Loyola University of Chicago law journal. Loyola University Chicago. School of Law最新文献

{"title":"Over the Borderline--A Review of Margaret Price's Mad at School: Rhetorics of Mental Disability and Academic Life","authors":"Gregory M. Duhl","doi":"10.2139/SSRN.2126850","DOIUrl":"https://doi.org/10.2139/SSRN.2126850","url":null,"abstract":"This essay is about “madness” in higher education. In Mad at School: Rhetorics of Mental Disability in Academic Life, Professor Price analyzes the rhetoric and discourse surrounding mental disabilities in academia. In this essay, I place Price’s work in a legal context, suggesting why the Americans with Disabilities Act fails those with mental illness and why reform is needed to protect them. My own narrative as a law professor with Borderline Personality Disorder frames my critique. Narratives of mental illness are important because they help connect those who are often stigmatized and isolated due to mental illness and provide a framework for them to overcome barriers limiting their equal participation in academic life.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"48 1","pages":"771"},"PeriodicalIF":0.0,"publicationDate":"2013-03-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79933122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Origins of the Privileges and Immunities of State Citizenship Under Article IV","authors":"S. Jay","doi":"10.2139/SSRN.1853777","DOIUrl":"https://doi.org/10.2139/SSRN.1853777","url":null,"abstract":"The Privileges and Immunities Clause of Article IV provides: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” According to Alexander Hamilton, the clause was “the basis of the union,” which may seem odd given its minor significance in modern constitutional law. Part of the reason for its relative unimportance today is the development of constitutional doctrines unforeseeable in the eighteenth century: the invention of the Dormant Commerce Clause and the enactment of the Fourteenth Amendment, which prohibit much of the interstate discrimination that Article IV’s clause was intended to prevent. However, a major explanation for the unseemly fate of the clause lies with early judges who were not faithful to its original purpose. Courts and scholars have perpetuated their errors. The clause had one overriding purpose: to assure that Americans were not treated as aliens when in states away from their place of citizenship. It was intended to preserve the benefits that Americans had as British subjects, to be afforded the same as local residents anywhere in the country. The advantages of citizenship (or being a subject) were many, ranging from the protection of life, limb, and property to commercial advantages and access to public resources. The multifarious meanings of “privileges” and “immunities” in eighteenth-century writings show that they encompassed every kind of advantage that came from citizenship. This is why Hamilton could claim the clause was “the basis of the union”. There is compelling reason to conclude that the Privileges and Immunities Clause was intended to guarantee Americans traveling or temporarily residing in another state, or doing business or owning property outside their home states, that they would be treated exactly like the local people, without exception, and regardless of whether the right was recognized by other states, including their own. No court and no scholar has ever reached this conclusion, but it is amply supported by the evidence presented here.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"4 1","pages":"1"},"PeriodicalIF":0.0,"publicationDate":"2013-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86605797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Statutory Genres: Substance, Procedure, Jurisdiction","authors":"Karen Petroski","doi":"10.2139/SSRN.2008286","DOIUrl":"https://doi.org/10.2139/SSRN.2008286","url":null,"abstract":"To decide many cases, courts need to characterize some of the legal rules involved, placing each one in a specific doctrinal category to identify the rule’s effects on the litigation. The consequences of characterization decisions can be profound, but the grounds for making and justifying them are often left unstated. This article offers the first systematic comparison of two types of legal characterization that have figured prominently in major recent Supreme Court decisions: the distinction between substantive and procedural rules or statutes, a distinction federal courts make in several contexts; and the distinction between jurisdictional and nonjurisdictional rules, especially those relating to litigation filing requirements. Doctrine on the latter distinction has coalesced to win surprising consensus in recent years, while issues relating to the former distinction have continued to divide the Court. The article shows how, despite these differences, doctrine in each area is an example of the same activity — identification of the “genre” or kind to which particular legal texts belong — and therefore also an aspect of legal interpretation, although the Court has never explicitly recognized as much. The analysis helps to explain the relative success of recent jurisdictional-characterization doctrine, compared to Erie doctrine, and indicates specific new lines of development for both doctrinal areas. More broadly, the comparison suggests why purely formalist approaches to legal characterization — insistence on bright-line rules for distinguishing other types of legal rules — are both perennially attractive and inevitably inadequate.