Law and Society Commons^™

First, Do No Harm: The Consequences Of Advising Clients About Litigation Alternatives In Medical Malpractice Cases., Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

This Article addresses whether a lawyer's possible duty to inform and advise his client of potential alternative dispute resolution (ADR) options actually leads to better results for doctors in medical malpractice cases. This Article first explains different theories supporting a potential duty and then argues that all such theories praising ADR rely on the assumption that "valuable" alternatives to litigation always exist and are available to all litigants. That notion is arguably not always true for a physician defending against malpractice complaints; thus, the duty becomes almost meaningless in such cases. With the adoption of the National Practitioner Data Bank …

What's In The Third And Final Volume Of The New Restatement Of Property That Estate Planners Should Know About, Lawrence W. Waggoner

Articles

Professor John Langbein and I have just concluded a twenty-year project for the American Law Institute to restate the law of donative transfers. The official title of our three-volume Restatement is the Restatement (Third) of Property: Wills and Other Donative Transfers.1 We refer to it herein simply as the Property Restatement. The third and final volume of the work was published in the last days of 2011. Professor Langbein spoke about certain of the initiatives in the two earlier volumes, which set forth the principles governing the law of wills, intestacy, interpretation of instruments, and the nonprobate system. The concluding …

Due Process And Local Administrative Hearings Regulating Public Nuisances: Analysis And Reform., Alex Cameron

St. Mary's Law Journal

Abstract Forthcoming.

A Judicial And Economic Analysis Of Attorney's Fees In Trust Litigation And The Resulting Inequitable Treatment Of Trust Beneficiaries., Charles Epps Ipock

St. Mary's Law Journal

Abstract Forthcoming.

Removal Of Independent Executors: Examining The Standard In Texas After The Addition Of Material Conflict Of Interest To Section 149c Of The Texas Probate Code., Elizabeth R. Kopecki

St. Mary's Law Journal

The State of Texas permits independent executors to operate with minimal court supervision. This allows executors to administer an estate with as little cost and delay as possible. Sometimes executors abuse this limited supervision and fail to manage estates properly. Fortunately, there are particular circumstances outlined in the Texas Probate Code which allow courts to step in and remove these harmful executors. Since the adoption of section 149C to the Texas Probate Code, grounds for removal have remained relatively specific. Recently, the legislature has added a new ground: “material conflict of interest.” Though no bright-line rule exists, there is precedent …

"U" Stands For Underutilization: The U Visa's Vulnerability For Underuse In The Sex Trafficking Context, Erin Bistricer

Cardozo Journal of Equal Rights & Social Justice

The U Visa, established in 2000 under the Violence Against Women Act (VAWA) reauthorization, was designed to provide legal status to victims of certain crimes, including sex trafficking, without fear of deportation. However, its implementation has been hindered by significant challenges, including delayed regulations, confusion among applicants, and reliance on law enforcement cooperation, which can be a barrier for traumatized victims. While the U Visa offers more flexibility than the T Visa by covering a broader range of crimes and requiring a lower standard of proof, its effectiveness is limited by factors such as annual caps, inadequate state anti-trafficking laws, …

A Tango Between Copyright And Choreography: Whiteness As Status Property In Balanchine's Ballets, Fuller's Serpentine Dance, And Graham's Modern Dances, Caroline Joan S. Picart

Cardozo Journal of Equal Rights & Social Justice

The article examines the intersection of race, gender, and copyright law in the context of modern dance in the United States. It argues that the legal battles over copyright protection for choreography were deeply influenced by racial and gender biases, with white male choreographers like George Balanchine securing ownership and control over their works, while female choreographers like Martha Graham faced significant challenges in maintaining control over their intellectual property. The article highlights how these dynamics shaped the legal framework for copyright protection in dance, emphasizing the role of whiteness and gender in determining ownership and legacy.

Predators In Paradise: Puerto Rico's Recent Sex Offender Problems And The Federal Government's Ill Suited Solutions, Adan Soltren

Cardozo Journal of Equal Rights & Social Justice

The note examines the challenges and implications of implementing the Adam Walsh Act (2006) in Puerto Rico, particularly its Sex Offender Registration and Notification Act (SORNA) provisions. It highlights Puerto Rico's noncompliance with SORNA due to its less stringent sex offender laws and the economic and policy concerns surrounding full adoption. The analysis critiques SORNA's one-size-fits-all approach, especially its treatment of juvenile offenders, and proposes tailored solutions for Puerto Rico to address these issues while maintaining public safety.

