Showing papers in "Fordham Urban Law Journal in 2005"

The “threat of terrorism” and the right to the cit

Abstract: INTRODUCTION AND SUMMARY: CONCEPTUAL ISSUES Security in the face of a declared threat of terrorism dominates much of the discussion about city life in the United States today, with frequent reference to the events of September 11, 2001 ("September 11" or "9/11"). Do cities give appropriate weight to the threat of terrorism after 9/117 Is the terrorist threat in fact a product of 9/11? How have cities and urban planning changed post-9/11, and how is terrorism related to those changes? The basic argument of this paper is that whatever has changed about the actual threat of terrorism since 9/11, a great deal has changed in that which is done in its name. I argue that there have been both legitimate and false responses to the perceived threat. The impact of the legitimate response is almost trivial, representing more of a continuation of trends already in place before 9/11 rather than something new. In contrast, the impact of the false response has been substantial. The false response has used the threat of terrorism as a pretext to pursue an agenda that has nothing to do with physical safety or protection against terrorism, but is directed instead at winning elections, restricting debate and dissent, and maintaining tight political control over the range of democratic processes. (1) In New York City, many such agendas have related to changes in real estate values in lower Manhattan. In general, however, the implicit agenda has been to increase the political control of dissent, to limit debate about the general direction of certain policies, and to control the use of public space for democratic but dissident purposes. That implicit agenda has been advanced since 9/11 under the pretext of the threat of terrorism, not in legitimate response to it. I do not, however, claim that these limitations on the use of public space, and the neo-conservative program with which these limitations are connected are new or solely related to 9/11; again, the pattern precedes 9/11, although it has since intensified. (2) Let me begin by specifying what I mean by legitimate and false responses to terrorism: TYPE OF RESPONSE DEFINITION EXAMPLES Legitimate Targeted Directed at grounded Efficient: metal responses risks, regardless of detectors at costs airports Inefficient: shoe removal at airports Balanced Attempting to Surveillance responses balance risks against cameras at economic and civil entries to rights costs public buildings; inefficient targeted responses False Spillover Expanding the meaning No Loitering responses of "security" signs at train stations Induced Building a climate Ethnic profiling, responses justifying unrelated immigrant responses restrictions, election rhetoric, "security" measures unrelated to safety Pretext Directly justifying Constrained responses unrelated responses assemblies, Iraq Targeted responses are effective responses intended to eliminate grounded threats of terrorism. …

The Billable Hours Derby: Empirical Data on the Problems and Pressure Points

Abstract: If you ask law firm attorneys to identify their biggest complaint related to private law practice, most will probably respond with one word: billing. At the same time, clients are likely to identify billing as their most serious concern associated with obtaining legal services. The irony in clients and attorneys sharing frustration over hourly billing relates to the fact that the initial interest in hourly billing stemmed from attorneys' desire to be efficient and to maximize their earnings and clients' preference for only paying for the actual time expended on their behalP Since the 1960s, hourly

"Soft Immutability" and "Imputed Gay Identity": Recent Developments in Transgender and Sexual-Orientation-Based Asylum Law

Abstract: INTRODUCTION Owing to a number of recent developments, U.S. asylum law is one of the most hospitable legal arenas for lesbian, gay, bisexual, and transgender ("LGBT") litigants. (1) Gays and lesbians have been protected as a "particular social group" since 1990, (2) and it is now beyond cavil that the law of asylum protects immigrants who face persecution on account of sexual orientation no less than those whose persecution is based on race, religion, nationality, or political opinion. (3) Two recent decisions by the Ninth Circuit (4) extend these gains by protecting within that jurisdiction many, if not all, male-to-female ("MTF") transgender asylum seekers. (5) These cases demonstrate a developing jurisprudence of transgender asylum protection based on an asylum seeker's expression of gendered traits, including a person's hairstyle, clothing, demeanor, use of makeup, and choice of names. In these cases, the court honors such expression as a true and honest depiction of identity and self-determination, extending protection to litigants because the traits they exhibit are integral to their identities. These cases evidence a "soft immutability" standard that, while requiring the asylum seeker to prove a "fundamental" transgender identity, allows a more relaxed set of criteria that adjust to the context of the particular asylum seeker's case and circumstances. The conception of identity advanced in these cases eschews a standard biological approach of protecting only innate characteristics like chromosomal makeup, internal sex organs, or "birth sex" (the gender assigned to an individual at birth), extending protection based on characteristics adopted over time--including behaviors, character traits, and forms of dress. In addition to taking advantage of this developing case law, transgender asylum seekers can marshal at least two additional arguments on their behalf. First, they can assert that they qualify under prevailing definitions of "particular social group"; second, they can assert a claim based on an "imputed gay identity." (6) Under the "imputed gay identity" theory, individuals who do not identify as gay or lesbian but who are labeled and persecuted as such can still litigate an asylum claim based on sexual orientation. Transgender applicants, for example, who do not identify as gay, but who are nevertheless perceived by those around them as gay, can take advantage of this theory. The imputed gay identity is not limited to LGBT asylum seekers; heterosexuals can bring (and have brought) such claims as well. (7) This Article surveys the law of LGBT asylum as it has developed over the past fifteen years, first, with the landmark case of Matter of Toboso-Alfonso, which recognized homosexuality as a "particular social group"; second, with the Ninth Circuit's recent cases adopting a soft immutability standard of identity and expanding asylum protection to transgender individuals; and third, with a discussion of the "particular social group" analysis as it applies to transgender asylum seekers and the emergence of the "imputed gay identity" category as an alternative basis for relief for those litigants who do not identify as gay or lesbian but who nonetheless face anti-gay or anti-lesbian persecution. Given the staggering number of new asylum claims making their way through the various courts of appeals, (8) one can expect more developments in the near future. These changes, while crucial to asylum litigators and commentators on immigration law, can also contribute to the development of LGBT law and scholarship in other statutory and constitutional contexts like employment discrimination and constitutional equal protection challenges. (9) I. THE STRUCTURE OF ASYLUM LAW "Asylum" is a legal remedy available to legal and illegal immigrants who seek protection from persecution they faced or would face in their home country on account of some protected ground. …

Intimidation and the culture of avoidance: gender issues and mentoring in law firm practice

Abstract: This Essay looks at gender issues in law firm practice. The author tries to dispel the notion that just women are gaining equal access to the legal profession at the ground level does not mean that they are achieving similar entree to the upper echelons of law firm practice. The author considers the factors that challenge women’s progress at law firms. The article also looks at the mentoring issue with law firm work and how that affects this the same issue.

Professional challenges in large firm practice

Abstract: This foreword introduces the idea of Professional Challenges in Large Law Firm practice. The author discusses the culture of large law firm life. This Foreword focused on two goals. First, the author offered an overview of the Stein Center Conference that inspired this issue under the same title as the foreword. Second, the author introduces the writings in this issue that came out of the conference. Overall, it offers an introduction of the nature of large law firm practice.

Broadening the Holistic Mindset: Incorporating Collateral Consequences and Reentry into Criminal Defense Lawyering