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"74 1","pages":"189"},"PeriodicalIF":0.0,"publicationDate":"2012-02-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88569114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Re-Thinking Illegal Entry and Re-Entry","authors":"Doug Keller","doi":"10.2139/SSRN.1884354","DOIUrl":"https://doi.org/10.2139/SSRN.1884354","url":null,"abstract":"This Article traces the history of two federal immigration crimes that have long supplemented the civil immigration system and now make up nearly half of all federal prosecutions: illegal entry and illegal re-entry. Academics have written little about the historical lineage of either crime, despite the supporting role each played in enforcing America’s civil immigration laws, particularly along the U.S.–Mexico border. This Article takes a critical look at the enforcement of each crime — from when they were initially conceived as a way to deter illegal immigration, then as a way to target dangerous aliens, and most recently as a means to do both. These shifting strategies, however, have one thing in common: ineffectiveness. Enforcing the crimes has never meaningfully deterred illegal immigration, and the government’s poorly designed proxy to determine whether an alien is “dangerous” ensured that prosecutions have not made the public safer. The most recent period is particularly troubling — approximately 72,000 combined prosecutions a year, at the cost of well over a billion dollars and at the expense of foregoing more serious criminal prosecutions. Despite these huge costs and the related human carnage, the criminalization of illegal entry and re-entry is invariably left out of the discussion of comprehensive immigration reform, which reflects the silent treatment these crimes have received in the immigration and criminal law literature more generally. By reviewing eight decades of ineffective policy, this Article contends that enforcing the crimes of illegal entry and re-entry warrants both more attention as well as a fundamental re-thinking of using the criminal justice system to regulate immigration.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"382 1","pages":"65"},"PeriodicalIF":0.0,"publicationDate":"2011-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79134939","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Community Collateral Damage: A Question of Priorities","authors":"Andrea J. Boyack","doi":"10.2139/SSRN.1811067","DOIUrl":"https://doi.org/10.2139/SSRN.1811067","url":null,"abstract":"Today’s soaring mortgage default rate and the uncertainty and delay associated with mortgage foreclosure proceedings threatens to cause financial tragedies of the commons in condominiums and homeowner associations across the country. Assessment defaults in privately governed communities result in an inequitable allocation of upkeep costs, and current law provides no way to prevent this spillover effect. But the collateral damages caused by delayed foreclosures and insufficient recoveries can be minimized by gradually increasing the priority position of the association lien. In a majority of states, association liens are completely subordinate to the first mortgage lien. At foreclosure of the mortgage lien, the junior priority assessment lien will be extinguished whether or not there are sufficient proceeds to reimburse for community charges. Assessment delinquencies grow over time, so the longer it takes to complete foreclosure, the greater the costs to the neighborhood. Although several states have adopted a limited lien priority for up to six months’ worth of unpaid assessments, foreclosures today take far longer than six months, and the amount ultimately owed to a community can be significant and far exceed that cap. Federal housing policy impacts the resolution of the issue because the FHA, Fannie Mae and Freddie Mac only permit qualifying mortgages to be subject to a six-month assessment lien priority. The decelerating pace of foreclosure further exacerbates the already unjustifiable financial impact borne by non-defaulting neighbors. The lien priority status quo fails to adequately protect communities in today’s context of widespread and delayed foreclosures and under-collateralized mortgage loans. Decreasing the first mortgage lien’s priority during a foreclosure delay would mitigate the harm. Lien priority statutory changes can protect association finances in the future, and such provisions may be applied retroactively as well. In other contexts, states have held that changes to a lien priority regime can apply to existing associations and existing mortgages without unconstitutionally impairing contract or property rights. This is particularly true where the association’s lien is deemed to be created as of the date the organizational documents for the community were recorded (prior in time to any unit’s mortgage). Bank lobbyists have historically opposed any enhanced assessment lien priority, but supporting property upkeep and making assessments more predictable and collectible would actually benefit lenders by shoring up the value of their collateral. Better certainty with respect to homeowner payment obligations will also enable more responsible credit underwriting and contribute to economic recovery. Shoring up assessment lien priority not only ensures a fair allocation of community costs, but also helps to contain the current housing market decline.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"6 1","pages":"53"},"PeriodicalIF":0.0,"publicationDate":"2011-04-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84809042","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Facts in Exile: Corruption and Abstraction in Citizens United v. Federal Election Commission","authors":"Zephyr R. Teachout","doi":"10.2139/SSRN.1946004","DOIUrl":"https://doi.org/10.2139/SSRN.1946004","url":null,"abstract":"This paper criticizes the abstraction of Citizens United v. FEC, and examines the ideology underpinning a fact-free understanding of politics.