Showing papers in "Fordham Urban Law Journal in 2012"
Journal Article•
TL;DR: In this paper, the authors examine accountability in the context of professional liability and conclude that accountability concerns may not have been adequately considered because of the absence of advocacy on behalf of consumers and the public.
Abstract: Introduction I. The Limited Liability Movement: Where Were the Lawyers? II. Mandatory Legal Malpractice Insurance: How the United States Differs from Other Countries (In Not Protecting Consumers) III. Mandatory Disclosure of Insurance: What the Debate Reveals about Lawyer Attitudes Conclusion: Embracing Accountability and Distinguishing Law Practice as a Profession INTRODUCTION In asserting that law is a profession and not a business, lawyers often refer to the role self-governance plays in the legal profession. Julius Henry Cohen captured this sentiment in making the following exhortation: "Ours is a profession.... We are all in a boat. The sins of one of us are the sins of all of us. Come, gentlemen, let us clean house." (10 As members of a profession, Cohen asserts that lawyers may be brought to prompt and summary accountability through a collective enterprise. (2) When Cohen and other bar leaders speak of accountability, their focus is often on the role that professional discipline plays in protecting the public. A similar concern relates to protecting the public by limiting law practice to attorneys who complete a course of education and demonstrate the requisite character befitting a member of the bar. (3) In his essays, Cohen recognizes the disparate positions of lawyers and their clients. For example, he notes that clients may not have the background or expertise to make informed judgments in retaining a lawyer. (4) Because lawyers stand in a position of trust and confidence, Cohen advocates limiting law practice to persons who possess "adequate learning and purity of character." (5) This approach to public protection targets the qualities of those who enter the door of the profession. Once admitted, the focus turns to policing those practitioners whose conduct runs afoul of the minimum standards to avoid professional discipline. (6) Far less attention is devoted to considering accountability of lawyers who depart from standards of care applicable in professional liability cases. This Article will address this gap by examining accountability in the context of professional liability. To do so, it will consider select developments that required lawyers, the organized bar, legislators, and jurists to balance lawyer self-interest and public protection. Specifically, this Article will consider lawyers' collective campaign to limit their vicarious liability, as well as developments related to lawyers carrying legal malpractice insurance. An examination of legislation and regulatory decisions related to lawyers' professional liability over the last two decades reveals that accountability concerns may not have been adequately considered because of the absence of advocacy on behalf of consumers and the public. For lawyers and law professors committed to advancing the status of law as a profession, this Article ends by urging them to take steps to promote financial responsibility as a basic tenet of professionalism and to support initiatives that protect consumers injured by lawyers' professional misconduct. I. THE LIMITED LIABILITY MOVEMENT: WHERE WERE THE LAWYERS? Over the last century, the limited liability movement resulted in the most radical departure from a civil liability regime holding lawyers accountable for the acts and omissions of their law partners. Unlike the business and tax-related interests behind allowing lawyers to practice in professional corporations, the push behind the limited liability partnership structure was the desire of lawyers to limit their vicarious liability for their partners' professional malpractice. (7) In lawyers' campaign for limited liability, public protection was largely a secondary concern. (8) While a few states included insurance requirements and other protections to provide some degree of public protection, injured parties' ability to hold firm partners jointly and severally liable was virtually eliminated once the law firm converted to limited liability status. …
5 citations
Journal Article•
TL;DR: Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the twentieth century and into the twenty-first as mentioned in this paper, and a movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment.
Abstract: Introduction I. From the Roaring Twenties to the Calm Fifties A. The 1920s B. The New Deal and World War II C. The 1950s II. Things Fall Apart A. 1966 B. 1967 C. 1968 III. The 1970s A. The Rise of the Handgun Prohibition Lobbies and the Revolt at the NRA B. Handgun Prohibition Efforts in the District of Columbia and Massachusetts C. The NRA Counteroffensive, and the Growing Sophistication of the Gun Control Lobby IV. The Age of Reagan V. George H.W. Bush VI. The Clinton Era VII. The Re-emergence of the Second Amendment VIII. Columbine and the 2000 Election IX. The Great American Gun War Winds Down X. Gun Control in the Twenty-First Century A. No Systems Designed to Impede Responsible Gun Ownership and Use B. No Bans on Common Types of Firearms C. Protection of the Right of Self-Defense D. Judicial Protection of the Right to Licensed Carry, but Not to Unlicensed Concealed Carry INTRODUCTION A movement to ban handguns began in the 1920s in the Northeast, led by the conservative business establishment. In response, the National Rifle Association (NRA) began to get involved in politics and was able to defeat handgun prohibition. Gun control and gun rights became the subjects of intense political, social, and cultural battles for much of the rest of the twentieth century and into the twenty-first. Often, the battles were a clash of absolutes: One side contended that there was absolutely no right to arms, that defensive gun ownership must be prohibited, and that gun ownership for sporting purposes could be, at most, allowed as a very limited privilege. The other side asserted that the right to arms was absolute, and that any gun control laws infringed that right. By the time that Heller and McDonald came to the Supreme Court, the battles had mostly been resolved. The Supreme Court did not break new ground, but instead reinforced what had become the American consensus: the Second Amendment right to keep and bear arms, especially for self-defense, is a fundamental individual right. That right, however, is not absolute. There are some gun control laws that do not violate the right, particularly laws which aim to keep guns out of the hands of people who have proven themselves to be dangerous. In the post-Heller world, as in the post-Brown v. Board of Education world, a key role of the courts will be to enforce federal constitutional rights against some local or state jurisdictions whose extreme laws make them outliers from the national consensus. I. FROM THE ROARING TWENTIES TO THE CALM FIFTIES A. The 1920s During the nineteenth century, gun control was almost exclusively a Southern phenomenon. (1) It was concerned with keeping guns out of the hands of slaves or free blacks before the Civil War, curbing dueling, and suppressing the freedmen after the Civil War. (2) The only gun control that found favor outside the region was restricting the concealed carrying of handguns. (3) While openly carrying weapons ("open carry") was considered legitimate and constitutionally protected, concealed carrying of weapons ("concealed carry") was viewed as something that would be done only by a person who was up to no good. (4) Towards the end of the century, fears of labor unrest led some states to enact bans on mass armed parades without a permit. (5) Early in the twentieth century, concerns about organized labor, the huge number of immigrants, and race riots in which some blacks defended themselves with firearms led non-Southern states, such as California and Michigan, to enact licensing systems or short waiting periods for handgun purchases. (6) The most famous of these early Northern controls was New York State's Sullivan Law, enacted in 1911, which required permits to own or carry handguns. (7) During the same period, communist and anarchist groups often attempted to provoke violence. …
5 citations
Journal Article•
TL;DR: In 2003, Oren Adar and Mickey Smith were denied an amended birth certificate by the Fifth Circuit, which held that their valid New York adoption did not have to be "enforced" by Louisiana's Registrar as discussed by the authors.
