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Professional Standards and the First Amendment in Higher Education: When Institutional Academic Freedom Collides with Student Speech Rights

Jun 20 2017

This article analyzes the disturbingly growing use of external professional standards by public colleges and universities to squelch students’ First Amendment speech rights. Using the 2016 decision by the U.S. Court of Appeals for the Eighth Circuit in Keefe v. Adams and the 2015 decision by the Ninth Circuit in Oyama v. University of Hawaii as analytical springboards, the article exposes the tension between two competing First Amendment rights – the institutional academic freedom of public universities to control curricula and the free speech rights of public university students both on and off campus. Without guidance from the Supreme Court, lower courts are foundering and applying inconsistent standards to analyze professional-standards cases affecting college students. The article proposes and defends a new four-part test to resolve future professional-standards cases. The article concludes both by suggesting a best-practice for universities to implement and by calling on the Supreme Court to quickly hear such a dispute – something it declined to do in Keefe in April 2017.

Business Taxes Reinvented: The Dual Business Enterprise Income Tax

Jun 14 2017

This short overview and accompanying term sheet summarize the key features of a proposed comprehensive business tax environment termed the Dual Business Enterprise Income Tax (the Dual BEIT). The term sheet format is a useful mode of presentation for capturing in one accessible document the major policy recommendations of the Dual BEIT (or any other comprehensive tax reform proposal).

This paper makes the case that the Dual BEIT satisfies the objectives of policymakers from both parties for comprehensive business tax reform that can serve as the platform for economic growth while collecting appropriate levels of tax revenue. The arguments are developed further in two more detailed papers: Capital Taxation in an Age of Inequality, 90 So. Cal. L. Rev. 593 (2017), and The Right Tax at the Right Time, Fla. Tax Rev. (forthcoming) (working paper at http://tinyurl.com/y8ybsqwl).

“I’m Blending”: “Cultural Compassion” Taught as a Critical Pedagogy.

Jun 11 2017

Prologue

"People of different religions and cultures live side by side in almost every part of the world, and most of us have overlapping identities which unite us with very different groups. We can love what we are, without hating what – and who –

we are not. We can thrive in our own tradition, even as we learn from others, and come to respect their teachings.”[1]

Knowledge of applicable laws and rules, with an ability to analyze and distinguish precedent are important lawyering skills, many of which are taught and perfected during one’s law school experience. However, effective legal advocacy involves more than a mastery of the law and skill,[2] it requires a deep understanding of the client. In our growing multicultural society, while cultural competence is increasingly important for professionals to create effective working relationships with their clients and adequately address their clients’ needs;[3] competence alone is insufficient. This article examines why “practice readiness” requires law school curriculums to introduce and to incorporate “cultural compassion”[4] as a critical pedagogy[5].

There are a lot of articles that speak to the importance of the cultural environment within learning institutions, but there a few articles that discuss the importance of teaching “cultural respect,”[6] more specifically, “cultural compassion” as a component of professional competency. This article attempts to fill that gap. Section I of this Article begins the discourse with an example of a “clash of cultures[7]” that shows how common it can be to have a conflict of cultures between the attorney and client. This example happens multiple times a day, every day, in every genre of the legal profession from direct representation of pro bono clients, to transactional representation of multi-million-dollar business and corporate clients.

Section II defines and discusses the importance of culture. The concepts of cultural awareness, cultural competence, empathy, compassion and cultural compassion are defined and compared. Section II serves as a transition in to Section III where the concept of “cultural compassion” is explored as a component of competent legal representation as defined by the American Bar Association, (hereinafter ABA), Model Rules requires “cultural compassion”. Section II also discusses the MacCrate reports’ implication of competence; and how practical competence must include a recognition of the importance of and the incorporation of culture.

Section IV further explains the importance of culture and why good lawyering cannot be color blind. Section V explains why cultural compassion is the vehicle needed to transform students into “whole lawyers”. Section VI discusses the role of experiential learning and how teaching cultural compassion via experiential experiences improves the law students’ experience with legal education.

