Current Issue

Volume 66, Fall 2013, Issue 1

Articles

UN-TORTURING THE DEFINITION OF TORTURE AND EMPLOYING THE RULE OF IMMIGRATION LENITY
Irene Scharf

It is no small irony that the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, whose primary purpose is to protect potential torture victims from deportation to countries where they are likely to be tortured, defines torture in such a narrow way that victims are unlikely to gain the protection promised. The United States has interpreted the definition of torture differently from the more than 153 other signatories of the Convention, adding a requirement that torture be “specifically intended.” Moreover, the Board of Immigration Appeals and several federal courts have interpreted the specific intent requirement even more narrowly than initially intended. This article outlines the havoc that this tortured definition of torture creates for immigrants facing deportation to potentially torturing countries, and offers possible solutions to the problem, including invoking a robust principle of Immigration Lenity.

CONSTRUCTING MODERN-DAY U.S. LEGAL EDUCATION WITH RHETORIC: LANGDELL, AMES, AND THE SCHOLAR MODEL OF THE LAW PROFESSOR PERSONA
Carlo A. Pedrioli

Between 1870 and 1920, a group of elite lawyers developed U.S. law into an academic field well established within the university, a marked departure from the hands-on approach to learning the lawyering trade, an approach that focused on preparation outside of the university. Law professors, situated within the university, needed to have a role, or persona, suitable to employ this new university paradigm of lawyer training. This article explains how lawyers like Christopher Columbus Langdell and James Barr Ames employed rhetoric to construct a scholar persona appropriate for law professors. The significance of rhetoric in this case is hard to overstate because the scholar persona constructed is the persona that, with minor modifications, continues to shape law students, and thus future lawyers, in the present day.

METHOD OR MADNESS?: THE LEFLAR APPROACH TO CHOICE OF LAW AS PRACTICED IN FIVE STATES
Mark Thomson

In 1966, Professor Robert Leflar published two articles that recast the debate on choice of law in America. Leflar proposed a five factor framework for courts to apply in multi-state actions. The proposal met with mixed reviews in the courts and academia. But missing from the debate about the Leflar method has been a comprehensive study of how the method actually works when applied by the courts. This article offers the most thorough analysis to date of how the five states that have adopted the Leflar method actually apply it.

Essay

“PUBLIC . . . SINCE TIME IMMEMORIAL”: THE LABOR HISTORY OF HAGUE V. CIO
Kenneth M. Casebeer

Although many legal history articles have been written analyzing and debating the relation of the Hague v. CIO opinions–soon in part to be read into First Amendment cases, eventually to be labeled the public forum doctrine, protecting communication access at least to willing listeners in limited places–little has been written about the labor history of the case. This essay examines the labor history of Hague, a labor history about effective organizing–about the ability of unions not to be prevented entry to or deported from any community, the ability to assemble in open-air meetings, to picket, to distribute literature and membership materials, and to placard opponents.

Notes

WHAT WOULD AN ANDROID DO? PAVING A REGULATORY PATH TO TECHNOLOGICAL PROGRESS
Eugene Chernett

In the modern world, the accelerating development of technology, coupled with its growing sophistication, has created the need for more refined legal tools to ensure that the rapid progress of science can be sustained. Notwithstanding the central role that technology plays in our lives, legal protections for technological progress in the United States are inadequate in some areas and nearly lacking in others. Moreover, some facets of technology-affecting regulation not only fall short of encouraging progress but in fact create barriers to it. However, environmental legislation a working scheme that can be emulated to add more visibility and consideration to regulation that adversely affects the progress of technology. This Note proposes adapting key components of the National Environmental Policy Act to technology-affecting regulation to counteract unsound policies within it.

JOBLESS IN AMERICA: DISCRIMINATION AGAINST THE UNEMPLOYED AND THE EFFICACY OF STATE AND FEDERAL PROTECTED CLASS LEGISLATION
Hope Delaney Skibitsky

During the 2011 congressional session, the United States Congress considered legislation entitled the “Fair Employment Opportunity Act of 2011,” a component of President Barack Obama’s proposed “American Jobs Act of 2011,” which would prohibit an employer of fifteen or more employees from refusing to consider an applicant for employment or refusing to hire an applicant because of her unemployment status. If this legislation is adopted, the FEOA would effectively add the “unemployed” as a protected class, similar to the protected classes under Title VII of the Civil Rights Act of 1964 and other statutorily protected groups. This Note analyzes the merits of granting the unemployed protected class status and considers whether protected class legislation will ultimately prove effective in combating discriminatory hiring practices.

THE EXCESSIVE BAIL CLAUSE: ACHIEVING PRETRIAL JUSTICE REFORM THROUGH INCORPORATION
Michael S. Woodruff

More than half of the people sitting behind bars in our nation’s jails have not been convicted of the crime charged. Many of them are being held for a rather simple reason: they cannot afford bail. Case law has not foreclosed the possibility that the Excessive Bail Clause can remedy the bail system’s inherent discrimination against the poor. This Note argues for the creation of a pretrial service system in each state or local jurisdiction to help gather the information judicial officers are commonly required to assess when making bail decisions, and to provide pretrial supervision for defendants who could be effectively supervised in the community. Analogizing to the emergence of public defender systems after the Court’s decision in Gideon v. Wainwright, a workable solution to the indigent bail problem can be achieved that would uphold the main thrust of the Excessive Bail Clause, avoid case-by-case adjudication, and preserve judicial discretion.

FORTHCOMING ISSUE

COMING SOON!: Volume 66, Issue 2

SPECIAL SECTION

A New Type of War
The Story of the FAA and NORAD Response to the September 11, 2001 Attacks

Follow Us!