3722 research outputs found
Sort by
Centering Students’ Rhetorical Knowledge: The Community of Inquiry as Formative Assessment
Get PDFThis essay describes an approach to peer review and classroom workshopping intended to develop a community of inquiry in the first-year law school classroom, center students’ own rhetorical knowledge, and establish the authority of students—especially minoritized students—as rhetorical agents. The technique described in this essay works from the presumption that each student who comes to law school comes with rich rhetorical experience. In other words, they have extensive experience constructing discourse suited to certain audiences and certain contexts. They use a variety of tools to construct such discourse, including linguistic registers (or styles) and rhetorical genres (such as the academic paper). On one hand, it is possible that (some of) our marginalized and minoritized students are less familiar with certain formal and academic registers and genres than (some of) our nonmarginalized and nonminoritized students. On the other hand, it is likely that (many of) our minoritized students are skilled at shifting register and genre based on social context (code switching, style shifting, etc.) in ways that (many of) our nonminoritized students are not. As McMurtry-Chubb notes, “Minoritized students . . . come to law school with wisdom from their lived experiences on how to minimize the effects of their identity contingencies . . . .” The approach I recommend here fits with the community of inquiry framework. Under that model, according to writing researcher Mary K. Stewart, “in a functioning community of inquiry, teaching presence and social presence support cognitive presence. In other words, when students experience a sense of community (social presence) and when the course design and instructor feedback guides students toward collaborative learning (teaching presence), then knowledge construction can result from interaction (cognitive presence).” To meet these requirements, the professor must set the stage for a community where students offer each other supporting discourse by setting the climate in the classroom and selecting content for their discussions. This approach calls on legal writing professors to create a suitable climate: They decenter their own rhetorical authority in the classroom while retaining their professorial authority, but they emphasize students’ rhetorical authority so that they recognize it in each other. This builds a community of supporting discourse. The selection of materials—here, students\u27 own writing—is critical to making participation in the community salient to students. When properly executed (and when the stars align to provide a good teaching day) this approach can “motivate students by encouraging positive emotions, such as confidence, by stimulating their interest, and by showing them how to use their skills to change their experiences and to help others.
Levmore on Simple Rules
Get PDFIn 1995, the Harvard University Press published my book Simple Rules for a Complex World, which set out my world view on a wide range of substantive issues related to, on the private side, the law of property, contract, tort, and restitution; and on the public side, the law of eminent domain and taxation. The framework that I developed in that book relies on key private law baselines to assess, among other things, the efficiency and desirability of various forms of legislation that play off these common law rules dealing with environmental law, land use regulation, and labor law. Saul Levmore poses a thousand questions about if and how the scheme can work but displays at the end of the day some sympathy with my approach, which he thinks corresponds to the many public choice issues to which his own career has been deeply involved. It is impossible to respond to all his wellaimed sallies at this occasion, so I shall try to tease out why I think that the discipline of simple rules continues to survive, notwithstanding his staccato-like criticisms
Professor Rachel Moran: A Foundational Latina/o Civil Rights Scholar
Get PDFWith an illustrious scholarly career, Professor Rachel Moran is a most-deserving Texas A&M University Hagler Fellow. Previously a chaired professor of law and dean of UCLA School of Law, and a chaired professor at the University of California, Berkeley School of Law, she currently is a Distinguished and Chancellor’s Professor of Law at the University of California, Irvine School of Law, where she was one of the founding faculty
Smoky Wine Variety: How Federal Crop Insurance Hinders Grape Growers Affected by Wildfire Smoke
Get PDFThis Note comparatively argues that while both Californian and Australian grape growers lose millions of dollars from crops damaged by wildfire smoke taint, the two countries support and insure their farmers very differently. When both areas of the world are susceptible to the damaging effects of climate change, why are the producers not susceptible to the same type of crop relief? After a careful analysis of the types of insurance the United States and Australian governments offer grape growers, the inequity stands between the systematic approach to insuring citizens against wildfires. In America, federal crop insurance only protects crops touched by the flames of wildfires, whereas, in Australia, the government recognizes the consequential effects of wildfires—smoke taint—and provides relief to their farmers for those crops damaged by smoke. The United States will fall behind the world in the wine industry, and more importantly, the billion-dollar viticulture industry in California will cease to exist, and millions of Americans will lose their jobs, homes, and hope without the support of the federal government. Thus, the United States must reevaluate the long-standing federal crop insurance policies and emulate those policies in Australia so that grape growers may feel overdue relief
