Legal Writing and Research Commons^™

Chevron Is A Rorschach Test Ink Blot, Jack M. Beermann

Faculty Scholarship

I agree with Alan Morrison that, in some circumstances, courts should defer to legal determinations made by administrative agencies. I disagree, however, with Alan’s view that Chevron provides a suitable framework for such deference. It really boils down to my disagreement with the first sentence of Alan’s article: “In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., the Supreme Court unanimously adopted an approach to interpreting federal statutes under which the courts are required to give substantial deference to the interpretations by the administrative agencies that enforce them.”1 In fact, the Supreme Court adopted nothing in Chevron related to …

Amicus Curaie, Submitted Susan Akram, Susan M. Akram

Faculty Scholarship

Summary of Argument

Palestinian refugees fall under a legal regime that is distinct from all other refugees in the world. As such, they are covered by a series of special provisions that apply only to them and no other refugees. Their special status resulted from the decisions of the drafters of key international treaties to exclude Palestinian refugees from the mandate of the United Nations High Commissioner for Refugees (UNHCR) and the 1954 Convention on the Status of Stateless Persons, and to conditionally exclude them from the benefits of the 1951 Convention on the Status of Refugees.

Three main reasons …

Brief Amici Curiae Of Professors Of History, Political Science, And Law In Support Of Respondent, Kristin Collins, Catherine E. Stetson, Jessica K. Jacobs

Faculty Scholarship

Sex-based laws premised on archaic presumptions about the proper roles of men and women run afoul of established constitutional principles, especially when they interfere with the parent-child relationship. Amici write to explain the history of the federal government’s use of sex-based classifications in the regulation of citizenship. In its regulation of intergenerational and interspousal citizenship transmission, the federal government has perpetuated outdated gender-based norms concerning proper parental roles, even when those norms have been rejected in other legal and social contexts. In addition, the laws governing derivative citizenship have significantly encumbered the ability of American fathers to transmit citizenship to …

The Future Of Empirical Legal Scholarship: Where Might We Go From Here?, Kathryn Zeiler

Faculty Scholarship

The number of empirical legal studies published by academic journals is on the rise. Given theory’s dominance over the last few decades, this is a welcome development. This movement, however, has been plagued by a lack of rigor and a failure of editors to require disclosure of data and procedures that allow for easy replication of published results. Law journals, the editorial boards of which are manned solely by law students, might face the toughest hurdles in ensuring publication of only high quality empirical studies and in implementing and enforcing disclosure policies. While scholars in other fields including economics, psychology, …

Introduction To Thinking About A Post-Aca World: Litigation, Cost Shifting And Enforcement Of Statutory Rights, Maria O'Brien

Faculty Scholarship

At its annual gathering in 2016, members of the Employee Benefits and Executive Compensation and Law, Medicine and Healthcare Sections of the Association of American Law Schools (AALS) jointly sponsored a discussion of the future of the Affordable Care Act (ACA) following the Supreme Court's decision in King v. Burwell.' What follows are the papers generated for the panel discussion. The panelists² were asked to evaluate the future of the ACA from a distinct perspective.

Is This The Law Library Or An Episode Of The Jetsons?, Ronald E. Wheeler

Faculty Scholarship

In this brief essay penned for the inaugural online edition of the Journal of the Legal Writing Institute, Professor Wheeler discusses his vision for the future of law libraries and the future of legal research, legal research instruction, law teaching, and law related technologies.

Preface, Ken I. Kersch, Linda C. Mcclain

Faculty Scholarship

In an essay in the Texas Law Review not too long ago, Sandy Levinson lamented the degree to which law reviews—most prominently the Michigan Law Review—were sharply cutting down on the space they were devoting to book reviews. This was especially unfortunate as law professors were publishing more and more books. The publication of a book, as opposed to a journal article, was for many a deliberate choice involving an effort to address subjects at greater length, in greater depth, and on a broader scale for a wider scholarly (and perhaps educated popular) audience. Thematic review essays on books, whether …

On Legal Scholarship, Danielle K. Citron, Robin West

Shorter Faculty Works

Academic critics contend that legal scholarship is overly argumentative or too “normative,” simply stating what the law should be, as well as what the law is. It isn’t about pure scholarship’s pursuit of knowledge within the discipline of a recognized academic field. Critics from the bar and the judiciary proffer the opposite complaint: legal scholarship is too academic and not professional enough, enamored with fads, unmoored from any discipline and of little use to the practicing lawyer or sitting judge. Law schools’ legions of cost-conscious critics complain that paying high salaries to professors with low course loads drives up tuitions. …

Global Health And Human Rights: Legal And Philosophical Perspectives; The Right To Health In International Law, Erika George

Faculty Scholarship

John Harrington and Maria Stuttaford (eds). Global Health and Human Rights: Legal and Philosophical Perspectives. New York: Routledge, 2010. Pp. 232. £85 (pbk £24.99). ISBN: 9780415479387.