Section VII concludes that educating lawyers skilled at addressing the legal needs of a diverse society involves not the fulfillment of a competency as some sort of educational nirvana, but the development of an orientation-a critical consciousness-which places law in a social, cultural and historical context and which is coupled with an active recognition of societal problems and search for appropriate solutions.[8] Allow this to be the seed that prayerfully bears much fruit.

The simple, practical message of this article is one that we have heard before, to promote effective change in a networked world dependent on professional relationships and global cooperation, the legal profession must empower its newest members with the tools that will help them learn from, lead and inspire others[9]; and of these tools, “cultural compassion” must be one. In its conclusion, this article encourages law schools to partner with law students and seek their student’s active participation in a systems theory shift that allows the birth of a curriculum that ensures a law student who is self-actualized in their culture so that they become legal professionals and leaders that are respectful of the culture of their clients. The focus of this article is to initiate meaningful discourse between law school professors and law students, focused on the creation of a pedagogical model that compels law students and young lawyers to: 1) know their culture; and 2) use their culture in ways that respect and acknowledge the cultures of their clients so that the legal representation that they provide to their clients is greater than just good, whole and complete.

[1] Kofi Annan, Former Secretary-General of the United Nations

[2] See generally, Travis Adams, Cultural Competency: A Necessary Skill for the 21st Century Attorney, Law Raza:Vol. 4: Iss. I, Article 2. Available at: http://open.mitchellhamline.edu/lawraza/vol4/iss1/2

[3] Serena Patel, Cultural Competence Training: Preparing Law Students for Practice in Our Multicultural World, 62 UCLA L. Rev. Disc 140 (2014).

[4] “Cultural compassion” is a term that is created by(to the extent that my research shows), and that is being introduced by Professor Ledesma into the discourse of professionalism and experiential education in an effort to describe a hybrid of skill and intuition that this author asserts, every professional, especially attorneys, should understand, incorporate and exercise in their daily practice as they act as service leaders and positive change agents in their communities and society at large.

[5] Habits of thought, reading, writing, and speaking which go beneath surface meaning, first impressions, dominant myths, official pronouncements, traditional clichés, received wisdom, and mere opinions, to understand the deep meaning, root causes, social context, ideology, and personal consequences of any action, event, object, process, organization, experience, text, subject matter, policy, mass media, or discourse. Shor, I. (1992). Empowering education: Critical Teaching for Social Change. Chicago: University of Chicago Press.

[6] “Cultural respect” is the term that this author uses to explain Culture is often described as the combination of a body of knowledge, a body of belief and a body of behavior. It involves a number of elements, including personal identification, language, thoughts, communications, actions, customs, beliefs, values, and institutions that are often specific to ethnic, racial, religious, geographic, or social groups. For the provider of health information or health care, these elements influence beliefs and belief systems surrounding health, healing, wellness, illness, disease, and delivery of health services. The concept of cultural respect has a positive effect on patient care delivery by enabling providers to deliver services that are respectful of and responsive to the health beliefs, practices and cultural and linguistic needs of diverse patients. https://www.nih.gov/institutes-nih/nih-office-director/office-communications-public-liaison/clear-communication/cultural-respect.

[7] Culture as defined for this article is “…the explicit and implicit patters for living, the dynamic system of commonly-agreed upon symbols and meanings, knowledge, belief, art, morals, law, customs, behaviors, traditions, and/or habits that are shared and make up the total way of life of a people, as negotiated by individuals in the process of construction a personal identity. The important idea is that culture involves both observable behaviors and intangibles such as beliefs and values, rhythms, rules, and rolls. (Diaz-Rico and Weed, 2010).

[8] Arno K. Kumagai, MD, and Monica L. Lypson, MD, Beyond Cultural Competence: Critical Consciousness, Social Justice, and Multicultural Education Academic Medicine, Vol 84, No. 6 / June 2009.

[9] Patrick C. Brayer, A Law Clinic Systems Theory and the Pedagogy of Interaction: Creating a Legal Learning System, Connecticut Public Interest Law Journal, Vol 12:1, (2012), 53.

