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Spring 2011 - Volume 3 Number 2 Articles

War Crimes and Misdemeanors: Understanding "Zero-Tolerance" Policing as a Form of Collective Punishment and Human Rights Violation

A fundamental principle of criminal law is that individuals may only be punished for offenses which they have personally committed; any punish-ment must be personal and individual. To that end, international law proscribes as collective punishment any sanction imposed on a population without regard to individual culpability for the offense that provokes the penalty. Compstat-based zero-tolerance or order-maintenance policing, the prevailing thesis in contemporary law enforcement, punishes entire com-munities for the crimes of a few. More specifically, zero-tolerance policing seeks to deter violent crime not by apprehending those relatively few perpetrators of crime, but by indiscriminate search-and-seizure operations and wholesale misdemeanor arrests for minor quality-of-life offenses in the neighborhoods where violent crimes occur, typically poor communities of color. As a form of collective punishment, such policing is contrary to international human rights law.

Dialectical Jurisprudence: Aristotle and the Concept of Law

Western law, culture, and philosophy thought that they were saying goodbye to Aristotle as they entered into modernity, only now to find the ancient philosopher standing in wait as they leave modernity and enter into post-modernity. But what use do we have for Aristotle at this time? He can perform a valuable service for us — he offers a therapy for the "bipolar disorder" in contemporary jurisprudence and philosophy. This disorder is manifested in the widespread tendency to approach and analyze philosophical topics as dueling dichotomies, incapable of resolution or reconciliation. It is all too often assumed at the outset that one is faced with a stark either/or sort of choice between alternatives, so participants in the philosophical debates arising out of this approach typically take one side of the dichotomy and see it as their task to marginalize and diminish the other side of the dichotomy.

Assessing Ourselves: Confirming Assumptions and Improving Student Learning by Efficiently and Fearlessly Assessing Student Learning Outcomes

The American Bar Association (ABA) is considering new accreditation standards for law schools that would require the faculty at each law school to not only assess individual student performance, but also to assess themselves as legal educators to ensure they are meeting their institutions' goals of student learning. This type of assessment is a relatively new concept in legal education because the ABA's current accreditation standards, unlike those of other professional educational programs, are based on inputs, rather than evidence demonstrating actual student learning. The ABA's proposed accreditation standards would require a law school to identify institutional learning outcomes, offer a curriculum that affords each student the opportunity to achieve those learning outcomes, assess its students' achievement in those areas, and assess itself as an institution by measuring the effectiveness of its programs in preparing students to become entry-level legal practitioners. These proposed accreditation standards have stirred a debate among legal educators regarding the justification for assessment and a scramble to determine how to comply.

Who Cares?

What form of question is recommended by some legal commentators as an effective way to persuade a jury, while derided by others as totally ineffective? What form of question do many trial advocates utilize, but few use with knowledge of when, how, or why it is persuasive? What form of question has been established by experimental scientists to be highly persuasive in some contexts but to decrease persuasiveness in others?

It is, of course, the rhetorical question.

Advice and Consent for Federal Judges: A New Alternative Based on Contract Law

It will come as no surprise that there is a serious problem regarding the number of vacancies in the United States federal courts, both in the courts of appeals and the district courts. Approximately 11% of the available judicial seats are vacant. In 2010, a position in the Court of Appeals for the Fourth Circuit was filled after remaining vacant since 1994. This causes an obvious detriment to the efficiency of the courts.

Beyond Case Reporters: Using Newspapers to Supplement the Legal-Historical Record (A Case Study of Blasphemous Libel)

For decades, students in American and Canadian law schools were taught a particularly narrow vision of what constituted legal research. To the students, who eventually became lawyers, scholars, and judges, legal research meant consulting cases and statutes contained in print volumes. Some particularly ambitious researchers went further afield to look at law review articles and treatises, sources which themselves often constituted nothing more than extensive doctrinal analyses of the same cases and statutes. As Robert Berring notes, "Legal researchers learned that certain sets of books were authoritative and reliable. If used correctly, such sources provided 'the' information."

The Ghost in the Global War on Terror: Critical Perspectives and Dangerous Implications for National Security and the Law

In this Article, I set out to discuss the dangerous implications of the Global War on Terror (GWOT) and, more generally, the attempts of the United States government to address notions of terrorism and its effect on the safety of the United States and world citizens. I am primarily concerned with engaging a poststructuralist critique of the GWOT to strengthen legal discussions of terrorism and national security policy. While many in the legal academy have focused on particular issues relating to terrorism, I will engage in a macro-level analysis of the way the legal academy conceptualizes terrorism — not how it discusses acts of terrorism. While I am concerned with the legal basis for the GWOT, I am more concerned with how our idea of terrorism affects our ability to address terrorism in our legal and political lives and how these decisions affect our national and personal security.


Adjusting the Individual Duty of Disclosure to Meet the Reality of Corporate Participation in Patent Prosecution

On July 31, 2000, Exergen Corporation filed an amendment to a patent application for a thermometer with the United States Patent and Trademark Office (PTO) in an attempt to convince the patent examiner to grant a patent. In the amendment, Exergen made the argument that "[w]hat had not been generally appreciated by those skilled in the art of temperature measurement was that the superficial temporal artery . . . provides an exceptionally reliable temperature reading." On that same day, anyone reading product descriptions on Exergen's website could have found that "[t]he temporal artery area has a long history of temperature measurement, dating back to the early centuries before Christ . . . ."

Land Banking as a Tool for the Economic Redevelopment of Older Industrial Cities

Urban communities of the Northeast and Midwest, so-called older industrial cities, continue to struggle with the economic redevelopment of their downtown areas, facing the challenges of a declining urban industrial base, suburban flight of businesses and residents, and blighted and abandoned properties. The most recent shockwave for many cities has been the foreclosure crisis, in which previously stable neighborhoods have seen sharp increases in foreclosures and vacancy rates as a result of sub-prime mortgages. Policy makers have struggled to formulate innovative responses to ameliorate the current economic meltdown. Congress responded with the passage of omnibus economic stimulus legislation, including the American Reinvestment and Recovery Act of 2009 (ARRA) and the Housing and Economic Recovery Act of 2008 (HERA), which include provisions to boost economic productivity, create jobs, and forestall the continuing decline in the housing market. Some states, counties, and cities faced with the challenges of being older industrial communities have pursued an additional and unique path for economic redevelopment with marked success: land banking.