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"64 1","pages":"295"},"PeriodicalIF":0.0,"publicationDate":"2011-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84484811","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"'Hard Strikes and Foul Blows' - Berger v. United States 75 Years after","authors":"Bennett l. Gershman","doi":"10.2139/SSRN.1601424","DOIUrl":"https://doi.org/10.2139/SSRN.1601424","url":null,"abstract":"My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty \"not that it shall win a case but that justice shall be done.\" My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"125 1","pages":"177"},"PeriodicalIF":0.0,"publicationDate":"2010-05-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86050283","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Contract Formation and the Entrenchment of Power","authors":"D. Hart","doi":"10.2139/SSRN.1509608","DOIUrl":"https://doi.org/10.2139/SSRN.1509608","url":null,"abstract":"Conventional wisdom has it that modern contract law evolved at least in part to address problems created (or ignored) by the classical legal system. Consequently, modern contract law is different from classical contract in ways that make the current system work better than the regime it ostensibly replaced. For this to be true, however, the changes made by modern contract have to be effective in rectifying the problems engendered by the classical system. But herein lays the problem. Modern contract identified coercion in the bargaining process that produces a bad bargain as a problem serious enough to warrant a solution. The solution came in the form of “expanded” contract policing doctrines, like unconscionability, economic duress, and misrepresentation. But modern contract’s solution to the coercion/bad bargain problem has failed. Indeed, the modern system makes the coercion problem worse, because it only partially rejected classical contract, while retaining key parts of the older regime. More specifically, modern contract law leaves the core of classical contract - contract formation - completely intact. And contract formation, particularly in the doctrine of mutual assent, is where the power in contracting is created, embedded and, under modern contract law, largely immunized from effective challenge by the contract policing doctrines. Consequently, by leaving the core of contract intact, modern contract law has ensured that the expanded policing doctrines it adopted will not alleviate, let alone correct, the coercion problem. Instead, it will increase the coercive capacity of the party with superior bargaining power, particularly during contract formation, and incentivize that party to use its increased coercive capacity. So, the conventional wisdom is wrong. The differences between the classical and modern contract law systems are not the most important part of the evolutionary story. Instead, understanding the ways in which the two systems are the same is more critical in determining whether modern contract law is in fact, or will be, successful in tempering the harshest aspects of the classical contract law system.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"41 1","pages":"175"},"PeriodicalIF":0.0,"publicationDate":"2009-11-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91166914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Conscientious Legislator and Public Opinion on Taxes","authors":"L. Zelenak","doi":"10.2139/SSRN.1487583","DOIUrl":"https://doi.org/10.2139/SSRN.1487583","url":null,"abstract":"This essay examines some of the difficulties of understanding public opinion on taxes, and offers some suggestions as to how the conscientious legislator might proceed in light of those difficulties. The essay begins by describing two contexts in which public opinion appears to contradict itself, and suggests how the apparent contradictions might be resolved. It then offers three suggestions for the conscientious legislator whose goal is to discern (rather than to manipulate) public opinion on taxes - to be neither unduly optimistic nor despairing about the potential for educating the public on tax policy issues, to understand and guard against the manipulation of public opinion by those with particular tax policy agendas, and to be guided by opinion surveys which give the public a range of policy options rather than forcing a choice between two polar positions.","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"27 3","pages":"369"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72616295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The ideology of tax avoidance","authors":"W. Barker","doi":"10.4324/9781315673745.CH24","DOIUrl":"https://doi.org/10.4324/9781315673745.CH24","url":null,"abstract":"Over and over again the courts have said that there is something sinister in so arranging one’s affairs so as to keep taxes as low as possible. The rich do so, but they do wrong; for everybody owes a public duty to pay what is fair and equitable. Taxes are exactions for the general welfare; they should not be voluntary contributions for the rich and forced exactions for the poor. To demand less in the name of the people is to recant the values of democracy.1","PeriodicalId":81898,"journal":{"name":"Loyola University of Chicago law journal. Loyola University Chicago. School of Law","volume":"1 1","pages":"229"},"PeriodicalIF":0.0,"publicationDate":"2009-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90260055","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}