Abstract: Introduction I. Are States Required to Give Full Faith and Credit to Valid Adoptions in Sister States? A. The Full Faith and Credit Clause, Its Limitations, and Its Interplay with the Effects Clause 1. The Difference Between Full Faith and Credit Due Judgments and Statutory Laws 2. "Public Policy Exceptions" to the Full Faith and Credit Clause 3. The Difference Between Recognition and Enforcement of Sister States' Judgments 4. The Effects Clause B. Full Faith and Credit and Adoption by Same-Sex Couples II. Recognition in Oklahoma and Enforcement in Louisiana: A Conflict Between the Tenth and Fifth Circuits A. Finstuen v. Crutcher B. Adar v. Smith C. Circuit Split III. Congress Should Pass an Act that Will Protect the Parental Rights of Same-Sex Adoptive Parents A. Judicial Solution: All Circuits Should Follow the Tenth Circuit B. Legislative Solution: Congress Should Pass a "Protection of Adopted Children Act" Conclusion INTRODUCTION Lucy and Jennifer Doel legally adopted a baby in California in 2002. (1) While living in Oklahoma, where their child was born, Lucy and Jennifer requested an amended birth certificate with both of their names listed as "parents." (2) This request was denied for public policy reasons, as Oklahoma does not permit same-sex couples to adopt children, so only Lucy Doel was listed on the birth certificate as the child's mother. (3) Although a birth certificate is not supposed to confer parental rights, (4) Jennifer was not permitted to accompany her child at the hospital during a medical emergency, and only "the mother" (Lucy) was allowed access to their sick daughter. (5) Thus, the denial of an amended birth certificate deprived Jennifer of an important parental right--the ability to visit her child in the hospital and make medical decisions for the child she legally adopted. Jennifer and Lucy were eventually awarded an amended birth certificate by the Tenth Circuit, (6) but other parents have not been so lucky. Oren Adar and Mickey Smith were denied an amended birth certificate by the Fifth Circuit, which held that their valid New York adoption did not have to be "enforced" by Louisiana's Registrar. (7) The court reasoned that amending the child's birth certificate with both men's names listed as parents was not recognition, but enforcement of their valid adoption. (8) While the Fifth Circuit argues that "birth certificates are merely 'identity documents that evidence ... the existing parent-child relationships, but do not create them,'" (9) there are no guarantees that Mr. Adar and Mr. Smith would be able to visit their child in the hospital, make major medical decisions for him, or have any of the other rights guaranteed to adoptive parents in the Fifth Circuit, simply because they are a same-sex couple. (10) This not only affects the rights of Mr. Adar and Mr. Smith, but, more importantly, the rights of their adopted child. Much of the recent national dialogue has revolved around whether or not same-sex couples should be permitted to marry. (11) While gay marriage advocates are winning significant victories throughout the country, (12) there is another even more immediate issue to address. Right now in the United States, many same-sex couples, married or not, are raising their own families. Approximately seventeen percent of same-sex couples are raising children, (13) and approximately 65,000 of the children being raised by same-sex couples are adopted. (14) Although the rights of same-sex adoptive parents remain in the shadow of the gay marriage debate, it is crucial that a focus be placed on protecting existing families. Yet, because of the varying state laws on adoptions by same-sex couples, this is not so simple. Normally, sister states are required to recognize the "public Acts, Records, and judicial Proceedings of every other state" through the Full Faith and Credit Clause of the United States Constitution. …
4 citations
Journal Article•
TL;DR: It is pointed out that the term “forensic science” covers a variety of activities that may require rather different skills, and there are different roles in forensic science, but somewhat mistaken in his call for hierarchy.
Abstract: Dr. Simon Cole calls for a more hierarchical organization of forensic science in his challenging Article, Acculturating Forensic Science: What is ‘Scientific Culture’, and How can Forensic Science Adopt it?1 I think Dr. Cole is right to say that there are different roles in forensic science, but somewhat mistaken in his call for hierarchy. Dr. Cole points out that the term “forensic science” covers a variety of activities that may require rather different skills. He divides forensic science into five groups of activities: (1) basic research, (2) evidence collection, (3) technical management, (4) analysis, and (5) interpretation.2 He associates each group of activities with a different set of epistemic virtues. Basic researchers, for example, should “innovate” and “subject their innovations to
3 citations
Journal Article•
TL;DR: The International Criminal Tribunal for Rwanda (ICTR) as discussed by the authors defined sexual violence as "any act of a sexual nature which is committed on a person under circumstances which are coercive," including rape, sexual slavery, and molestation.
Abstract: Introduction I. The Evolving Status of Sexual Violence in International Law A. Proscription of Sexual Violence in Modern International Humanitarian Law B. Prosecution of Crimes of Sexual Violence by International Tribunals 1. Sexual Violence Jurisprudence at the ICTY and ICTR a. Defining Crimes of Sexual Violence at the ICTY and ICTR b. Prosecuting Sexual Violence as a War Crime, Crime Against Humanity, and Act of Genocide at the ICTY and ICTR i. War Crime ii. Crime Against Humanity iii. Genocide 2. Sexual Violence Jurisprudence at the ICC a. Establishing a Platform for Sexual Violence Prosecutions at the ICC b. Charging Crimes of Sexual Violence at the ICC. 3. Prosecutorial Effectiveness of Sexual Violence Prosecutions at the ICTY, ICTR, and ICC a. Assessing Prosecutorial Effectiveness at the ICTY and ICTR b. Assessing Prosecutorial Effectiveness at the ICC c. Best Practice Recommendations for Effective Sexual Violence Prosecutions II. "The Politics of Naming": Conceptualizing Sexual Violence as a War Crime, Crime Against Humanity, and Act of Genocide in International Law A. Conceptualizing Sexual Violence as a War Crime B. Conceptualizing Sexual Violence as a Crime Against Humanity and Act of Genocide III. Sexual Violence Must Be Named, Conceptualized, and Prosecuted as a Crime Against Humanity and Form of Genocide in Order to Advance the Protection of Women's Human Rights at the ICC Conclusion Naming sexualized violence as a weapon of war makes it visible--and once visible, prosecutable. What happened to men in the past was political, but what happened to women was cultural. The political was public and could be changed; the other was private--even sacred--and could not or even should not be changed. Making clear that sexualized violence is political and public breaks down that wall. It acknowledges that sexualized violence does not need to happen. When masculinity is no longer defined by the possession and domination of women, when femininity is no longer about the absence of sexual experience or being owned, then we will have begun. (1) INTRODUCTION "I was sleeping when the attack on Disa started," explained a female refugee from Western Darfur, interviewed by Amnesty International from a Sudanese refugee camp in Chad in 2004. (2) She continued: I was taken away by the attackers, they were all in uniforms. They took dozens of other girls and made us walk for three hours. During the day we were beaten and they were telling us: "You, the black women, we will exterminate you, you have no god." At night we were raped several times. The Arabs guarded us with arms and we were not given food for three days. (3) Her testimony is representative of hundreds collected from other women in the region describing attacks on civilians of the Fur, Masalit, and Zaghawa ethnic groups carried out by the Sudanese government-sponsored militia in Darfur since 2003. (4) According to survivors' testimonies, "men are killed, women are raped and villagers are forcibly displaced from their homes which are burnt [and] their crops and cattle, their main means of subsistence, are burnt or looted." (5) To many in the international human rights community, this female refugee is a survivor of a genocide involving the systematic rape of civilian populations. (6) Wartime sexual violence has been the tragic reality for millions of women victimized over centuries by perpetrators who have historically inflicted unspeakable pain and destruction with impunity. (7) Sexual violence is a broad category of harm defined as "any act of a sexual nature which is committed on a person under circumstances which are coercive," including rape, sexual slavery, and molestation. …
3 citations
Journal Article•
TL;DR: The Vanishing American Lawyer as discussed by the authors argued that "Law in America is not a profession, and that's a good thing." The authors also pointed out that although legal practice had become too commercialized of late, law was and should be a profession.
