Legal Studies Commons^™

Federalizing Legal Ethics, Nationalizing Law Practice, And The Future Of The American Legal Profession In A Global Age, Eli Wald

San Diego Law Review

This Article is organized as a response to Zaharias’s influential paper, revisiting each of his four analytical steps. Following Zacharias, Part II documents the growing nationalization and globalization of law practice, and argues that the transformation of law practice renders the state-based regulation of lawyers ineffective. Part III parts ways with Zacharias’s thesis. It asserts that nationalizing, by federalizing, legal ethics is not warranted by changing practice realities and that, worse, federalizing legal ethics without more will leave some of the most troubling aspects of the transformation of law practice, including client needs, unaddressed. Instead, Part III argues that the …

Three Concepts Of Roles, W. Bradley Wendel

San Diego Law Review

There is something distinctive about the law, legal reasoning, and the role of lawyers. That distinctiveness is captured by the idea that normative reasoning by citizens in communities is necessarily aimed at discovering what rights and obligations everyone ought to have, consistent with the interests of other citizens. It is implausible to believe that ordinary moral reasoning is well-suited to working out a scheme of public entitlements that is suited to regulating the interactions among citizens who disagree about what their entitlements ought to be. The law has authority to the extent it enables people to do better than they …

Jurisdiction‐Granting: Legislative Capacity And Ideological Distance, Seth W. Greenfest

Political Science Faculty Publications

This paper examines the conditions under which Congress passes jurisdiction-granting legislation, legislation that expands the discretion of the federal district courts by designating them as venues in which policy questions are to be heard. This project extends existing research that has demonstrated that Congress manipulates the parameters of jurisdiction by examining the manner in which Congress routinely engages in this activity. I construct and evaluate a comprehensive dataset of laws in which Congress grants jurisdiction to the district courts for the period between 1949 and 2000 with the goal of explaining conditions under which Congress grants jurisdiction Two explanations are …

Constraints On State-Level Foreign Policy: (Re) Justifying, Refining And Distinguishing The Dormant Foreign Affairs Doctrine, Matthew Schaefer

Nebraska College of Law: Faculty Publications

A reassessment of United States' constitutional constraints on state-level foreign policy is sorely needed. State engagement in foreign policy was rarely significant until the 1960s. Since that time, state involvement has rapidly expanded in both sheer magnitude and the types of activities undertaken. The most prominent and problematic among these state and local activities in the past fifty-plus years has been three waves of state and local sanction initiatives targeting countries ruled by regimes with repugnant human rights policies. In the mid-1980s, over half of the states and at least 100 localities adopted sanctions legislation against South Africa, most often …

The Federal Common Law Of Vicarious Fiduciary Liability Under Erisa, Colleen E. Medill

Nebraska College of Law: Faculty Publications

Absent a federal common law rule of vicarious fiduciary liability, a corporate employer, in its nonfiduciary capacity as the settlor of its ERISA plan, may design the documents that govern the employer's plan as a shield against fiduciary responsibility for the actions of the employer's own internal fiduciary employees. This Article explores the potential for development of another area of federal common law under ERISA - the incorporation of respondeat superior liability principles to impose ERISA fiduciary liability ("vicarious fiduciary liability") upon a corporation for the fiduciary activities of its employees or agents. This claims and remedies system requires that …

"Trophy Husbands" & "Opt-Out" Moms, Beth Burkstrand-Reid

Nebraska College of Law: Faculty Publications

Before women were "opting out" of the workforce (as depicted by the New York Times)' to stay at home with their children, a subset of fathers had already done so. The 2002 Fortune cover story titled Trophy Husbands documented the "dramatic shift afoot" of well-off, educated men leaving paid work in order to tend to the home and kids in support of their powerful wives' careers:3 "Trophy Husbands? Arm candy? Are you kidding? While their fast-track wives go to work, stay-at-home husbands mind the kids. They deserve a trophy for trading places. The article portrayed these men as taking …

The More Things Change ... : Abortion Politics & The Regulation Of Assisted Reproductive Technology, Beth Burkstrand-Reid

Nebraska College of Law: Faculty Publications

Comparing abortion and assisted reproductive technology (ART)--especially controversial techniques like cytoplasm donation--may be detrimental to both. Each technology forces society to confront the deepest issues concerning the beginning of life and, for women, forces them to consider when motherhood begins and what responsibilities might flow from it. Abortion rights advocates must push the inception of motherhood to a point as late in the gestational process as possible so as to avoid thorny issues of fetal personhood. Fertility doctors and their patients may have just as strong of an interest in recognizing an earlier start to motherhood, as a way of …

