Legal Writing and Research Commons^™

Whose Rights Should Prevail? Toward A Child-Centric Approach To Revocation Of Birthparent Consent In Domestic Infant Abortion, David L. Thibodeaux

Belmont Law Review

Though overhaul of adoption laws across the United States has been nearly universal, there is still no uniformity among the states in approach to voluntary relinquishment of parental rights: the very issue at the heart of the controversial cases that sparked reform. This Note attempts to track the development of domestic adoption laws as they affect birthparent consent in infant adoptions, the competing policies driving these developments, and the way states have attempted to reconcile that friction. Part I of this Note provides an underpinning of adoption terminology by outlining the actors involved, the basic elements required for infant adoption …

Proactive Protection: How The Idea Can Better Address The Behavioral Problems Of Children With Disabilities In Schools, Patrick Ober

Belmont Law Review

The Individuals with Disabilities Education Act (“IDEA”) needs to be amended to proactively promote positive behavioral interventions and reduce unnecessary and highly dangerous uses of restraint and seclusion. The IDEA purports to advance these goals, but in reality the relevant provisions of the IDEA require behavioral plans only as a reactionary measure to violent or disruptive behavior. This Note proposes an amendment to the IDEA to address these problems proactively.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Bench Memorandum, 31 J. Marshall J. Computer & Info. L. 237 (2014), Adam Florek, Anisha Mehta, Danielle Young, Michael Greene

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Brief For The Petitioner, 31 J. Marshall J. Computer & Info. L. 251 (2014), Amany Awad, Kelly O'Neill, Arlo Walsman

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

The Thirty-Third Annual John Marshall Law School International Moot Court Competition In Information Technology And Privacy Law: Brief For The Respondent, 31 J. Marshall J. Computer & Info. L. 285 (2014), Sara Schroeder, Austin Hoffman, Becky Fey

UIC John Marshall Journal of Information Technology & Privacy Law

No abstract provided.

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. …

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, and Table of Contents for St. Thomas Law Review Volume 26, Issue 2, Winter 2014.

Reforming Tennessee's Rules Of Appellate Procedure: Separate Notices Of Appeal...Or Not?, Robert F. Parsley, Travis R. Mcdonough, Marcia M. Eason

Belmont Law Review

When it comes to the filing of separate notices of appeal, Tennessee’s Rules of Appellate Procedure contain an internal inconsistency. This inconsistency, which has yielded two conflicting and incompatible lines of judicial interpretation, undermines the coherence of Tennessee appellate procedure and poses unfairly contradictory outcomes for similarly situated appellants. To resolve this inconsistency, Tennessee’s Rules of Appellate Procedure should be reformed.

"Made-Whole" Made Fair: A Proposal To Modify Subrogation In Tennessee Tort Actions, John A. Day

Belmont Law Review

This Article proposes the adoption of the “Modified Made-Whole Doctrine Proposal." Part I begins by explaining the roots of the law of subrogation rights and its current jurisprudential inconsistencies. It also explores the relationship between such subrogation rights and the made-whole doctrine in the context of Tennessee tort law as well as how this doctrine would be applied in Tennessee today. Part II briefly outlines some of the general questions regarding Tennessee’s current application of the made-whole doctrine, particularly the unresolved issues surrounding the impact of comparative fault on subrogation rights. These are questions which the author’s suggested Proposal is …

The Future Of Ediscovery In Tennessee, Roe Frazer, Marc Jenkins

Belmont Law Review

This Article begins by outlining changes in the modern digital world through an examination of essential laws of computing unfamiliar to most lawyers but crucial to an understanding of the changing landscape of technology and its projected impact on modern society. Part II then applies these principles to the practice of law in the context of electronic discovery, pointing to the challenges posed under the current Rules of Civil Procedure, an ever-increasing overabundance of discoverable data, and the inadequacy of existing technology and processes possessed by the typical lawyer to deal with these challenges. Finally, Part III of this Article …

What Might Have Been: 25 Years Of Robert Bork On The United States Supreme Court, Benjamin Pomerance

Belmont Law Review

This Article tries to briefly attempt an answer to what would have happened if Robert Bork had sat on the Supreme Court bench. Part I examines the backgrounds of Judge Bork and Justice Kennedy, and then studies some of the major cases decided by the Court in four key areas — abortion, freedom of speech, the right to bear arms, and civil rights — during the last twenty-five years. Part II then evaluates the voting record of Justice Kennedy in these cases, as well as the views held by Judge Bork — based on Bork’s own writings, on opinions that …

Conveying Titles Clearly: Thoughts On The Fifth Edition Of The Alwd Guide To Legal Citation (Book Review), Stephen Paskey

Book Reviews

No abstract provided.