Abstract: Introduction I. Is Law a Profession? II. Should Law Be a Profession? Conclusion INTRODUCTION In 1916, Julius Henry Cohen--the subject of this conference--took up the now-perennial debate concerning whether law is a business or a profession, coming down on the side that, although legal practice had become too commercialized of late, law was and should be a profession. (1) In 2010, Tom Morgan--one of the participants in this conference--addressed the same question in his book The Vanishing American Lawyer and provocatively concluded, contrary to Cohen, that "Law in America is not a profession--and that's a good thing." (2) For Cohen, the commercialization of law practice--including not only advertising, but also the growing number of lawyers serving the interests of business clients--was antithetical to the ideals of professionalism, in which rather than "being drawn into modern business," lawyers should be "standing outside it." (3) For Morgan, however, lawyers are and should be recognized as primarily economic actors. (4) Indeed, he encourages them to work toward breaking down the barriers that continue to exist between lawyers and other business persons who can offer comparable (perhaps even better) services at lower prices. (5) What, if any, are the implications of globalization--including the increased globalization of law practice (6)--for the perennial debate concerning the professional status of lawyers in the United States and elsewhere? Of course, Cohen did not live to witness the globalization phenomenon and therefore was unable to comment on its implications for his ideal of law as a profession. Morgan, on the other hand, is an astute observer of globalization and its impact on law practice, including radical changes in lawyer regulation recently enacted in the U.K. and Australia (7)--changes that have many U.S. lawyers "up in arms." (8) For Morgan, globalization represents the culmination of a lengthy process of eliminating restrictive barriers that were established at the behest of lawyer organizations such as the American Bar Association (ABA), in an effort to establish and reinforce lawyers' monopoly over a wide range of commercial activity. (9) According to Morgan, this process of breaking down barriers between lawyers and nonlawyers--and between elite and non-elite lawyers--began in the United States in the 1960s with a series of Supreme Court decisions striking down various anticompetitive rules adopted by state courts at the request of lawyer organizations, such as minimum legal fees, advertising bans, and restrictions on the efforts of nonlawyer organizations to secure affordable legal services for their members. (10) More recently, changes in the economy itself--including the lifting of trade barriers and revolutions in transportation and information technology--have led to an unprecedented growth in international commerce, accompanied by a "degree of competitive pressure unknown when markets were more narrow and balkanized." (11)As a result of these changes, U.S. lawyers seeking to participate in the new global economy must be prepared to provide the services that their clients need, in all parts of the world, at prices that are competitive with those offered by other legal service providers--lawyers and nonlawyers alike--who are themselves located throughout the world, including China, India, Russia, Brazil, and Dubai. (12) Morgan recognizes that U.S. lawyers are affected by international developments in lawyer regulation, including international trade agreements like the General Agreement on Trade and Services (GATS), which aims to break down barriers to the smooth flow of goods and services (including legal services) between the world's nations. (13) Among the other important developments Morgan cites are the recent reforms in lawyer regulation in the U.K. and Australia, (14) which permit not only nonlawyer participation in the management and ownership of law firms, but also the creation of entirely new business structures in which lawyers will collaborate with nonlawyers to provide a wide range of legal and nonlegal services. …
2 citations
Journal Article•
TL;DR: The role of private law firms in Russian legal education is discussed in this paper, where the authors compare the legal systems of China, Japan, ancient Greece and Rome, France, Spain, Italy, Russia, Germany, Austria-Hungary, and England.
Abstract: Introduction I. Julius Henry Cohen's Observations About the Russian Legal Professions II. Regulation of the Russian Legal Professions III. The Moscow Ethics Conference IV. The Role of Private Law Firms in Russian Legal Education. V. Reflections Conclusion INTRODUCTION In his 1916 work The Law: Business or Profession?, (1) Julius Henry Cohen describes an American legal system in which uniform standards for regulating, disciplining, and educating the profession are just beginning to be developed, albeit unevenly, (2) In discussing the differences between a business and a profession, he argues that a profession requires a uniform set of standards to guide it in matters of ethics, (3) as well as a system of rigorous legal education that includes a firm grounding in these ethical principles: Perhaps most surprising for a book written in the early twentieth century--long before the study of comparative law and "globalization" became a central focus of legal education and practice in the United States--Cohen devotes three full chapters to a historical discussion of and comparison among the legal systems of China, Japan, ancient Greece and Rome, France, Spain, Italy, Russia, Germany, Austria-Hungary, and England. (5) Cohen focuses in particular on Russia, writing for twelve pages about the long history of that country's legal professions. (6) He expresses optimism about the developments he sees unfolding at the time of his book, (7) but he also notes some important reservations. In this essay, I use Cohen's work as a starting point for an examination of some of the professional responsibility issues facing the Russian legal professions today. The essay draws upon my experience at a legal ethics conference in Moscow in November 2011. I participated in the four-day "Professional Responsibility and Legal Ethics School" as a Rule of Law Fellow for the Paul Klebnikov Fund. The class involved thirty students from several Russian universities and covered a variety of professional responsibility topics, including formation of the attorney-client relationship, confidentiality, conflict of interest, issues facing in-house counsel, and the tensions between the roles of officer of the court and advocate. Participating students were selected through a competitive essay contest. (8) The conference was a collaboration among Moscow State University, a human rights non-governmental organization (NGO) (PILnet), two law firms (DLA Piper and White & Case), and two corporations (Verizon and Microsoft). In addition to its involvement in this conference, White & Case teaches several classes at Russian universities, including a legal skills class which involves an ethics component. (9) The role of the private sector in ethics education in Russia challenges the conventional notion of a business-profession dichotomy. In effect, the private sector is actively engaged in helping to develop higher professional standards for lawyers. I will begin with a brief discussion of Julius Henry Cohen's observations about the Russian legal professions in The Law." Business or Profession ? I will then briefly describe the current state of regulation of the Russian legal professions, drawing upon the fascinating parallels with the early twentieth century Russian professions that Cohen describes in his book. I next discuss the Moscow ethics conference and legal skills class in more detail. Finally, I offer some reflections about the promise of this approach to legal education, as well as some concerns. I. JULIUS HENRY COHEN'S OBSERVATIONS ABOUT THE RUSSIAN LEGAL PROFESSIONS In The Law: Business or Profession?, Cohen explains that the major reforms affecting the Russian legal professions occurred in 1864, when a largely self-regulating Bar was established. (10) The core of this regulatory structure was membership in a "General Assembly" within each judicial district. (11) Despite the promise of this membership system, it had one important limitation--it did not apply to all lawyers. …
2 citations
Journal Article•
TL;DR: In this article, the authors evaluate the extent of influence of the type of professional in charge of compliance on two measures of compliance management behaviors of the businesses and the (substantive) way compliance is managed in practice.