From Private Violence To Mass Incarceration: Thinking Intersectionally About Women, Race, And Social Control, Kimberlé W. Crenshaw

Faculty Scholarship

The structural and political dimensions of gender violence and mass incarceration are linked in multiple ways. The myriad causes and consequences of mass incarceration discussed herein call for increased attention to the interface between the dynamics that constitute race, gender, and class power, as well as to the way these dynamics converge and rearticulate themselves within institutional settings to manufacture social punishment and human suffering. Beyond addressing the convergences between private and public power that constitute the intersectional dimensions of social control, this Article addresses political failures within the antiracism and antiviolence movements that may contribute to the legitimacy of …

"Becker On Ewald On Foucault On Becker": American Neoliberalism And Michel Foucault's 1979 Birth Of Biopolitics Lectures, Gary S. Becker, Francois Ewald, Bernard E. Harcourt

Faculty Scholarship

In a series of lectures delivered in 1979 at the Collège de France under the title The Birth of Biopolitics, Michel Foucault conducted a close reading of Gary Becker’s writings on human capital and on crime and punishment, within the context of an elaboration and critique of American neoliberalism. Foucault was assisted at the time, at the Collège de France, by François Ewald. Since then, there has been ongoing debate over Foucault’s views about neoliberalism. In this historic meeting at the University of Chicago between Professors Becker and Ewald, Professor Ewald presents a framework to understand Foucault’s writings on Becker; …

Race And Selective Enforcement In Public Housing, Jeffrey Fagan, Garth Davies, Adam Carlis

Faculty Scholarship

Drugs, crime and public housing are closely linked in policy and politics, and their nexus has animated several intensive drug enforcement programs targeted at public housing residents. In New York City, police systematically conduct “vertical patrols” in public housing buildings, making tens of thousands of Terry stops each year. During these patrols, both uniformed and undercover officers systematically move through the buildings, temporarily detaining and questioning residents and visitors, often at a low threshold of suspicion, and usually alleging trespass to justify the stop. We use a case-control design to identify the effects of living in one of New York …

Singapore: Transitioning To A "New Normal" In A Post-Lee Kuan Yew Era, Eugene K. B. Tan

Research Collection Yong Pung How School Of Law

Politics in Singapore is generally marked by incremental change. When Singapore eventually becomes a two-party or multi-party democracy, the 2011 general election is likely to be regarded as the starting point of the epochal political transition. It was a boisterous year politically where political excitement and consciousness went up several notches due to the 7 May general elections and the 27 August presidential elections, both of which produced keenly contested hustings and outcomes. The aftermath of the general elections also saw the retirement of former Prime Ministers Lee Kuan Yew and Goh Chok Tong from the Cabinet.

Integrating Humanities Into Family Law And The Problem With Truths Universally Acknowledged, Carol Sanger

Faculty Scholarship

Family Law differs from the other subjects under discussion today in at least two respects. As a matter of curricular location, it is not always considered a core course. I am therefore grateful for Melissa Murray’s public recognition of the “coreness” of Family Law within a legal education. Second, if one purpose of integrating humanities into the core curriculum is to humanize the law, it is probably safe to say that Family Law is already humanized enough. The subject comes fully loaded with all too human conflict and suffering: cruelty, anger, sex, disappointed expectations, and all of these play out …

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

Scholarship@WashULaw

This Article seeks to challenge the corporate-constructed image of American business and American industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and the realities of doctrinal corporate law, I hope to examine the ways that we as social actors, legal actors, and (perhaps above all) consumers understand what it means for a corporation or a corporation’s product to be American. In a global economy where labor, profits, and environmental effects are spread across national borders, what does it mean for a corporation to present the impression of national …

The Future Of Family Caregiving: The Value Of Work-Family Strategies That Benefit Both Care Consumers And Paid Care Workers, Peggie R. Smith