Why is Everyone Afraid of IP Licensing?

Jun 2 2017

Legal scholars have tended to approach the licensing of intellectual property rights with skepticism, calling for legal intervention to protect the public domain against purported encroachment by IP licensors. Recent decisions by the U.S. Supreme Court are consistent with this view. This skeptical approach overlooks three core efficiencies generated by real-world content and technology licensing markets. First, licensing permits firms to customize supply chains in order to allocate supply-chain functions to the least-cost provider of each function, thereby minimizing total innovation and commercialization costs. Second, licensing permits firms to construct hub-and-spoke formations in which larger downstream firms bear production and distribution risk while smaller upstream originators of creative and technology inputs bear development risk. Third, licensing enables firms to divide innovation assets into sub-assets deployed across multiple parameters in space and time, yielding efficiency and distributive gains in certain circumstances by expanding access across a broad spectrum of valuation intensities. Newly reinvigorated skepticism toward IP licensing preserves formalistic doctrines in IP law that frustrate efficient knowledge transactions or compel firms to adopt second-best mechanisms in order to assemble content and technology inputs for delivery to consumer markets.

Ask Versus Tell: Potential Confusion When Child Witnesses Are Questioned About Conversastions

May 17 2017

Children’s potential confusion between “ask” and “tell” can lead to misunderstandings when child witnesses are asked to report prior conversations. The verbs distinguish both between interrogating and informing and between requesting and commanding. Children’s understanding was examined using both field (i.e., Study 1) and laboratory (i.e., Studies 2-4) methods. Study 1 examined 100 5- to 12-year-olds’ trial testimony in child sexual abuse cases, and found that potentially ambiguous use of ask and tell was common, typically found in yes/no questions that elicited unelaborated answers, and virtually never clarified by attorneys or child witnesses. Studies 2-4 examined 345 maltreated 6- to 11-year-olds’ understanding of ask and tell. The results suggest that children initially comprehend telling as saying, and thus believe that asking is a form of telling. As such, they often endorsed asking as telling when asked/yes no questions, but distinguished between asking and telling when explicitly asked to choose. Their performance was impaired by movement between different use of the words. Child witnesses’ characterization of their conversations can easily be misconstrued by the way in which they are questioned, leading questioners to misinterpret whether they were coached by disclosure recipients or coerced by abuse suspects.

Quantitative Legal History

May 2 2017

Legal historians seldom use statistics, but this is a missed opportunity. Quantitative methods are particularly helpful in understand core legal history issues, including the effect of legal change and the influence of multiple factors on legislation, judicial decisionmaking, and citizen behavior. Recent work by Gavin Wright, Paul Mahoney, and Michele Landis Dauber shows how tables, graphs, and regression analysis can be woven into persuasive historical narrative and analysis. Collaboration between legal historians and quantitative social scientists also provides an untapped avenue to enrich the field.

Dialectics of Same Sex Marriage: International Human Rights Reflections.

Apr 25 2017

As cultural values differ, so does the definition of marriage differ based on cultural standards. It is considered a cultural universal. In most jurisdictions, countries limit the definition of marriage and give legal recognition to the concept of one man to one woman, that is, opposite-sex couples. Quite sizeable countries also permit polygyny and perhaps forced marriages. The legal recognition accorded to these classifications of marriage has seen marriage in its practical form between two persons of opposite gender over the years. Over the years and quite recently, several countries and jurisdictions are beginning to redefine marriage. Some of these countries have lifted bans on and have established same-sex marriage. This work attempts a critical analysis of the concept of same sex marriage in a jurisdiction such as Nigeria and compares with more developed jurisdictions. With the advent of globalization and the flexible use of human rights, the work creates a convergence between different forms of marriage and the need for countries such as Nigeria to appreciate the inherent right of human beings to engage in a union that is best for them.