Abstract: 4. Testing Hypothesis 1: Compliance Behavior of Respondent's Company In order to test Hypothesis 1, we evaluate the extent of influence of the type of professional in charge of compliance on two measures of compliance management behaviors of the businesses--implementation of (formal) compliance management systems and the (substantive) way compliance is managed in practice. (114) (a) Implementation of formal compliance system elements (Table 2): The questionnaire asked respondents to provide yes or no answers to a series of twenty-one very specific questions about whether their organization had implemented various procedures and actions expected to be part of a good (formal) compliance system. (115) The questions were later grouped into four different indices measuring the implementation of system elements concerning a) complaints handling, b) communication and training from the top of the organization to employees, c) management accountability and whistle-blowing, and d) compliance performance measurement and discipline. We use these four measures to look at four different dimensions of compliance system implementation (rather than one index of all the items) because businesses will not necessarily implement all potential aspects of compliance systems equally. (116) On the other hand, using these four indices rather than looking at variation in each of the twenty-one elements individually gives a clearer picture that takes into account the fact that there are different ways of performing the different functions of a compliance system. (117) (b) Compliance management in practice (Table 3): Implementation of a compliance system is aimed at putting formal structures in place that managers and employees can use to identify, prevent and correct compliance. (118) This should be helpful in influencing the way activities are managed in practice to improve actual compliance. But it is not enough on its own. (119) It is possible for an organization to implement the various elements of compliance management programs in a formulaic, formalistic, or purely symbolic way. (120) But the key to a compliance management program's impact on compliance will be the impact it has on everyday routines and practices. (121) Effective compliance management in practice means that management and employees identify compliance problems, communicate them to those who can fix them, and rectify them as a part of their everyday routines and practices. (122) The aim of compliance management programs is to ensure compliance by improving compliance management in practice. Again we constructed a single measure by adding together fourteen questions containing specific statements about what business management actually does in order to make sure they comply with the TPA (shown in Table 3). 5. Testing Hypothesis 2: Respondent Company's Risk Analyses Risk analysis requires determining both the magnitude of the loss and the probability that the loss will occur. (123) As there are multiple stakeholders who can sanction non-compliance, the salience of a stakeholder sanction must be determined in addition to the weight it is accorded. (124) As the regulator is reactive, (125) we add to the measure of legal detection of non-compliance, detection by stakeholders. (a) Respondents' Weighting of Losses from Different Stakeholders (Table 4): We measure the way the firm weighs the magnitude of loss for non-compliance resulting from sanctions from different stakeholders by a series of questions asking about how much they would worry about (i) economic losses in relation to various different stakeholders if their firm was accused of breaches of the TPA; and (ii) losses of respect and esteem in relation to various different stakeholders if their firm was accused of breaches of the TPA. These questions are all predicated on the hypothetical that the firm is "accused of breaches of the TPA one day in the future." In so doing, we attempt to segregate out the seriousness of the norm violation from the probability of it being detected. …
2 citations
Journal Article•
TL;DR: In this paper, Somin has written an incisive critique of the New York Court of Appeals' decisions in Kaur and Goldstein, the gist of which is that the Court did not do enough to stop "highly abusive blight condemnations".
Abstract: Professor Somin has written an incisive critique of the New York Court of Appeals’ decisions in Kaur and Goldstein, the gist of which is that the Court did not do enough to stop “highly abusive blight condemnations.” There are, however, two difficulties with the critique. First, as a matter of legalistic interpretation of the New York Constitution, the critique is not very persuasive. Second, as a matter of policy, Professor Somin’s proposal is unlikely to be adopted by any judge influenced by the same political process that lead to the condemnations that Professor Somin attacks.
2 citations
Journal Article•
TL;DR: In this paper, an actual experience defending a teenager accused of a serious crime where Bob Dylan grew up was described in the Minnesota Iron Range, where he was sent from the juvenile jail outside of Washington, D.C. to a secure treatment facility for serious juvenile offenders in the Iron Range.
Abstract: Introduction I. The Iron Range II. Black Kid in a White Institution III. East Coast Lawyer in a Northern Minnesota Courthouse Conclusion: What Would Dylan Think Oh, the age of the inmates I remember quite freely: No younger than twelve No older 'n seventeen Thrown in like bandits And cast off like criminals Inside the walls The walis of Red Wing (1) INTRODUCTION I was going to write about Bob Dylan's criminals. I had written an essay about Bruce Springsteen's criminals a few years back, (2) and believed this was a formula I might fairly easily replicate. But except for his most obvious songs--probably also the best-known ones--Dylan can be inscrutable. (3) And, unlike Springsteen, there are no albums in Dylan's extensive oeuvre (4) that focus on criminal or juvenile offenders. (5) Did I really want to sift through hundreds of Dylan songs--or worse, read dozens of Dylan biographies (6) and interviews (7)--to come up with a coherent theory of his philosophy on crime and punishment? (8) I decided instead to write about an actual experience defending a teenager accused of a serious crime where Bob Dylan grew up--the Minnesota Iron Range. In order to protect the young man's privacy, I will not divulge the actual time period of the case. Likewise, I have altered details about his life and the charges he was facing and changed his name. (9) I will call him Jamal. Things did not go well for Jamal. Though a child when he was sent from the juvenile jail outside of Washington, D.C. to a secure treatment facility for serious juvenile offenders in the Iron Range, Jamal was ultimately tried and convicted as an adult and sentenced to many years in prison. He is behind bars as I write, and may well die there. This is as much an elegy as an essay. I. THE IRON RANGE From the dirty old mess hall You march to the brick wall Too weary to talk And too tired to sing Oh, it's all afternoon You remember your hometown Inside the walls The walls of Red Wing Oh, the gates are cast iron And the walls are barbed wire Stay far from the fence With the 'lectricity sting And it's keep down your head And stay in your number Inside the walls The walls of Red Wing (10) The northeast section of Minnesota known as the Iron Range is a bleak and barren place. Everything about it feels harsh: the dusty red earth, the granite boulders, the extreme temperatures. (11) The long stretches of road are broken up only by abandoned mine sites and random billboards advertising all-you-can-eat buffets. These sites--now nothing more than massive pits--were once forests, hills, swamps, and lakes. (12) When you come upon the once-thriving towns and cities of Aurora, Buhl, Chisholm, Eveleth, Duluth, and Hibbing, you wonder how residents make a living these days. Things look pretty down-at-the-heels. Nothing seems to have taken the place of the now defunct steel industry, except for a few taconite treatment plants processing the low-grade iron ore that was once considered waste. (13) There aren't many people on the streets of these towns. School, hospital, and municipal parking lots have plenty of unoccupied spaces. There are some touristy places--the United States Hockey Hall of Fame in Eveleth (featuring the world's largest authentic hockey stick, measuring 107 feet), the Minnesota Museum of Mining in Chisholm, the Wellstone Memorial in Eveleth--and a handful of motels and restaurants, but it is hardly a tourist destination. The only retail shopping center in the area is the Thunderbird Mall in Virginia, Minnesota. Suffice it to say, it is not the Mall of America. "The Iron Range," as locals call it, was once a bustling place, full of immigrants and enterprise. The land was rich in natural resources--iron ore in particular. Mining and the industry it spawned drew wagonloads of hard-bitten, hard-working settlers from Finland, Slovenia, Italy, Sweden, Croatia, Serbia, and Norway at the turn of the twentieth century. …
2 citations
Journal Article•
TL;DR: In this article, the authors present an analysis of the port authority's cargo-based fees in the context of the On Time Act of 2009 and the On-Time Act of 2013.