Scholarship@WashULaw

When higher-income women “opt in” for full-time employment, they are in a position to contract out some share of their responsibilities in the home to lower-income women who then provide these services. This traditional model of redistributing care work frequently presumes that only child care responsibilities are at stake. However, the aging of the population has increasingly focused attention on workers’ needs for help caring for elderly family members. Indeed, care giving for the elderly may equal, if not surpass, child care as the work-family concern of the twenty-first century. Because elder care, similar to child care, is heavily gendered, …

Framing Disability, Elizabeth F. Emens

Faculty Scholarship

Mainstream attitudes toward disability lag behind U.S. law. This tension between attitudes and law reflects a wider gap between the ideas about disability pervasive in mainstream society — what this Article calls the "outside" view — and the ideas about disability common within the disability community — what this Article calls the "inside" view. The outside perspective tends to misunderstand and mischaracterize aspects of the experience, theory, and law of disability.

The law can help to close this gap in attitudes by changing the conditions in which attitudes are formed or reinforced. Thus, this Article proposes using framing rules to …

Agricultural Revolutions And Agency Wars: How The 1950s Laid The Groundwork For "Silent Spring", Roger E. Meiners, Andrew P. Morriss

Faculty Scholarship

This chapter from the book Silent Spring at 50 analyzes the 1950s struggle over US food policy between USDA and FDA and how that struggle set the stage for the impact of Rachel Carson’s Silent Spring. Using a public choice/interest group analysis, the chapter examines how the two agencies reacted to the large scale transformation of US agriculture and food production during and following World War II. Just as agriculture underwent a dramatic productivity revolution that changed the face of American farming, marketing, new home appliances, and increased participation in the labor force by women radically changed the kinds of …

Silent Spring At 50, Roger Meiners, Pierre Desrochers, Andrew P. Morriss

Faculty Scholarship

This introduction from the book Silent Spring at 50 describes the various contributors’ insights into Rachel Carson’s landmark work. The authors come from a variety of disciplines, including conservation biology, English, law, and economics, and offer critical assessments of Silent Spring and its legacy. The first part has three chapters that put the book into the context of its time, examining it in light of Carson’s previous books on the sea (Wallace Kaufman); the larger tradition of authors warning against human hubris in environmental matters (Pierre Desrochers & Hiroko Shimizu); and the contest between “environmental religion” and “economic religion” that …

Wrongful Convictions Do Lower Deterrence, Nuno Garoupa, Matteo Rizzolli

Faculty Scholarship

The conventional result of the theory of the public enforcement of law is that wrongful convictions of innocents are detrimental to deterrence. This proposition has been challenged recently. In some cases, wrongful convictions do not jeopardize deterrence, because they influence equally the innocent and the guilty. Therefore deterrence does not change. We show that, in general, wrongful convictions do lower deterrence. We prove that wrongful convictions do not jeopardize deterrence only in very limited circumstances or under unlikely assumptions.

Denial And Concealment Of Unwanted Pregnancy: "A Film Hollywood Dared Not Do", Susan Ayres, Prema Manjunath

Faculty Scholarship

The actual cases and two films examined in this essay challenge stock narratives of mothers who deny or conceal unwanted pregnancy as a monster, or a victim, and also challenge "legal norms, logic and structures" pertaining to unwanted pregnancy and neonaticide. This essay draws on films because of their influential power to "reach enormous audiences by combining narratives and appealing characters with visual imagery and technological achievement, ... stir deep emotions and leave deep impressions." For these reasons, Orit Kamir asserts that films are more compelling than "theoretical legal texts or even judicial rhetoric."

The two films examined -- Stephanie …

The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel

Faculty Scholarship

In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …

A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Decoding First Amendment Coverage Of Computer Source Code In The Age Of Youtube, Facebook And The Arab Spring, Jorge Roig

Scholarly Works

Computer source code is the lifeblood of the Internet. It is also the brick and mortar of cyberspace. As such, it has been argued that the degree of control that a government can wield over code can be a powerful tool for controlling new technologies. With the advent and proliferation in the Internet of social networking media and platforms for the publication and sharing of user-generated content, the ability of individuals across the world to communicate with each other has reached truly revolutionary dimensions. The influence of Facebook in the popular revolutions of the Arab Spring has been well documented. …