2024-03-28T10:52:42Z
http://law.bepress.com/do/oai/
oai:law.bepress.com:pittlwps-1039
2020-11-30T03:30:19Z
publication:pittlwps
Parallel Courts
Baylis, Elena A
Even as American attention is focused on Iraq’s struggles to rebuild its political and legal systems in the face of violent sectarian divisions, another fractured society – Kosovo – has just begun negotiations to resolve the question of its political independence. The persistent ethnic divisions that have obstructed Kosovo’s efforts to establish multi-ethnic “rule of law” offer lessons in transitional justice for Iraq and other states. In Kosovo today, two parallel judicial systems each claim absolute and exclusive jurisdiction over the province. One system is sponsored by the United Nations administration in Kosovo and is mostly, although not exclusively, staffed by Kosovar Albanians. The other system, run primarily by Kosovar Serbians, is essentially a set of courts-in-exile, the remnants of the previous judicial system that existed before the Serbian government was forced out of Kosovo by NATO bombing in 1999. The parallel courts present a transitional justice issue that is as crucial to rebuilding Kosovo’s post-conflict society as convening a truth commission or conducting criminal trials. On one level, the existence of the parallel courts is a manifestation of the ongoing political dispute over sovereignty. For the residents of Kosovo, the lack of any recognition of judgments between these systems has also created legal chaos in their everyday lives. Conflicting judgments have been issued in civil cases, and criminal defendants are subject to prosecution and punishment in both systems. The palpable injustices that result from these conflicting judgments and repeated trials are undermining confidence in the ongoing process of legal and political transition. This article undertakes an assessment of Kosovo’s parallel systems and of the existing legal models for recognition and enforcement of judgments, with the aim of proposing an appropriate framework for Kosovo to recognize the Serbian parallel judgments. In my survey of the relevant national and international models, I find that each strives to strike a balance between two competing values: (1) certainty in the finality and consistency of legal judgments and (2) ensuring those judgments’ essential fairness. Using these two values as a guide, I assess whether and how the existing models might be adapted to Kosovo’s context, concluding that the proper balance between legal certainty and fairness will permit categorical recognition of most parallel civil judgments, but will require case by case, discretionary review of criminal judgments. Finally, from this analysis, I develop a set of factors for other transitioning states to consider when faced with judgments from ethnic and religious legal institutions or other parallel courts.
2007-02-19T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art39
https://scholarship.law.pitt.edu/fac_articles/13/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Law
Conflict of Laws
Courts
Criminal Law and Procedure
Dispute Resolution
Human Rights Law
International Law
Jurisdiction
Law and Society
Politics
Civil Law
Conflict of Laws
Courts
Criminal Law
Criminal Procedure
Dispute Resolution and Arbitration
Human Rights Law
International Law
Jurisdiction
Law and Politics
Law and Society
oai:law.bepress.com:pittlwps-1050
2020-11-30T03:36:45Z
publication:pittlwps
Sending the Bureaucracy to War
Baylis, Elena A
Zaring, David
Administrative law has been transformed after 9/11, much to its detriment. Since then, the government has mobilized almost every part of the civil bureaucracy to fight terrorism, including agencies that have no obvious expertise in that task. The vast majority of these bureaucratic initiatives suffer from predictable, persistent, and probably intractable problems - problems that contemporary legal scholars tend to ignore, even though they are central to the work of the writers who created and framed the discipline of administrative law. We analyze these problems through a survey of four administrative initiatives that exemplify the project of sending bureaucrats to war. The initiatives - two involving terrorism financing, one involving driver licensing, and one involving the adjudication of asylum claims - grow out of the two statutes perhaps most associated with the war on terrorism, the USA PATRIOT Act of 2001 and the REAL ID Act of 2005. In each of our case studies, the civil administrative schemes used to fight terrorism suffer from the incongruity of fitting civil rules into an anti-civil project, the difficulties of delegating wide discretion without adequate supervision, and the problem of using inexpert civil regulators to serve complex law enforcement ends. We conclude that anti-terrorism should rarely be the principal justification for a new administrative initiative, but offer some recommendations as to when it might make sense to re-purpose civil officials as anti-terrorism fighters.
2007-01-18T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art50
https://scholarship.law.pitt.edu/fac_articles/21/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Administrative Law
Administrative Law
oai:law.bepress.com:pittlwps-1024
2020-11-30T03:39:44Z
publication:pittlwps
Retaliation
Brake, Deborah L.
This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice that is implicitly encompassed by a ban on discrimination pushes discrimination law in promising directions. Recognizing retaliation as a form of discrimination challenges the dominant anti-differentiation model of discrimination and promotes a broader conception of discrimination as the preservation of race and gender privilege. In addition, recognizing protection from retaliation as implicit in legal proscriptions on discrimination furthers the democratic underpinnings of discrimination law by adding content to the ideal of equal citizenship. Finally, the Article contends that an existing doctrinal constraint on the retaliation claim, the reasonable belief requirement, undermines the potentially progressive role that the retaliation claim can play in realizing its promise for discrimination law. The Article urges a reconsideration of this doctrine to bring the retaliation claim closer to the theory advanced here.
2005-08-18T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art23
https://scholarship.law.pitt.edu/fac_articles/286/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Education Law
Employment Practice
Law and Society
Public Law and Legal Theory
Civil Rights and Discrimination
Education Law
Labor and Employment Law
Law and Society
Public Law and Legal Theory
oai:law.bepress.com:pittlwps-1007
2020-11-30T03:41:54Z
publication:pittlwps
Revisiting Title IX's Feminist Legacy: Moving Beyond The Three-Part Test
Brake, Deborah L.
This essay addresses three issues surrounding Title IX’s application to women’s sports that have been largely eclipsed by the recent controversy over Title IX’s three-part test: the increasingly male composition of athletic leadership positions; the focus on cutting men’s sports as a remedy to discrimination against women; and the role of revenue and massive spending on men’s elite sports in justifying gender inequality in sports. The essay links each of these issues to broader questions and concerns in discrimination law more generally, and concludes that deeper cultural change is necessary to fulfill Title IX’s promise.
2004-01-21T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art7
https://scholarship.law.pitt.edu/fac_articles/287/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Education Law
Sports
Women
Civil Rights and Discrimination
Education Law
Entertainment, Arts, and Sports Law
Law and Gender
oai:law.bepress.com:pittlwps-1068
2020-11-30T03:44:34Z
publication:pittlwps
The Failure of Title VII as a Rights-Claiming System
Brake, Deborah L.
Grossman, Joanna
This Article takes a comprehensive look at the failure of Title VII as a system for claiming nondiscrimination rights. The Supreme Court’s recent decision in Ledbetter v. Goodyear Tire & Rubber Company, 127 S. Ct. 2162 (2007), requiring an employee to assert a Title VII pay discrimination claim within 180 days of when the discriminatory pay decision was first made, marks the tip of the iceberg in this flawed system. In the past decade, Title VII doctrines at both ends of the rights-claiming process have become increasing hostile to employees. At the front end, Title VII imposes strict requirements on employees to promptly report and assert claims of discrimination. These requirements leave little room for gaps in knowledge, hesitation in responding, or fears of retaliation to delay rights-claiming. The model of rights-claiming behavior at the heart of this doctrine contrasts starkly with extensive social science research on how people perceive and respond to discrimination in the real world. The juxtaposition of Title VII doctrine with this social science literature reveals a fundamentally flawed framework for asserting discrimination rights. Employees make out poorly at the other end of the rights-claiming process too. Those employees who do step forward to complain of discrimination are left with grossly inadequate protection from retaliation for doing so. Recent developments in retaliation law have weakened protections for employees, reinforcing the very reasons employees are unlikely to assert nondiscrimination rights in the first place. Together, Title VII’s timely complaint and retaliation doctrines create an untenable framework for employees in need of the law’s substantive protections. Rather than salvage this system, the recent trend toward employer-sponsored internal processes for resolving discrimination complaints exacerbates these flaws in ways that have yet to be acknowledged in the push for greater reliance on such internal processes. This Article marks an important contribution to the literature on Title VII and discrimination law, as the first major examination of how Title VII functions as a rights-claiming system.
2007-08-31T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art67
https://scholarship.law.pitt.edu/fac_articles/6/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Employment Practice
Women
Labor and Employment Law
Law and Gender
oai:law.bepress.com:pittlwps-1074
2020-11-30T05:08:07Z
publication:pittlwps
The Struggle for Sex Equality in Sport and the Theory behind Title IX
Brake, Deborah L.
Title IX’s three-part test for measuring discrimination in the provision of athletic opportunities to male and female students has generated heated controversy in recent years. In this Article, Professor Brake discusses the theoretical underpinnings behind the three-part test and offers a comprehensive justification of this theory as applied to the context of sport. She begins with an analysis of the test’s relationship to other areas of sex discrimination law, concluding that, unlike most contexts, Title IX rejects formal equality as its guiding theory, adopting instead an approach that focuses on the institutional structures that subordinate girls and women in sport. The Article then elaborates upon and offers a justification for the theory of equality underlying Title IX’s three-part test. To support this theory, the Article surveys existing feminist legal scholarship on sport and identifies a need for an analysis of women’s position in sport that goes beyond a debate over assimilation versus accommodation, to analyze how educational institutions participate in the construction of sport as a fundamentally masculine domain. To fill this void, the Article explores in detail the processes through which educational institutions construct the different relationships of men and women to sport, through their control over athletic opportunities and the culture of sport. Finally, Professor Brake takes this theory and applies it to other aspects of Title IX law, advocating specific doctrinal reforms that would make Title IX’s overall application to athletics more consistent with the theory articulated in this Article.