Abstract: Introduction I. Constitutional and Statutory Restrictions on Port Operations A. The Tonnage Clause B. The Shipping Act C. Plaquemines. Courts' Exacting Standard Under the Shipping Act II. Addressing the Funding Problem A. Congressional Proposals 1. H.R. 526: ON TIME Act 2. H.R. 2355: MOVEMENT Act of 2009 3. H.R. 2707: National Freight Mobility Infrastructure Fund 4. Congressional Analysis B. National Infrastructure Bank C. Structured User Fees 1. PierPASS 2. Security-Related Fees 3. Clean Truck Program D. Port Authority Cargo-Based Fees 1. Ports of Los Angeles/Long Beach--Infrastructure Fee 2. Port Authority of New York & New Jersey--Cargo Facility Charge 3. Analysis of Cargo-Based Fee Validity III. Proposed Reform Conclusion INTRODUCTION "[W]e can put Americans to work today building the infrastructure of tomorrow. From the first railroads to the interstate highway system, our nation has always been built to compete." (1) "Our infrastructure used to be the best, but our lead has slipped.... [W]hen our own engineers graded our nation's infrastructure, they gave us a D.'" (2) President Barack Obama's State of the Union Addresses in 2010 and 2011 focused on the need to rebuild trade-related infrastructure as an aspect of revitalizing the United States' economic condition. (3) American seaports are a central component of the President's discussion. (4) Port (5)-related activities contribute more than $649 billion annually to the U.S. Gross Domestic Product, sustain more than thirteen million jobs, and contribute over $212 billion annually in federal, state, and local taxes. (6) United States seaports--much like the rest of the United States' infrastructure--are in desperate need of improvement. (7) Federal, state, and industry actors agree that freight rail and roadways servicing seaports require significant repair and expansion. (8) What they cannot agree upon, however, is how to generate the funds necessary to meet current and future capacity needs. (9) Modern container ports (10) have witnessed a sea change in how global trade is conducted. (11) From 1990 to 2007, trade in containerized cargo--i.e., cargo transported in a truck trailer body that can be detached from the frame of the truck for loading into a vessel or rail car (12)--in the United States' four largest container ports increased as follows: Ports of New York and New Jersey (279%), Port of Los Angeles (395%), Port of Long Beach (456%), and Port of Savannah (621%). (13) Driven by the surging market in containerized trade, the size of ships calling on U.S. ports has grown from 4500 twenty-foot equivalent units ("TEUs") (14) to 12,000 TEUs, (15) which has increased the number of trucks and miles of freight rail necessary to transport cargo from seaports to interior manufacturing and distribution points. (16) Consequently, many roadways have become inadequate, (17) resulting in roadway congestion, (18) increased fuel emissions, (19) and related environmental and public health concerns. (20) Additionally, East Coast ports are uniquely concerned with port-related capacity and infrastructure issues. (21) Historically, the largest ships transporting containerized cargo have been unable to pass through the Panama Canal in calling on East Coast ports. (22) This is about to change. The Panama Canal is currently being expanded to accommodate ships carrying up to 12,000 TEUs. (23) The anticipated completion of the Panama Canal Expansion Project in 2014 has forced ports on the eastern seaboard to dredge channels deeper to accommodate the larger ships (24) and expand intermodal facilities (25) to transport containerized cargo quicker and more efficiently. (26) Containerized cargo is here to stay, but what is less certain is how the United States will fund new infrastructure and development to accommodate its proliferation within the shipping industry. …
Journal Article•
TL;DR: A number of participatory frameworks exist from deliberative democracy processes to civic engagement strategies as discussed by the authors, including participative democracy and collaborative governance, which is preferable for local government decision making.
Abstract: II. DELIBERATIVE DEMOCRACY: PARTICIPATORY GOVERNANCE AND VEHICLES FOR CIVIL DISCOURSE AS AN ALTERNATIVE FOR MUNICIPAL FISCAL DECISION MAKING The preceding Part explained the challenges facing local government officials with respect to making difficult fiscal budgeting decisions, especially in the context of the current economy and the present environment of unfunded mandates, fixed government costs, dwindling revenues and now a property tax cap. As documented above, municipal officials have been trying since the late 1970s to undo many unfunded mandates, meeting with only minor periodic relief. Required expenditures, including payments pursuant to public sector collective bargaining agreements and public pension fund contributions, account for a significant percentage of municipal budgets. (181) Many required local expenditures can be traced to federal and state statutes and directives, and therefore do not fall within the exclusive purview of each individual municipality to control. (182) Further, absent a constitutional amendment to allow for initiatives and referenda in New York, local residents have little power to force state legislators to provide relief from these fiscal requirements. While municipal officials and advocates continue the important work of educating federal and state lawmakers about the costly impacts of these mandates and requirements on local governments, the current fiscal crisis presents the perfect storm to positively engage members of the public in taking greater ownership and interest in fiscal issues, and in providing meaningful input into the local budgeting process. A number of participatory frameworks exist from deliberative democracy processes to civic engagement strategies. This Part of the Article addresses different models that offer potential opportunities for the public to provide meaningful input and articulate preferences and priorities when it comes to the allocation of limited dollars to support local government service delivery. The most identifiable method of public engagement is the public hearing. (183) Typically, however, state enabling statutes simply require one public hearing prior to local legislative decision making. (184) For example, as part of the town budgeting process in New York, the budget is drafted by the budget officer who then turns the tentative budget into the town clerk, after which the town board reviews the budget and modifies it as needed. (185) The town board then conducts a public hearing where town residents may voice their concerns. (186) After the public hearing occurs, the town board may change the preliminary budget further, but state law does not require another public hearing. (187) The local government, however, may prescribe additional requirements. (188) The required public hearing is not an effective method of public engagement for a number of reasons. First, hearings typically do not promote dialogue between members of the public and decision makers because to satisfy the law, legislators need only provide an opportunity for the public to speak. The legislators need not respond. Next, members of the public speak to the decision making body, but they do not have the opportunity to engage each other in conversation. Furthermore, members of the public typically have only a limited amount of time and to provide comments, and individuals are often prevented from speaking more than once during the hearing. These limitations mean that members of the public cannot respond to other comments. Public hearings can leave members of a community dissatisfied and frustrated, feeling disconnected and lacking ownership in the ultimate decision. A. Deliberative Democracy In the participatory governance model, however, active involvement of residents in government decision making which may include deliberative democracy and collaborative governance is preferable. (189) It is when the vote is taken from the politicians and placed into the "public sphere" that accountability and justification will emerge within government decision making. …
Journal Article•
TL;DR: In this paper, the authors discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts, and evaluate the conditions that lead to overturning a Supreme Court case.
