The Market As A Legal Concept,
2012
University of Colorado Law School
The Market As A Legal Concept, Justin Desautels-Stein
Buffalo Law Review
No abstract provided.
Against The New Maternalism,
2012
Georgetown University Law Center
Against The New Maternalism, Naomi Mezey, Cornelia T. Pillard
Georgetown Law Faculty Publications and Other Works
The biggest challenge for sex equality in the 21st Century is to dismantle inequality between women and men’s family care responsibilities. American law has largely accomplished formal equality in parenting by doing away with explicit gender classifications, along with many of the assumptions that fostered them. In a dramatic change from the mid-20th Century, law relating to family, work, civic participation and their various intersections is now virtually all sex-neutral. As the Supreme Court’s 2003 decision in Nevada Department of Social Services v. Hibbs demonstrates, both Congress and the Court have accepted the feminist critique of sex roles and stereotyping …
Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes,
2012
New York Times
Agency And Equity: Why Do We Blame Clients For Their Lawyers' Mistakes, Adam Liptak
Michigan Law Review
If you were to ask a child whether it would be fair to execute a prisoner because his lawyer had made a mistake, the answer would be no. You might even get a look suggesting that you had asked a pretty stupid question. But judges treat the issue as a hard one, relying on a theory as casually accepted in criminal justice as it is offensive to principles of moral philosophy. This theory holds that the lawyer is the client's agent. What the agent does binds the principal. But clients and lawyers fit the agency model imperfectly. Agency law is …
They Saw A Protest: Cognitive Illiberalism And The Speech-Conduct Distinction,
2012
University of Washington School of Law
They Saw A Protest: Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski
Articles
“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …
The Topography Of Legal Recognition Of Same-Sex Relationships,
2012
Benjamin N. Cardozo School of Law
The Topography Of Legal Recognition Of Same-Sex Relationships, Edward D. Stein
Articles
This article categorizes and explains the variety of forms of relationship recognition that have emerged in the United States over the last dozen or so years. Five issues regarding same-sex marital andnonmarital relationship statuses are examined: (1) eligibility, (2) benefits, (3) dissolution, (4) recognition from other jurisdictions, and (5) the intersection of state and federal law. The article then offers various proposals about what states should do in the face of the options that have emerged: (a) states that recognize same-sex marriages and nonmarital relationships should adapt their statutes to recognize "substantially similar" relationships; (b) jurisdictions should adopt statutes that …
Imperial Agendas, Global Solidarities, And Third World Socio-Legal Studies: Methodological Reflections,
2012
Osgoode Hall Law School of York University
Imperial Agendas, Global Solidarities, And Third World Socio-Legal Studies: Methodological Reflections, Radha D'Souza
Osgoode Hall Law Journal
This article interrogates the methodological lenses through which law in the Third World is commonly analyzed in socio-legal studies. Third World socio-legal studies, this article argues, is a field in search of philosophical foundations. It continues to rely on conceptual categories and analytical frameworks developed through the intellectual, cultural, and social histories of Western capitalist societies, which it extends uncritically to different intersubjective orders in Third World contexts. The article examines the common grounds shared by two apparently competing discourses about law in the Third World, which I label imperial agendas and global solidarities. It is difficult to speak about …
Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context ,
2012
Pepperdine University
Cutting The Cord: Ho'oponopono And Hawaiian Restorative Justice In The Criminal Law Context , Andrew J. Hosmanek
Pepperdine Dispute Resolution Law Journal
Ho'oponopono is a traditional Hawaiian dispute resolution system that has recently experienced a resurgence of interest. The word ho'oponopono literally means to make right. In this system, both the offender and victim participate in a type of guided mediation along with other stakeholders in the offense. Ho'oponopono is different from typical mediations because after the session is successfully completed, the participants figuratively cut the cord of legal and psychological entanglement which binds them - in other words, the dispute is put to rest forever. When victim and offender come to a true resolution of the problem, and jointly make the …
Shame By Any Other Name: Lessons For Restorative Justice From The Principles, Traditions And Practices Of Alcoholics Anonymous ,
2012
Pepperdine University
Shame By Any Other Name: Lessons For Restorative Justice From The Principles, Traditions And Practices Of Alcoholics Anonymous , Victoria Pynchon
Pepperdine Dispute Resolution Law Journal