2001-10-17T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art73
https://scholarship.law.pitt.edu/fac_articles/2/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Education Law
Employment Practice
Sports
Women
Education Law
Entertainment, Arts, and Sports Law
Labor and Employment Law
Law and Gender
oai:law.bepress.com:pittlwps-1006
2020-11-30T05:10:14Z
publication:pittlwps
When Equality Leaves Everyone Worse Off: The Problem of Leveling Down in Equality Law
Brake, Deborah L.
This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term “leveling down” refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that focuses on the expressive meaning of leveling down and its compatibility with a norm of equal concern. It concludes with a section demonstrating how the proposed analysis would enrich the debate among legal scholars over the normative appeal of equality rights.
2004-11-01T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art8
https://scholarship.law.pitt.edu/fac_articles/288/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Constitutional Law
Law and Society
Public Law and Legal Theory
Civil Rights and Discrimination
Constitutional Law
Law and Society
Public Law and Legal Theory
oai:law.bepress.com:pittlwps-1026
2020-11-30T05:12:26Z
publication:pittlwps
Punitive Damages Revisited: Taking the Rationale for Non-Recognition of Foreign Judgments Too Far
Brand, Ronald A.
Punitive damages have been a controversial aspect of U.S. law; often criticized both at home and abroad. Neither U.S. law on punitive damages nor the foreign climate regarding their reception has remained static. This article notes the continuing legislative attack on punitive damages in the United States at both the state and federal level, and focuses on recent developments in case law and treaty negotiations concerning the reception of punitive damages abroad. The article begins with a brief review of the background against which current punitive damages law in the United States continues to operate, followed by consideration of the continuing evolution of U.S. Supreme Court jurisprudence on punitive damages. The Beals case in the Supreme Court of Canada and new uniform Canadian legislation on the enforcement of foreign judgments demonstrate two very different approaches to U.S. punitive damages by foreign courts. The issue is also the focus of Article 11 of the new Hague Convention on Choice of Court Agreements, which offers a much more moderate approach than the Canadian uniform act, which, if widely adopted, would constitute a major step back in terms of predictability in business and judicial relationships.
2005-08-25T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art26
https://scholarship.law.pitt.edu/fac_articles/61/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Conflict of Laws
Jurisdiction
Conflict of Laws
Jurisdiction
oai:law.bepress.com:pittlwps-1067
2020-11-30T05:18:07Z
publication:pittlwps
Search Me?
Burkoff, John
Professor Burkoff contends that most people who purportedly “consent” to searches by law enforcement officers are not really – "freely and voluntarily," as the Supreme Court decisional law supposedly requires – consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment. Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the courts. In Randolph, the Court held dispositive the actual expectations that ordinary individuals have, albeit third-parties, when being asked to consent to a search. As a result, Burkoff concludes that a valid consent to search should no longer be deemed to have been freely and voluntarily tendered unless the consenting party is actually aware – whether or not he or she has been expressly warned – of the right not to consent.
2007-08-28T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art66
https://scholarship.law.pitt.edu/fac_articles/229/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Constitutional Law
Criminal Law and Procedure
Law and Society
Constitutional Law
Criminal Law
Criminal Procedure
Law and Society
oai:law.bepress.com:pittlwps-1054
2020-11-30T05:20:08Z
publication:pittlwps
Freeing Racial Harassment from the Sexual Harassment Model
Chew, Pat K.
Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable. This Article, however, questions the assumption that there should be a monolithic model for discriminatory workplace harassment. In particular, it questions whether the currently dominant sexual harassment model should be used automatically as the paradigm in racial harassment disputes. Part I begins by acknowledging and explaining why the legal community analogizes racial harassment claims and jurisprudence to sexual harassment claims and jurisprudence. Part II posits that this analogy is problematic given the fundamental differences between racial harassment and sexual harassment. While empirical evidence of these differences is currently limited, Part II identifies and discusses two pioneering examples. The first documents important dissimilarities between racial harassment litigation and sexual harassment litigation; the second chronicles the differences between the dynamics and theoretical explanations for racial harassment and sexual harassment in the law firm context. Given the dominance of the sexual harassment model and the presumption of its applicability to other harassment disputes, including racial harassment, it is not surprising that comparatively little research and study of racial harassment and other forms of harassment have been done. The discussion and analysis here contributes to the research on the topic. Finally, Part III explores the implications of freeing racial harassment from the sexual harassment model.
2007-02-19T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art54
https://scholarship.law.pitt.edu/fac_articles/289/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Employment Practice
Sexuality and the Law
Women
Civil Rights and Discrimination
Labor and Employment Law
Law and Gender
Sexuality and the Law
oai:law.bepress.com:pittlwps-1000
2020-11-30T05:22:43Z
publication:pittlwps
The Pervasiveness of Culture in Conflict
Chew, Pat
Law faculty and scholars are increasingly cognizant of the role of culture in dispute resolution. This essay offers a beginning roadmap for exploring the cultural context of conflict. It begins by considering how to assess our own cultural profiles, highlighting some useful social science constructs for this purpose. It then discusses how our interactive perception of others’ cultural profiles makes a difference. The essay also explores the tensions between, on one hand, the pervasiveness of culture in conflict and, on the other hand, American legal traditions that appear contrary to the incorporation of culture into dispute resolution processes.
2003-05-15T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art1
https://scholarship.law.pitt.edu/fac_articles/285/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Dispute Resolution
Dispute Resolution and Arbitration
oai:law.bepress.com:pittlwps-1020
2020-11-30T05:24:18Z
publication:pittlwps
UNWRAPPING RACIAL HARASSMENT LAW
Chew, Pat K.
Kelley, Robert E.
This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study’s analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise. Parts II and III present a clear picture of how racial harassment law has played out in the courts—who are the plaintiffs and defendants, the nature of the claims, who wins and loses, and what factors affect those outcomes. We consider dozens of characteristics of the parties, the nature of the harassment, and litigation characteristics (such as the forum, type of proceedings, and legal issues). While it reveals that individuals in all kinds of occupations, in all parts of the country, of all races, and of both genders complain about racial harassment—it also shows that African Americans are disproportionately likely to be plaintiffs. While Whites are the most likely harassers, minority individuals also are defendants. The data also discloses that the most typical legal proceeding is the court’s consideration of the defendants’ motion for summary judgment where the judges end up terminating most plaintiffs’ cases. In fact, the judicial opinions in this study find in the plaintiffs’ favor only 21.5% of the time. (In contrast, an earlier study revealed that judges in sexual harassment cases find in the plaintiffs’ favor 48% of the time – more than twice as often as in racial harassment cases.) As it turns out in racial harassment cases, the race of the plaintiff and of the alleged harasser makes a difference in the parties’ success rates, but the gender of the plaintiff does not. Judges are a bit more likely to find racial harassment when plaintiffs allege blatant racist behavior rather than more subtle and contextual racism. Results vary depending on the location of the case. Part IV provides an integrated analysis of the data, including a look at how racial harassment litigation has evolved over time. It also offers explanations and implications of the study’s results. This article contributes detailed baseline data for litigants, judges, and legislators. Each group can draw upon the totality of racial harassment cases to guide their decisionmaking. The article also offers a sound basis for creating a new racial harassment jurisprudence that should be distinct from both sexual harassment and racial discrimination jurisprudence.
2005-08-05T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art22
https://scholarship.law.pitt.edu/fac_articles/290/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Employment Practice
Civil Rights and Discrimination
Labor and Employment Law
oai:law.bepress.com:pittlwps-1030
2020-11-30T05:26:53Z
publication:pittlwps
Dimensions of Equality in Regulating Assisted Reproductive Technologies
Crossley, Mary
Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that three different types of equality concerns exist relevant to discussions about regulating ARTs: equality of access to ARTs (and thus parenthood), equal treatment in the resolution of disputes arising from the use of ARTs, and equality issues raised by trait-selection practices. My point herein is neither to condemn nor to rationalize the inequalities that close examination may reveal. This Article instead issues a challenge to scholars in the field to undertake a broader, more thorough consideration of the implications for equality that the development of, and regulation or non-regulation of, ARTs present.
2005-12-07T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art30
https://scholarship.law.pitt.edu/fac_articles/291/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Domestic Relations
Health Law and Policy
Medical Jurisprudence
Women
Civil Rights and Discrimination
Family Law
Health Law and Policy
Law and Gender
Medical Jurisprudence
oai:law.bepress.com:pittlwps-1031
2020-11-30T05:28:32Z
publication:pittlwps
Discrimination against the Unhealthy in Health Insurance
Crossley, Mary
As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short, consumerist coverage vehicles (including health savings accounts) discriminate against the unhealthy by impact. This Article examines existing laws protecting against health status discrimination in health insurance, but these laws do not address impact discrimination. Recognizing that some might attempt to justify this disproportionate impact on unhealthy people by invoking a principle of actuarial fairness, the Article also reviews various laws prohibiting other forms of discrimination in health insurance in order to reveal our society’s willingness to elevate other social values above actuarial fairness. This Article calls for more careful scrutiny of consumerism’s effects and a sustained dialogue regarding the limits a just society should place on the burdens borne by unhealthy persons.