Pro-Choice Plans
Get PDFAfter Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of abortion illegal, other anti-abortion laws target activities thought to facilitate abortion, most notably paying for abortions. Some of these laws, or proposed laws, attempt to punish paying for out-ofstate abortions, i.e., paying for abortions in a state where abortions are legal. ERISA says otherwise. If the plan covers abortion as a benefit, ERISA preempts laws purporting to bar plans in states where abortion is banned from paying for out-of-state abortions. It likewise preempts laws attempting to obligate plans to “report” on pending or completed abortions obtained by plan members. For the first time in the scholarly literature, this Article explains how and why that is the case—and thus the underappreciated importance of ERISA in the post-Dobbs world
Too Simple Rules for a Complex World? Prior Appropriation Water Rights as Natural Rights
Get PDFThis Article assesses the fit of Professor Claeys’s theory of Natural Property Rights to traditional prior appropriation, the regime that allocates water in the West, and its capacity to fit the future of the regime. Natural Property Rights does not offer clear answers to the conflicts under the prior appropriation doctrine of water when there is scarcity. This Article explores the lack of determinacy of Claeys’s theory and the maladjustment between the theory and some of the foundational prior appropriation principles, which cannot be ignored even in the most stylized form of the regime. In particular, the Article analyzes the interaction between the definition of the right and the type of use, the necessity proviso in a market context, the role of greed in prior appropriation trades, and the public trust doctrine
Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory
Get PDFProfessor Eric Claeys’s forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus—as I believe it must—on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.
However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis on duties. The Catholic social tradition offers a perspective on the moral duties and responsibilities that accompany property rights. This is not a substitute for natural property rights and their robust legal protection. Rather, it is a way to supplement legally defined rights with a moral perspective stressing the correlative duties and responsibilities that come with those rights. This paper argues that the more focus there is on a rights-based view of property from a legal perspective, the more important it is to look at moral frameworks to promote a healthy and holistic vision of property. Modern Catholic social theory offers just such a framework
The Road to Hell Is Paved with Vague Intentions: Prosecutorial Development of 18 U.S.C. § 666 and Its Effect On Local Officials
No full textOver the past century, federal prosecution has expanded to cover behavior without a clear nexus to federal interests. At the same time, the powers of local governments have expanded to areas historically reserved for states. These two trajectories have created a collision course, pitting federal prosecutors against local officials in unexpected ways. Vaguely drafted laws have enabled federal prosecutors to expand their discretionary authority and reach conduct that sits well outside of traditional ideas of criminality.
Corruption is a serious issue that needs to be addressed correctly. But how corruption is addressed and who should address it are two important questions that are often overlooked. The current pattern of prosecutorial development is headed toward a framework wherein every local official is “corrupt” and proving so is only a matter of launching an investigation. Rather than continuing this approach—which itself is ripe for political abuse—legislatures and courts should explore means that empower voters to define and resolve corruption at the local level
U.S. Approaches to Teaching International Law in a Global Environment
No full textTwenty-first century global issues, including pandemic response and recovery, climate change, and human population movements, can only be successfully addressed by those familiar with the sources, jurisdiction, and dispute resolution mechanisms of international law. This chapter discusses the responsibility of the academy to teach a broad constituency of law students, practitioners, public officials, thought leaders, and citizens. It describes various approaches used by law schools to integrate international law into their curriculum, including transnational, comparative, transsystemic, and classic Westphalian law, and considers ways to remedy the lack of international experience among U.S. law professors. The chapter looks at how law schools and professional associations teach international law, including short, topic-specific continuing legal education to practitioners; moot courts; experiential “global lawyering” visits and internships with international partners and organizations; and required or elective full semester courses as part of the J.D. curriculum. It calls on the “invisible college” of international lawyers to rise to the multifaceted challenge of today’s global environment
Defamation with Bayesian Audiences
No full textHow strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then laxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects in analyzing defamation law