Abstract: INTRODUCTION Over the past two decades, public defender offices across the country have broadened the range of defense services provided to indigent clients. These expanded services, some of which involve representing clients on related non-criminal matters such as housing and public benefits, are included in what is now commonly referred to as "holistic representation." (1) This form of representation strives to encompass the various underlying issues that often lead to clients' experiences with the criminal justice system, with the aim of addressing those circumstances and preventing future criminal involvement. (2) The past several years have witnessed many ways in which defender organizations, utilizing a holistic mindset, have reconceptualized their roles. For instance, the community defender movement, which has led to certain defender offices establishing concrete ties with their relevant communities, (3) has radicalized both the ways in which defender organizations perceive those communities (4) as well as the level of services those offices employ on behalf of their clients. (5) While defender offices have viewed these expanded services as new and improved ways to represent clients, in fact holistic--or "whole client"--representation signals a paradigmatic shift in defense philosophy and ideology. It marks a significant departure from the traditional defense role, which focused narrowly on the criminal case and left unaddressed the related convergent issues. (6) Accordingly, the holistic approach has transformed criminal defense practice by broadening the conception of what defense lawyers actually do. (7) Viewing holistic representation, however, as a paradigmatic shift that has transformed criminal defense lawyering, rather than as an organically progressive extension of traditional defense services, reveals that much more is needed to truly fulfill its various mandates. The holistic mindset is an ever-searching one; it critiques the traditional and contemporary practice methods, searches for improved delivery of defense services and constantly presses for role reformation. This essay will explore this conception of holistic representation by looking at two facets of our criminal justice system--collateral consequences of criminal convictions and ex-offender reentry (8)--that have very recently begun to receive critical attention but which are not part of the traditional defense role. As set forth below, collateral consequences are considered to be the indirect, rather than direct, consequences that flow from a criminal conviction. They include numerous disabilities that are either tied to particular criminal convictions or attach to convictions in general. Some of these consequences relate to housing, public benefits, various forms of employment, and deportation. Reentry pertains to the process by which an ex-offender who has completed the non-community based portion of her sentence, such as incarceration in a jail, prison or juvenile facility, returns to her community. Using a holistic mindset, this essay offers broader perspectives of collateral consequences and reentry in two ways. First, it addresses the need for criminal defense attorneys to incorporate both collateral consequences and reentry components into their practices. These components have been largely ignored in the defense context, mainly because the traditional narrow defense role focuses on the direct legal aspects of the criminal case and does not consider the ways in which other issues, long perceived as tangential, directly impact clients' lives, the communities from which they come and to which they return, and their abilities to move onto more productive life experiences. While the holistic lawyering movement has greatly widened the defense role by considering the clients' social and broader legal needs, the holistic mindset has yet to generally embrace these collateral consequences and reentry components. …

Felon Disenfranchisement: Law, History, Policy, and Politics

Abstract: George W. Bush became the forty-third President of the United States when he won the state of Florida by 537 votes in the 2000 election. Because the election was so close, hotly-contested, and divisive, aspects of our electoral system long relegated to dusty books suddenly became topics of water cooler conversation and cocktail party chatter. Some Democrats speculate that if the nearly 600,000 felons in Florida had been allowed to vote, Al Gore would have been elected President. Felon disenfranchisement has thus become a cause celebre among liberals. There are approximately four million felons who cannot vote nationwide. They are disproportionately black and Hispanic — constituencies that have traditionally been Democratic strongholds. Embittered by the 2000 elections, Democrats have seized on the goal of extending suffrage to felons in hopes of increasing their traditional voter base, thus helping them win close elections. They face an uphill battle, however, as history, law, and policy weigh against allowing felons to vote. Part I of this note places felon disenfranchisement in a historical context, highlights significant cases and jurisprudence under the Fourteenth Amendment and the Voting Rights Act, and reviews the scope of its impact today. Part II considers the divergent interpretations of law that have led to uncertainty in the circuits as to whether the Voting Rights Act reaches felon disenfranchisement and when felon disenfranchisement statutes originally enacted with discriminatory intent have been cleansed of that taint. The confusion in the circuits stems from conflicting views of what the history of felon disenfranchisement means and whether there are legitimate underlying policy rationales. Part III argues that the Voting Rights Act does not reach felon disenfranchisement and thus the Fourteenth Amendment is controlling, therefore these laws are only susceptible to attack on constitutional grounds if they were enacted with discriminatory intent. Thus, we are left with policy arguments, which are properly decided in state legislatures.

The professionalization of ethics

Abstract: This Article looks at the importance of teaching law graduates to be ethical lawyers. The author hypothesizes that the current versions of the ethical rules and the structure of law firms have the potential to encourage the professionalization of ethics rather than connecting all practitioners to the values of professional responsibility. This Article sets out the factors that contribute to the increased professionalization of professional responsibility in large law firms. These factors are the need for lawyers to always be accessible, the pressure to specialize in a specific field, and the complexity of the ethics rules as written. The author argues that as a whole the ethics rules need to be more accessible to the ordinary, non-expert practitioner, would be a valuable contribution. The three specific proposals are the creation of specialty-specific ethics education, acknowledge the contribution of the ethics specialists, and to draft the ethics rules differently. The goal of this new approach is to “de-professionalize” ethics and remind each lawyer of her obligation to be an ethical practitioner

The Use of Pilot Financing to Develop Manhattan's Far West Side

Abstract: INTRODUCTION On January 19, 2005, the Bloomberg Administration revealed the details of a plan to transform Manhattan's Far West Side. (1) The plan authorizes the extension of the Number Seven subway line and the construction of new office space, housing, streets, and parks. (2) The Bloomberg Administration intends to finance these public improvements outside of New York City's capital budget. A newly created local development corporation called the Hudson Yards Infrastructure Corporation will issue bonds backed by revenues that the new development is expected to generate. (3) The largest anticipated revenue source for bond repayment is commercial payments in lieu of taxes ("PILOTs") made by private developers who build within the development zone. (4) PILOT-backed bonds are a unique and little used mode of financing. New York City has never issued PILOT-backed bonds before, (5) and they are a rare structure in the municipal debt markets. (6) Yet, PILOT financing has a close analog: tax increment financing ("TIF"). TIF is a popular local redevelopment financing mechanism. (7) Since its inception in California in 1952, all fifty states have implemented legislation authorizing the use of TIF. (8) This Comment discusses TIF and its legal and financial drawbacks, and then applies the lessons learned from TIF to PILOT financing. Part I describes TIF's general structure and underlying rationale and then examines New York State's TIF statute. Part II considers the legal challenges that have been raised against TIF and predicts their likely outcome in a New York court. Part III explores the risks and policy considerations surrounding the use of TIF. It also considers whether TIF really is a self-financing redevelopment mechanism, as its proponents argue. Finally, Part IV examines the limited use of TIF in New York and proposes an explanation for its scarcity. It also outlines the similarities between TIF and PILOT financing, and explains how the legal issues, risks, and policy considerations surrounding the use of TIF apply with equal force to PILOTs. It concludes by recommending some changes to the Far West Side's PILOT financing plan, based on the lessons learned from TIF. I. TAX INCREMENT FINANCING: THE BASICS This section begins by explaining the basic structure of TIF--in particular, how tax revenues get allocated during the life of a TIF project. It then describes TIF's basic assumptions and underlying rationale. Finally, it examines New York State's TIF statute. A. Tax Increment Financing's Structure und Rationale TIF allows local governments to finance redevelopment projects with the increased tax revenue generated by the redeveloped property. (9) The initial property tax base of the redevelopment zone (the "TIF district") is "frozen" on the tax roll. (10) As the redevelopment progresses, property values and property tax collections should increase. (11) The taxing authorities continue to receive tax revenue based on the frozen base value, (12) while the excess tax collections (the "tax increment") flow into a special fund that is used to make interest and principal payments on the TIF bonds. (13) The original taxing authorities do not get any of the tax increment until the TIF bonds are repaid. (14) Two central assumptions underlie the use of TIF. The first assumption is that property values would remain constant without the stimulation provided by TIF. (15) The second assumption is that the redevelopment causes the increase in property values and the corresponding increase in tax revenue. (16) Because TIF projects are financed from the incremental tax revenue generated by the redevelopment, TIF proponents argue that TIF is a self-financing mechanism. (17) In theory, the municipality does not have to pledge funds from its capital budget or increase taxes to fund the redevelopment. (18) This characteristic of TIF helps explain its increasing popularity. …

Uncharted Territory: Choosing An Effective Approach in Transgender-Based Asylum Claims