Teaching Controversial Topics, Jennifer S. Hendricks, Beth Burkstrand-Reid, June Carbone

Nebraska College of Law: Faculty Publications

At the 2009 Future of Family Law Education conference at the William Mitchell School of Law, the authors participated in a panel discussing strategies for teaching controversial topics, which focused on teaching reproductive rights and related gender issues. This essay collects some of the strategies discussed at the conference. First we address what constitutes a “controversial” legal topic, outlining the several different ways in which a topic might be or become controversial within the context of a particular class. Next, we discuss the importance of laying the groundwork, throughout the semester, for the anticipated—and unanticipated— discussions surrounding controversial topics and …

Mudslinging On The Missouri: Can Endangered Species Survive The Clean Water Act?, Sandra Zellmer

Nebraska College of Law: Faculty Publications

This Article analyzes the perceived conflict between the CWA's demand for clean water, which in some, but not all, cases means clear water, and the "no jeopardy" requirement of the Endangered Species Act (ESA), and determines that the two statutes are not in conflict at all. Under the CWA, water quality managers are tasked with creating standards that promote a river's uses. Native species habitat is one use that must be protected under the CWA, just as it must be protected under the ESA. Water quality standards should promote that use by recognizing that the Missouri River, and others like …

Throwing Precaution To The Wind: Nepa And The Deepwater Horizon Blowout, Sandra Zellmer, Joel A. Mintz, Robert Glicksman

Nebraska College of Law: Faculty Publications

On April 20, 2010, British Petroleum's ("BP") Deepwater Horizon oil platform exploded, killing eleven workers. When the platform sank to the bottom of the Gulf of Mexico two days later, oil erupted out of the riser-a 5000-foot pipe connecting the platform to the well on the ocean floor. Efforts to stem the flow failed when a safety device, the "blowout preventer," could not be activated. Finally, after a number of attempts to stop the leak, BP capped the well on July 15. Nearly five million barrels of oil were released over the course of eighty-six days, making the Deepwater Horizon …

Keeping A Secret From Yourself? Confidentiality When The Same Neutral Serves Both As Mediator And As Arbitrator In The Same Case, Kristen M. Blankley

Nebraska College of Law: Faculty Publications

As the alternative dispute resolution field has grown, parties have designed their own processes from established processes in an attempt to best serve their process needs. One such hybrid process is mediationarbitration, called “med-arb” for short. Med-arb involves a single neutral who first serves as a mediator, and if the parties reach an impasse in mediation, the neutral then serves as an arbitrator to resolve the dispute. Although the literature has given some attention to the benefits and drawbacks of med-arb, this Article examines the process in light of broad mediation confidentiality and privilege statutes. Because these laws have no …

Societal Integration And Radical Islam Among Muslim Immigrants In Europe And The United States, Ghada Wahdan

Regis University Student Publications (comprehensive collection)

Little research has been done using Social Disorganization Theory to explain the radicalization of Muslim immigrants in Europe and the United States. The author's intention is to offer a concise and clear comparison between the relationship of societal integration and radical Islam among Muslims living in Europe and the United States. The research modeled the application of Social Disorganization Theory which is seated in the idea that social disorder in communities creates disagreements in fundamental values, norms with behavioral irregularity and deviance. Radicalization of Muslim immigrants living in non-Muslim countries exists when there is a low degree of internal bonding …

On The Connection Between Law And Justice, Anthony D'Amato

Faculty Working Papers

What does it mean to assert that judges should decide cases according to justice and not according to the law? Is there something incoherent in the question itself? That question will serve as our springboard in examining what is—or should be—the connection between justice and law. Legal and political theorists since the time of Plato have wrestled with the problem of whether justice is part of law or is simply a moral judgment about law. Nearly every writer on the subject has either concluded that justice is only a judgment about law or has offered no reason to support a …

What Will We Lose If The Trial Vanishes?, Robert P. Burns

Faculty Working Papers

The number of trials continues to decline andfederal civil trials have almost completely disappeared. This essay attempts to address the significance of this loss, to answer the obvious question, "So what?" It argues against taking a resigned or complacent attitude toward an important problem for our public culture. It presents a short description of the trial's internal structure, recounts different sorts of explanations, and offers an inventory of the kinds of wounds this development would inflict.

