Kaufman

University of Richmond Law Review

No abstract provided.

Bureaucratization And Balkanization: The Origins And Effects Of Decision-Making Norms In The Federal Appellate Courts, Stefanie A. Lindquist

University of Richmond Law Review

No abstract provided.

Is Water Property?, Sandra B. Zellmer, Jessica Harder

Faculty Law Review Articles

One of the most controversial issues in natural resources law is whether interests in water are property. In the western United States, water is typically viewed by appropriators as a form of private property, while in the East it is not. In either case, the law is surprisingly unsettled, notwithstanding the important consequences that follow, particularly under constitutional takings jurisprudence. Treating water as property has significant implications for investment, conservation and environmental protection as well. Establishing secure property rights can foster stewardship and wise investment of labor and capital. By the same token, the absence of property ownership can result …

Evidence Of The Need For Aggregate Litigation, Theodore Eisenberg

Cornell Law Faculty Publications

In the experimental game designed by GÜTH et al. [2007], player 1 has promised to render a service to player 2. Player 1 either invests proper effort or shirks and performance may succeed or fail depending on random fluctuation. When player 1 fails to invest proper effort, and performance occurs or not through luck, player 2 must decide whether to punish player 1’s nonperformance. When the transaction fails, punishment may be sought through suing. When the transaction fails, player 2 may seek revenge or punishment though doing so incurs costs to player 2. The game’s design resembles civil enforcement rather …

Rethinking Visitation: From A Parental To A Relational Right , Ayelet Blecher-Prigat

ExpressO

The article proposes a new understanding of the right to visitation that challenges the common understanding of the right to visitation as a parental right and as an integral component of the cluster of rights associated with parental status. Instead, it suggests that visitation be understood as an independent right based on relational values. Understanding visitation as a parental right marginalizes relational values and thwarts the development of a coherent theory of visitation. The absence of such a theory could account for the perplexity plaguing visitation issues. Detaching visitation from the cluster of rights associated with parental status and constructing …

Solving The Lawyer Problem In Criminal Cases, George C. Thomas Iii

Rutgers Law School (Newark) Faculty Papers

We are learning that the vaunted American adversarial system too often fails to protect innocent defendants. Part of the problem is that indigent criminal defenders, in many parts of the country, are overburdened to the point that they cannot always provide an adequate adversarial testing of the State’s case. Part of the problem is the emotional burn out that many defenders experience. A less well known part of the problem is that the very nature of the adversarial mentality too often causes prosecutors to cut corners and thus threaten innocent defendants. “Solving the Lawyer Problem in Criminal Cases,” a 9,000 …

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting …

Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman

ExpressO

For several decades law and economic scholars have employed the tools of price theory in order to evaluate an array of legal questions ranging from criminal sanctions to contract remedies. This vast body of literature implicitly assumed that all payments made through the legal system are fungible. In other words, just as a dollar paid for a tomato is identical to a dollar paid for a cucumber, so are a dollar paid as a pollution tax to the government and a dollar paid as compensation to the party injured by the pollution. In this study we challenge this assumption, and …

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this balance than coercive interrogation. …

Transparency And Textuality: Wilkie Collins' Law Books, Bernadette A. Meyler

Cornell Law Faculty Publications

This article takes as its starting point the priority that Anglo-American legal thought has, in recent centuries, placed upon transparency, a priority that has relied, in large part, on the notion that the law should increasingly be recorded and publicly accessible. Through his representation of trial narratives - an extremely popular quasi-literary form during the nineteenth century - as well as the work of William Blackstone in his supposedly comprehensive Commentaries on the Laws of England, nineteenth-century novelist Wilkie Collins calls into question the idea that simply disseminating textual versions of the law or the records of legal processes will …

The Production Of Law (And Cinema), Amnon Reichman

ExpressO

The essay addresses the emergence of the law and cinema discourse, its methodological limits, and its intellectual and pragmatic potential. The essay suggests that current arguments within the discourse can be classified into structural arguments (referring to the manner in which cinematic and judicial practices are "structured" in society), methodological arguments (referring to law and cinema as methodological instruments for the examination of certain clashes of interests), and hermeneutic arguments (referring to law and cinema as engaged in interpretative functions that illuminate aspects of the human condition). Beyond taxonomy, the essay suggests that situating law alongside cinema is important because …