Abstract: PRELUDE A client steps into your office to discuss an immigration matter. The client, Geovanni, appears to be an effeminate gay man, but Geovanni tells you that she is transgender and considers herself to be female. (1) As a result of her transgender identity, she has endured tremendous mistreatment in her country, beginning with physical and verbal abuse in school that escalated in frequency and violence as she got older. Geovanni was harassed and forced to pay bribes to the local police on many occasions. Eventually, a police officer took Geovanni into custody, brought her to a remote location, and raped her. Based on the years of abuse she has suffered on account of her transgender identity, Geovanni wants to apply for asylum. (2) INTRODUCTION This Article uses the term "transgender" identity to refer to individuals who feel a discord between their gender identity and their anatomical sex--that is, those who were born anatomically male but believe that their gender is female or those who were born anatomically female but believe that their gender is male. Some transgender individuals take affirmative steps to physically change their anatomical sex, undergoing such procedures as hormone therapy, electrolysis, and sex reassignment surgery. (3) This Article uses the term "transsexual" to define such individuals. Many commentators have argued for a broader definition of "transgender," which would include virtually any individual who does not conform in appearance or behavior to societal expectations for their gender. (4) This Article will focus more narrowly, however, on individuals like Geovanni who believe that they were born with the wrong anatomical sex and who suffer persecution as a result of their transgender identity. (5) This Article will discuss existing precedent in the context of transgender asylum seekers and suggest possible theories for framing successful transgender asylum claims. (6) Generally, there are very few published decisions for successful asylum cases. (7) Of those few cases, the number addressing lesbian, gay, bisexual, and transgender ("LGBT") issues is minuscule. In fact, there have been only eight published cases involving LGBT asylum claims: seven circuit court cases and one Board of Immigration Appeals (B.I.A.) decision. (8) Moreover, only two of these five cases address a claim for asylum by a transgender applicant, and then only indirectly. (9) This Article will discuss existing precedent in the context of transgender asylum seekers, suggesting ways that the case law could be used to frame a successful transgender asylum claim. Part I of this Article will explain the legal standard for asylum claims. (10) This section will specifically focus on the definition of the "particular social group" category of protection within asylum law because this is the category under which Geovanni and other transgender applicants would put forward their asylum claims. (11) Part I also emphasizes the requirement under asylum law that a nexus exist between the applicant's protected characteristic and the persecutor's motivation to harm. (12) Establishing such a nexus may be a particularly difficult aspect of transgender asylum cases. (13) Part II will focus directly on Geovanni's claim. (14) It will first argue that transgender identity meets the legal definition of "particular social group." (15) It will then explore the requirement of proving a nexus between the harm Geovanni suffered and her transgender identity. (16) Finally, Part II will argue that regardless of whether or not a transgender applicant actually identifies as homosexual, she should also put forward a claim based on her perceived identity as a homosexual if she believes that her persecutors thought her to be gay. (17) I. BACKGROUND ON ASYLUM LAW A foreign national who fears returning to her country because she has suffered past persecution or has a well-founded fear of future persecution (18) on account of her race, religion, nationality, membership in a particular social group, or political opinion may apply for asylum in the United States. …

The dangers of fighting terrorism with technocommunitarianism: constitutional protections of free expression, exploration, and unmonitored activity in urban spaces

Abstract: The narrower the circle to which we commit ourselves, the less freedom of individuality we possess.... In a narrow circle, one can preserve one's individuality, as a rule, in only two ways. Either one leads the circle (it is for this reason that strong personalities like to be "number one in the village"), or one exists in it. only externally, being independent of it in all essential matters. --Georg Simmel, Group Expansion and the Development of Individuality (1) INTRODUCTION The cult television series "The Prisoner" tells the story of a man who, after losing and then regaining consciousness, opens the blinds of his London flat to find that the world outside has undergone a Kafkaesque transformation: the skyscrapers and city streets visible from his window have been replaced with a small and serene village. (2) Accompanying this stark change in his external environment is a sharp decrease in his freedom. Whereas his life in London was his own, he discovers upon venturing out into the village (3) that his decisions and actions are now community property. He is watched everywhere he goes both by neighbors and hidden cameras. (4) He is expected to be an enthusiastic participant in all communal events, and is ostracized as "unmutual" when he instead seeks out privacy and seclusion. (5) The town's authorities are intent on ensuring that residents cannot opt out of village life: quaint taxis transport people within the village, but never outside of it; phone service is strictly local; maps at the village store show nothing beyond the community's boundaries. (6) Each showing of independence or defiance by the protagonist brings strong pressure from the authorities to fully account for (and recant) his actions. (7) In short, his familiar urban life is replaced with a communitarian dystopia, hostile to privacy and deeply suspicious of every act of individuality. (8) The story of environmental shock depicted in this television series has also made an appearance in sociological observation. Decades ago, one of the founders of sociology, Georg Simmel, imagined what it would be like for an inhabitant of a modern metropolis to be suddenly lifted out of his urban existence and dropped into the smaller and more confining world of an ancient or medieval village. The modern city dweller, said Simmel, "could not even breathe under such conditions." (9) He could not tolerate the "limits upon [his] movements" or the restrictions on "his relationships with the outside world." (10) Nor could he suffer the loss of the "inner independence and differentiation" that would accompany such a shift from the city to a close knit, loyalty-demanding community. (11) While such an environment may have seemed tolerable to individuals born and bred within its confines, it would be insufferable, said Simmel, to anyone who long enjoyed the individual freedom made possible by the anonymity and incomparable diversity of modern city life. This modern urban environment, he stressed, provides individuals with a "type and degree of personal freedom to which there is no analogy in other circumstances." (12) In the limited space of a small village, one can express individuality only when acting as a leader, as the "number one" figure "in the village," or when "exist[ing] in it only externally [as an outcast]." (13) By contrast, in city life, the multitude of options and the indifference of neighbors provide people with plenty of room to follow their own unique paths while still being part and parcel of the larger urban community. As E.B White has written in his celebration of New York, city life can thus blend "the gift of privacy with the excitement of participation." (14) But if the unparalleled individual freedom one gains in urban anonymity is deeply valued, is it also constitutionally protected? If municipal or state governments decide, for example, that the extensive freedom and anonymity provided by modern city life not only provides valuable room for individuality, but also worrisome hiding space for terrorists or criminals, can they take measures to "roll back" some of this unmonitored space? …

The evils of “elasticity”: reflections on the rhetoric of professionalism and the part-time paradox in large firm practice

Abstract: This Essay is an examination of part-time arrangements at large law firms. The author sets out to start a conversation about professional life and identity in a large firm context.. Part I looks at the commercialization of large law firm practice and how that has created a “crisis” in legal practice. Part II compares the “tyranny of the billable hours” with the dedication to “client service.” The author considers part time work with both of these elements. Part III confronts the cultural obstacles to part-time work. Here, the author acknowledges that even the analysis is accepted there are still cultural tensions that would restrict open, creative, and productive conversations about the work-life balance. Ultimately, the author proposes that part-time arrangements can serve not only as an alternative voice in large firm culture, but also can contribute to a “renaissance” of some of the legal profession’s most dearly held values.

Footing the Bill for a Sound Basic Education in New York City: The Implementation of Campaign for Fiscal Equity V. State

Abstract: "In whatever way a man sets out in his education, such accordingly will be its consequences." (1) INTRODUCTION A democratic society has a vested interest in a well educated populous. Educated citizens are capable of forming a productive workforce and actively participating in the electoral process. (2) Individuals without a high school diploma are significantly less likely to find meaningful employment and lead economically stable lives in today's economy. (3) Most states, in order to promote an educated citizenry, provide for some form of adequate education under their respective state constitutions. The New York State Constitution dictates that "It]he Legislature shall provide for the maintenance and support of a system of free common schools wherein all the children of this state may be educated." (4) On March 16, 2005, in what appeared to be a victory for the children of New York City, the Court of Appeals of New York, applying the Education Article, upheld a lower court decision and recommendation, by a panel of judicially appointed Special Referees, holding that the New York State school funding system failed to provide New York City children with a "sound basic education." (5) The Court of Appeals mandated that the State Legislature phase in $5.6 billion annually, as well as an additional $9.2 billion in a capital fund to reform the City public schools. (6) The opinion, however, failed to address one key question: where will the money come from? Members of the State government, including Governor George Pataki, indicate that New York City should be responsible for forty percent of the bill. (7) Local officials, such as Mayor Michael Bloomberg, insist that providing a sound basic education is the responsibility of state government, that the State should pay for the entire amount, and that any effort by the City to contribute will result in the loss of other programs that support children, as well as public safety. (8) The only guidance provided by an otherwise activist court was that the City may be responsible for a reasonable portion of education-related expenses and that the State may not overburden the City to the point where it cannot provide the funds. (9) Part I of this Comment will first demonstrate various approaches in narrowing the achievement gap between wealthy and poor students under federal and state constitutional schemes over the past fifty years. Part I will further delineate the relative successes and failures in implementing education finance reform in various states. Lastly, Part I will explore the unique education system in New York City and education finance reform in New York State over the last few decades, focusing on the multiple judicial proceedings in Campaign for Fiscal Equity, Inc. v. State. Part II will detail conflicting opinions on how and by whom a sound basic education for the children of New York City shall be funded under the mandate of Campaign for Fiscal Equity, Inc. v. State. Part II will further explore the argument that the judiciary lacked the authority to delegate $5.6 billion to provide a sound basic education. Part III will show how extreme solutions are unlikely to survive the political process and how the Court of Appeals' most recent decision in Campaign for Fiscal Equity, Inc. v. State leaves the door open for potentially endless litigation without timely benefit for the children in the New York City Public School System. Part III will also demonstrate how public engagement on where sound basic education funds should come from and additional educational reforms, in addition to increased funding, are needed to ensure that the New York City schools provide constitutionally mandated sound basic education to its students. PART I: PROVIDING AN ADEQUATE EDUCATION FOR ALL CHILDREN: THE COMPLEX HISTORY OF EDUCATION FINANCE REFORM LITIGATION IN NEW YORK AND ACROSS THE UNITED STATES In order to understand the current state of school finance, it is necessary to first look at the history of education finance reform litigation over the last fifty years. …

