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Teaching the Origins Controversy: Science, or Religion, or Speech
No full textThis article will attempt to clarify what the law does allow teachers to teach in their biology classrooms. In the process, it will answer three key questions necessary to deciding the legal status of Spokes\u27s proposed curriculum. These are:
Is It Science? Are Spokes\u27s intended changes in his biology curriculum scientific? Is his plan to correct and critique textbook presentations of neo-Darwinism scientific? Are the alternative theories that Spokes wants to present (including the theory of intelligent design) scientific?
Is It Religion? Does Spokes\u27s plan to correct and critique textbook presentations of neo-Darwinism constitute an establishment of religion? Does Spokes\u27s plan to expose his students to evidence of design and design theory qualify as teaching religion? Does the First Amendment prevent the presentation of this point of view?
Is It Speech? Do Spokes\u27s plans to correct and critique textbook presentations of neo-Darwinism, and to expose students to the alternative theory of intelligent design, enjoy protection under the First Amendment, either in the prohibition of viewpoint discrimination, or as an exercise of academic freedom
Common Sense, Contracts, and Law and Literature: Why Lawyers Should Read Henry James
No full textThere are at least two ways that Law and Literature methodologies can provide insight into the vexed space that is common sense: (1) Common Sense as the Failure of Imagination, and (2) Common Sense and the Problem of Ambiguity. Generally, failure of imagination occurs in connection with contract formation issues, and ambiguity with contract interpretation issues. To help elaborate these issues in the contractual universe of Gateway 2000 pay now, terms later contracts, I will first draw on the etymology of the phrase common sense to discuss the failure of imagination in the contract formation issues in that case and second, I will utilize Henry James\u27 The Turn of the Screw to discuss ambiguity and contract interpretation issues.
Diaries And Hearsay: Gender, Selfhood, And The Trustworthiness of Narrative Structure
No full textIn the first of four parts, this Article begins with some literary and legal definitions of a diary, including a discussion of the significance of the diary form in the metaphysics of selfhood. Next, this Article explores the issue of gender and diaries. Third, this Article examines the interplay between narrative structure and truth by analyzing the juridical rhetoric concerning diaries in case law and in the Federal Rules of Evidence. This latter analysis includes showing that diary evidence in criminal cases clusters in one of two logical categories: (1) Defendants\u27 Diaries-a defendant\u27s diary in a criminal case, where the defendant typically raises Fourth and Fifth Amendment arguments concerning the valued private enclave that is a diary, in order to keep out what would presumably be strong evidence against him ( him is accurate, since in these cases the defendants are generally male); or (2) Victims\u27 Diariesa victim\u27s diary in a criminal case, where the prosecutor tries to use a victim\u27s diary to show past abuse (overwhelmingly, the diaries in this category are of wives or girlfriends who have been murdered, or of young girls writing in their diaries about being sexually abused). Courts have been all over the map in making evidentiary rulings on diaries, partly, of course, because of different fact patterns and contexts, but also and significantly because of cultural assumptions about a form that has been heavily coded as feminine. Finally, this Article concludes that descriptions of abuse in diaries of now deceased battered women should be admissible, either under the California exception or under the residual exception in the Federal Rules, because such writings carry a heavy presumption of trustworthiness
Sex, Race, and Age: Double Discrimination in Torts and Taxes
No full textIt is truly uncommon when a tax statute casts off from its financial, economic, and accounting moorings in the Internal Revenue Code and sets sail in the murky waters and confusing undercurrents of American society\u27s shifting social attitudes.\u27 Section 104(a)(2), an octogenarian veteran of the Internal Revenue Code (Code), is like such a seafaring vessel-heading upwind toward an emerging public policy that seeks to regulate private and public behavior in interpersonal relationships. In its original form, this statutory provision excluded from income taxation all monetary damage awards for certain personal injuries. For approximately eighty years, the tax code afforded damages awarded on account of nonphysical personal injuries the same tax treatment as awards on account of personal physical injury. A brief hiatus between the enactment of § 213(b)(6), the precursor of § 104(a)(2), in the Revenue Act of 1918 and the Solicitor\u27s Opinion 132 in 1922 serves as the one exception. Only with the adoption of the Small Business Job Protection Act of 1996, did Congress limit the income tax exclusion to damages received from personal physical injuries or physical sickness. Nevertheless, today physicians, lawyers, and social scientists acknowledge that nonphysical injuries resulting from racial discrimination cause enduring intergenerational scars and may be more enduring and more severe than physical injuries caused by the loss of an arm or leg in a traffic accident. Additionally, both empirical