Articles
Protecting Parent-Child Relationships: Determining Parental Rights of Same-Sex Parents Consistently Despite Varying Recognition of Their Relationship Article
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Linda S. Anderson, Protecting Parent-Child Relationships: Determining Parental Rights of Same-Sex Parents Consistently Despite Varying Recognition of Their Relationship, 5 Pierce L. Rev. 1 (2006)Clicking on the button will copy the full recommended citation.
This article discusses the potentially unseen effects of the different ways states recognize children of same-sex partners. It considers how states can allow or ban civil unions or same-sex marriages without causing uncertainty regarding parental rights and responsibilities. The article proposes changes to the Uniform Parentage Act and state statutes that would cause them to focus on the parent-child relationship rather than on the relationship of the parents.
To Speak or Not to Speak: Effect of Third Party Presence on Attorney Client Privilege Article
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Roberta Flowers, To Speak or Not to Speak: Effect of Third Party Presence on Attorney Client Privilege, 2 NAELA Journal 153 (2006)Clicking on the button will copy the full recommended citation.
Incorporating Adult Learning Theory into Law School Classrooms: Small Steps Leading to Large Results Article
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Linda S. Anderson, Incorporating Adult Learning Theory into Law School Classrooms: Small Steps Leading to Large Results, 5 Appalachian J.L. 127 (2006)Clicking on the button will copy the full recommended citation.
This article explores aspects of adult learning theory that can be easily applied to law school teaching. It briefly addresses the landscape of legal education today: the traits of law students, pressures to change legal education, and the need to make legal education more effective. After describing several specific principles of adult education, the article offers concrete suggestions for incorporating these ideas by making small changes in the law school classroom that specifically address some of the current concerns about legal education.
The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation Article
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Susan D. Rozelle, The Principled Executioner: Capital Juries’ Bias and the Benefits of True Bifurcation, 38 Ariz. St. L.J. 769 (2006)Clicking on the button will copy the full recommended citation.
Capital jurors are "death-qualified," or asked to verify at voir dire that their views on the death penalty would not prevent them from serving impartially. Ironically, death qualification itself creates juries unfairly biased toward guilt and death. Empirical investigation has demonstrated this skewing effect for over fifty years, and with the release of the recent Capital Jury Project data, any doubts on this score surely have been laid to rest.
Efforts to ameliorate death qualification's prosecutorial bias have been hamstrung, however, by statutory unitary jury requirements like the one found in the Federal Death Penalty Act. Statutes like these, which require that the same jury that determined guilt also determine punishment, place defendants in a double-bind. Death-qualifying a unitary jury before the conviction stage asks jurors to presume the defendant is guilty before the trial has even begun. Waiting to death-qualify the unitary jury until after conviction, however, means jurors will be asked about their willingness to impose death after having heard all the gristly details of the crime, and not a scrap of evidence in mitigation.
True bifurcation offers an escape from the double-bind, but the unitary jury requirement forbids it. This article considers the rationales for the unitary jury requirement, framed as objections to true bifurcation, and proves them to be illusory. As the only real barrier to the improved fairness true bifurcation offers is the statutory requirement itself, that requirement should be abandoned. Surely the principled executioner would agree.
Making Lemonade: A New Approach to Evaluating Evolution Disclaimers under the Establishment Clause Article
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Louis J. Virelli, Making Lemonade: A New Approach to Evaluating Evolution Disclaimers under the Establishment Clause, 60 U. Miami L. Rev. 423 (2006)Clicking on the button will copy the full recommended citation.
The debate over evolution instruction in public schools has become one of the most important and contentious debates in America. At the heart of that debate is the controversy over the use of evolution disclaimers, statements that challenge the veracity of evolution as an explanation of human origins. In evaluating the constitutionality of these disclaimers under the Establishment Clause, courts have applied a variety of different standards, including the three-part test articulated by the Supreme Court in Lemon v. Kurtzman. These standards, however, all fail to adequately reflect the proper scope of the Establishment Clause by being either overbroad, under-inclusive, or both. This problem is magnified by the recent development of disclaimers that are facially neutral with regard to religion. The emergence of facially neutral disclaimers necessitates a new standard that is free of the shortcomings of preexisting doctrine while offering a consistent and reliable method of evaluating future generations of disclaimers under the Establishment Clause. This Article proposes such a standard, modeled on the disparate impact test used to evaluate facially neutral discriminatory statutes under the Fifth and Fourteenth Amendments. It concludes that the disparate impact model constitutes a stable, objective approach that not only alleviates the weaknesses of existing Establishment Clause doctrine, but brings needed structure to an active and important area of law.
The Licensed Professional Exemption in Consumer Protection: At Odds with Antitrust History and Precedent Article
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Mark D. Bauer, The Licensed Professional Exemption in Consumer Protection: At Odds with Antitrust History and Precedent, 73 Tenn. L. Rev. 2 (2006)Clicking on the button will copy the full recommended citation.
The body of laws intended to protect consumers from unfair and deceptive acts and practices originated from a common body with the antitrust laws. Today, the Federal Trade Commission uses the same sentence of the same statute (Section 5 of the FTC Act) to enforce both its consumer protection and antitrust missions. Most state consumer protection laws specifically state that the laws are to be enforced in a manner consistent with both FTC and federal precedent. Yet many state courts, when considering a case of first impression in consumer protection, do not look to the antitrust laws for at least persuasive precedent. This has led to inexplicable results. Most notably for licensed professionals, the Supreme Court has explicitly held that the antitrust laws apply to licensed professionals; nonetheless, in a number of states, citing no relevant precedent except the original anomalous decision, consumer protection laws have been held to exempt licensed professionals.
Intimations of Citizenship: Repressions and Expressions of Equal Citizenship in the Era of Jim Crow Article
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James W. Fox, Intimations of Citizenship: Repressions and Expressions of Equal Citizenship in the Era of Jim Crow, 50 How. L.J. 113 (2006)Clicking on the button will copy the full recommended citation.
On first blush the Jim Crow Era may seem an odd place to locate anything meaningful about democratic, equal citizenship and the promise of the fourteenth amendment. This article argues to the contrary. The period of Jim Crow, in its negation of democratic citizenship, in fact reveals import aspects about the nature of democratic citizenship. This occurred in two ways. First, whites who implemented white supremacy implicitly understood that freedom and citizenship manifest themselves in a multiplicity of spheres, which is why white supremacists sought to subordinate blacks not just politically but across all social spheres. Second, the resistance to comprehensive subordination revealed the multiplicity of the spirit of freedom and equality in actions and arguments African Americans. African Americans created spaces of democratic citizenship within the dominant culture of subordination. This article suggests that, in studying both the implementation of white supremacy and the resistance to it, we can learn more about how equal and democratic citizenship can be affirmed and implemented rather than negated, and also about the role of law as a tool for both subordination and resistance.
ACLI Case Notes Article
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Darryl Wilson, ACLI Case Notes, 1 American and Caribbean Law News 5 (2006)Clicking on the button will copy the full recommended citation.
International Environmental Law: International Legal Developments in Review Article
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Royal C. Gardner, International Environmental Law: International Legal Developments in Review, 40 American Bar Association Section of International Law Year in Review 197 (2006)Clicking on the button will copy the full recommended citation.