Sexual Minorities, Criminal Justice, and the Death Penalty

Abstract: Of the myriad issues explored in panels and discussions over the past few days of this conference--from same-sex marriage to immigration and asylum--this particular panel explores a topic that should be of central importance to the lesbian, gay, bisexual, and transgender ("LGBT") community: the systemic bias against and hostility towards sexual minorities within the legal system This bias, exhibited by key players in the legal system such as attorneys, judges, court personnel, and jurors, not only makes the courthouse a hostile environment for sexual minorities but it also undercuts major legal victories, such as Lawrence v Texas, (1) which are only as powerful as the attorneys, judges, and jurors who actually apply law to fact Moreover, the bias towards sexual minorities within the legal system, in its most serious form, can ultimately affect the outcome of criminal prosecutions and may even encourage the imposition of death sentences for sexual minorities found guilty of capital crimes I will begin my remarks today with a quote from Justice Anthony Kennedy, who I think beautifully illustrates the gravity and seriousness of discrimination occurring within the courthouse itself He writes, "The injury caused by the discrimination is made more severe because the government permits it to occur within the courthouse itself Few places are a more real expression of the constitutional authority of the government than a courtroom, where the law itself unfolds" (2) Of course, Justice Kennedy was referring to racial discrimination in selecting juries for civil trials, but his words are no less powerful and no less applicable to the bias confronting sexual minorities in the legal system The existence and effect of racial and sex bias in our legal institutions has been the subject of extensive study and debate over the years Bias against sexual minorities, however, has gone almost completely unstudied and rarely discussed The limited research that has been conducted on this form of bias, however, has yielded some startling findings There have been at least two comprehensive state-wide studies conducted on the issue of bias against sexual minorities within the legal system, which are worthy of consideration One study conducted by the Judicial Council of California (3) found that thirty-eight percent of gay and lesbian respondents reported feeling threatened by the courtroom setting because of their sexual orientation (4) The California study also found that one out of five court employees heard derogatory terms, ridicule, snickering, or jokes about gays or lesbians in open court, with the comments being made most frequently by judges, lawyers, or court employees (5) A second state-wide study, conducted by the State Bar of Arizona, (6) found that seventy-seven percent of judges and attorneys reported that they heard disparaging comments about gays and lesbians (7) Forty-seven percent of those reporting hearing these disparaging comments also reported hearing them in open spaces of the courthouse (8) While this research is admittedly limited in comparison to the volumes of studies and commentary over the years on other forms of bias in the legal system, it nevertheless paints a grim picture of the level of hostility toward sexual monitories in the legal system I believe that the results of these two studies are only the tip of the iceberg and that further study will only support these already upsetting findings Indeed, the legal community, including bar associations, judicial councils and conferences, and perhaps most importantly law schools, should begin to recognize that bias against sexual minorities exists and they should devote sufficient resources to allow for comprehensive study of this problem and for the education of the bar and the public One effect of critical importance to the LGBT community of the bias against sexual minorities exhibited by key players in the legal system who apply the law to the particular facts of particular cases--attorneys, judges, and jurors--is that it actually undermines the hard-fought legal victories gained in recent landmark legal rulings, such as Lawrence …

Employer-Based Training Programs for TANF Recipients: A Public Policy Examination

Abstract: INTRODUCTION Although the United States is one of the most affluent nations in the world, a substantial number of people in this country continue to live in poverty. In 2003, 35.9 million people lived below the poverty threshold, 16.7% of whom were children. (1) Policy makers have continually struggled with how to address the persistent issues of poverty, joblessness, and homelessness. The most recent round of discourse on welfare reform culminated with the passage of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ("PRWORA" or "Act"). (2) One of the central features of PRWORA was time-limited welfare and work requirements; under PRWORA, work is seen as the way out of poverty. Perhaps because of the Act's increased focus on employment, numerous training programs have been designed to help welfare recipients make the transition from welfare to work. The public sector has been offering such programs for years, and these programs have been the subject of extensive evaluation. (3) Most studies report modest success at best, with increased earnings resulting from a greater number of hours worked, rather than from higher wages. (4) Overall, research has revealed little evidence of long-term employment, advancement, or retention as a result of participation in these training programs. (5) The private sector naturally offers training designed to increase the skills of its employees. More recently, some private sector companies, such as the Marriott Corporation and United Parcel Service, have begun to offer training geared to the welfare population and to work in partnership with public sector training programs or training providers under the Workforce Investment Act ("WIA"). (6) Limited research has focused on the employers' role in welfare reform, so called "demand-side" research. (7) The demand side is particularly important given the emphasis on employment as a panacea for welfare and poverty. In other words, if we expect welfare recipients to work their way out of poverty, we cannot focus solely on workers. Instead, we must also recognize the employers' role in the labor market. Researchers and policy makers are beginning to recognize the importance of the demand side in welfare implementation. Some research has focused on employer-based training models, (8) some research has looked at employer attitudes toward training and development, (9) and some studies have considered employer attitudes toward hiring, retaining, and promoting welfare recipients. (10) One type of training that shows promise is employer-based training ("EBT"). EBT is training that is typically employer-initiated and customized to meet the needs of the employer. It involves an extensive assessment of the employee's skills and job performance. (11) Although research into EBT is just beginning, results suggest that EBT is beneficial. (12) There are indications that EBT programs might offer better opportunities for at least a segment of the welfare population. (13) In addition, people are just beginning to recognize the importance of post-employment training and development if former welfare recipients are to remain and be promoted in the workplace. (14) The purpose of this Article is to investigate the strengths and weaknesses of EBT programs and to consider whether it is desirable for such programs to be supported by TANF reauthorization. To accomplish this goal, it is important to understand the landscape of workforce training and development for welfare recipients. The work requirements imposed under PRWORA were not a new idea; work requirements had been part of the public policy agenda for years. (15) Furthermore, training and education programs designed to aid welfare recipients in the transition from welfare to work were common under previous law. (16) Part I describes public sector training and education programs common before PRWORA as well as their philosophical underpinnings. …