Public Access To Primary Legal Information In China: Challenges And Opportunities, Xiaomeng Zhang

Law Librarian Scholarship

Despite a lack of a national legislation that mandates open government information in the People's Republic of China, each major government branch has taken proactive efforts to make primary legal information issued within their power available to the public. A close examination of Chinese official legal information portals on the national level reveal issues such as a lack of uniformity and a lack of access to authenticated primary legal information. This article proposes a solution that would not only offer more consistent guidelines for the government but would empower the public to assert their right to primary legal information more …

The Dominance Of Teams In The Production Of Legal Knowledge, Christopher A. Cotropia

Law Faculty Publications

While collaboration is familiar to some legal researchers, the field, for the most part, does not seem to implicate the large-scale complexity and cost that has become associated with big science. These logistical differences, combined with a very strong cultural preference in legal academic circles for solitary work, could potentially keep team research from dominating the production of legal knowledge to the same extent that it has come to dominate the production of knowledge in other areas. On the other hand, the dominance of team research outputs and a shift towards team research has been observed in social sciences and …

Maryland Practice Materials: A Selective Annotated Bibliography, Adeen Postar, Khelani Clay

All Faculty Scholarship

This chapter is intended to cover Maryland Law in its entire complexity and for the most part is intended for current use by practitioners. Whenever possible, it includes references to online sources of material, including LexisNexis, Westlaw, and authoritative sites available on the Internet. We have not included references to WestlawNext as many Maryland specific materials have not been included there as this project was concluding in November 2011.

Hawking Hyphens In Compound Modifiers, Joan Ames Magat

Faculty Scholarship

The first principle of legal writing is surely its clarity — visible actors (unless the action matters more), uncluttered syntax, and, of course, logical structure. But the little things can matter to clarity, too — such as deliberate punctuation that signifies. In the language of law, in which compound nouns are rife, the reader can feel adrift as to where modifiers end and the noun begins. (Consider government-subsidized health flexible-spending arrangement without those hyphens.) Hyphens help. Whether an author cares to hyphenate the noun is his call; but hyphenating compound modifiers (also called phrasal adjectives, though they may include adverbs …

Two Years Later And Counting: The Implications Of The Supreme Court's Taxing Power Decision On The Goals Of The Affordable Care Act, Alberto R. Gonzales, Donald B. Stuart

Law Faculty Scholarship

In 2012, in a highly anticipated decision, the United States Supreme Court upheld the constitutionality of a requirement that most Americans obtain health insurance or pay a monetary penalty.' The statute in question that contained this requirement, the Patient Protection and Affordable Care Act (Act or ACA), often labeled as "Obamacare," or the Affordable Care Act, was a monumental piece of legislation (over 900 pages) that was passed by Congress and signed into law by President Barack Obama in 2010. The Act represented a significant overhaul of the country's health care system and structure. The primary objectives of this legislation …

Crowdsourced Coursebooks, Stephen E. Henderson, Joseph Thai

Faculty Articles

Given increasing criticism and dropping admissions, American legal education is likely to change, hopefully reversing the unsustainable trend of increasing expense without increasing value. Much debate focuses on restructuring the curriculum to make it more “practical” and skills-infused; here we instead propose a rethinking of the basic unit of law teaching, the casebook. Casebook authors and publishers are cautiously venturing into electronic editions, but they fail to harness the power of social learning to make textbooks dramatically smarter as well as cheaper. Working with a technology startup, we are developing an online platform that reinvents both authorship and learning. The …

Fight The Hypo: Fake Arguments, Trolleyology, And The Limits Of Hypotheticals, Jethro K. Lieberman

Tribeca Square Press

The hypothetical is the staple of the law school classroom and useful in most intellectual endeavors. But, this inaugural lecture argues, interlocutors frequently misuse and misinterpret responses to hypotheticals because they demand that their respondents accept the “facts” embedded within. This form of argument, dubbed “FAKE” (for “Facts Are Known Exactly”), poses “facts” that are either impossible to accept or highly improbable and that would provoke counterarguments but for the command to accept the facts as hypothesized. The author presents his thesis in part through the lens of recent literature on the ethics of runaway trolley cars (these cases constitute …

Accessing Law: An Empirical Study Exploring The Influence Of Legal Research Medium, Katrina Fischer Kuh

Elisabeth Haub School of Law Faculty Publications

The legal profession is presently engaged in an uncontrolled experiment. Attorneys now locate and access legal authorities primarily through electronic means. Although this shift to an electronic research medium radically changes how attorneys discover and encounter law, little empirical work investigates impacts from the shift to an electronic medium.