Abstract: Introduction I. The Power of Dissenting Opinions II. Heller A. Majority Opinion B. Justice Stevens's Dissenting Opinion III. Landmark Cases from Future, Wiser Courts A. From Racism to Equality: Plessy and Brown 1. Plessy v. Ferguson 2. Brown v. Board of Education B. From Repression to Sexual Freedom: Bowers and Lawrence 1. Bowers v. Hardwick 2. Lawrence v. Texas C. Other Illustrative Cases from Future Courts IV. Factors Leading to a Decision Being Overturned A. Retrograde Decision in Face of Strong Social Movement B. Strength and Guidance of Prior Dissent C. Composition of the Court at the Time of Decision D. The Degree of Consensus Among the Court V. Blueprint for Overturning Heller Conclusion INTRODUCTION Justice John Paul Stevens recently bantered to Time Magazine that, if he could fix one thing about the American judicial system, it would be to make all of his dissents into majority opinions. (1) Banter aside, he stressed that if he could choose only one of his dissents to turn into a majority opinion, it would be his dissent in District of Columbia v. Heller. (2) Specifically, he said that he "would change the interpretation of the Second Amendment. The Court got that quite wrong. Gun policy should be handled by legislatures and by states, not by federal judges appointed for life." (3) With that same hope, it is rumored that, during a lecture to the Harvard Club of Washington, D.C., Justice Ruth Bader Ginsburg expressed her strong desire that Justice Stevens' dissenting opinion in Heller will become the majority opinion of "a future, wiser Court." (4) Heller is still the subject of national debate and is one of the more controversial decisions from the Roberts Court. The Court issued its pivotal 5-4 ruling on June 26, 2008, (5) finding for the first time that the Second Amendment conferred an individual right to posses firearms unrelated to service in a well-regulated militia. (6) In its analysis, the Court concluded that "central" to the Second Amendment is the natural right to self-defense, and by extension, the right to possess handguns for self-defense within the home. (7) In finding so, the Court struck down a decades-old D.C. law that banned handgun possession and required that firearms in the home be stored safely. (8) Justice Stevens issued one of two dissenting opinions. (9) In his dissent, he argued passionately that the majority rendered "a dramatic upheaval in the law" and decided the case on "a strained and unpersuasive reading" of the Second Amendment. (10) He emphasized that the Second Amendment does not contain any "statement of purpose related to the right to use firearms for hunting or personal self-defense." (11) He also stressed that the Court's ruling overturned long-standing precedent announced in United States v. Miller, which held that the "obvious purpose" of the Second Amendment was to "assure the continuation and render possible the effectiveness of" the state militia. (12) The decision in Heller raised the obvious question of its potential impact on existing gun control laws and whether they will stand up to a Second Amendment challenge. (13) But few have questioned whether a "future, wiser Court" will simply reverse Heller. Our Article provides a blueprint for how Justice Ginsberg's hope may be realized. In Part I, we discuss the influence and guidance that dissenting opinions may provide to future, wiser Courts. In Part II, we analyze Heller, paying particular attention to the tensions that the conflicting majority and dissenting opinions raise. In Part III, we analyze landmark cases from future, wiser Courts that overturned stale or decidedly wrong precedent. In Part IV, we draw from these examples in order to evaluate the conditions that lead to overturning a Supreme Court case. Finally, in Part V, we apply the framework to Hellerand suggest possible ways to author its reversal. …
Journal Article•
TL;DR: For example, this paper pointed out that poverty law is not a core part of a traditional legal education, and that it has no standard, agreed-upon curriculum, and its glory days appear to have come and gone.
Abstract: I doubt that most professors of poverty law would challenge Professor Amy Wax’s opening observations: “poverty law is not a core part of a traditional legal education”; “it has no standard, agreed-upon curriculum”; and its glory days appear to have come and gone.1 There is room, to be sure, for disagreement about the actual marginality of poverty law in the twenty-first century.2 And personally, I would quibble with
Journal Article•
TL;DR: In 2009, Bob Dylan was taken into custody by police in Long Branch, New Jersey, after complaints from residents that he was "suspicious" and perhaps "homeless" as discussed by the authors.
Abstract: This Article discusses an encounter Bob Dylan had with the law and its meaning in the context of the social constructions of mental disability, in general, and on autism in particular. I do not, need not, and should not speculate on Dylan's autism status--something few people could possibly know and that is a private matter. On July 23, 2009, Bob Dylan was taken into custody by police in Long Branch, New Jersey, after complaints from residents that he was "suspicious" and perhaps "homeless." (1) According to arresting officer, Kristie Buble (twenty-two years old at the time of the incident), "We see a lot of people on our beat, and I wasn't sure if he came from one of our hospitals or something." (2) Buble's remark implies that Dylan had a mental disability, rather than a physical disease. She continued, however, "He was acting very suspicious.... Not delusional, just suspicious. You know, it was pouring rain and everything." (3) While Buble claimed later to have known who Bob Dylan was and simply not to have recognized him from photos she had seen, one of her colleagues offered a different account. After Buble asked Dylan for identification, which he was not carrying: He assumed she would at least recognise [sic] the name if not the face. But she ordered him into the back of her car and took him to his hotel to check his story. Then she radioed her older colleagues at the police station to ask if anyone knew who Bob Dylan was. "I'm afraid we all fell about laughing," said Craig Spencer, a senior officer in Long Branch, New Jersey. "If it was me, I'd have been demanding his autograph, not his ID. The poor woman has taken rather a lot of abuse from us. I offered to bring in some of my Dylan albums. Unfortunately, she doesn't know what vinyl is either." (4) Race was also a factor: He was strolling along a residential street in the Latin Quarter of the seaside town when police received a call reporting an "eccentric looking old man".... It was an odd request because it was mid-afternoon, but it's an ethnic Latin area and the residents felt the man didn't fit in. Let's just say he looked eccentric. (5) I would be remiss not to note that someone was arrested and commanded to produce identification because he did not look Hispanic. It is just too funny. Dylan was driven to his hotel, identified, and released without charges being filed. Many reporters, readers, and commentators on the numerous online accounts of this incident were outraged that anyone could be arrested and asked for identification simply for taking a walk in the rain and being unusual or even shabby looking. It seems that Supreme Court Justice Potter Stewart would have concurred. (6) In a landmark decision concerning the forced confinement of the mentally disabled, Justice Stewart wrote for a unanimous court: May the State fence in the harmless mentally ill solely to save its citizens from exposure to those whose ways are different? One might as well ask if the State, to avoid public unease, could incarcerate all who are physically unattractive or socially eccentric. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty. (7) This story chronicles an important Dylan narrative that has persisted over the years, though mainly through oral tradition. Let me begin, though, with what this narrative is not. Many authors working on Dylan pursue themes that cast Dylan as their kindred spirit or at least someone with common interests. For Seth Rogovoy, Dylan is a Jewish sage; (8) for David Pichaske, Dylan is a Midwesterner; (9) and for Steven Heine, Dylan is a Zen master. (10) Even Sean Wilentz sees Dylan as a New Yorker and fellow student of history. (11) These authors also tend to be "Dylanesque" by using language far more cleverly than their projects demand. …
Journal Article•
TL;DR: In this article, the authors focus on three current professionalism challenges in the U.S. legal profession: (i) the problem of neglect, poor client communication, and poor management of client funds; (ii) the need to improve the ethical infrastructures in practice settings to enhance both routine practice and ethical decision-making when lawyers confront ethical challenges; and (iii) the challenge of providing legal services to the poor and working class.
Abstract: Introduction I. Problem One: The Disciplinary Perspective--Neglect, Poor Client Communication and Improper Management of Client Funds II. Problem Two: Ethical Infrastructure and Improving Business Systems A. Regulatory System Incentives to Create Ethical Infrastructure B. Improved Decision-Making C. Market and Competitive Forces That Encourage Ethical Infrastructure III. Problem Three: The Inability to Match the Surplus of Lawyers with Unmet Legal Needs Conclusion: The Law-Business Dichotomy Revisited I'm not accusing lawyers of having the morals of the marketplace. (1) INTRODUCTION In 1916, Julius Henry Cohen produced a readable and thoughtful book with the provocative title of The Law: Business or Profession? (2) He describes a legal profession and society in flux, confronted with some very familiar challenges, including the pressures of the market, the increased specialization of lawyers, and changing social conditions such as a large influx of immigrants. (3) The facts he marshals could be rewoven to tell many different stories. (4) Cohen chose to flame a dichotomy that has continued for over 100 years: is law a business or a profession? In his 1916 work, Cohen gives some credit to businesses that strive to enhance the professionalism and ethics of theft business enterprises, (5) but it becomes clear that business is the lower standard of the marketplace, less constrained--or unconstrained--by other social or professional concerns. (6) For the purposes of this Article, I will use the word "professionalism" to capture these additional social and professional concerns, the particular obligations that lawyers owe to their clients and society: fiduciary obligations to clients, adherence to core values such as confidentiality and maintaining confidences, and an understanding of the lawyer's role to both support and improve our system of justice and to use best efforts to address unmet legal needs. Unfortunately, the rhetorical device of framing the question as "profession versus business," thereby characterizing the two as inherently inconsistent concepts, seriously impairs our ability to address some of the central challenges to lawyers fulfilling these important values and indeed contributes to these failings. This framing of profession versus business disparages the business aspects of legal services that are essential to implementing our professional obligations. I will focus on three current professionalism challenges in the U.S. legal profession: (i) the problem of neglect, poor client communication, and poor management of client funds; (ii) the need to improve the ethical infrastructures in practice settings to enhance both routine practice and ethical decision-making when lawyers confront ethical challenges; and (iii) the challenge of providing legal services to the poor and working class. For each, it turns out that improving adherence to core values requires not just training lawyers to internalize a model of professionalism, (7) and a continuing commitment to self-regulation in some form, but also implementing improved business practices. In other words, a significant part of our failures as a profession are business failures. These failures occur at the individual, firm, and market levels, and at each level we need to consider the business structures that enhance or impair improved practices. Business--good business--is not the enemy of lawyers but an important tool to implement our service profession. (8) We need to have a sharper and richer discussion of the business perspective of professional practice, without apologies, if we want to improve the professional practice of U.S. lawyers. (9) In addition, a stronger interdisciplinary conversation with the field of business ethics would help break down the stereotype of business as an amoral, or immoral, enterprise. We must envision business as both a partner and a tool to achieve our larger social goals. …
Journal Article•
TL;DR: In this paper, the authors examine the process of suspension, disbarment, and readmission in light of some twentieth and twenty-first century scientific knowledge and conclude that despite remarkable advances in all aspects of cognitive and social science, courts proceed much the way they did in Cohen's day--they rely on aphorisms and intuition to decide whether lawyers are ethically fit to practice.