The Return of Spending Limits: Campaign Finance after Landell V. Sorrell

Abstract: INTRODUCTION On August 18, 2004, the United States Court of Appeals for the Second Circuit held that the First Amendment, as interpreted by the Supreme Court in Buckley v. Valeo, (1) does not preclude mandatory limitations on campaign expenditures. (2) In Landell v. Sorrell, (3) the court concluded that limitations imposed by the state of Vermont on candidate spending in state election campaigns are "supported by [the state's] compelling interests in safeguarding Vermont's democratic process from 1) the corruptive influence of excessive and unbridled fundraising and 2) the effect that perpetual fundraising has on the time of candidates and elected officials." (4) To be sure, the court declined to uphold the Vermont limits and, instead, remanded the case to the district court for a determination of whether the challenged spending limits are the "least restrictive means" of "furthering the State's compelling anti-corruption and time-protection interests." (5) Nevertheless, Landell is potentially one of the most important decisions in the evolution of modern campaign finance law as it marks the first time since Buckley that a court has held that a candidate expenditure limitation can be constitutional. Although path-breaking, Landell is not entirely unprecedented. In recent years, several communities have sought to challenge Buckley by adopting spending limits for local or state judicial candidates. (7) These restrictions were invalidated on the authority of Buckley, but a number of the judges who heard the challenges to these laws displayed some restiveness with Buckley's rejection of spending limitations. (8) So too, although the Supreme Court has for nearly three decades continued to adhere to Buckley, aspects of the Court's recent campaign finance decisions suggest the Court might be open to rethinking Buckley's premises. (9) Landell could very well provide the Court with the opportunity to reconsider Buckley. (10) The Landell opinion, while very significant, is also limited in several respects. The Second Circuit's suggestion that voluntary public funding with spending limits may be a less restrictive means of attaining the goals of spending limits is troubling, and threatens to pit these two complementary tenets of campaign finance reform against each other. Moreover, although Landell challenges Buckley's conclusion concerning spending limits, it still works largely within Buckley's basic conceptual framework. As a result, the Second Circuit's analysis does not reflect the full range of possible justifications for spending limitations. Part I of this Article will analyze the Landell decision and situate it in the evolving judicial debate over campaign finance regulation. Part II will discuss the question, raised by the Second Circuit for the Landell district court on remand, whether spending limits are the least restrictive means of attaining the compelling interests relied on by the court. Part III will then examine those interests as well as other justifications for spending limits. As I will suggest, the constitutionality of spending limits in principle (11) would rest on a stronger foundation if other important interests directly relevant to the financing of democratic elections, particularly electoral competitiveness and voter equality, were taken into account. I. LANDELL AND THE EVOLVING JUDICIAL CONSIDERATION OF CANDIDATE EXPENDITURE LIMITATIONS A. Buckley v. Valeo Modern campaign finance doctrine begins with the Supreme Court's holding in Buckley v. Valeo that campaign finance regulation directly implicates fundamental First Amendment freedoms of speech and association. (12) In so doing, Buckley sharply distinguished between limits on contributions and limits on expenditures. (13) The Court held that expenditures involve direct communications with the voters, and thus, expenditure ceilings "impose direct and substantial restraints on the quantity of political speech. …

Marilyn & ed bellet: a dedication

Abstract: Fordham Law School is defined by its profound and extraordinary commitment to legal ethics and to the service of others. Tragically, this year we have lost two remarkable people who played a central role in establishing that commitment. It is difficult to imagine that any law school could ever have supporters more involved, encouraging, or dynamic than Ed and Marilyn Bellet. Ed and Marilyn were great benefactors of Fordham Law's ethics and professionalism programs, they were the torchbearers of a commitment that has spanned many years and generations, and they were great friends to so many of us. This issue of the Urban Law Journal is dedicated to their memory. Marilyn Bellet was the daughter of Louis Stein, the creator and benefactor of the Law School's Louis Stein Center for Law and Ethics. When Lou graduated from Fordham in 1926, he opened his own law office in Union City, New Jersey, establishing a substantial clientele and helping many of his corporate clients go public in the 1940s. In the 1950s, Food Fair stores, one of his clients, asked him to become their president. He accepted, brilliantly leading the company to remarkable success. Eighteen years later, after guiding the company to increase its sales by 800 percent, Lou Stein retired. But as Lou ended his career at Food Fair, his role as a leading legal philanthropist was just beginning. Lou had been a supporter of the Law School for many years, but he took that dedication to a new level in the mid-1970s. Lou decided that, in the wake of Watergate, it was critical that the legal profession rededicate itself to service and to ethics. He established the Fordham-Stein Prize, which has annually honored lawyers whose careers have embodied the highest ideals of our profession. He then created the Louis Stein Center for Law and Ethics, which has become known worldwide as a powerful force in educating the public about the importance of the rule of law and educating lawyers about the awesome responsibility their profession casts on their shoulders. Indeed, the Stein Center is without peer in legal academia. It has helped establish Fordham as a leader--indeed, the leader--in the field of legal ethics, and it has helped educate a generation of lawyers dedicated to advancing the public interest. The importance of the Stein Center to Fordham Law School is evident from a simple stroll down the street. Walking past the Law School building, even a casual observer would note the prominence of the words "Stein Center for Law and Ethics" just below the name of the school on the building. The writing on this wall of the school encapsulates both how we see ourselves as a law school and the remarkable legacy of Louis Stein. When Lou died in 1996, his daughter Marilyn vowed to carry on his work with the boundless energy and dedication her father had given to everything he did. Marilyn was her father's daughter. Along with her sisters, she carried on the philanthropic works her parents had begun, at Fordham as well as at humanitarian, educational, and health-related organizations across the United States and the world. More than just an administrator of a foundation, Marilyn Bellet was a person dedicated to the fulfillment of her father's vision--particularly his vision of a law school with ethics as its core value. Ed Beller was equally committed to this vision. Part of the beauty of their dedication to the Law School was that it was shared between them, and also that it seemed a reflection of their deep dedication to one another. Marilyn and Ed, like Lou, were not the kind of donors who simply write a check. Their support brought with it a deep investment to the organization. Each year on the eve of the presentation of the Fordham-Stein Prize, Marilyn and Ed would meet with the faculty directors of the Stein Center to hear an accounting of how their gift had been put to use that year. They wanted to ensure that their money was being used for the good we had promised it would do. …

The Future of Sodomy

Abstract: The contaminant of sex, the redeeming corruption that de-idealizes the species and keeps us everlastingly mindful of the matter we are. (1) INTRODUCTION One evening in 1998, John Lawrence and Tyron Garner went to Lawrence's house and engaged in anal intercourse. (2) Upon seeing them go inside a malevolent neighbor contacted the police and falsely claimed to have heard a gunshot coming from the direction of the house. (3) When the police responded to the call, they stumbled upon Lawrence and Garner in the midst of the forbidden sexual act. (4) The police arrested the two men for violating the Texas anti-sodomy statute, (5) thereby initiating the case that brought the eventual demise of the notorious Bowers v. Hardwick, (6) the 1986 decision in which the Court rejected a challenge to Georgia's antisodomy law, holding that the Constitution did not confer a fundamental right upon homosexuals to engage in sodomy. (7) Lawrence and Garner spent the night in jail, pled no contest to the facts, were fined $200 each, and left the courthouse convicted sex offenders. (8) Texas law is more lenient than that of about a dozen other states: If the Texas convictions had stood, they would have carried no prison time, (9) though the convicted men would have been barred from certain professions, including--in a law as ironic as it is ill-conceived--interior design. (10) Further, in some states to which they might have wished to move, Lawrence and Garner would have had to register as sex offenders. (11) The convictions were affirmed in the state appellate courts. (12) Then, incredibly, the United States Supreme Court granted certiorari on a matter that had been addressed fewer than twenty years before, and proceeded to strike down the Texas anti-sodomy law as a violation of the substantive due process guarantee of the Fourteenth Amendment. (13) There can be no doubt about it: 2003 was a good year for sodomy. Bowers was a blight on American constitutional jurisprudence, one that rightly drew endless criticism from commentators spanning the political spectrum. (14) In this Article, I unreservedly cast my lot with the many observers who celebrate Lawrence v. Texas as a tremendous advance in civil rights. Rather than be lulled into complacency, however, I also read Lawrence with an eye toward the future, scouring the opinion for danger signs, and--I regret to report--I have found five. By "danger signs," I mean to suggest that I write as a legal realist in a Holmesian sense, that is, I am interested in prediction. (15) What good or bad might come of the Lawrence decision? To what use might the opinion be put by courts deliberating on future cases? This, of course, raises in turn the question of what is meant by "good or bad." In short, I take as my yardsticks the following: "Good" means pro-sex and anti-identity, while "bad" means suspicious of sex (a.k.a. "sex negativity") and pro-identity. Below, I elaborate on each of these two yardsticks and then measure the Lawrence opinion against them. I. PRO-SEX A. The Pro-Sex Yardstick Pro-sex thinking encompasses the views of a number of writers who might also fall under the broad categories of "feminist," such as Gayle Rubin and Judith Butler, or "queer," such as Duncan Kennedy and Michael Warner. I borrow from all four, and explain what I take from each in this sub-part. 1. Gayle Rubin In her classic essay Thinking Sex: Note for a Radical Theory of the Politics of Sexuality, (16) Gayle Rubin identifies five "ideological formations" relative to sexuality, two of which I rely on in this Article. (17) First, Rubin observes that western culture "treats sex with suspicion" and "requires pretexts" for "the exercise of erotic capacity, intelligence, curiosity, or creativity ... that are unnecessary for other pleasures such as the enjoyment of food, fiction or astronomy." (18) She calls this tendency "sex negativity" and opposes it. …

