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Peter Lake, Student Discipline: The Case Against Legalistic Approaches, 56 Chronicle of Higher Education A31 (2009)Clicking on the button will copy the full recommended citation.
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Kristen David Adams, Homeownership: American Dream or Illusion of Empowerment?, 60 S.C. L. Rev. 573 (2009)Clicking on the button will copy the full recommended citation.
In this Article, I endeavor to show that because Americans value homeownership so much — in fact, more than we should — we have placed ourselves in an untenable position as a country and now find ourselves in the midst of a well-documented housing crisis. In addition, we have used the primacy of homeownership as an excuse not to fulfill our country’s commitment to provide housing assistance to those persons who need it most. We have done this in part by undervaluing quality, affordable rental property (and quality renters) just as we have overvalued homeownership (and homeowners). Some have used the word “myth” in talking about the American view of homeownership; however, the word I prefer is “illusion,” which I intend to be less pejorative while still acknowledging that homeownership does not always deliver the benefits it promises, particularly for lower income homeowners. This Article is not particularly concerned with the question of who is to blame for the current housing crisis, because I believe fault in this context is too complicated to be laid at the feet of just one party or another. Part II of this Article examines the median American household, mortgage, and house, concluding that many Americans cannot afford the homes they have purchased. Next, Part III addresses the question of why our country overvalues homeownership to such an extent that it now finds itself in this position. In doing so, Part III examines the many benefits that homeownership supposedly provides to both individuals and society. Part IV contrasts society’s customary treatment of homeownership as a virtue with its stigmatization of renters, concluding that the latter is unfounded. Part IV also explores how the very interests that have promoted homeownership have also benefited most from its growth. Part V considers several factors that contributed to the real estate boom that culminated in the mid-2000s, including homeowners’ treatment of mortgage debt as wealth, financing options such as no-down-payment and interest-only loans, increased utilization of home equity loans, and certain features of subprime lending. Part VI concludes by suggesting that universal homeownership does not provide the benefits Americans have come to expect from it and proposing four steps policymakers should follow in creating healthier, more sustainable housing policy.
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Susan D. Rozelle, He Had it Coming: Provocation as a Partial Justification, in Criminal Law Conversations (Paul H. Robinson et al. eds., Oxford University Press, 2009)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Scientific Peer Review and Administrative Legitimacy, 61 Admin. L. Rev. 723 (2009)Clicking on the button will copy the full recommended citation.
The alleged misuse of scientific information to support public policy decisions has become one of the most prominent and controversial topics in American politics. Perceived government misuse of scientific data in highly controversial areas such as global warming, environmental protection, stem cell research, and contraception threatens to lead us not only toward policy positions that are inconsistent with scientific reality, but perhaps more importantly into a political environment where science-based policy decisions are no longer viewed as legitimate within our constitutional democracy. Due in part to these concerns about scientific integrity in administrative decisions, there is also a significant amount of attention being paid to scientific peer review in the administrative process ("administrative peer review"), a movement highlighted by a 2005 OMB bulletin mandating that administrative agencies obtain peer review of all important scientific information that they disseminate to the public.
This article addresses the cross-section of these two issues through a normative analysis of peer review's impact on administrative legitimacy. To date, commentary on peer review in the administrative context has been limited to treating peer review either descriptively or as a largely monolithic enterprise. This article departs from that approach by asking the next logical questions - what model(s) of peer review are available to administrative agencies, and which of these is best suited to promote legitimacy in administrative decisions - and by creating a framework for answering them, first through the development of four distinct models of administrative peer review, and then by establishing a series of normative approaches, including a cost-benefit analysis, through which to evaluate each of the models. In addition to providing a new theoretical context in which to consider peer review, the results of the analyses are interesting in that they overwhelmingly support the multifaceted treatment of peer review developed here and raise serious questions about the most commonly used model of administrative peer review.
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Ciara Torres-Spelliscy, A Bench That Looks Like America: Diversity Among Appointed State Court Judges, 48 Judges' Journal 12 (2009)Clicking on the button will copy the full recommended citation.
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Michèle Alexandre, Sex, Drugs, Rock & Roll and Moral Dirigisme: Toward A Reformation of Drug and Prostitution Regulations, 78 UMKC L. Rev. 101 (2009)Clicking on the button will copy the full recommended citation.
This Article builds upon various scholarly critics of moralistic laws to argue that legal prohibition of drugs and prostitution is inefficient. In so doing, it relies on economists’ scholarship, which has demonstrated that the high costs of regulation are not justified, considering the minimal success of these regulations as well as the harm caused by those regulations. Philosophers, for millennia, have grappled with formulating principles of morality and have attempted to determine which of those principles ought to be codified and imposed as societal rules of law on individuals. Attempts to coerce individuals into adopting certain behavioral patterns or forgo destructive ones have been referred to as “moral dirigisme”. Moral dirigisme manifests itself in “the attempt or tendency to control certain kinds of moral behavior by formal legal means." (See, e.g., Mario J. Rizzo, The Problem of Moral Dirigisme: A New Argument Against Moralistic Legislation, 1 N.Y.U. J.L. & LIBERTY 789, 791 (2005). Moral dirigisme (John Stuart Mill, On Liberty 13 (Stefan Collini ed., 1989) (1859) is an economic term, which describes an economic structure for which the government provides strong direction. (See generally Élie Cohen, Le Colbertisme “High Tech”: Économie Des Telecom et du Grand Projet (1992); David Baker, The Political Economy of Fascism: Myth or Reality, or Myth and Reality?, 11 NEW POL. ECON., 157, 227-50 (2006). The term dirigisme derives from the French word diriger, which means to guide. (see WordReference.com, French to English Dictionary, (last visited Sept. 3, 2009). Moral dirigisme, by analogy, refers to the underlying philosophy which believes that moral behaviors can be changed through formal regulation. It is referred to, by Mario J. Rizzo, as “the attempt or tendency to control certain kinds of moral behavior by formal legal means.” (See Rizzo, supra note 2, at 791). Rizzo views acts by the state to prohibit or authorize certain conduct of individuals in an attempt to force them to act morally as flawed. Id. The laws prohibiting drugs and prostitution serve as perfect examples of implementation of a moral dirigiste philosophy. I contend in this Article that the dirigiste approach to drugs and prostitution is erroneous and inefficient.