"Seeing the Wrecking Ball in Motion: Ex Parte Protection Orders and the Realities of Domestic Violence"

Apr 25 2017

Abstract

(Stark & Choplin)

The authors explored the reasons why judges too often fail to see the likelihood of future violence—the wrecking ball in motion—when petitioners request ex parte orders of protection in domestic violence cases. One reason is that the dynamics of domestic violence are very different from the dynamics at play in other situations wherein petitioners request emergency ex parte orders. Another reason is that the dynamics of domestic violence are counterintuitive and judges often do not understand them. Because judges do not understand these dynamics, they often misapply assumptions (called cognitive schemas and scripts) from other domains to domestic violence situations where they are inappropriate. Like all people, judges use decision-making shortcuts such as heuristics and reason-based or justification-based decision-making to overcome cognitive limitations, but the criteria they use for these shortcuts are too often inappropriate and fail to consider the dynamics of domestic violence. Judges also inappropriately rely on gendered stereotypes when deciding whether to grant emergency domestic violence ex parte orders of protection, and because the potential consequences of denying requests for emergency ex parte orders of protection are delayed and uncertain, judges have a tendency to discount the likelihood of further abuse in some situations. The authors analyzed reported judicial decisions and court observations and found strong evidence of the problems in decision making noted above, leading to some survivors of domestic violence not receiving the protection they needed from further abuse. The authors propose legislative reforms that better take into account the dynamics of domestic violence and that provide judges with a heuristic to use that capture the realities of domestic violence. If implemented, these reforms should better protect survivors of domestic violence from further, often escalating, abuse. The authors also consider and propose measures to protect those accused of abuse from false accusations and address related thorny issues that arise in judicial decision making in this area of law.

Famous On The Internet: The Spectrum Of Internet Memes And The Legal Challenge Of Evolving Methods Of Communication

Apr 14 2017

On a daily basis, millions of Internet users re-blog, re-tweet, and re-post the content of others on social media. It is conduct that has led to a flourishing social Internet culture, but it is also conduct that implicates many clashing interests. For some, an Internet meme is a work of their own creativity whose co-option by the Internet at large is an act of infringement. For others, an Internet meme is a violation of their privacy resulting in severe emotional distress. For still others, an Internet meme is a vital communicative tool expressing particular ideas that cannot be articulated in any other way. This Article argues that the legal analyses applied to memes should strive to seek a balance between all of these interests, promoting the continuation of meme culture while also protecting those harmed by meme culture’s excesses.

This Article uses the examples of a number of different memes to demonstrate that meme usage encompasses a spectrum of activity ranging from static to mutating in nature. These different uses have correspondingly different impacts on the legal rights of all three meme interest groups, none of which are adequately captured by traditional applications of existing doctrines of intellectual property or privacy laws. This Article posits that explicit acknowledgment of the wide spectrum of meme behavior should be used to help guide and appropriately adjust the application of legal doctrine to the meme in question, with attention paid to the underlying policy interests of a particular meme use. This can lead to more effective legal decisions regarding these memes that balance more precisely the interests of all those affected—both negatively and positively—by Internet meme culture.

"Frankly Unthinkable": The Constitutional Failings of President Trump's Proposed Muslim Registry

Mar 28 2017

On several occasions during the 2016 presidential campaign, Donald Trump endorsed the creation of a mandatory government registry for Muslims in the United States—not just visitors from abroad, but American citizens as well. This astonishing policy proposal has received little attention in legal scholarship to date, even though Trump has refused to renounce the idea following his election to the presidency.

In this Article I attempt to address Trump’s proposal in several ways. First, I aim to provide a clear and thorough analysis demonstrating unequivocally that such a “Muslim registry,” with the characteristics Trump has endorsed, would violate the First Amendment and the Fifth Amendment to the Constitution. Second, drawing context from Trump’s executive orders limiting immigration from certain Muslim-majority countries, I analyze the constitutionality of a possible program disguised to avoid overt discrimination among religions but still operating in effect as a “Muslim registry.” This too, I aim to demonstrate, would be a clear violation of the Constitution. Finally, I consider various counterarguments, principally that the emergency powers or war powers of the president would allow Trump to implement a “Muslim registry,” and that Korematsu v. United States demonstrates such a policy would be constitutional. I attempt to analyze both claims thoroughly and conclude that they are unpersuasive.

