Copyright (c) 2009 University of Pittsburgh School of Law All rights reserved. http://law.bepress.com/pittlwps Recent documents in University of Pittsburgh School of Law Working Paper Series en-us Tue, 03 Nov 2009 09:37:31 PST 3600 http://law.bepress.com/pittlwps/papers/art76 http://law.bepress.com/pittlwps/papers/art76 Tue, 04 Mar 2008 08:19:18 PST 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. Jules Lobel Constitutional Law http://law.bepress.com/pittlwps/papers/art75 http://law.bepress.com/pittlwps/papers/art75 Tue, 04 Mar 2008 08:14:51 PST 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. Anthony C. Infanti Legal History Taxation http://law.bepress.com/pittlwps/papers/art74 http://law.bepress.com/pittlwps/papers/art74 Mon, 03 Dec 2007 11:55:14 PST 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. Jules Lobel Constitutional Law http://law.bepress.com/pittlwps/papers/art73 http://law.bepress.com/pittlwps/papers/art73 Wed, 17 Oct 2007 14:07:50 PDT 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. Deborah L. Brake Education Law Employment Practice Sports Women http://law.bepress.com/pittlwps/papers/art71 http://law.bepress.com/pittlwps/papers/art71 Mon, 08 Oct 2007 13:01:37 PDT 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. David J. Herring Juveniles Law and Society Science and Technology Social Welfare http://law.bepress.com/pittlwps/papers/art68 http://law.bepress.com/pittlwps/papers/art68 Tue, 11 Sep 2007 14:43:21 PDT 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. Rhonda Wasserman Civil Law Conflict of Laws http://law.bepress.com/pittlwps/papers/art67 http://law.bepress.com/pittlwps/papers/art67 Fri, 31 Aug 2007 13:12:54 PDT 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. Deborah L. Brake Employment Practice Women http://law.bepress.com/pittlwps/papers/art66 http://law.bepress.com/pittlwps/papers/art66 Tue, 28 Aug 2007 13:09:26 PDT 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. John Burkoff Constitutional Law Criminal Law and Procedure Law and Society http://law.bepress.com/pittlwps/papers/art65 http://law.bepress.com/pittlwps/papers/art65 Wed, 22 Aug 2007 12:56:49 PDT This short piece addresses from a comparative perspective recent changes in France intended to strengthen the role of laypeople in the French legal system. Vivian Grosswald Curran Comparative Law Jurisprudence http://law.bepress.com/pittlwps/papers/art64 http://law.bepress.com/pittlwps/papers/art64 Tue, 14 Aug 2007 12:32:17 PDT 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. Harry M. Flechtner Commercial Law Comparative Law Contracts International Law International Trade