2005-12-07T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art32
https://scholarship.law.pitt.edu/fac_articles/292/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Health Law and Policy
Insurance Law
Law and Society
Civil Rights and Discrimination
Health Law and Policy
Insurance Law
Law and Society
oai:law.bepress.com:pittlwps-1017
2020-11-30T05:30:14Z
publication:pittlwps
Re-Membering Law in the Internationalizing World
Grosswald Curran, Vivian
This article examines some of the challenges to understanding new, non-national legal configurations as contexts of origin color understandings and evaluations of legal standards allegedly shared across legal communities. It examines a case on assisted suicide, Pretty v. U.K., decided by the European Court of Human Rights. The case illustrates mechanisms of legal integration in the European court, followed by a process of dis-integration that occurred when the decision was reported to the French legal community. The French rendition reflected a legal community’s inability to process common law information through civil law cognitive grids. The article addresses both the capacity of law to internationalize, and the sorts of comparative inquiries necessary to perceiving what lurks unseen, as the world experiences superimposed legal norms and claims, some mutually contradictory. It also discusses the peculiar relation of past to present in the establishment, evolution and transformation of legal significance. The European court engaged in decision-making affected by unspoken associations with the Nazi past that collided with the needs of a society transformed by modern medical technology. The “remembering” of law that this article addresses thus involves (1) recompositions of law as it increasingly ignores old borders and categories; and (2) the ongoing need to examine law’s past meanings in order to understand its present incarnations and, most importantly, to imagine its potentials in our time of flux and of increasingly complex and elusive non-national legal constructs.
2005-05-11T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art18
https://scholarship.law.pitt.edu/fac_articles/293/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Comparative and Foreign Law
International Law
Comparative and Foreign Law
International Law
oai:law.bepress.com:pittlwps-1058
2020-11-30T05:32:21Z
publication:pittlwps
The Regulation of Judicial Ethics in the Federal System: A Peek Behind Closed Doors
Hellman, Arthur
Ethical issues involving federal judges have been much in the news recently. Among other developments, the House Judiciary Committee held a hearing to consider impeaching a federal district judge; the Judicial Conference of the United States announced two major policy initiatives; and a committee chaired by Justice Stephen Breyer issued an in-depth report on the operation of the judicial misconduct statutes. This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a case if (among other circumstances) he or she has “a financial interest ... in a party to the proceeding.” This prohibition has proved to be a fertile ground for muckraking by investigative reporters, in part because judges can easily fail to remember or recognize that they own shares in corporations that are parties to cases on their dockets. In September 2006 the Judicial Conference of the United States directed all federal courts to institute “automatic conflict screening” using standardized hardware and software. This is a substantial step forward, but a purely internal screening program does not serve the interest in transparency. The second set of issues involves the operation of the misconduct statutes. A 1980 statute, now codified as Chapter 16 of Title 28, creates a detailed set of procedures for handling complaints against judges and taking appropriate action in instances of judicial misconduct. The Breyer Committee found that in handling the vast bulk of complaints, the judiciary has properly implemented the 1980 Act, but that in high-visibility cases, the rate of error is “far too high.” The committee’s report and other recent developments point to several aspects of the system that deserve scrutiny. Primary among these is the lack of visibility; neither the availability of the process nor the outcomes of proceedings are sufficiently publicized.
2007-04-05T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art57
https://scholarship.law.pitt.edu/fac_articles/258/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Courts
Legislation
Professional Ethics
Courts
Legal Ethics and Professional Responsibility
Legislation
oai:law.bepress.com:pittlwps-1052
2020-11-30T05:33:44Z
publication:pittlwps
The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice
Hellman, Arthur
In November 2005, four prominent legal organizations sponsored the second National Conference on Appellate Justice. One purpose was to take a fresh look at the operation of appellate courts 30 years after the first National Conference. As part of the 2005 Conference, small groups of judges and lawyers gathered in breakout sessions to discuss specific issues about the operation of the appellate system. This article summarizes and synthesizes the participants’ comments. The article is organized around three major topics, each of which builds on a different contrast with the 1975 conference. First, the participants in the earlier conference apparently assumed that appellate courts carry out their work in isolation from the political and social conflicts of their time. No one today would accept that picture, but has immersion in controversy changed the way appellate courts carry out their business? That is a different, and more difficult, question. Second, the 1975 conference took place at a time of ferment over issues involving precedent, uniformity, and appellate structure. Today, concern about disuniformity in appellate decisions barely registers on the seismometer of legal discourse. This is particularly remarkable at the federal level, given that the only tribunal with authority to resolve conflicts with nationally binding effect—the Supreme Court of the United States—has actually reduced its decisional output to half of what it was in 1975. Is this a problem? And what about uniformity in state systems? Finally, issues of volume, process, and delegation of responsibility aroused great concern among prominent judges, lawyers, and academics in the 1970s. Today, there is little outcry today over the appellate shortcuts that once aroused so much dismay. Is this because people were overreacting to the phenomenon of rapid growth? Or has the quality of appellate justice deteriorated through incremental steps that have gone unnoticed?
2007-01-25T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art52
https://scholarship.law.pitt.edu/fac_articles/294/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Courts
Judges
Practice and Procedure
Courts
Judges
Litigation
oai:law.bepress.com:pittlwps-1005
2020-11-30T05:37:34Z
publication:pittlwps
Foster Care Placement: Reducing the Risk of Sibling Incest
Herring, David J.
The Westermarck theory maintains that incest avoidance arises from the physical proximity of siblings during a critical period of early childhood. This proximity gives rise to an inhibiting effect on post childhood sexual interest. Two recent studies of sibling relationships have verified and refined the Westermarck theory, indicating that the critical period extends through the first four years of childhood. The theory and the studies have implications for child welfare laws, policies and practices surrounding the placement of siblings in foster care. Namely, the findings provide powerful reasons for placing siblings together during the critical period in order to minimize the risk of post childhood sibling incest. Although public child welfare systems currently recognize the value and benefits of placing siblings together, these systems fail miserably in this area because of a lack of resources. By focusing on children in the critical period of development, resource-poor public systems can marshal their will and target their resources to actually place this discrete group of siblings together, avoid increasing the risk of post childhood sibling incest, and realize all the benefits of maintaining sibling relationships.
2004-02-16T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art6
https://scholarship.law.pitt.edu/fac_articles/296/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Domestic Relations
Juveniles
Law and Society
Social Welfare
Family Law
Juvenile Law
Law and Society
Social Welfare Law
oai:law.bepress.com:pittlwps-1028
2020-11-30T05:39:50Z
publication:pittlwps
Foster Care Safety and the Kinship Cue of Attitude Similarity
Herring, David J
This article brings behavioral biology research on attitude similarity as a kinship cue to bear on the laws, policies, and practices surrounding the placement of children in foster care. The basic logic of the article relies on the nature and power of kinship cues. Individuals perceive others as kin through fallible, often unconscious mechanisms. Because these mechanisms are fallible, individuals may come to believe that unrelated persons are kin. Once a cue gives rise to the perception of kinship, the individual who acquires this perception about another person is more likely to treat that other person favorably, providing important benefits to this other person. This prosocial behavior could certainly benefit foster children. More specifically, if foster parents perceive their foster children as kin, they may provide better care, likely reducing incidents of maltreatment. Attitude similarity serves as a kinship cue. Individuals who share attitudes on a variety of items are more likely to treat each other favorably. This article explores how public actors may be able to construct a kinship cue that elicits prosocial behavior by matching foster parents with children who share their attitudes.
2005-11-28T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art28
https://scholarship.law.pitt.edu/fac_articles/297/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Domestic Relations
Juveniles
Social Welfare
Family Law
Juvenile Law
Social Welfare Law
oai:law.bepress.com:pittlwps-1077
2020-11-30T05:42:40Z
publication:pittlwps
Tax as Urban Legend
Infanti, Anthony C.
In this essay, I review UC-Berkeley history professor Robin Einhorn's book, "American Taxation, American Slavery." In this provocatively-titled book, Einhorn traces the relationship between democracy, taxation, and slavery from colonial times through the antebellum period. By re-telling some of the most familiar set piece stories of American history through the lens of slavery, Einhorn reveals how the stories that we tell ourselves over and over again about taxation and politics in America are little more than the stuff of urban legend. In the review, I provide a brief summary of Einhorn's discussion of the relationship between slavery and (1) colonial taxation, (2) the creation of a national tax structure, and (3) the adoption of uniformity clauses in state constitutions in the antebellum period. I then turn to a discussion of how Einhorn's book helps to debunk an urban legend of modern tax policy debates; namely, that critical perspectives and tax simply don't mix.
2008-01-27T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art75
https://scholarship.law.pitt.edu/fac_articles/177/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Legal History
Taxation
Legal History
Tax Law
oai:law.bepress.com:pittlwps-1003
2020-11-30T05:43:55Z
publication:pittlwps
Tax Protest, A Homosexual, and Frivolity: A Deconstructionist Meditation
Infanti, Anthony C.
In this contribution to a symposium entitled Out of the Closet and Into the Light: The Legal Issues of Sexual Orientation, I recount and then ponder the story of Robert Mueller. Mueller, a gay man, spent more than a decade protesting the discriminatory treatment of gays and lesbians under the Internal Revenue Code. As a result of his tax protest, Mueller was jailed for more than a year, and then was twice pursued by the IRS for taxes and penalties. In pondering Mueller's story, I consider it both as a telling example of the forcible closeting of gay and lesbian issues in tax and as a signpost pointing in the direction of the next front in the battle for gay rights.
2004-08-03T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art4
https://scholarship.law.pitt.edu/fac_articles/176/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Sexuality and the Law
Taxation
Sexuality and the Law
Tax Law
oai:law.bepress.com:pittlwps-1075
2020-11-30T05:45:52Z
publication:pittlwps
Conflicts Between the Commander in Chief and
Lobel, Jules
The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations. This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President’s power to command, to be, in Alexander Hamilton’s words, the nation’s “first general and Admiral.” The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.