This Article ultimately attempts to demonstrate, through a methodical analysis of case law, legal scholarship, and the political context, that what Trump has proposed is plainly unconstitutional. If this conclusion is not surprising, it is significant; even following his election, the President of the United States has refused to disavow a policy that would clearly violate the constitutional rights of American citizens.

Puerto Rico and the Netherworld of Sovereign Debt Restructuring

Mar 20 2017

Puerto Rico has incurred debt well beyond its ability to repay. It attempted to address its fiscal woes through legislation allowing the restructuring of some its debt. The Supreme Court put a stop to this effort, holding that Congress in the Bankruptcy Code barred the Commonwealth from enacting its own restructuring regime. Yet all agreed that the Bankruptcy Code did not provide anything in its place. While Congress quickly enacted PROMESA in an attempt to address the Puerto Rico’s fiscal ills, we explore in this paper whether Congress has the power to bar Puerto Rico from enacting a restructuring mechanism and not offer an alternative. We submit that the answer is no. When it comes to a state, the Supreme Court has held that the power to issue debt necessarily implies the power to restructure that debt. Congress can preempt that power, so long as it puts something in its place. To preempt and leave nothing, however, runs afoul of our federal system. The same reasoning, with greater force, applies to Puerto Rico. The federal government entered into a compact with the citizens of Puerto Rico, granting them, among other things, the power to issue debt. Puerto Rico implicitly received the power to restructure this debt. Congress could offer a substitute to any regime that Puerto Rico might enact, but it cannot leave the Commonwealth without any means to address its fiscal affairs.

SHARK-NATO: A Comparative Analysis of International Shark Conservation to Nationalized Shark Conservation

Mar 13 2017

Sharks are an essential apex predator for the world’s oceans. Human activities, such as finning, are causing their numbers to dwindle rapidly. Their populations cannot sustain high rates of fishing; sharks are slow to mature and reproduce in small numbers. Many efforts, internationally and nationally, have been implemented to conserve current populations, but each method has strengths and weaknesses. International legislative bodies protect shark fisheries because many species swim across jurisdictional boundaries, but there are multiple legislative bodies with different requirements and classifications. Nationalized shark legislation is very efficient when done correctly, with strong monitoring and penalties for offenders. Some of the issues that arise are the need for community involvement and the financial capability to afford the efficient enforcement necessary. The best way to achieve effective shark focused conservation law is to have both a strong international legislative body and create more nationalized regulations. A strong international legislative body would require the most accurate scientific data available, regulate the trade of species, and analyze countries’ cultural practices towards sharks. A well-informed international governing convention with the willingness to listen to cultural practices and the economics of shark based eco-tourism can persuade nations to abide by international legislation as well as create their own regulations. Effective shark based conservation legislation is possible, but requires international and national involvement to make a true impact.

Legal Attitudes of Immigrant Detainees

Feb 28 2017

A substantial body of research shows that people’s legal attitudes can have wide-ranging behavioral consequences. In this article, I use original survey data to examine long-term immigrant detainees’ legal attitudes. I find that the majority of detainees express a felt obligation to obey the law, and do so at a significantly higher rate than other U.S. sample populations. I also find that the detainees’ perceived obligation to obey U.S. immigration authorities is significantly related to their evaluations of procedural justice, as measured by their assessments of fair treatment while in detention. This finding remains robust controlling for a variety of instrumental and detainee background factors, including the detainees’ experiences with the legal system and legal authorities in their countries of origin. Finally, I find that vicarious procedural justice evaluations based on detainees’ assessments of how others are treated are as important to detainees’ perceived obligation to obey U.S. immigration authorities as their personal experiences of fair or unfair treatment. I discuss the broader implications of these findings and their contributions to research on procedural justice and legal compliance, and research on legal attitudes of noncitizens.

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