Because the painful experience of shame is believed to deter anti-social and criminal conduct, it has long been a staple of our criminal justice system. Its purpose has been to accomplish moral education about the wrongfulness of the crime and to prevent its occurrence through social and self-disapproval. In criminal ADR or "restorative justice" circles, the beneficial effects of "reintegrative" shame are meant to be accomplished by a "restorative justice conference" or "victim-offender mediation" ("VOMS"). These VOMs bring together victims and their loved ones; offenders and their friends and family; and, caring members of the community for the purpose of …
Bride-Burning: The "Elephant In The Room" Is Out Of Control ,
2012
Pepperdine University
Bride-Burning: The "Elephant In The Room" Is Out Of Control , Avnita Lakhani
Pepperdine Dispute Resolution Law Journal
This article is an attempt to answer the question of why the practice of bride-burning continues and propose alternative ways to not only look at the problem, but also to define workable solutions. It is only via a thorough conflict analysis of this complex issue that the world might rein in a problem that is clearly out of control in this day and age. Section II examines the origins of bride-burning, its continued practice, and societal ramifications. Section III analyzes some of the current and proposed efforts in place for banning bride-burning and punishing those who illegally engage in this …
The Gacaca Experiment: Rwanda's Restorative Dispute Resolution Response To The 1994 Genocide,
2012
Pepperdine University
The Gacaca Experiment: Rwanda's Restorative Dispute Resolution Response To The 1994 Genocide, Jessica Raper
Pepperdine Dispute Resolution Law Journal
Since its rise to power in July of 1994, the Rwandan government has been committed to prosecuting all those accused of genocide. To prosecute the approximately 130,000 defendants, Rwanda has adopted a program called gacaca, based on Rwanda's traditional customary dispute resolution system. The gacaca law provides a reconciliation component that allows defendants to trade confessions of past genocide crimes for indemnification, as well as a prosecution component that holds the most serious offenders accountable in a Western style prosecution in a formal court of law. One of the main goals of gacaca is to end the so-called "culture …
A Holistic Approach To Estate Planning: Paramount In Protecting Your Family, Your Wealth, And Your Legacy,
2012
Pepperdine University
A Holistic Approach To Estate Planning: Paramount In Protecting Your Family, Your Wealth, And Your Legacy, Melissa Street
Pepperdine Dispute Resolution Law Journal
This comment will take an in-depth look at the art of holistic estate planning. Part II will walk through an overview of how the holistic estate planning process works. Part III will discuss certain familial circumstances that have the most to gain from the holistic approach. Part IV will give a brief overview of other alternatives to litigation and their disadvantages. Part V will conclude this article.
Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? ,
2012
Pepperdine University
Available Dispute Resolution Processes Within The Reauthorized Individuals With Disabilities Education Improvement Act (Ideia) Of 2004: Where Do Mediation Principles Fit In? , Andrea F. Blau
Pepperdine Dispute Resolution Law Journal
The Individual Disabilities Education Act of 1997 first offered mediation processes to parents and school systems as an available dispute resolution process. Congress mandated that mediation be made available whenever a due process hearing was filed. The intent was to assist parents and school systems in resolving their differences regarding the educational needs for children with disabilities through increased discussions and collaborative efforts; this would reduce the need for costly and adversarial litigation. Alternative dispute resolution processes have taken an increasingly dominant role within the newly reauthorized IDEIA of 2004, reflecting Congressional promotion of parent and district collaboration for achieving …
Adr Dharma: Seeking A Hindu Perspective On Dispute Resolution From The Holy Scriptures Of The Mahabharata And The Bhagavad Gita ,
2012
Pepperdine University
Adr Dharma: Seeking A Hindu Perspective On Dispute Resolution From The Holy Scriptures Of The Mahabharata And The Bhagavad Gita , Aalok Sikand
Pepperdine Dispute Resolution Law Journal
The Mahabharata and the Bhagavad Gita are both monumental pieces of Hindu literature. This paper seeks to analyze them in order to garner a Hindu perspective on dispute resolution. There will be five parts to this paper: Part I seeks to give an overview of certain Hindu concepts such as dharma, which will make it easier to understand the Mahabharata and the Gita. Part II will then give a brief summary of the basic plot of the Mahabharata. Then, Part III will zoom in on the section of the Mahabharata where Lord Krishna attempts to mediate peace between …
Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? ,
2012
Pepperdine University
Negotiation And Settlement In Nagorno-Karabak: Maintaining Territorial Integrity Or Promoting Self-Determination? , Argam Derhartunian
Pepperdine Dispute Resolution Law Journal
The little-known region of Nagorno-Karabakh, known to Armenians as Artsakh, has been no stranger to conflict. This land, nestled in the historic "Armenian Plateau," has been ruled by many different dynasties and seen the faces of many different ethnicities and cultures. Today, both Armenians and Azeris claim an absolute historic right to Nagorno-Karabakh, periodically fighting over the region. Although the intense fighting ended in 1994, negotiation efforts regarding the territory of Nagorno-Karabakh remain stalemated. This has caused the leaders of Karabakh to declare the region an independent republic, although no state, including Armenia, has recognized this status. This article will …