New Approaches To Customary International Law, Anthony D'Amato

Faculty Working Papers

Reviews Eric A. Posner, The Perils of Global Legalism; Andrew T. Guzman, How International Law Works; Brian A. Lepard, Customary International Law.

After a century of benign neglect, international theorizing has taken off. The three contributors to legal theory reviewed here can be placed along a linear spectrum with Posner at the extreme political science end, Lepard at the opposite international law end and Andrew Guzman holding up the middle.

The Limits Of Constructivism: Can Rawls Condemn Female Genital Mutilation?, Andrew Koppelman

Faculty Working Papers

The strategy for coping with value pluralism that Rawls has proposed is to permit political decisions, at least with respect to basic rights, to depend only on those goods that can be inferred from the bare requirements of respectful relations between persons. His account offers such a parsimonious conception of the good that it cannot cognize some atrocities. I focus on one extreme human rights case: the practice of female genital mutilation (FGM), which, it is well established, violates basic human rights. Doubtless Rawls was appalled by the practice. Yet his theory cannot generate a basis for condemning it. A …

Non-State Actors From The Perspective Of The Policy-Oriented School: Power, Law, Actors And The View From New Haven, Anthony A. D'Amato

Faculty Working Papers

Law needs Power for enforcement of its rules; Power utilizes Law for creating conditions of stability that enhance its salience. Yet when the New Haven school tries to include international law in its power-oriented view of international relations, it ends up with a misleading two-dimensional descriptivism.

Immigrant Hispanic Women And The Victimization They Encounter In The United States, Alejandra Aranda Redondo

Theses Digitization Project

This study explored some of the primary reasons why immigrant Hispanic women are victims of abuse, along with various barriers they faced, and the ways in which they coped. The influence of the Hispanic culture is a driving force in the women's inability to move away from their abusers, to seek help, and to obtain the necessary help. Hispanic cultural attitudes and the perceptions of these victimized immigrant women affected their help-seeking behaviors.

Little Brother Is Watching And Recording You: Social Control In A Deviant Group, Joshua Wayne Roberts

Online Theses and Dissertations

Since the 1950s social control has mostly been explained from the counteraction of deviance perspective. In this research I examine social control in a broader context, what I call social control as the furtherance of action perspective. In order to accomplish this, I conducted a digital ethnography with a group engaged in deviant behavior. The group has no formal name, but individuals are known by the deviant act they engage in. The act is referred to as "capping", but is best explained as individuals or a group of individuals making screen recordings of live web cam feeds from websites designed …

Evaluation Of Services For Adults With A Dual Diagnosis In The Criminal Justice System, Cheryl Anne Stebbings

Theses Digitization Project

San Bernardino Forensic Assertive Community Treatment (FACT) is a community-based program created to serve San Bernardino County adults with serious mental illness, who have also had repeated contacts with the criminal justice system as a result of their mental illness. Finding a balance of how mental health providers and the criminal justice system can work together to design effective treatment plans for these clients is essential in helping them accomplish this. This research evaluated the effectiveness of services from the FACT program.

Exploring The Effective Components Of The Young Visionaries Youth Leadership Academy: Violence Intervention And Prevention Program, Maria Catharina Johanna Lurinks

Theses Digitization Project

The purpose of the study was to evaluate the effective components of the Young Visionaries Youth Leadership Academy: Violence Intervention, and Prevention program. It is found that an effective violence intervention program can help reduce the violent crime rates among juveniles in San Bernardino County.

Hate Crimes Based On Gender Identity And Sexual Orientation, Katie Nicole Williams

Theses Digitization Project

The purpose of this study was to examine hate crimes based on their gender identity or sexual orientation of the victim through selected variables. The research looked at information collected from a variety of media sources, categorized the information into the existing dataset, and used a chi-square test to prove the significance. The sample analyzed contains 121 cases of individuals that were killed because of their real or perceived gender identity or sexual orientation within a twenty year time frame; Mathew Shepard, a highly publicized hate crime victim, was used as the focal point of this research.