2007-11-09T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art76
https://scholarship.law.pitt.edu/fac_articles/198/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Constitutional Law
Constitutional Law
oai:law.bepress.com:pittlwps-1076
2020-11-30T05:47:49Z
publication:pittlwps
Conflicts Between the Commander in Chief and Congress: Concurrent Power Over the Conduct of War
Lobel, Jules
The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations. This article challenges that assumption. It argues that Congress and the President have concurrent power to conduct warfare that has been authorized by Congress, with Congress maintaining the ultimate authority to decide the methods, strategies and tactics by which the United States will wage war, if it chooses to exercise that authority. The President can direct and manage military campaigns in the absence of congressional regulation and restrictions, but the only Commander in Chief power that Congress cannot override is the President’s power to command, to be, in Alexander Hamilton’s words, the nation’s “first general and Admiral.” The understanding of concurrent power set forth in this article argues that the two branches power over the conduct of authorized warfare is divided as a practical matter by timing, not subject matter, with the President having the power of initiative over the theatre of war, and Congress having a more deliberative, reflective power, allowing it to check and limit Executive initiative both before and after the Executive acts.
2007-11-09T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art74
https://scholarship.law.pitt.edu/fac_articles/198/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Constitutional Law
Constitutional Law
oai:law.bepress.com:pittlwps-1012
2020-11-30T05:49:48Z
publication:pittlwps
Law as Design: Objects, Concepts and Digital Things
Madison, Michael J.
This Article initiates an account of “things” in the law, including both conceptual things and material things. Human relationships matter to the design of law. Yet things matter too. To an increasing extent, and particularly via the advent of digital technology, those relationships are not only considered ex post by the law but are designed into things, ex ante, by their producers. This development has a number of important dimensions. Some are familiar, such as the reification of conceptual things as material things, so that computer software is treated as a good. Others are new, such as the characterization of material things as conceptual things, so that digital goods become licensable. The regulatory consequences of the thing are increasingly built into the construction of the thing. These developments appear to be poised to envelop things beyond the digital sphere. It may no longer be apt to divide the world cleanly into conceptual and material objects. “Things” combine features of both. As a result, they can no longer be viewed solely as passive backgrounds against which relation-based legal analysis unfolds. To ensure that society maintains the ability to regulate as broadly as it deems legitimate, law must account for the creation and design of the “things” that increasingly dominate developments across a variety of legal domains, from intellectual property law to antitrust law to commercial law. The Article describes how things exercise the authority that characterizes classic legal regulation, and it reviews the different mechanisms that legal institutions have used to recognize and differentiate things. Understanding those mechanisms is a step toward appreciating the nature of the regulatory landscape in which both legal institutions and individuals exist.
2005-04-29T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art12
https://scholarship.law.pitt.edu/fac_articles/211/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Arts and Entertainment
Commercial Law
Computer Law
Intellectual Property Law
Law and Society
Law and Technology
Property-Personal and Real
Science and Technology
Secured Transactions
Trade Regulation
Antitrust and Trade Regulation
Commercial Law
Computer Law
Entertainment, Arts, and Sports Law
Intellectual Property Law
Internet Law
Law and Society
Property Law and Real Estate
Science and Technology Law
Secured Transactions
oai:law.bepress.com:pittlwps-1010
2020-11-30T05:51:32Z
publication:pittlwps
Racism as "the Nation's Crucial Sin": Theology and Derrick Bell
Taylor, George H.
The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell’s thesis of racism’s permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr’s paradox that social action is both necessary and meaningful despite the inextricable presence of human sin. The argument is that the dynamics of the relation between sin and action may illuminate the dynamics of the relation between racism and action. One need not necessarily agree with Niebuhr’s theology to find the lived experience he describes a potentially rich source of understanding for the paradox that Bell maintains.
2004-04-15T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art10
https://scholarship.law.pitt.edu/fac_articles/274/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Jurisprudence
Law and Society
Politics
Public Law and Legal Theory
Religion
Civil Rights and Discrimination
Jurisprudence
Law and Politics
Law and Society
Public Law and Legal Theory
Religion Law
oai:law.bepress.com:pittlwps-1069
2020-11-30T05:53:07Z
publication:pittlwps
Dueling Class Actions
Wasserman, Rhonda
Abstract: When multiple class action suits are filed on behalf of the same class members, numerous problems ensue. Dueling class actions are confusing to class members, wasteful of judicial resources, conducive to unfair settlements, and laden with complex preclusion problems. The article creates a typology of different kinds of dueling class actions; explores the problems that plague each type; considers the effect the Supreme Court's decision in Matsushita Electric Industrial Co. v. Epstein, 516 U.S. 367 (1996), has had on these problems; evaluates the efficacy of existing judicial tools to curb them; and proposes an array of possible solutions. The more modest "quick fixes" include: (1) creation of a registry of all class actions filed; (2) amendment of Rule 23 and state class action rules to bar the certification of dueling class actions and to require the appointment of a class action advocate; (3) amendment of the Anti-Injunction Act to enlarge the authority of federal courts to enjoin dueling class actions; (4) amendment of the multidistrict litigation statute to permit transferee courts entertaining consolidated dueling class actions to retain the cases for trial; and (5) enactment of legislation requiring better notice to absent class members in dueling class actions. The article also explores more dramatic legislative solutions to permit the consolidation of all dueling class actions in a single forum.
2000-04-01T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art68
https://scholarship.law.pitt.edu/fac_articles/174/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Law
Conflict of Laws
Civil Law
Conflict of Laws
oai:law.bepress.com:pittlwps-1056
2020-11-30T05:54:55Z
publication:pittlwps
The Curious Complications with Back-End Opt-Out Rights
Wasserman, Rhonda
Class action litigation seeks to mediate pressing conflicts between individual autonomy and collective justice; federal supervision and local control; self-interested class counsel and the represented class. These conflicts are exacerbated when a federal court that approves a class action settlement later seeks to enjoin state court litigants from violating its terms. Yet the demand for such injunctions has increased in light of the advent of back-end opt-out rights. In recent years, class members have been afforded “back-end,” or delayed, opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may afford only limited rights to sue outside the confines of the class action – for example, class members may be permitted to seek compensatory but not punitive damages. Does the federal court that approved the settlement have authority to enjoin back-end opt-out plaintiffs from seeking relief in state court that exceeds the limits built into the back-end opt-out right? Three sets of curious complications may arise if the federal court seeks to enter such an injunction. First, if diversity is lacking between the opt-out plaintiff and the defendant, and the plaintiff sues on only state-law claims, the federal court may lack subject matter jurisdiction to grant an injunction. It also may lack personal jurisdiction over an opt-out plaintiff who has no contacts with the state in which the federal court sits. Second, federalism complications are likely to crop up. Both the Anti-Injunction Act and the Younger abstention doctrine limit the authority of federal courts to issue injunctions against pending state court proceedings. Finally, equitable and practical considerations may counsel against micro-management of state court litigation by a federal judge. The objective in identifying these complications is not to question the wisdom of back-end opt-out rights, but rather to encourage their use by suggesting a variety of steps that courts and counsel can take to enforce the limits built into back-end opt-out rights without unnecessarily intruding upon the prerogatives of state court judges, exposing back-end opt-out plaintiffs to onerous litigation in for a with which they have no contact, or rendering their preserved rights meaningless. Among other recommendations, the article urges federal and state courts to collaborate in the enforcement of back-end opt-out rights.
2007-11-28T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art56
https://scholarship.law.pitt.edu/fac_articles/188/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Courts
Jurisdiction
Courts
Jurisdiction
oai:law.bepress.com:pittlwps-1044
2020-11-30T05:56:20Z
publication:pittlwps
Tolling: The American Pipe Tolling Rule and Successive Class Actions
Wasserman, Rhonda
Timing is everything. Even the most meritorious lawsuit will be dismissed if the statute of limitations has run on the plaintiff’s claim. In class action litigation, this hurdle is particularly daunting. Supreme Court precedent makes clear that if a class action complaint is timely filed, then the claims of all class members are deemed timely. Likewise, if a motion to certify the class is denied, absent class members may seek to intervene in the pending action or to file individual actions and either way, the statute of limitations is tolled from the date of filing of the class action complaint until denial of the motion to certify. But what if the absent class members seek to present their claims collectively in the context of a successive class action? Is the statute of limitations tolled in this context as well? Intuitively, one might think that the same policies that justify tolling in the first two situations also justify tolling in the successive class action context. Yet a majority of the federal Courts of Appeals that have addressed this issue have denied tolling in the successive class action context. Given the volume of class action litigation, the lack of control that absent class members have over the timing of the certification decision, and the devastating effect the statute of limitations may have on their claims, it behooves us to understand why the courts have resolved the tolling issue for successive class actions differently and whether such differential treatment is justified. This Article analyzes three sets of policies that have influenced the courts in this context: the policies underlying statutes of limitations; the policies underlying Rule 23; and the policies underlying preclusion doctrine. A careful analysis of these competing policies calls the majority rule into question in two common circumstances: where certification initially was denied because of a problem with the class representative or because of a problem with the class itself that the successive class action seeks to remedy. Only where there is a problem with the class itself and the successive class action fails to address that problem does the combination of relevant policies counsel against tolling.
2006-09-12T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art44
https://scholarship.law.pitt.edu/fac_articles/170/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Courts
Dispute Resolution
Practice and Procedure
Courts
Dispute Resolution and Arbitration
Litigation
oai:law.bepress.com:pittlwps-1062
2007-08-02T18:55:32Z
publication:pittlwps
Of Cops and Bumper Stickers: Notes Toward a Theory of Selective Prosecution
Delgado, Richard
The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases.
In Churchill’s case, Colorado authorities delved deeply and painstakingly into Churchill’s publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation’s relation to the hue and cry that led to it have on its own legitimacy?