studies and congressional policies now recognize the insidiousness of sexual harassment, age, and disability discrimination, as well as the long-term and sometimes permanently debilitating effects inflicted upon their victims. As the statute continues its rough passage through the rising swells of statutory, regulatory, and judicial interpretation, § 104(a)(2) could lose its bearings and wander off of its intended nondiscriminatory course. Society\u27s weakest groups are frequently the victims of nonphysical personal injuries and should possess the same inalienable rights to redress personal injury as historically enjoyed by dominant white males. Inequitable tax treatment based on the nonphysical nature of a victim\u27s injuries is irrational, arbitrary, and without constitutional justification. While the \u2750s provided a calm before the storm, the \u2760s cast our society into the turbulent seas of social and economic revolution, embracing both race and gender. Spearheaded by the Warren Court and the Civil Rights Act of 1964, the tempest of the sixties cleared the air and set the scene for major changes in the law. In the \u2770s American social consciousness became increasingly sensitive to economic disparity between races and genders, propelling these issues to the forefront of congressional policy and judicial action. Next, the self-interested \u2780s, known as the Decade of Greed, revealed the stress fractures caused by the social revolution of the \u2760s and by the progressiveness of the \u2770s. Indeed, the call for tort reform first emerged in the \u2780s, and it continues today to be an issue high on the agenda of many political groups. Against the background of the civil fights struggle, this Article examines the eighty-year history of § 104(a)(2). The congressional purpose for the changes to § 104(a)(2) was to raise revenues needed to fund tax incentives created by the Small Business Job Protection Act of 1996. This Article attempts to uncover and elucidate the underlying reasons for the judicial interpretations and subsequent discriminatory amendments. These conflicting claims set the debate over § 104(a)(2) against the background of society\u27s emerging respect for the value and dignity of the person. Furthermore, it underscores the lack of legislative and judicial regard for the rights of the groups historically treated as barnacles on the hull of society: minorities, women, the elderly, and the disabled. More importantly, it uncovers preconceived false notions of nonphysical injuries-notions firmly attached to the seabed of a largely male, Caucasian, masculine dominated judiciary and legislature. It dredges up the potent yet frequently unconscious prejudices that have conditioned the incongruous treatment of victims of personal injuries. Overall, this Article supports deliberate congressional action to ameliorate this discordant state of affairs. This Article first provides the traditional scholarly survey of legislative history, statutory analysis, and governmental and judicial interpretations. Part II reviews the history of § 104(a)(2) and offers a substantive inquiry into the Supreme Court opinions in United States v. Burke, Commissioner v. Schleier, and in the major cases leading up to these decisions. Part III then reviews the tax policy assumptions supporting § 104(a)(2) from a perspective of both before and after the 1996 amendments. Part IV chronicles the history and current status of various federally enacted civil rights statutes. This part then presents a historical overview of the emergence of tort reform at the federal and state levels-a reform in many ways diametrically opposed to that of civil rights legislation evolving and expanding the scope of protections and remedies. These two movements-civil rights and tort reform-elucidate the current status of § 104(a)(2). With respect to § 104(a)(2), tort reform takes place not in the traditional sense, Congress passing federal tort reform, but rather through the back door --tort reform in a taxing statute. Part V criticizes the judicial craftsmanship used in United States v. Burke and Commissioner v. Schleier. Next, this Article departs from traditional legal analysis by examining the psychological, sociological, and economical consequences of the discrimination and arbitrary double standard that § 104(a)(2) imposes on the victims of nonphysical harm. In doing so, this Article studies socio-economic factors causing the evolution of § 104(a)(2) and employs relevant psychoanalytic and cognitive psychological theories. Part VI archives the well-documented negative psychological, physical, social, economical, and societal consequences that result from various forms of discrimination. Part VII applies psychoanalytic and cognitive theories of psychology to support the thesis that the 1996 amendment to § 104(a)(2) is a product of unconscious judicial and legislative discrimination. This Part also contains a historic overview of the law of emotional distress that pertains to the current status of § 104(a)(2), especially when viewed under the psychoanalytic and cognitive theories of unconscious discrimination. Finally, Part VIII concludes the Article, recommending that Congress take immediate action to remedy the tax discrimination leveled against victims of dignitary torts and raise revenues to support the exclusion by disallowing deductions for amounts paid to victims of discrimination by the tortfeasors. In an effort to effectively influence the drafting of appropriate legislation, this Article will conclusively demonstrate that in the context of § 104(a)(2) there are no sustainable or well-founded tax or social policy justifications for treating victims of nonphysical injuries differently from those of physical injuries. Rather, broad social and congressional policy requires that victims of discrimination, in all its forms, be treated equally for tax purposes