Who Killed The Friendly Settlement? The Decline Of Negotiated Resolutions At The European Court Of Human Rights ,
2012
Pepperdine University
Who Killed The Friendly Settlement? The Decline Of Negotiated Resolutions At The European Court Of Human Rights , Gregory S. Weber
Pepperdine Dispute Resolution Law Journal
The "Friendly Settlement"--the negotiated settlement of cases at the European Court of Human Rights--is on the decline. The Friendly Settlement's decline will likely provoke mixed sentiments in the international human rights camp. Some may applaud the development, including those who believe that only judgments by the Court are likely to chastise member states sufficiently and to announce standards of conduct for other states to follow. But others may shed more than a few mournful tears. An active settlement program can help reduce the Court's huge case backlog and give complaining parties a faster, and often more generous, measure of resolution …
Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace,
2012
Pepperdine University
Lawyers, Faith, And Peacemaking: Jewish Perspectives Of Peace, Rabbi Yitzchok Adlerstein
Pepperdine Dispute Resolution Law Journal
We can only consider the role of peacemaking in Jewish law after examining the meaning and place of peace. Accuracy prevents me from opening with some platitude about how peace occupies a central, pivotal position in Jewish thought. It doesn't. Peace and peacemaking have a curious habit of not turning up in the middle of things, but all the way at the end. There are too many instances of this to be coincidental. There are nineteen blessings in the Amidah, the central (indeed!) prayer that Jews recite three times a day, every weekday of their lives. The very last …
Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?,
2012
Pepperdine University
Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?, Elizabeth Baker Murrill
Pepperdine Dispute Resolution Law Journal
Mass torts and other mass claims are becoming an ever more popular forum for the use of alternative dispute resolution to resolve parties' claims in the wake of events that produce thousands of conflicts overnight. Mediation, in particular, has been used in several high-profile mass disaster events in an effort to resolve individual claims efficiently and quickly. This paper evaluates special risks posed in this kind of mediation that can go to the heart and the integrity of the mediation process. The thesis of this paper is that the potential imbalance in the parties' experience, education, and individual situation can …
Meet Me On Death Row: Post-Sentence Victim-Offender Mediation In Capital Cases,
2012
Pepperdine University
Meet Me On Death Row: Post-Sentence Victim-Offender Mediation In Capital Cases, Rachel Alexandra Rossi
Pepperdine Dispute Resolution Law Journal
Since the 1970's, victim-offender mediation (VOM) has increased in use, most commonly with minor offenses. More recently, VOM has been sparingly applied to serious and violent crimes, including "rape, vehicular homicide, attempted homicide, and murder." Death penalty cases have rarely been the focus of restorative justice or VOM, likely because the victim has died and the offender will soon be executed, and these two parties are traditionally the focus of restorative justice. However, while capital cases involve unique concerns and issues, VOM can still be applied in these cases. The process would only require some modification of the focus and …
Negotiating With Deity: Strategies And Influences Related To Recent North Korean Negotiating Behavior ,
2012
Pepperdine University
Negotiating With Deity: Strategies And Influences Related To Recent North Korean Negotiating Behavior , Jesse D. Steele
Pepperdine Dispute Resolution Law Journal
As images of nuclear missiles flash across television screens and news reports containing indiscernible Asian writing warn of conflict on the other side of the world, this article addresses one of the single greatest threats to global stability-the North Korean Nuclear Weapons Crisis-and assesses the negotiation strategies that have brought the world to its current situation. By looking at the historical negotiation tactics that have been utilized by each of the parties involved, particularly in light of societal norms and cultural influences, one can ascertain a great deal of insight regarding each party's respective strategies and objectives. This insight gleaned …
Style Vs. Model: Why Quibble? ,
2012
Pepperdine University
Style Vs. Model: Why Quibble? , Susan Oberman
Pepperdine Dispute Resolution Law Journal
This article raises some of the questions necessary to address criticisms about quality and ethics of mediation practices: (Part I) Is there a "mandate" to provide informal justice through mediation? (Part II) Why challenge the generic mediation mythology? (Part III) Does naming differences as 'styles' result in greater clarity? (Part IV) Is mediation fulfilling its "mandate" to serve the court? (Part V) What are the obstacles to changing the dominant discourse on mediation? (Part VI) In answering these questions, an alternative framework is proposed to shift the current discourse about generic mediation based on artistry or style, to a discourse …