Professor Delgado examines various possible frameworks for analyzing cases like these and argues that the committee chair’s way of seeing the matter was the incorrect framework.
2007-08-02T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art61
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Constitutional Law
Employment Practice
Law Enforcement and Corrections
Legal Education
Civil Rights and Discrimination
Constitutional Law
Labor and Employment Law
Law Enforcement and Corrections
Legal Education
oai:law.bepress.com:pittlwps-1061
2007-08-02T18:45:32Z
publication:pittlwps
Rodrigo's Riposte: the Mismatch Theory of Law School Admissions
Delgado, Richard
The chronicle proceeds as a dialogue between the fictional alter ego, Rodrigo Crenshaw, and an older professor. After meeting in Rodrigo’s city, the two friends, joined later by “Giannina,” go out to dinner. Rodrigo, who is on his law school’s admissions committee, has been thinking about affirmative action.
Prompted by his conservative colleague “Laz,” Rodrigo has formulated a several-pronged attack on Sander’s premise that “stairstep” admissions (and, later, law firm hiring) just hurts the cause of black lawyers.
The professor presses Rodrigo to defend his views, and the arrival of Giannina requires him to articulate them even more. You will enjoy the lively give-and-take among these three intellectuals of color.
2007-08-02T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art60
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Legal Education
Legal Profession
Civil Rights and Discrimination
Legal Education
Legal Profession
oai:law.bepress.com:pittlwps-1063
2007-08-16T16:49:32Z
publication:pittlwps
You Are Living in a Gold Rush
Delgado, Richard
This article argues that our times, characterized as they are by dreams of vast wealth, environmental destruction, and growing social inequality, resemble nothing so much as earlier get-rich-quick periods like the Gilded Age and the California gold rush.
I put forward a number of parallels between those earlier periods and now and suggest that the current fever is likely to end soon. This will come as a relief to those of you who, like me, deplore the regressive social policies, bellicose foreign relations, and coarsening of public taste that we have been living through—even if some of our more libertarian friends found the times invigorating.
2007-08-02T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art62
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Environmental Law
Immigration Law
Law and Society
Politics
Environmental Law
Immigration Law
Law and Politics
Law and Society
oai:law.bepress.com:pittlwps-1065
2007-08-16T16:51:40Z
publication:pittlwps
Conformity of Goods, Third Party Claims, and Buyer’s Notice of Breach under the United Nations Sales Convention ("CISG"), with Comments on the "Mussels Case," the "Stolen Automobile Case," and the "Ugandan Used Shoes Case"
Flechtner, Harry M.
This paper, which derives from comments delivered at a 2006 conference held at Istanbul (Turkey) Bilgi University, gives an overview of Part III, Chapter II, Section II of the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). This portion of the Convention encompasses provisions addressing a number of critical issues, including the seller’s obligations concerning the quality (Article 35), title (Article 41) and intellectual property aspects (Article 42) of goods sold in a transaction governed by the CISG, as well as a buyer’s obligations to inspect delivered goods and to give notice of their failure to conform to those seller’s obligations (Articles 38 – 40 and 43-44). Included are extensive comments on three significant German cases that have applied these provisions of the Convention – the “Mussels Case” (decision of the Bundesgerichtshof, 8 March 1995, English translation available at http://cisgw3.law.pace.edu/cases/950308g3.html), the “Stolen Automobile Case” (decision of the Bundesgerichtshof, 11 January 2006, English translation available at http://cisgw3.law.pace.edu/cases/060111g1.html) and the “Ugandan Used Shoes Case” (decision of the Landgericht Frankfurt,11 April 2005, English translation available at http://cisgw3.law.pace.edu/cases/050411g1.html). This paper concludes that the Mussels Case is a good (but not perfect) example of a court complying with the Convention’s mandate to interpret the CISG from an international perspective and with the goal of maintaining international uniformity in its interpretation. The assessment of the Stolen Automobile Case in light of these factors is more mixed. The analysis of the Ugandan Used Shoes Case concludes that the court ignored those criteria, badly misinterpreted the provisions of the Convention, and perpetrated a gross miscarriage of justice.
2007-08-14T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art64
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Commercial Law
Comparative and Foreign Law
Contracts
International Law
International Trade
Commercial Law
Comparative and Foreign Law
Contracts
International Law
International Trade Law
oai:law.bepress.com:pittlwps-1066
2007-08-22T20:00:11Z
publication:pittlwps
The French Legal System: Laypeople and Professionals: La justice en France: Laïcs et professionnels
Grosswald Curran, Vivian
This short piece addresses from a comparative perspective recent changes in France intended to strengthen the role of laypeople in the French legal system.
2007-08-22T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art65
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Comparative and Foreign Law
Jurisprudence
Comparative and Foreign Law
Jurisprudence
oai:law.bepress.com:pittlwps-1051
2007-01-20T19:20:02Z
publication:pittlwps
The Multiethnic Placement Act: Threat to Foster Child Safety and Wellbeing
Herring, David J
Despite the efforts of public officials to reduce the time children spend in foster care, many children live in foster homes for a substantial portion of their childhoods. In fact, a child placed in a foster home may remain in that home for an extended period, with a significant possibility of remaining there permanently. In light of this situation, the decision to place a child in a particular foster home is extremely important.
The federal Multiethnic Placement Act (MEPA) significantly affects foster care placement decisions. This law expressly prohibits public child welfare agencies from delaying or denying a child’s foster care or adoptive placement on the basis of race, color, or national origin. Federal officials have interpreted MEPA as barring public agencies from routinely and systematically considering race when placing children in particular foster homes. In other words, MEPA precludes these agencies from pursuing children’s interests through a policy or practice of matching a child’s race with that of his or her foster parent.
To date, commentators who have examined MEPA have focused their attention on identifying and weighing the benefits and harms of transracial adoption for minority children and communities. As a consequence, they have not addressed the impact of MEPA on foster care placement decisions in any detail.
In contrast, this article examines foster care placement decisions. More specifically, this article uses behavioral biology research on kinship cues and social psychology research on in-group favoritism to formulate a hypothesis that has implications for MEPA’s prohibition on the routine consideration of race in making foster care placement decisions. Namely, children placed with non-kin, same-race foster parents are likely to be safer and healthier than children placed with non-kin, different-race foster parents. The article calls for a test of this hypothesis, explains how such a test may proceed, and discusses possible implications for law and policy addressing race and foster care.
2007-01-20T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art51
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Domestic Relations
Juveniles
Law and Society
Family Law
Juvenile Law
Law and Society
oai:law.bepress.com:pittlwps-1049
2006-11-14T20:04:04Z
publication:pittlwps
Remembering Welsh White
Burkoff, John
This paper was an adaptation from a eulogy for Welsh White, an esteemed Criminal Procedure professor at the University of Pittsburgh School of Law.
2006-11-14T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art49
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Criminal Law and Procedure
Criminal Law
Criminal Procedure
oai:law.bepress.com:pittlwps-1046
2006-10-24T16:49:08Z
publication:pittlwps
Shooting The Messenger
Delgado, Richard
This essay reviews Ward Churchill’s "On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality" (2003).
One of the most talked about — but least read — books of recent years, "On the Justice of Roosting Chickens" documents a long history of U.S. wars, invasions, and violations of international law on the way to concluding that when the terrible events of 9/11 took place, the U.S. deserved and should have expected retribution. In popular language, we "had it coming."
As the reader may recall, when Hamilton College rescinded Churchill’s invitation to speak in the winter of 2004, it set in motion a cascade of events including further such cancellations, efforts in Colorado to dismiss him from his tenured position, and nightly discussion on Fox News.
The review evaluates Churchill’s argument that the U.S. is an outlaw nation, as well as his "little Eichmanns" corollary that the investment bankers and stockbrokers who perished in the conflagration were complicit with the U.S. war machine and thus legitimate targets of the Muslim suicide bombers. It breaks his argument down into its component parts or premises, shows which ones are moral and which ones factual, and evaluates each one’s plausibility and cogency.
The review also addressed the author’s treatment at the hands of Colorado authorities and the implications of that treatment for academic freedom.
2006-10-26T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art46
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Constitutional Law
Human Rights Law
Indian and Aboriginal Law
Civil Rights and Discrimination
Constitutional Law
Human Rights Law
Indigenous, Indian, and Aboriginal Law
oai:law.bepress.com:pittlwps-1042
2006-10-05T16:46:38Z
publication:pittlwps
The Politics of Memory/Errinerungspolitik and the Use and Propriety of Law in the Process of Memory Construction
Grosswald Curran, Vivian
The post-Second World War trial for the crime against humanity from the start assumed pedagogical proportions, with the tribunals involved conscious that their legal verdicts would represent historical pronouncement and national values. The newly defined crime has been asked to institutionalize far more than the traditional task of adjudicating the guilt or innocence of the defendant. The trials themselves are meant to define the past, create and crystallize national memory, and illuminate the foundations of the future. I suggest that, by placing a burden on law that it is not designed to bear, we risk deforming law and legal principle. We risk creating an edifice that will not be equal to the task of memory, that will trivialize the memory it seeks to establish and fortify and, worst of all, that may betray law itself by subverting it from within.
2006-08-08T07:00:00Z
text
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https://law.bepress.com/pittlwps/art42
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Comparative and Foreign Law
International Law
Comparative and Foreign Law
International Law
oai:law.bepress.com:pittlwps-1040
2007-10-17T20:16:05Z
publication:pittlwps
Legal Scholarship, Humility, and the Scientific Method
Herring, David J
This essay responds to the question of "What next for law and behavioral biology?" by describing an approach to legal scholarship that relies on the scientific method. There are two steps involved in this approach to legal scholarship. First, the legal scholar must become familiar with an area of scientific research that is relevant to the development of law and policy. (This essay uses behavioral biology research as an example.) Second, the legal scholar must seek and form relationships across disciplines, becoming an active member of a scientific research team that conducts studies relevant to particular issues of law and policy.