Reflections on "Public Service in a Time of Crisis"

Abstract: INTRODUCTION The New York and national legal community are to be commended for their organized, systematic response to 9/11. This Volume of the Fordham Urban Law Journal affords a valuable opportunity to consider the lessons derived from disaster legal assistance, both to improve on the crisis response model and to design systems for ongoing delivery of pro bono services in the absence of dramatic, precipitating events. Disasters come in many sizes and forms. As usually defined, the word "disaster" refers to "a calamitous event, especially one occurring suddenly and causing great loss of life, damage or hardship, as a flood, airplane crash, or business failure." (1) Disasters can result from forces of nature, from human actions, or a combination of both. Bombings, massacres, and similar terrorist attacks inflict large-scale loss of life, serious injuries, and property damage. (2) Natural disasters such as earthquakes and tsunamis may take an ever greater toll, killing tens if not hundreds of thousands of people and destroying billions of dollars worth of property. (3) Smaller scale disasters also regularly occur: wildfires, tornados, train wrecks, bridge collapses, and maritime accidents. Sudden, dramatic, and horrible disasters prompt extraordinary volunteerism from the entire community. In all walks of life, ordinary time is suspended, riveting attention to the crisis at hand. Everyone feels compelled to do whatever they can to help, including those in the legal community. (4) Whatever the cause, all of these events are physically dramatic, and result in extensive personal, property, economic, and environmental harm. Public response varies with the extent of loss, moral outrage, and the community's sense of violation. The events of 9/11 shocked the nation and much of the world. Firefighters became national heroes because they could do something tangible: search, rescue, and remove the dead for burial. The legal community's remarkable response to the terrorist attacks of September 11, 2001 should be viewed in that context. As trained professional technicians, skilled at designing creative solutions to vexing problems, lawyers were prompted to help to alleviate the human suffering. Serendipitously, New York's first ever Access to Justice Conference was scheduled to begin in Albany the morning of September 11, with over 250 participants concerned about delivery of legal services scheduled to attend. (5) Because the conference machinery was set in place, and committed lawyers physically present (and out of harm's way), the fortuitous timing enabled prompt organization of disaster legal assistance. Thus, although the enormous losses from the attacks required an unprecedented level of disaster legal assistance, New York's legal community, which had long paid thoughtful attention to its pro bono responsibilities, (6) rose quickly to the challenge. This Essay reflects upon the lessons learned from the legal community's massive effort to help sort out the legal problems of those affected by the tragic events of 9/11, and then applies those lessons to the challenge of designing delivery of pro bono services for less spectacular and hence less sympathetic disasters. It considers what design strategies were particularly effective, how these pro bono efforts were different from other disaster relief legal programs, and how these experiences can inform nationwide deliberations on expanding Access to Justice. The greater challenge for the legal profession is in delivering sufficient and sustainable pro bono legal services for everyday disasters, such as poverty, homelessness, substance abuse, crime, domestic violence, and deprivation of civil liberties. These disasters are not as sudden, dramatic, or immediately damaging, hence they do not provoke a national outpouring of empathy, generosity, or volunteerism. And yet, these ordinary disasters result in enormous untold harms to those affected. …

From Poverty to Abuse and Back Again: The Failure of the Legal and Social Services Communities to Protect Foster Children

Abstract: "I don't know what to say. We just picked the kid up from one crack house and dropped her off at another." (1) Stephanie's life ended as it began, her tiny body wrapped in a plastic bag and left on a New York City street. (2) When her parents dumped her body the first time, the plastic prevented her from receiving enough oxygen and she suffered severe brain damage. The second time Stephanie was wrapped in plastic and dumped onto the street she died. This time she was abandoned by her foster mother. Though this foster mother had provided the foster care agency with glowing recommendations, police investigators found her home filled with feces, insects, and rodents, and Stephanie's medical equipment caked in grime. The foster mother had also canceled Stephanie's health services a few months earlier without the agency's knowledge. (3) Bruce was found digging through the trash for food because his foster parents fed him only breakfast cereal, uncooked pancake batter, and peanut butter. (4) He had been placed in foster care eight years earlier because his biological parents were also starving him. (5) His foster parents even locked the kitchen to keep him from taking food. (6) Neighbors, foster care agency caseworkers, and the family's pastor all described this family positively, some of whom noted that they were loving and deeply religious. (7) After decades of legislative reform, stories like these still appear on the front pages of our newspapers, and foster children who are injured while in protective care are turning to the courts to change the system. It is still relatively difficult for a child to prevail in an action against child protective workers and agencies. (8) Opinions addressing children's issues are few, and courts seem hesitant to expand causes of action. (9) This Comment explores the current state of children's legal remedies for injuries incurred as the result of a foster care placement. Part I describes the foster care system in the United States. Part II discusses, generally, the possible causes of action available to foster children. Part III examines the most successful way for a child to recover damages; a 42 U.S.C.A. [section] 1983 ("section 1983") cause of action for the violation of the constitutional right to safety while in state custody. The Supreme Court has not ruled on whether foster children have such a right, and district courts are divided about what standard to apply if a constitutional right to safety even exists for children in foster care. Finally, Part IV suggests reasons why courts have been reluctant to allow civil rights actions by children in foster care, and also advocates for a shift in the way the legal community views children's issues. Until a consistent and appropriate standard of care is established, shocking stories of foster care child abuse will continue to make news around the country. PART I: THE SAD STORY OF FOSTER CARE IN THE UNITED STATES In 2003, over half a million children were living in foster homes. (10) An increase in drug and alcohol abuse, poverty, and homelessness has led to an increase in the population of children in foster care. (11) In the simplest terms, the foster care system is failing its growing population. Some children's advocates contend that forty percent of foster children end up on welfare or in prison, (12) and foster children are sixty-seven times more likely to be arrested than children who did not grow up in foster care. (13) While in care, children are often shuffled from home to home over the course of many years, so they are unable to form lasting bonds with any adult. (14) They often do not receive proper medical or psychiatric attention, (15) though it is common for foster parents to seek medication to control foster children more easily. (16) A grand jury in San Diego found a large disparity between the care of foster children, and that of biological children; the foster children were given cheaper food and clothing, restricted to certain areas of the house, and sometimes forbidden to open the refrigerator or watch television with the family. …

A Dangerous Mix: Mandatory Sentence Enhancements and the Use of Motive

Abstract: INTRODUCTION "It all happened so fast. One minute Peter Malamoutsis was laughing with friends in front of a restaurant early Saturday morning. The next he was on the pavement gasping for breath as three men kicked him repeatedly in the head." (1) According to news reports, this attack was preceded by an exchange in which John Himonetos made a disparaging remark about homosexuals, and Malamoutsis, himself a homosexual, took offense. (2) Himonetos and two others allegedly proceeded to beat Malamoutsis, and police believe that the attack was motivated by the victim's sexual preference. (3) Himonetos has been charged with a hate crime and faces the possibility of an extended sentence of up to thirty years, double the maximum allowed for aggravated battery. (4) Himonetos's case is not unique. Over forty states have adopted hate-crime laws that increase the punishment for offenses in which the defendant was motivated by hatred of the victim's race, gender, or sexual preference. (5) What would have been considered an ordinary bar fight just a few years ago is now recognized as gay bashing and is subject to harsh penalties that are meant to deter bigoted behavior. (6) The significance of this story lies not in the existence of the crime but in the severity of the punishment. This Comment will address the following issue: Given that the punishment increase is based solely on the accused's motive, should we be more concerned about the accuracy of the verdict in cases like John Himonetos's than we are in non-motive-based crimes? Himonetos may be a horrible bigot whose hatred of homosexuals constitutes an immediate threat to a significant percentage of the population. He may instead, however, just be a man who is prone to violence and who decided to take out his aggression on the nearest target; in this case, a gay man. The jury's determination of this very fact is the crucial element that will determine how much of his life Himonetos spends in jail. It is beyond question that one who is convicted of assault should be punished. It is only when a statute increases that punishment because the crime was triggered by the victim's membership in a minority group that we must wonder whether our possible understanding of the criminal mind truly validates the imposition of a harsher sentence. Can the assailant's psyche be determined beyond a reasonable doubt, and is the law correct in mandating that a jury do so in the course of a trial that potentially affects the next thirty years of this man's life? The following discussion focuses on whether the American criminal justice system has gone too far in its use of motive as a basis for mandating stricter sentences. (7) The radical changes to the federal and state sentencing guidelines brought about by Blakely v. Washington (8) and United States v. Booker (9) will force legislatures to take a closer look at our system of punishment. In no area is such introspection more important than with regard to those crimes that use motive as their essential element. This Comment will address the problems presented by criminal statutes that mandate sentence enhancements specifically for the motive element of a crime. Conspiracy law, hate-crime statutes, and unlawful purpose statutes will be presented individually as examples of motive-based crimes and collectively as an illustration of a progression in criminal law of the increasingly greater use of motive. Part I provides an introduction to the use of motive in criminal law and contains a brief overview of the motive-intent dichotomy. In addition, Part I includes a discussion of conspiracy law as the forebear of motive-based crimes. Part II focuses on hate crime law as the primary example of a crime that uses motive to suggest a sentence enhancement. This Part includes a detailed discussion of the arguments in favor of and in opposition to hate crime laws, specifically as those critiques pertain to the difficulty of determining if a defendant acted out of bias. …