John Tobin. The Right to Health in International Law. New York: Oxford University Press, 2012. Pp. 440. £74. ISBN: 9780199603299.

Two recent publications present a defence of the right to health as it is articulated in international law and also provide insights into the array of impediments to realizing the health right. Despite a perceived conceptual lack of coherence and a limited appreciation of its relevance among health care professionals identified in …

Teaching Westlawnext: Next Steps For Teachers Of Legal Research, Ronald E. Wheeler

Faculty Scholarship

As a follow up to his earlier piece titled "Does WestlawNext Really Change Everything: The Implications of WestlawNext on Legal Research," Professor Wheeler here explores strategies for teaching students to effectively research using the WestlawNext legal research platform. He focuses on challenging law librarians and other teachers of legal research to embrace change, to innovate and to devise research exercises that highlight both the advantages and the alleged pitfalls of WestlawNext. In particular, Professor Wheeler discusses source selection, filters, addressing the volume of results, esoteric content, and Boolean searching.

Persuasive Visions: Film And Memory, Jessica Silbey

Faculty Scholarship

This commentary takes a new look at law and film studies through the lens of film as memory. Instead of describing film as evidence and foreordaining its role in truth-seeking processes, it thinks instead of film as individual, institutional and cultural memory, placing it squarely within the realm of contestability. Paralleling film genres, the commentary imagines four forms of memory that film could embody: memorabilia (cinéma vérité), memoirs (autobiographical and biographical film), ceremonial memorials (narrative film monuments of a life, person or institution), and mythic memory (dramatic fictional film). Imagining film as memory resituates film’s role in law (procedural, substantive …

Truth, Justice, And The Libertarian Way(S), Gary S. Lawson

Faculty Scholarship

More than twenty years ago, I was commissioned to write an article – my very first scholarly article – on “the ethics of insider trading” (this was hot on the heels of the Ivan Boesky insider-trading scandal of the mid-1980s).1 After tracing philosophical debates concerning the morality of exchanges based on unequal information from Cicero and Aquinas through Henry Manne and Frank Easterbrook,2 I had to decide what I could responsibly say in a scholarly work as a matter of substantive moral theory about the practice of insider trading – and derivatively what it would be appropriate to say normatively …

Does Westlawnext Really Change Everything: The Implications Of Westlawnext On Legal Research, Ronald E. Wheeler

Faculty Scholarship

WestlawNext, Thomson Reuters’ newest electronic research service, has been around for over a year now. Ron Wheeler shares his thoughts on how this service may impact various aspects of legal research, and he suggests further study and research are necessary to fully evaluate and comprehend the system.

The Twist Of Long Terms: Judicial Elections, Role Fidelity, And American Tort Law, Jed Handelsman Shugerman

Faculty Scholarship

The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth centuries. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule.

In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: they were …

Introduction To Symposium: Reasoning From Literature, Jessica Silbey

Faculty Scholarship

The “literary turn” in legal studies manifests in many ways in our legal discipline and practice. Be it with the birth of the study of law and literature in the 1980s, the growing attention to narrative theory and storytelling in the law in the 1990s, or the “cultural turn” in legal studies in the 21st century (as some scholars have called the cultural analysis of law), reasoning from literature seems commonplace. And yet it is still marginalized in legal studies as interdisciplinary, not “really law,” and lacking the core persuasive power that legal argumentation and doctrinal analysis do. This Symposium …

Sovereignty As Discourse, Robert L. Tsai

Faculty Scholarship

This is a review of Howard Schweber's book, "The Language of Liberal Constitutionalism" (Cambridge University Press, 2007). Schweber argues that "the creation of a legitimate constitutional regime depends on a prior commitment to employ constitutional language, and that such a commitment is both the necessary and sufficient condition for constitution making." I critique the power and limits of this reformulated Lockean thesis, as well as Schweber's secondary claims that, for constitutional language to remain legitimate, it must increasingly become autonomous, specialized, and secular.