This approach to legal scholarship does not conceive law as a science. It also does not place the legal scholar in the role of a scientist or empiricist. Instead, it places the legal scholar in a much more modest role -- as a participating member of a scientific research team. In this role, the legal scholar contributes to a research endeavor that employs the scientific method to produce new knowledge mostly in small, incremental steps. This scholar strives for nothing more than to participate in the production of new knowledge and the effective communication of that knowledge to other scholars, legal decisionmakers, and policymakers. It is a role that requires humility and promises significant advances in knowledge relevant to law and policy.
2006-05-31T07:00:00Z
text
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https://law.bepress.com/pittlwps/art40
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Law and Economics
Law and Society
Legal Education
Science and Technology
Law and Economics
Law and Society
Legal Education
Science and Technology Law
oai:law.bepress.com:pittlwps-1035
2005-12-12T21:12:10Z
publication:pittlwps
Domestic Law and Tax Treaties: The United States
Infanti, Anthony C.
In this paper, I provide an overview of the interaction between U.S. domestic law and tax treaties. This paper was prepared for, and was presented at, a conference on domestic law and tax treaties that took place in Milan, Italy in November 2005, under the aegis of the Italian Council of Ministers and the Organisation for Economic Co-operation and Development. The papers presented at the conference (including this paper) are scheduled to be published in book form---as part of the International Bureau of Fiscal Documentation’s “EC and International Law Series”---in early 2006.
As is the case with each of the country reports for the conference, this paper is split into four parts: In the first part, I discuss where tax treaties fit into the hierarchy of U.S. law. In the second part, I discuss references to domestic law made by tax treaties and references to tax treaties made by domestic law. In the third part, I discuss the rise of treaty overrides and the codification of the later-in-time rule, the method for analyzing potential legislative overrides, the questionable potential for administrative overrides, and remedies for breach of a treaty through override. In the final part, I discuss the federal courts’ use of judicial doctrines to combat abuse of treaties as well as legislative and administrative anti-abuse measures, focusing in particular on the extent to which the use of these doctrines and the application of these measures are viewed as consistent with treaty obligations.
2006-01-27T21:38:27Z
text
https://law.bepress.com/pittlwps/art36
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
International Law
Taxation
Taxation-Transnational
International Law
Taxation-Transnational
Tax Law
oai:law.bepress.com:pittlwps-1038
2020-11-30T05:41:14Z
publication:pittlwps
Homo Sacer, Homosexual: Some Thoughts on Waging Tax Guerrilla Warfare
Infanti, Anthony C.
Inspired by Giorgio Agamben’s Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben’s discussion of Kafka’s parable Before the Law, this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men should use the law as a tool against itself in an effort to open the way for a meaningful and thorough reconsideration of the appropriate relationship between sexual orientation and legal and social norms.
2006-03-16T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art38
https://scholarship.law.pitt.edu/fac_articles/148/
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Law and Society
Sexuality and the Law
Taxation
Civil Rights and Discrimination
Law and Society
Sexuality and the Law
Tax Law
oai:law.bepress.com:pittlwps-1043
2006-08-17T00:06:53Z
publication:pittlwps
The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innovation
Mueller, Janice M.
India developed a world-class generic drug manufacturing industry by excluding pharmaceutical products from patent protection in 1972. In 2005, India reintroduced pharmaceutical patenting in order to comply with its obligations as a WTO member. For an emerging superpower still mired in poverty and public health crises, the change did not come quickly or without controversy. This Article provides the first major comparative analysis of India’s new patents regime. Based on the author’s data gathering and interviews in India, the Article evaluates the regime’s first eighteen months. It critiques the new law and the capacity of India’s administrative and judicial infrastructure to implement it. Multiple influences shape India’s “mosaic view” of patents: a huge population, widespread poverty, lack of health insurance, wariness towards foreign influences, a developed but fragmented pharmaceutical sector, a fledgling entrepreneurial culture of innovation among indigenous pharmaceutical and biotechnology firms, a fragile coalition government, and a vocal citizenry remarkably aware of esoteric patent law developments. Concluding that the new patents regime is neither the fully-Westernized panacea hoped for by its pro-TRIPS advocates nor the unmitigated disaster for the Indian public predicted by its fiercest critics, the Article offers recommendations for the future of India’s evolving patent system.
2006-08-16T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art43
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Comparative and Foreign Law
Intellectual Property Law
International Law
Comparative and Foreign Law
Intellectual Property Law
International Law
oai:law.bepress.com:pittlwps-1048
2006-10-25T20:41:11Z
publication:pittlwps
Metaphor, Objects, and Commodities
Taylor, George H.
Madison, Michael J.
This Article is a contribution to a Symposium that focuses on the ideas of Margaret Jane Radin as a point of departure, and particularly on her analyses of propertization and commodification. While Radin focuses on the harms associated with commodification of the person, relying on Hegel’s idea of alienation, we argue that objectification, and in particular objectification of various features of the digital environment, may have important system benefits. We present an extended critique of Radin’s analysis, basing the critique in part on Gadamer’s argument that meaning and application are interrelated and that meaning changes with application. Central to this interplay is the speculative form of analysis that seeks to fix meaning, contrasted with metaphorical thought that seeks to undermine some fixed meanings and create new meanings through interpretation. The result is that speculative and metaphorical forms are conjoined in an interactive process through which new adaptations emerge. Taking this critique an additional step, we use examples from contemporary intellectual property law discourse to demonstrate how an interactive approach, grounded in metaphor, can yield important insights.
2006-10-25T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art48
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Intellectual Property Law
Jurisprudence
Property-Personal and Real
Intellectual Property Law
Jurisprudence
Property Law and Real Estate
oai:law.bepress.com:pittlwps-1027
2005-11-28T13:35:52Z
publication:pittlwps
Comparative Law and Language
Grosswald Curran, Vivian
Comparative law is law’s cybernetics, or “theory of messiness.” It attempts to steer through the messiness of the foreign by reordering it into the language of the familiar without betraying the original. It is needed urgently in contexts of unrecognized metamorphosis, and today metamorphoses are burgeoning in murky areas outside of law’s traditional categories of either the national or the international. The less apparent, the less visibly foreign, the foreign is, the more comparative law has a task of translation involving the formation of a vocabulary to transmit new configurations that resist detection and articulation. This essay examines the centrality of translation to processes of language and meaning construction, and links translation to comparative law as a model for the study of similarity and difference, the universal and the particular.
The debate in comparative law over the relative importance of similarity and difference among legal systems has its counterpart in linguistics in conflicting views about whether commonalities among languages are fundamental or marginal. These issues situate both language and comparative law between mutually contradictory aspirations of universalism and pluralism which have stalked the evolution of both fields. Despite appearances of the ascendancy of universalism in today’s world, it is not difference and pluralism that are receding, but, rather, that former domains of pluralism and difference recede, while others emerge.
Like language, inevitably imprecise and perpetually in flux, comparative law can not be frozen once and for all, to be captured for future application if only it is developed with sufficient acuity and insight. It shares what Isaiah Berlin attributed to philosophy and distinguished from the scientific: it does not carry within itself the method of its own solution, and therefore must be reinvented in each generation, destroying its own past rigidities and methods of decoding and transmitting, in order to construct a new modality of analysis, a new vocabulary better adapted to changed meaning.
Comparative law shares with language the pitfalls of miscommunication and misunderstanding, as well as the potentials of learning to see, to communicate and to shed light in that elusive, inevitable, shifting and ever-reconfiguring space that, like language, it occupies between the same and the other.
2005-11-17T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art27
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
International Law
Legal Analysis and Writing
Legal History
State and Local Government Law
International Law
Legal History
Legal Writing and Research
State and Local Government Law
oai:law.bepress.com:pittlwps-1034
2005-12-08T18:25:04Z
publication:pittlwps
L’Enseignement du droit aux États-Unis: réflexion sur l’actualité
Grosswald Curran, Vivian
This short essay updates an earlier publication on U.S. law teaching methodology as a reflection of the common law system that was published in 13 Cahier de Méthodologie Juridique. The older piece will be republished along with this update in 20 Cahier de Méthodologie Juridique. The central theme of the present piece is to raise the issue of U.S. legal education’s reflection of common law assumptions in light of today’s internationalization of law. More specifically, there is a growing consensus to confirm the theory of Niklas Luhmann that law is transnationalizing along substantive, functionalist lines. The work of contemporary scholars in Europe, such as (among others) Günther Teubner, and Mireille Delmas-Marty, and in the United States of Maryanne Slaughter, attests to a widespread agreement on the nature of law’s metamorphosis. Much important work is being done to analyze the new configurations that have fragmented law and that are displacing the nation state as the primary organ of legal change and regulation. This essay raises the issue of the less examined matter of internal impediments to communication and understanding within functionalist sectors. At this still early stage of globalization, encounter does not yet suffice for effective mutual understanding because legal actors linked by common professional objectives and undertakings nevertheless retain substantial differences in underlying legal conceptions which impede mutual understanding the more because they are latent.
2005-12-08T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art34
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Comparative and Foreign Law
General Law
International Law
Law and Society
Comparative and Foreign Law
International Law
Law
Law and Society
oai:law.bepress.com:pittlwps-1016
2005-12-07T15:17:40Z
publication:pittlwps
Everyday Law for Gays and Lesbians: An Introduction
Infanti, Anthony C.