Supermax Confinement: A Descriptive And Theoretical Inquiry, Marisa M. Baumgardner

Online Theses and Dissertations

In the past few decades, there has been a proliferation of supermax prisons and units across the nation, reflecting the increased use of administrative, isolated segregation. This proliferation is embedded within a broader shift in society towards more punitive measures of disciplining those people convicted of criminal offenses. The primary purpose of this thesis is to examine the proliferation of supermax confinement as a major component of the punitive shift. This is done primarily through the application of contemporary literature that focuses on the sociology of punishment theory. Another purpose of this thesis was to examine and describe the history …

The Phenomenon Of Identity Theft, Hollie Reni Freeman

Online Theses and Dissertations

This research is a descriptive study of the prevalence of Identity Theft in the Commonwealth of Kentucky from 2004 to 2009 and the procedures used by the Kentucky State Police to deal with this crime. The data for this study is a combination of violation code use retrieved from Kentucky's Open Portal Solution (KYOPS) and complaint and case data retrieved from Computer Aided Dispatch (CAD). By gathering data from each of the 16 posts across the state of Kentucky, an evaluation of the prevalence of the crime of Identity Theft yields conclusive results. KYOPS Violation Code data showed a progressive …

The Case For Clear And Convincing Evidence: Do Our Laws Value Property Over Children?, Tricia P. Martland

Justice Studies Faculty Publications

Our laws reflect our values. What we value, we make laws to protect. In this article, Tricia Martland describes the child custody statute in North Dakota, which is the only state to use “clear and convincing” standard of evidence. This means that children will not be placed with parents with a history of domestic violence unless there is clear and convincing evidence of their rehabilitation. Other states deem the clear and convincing standard too stringent. Yet this standard is often used with regard to property title. Do our laws indicate that we value things over children? Changing policy to apply …

Book Review: Ios Forensic Analysis: For Iphone, Ipad And Ipod Touch, Christopher Schulte

Journal of Digital Forensics, Security and Law

As Digital Forensics practitioners, we know that our discipline is constantly evolving. Keeping abreast means we need to continually refine and broaden our knowledge pools through experience, education, research, peer exchange, and more. Mobile device forensics can be especially dynamic and challenging. With multiple standards in place at the hardware, operating system, and user interface levels, it can be daunting to preserve, analyze, search and report on these tiny yet ubiquitous hand-held computers. Apple Computer’s line of mobile products (iOS devices - iPhone, iPad, iPod Touch) is no exception to this rule.

Investigating Modern Communication Technologies: The Effect Of Internet-Based Communication Technologies On The Investigation Process, Matthew Simon, Jill Slay

Journal of Digital Forensics, Security and Law

Communication technologies are commonplace in modern society. For many years there were only a handful of communication technologies provided by large companies, namely the Public Switched Telephone Network (PSTN) and mobile telephony; these can be referred to as traditional communication technologies. Over the lifetime of traditional communication technologies has been little technological evolution and as such, law enforcement developed sound methods for investigating targets using them. With the advent of communication technologies that use the Internet – Internet-based or contemporary communication technologies – law enforcement are faced with many challenges. This paper discusses these challenges and their potential impact. It …

Survey On Cloud Forensics And Critical Criteria For Cloud Forensic Capability: A Preliminary Analysis, Keyun Ruan, Ibrahim Baggili, Joe Carthy, Tahar Kechadi

Electrical & Computer Engineering and Computer Science Faculty Publications

In this paper we present the current results and analysis of the survey “Cloud forensics and critical criteria for cloud forensic capability” carried out towards digital forensic experts and practitioners. This survey was created in order to gain a better understanding on some of the key questions of the new field - cloud forensics - before further research and development. We aim to understand concepts such as its definition, the most challenging issues, most valuable research directions, and the critical criteria for cloud forensic capability.

Controlling Gang Crime: The Santa Nita Gang Injunction, Bryan William Devor

Theses Digitization Project

The purpose of this study will explore increasing gang membership, gang structure, and strategies utilized by the criminal justice system in attempting to curb gang-related crime and activities. Through a quantitative research study, the researcher examined crime in the cities of Garden Grove, California and Santa Ana, California in an attempt to determine the success of the Santa Nita Gang Injunction in reducing crime within the injunctions "safety zone."

Criminal Justice Policy Research Institute Newsletter, Portland State University. Criminal Justice Policy Research Institute

Criminal Justice Policy Research Institute Newsletters

Newsletter provides information on:

• Latest research results
• Projects and studies underway
• Research awards and distinctions
• Recent research publications