Abstract: State courts' approach to lawyer admissions and discipline has not changed fundamentally in the past century. Courts still place faith in the idea that "moral character" is a stable trait that reliably predicts whether an individual will be honest in any given situation. Although research in neuroscience, cognitive science, psychiatry, research psychology, and behavioral economics (collectively "cognitive and social science") has influenced prevailing concepts of personality and trustworthiness, courts to date have not considered whether they might change or refine their approach to "moral character" in light of scientific insights. This Article examines whether courts should reevaluate how they decide whether to allow lawyers to return to law practice after suspension or disbarment for impermissibly deceptive conduct. The Article describes courts' traditional approach, discusses some of the relevant scientific literature, and suggests some possible reasons why courts appear not to have considered such scientific insights. The Article concludes with some thoughts about the utility of the role of scientific research in the disciplinary process. Introduction I. A Century of Professional Discipline: Deviance and Rehabilitation II. The Attorney Disciplinary System: Assumptions, Objectives, and Decision-Making III. Cognitive and Social Science Insights into Lawyer Dishonesty IV. Can Science Improve Judicial Decisions about Reinstatement? V. Why Does the Traditional Approach Persist Without Regard to Potential Social Science Insights? INTRODUCTION Prior to the conference on Julius Henry Cohen's book, The Law: Business or Profession?, the authors of this Article began a discussion about lawyers who commit serious wrongdoing resulting in suspension or disbarment. Many of those lawyers sought readmission at some later point and we wondered whether those lawyers were demonstrably better people by the time they sought readmission to the practice. We were particularly interested in those lawyers who engaged in serious deceit: impulsively stealing clients' money, swindling people in investment schemes, or profoundly deceiving clients about fundamental aspects of cases (such as whether a complaint was even filed). We did not focus on lawyers suffering from disabling depression or wrestling with a substance disorder that may have explained their misbehavior, but on those whose deceptive behavior was not readily explicable, perhaps not even to themselves. Our first inquiry was why lawyers jeopardized their livelihoods by engaging in serious dishonesty. Were these bad-acting lawyers always corrupt, or was their dishonesty anomalous? The research led us to consider whether honesty is a relatively stable personality trait, as many presume, or whether generally honest individuals are capable of serious dishonesty. We also wondered how courts decide whether lawyers suspended or disbarred for dishonest acts are worthy to return to practice. We were not confident that courts had a solid grip on either why people committed such deceptive acts or whether they were reformed. These conversations were the antecedents for this Article, which was prepared in connection with a conference on Julius Henry Cohen's 1916 book, The Law: Business or Profession? Cohen's book provides a window into how courts, assisted by bar associations, handled misconduct and discipline in the early twentieth century. It turns out that nearly one hundred years later, despite remarkable advances in all aspects of cognitive and social science, courts proceed much the way they did in Cohen's day--they rely on aphorisms and intuition to decide whether lawyers are ethically fit to practice. In this Article, we examine the process of suspension, disbarment, and readmission in light of some twentieth and twenty-first century scientific knowledge. We begin by looking at professional discipline a century ago, during Cohen's time. …
Journal Article•
TL;DR: For instance, the first big "folk music" hit was Tom Dooley, a story told by a convict named Tom Dullah of why he must hang in the morning as discussed by the authors.
Abstract: I want to begin by thanking a great University for its contribution to my love of music. When I was a fifteen-year-old kid and a student at Regis High School, the Jesuits did not think that the school day ended at 3:00 PM. Instead, they insisted that we drink from the astonishing cultural fountain that was and is New York City. It was at Fordham that I saw my first Shakespearean play and my first opera, presented by two companies that were amateur in name only. It makes sense that, fifty years later, I return to Fordham to talk about music. I cannot pretend that what I am about to say is history supported by the traditional footnotes. Let it be, instead, reminiscences of an old man who had the joy of being a New York kid when an old American music form was transformed by the extraordinary efforts of a group of musicians who saw a new creative force that they thought could cause revolutionary social change. Much of it happened right under my nose in Greenwich Village, close to where our Italian-American family made its first home in, what was then, Little Italy. Let me begin with a strange meeting between a desperately ill man, named Woody Guthrie, and a kid from Minnesota, then named Robert Zimmerman. Guthrie was near death from a genetic disease that had enfeebled him, and Zimmerman had come on a sacred pilgrimage to see him in a state hospital in New Jersey. What transpired between them is not really known, but it was such a transformative moment that a book for young children has now been written about it. (1) The world knows that the kid named Robert Zimmerman would change his name to Bob Dylan. With the passage of time, the significance of the life of the other man has faded, but its influence on Dylan, and the rest of the generation that sang "folk music" in the 1960s is incalculable. Indeed, Dylan wrote a song, Song to Woody, that expressed his admiration for Guthrie in hero-worship terms. Guthrie's music, "folk music," finds its roots in the music that emerged from the experience of rural America in its hymns, field hollers, and work songs. It is the antithesis of the slick Tin Pan Alley or Broadway song, with their orchestrations and catch-line choruses with simple rhymes--"If you knew Susie, like I knew Susie." Instead, folk music is either a variation on the sort of hymn one would hear at a church or prayer meeting--captured so perfectly by the music in the film O Brother, Where Art Thou?--or pure narrative. If it was the latter, it was a simple melody based on a few chords in which the singer told a story. Thus, the first big "folk music" hit was Tom Dooley, a story told by a convict named Tom Dullah of why he must hang in the morning. The tradition is, of course, an ancient one stretching all the way back to the French troubadours who sang of courtly love in medieval France. In the American tradition, however, it was not the songs of the court but of the farm, of the small town with a small church where most folks earned a meager living from an often unforgiving earth. The singer of the song is the wandering minstrel who moves from town to town like the wind, never staying anywhere long enough to be rooted in that soil. In Dylan's tribute to Guthrie, Dylan starts by saying that he is a thousand miles from his home, and ends by announcing that he is leaving tomorrow. To be faithful to the tradition, the singer can never stay; he has to move on down the line to remain faithful to his calling. Guthrie is the archetype: he was incapable of remaining in one place and his life was pure wanderlust. He drank too much, was rarely faithful, and often failed to support his family. Indeed, he had contempt for making money; he did not bother to copyright a single one of his hundreds of songs, although those royalties could have helped his family. Yet, while his life was perhaps not admirable, his music captured the narrative tradition of the wandering American minstrel. …
Journal Article•
TL;DR: Martin this paper summarized how the Supreme Court has interpreted the Second Amendment, most importantly focusing on the 2008 and 2010 decisions in District of Columbia v. Helle and McDonald v. City of Chicago.