This is the (revised) introductory chapter of a book that I am currently writing. The book is titled Everyday Law for Gays and Lesbians, and is part of Paradigm Publishers' Everyday Law series.
The introductory chapter - indeed, the entire book - is built upon and around the power of narrative. I begin the chapter with a personal narrative that illustrates what I refer to as the current predicament of the lesbian and gay movement. In the first part of the chapter, I survey the social and legal landscape that surrounds the movement, explain why I view the current situation as a predicament, and consider the source of that predicament. Then, in the second part of the chapter, I set the stage - and the tone - for the remainder of the book by suggesting that the narratives of individual lesbians and gay men, told in their own words, are a radical and powerful tool for advancing us (meaning all lesbians and gay men) toward the unqualified acceptance that we seek. As I explain in the chapter, my goal in writing this book is to empower and inspire each of us to deploy these narratives in the most effective way possible.
In keeping with this view of the power of the individual narrative, I counsel against relying on others - whether straight allies or lesbian and gay rights organizations - to effect change on our behalf. I argue that it is up to each of us to draw attention to and challenge the ubiquitous privileging of heterosexuality in our society. And, the title of the book and the series notwithstanding, I further eschew overreliance on legal strategies for effecting change; instead, in the course of the book, I discuss both potential legal and non-legal avenues for effecting change.
I would greatly appreciate any comments that you might have on the chapter or any suggestions that you might have regarding coverage for the book.
2005-06-03T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art17
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Law and Society
Sexuality and the Law
Civil Rights and Discrimination
Law and Society
Sexuality and the Law
oai:law.bepress.com:pittlwps-1015
2005-05-31T23:57:54Z
publication:pittlwps
From the Sidelines: A Deconstructionist View of Circular 230
Infanti, Anthony C.
Over the past several months, the new written tax advice rules in Circular 230 have engendered a great deal of debate. On one side, tax practitioners have repeatedly voiced their frustration in interpreting the new rules along with their fears that the rules may have a far-reaching and radical impact on everyday tax practice. On the other side, the government has attempted to soothe practitioners’ fears while at the same time insisting upon a generally broad interpretation of the new rules. In this short essay, I provide an outsider’s perspective of this debate over the meaning of the new written tax advice rules. Viewing the action from the sidelines, I maintain that, in this debate, we are actually watching deconstruction in action. After providing a bit of background on the deconstructionist concept of the liberation of the text from the author, I assert that we are witnessing the free play of the text of Circular 230 following its liberation from its government authors. While I explain that this is quite a normal and natural process, I do express my sympathy for those who must live with the uncertainties inherent in the free play of a text that governs one’s own conduct.
2005-05-31T07:00:00Z
text
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https://law.bepress.com/pittlwps/art16
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
oai:law.bepress.com:pittlwps-1013
2005-10-26T17:40:18Z
publication:pittlwps
Have We Come Full Circle? Judicial Sentencing Discretion Restored in Booker and Fanfan
Jordan, Sandra D.
The much anticipated Supreme Court decision in United States v. Booker and Fanfan has both invalidated the mandatory nature of the federal Sentencing Guidelines as well as restored judicial discretion for federal judges. With the Booker decision there is a renewed opportunity to correct some of the imbalance that came about as a result of the mandatory guidelines and the sentencing policies of the past twenty years. Booker has implications for all future sentencing as the power between the judiciary and the jury has been realigned and the power of the government has been reduced. Sentencing cannot accomplish legitimate goals when it is absolutely uniform nationwide regardless of any justifiable distinctions between defendants or crimes. Based on this principle, the goals of the United States Sentencing Commission were to eliminate unwarranted departures and to advance the goals of uniformity and proportionality. Warranted departures are those factors that should be taken into account when sentencing. In drafting the Guidelines, the Commission sought to establish a system that maintained fairness and avoided rote application in sentencing practices.
Instead, the Guidelines that became effective in 1987 produced a mandatory, rote sentencing process that omitted any judicial discretion and promoted a much-criticized shift in power from the judiciary to the prosecution. Judges resented the fact that their sentencing discretion had evaporated as sentences became harsher and the prison population in this country has swelled to unprecedented numbers. Booker will promote sentencing that is likely to be closer to the original goals of the Sentencing Reform Act which contemplated that sentences would reflect fairness and certainty, two of the hallmarks of due process. With the Booker decision, the Court has opened the way to promote alternative sentencing methods and to allow the judiciary to consider all relevant matters when sentencing. Lower courts will use the “reasonableness” standard to achieve the goals and policies of sentencing: retribution, deterrence, incapacitation, and rehabilitation. In doing so, courts will now be able to consider all relevant factors concerning a defendant and the offense, restored discretion in sentencing.
2005-04-29T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art14
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Criminal Law and Procedure
Criminal Law
Criminal Procedure
oai:law.bepress.com:pittlwps-1023
2006-08-25T17:45:19Z
publication:pittlwps
Social Software, Groups and Governance
Madison, Michael J.
Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? I argue that this and related questions are appearing more frequently in legal scholarship as a number of computer technologies, which I collect under the heading “social software,” increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. In this Essay, I argue that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. I suggest that such a framework be organized along three dimensions, which crudely track dimensions by which groups arise and sustain themselves: regulation of places, of things, and of stories.
2005-08-19T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art24
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Arts and Entertainment
Intellectual Property Law
Law and Society
Organizations
Public Law and Legal Theory
Science and Technology
Entertainment, Arts, and Sports Law
Intellectual Property Law
Law and Society
Organizations Law
Public Law and Legal Theory
Science and Technology Law
oai:law.bepress.com:pittlwps-1014
2005-06-09T16:34:53Z
publication:pittlwps
The Legitimacy of Open Source and Other Software Licenses
Madison, Michael J.
Software licensing and licensing of digital information in general create a regime of information governance for the Internet and beyond. This Article proposes to describe how this regime works—or fails to work—in legal terms.
2005-05-19T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art15
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Computer Law
Intellectual Property Law
Computer Law
Intellectual Property Law
oai:law.bepress.com:pittlwps-1033
2005-12-08T17:49:51Z
publication:pittlwps
Terrorism and the New Criminal Process
Parry, John
Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a “new criminal process” for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States.
All of these actions, moreover, react to the perceived emergency created by the 9/11 attacks. Government officials have argued that a state of emergency exists and – critically – that it is unclear when the emergency will end. Other public figures and the media have largely agreed. “Everything has changed” has become the common theme, and the new criminal process provides a legal ratification of that change – a legal structure for a state of emergency.
This essay considers the new criminal process and the perception of emergency out of which it grows from a variety of angles. Although I think the federal government has shifted too far in favor of military and other solutions to terrorism at the expense of traditional criminal processes, my position rest upon a chain of reasoning and a baseline that the new criminal process contests. That deeper contest and its implications are the focus of this essay. To that end, I describe the attributes for the new criminal process, and provide the arguments for and against the traditional and new criminal processes. I also consider the legality of the new criminal process and conclude that it comports with constitutional norms (which may say more about the malleability of constitutional norms than anything else).
The underlying assertion of this essay is that the new criminal process may not be so new. Rather, it may be the latest step in a broad shift in our approach to governing, where pervasive authority is increasingly valued over the constraints of law. This change brings with it modification and dilution of rights, but also the possibility of their expansion within the context of also-expanded state power. Nor is this change occurring without justification. Terrorism is a real policy issue, and rational, liberal-minded people support increased state power to counter the threat. Be that as it may, the critical point is that we are experiencing the modification of the processes by which our government investigates and imposes punishment on people, and the fact that some of these processes arise in the context of the war on terror means, not that those processes are about fighting terrorism, but rather that those processes – the new criminal process – inevitably will and have already begun to generalize.
2005-09-16T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art33
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Constitutional Law
Criminal Law and Procedure
International Law
Jurisdiction
Civil Rights and Discrimination
Constitutional Law
Criminal Law
Criminal Procedure
International Law
Jurisdiction
oai:law.bepress.com:pittlwps-1021
2005-08-10T22:22:26Z
publication:pittlwps
Culture and Race in Provider-Client Relationships
Schofield, Janet W.
Wang, Lu-in
Chew, Pat K.
Given that minority group members are underrepresented in the teaching, medical, and legal professions, minority group members often have White teachers, doctors, and lawyers. This is frequently the case even when students, patients and clients would prefer service providers similar to them in racial or ethnic background. This paper identifies possible cultural barriers to effective one-on-one relationships between White teachers, doctors and lawyers and those who receive their services, explores the potential for biased expectations to influence the services provided and outcomes attained, and contrasts the goals of White and minority educators, doctors, and lawyers, arguing that these differences have potentially negative implications for service recipients. Policy approaches to mitigating potential problems caused by the lack of match are considered, as are potential problems arising from an overly narrow emphasis on match.
2005-08-05T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art21
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
General Law
Health Law and Policy
Professional Ethics
Health Law and Policy
Law
Legal Ethics and Professional Responsibility
oai:law.bepress.com:pittlwps-1029
2005-12-07T15:48:51Z
publication:pittlwps
How Lawyers Lose Their Way: A Profession Fails Its Creative Minds (Duke University Press 2005)
Stefancic, Jean
Delgado, Richard
This is an excerpt from How Lawyer’s Lose Their Way: A Profession Fails Its Creative Minds. Professors Jean Stefancic and Richard Delgado use historical investigation and critical analysis to diagnose the cause of the pervasive unhappiness among practicing lawyers. Most previous writers have blamed the high rate of burnout, depression, divorce, and drug and alcohol dependency among these highly paid professionals on the narrow specialization, long hours, and intense pressures of modern legal practice. Stefancic and Delgado argue that these professional demands are only symptoms of a deeper problem: the way lawyers are taught to think and reason. They show how legal education and practice have been rendered arid and dull by formalism, a way of thinking that values precedent and doctrine above all, exalting consistency over ambiguity, rationality over emotion, and rules over social context and narrative.