Brief Amici Curiae Of Iowa Professors Of Law And History, Frederick Adams, Victoria Bissell Brown, Patricia Cain, Lois Cox, Ann Laquer Estin, Sally Frank, Elizabeth Heineman, Linda K. Kerber, Karen Leroux, Suzanne J. Levitt, Jean Love, Linda A. Mcguire, Kevin Mumford, Angela Onwuachi-Willig, Sarah J. Purcell, Margaret Raymond, Mark E. Schantz, Johanna Schoen, Leslie A. Schwalm, Mark Sidel, Peggie Smith, Maura Irene Strassberg, Shelton Stromquist

Faculty Scholarship

This case calls upon the State of Iowa to reaffirm its historic commitment to protecting the equality and individual liberties of all of its citizens, including its lesbian and gay male citizens. It requires this Court to interpret Iowa’s unique constitution with due respect for both text and tradition. The case must be analyzed against the backdrop of Iowa’s leadership and courage in the areas of civil rights and family law, and the willingness of its judiciary to uphold constitutional mandates in the face of efforts to legislate prejudice and discrimination.

Plaintiff-Appellees seek nothing more than to share in the …

Proof Brief Of Professors Of Family Law And Jurisprudence As Amici Curiae In Support Of Plaintiff-Appellee, Joseph M. Barron, Richard T. Greenberg, Shannon Price Minter, Carlos A. Ball, Naomi Cahn, June Carbone, Ann Laquer Estin, Joan Heifetz Hollinger, Angela Onwuachi-Willig, Sarah H. Ramsey, Michael S. Wald

Faculty Scholarship

The plaintiffs in this case met their burden of demonstrating the irrationality of Iowa’s statutory exclusion of same-sex couples from marriage. They did this, in part, by presenting social science research regarding the irrelevance of sexual orientation to parental ability and the psychological and social well-being of children raised by same-sex parents. In addition to arguing that the marriage exclusion is irrational, the plaintiffs also alleged that the exclusion should be subject to heightened scrutiny because it violates the fundamental right to marry and discriminates on the bases of gender and sexual orientation. Amici agree that the exclusion of same-sex …

Together We Can: Imagining The Future Of Employee Pensions, Maria O'Brien

Faculty Scholarship

Reviewing Teresa Ghilarducci & Christian E. Weller, Eds. Employee Pensions: Policies, Problems & Possibilities (LERA 2007)

A little over thirty years ago Congress enacted the Employee Retirement Income Security Act (ERISA),¹ a comprehensive reform of the existing system of pension regulation.² Solidly into its fourth decade, ERISA has been the object of much commentary as the various federal courts have struggled to infuse its complicated and sometimes imprecise pieces with coherent meaning. ³ Some have suggested that ERISA's primary goal of reducing the risk to employees of employer default has largely been achieved.⁴ Others believe that almost …

Contract Law And Distribution In The Age Of Welfare Reform, Daniela Caruso

Faculty Scholarship

This Article tracks the ongoing adaptation of U.S. contract law to the 1990s’ contraction of the welfare state. Some courts strive to compensate for the shortage of welfare services and to pursue redistributive goals. This Article provides examples of this trend and then analyzes the non-linear relation between doctrines, judicial redistribution, and welfare politics in both case law and scholarship. Finally, this Article discusses the role of socially sensitive judicial discourse in light of contemporary welfare politics and explains its continuing importance.

The U.S. Supreme Court And Medical Ethics: From Contraception To Managed Health Care, George J. Annas

Faculty Scholarship

Review of The U.S. Supreme Court and Medical Ethics: From Contraception to Managed Health Care (2004) by Bryan Hilliard

Federalism's Fallacy: The Early Tradition Of Federal Family Law And The Invention Of States' Rights, Kristin Collins

Faculty Scholarship

By examining the history of the federal government's role in the regulation of the family, this article joins the work of others who in recent years have begun to piece together the history of the federal government's role in crafting domestic relations law and policy.'⁸ Much of this attention has focused on federal involvement in domestic relations in the late nineteenth and early twentieth centuries, with relatively less consideration given to the pre-Civil War period. Though recent contributions to this field have helped to cure this imbalance, ¹⁹ there remains a strong sense, especially among lawyers and judges, that …

The Law's Many Bodies, And The Manuscript Tradition In English Legal History, David J. Seipp

Faculty Scholarship

Sir John Baker's recent book The Law's Two Bodies supplies a happy occasion to celebrate and reflect on Professor Baker's unique place within the field of English legal history today

Students beginning their study of this subject can well imagine the long history of the English common law as an hourglass. The wide upper chamber of the hourglass is the rich, complex, intricate medieval law of the Year Books. The wide bottom chamber is the equally rich, complex, intricate but very different caselaw of the modem age. The narrow neck of the hourglass can be imagined as the mind of …

Researching International Environmental Law, Ronald E. Wheeler

Faculty Scholarship

Question: I would like to use the Internet to research issues involving international law, specifically international environmental law. How can I access relevant information quickly if I have very little information to begin with?