The nirvana fallacy in law firm regulation debate

Abstract: This Article addresses self-regulation in the legal industry. Lawyers have traditionally resisted the benefits of bureaucratic management. This Article highlights that many lawyers fear that centralized management controls with regard to regulation will undermine individual accountability. This article does not agree with that sentiment. This article uses data to suggest that centralized management, i.e. specialists in charge, may significantly improve individual accountability and compliance with professional rules. This article really reviews what it feels like are misconstrued assumptions about regulation at law firms. This Article argues that the nostalgia for an idealized collegial form has prevented legal scholars and regulators from coming to terms with the realities of practice in large law firms. The Article concludes with research questions to help reach a credible strategy for self-regulation in the large firm context.

How law firms can do good while doing well (and the answer is not pro bono)

Abstract: This Essay looks at whether large law firm business lawyers can do good in today’s society. The author describes the change in the large law firm mentality since the 1960s – most specifically the shift to a focus centered solely on making money. The Article looks at the changes in the legal profession that facilitated this shift. The author proposes that instead of trying to separate making money and doing well, the legal profession should try to integrate the two. The Essay proposes specific suggestions to accomplish this goal, including the creation of a new Model Rule that would restore moral accountability to lawyers.

An Analysis of the 2004 Nader Ballot Access Federal Court Cases

Abstract: The article begins by stating that voters ability to vote for minor party candidates for presidential elections have generally been protected by federal courts as long as they have gotten some media exposure, and Ralph Nader, after not having received this protection attempted to file for injunctions in federal courts. It then goes through Naders claims and suits, including against a discriminatory number of signatures, whether out of state circulators may work, his North Carolina and Ohio write-in lawsuits. The articles conclusion is that federal courts did a poor job in deciding whether to grant Nader injunctive relief and how their decisions go against the essence of a democratic society which should be allowed to vote for whomever they want.

Legal education after law school: lessons from scotland and englan

Abstract: The symposium entitled “Professional Challenges in Large Firm Practices” held at Fordham University School of Law on April 15, 2005 opened up a much-needed dialogue between law schools and law firms about legal education after law school. Keynote speaker Michael Greco, President of the American Bar Association, opened the conference by noting that: “[L]awyers are always going to be students, because the learning doesn’t stop in law school. The irony is that when we become lawyers, we not only continue to be students, we simultaneously are teachers.”1 Greco’s keynote was followed by a panel on “The Role of Law Firms in the Educational Continuum,” which brought together three lawyers from large private firms, a lawyer from a large government law department, and two law professors.2 As one of the two academics on the panel, I learned a great deal about the extent and sophistication of the legal education that takes place within law firms and legal departments.3 The

Large Law Firms and Their Role in the Educational Continuum of Lawyers

Abstract: The business savvy and organizational mettle of the largest law firms in the nation is formidable. The top 100 law firms in the United States grossed nearly $42 billion in fiscal year 2003. (1) Average profits per partner were recorded as $930,700, a ten percent increase from 2002. (2) Median associate base salaries in firms of 501 or more lawyers were $165,000. (3) Large law firms are well established as legal industry leaders. These firms are pioneering the business of law as an entrepreneurial venture and creating precedent and protocol for all firms. Virtually anything that these large law firms choose to accomplish they can achieve in exemplary fashion by allocating their resources, which include extraordinary intellect, seemingly unlimited manpower and financial clout. Large law firms craft training and development programs that fit their individual business goals. These programs, which are administered and coordinated at all levels, are funded as an essential business priority, and positioned as an invaluable benefit for associates. Through these programs, firms are realizing improvements in client service and satisfaction, increased associate productivity, enhanced associate loyalty, and decreased malpractice risk. This paper will examine the ways in which large law firms have served as educators and consider how their efforts might be enhanced. I. THE LEGAL EDUCATION CONTINUUM: THE NECESSITY FOR CONTINUING LEGAL EDUCATION When talking with law firm partners, it is not unusual to hear complaints that law graduates, even those graduating with honors from elite law schools, are not adequately prepared for the rigor and pace of law firm practice. This anecdotal evidence is supported by empirical data. According to the "MacCrate Report," "It]he lament of the practicing bar is a steady refrain: 'They can't draft a contract, they can't write, they've never seen a summons, the professors have never been inside a courtroom.'" (4) To be fair, law schools do not claim to teach students how to be legal practitioners. They do not attempt to train students to market legal services, manage people, handle the unrelenting stress of practice, or run a business. (5) According to law schools, "we teach them to think, we're not trade schools, we're centers of scholarship and learning, practice is best taught by practitioners." (6) In fact, according to well-respected scholars, "law schools cannot reasonably be expected to shoulder the task of converting even very able students into full-fledged lawyers licensed to handle legal matters." (7) Even though the practicing bar complains that law school graduates are unprepared for practice, large law firms--those with 101 or more attorneys--hire law graduates in droves. (8) In 1995, 25.8 percent of all ABA-accredited law school graduates acquiring jobs in law firms were employed by large firms. (9) In 2002, due in part to consolidation of the industry, 41.2 percent of all ABA-accredited law school graduates acquiring jobs in law firms were employed by large firms; (10) seventeen percent of those graduates who acquired jobs in law firms, ended up at the largest of the large firms, those with 501 or more attorneys. (11) Large law firms have become central figures in the educational continuum of new lawyers, attempting to fill the enormous gap in associate skills and understandings which are revealed by immersion in practice. It is because of this gap that skills training and professional development have become standard components of law firm personnel management strategies. (12) II. THE MOTIVATION FOR ASSOCIATE TRAINING Associate training programs are not new, but the scope of the training that large law firms offer today is radically different from the training offered decades ago. (13) As recently as the 1980s, very few firms offered associate training programs, and those that did focused their training on technical legal skills, particularly in litigation. …

The Unbearable "Lite"ness of History: American Sodomy Laws from Bowers to Lawrence and the Ramifications of Announcing a New Past