Stefancic and Delgado dramatize the plight of modern lawyers by exploring the unlikely friendship between Archibald MacLeish, who gave up a successful but unsatisfying law career to pursue his literary yearnings, and Ezra Pound. Reading the forty-year correspondence between MacLeish and Pound, Stefancic and Delgado draw lessons about the difficulties of attorneys trapped in worlds that give them power, prestige, and affluence but not personal satisfaction, much less creative fulfillment. Long after Pound had embraced fascism, descended into lunacy, and been institutionalized, MacLeish took up his old mentor’s cause, turning his own lack of fulfillment with the law into a meaningful crusade and ultimately securing Pound’s release from St. Elizabeths Hospital. Drawing on MacLeish’s story, Stefancic and Delgado contend that literature, public interest work, and critical legal theory offer tools to contemporary attorneys for finding meaning and overcoming professional dissatisfaction.
2005-11-28T08:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art29
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
General Law
Legal Analysis and Writing
Legal Education
Legal History
Legal Profession
Professional Ethics
Law
Legal Education
Legal Ethics and Professional Responsibility
Legal History
Legal Profession
Legal Writing and Research
oai:law.bepress.com:pittlwps-1009
2005-05-03T17:05:12Z
publication:pittlwps
Transcending the Debate on Legal Narrative
Taylor, George H.
Use of the narrative form in law and legal analysis remains controversial. Advocates such as Derrick Bell, Richard Delgado, and Kathryn Abrams have argued that narrative in law can elicit particular perspectives and experiences that are reduced or bleached away when incorporated into the formalisms of pure doctrinal studies. By contrast, critics such as Daniel Farber and Suzanna Sherry maintain that narratives can distort if they are not sufficiently based on empirical fact or reason. Narratives, they claim, must be evaluated on the basis of objective standards.
The Article transcends this divide. In particular, it argues that the valuable functions of legal narrative in law and legal scholarship become visible when their literary character is examined. The Article undertakes this analysis by a close study of the narratives of Derrick Bell. The Article maintains that Bell's narratives should be read as parables. Parables function literarily by a process of disorientation that at once upsets traditional norms and opens the way for reorientation to occur.
The Article therefore defends the deployment of legal narrative and concludes that its critics are guilty of a category mistake. They too frequently analyze legal narratives on the basis of traditional norms, when the very function of narrative is to manifest new norms and new understandings.
2005-04-15T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art11
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Arts and Entertainment
Civil Rights and Discrimination
Jurisprudence
Civil Rights and Discrimination
Entertainment, Arts, and Sports Law
Jurisprudence
oai:law.bepress.com:pittlwps-1032
2005-12-08T17:48:34Z
publication:pittlwps
What’s the Matter with Liberalism? Reassessing Voting, Politics, and Ideology
Taylor, George H.
The 2004 presidential election raised at least two questions for election law analysis. First, in contrast to the past several decades of low voter turnout, why were voters so motivated to go to the polls in 2004? Second, why did many voters who were part of the Democrats’ traditional base vote in opposition to what was widely considered to be their economic self-interest? My argument is that the answer to these questions can be conjoined by reviving and reinvigorating a non-pejorative theory of ideology.
A revised theory of ideology recognizes the multiple levels on which ideologies – both political and legal – operate. Ideology encompasses not only possible voter distortion – the accusation typically hurled against one’s opponent – but the motivations for one’s own partisan beliefs. As such, ideology has a deeper, more positive characteristic: it can act to integrate an individual’s or group’s sense of identity.
In order for the present political and legal dynamics to be understood and changed, then, we must recapture the multiple characteristics of ideology, both as distortive and as constitutive and integrative. This revival of ideology is also ineluctable: it comports with the very way the mind is structured. Here I draw on not only theories of ideology but other work in the cognitive sciences. The divide is not between one political party’s right reason and the other’s distorted ideology but between two ideologies, with all their negative and positive components. I conclude by examining how political persuasion, change, and transformation are possible within this ideological framework. The Article assists the subtlety by which election law analysis investigates and assesses voter motivation.
2005-10-12T07:00:00Z
text
application/pdf
https://law.bepress.com/pittlwps/art31
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Jurisprudence
Law and Society
Politics
Civil Rights and Discrimination
Jurisprudence
Law and Politics
Law and Society
oai:law.bepress.com:pittlwps-1008
2005-02-11T20:00:20Z
publication:pittlwps
The Thirteenth Amendment Enforcement Authority
Tsesis, Alexander
In the paper, I argue that the Thirteenth Amendment's enforcement clause grants Congress the power to enact statutes to protect liberty. I trace the American concept of liberty, using archival research, through the writings of the revolutionary framers and abolitionists. I believe that the Thirty-Eighth Congress, 1864-1865, intended the Thirteenth Amendment to provide the power to enforce the Declaration of Independence's and Preamble's guarantees of equal liberty. The paper also places the enforcement clause of the Thirteenth Amendment into the contemporary setting of recent decisions on the Fourteenth Amendment and the Commerce Clause.
2005-02-05T08:00:00Z
text
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https://law.bepress.com/pittlwps/art9
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Constitutional Law
Legal History
Civil Rights and Discrimination
Constitutional Law
Legal History
oai:law.bepress.com:pittlwps-1002
2005-01-20T00:47:18Z
publication:pittlwps
A Tax Crit Identity Crisis? Or Tax Expenditure Analysis, Deconstruction, and the Rethinking of a Collective Identity
Infanti, Anthony C.
Critical tax theory, much like its non-tax critical counterparts, has been consistently marginalized by mainstream tax academics. To date, tax crits have accepted and acquiesced in this marginalization. In this article, I question the idea that tax crits are outsiders as well as the notion that critical tax theory is a marginal form of tax policy literature. My primary purpose in questioning this conventional wisdom is to get tax crits to think critically about the collective identity of the critical tax movement.
I question the outsider status of critical tax theory by essentially turning the mainstream into the marginal (or the marginal into the mainstream, depending upon your perspective). I accomplish this by reconceptualizing a quite mainstream tax concept - tax expenditure analysis - as an application of critical (and, more particularly, deconstructionist) techniques to the Internal Revenue Code. Once the mainstream (i.e., tax expenditure analysis) has been recast as the marginal (i.e., deconstructionist analysis), the distinction between the two essentially deconstructs itself, calling into question the justification for attaching significant weight to the distinction between the mainstream and the marginal. This opens the way for tax crits to think critically about their marginality and what role it should play in the collective identity of the critical tax movement.
2004-07-22T07:00:00Z
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https://law.bepress.com/pittlwps/art3
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Sexuality and the Law
Taxation
Sexuality and the Law
Tax Law
oai:law.bepress.com:pittlwps-1001
2004-12-23T20:55:02Z
publication:pittlwps
Constitutional Interpretation and Coercive Interrogation after Chavez v. Martinez
Parry, John
Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take better account of the remedies it provides. Finally, recognizing the need to cement these views, the article proposes a broad damages remedy for unconstitutionally coercive interrogation in violation of the privilege or related due process doctrines.
2004-07-14T07:00:00Z
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https://law.bepress.com/pittlwps/art2
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Civil Rights and Discrimination
Constitutional Law
Criminal Law and Procedure
Remedies
Civil Rights and Discrimination
Constitutional Law
Criminal Law
Criminal Procedure
Legal Remedies
oai:law.bepress.com:pittlwps-1072
2007-10-08T20:10:27Z
publication:pittlwps
Child Placement Decisions: The Relevance of Facial Resemblance and Biological Relationships
Herring, David J
This article discusses two studies of evolution and human behavior addressing child-adult relationships and explores implications for policies and practices surrounding placement of children in foster homes. The first study indicates that men favor children whose facial features resemble their own facial features. This study may justify public child welfare decisionmakers in considering facial resemblance as they attempt to place children in safe foster homes. The second study indicates that parents are likely to invest more in children who are biologically related to them, thus enhancing their longterm well-being. Among other implications, this study may justify public child welfare decisionmakers in attempting to preserve biological families and avoid the removal of children from biological parents. It may also justify maintaining contact between biological parents and children even if removal is necessary.
Although this article recognizes that the studies do not provide for comprehensive decisionmaking rules, the article articulates how the studies can be used to incrementally construct, test, and improve policies and practices in a specific area of public activity.
2003-10-08T07:00:00Z
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https://law.bepress.com/pittlwps/art71
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Juveniles
Law and Society
Science and Technology
Social Welfare
Juvenile Law
Law and Society
Science and Technology Law
Social Welfare Law
oai:law.bepress.com:pittlwps-1004
2005-01-21T21:56:51Z
publication:pittlwps
A Deadly Dilemma: Strategic Choices by Attorneys Representing "Innocent" Capital Defendants
White, Welsh S.
In this Article, I will contrast the choices of defense attorneys with wide experience in capital cases with those made by defense attorneys who lack such experience, and assess Wiggins v. Smith's possible impact on the question of whether the latter group's choices constitute deficient performance under the first prong of the Strickland test. Broadly stated, my thesis is that in representing capital defendants with a strong claim of innocence, certain axioms that govern the practices of experienced capital-defense attorneys should be viewed as professional norms, and, in most instances, a capital-defense attorney's failure to comply with these norms should constitute deficient performance within the meaning of Strickland.
2003-09-18T07:00:00Z
text
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https://law.bepress.com/pittlwps/art5
University of Pittsburgh School of Law Working Paper Series
bepress Legal Repository
Criminal Law and Procedure
Criminal Law
Criminal Procedure