Abstract: Introduction I. The Text of the Second Amendment II. Supreme Court Decisions Analyzing the Second Amendment III. The Supreme Court's Decision in District of Columbia v. Heller IV. The Supreme Court's Decision in McDonald v. City of Chicago V. Issues Being Litigated Post-Heller and Post-McDonald Conclusion INTRODUCTION Thank you, Dean Martin, and thank you to the members of the Fordham Urban Law Journal for putting together this event and giving me the opportunity to speak to you all today. What I would like to do in the time I have is to try and provide a bit of background for some of the debate on the Second Amendment that you will hear later today. To that end, I am going to try to summarize how the Supreme Court has interpreted the Second Amendment, most importantly focusing on the 2008 and 2010 decisions in District of Columbia v. Helle (1) and McDonald v. City of Chicago. (2) Please know that I speak today not on behalf of the Department of Justice or the United States Attorney's Office, and any opinions or beliefs that I express are my own and not necessarily those of the Department. I. THE TEXT OF THE SECOND AMENDMENT A natural place to start is with the text of the amendment itself. The Second Amendment reads: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." (3) The amendment contains two parts: the prefatory language, "A well regulated Militia, being necessary to the security of a flee State," and the operative part, "the right of the people to keep and bear Arms, shall not be infringed." How to interpret the relationship between the prefatory language and the operative language is the cornerstone of the debate in the Supreme Court's 2008 decision in District of Columbia v. Heller. (4) Does the operative language, "the right of the people to keep and bear arms, shall not be infringed," only apply when arms are kept or carried in connection with a military purpose? Or does the prefatory language concerning the necessity of a militia merely provide the backdrop against which the Founders felt it necessary to codify an individual right of "the people" to keep and bear arms--whether or not the use of arms is related to military use? The Supreme Court did not address this issue of linguistics and the Founders' intent until the Heller decision in 2008. Commentators on both sides of this issue have argued that the Court's silence on this topic suggests that one way or the other, before Heller there really was no serious debate about the meaning of the Second Amendment. Depending on your viewpoint, the Court in Heller, in finding that the Second Amendment protects an individual's right to bear arms in non-military conduct, either affirmed a well-accepted principle or, on the other hand, expanded the scope of the right under the Second Amendment, despite the plain language concerning the militia, to create a constitutionally protected individual right to bear arms when such a constitutional right had never existed before nor was intended to exist by the Founders. II. SUPREME COURT DECISIONS ANALYZING THE SECOND AMENDMENT Interestingly, before Heller and McDonald, the Second Amendment rarely was a source of much interest for the Supreme Court. Indeed, prior to the 2008 Heller decision, the meaning and scope of the Second Amendment seems only to have been the focus of three Supreme Court decisions. (5) I will discuss each of those briefly. First, in 1876, the Supreme Court in United States v. Cruikshank, (6) a few years after passage of the Fourteenth Amendment, addressed whether the Second Amendment applies by its own force to anyone other than the Federal Government. (7) The Court concluded that the Second Amendment means no more than that the right to keep and bear arms shall not be infringed by Congress, and that states were free to protect or restrict that right under their police powers. …
Journal Article•
TL;DR: In the 1970s, Bob Dylan was one of the first artists to write a song about the failure of the law as mentioned in this paper, which he called "Bad Judge Ballads" (Bad Judge's Ballads).
Abstract: Introduction I. Dylan's Traditional Songs II. The Finger-Pointing Songs A. The Ballad of Donald White B. The Lonesome Death of Hattie Carroll C. Hurricane III. Bad Judge Ballads A. Percy's Song B. Talkin' Bear Mountain Picnic Massacre Blues (how I finally found some "true facts" and a source for a song) Talk'n Fordham University Law School Bob Dylan and the Law Conference Blues INTRODUCTION I read in the paper that the former governor's son shot his ex-girlfriend. (1) She's dead. She had a restraining order, but the law didn't work. (2) Another story says that Rand Paul thinks mountain-top removal just needs some rebranding) "I don't think anybody's going to be missing a hill or two here or there," he says? That reminds me: did you know that the mountains on the back of the West Virginia quarter may be blown up? One was already being mined illegally when permission was granted for it to be destroyed. (5) Seems like there is a lot of law, but it's not working. On another page it says, "West Virginia Mine Methane Blast Worst in a Quarter Century"! (6) What happened to the law? (I hope to connect this up. Be patient.) I'm not a "Dylanologist," or even a devotee. (7) I guess I was invited because I've written a lot of articles dealing with the "true facts" behind Southern murder ballads. You could say that these articles are in the "true crime" genre. (8) Since a tiny bit of my work has dealt with the "true facts" behind old ballads, I hoped to find some Dylan songs I could trace back to "true crime" to relate Dylan to the law in that way. Then, I tried to see what he had to say about the law in his songs. Here, I will look at Ballad of Hollis Brown, (9) Ballad of Donald White, (10) The Lonesome Death of Hattie Carroll, (11) Hurricane, (12) and Percy's Song. (13) I am throwing in Talking Bear Mountain Picnic Massacre Blues (14) too, just for fun. I found a copy of the news story that supposedly inspired it. Dylan was not concerned with "true facts" as such (as I will point out in my comments, some of his most powerful and effective songs dispensed with "true facts" to tell the story he wanted to tell). In fact, in his early days, after reading the paper or watching a television show, he was supposedly inspired to write some bleak, depressing songs that touched on the failure of the system, and the failure of the law. He started out being enamored of Woody Guthrie, so it is not surprising that he would have sung and written songs about a seemingly failed system and ruined lives. (15) We believe in the rule of law, but a lot of times the law does not work very well. When Bob Dylan set out for New York, there were a lot of failures of the law to sing about. There still are. I grew up in the fifties and sixties, and I remember the "folk revival." "My friends and I spent many an afternoon" (16) trying to learn to play the banjo and guitar using the Pete Seeger books. We all thought Dylan was cool. I still remember the girl who tried to pass off the It Ain't Me Babe (17) lyrics to our aging English teacher as her original poetry. We ratted her out! Anyway, as we drifted into the late sixties, and I drifted off to Vietnam, I put away such things. (18) The electrified Dylan was not my cup of tea, or maybe I was in a foreign country when all that was going on. I did not know that Dylan had been born again until I started catching up for this conference, and I did not know about the album with the Santa song. (19) I will have nothing further to say about the album with the Santa song. I guess I got back into the old music that Greil Marcus and others claim inspired Dylan when I married my wife, Virginia, who is from southwest Virginia. Her father was a coal miner, and she grew up in a "coal camp" called Clinchco, (20) in Virginia. She went to Berea College at the age of seventeen, with two dollars in her pocket. Her mother was dying of cancer, and her father, who only had one lung left because of the "black lung," was in a tuberculosis sanitarium. …