This Article presents the results of one of the most robust empirical studies conducted to date comparing research processes using print and electronic sources. While the study presented in this Article was modest in scope, the extent and type of the differences that it reveals are notable. Some of the observed …

On The Receiving End Of Influence: Helping Craft The Scholarship Of My Students And How Their Work Influences Me, Angela Mae Kupenda

Journal Articles

My essay is divided into two parts. In part one I share about the struggle I had to endure to even allow myself the opportunity to be influenced by my students. Institutional struggles and professorial expectations as to how the academy should operate were hurdles I had to clear. Also, I had personal hurdles of making the commitment that I did for over five years. In part two, I primarily focus on some of my law students’ scholarship over the past five years and reflect on the life changing influence they have had on me. Their work and dedication have …

Texting And The Friction Of Writing, Lindsey P. Gustafson

Law Faculty Scholarship

No abstract provided.

Front Matter

St. Thomas Law Review

Front Matter includes Masthead, advisors, Table of Contents and Preface for St. Thomas Law Review Volume 26, Issue 3, Spring 2014.

Erasing Boundaries: Inter-School Collaboration And Its Pedagogical Opportunities, David I.C. Thomson, Ian Gallacher, Amy R. Stein, Robin Boyle

Faculty Publications

(Excerpt)

This article, based on a presentation that we gave at the AALS conference in New York in January of 2014, suggests that technology opens up new possibilities for law schools by allowing students from different schools to participate in complex inter-school simulations that can, if carefully prepared, teach important lessons about lawyering skills, behavior, and provide rich opportunities for the development of professional identity. It can, in short, deepen and enrich the experiential learning opportunities that law schools offer. The article does not propose that law school faculty should teach or grade students from another school, but that the …

Understanding Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Insurance companies are in the business of discrimination. Insurers attempt to segregate insureds into separate risk pools based on the differences in their risk profiles, first, so that different premiums can be charged to the different groups based on their differing risks and, second, to incentivize risk reduction by insureds. This is why we let insurers discriminate. There are limits, however, to the types of discrimination that are permissible for insurers. But what exactly are those limits and how are they justified? To answer these questions, this Article (a) articulates the leading fairness and efficiency arguments for and against limiting …

Towards A Universal Framework For Insurance Anti-Discrimination Laws, Ronen Avraham, Kyle D. Logue, Daniel Schwarcz

Articles

Discrimination in insurance is principally regulated at the state level. Surprisingly, there is a great deal of variation across coverage lines and policyholder characteristics in how and the extent to which risk classification by insurers is limited. Some statutes expressly permit insurers to consider certain characteristics, while other characteristics are forbidden or limited in various ways. What explains this variation across coverage lines and policyholder characteristics? Drawing on a unique, hand-collected data-set consisting of the laws regulating insurer risk classification in fifty-one U.S. jurisdictions, this Article argues that much of the variation in state-level regulation of risk classification can in …

From Theory And Research To Policy And Practice In Work And Employment - And Beyond?, Harry W. Arthurs

Articles & Book Chapters

This paper was delivered as the keynote address to the 50th Annual Conference, Canadian Industrial Relations Association, 29 May 2013. My thanks to Alex Zamfir, JD Candidate, Osgoode Hall Law School, for his editorial and research assistance.

A Prequel To Law And Revolution: A Long Lost Manuscript Of Harold J. Berman Comes To Light, John Witte Jr., Christopher J. Manzer

Faculty Articles

The late Harold Berman was a pioneering scholar of Soviet law, legal history, jurisprudence, and law and religion; he is best known today for his monumental Law and Revolution series on the Western legal tradition. Berman wrote a short book, Law and Language, in the early 1960s, but it was not published until 2013. In this early text, he adumbrated many of the main themes of his later work, including Law and Revolution. He also anticipated a good deal of the interdisciplinary and comparative methodology that we take for granted today, even though it was rare in the …

Book Review: Presumed Incompetent: The Intersections Of Race And Class For Women In Academia, Sonia N. Lawrence

Articles & Book Chapters

This is a book review of Presumed Incompetent: The Intersections of Race and Class for Women in Academia Gabriella Gutierrez y Muhs, Yolanda Flores Niemann, Carmen G. Gonzalez, and Angela P. Harris, eds., Boulder, CO: Utah State University Press, 2012.

Unplanned Coauthorship, Shyamkrishna Balganesh

Faculty Scholarship

Unplanned coauthorship refers to the process by which contributors to a creative work are treated by copyright law as coauthors of the work based entirely on their observable behavior during its creation. The process entails a court imputing the status of coauthors to the parties ex post, usually during a claim for copyright infringement. For years now, courts and scholars have struggled to identify a coherent rationale for unplanned coauthorship and situate it within copyright’s set of goals and objectives. This Article offers a novel framework for understanding the rules of unplanned coauthorship using insights from theories of shared intentionality. …