Abstract: "On the surface, an intelligible lie; underneath, the unintelligible truth" (1) Contrary to the most powerful claims of originalist scholars, history is not equipped to protect the Constitution from politically motivated interpretations. (2) This belief, grounded to varying degrees in the idea of an ascertainable and objective past, cultivated inside the vacuum of a legal community largely unencumbered by the methodological and epistemological questions dominant in philosophy and historiography. (3) Martin S. Flaherty's History "Lite" in Modern American Constitutionalism ("History 'Lite'") (4) partially changed this by introducing methodological checks to the anarchistic world of legal history; (5) but Flaherty's important work only dealt with half of the problem, acknowledging but not addressing history's implicit epistemological uncertainty. (6) This Comment explores this uncertainty and its ramifications through chronicling and analyzing the evolution of the legal debate over the meaning of America's sodomy laws over the last seventeen years from Bowers v. Hardwick (7) through Lawrence v. Texas. (8) Tracking the arc of this legal-historical debate reveals history's malleability. As seen in majority and dissenting opinions, oppositional historical accounts are grounded in the same set of facts. (9) The splintering of this one set of facts into two diverging factually supported historical accounts exposes legal history's capacity to shroud an agenda in facts. The different accounts replace the myth of history as an objective decisive entity with the reality that history is capable of disguising subjective, biased decisions. Accordingly, this Comment suggests an honest and realistic view of history that can immunize our courts from its dangers while preserving its unique utility. As this Comment explains and defines history through the evolving legal debate over the scope and purpose of America's sodomy laws, it scrutinizes and explains this evolution through major works in the field of historiography, namely the writings of Martin Flaherty, Raymond Martin, Peter Novick, and Hayden White. As Flaherty explains in History "Lite" and I explore in Part II of this Comment, history's malleability can be attributed to the historian. Accordingly, with the aim of exposing this malleability, analysis here is both methodological and epistemological. Methodological scrutiny in the manner of History "Lite" is mostly relegated to Part I, whereas Parts II and III are concerned with reducing history to its essential components--brute facts and the more illusive meaning afforded to a set of facts. Recognition of history's true composition exposes its inherent manipulability. Part I, "An Intelligible Lie: The (A)historical Methodology of Bowers v. Hardwick," serves the twofold purpose of introducing the legal debate over the history of American sodomy laws, as well as demonstrating history's susceptibility to methodological manipulation by viewing Bowers in the context of History "Lite." Scrutiny of Bowers through History "Lite" reveals a majority opinion supported by a selective reading of the past. This section argues that historical manipulations, such as those in Bowers, whether intentional or not, in the context of a history-reliant judiciary, misinform us about the past and in doing so steer us towards an unintended future. As History "Lite" instructs, however, these errors by historians are correctable. (10) The same cannot be said for the problems arising from history's inherent fact problem. Part II, "The Unintelligible Truth: Postmodernism and the Lawrence Briefs," addresses the major historical briefs offered to the Court in Lawrence as practical examples of Peter Novick's (11) and Hayden White's (12) claim that one set of historical "facts" can tell many different "truthful" stories. (13) Novick's postmodernist position relies on what Judith Lichtenberg describes as "the distinction between a realm of facts (perhaps we should say 'brute-facts') and a realm of interpretation, which encompasses theories, narratives, stories, and generally the larger accounts that the historians (or other interpreter of events) set out to tell. …

A Model of Abstract Cooperation in Games of Uncertainty

Abstract: I. INTRODUCTION Sir Ronald Fisher remarked that it was "Darwin's chief contribution, not only to Biology but to the whole of natural science, to have brought to light a process by which contingencies a priori improbable, are given, in the process of time, an increasing probability, until it is their non-occurrence rather than their occurrence which becomes highly improbable." (1) The idea that evolutionary processes naturally propel a state of affairs toward a higher, perhaps more complex or advanced, state of affairs is one that may extend to any context characterized by a dynamic time frame, including oligopoly models of repeated Prisoner's Dilemma. I argue that, contrary to the popular assertion that coordinated pricing necessarily requires voluntary coordination, (2) oligopoly markets may evolve to a state of cooperation--one of collective profit maximization--absent a conscious state of coordination among the players, or even knowledge of such cooperation. Professor Donald Turner, in his seminal treatise on the definition of "agreement" under the Sherman Act, (3) touches upon the idea that oligopoly may naturally precipitate parallel non-competitive pricing that may reasonably be considered individual conduct, but stops short of asserting that cooperative equilibria may result without any form of conscious commitment to coordinate prices. Turner argues that oligopoly markets are defined by their interdependent nature and that each player will rationally and naturally calculate the consequences of its price decisions with regard to the expected reactions of its competitors. (4) This explanation does not go far enough. While it is true that cooperation is a natural consequence of the interdependent nature of oligopoly markets, it is not necessarily a result of conduct based on conscious regard of future reaction by competitors. While Turner proposes a theory of cooperation based on forward-looking consideration of future reaction, and similarly, George Stigler presents a theory of cooperation based on fear of detection and retaliation, (5) I propose a theory of evolution to cooperation based on the progression of consequences from previous actions. Specifically, George Stigler "reasoned that 'oligopolists wish to collude to maximize joint profits' but 'if any member of any agreement can secretly violate it, he will gain larger profits than by conforming to it,' so a model of oligopoly should focus on the 'problem of policing a collusive agreement.'" (6) Many economic and legal models determine a firm's ability to detect cheating by analyzing the quality and quantity of information exchanged among firms. (7) For example, industry trade associations are often accused of existing for the sole purpose of facilitating tacit collusion. Stigler's model goes a step further: it allows participants in a collusive arrangement to infer that a rival is secretly cutting prices, and defecting from the arrangement, if they unexpectedly lose many old customers or unexpectedly gain few new customers. (8) This paper extends Stigler's model from a theory of tacit interaction and sustained collusion based on a player's ability to detect other players' defections to a theory of independent action based on a player's natural tendency to implement payoff-maximizing strategies by comparing previous performance to current performance and adjusting conduct accordingly. I propose that neither conscious coordination nor information exchange is necessary to achieve cooperative equilibria. Rather, an evolutionary process that parallels Darwinian biological evolution propels economic markets toward states of cooperative equilibrium. II. WHEN COLLECTIVE AND INDIVIDUAL INCENTIVES CLASH: AN INTRODUCTION TO THE PRISONER'S DILEMMA Imagine a situation in which a troublemaker is asked to report to the high school principal's office for investigation of his involvement in a prank. …

Profits and Professionalism

Abstract: "Ethics pays" is a recurring refrain among commentators on professional and business ethics. This should come as no surprise. In a culture preoccupied with profit, appeals to self-interest may be the most persuasive strategy. Yet if virtue were always its own reward, we would surely see more of it. Promoting ethical values in professional workplaces that are increasingly focused on the bottom line will require pushing beyond the platitudes. We need more probing analysis of key questions. To what extent does ethics pay? How well? Under what circumstances? And most important, what can be done to increase the rate of return? The following discussion explores those questions in three contexts. The first involves workplace cultures. How do we create more organizational structures in which adhering to principles serves prudential interests? A second area of inquiry involves pro bono service. If, as research suggests, lawyers do well by doing good, how can we communicate that message more effectively in work and educational settings? A third cluster of issues concern quality of life. If, as a wide array of studies indicate, balanced lives promote bottom lines, what will convince more legal employers to adjust their policies accordingly? I. DOES ETHICS PAY? WORKPLACE CULTURES AND PROFESSIONAL VALUES A widespread concern within the American bar is the perceived "decline of the profession into a business." About three quarters of surveyed lawyers believe that the profession has become more "money conscious," and few regard the change as welcome. (1) The prevailing assumption is that the priority on short-term profits undermines moral values and social responsibilities. (2) Growing financial pressures make it increasingly difficult for lawyers to antagonize clients or supervisors by delivering unhappy messages about what legal rules and legal ethics require. Greed may not be the root of all evil, but it is surely responsible for much of the bar's complicity in financial, environmental, and health and safety disasters. (3) Yet while most commentary on legal ethics laments the bar's capitulation to market values, most commentary on business ethics insists that those values, if properly assessed, are part of the solution, not the problem. From this perspective, where individuals and institutions go wrong is in focusing on short-term financial gains, which come at the expense of larger long-term costs. The legal and reputational consequences of moral myopia often dwarf any immediate payoffs. Recent work on moral leadership, particularly trade publications written by and for managers, is peppered with reassuring homilies. If Aristotle Ran GM offers a representative sample: a "climate of goodness ... will always pay great dividends," "you can't put a simple price on trust," "unethical conduct is ... self-defeating or even self-destructive over the long run." (4) A dispassionate review of global business practices might suggest that Aristotle would need to be running more than General Motors for this all to be true. But no matter; in most of this commentary, a few spectacularly expensive examples of moral meltdowns will do. Companies make "billion dollar errors in judgment" by marketing unsafe products, fiddling with the numbers in securities filings, or failing to report or discipline rogue employees. (5) The moral of the story is always that if "values are lost, everything is lost." (6) Even more hardheaded leadership advice is often tempered with at least lip service to the cost effectiveness of integrity and reminders that profits are not an end in themselves. In their best selling book, In Search of Excellence, Thomas Peters and Robert Waterman insist that "[t]he top companies make meaning, not just money." (7) Jack Welch, a CEO best known for his pursuit of profits, not ethics, similarly insists that "numbers aren't the vision, numbers are the product." Although they cannot be disregarded, they should not achieve "such priority that [leaders] fail to deliver on the things that really matter to the company in the long run: its culture . …