Discrimination At Will: Job Security Protections And Equal Employment Opportunity In Conflict, Julie C. Suk

ExpressO

The conventional wisdom amongst scholars and advocates of employment discrimination law is that the success of Title VII is significantly hampered by the enduring doctrine of employment at will. As long as employers have broad discretion to fire employees for any reason, no reason, or a bad reason, employers can easily get away with terminating or refusing to promote racial minorities and women as long as some credible nondiscriminatory reason, such as personal animosity, can be presented. This account feeds the widely accepted view that employment at will and the goals of Title VII, namely equal employment opportunity, are at …

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

The Hidden Harm Of Law And Economics, Daniel I A Cohen

ExpressO

The paper deals with the adverse psychodynamic consequences to an individual and to society, immediately and in the long run, of dissolving individual responsibility for fault as in the doctrine of Law and economics.

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

The Impact Of Specialized Courts On The Federal Judicial System 1925-1981: A Study Of Federal Circuits' Decision Of Reversal, Yu Wang

ExpressO

Today a considerable volume of federal caseload is under the jurisdiction of specialized courts at both the district level and circuit level. Ironically, neither judicial scholars nor political scientists treat this topic as a priority in their research agenda. Therefore, what the exact impact of specialized courts on the federal judicial system has not been carefully explored. The current study makes a primary effort to empirically figure out the systematic impact of specialized trial courts on the U.S. federal judicial system. By focusing on the simplest situation in history where both generalist trial courts and specialized trial courts were only …

Culture, Sovereignty, And Hollywood: Unesco And The Future Of Trade In Cultural Products, Christopher M. Bruner

ExpressO

On October 20, 2005, the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a treaty – by a vote of 148-2, with 4 abstentions – that legitimates domestic legal measures aimed at the protection of local producers of "cultural activities, goods and services." Opposed by the United States and Israel, the Convention represents a major diplomatic victory for Canada and France – its principal proponents – and a major blow to Hollywood and the United States, audiovisual products being among America's most lucrative exports. Both Canada and France, like many countries around the world, have …

Federalism And False Claims, Pamela H. Bucy

Cardozo Law Review

No abstract provided.

Negotiated Shame: An Inquiry Into The Efficacy Of Settlement In Imposing Publicity Sanctions On Corporations, Joshua Andrix

Cardozo Law Review

No abstract provided.

Son Of Sam Resurrected: Did Greedy Criminals Unwittingly Give New Life To The “Son Of Sam” Laws?, Arthur M. Ortegon

ExpressO

No abstract provided.

Law And Heidegger’S Question Concerning Technology: A Prolegomenon To Future Law Librarianship, Paul D. Callister

ExpressO

Following World War II, the German philosopher Martin Heidegger offered one of the most potent criticisms of technology and modern life. His nightmare is a world whose essence has been reduced to the functional equivalent of “a giant gasoline station, an energy source for modern technology and industry. This relation of man to the world [is] in principle a technical one . . . . [It is] altogether alien to former ages and histories.” For Heidegger, the problem is not technology itself, but the technical mode of thinking that has accompanied it. Such a viewpoint of the world is a …

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and …

Chain Reaction: How Property Begets Property, Sabrina Safrin

Rutgers Law School (Newark) Faculty Papers

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society’s movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of …

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Myspace Isn't Your Space, Donald Carrington Davis

ExpressO

The advent and popularity of online social networking has changed the way Americans socialize. Employers have begun to tap into these online communities as a simple and inexpensive way to perform background checks on candidates. However, a number of problems arise and may arise when employers base adverse employment decisions on the results of these online searches. Three basic problems or issues accompany searches of online profiles for employment decisions: inaccurate, irrelevant, or false information leads to unfair employment decisions; lack of accountability and disclosure tempts employers to make illegal employment decisions; and employer searches of an employee’s online social …