From Plato’s Socrates to Kant’s Categorical Imperatives to Hume’s observations, philosophers have confronted the nebulous intersection of absolutely necessary laws and purely beneficence-inducing laws, which cannot be implanted as a product of coercion. While the principles of justice have generally been perceived as capable of inspiring precise laws, other principles such as those guiding beneficence have been viewed by philosophers as more contingent on the individual’s state of mind or circumstances and less likely to be regulated by formal rules. This Article explores the proper role the law should play in regulating behaviors (such as drug use and/or in prostitution) that society deems harmful, but that are resistant to prohibition. Additionally, it considers items deemed harmful to the public, but not subject to any form of prohibition. Furthermore, it re-examines the consequences of U.S. drug and prostitution policy, focusing on the inevitable “black market” effects of the punitive style of enforcement, and initiates serious consideration of policy alternatives to discourage drug use and limit the number of vulnerable women engaging in prostitution.
Consequently, the Article is divided as follows. Part II considers the inefficiency of the prohibition of drugs and prostitution. Part III discusses the underlying legal and philosophical theories that support prohibitory legislation and analyzes why prohibition of drugs and prostitution, although a popular default mechanism, is ineffective at eradicating these behaviors. Part III also identifies the Smithian-Humean view of justice as a basis to evaluate prohibition-based laws. Part IV explores the issues inherent in the prohibition of drugs and considers alternative approaches. Part V explores issues that result from the prohibition of prostitution and Part VI proposes an alternative framework to the prohibition of prostitution. Part VII explores ways of preventing pro-prostitution regulations from strengthening the sex trafficking market. Finally, Part VIII borrows from philosophical frameworks to formulate a standard that helps differentiate between effective and ineffective prohibition. Through an analysis of the unintended effects of prohibition, this Article provides a strong economic and legal argument for the legalization of prostitution and, at the very least, marginal changes in U.S. drug policy.
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Susan D. Rozelle, Making Waves: Radicalizing Act Reasonableness, in Criminal Law Conversations (Paul H. Robinson et al. eds., Oxford University Press, 2009)Clicking on the button will copy the full recommended citation.
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Rebecca C. Morgan et al., Tax, Estate, and Financial Planning for the Elderly Forms Book (2009)Clicking on the button will copy the full recommended citation.
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Michèle Alexandre, When Freedom Is Not Free: Investigating the First Amendment’s Potential for Providing Protection Against Sexual Profiling in the Public Workplace, 15 Wm. & Mary J. Women & L. 377 (2009)Clicking on the button will copy the full recommended citation.
This article explores the ways in which bodily expression can constitute symbolic speech that courts should protect pursuant to the First Amendment of the Constitution. In a previous article, I referred to this type of bodily speech as “body protest.” Body protest can refer to actions that individuals undertake to assert their autonomy, identity, and freedom from societal restrictions. For women, body protest may be used “to challenge gender restrictions and to activate women-centric legal reforms.” For example, women may express body protest through dance, dress, or performance arts. These individuals are often sexually profiled because of how they use their bodies. This article analyzes the sexual profiling issues inherent in grooming cases within the context of First Amendment jurisprudence in the public employment sphere and argues that the First Amendment's protection of freedom of expression offers a basis to expand upon personal rights in grooming cases.
The goal of this article is to argue that by placing body protest and other expression that occurs in public employment appropriately within the scope of the First Amendment, society can eradicate widespread gender bias in the workplace. Part I of this article discusses why the First Amendment should be strengthened as a cause of action in gender-based grooming cases. Part II presents evidence of sexual profiling in rape cases, which reflect society's attitudes towards women's grooming choices. Parts III and IV analyze sexual profiling in the workplace, the treatment of gender-based grooming policies and sex stereotyping under Title VII, and the utilization of conduct as gender-based expression under the First Amendment. Part V *378 seeks to reconcile sexual profiling claims brought under the First Amendment with Supreme Court jurisprudence from Pickering v. Board of Education, Connick v. Myers, and Garcetti v. Ceballos. And last, Part VI considers the possibility of learning by analogy from the sexual orientation cases.
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Susan D. Rozelle, Sometimes a Control Test is Just a Control Test, in Criminal Law Conversations (Paul H. Robinson et al. eds., Oxford University Press, 2009)Clicking on the button will copy the full recommended citation.