Foreword To Amicus Brief On The Status Of Palestinian Refugees Under International Refugee Law, Guy Goodwin-Gill, Susan M. Akram

Faculty Scholarship

Palestinian refugees have a status that is unique under international refugee law. Unlike any other group or category of refugees in the world, Palestinians are singled out for exceptional treatment in the major international legal instruments which govern the rights and obligations of states towards refugees: the 1951 Geneva Convention Relating to the Status of Refugees and its 1967 Protocol; the Statute of the United Nations High Commissioner for Refugees; and, specifically with regard to the Palestinians, the Regulations governing the mandate of the United Nations Relief and Works Agency for Palestinian Refugees in the Near East. Almost all states …

Symposium: Advances In Biomaterials And Devices, And Their Financing, Ronald A. Cass, Michael S. Baram, Steven Bauer, Joyce Wong, Martin Yarmush, Joshua Tolkoff, Rufus King

Faculty Scholarship

My name is Professor Michael Baram and I direct the Center for Law and Technology here at the law school. Today's meeting is the third annual Technology Law Symposium to be held here, sponsored by the high technology law firm of Testa, Hurwitz & Thibeault, LLP and the Center for Law and Technology.

Our meeting today is focused on an exciting area of research and product development. This area involves the use of conventional as well as new genetically engineered biomaterials in new medical device configurations for implantation and with the purpose of restoring bodily functions, regenerating tissue, bone, cartilage, …

Holmes's Good Man: A Comment On Levinson And Balkin, Jack M. Beermann

Faculty Scholarship

Sanford Levinson and J.M. Balkin's paper ("L & B") is refreshing in the attention it pays to Holmes's oft-neglected "good [man], who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience."¹ The good man provides a heuristic foil for Holmes's "bad man" whose conduct is motivated only by the potential material consequences, and thus L & B's analysis should help shed light on what is a puzzling metaphor in the folklore surrounding Holmes's The Path of the Law. L & B provide some interesting observations on the implications of …

Comment On Frederick Schauer's Prediction And Particularity, Gerald F. Leonard

Faculty Scholarship

Ignorance of the law is generally no excuse. I say generally because the century since the publication of The Path of the Law has brought a small but increasing number of exceptions to the rule. In Oliver Wendell Holmes's day, however, exceptions to the rule were nearly nonexistent, much to Holmes's satisfaction. In The Common Law, Holmes said that the law requires persons "at their peril to know the teachings of common experience, just as it requires them to know the law."  He did not, of course, actually think that common experience was perfectly knowable or judicial interpretation perfectly predictable, …

Review Of "Constitutional Torts" By Sheldon H. Nahmod, Michael L. Wells, Thomas A. Eaton, Jack M. Beermann

Faculty Scholarship

The most interesting issues in the field of constitutional torts, involving the legal and moral bases for the government's responsibility for injuries it causes, are the most difficult ones for lawyers to explore. The question whether, as a moral or social policy matter, governments and government officials should enjoy immunities or other defenses not available to private individuals is rarely confronted directly in judicial opinions or in scholarship on constitutional torts, yet it lurks behind many of the doctrinal issues that come up in constitutional tort litigation.¹ A slight scratch on the surface of doctrines as disparate as official …

The Supreme Court's Narrow View On Civil Rights, Jack M. Beermann

Faculty Scholarship

The right to choose abortion, although recently significantly curtailed from its original scope,' is a federally protected liberty interest of women, and is at least protected against the imposition of "undue burdens" by state and local government.² Some of the most serious threats to women's ability to choose abortion have come not from government regulation, but from private, national, organized efforts to prevent abortions. In addition to seeking change through the political system, some of these organizations, most notably Operation Rescue, have focused on the providers of abortion, and have attempted to prevent abortions by forcibly closing abortion clinics …