Introduction to the Study of Law: Cases and Materials, 2nd Edition
No full textThis coursebook is designed for use by beginning law students. The first three chapters provide background reading for the summer months preceding law school and are intended to initiate the student to legal reasoning, law school, and the case method of study. The four topics following these chapters provide several assignments for teaching an orientation course. These assignments focus on the techniques of the case method of study in the areas of Contracts, Property, Torts, and Criminal Law and include explanatory and thought provoking discussions, sample case briefs and sample questions. The purpose of the orientation course is not to teach substantive law, but to initiate the student to the methods of legal reasoning. The Third Edition of Introduction to the Study of Law adds a number of new readings while at the same time streamlining the existing readings to provide a greater focus on what a student needs to prepare for the unique method of study found in law school. The previous edition split the nature of law and legal reasoning into separate chapters; this edition combines them in order to show their integrated nature. The final chapter continues to introduce the student to the unique case method of study, but this edition has added material to provide further guidance on the mechanics of reading, annotating, and briefing cases. The topics remain mostly the same, with a few exceptions. The most notable change is the addition of a topic in the area of criminal law and statutory analysis.https://scholarship.stu.edu/faculty_books/1023/thumbnail.jp
The 2000 Revision of The United Nations Draft Principles and Guidelines on The Protection of The Heritage of Indigenous People
No full textDualism And Overlooked Class Consciousness in American Labor Laws
No full textThis article will show that the class-consciousness, so obviously missing when responding to the practices of capital, was ever present when responding to the activities of black workers. From slavery days to the present, white working-class consciousness and ideology have been molded to separate black and white workers, and to accommodate practices designed to subjugate black workers. This article will demonstrate how federal regulations reinforced white working-class consciousness by improving white worker status through unionism and permitting unions to wield their statutory powers as a sword against black workers, thereby perpetuating the racial division of workers. Federal intervention in the field of labor consciously accommodated the racially hostile sentiments white workers harbored. This regulatory toleration of racist attitudes further assisted in anchoring white working-class consciousness and solidarity in policies that were harmful to black workers. This article does not contest the conclusion that, at the labor/capital level, an absence of working-class consciousness seems to be a defining feature. Rather, this article focuses on the false assumption that working-class solidarity generally was absent from the American labor movement. Proceeding from the premise that race and class are intertwined and enduring in American life, this article accounts for white working-class solidarity from slavery times to the present
Ending the Reign of Slot Machine Justice
No full textFederal appellate courts employ a random assignment system to select the circuit judges who will serve on any particular three-judge panel. The premise of this system is that random assignment is the fairest way of selecting judges, in light of resource constraints that make the use of full-circuit panels for every case impracticable.This paper contends that the random assignment system, while perhaps efficient, is certainly not fair. Winning a case in the U.S. courts of appeals hinges too much on luck, and not enough on the merits. This system produces slot machine justice, in which the outcome crucially turns on the three judges selected to hear the case. Aside from problems of basic fairness, the random selection of judges creates other serious problems for the judiciary as well. These include the decreased predictability of the law and extreme ideological results. As the circuit courts\u27 caseload has increased, these problems have become even worse. Prominent jurists have noted that there is an increasing likelihood that aberrant precedents will be influential and that courts have become less predictable and more quirky. These problems, to a large extent, can be traced to the random assignment system.For this reason, the random assignment system should be replaced with a system in which the judges are assigned on the basis of the parties\u27 preferences. Such a system will fundamentally improve the justice of the federal judiciary\u27s decisions, as every federal appellate decision will reflect, as closely as possible, what the average three-judge panel on that federal circuit would decide. It will also mean that there is less variation between decisions made by the same circuit, enabling each court of appeals to develop more coherent and consistent, as well as less ideologically driven, bodies of jurisprudence