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<title>Earle Mack School of Law at Drexel University</title>
<copyright>Copyright (c) 2012 The Earle Mack School of Law at Drexel University All rights reserved.</copyright>
<link>http://works.bepress.com/drexellaw</link>
<description>Recent documents in Earle Mack School of Law at Drexel University</description>
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<lastBuildDate>Wed, 15 Feb 2012 03:39:23 PST</lastBuildDate>
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<title>Campus Citizenship and Associational Freedom: An Aristotelian Take on the Nondiscrimination Puzzle</title>
<link>http://works.bepress.com/chapin_cimino/4</link>
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<pubDate>Wed, 11 Jan 2012 08:29:57 PST</pubDate>
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	<p>Student expressive association on campus is a thorny thicket. Student affinity groups often choose to organize around a shared principle or characteristic of the groups’ members, which, by definition, makes those students different in some way from their peers. In order to preserve the group’s sense of uniqueness, these groups often then wish to control their own membership and voting policies. They feel, in essence, entitled to discriminate — a right arguably embodied by the First Amendment freedom of expressive association. When campus groups actually exercise this right, however, they run into university anti-discrimination policies, which can cost them official campus recognition. Thus, in the name of one important value, schools trample on another: campus citizenship. Both nondiscrimination and campus citizenship are values of equality.</p>
<p>At this moment, whose notion of equality is to prevail? Is it the university’s, taking the form of a blanket nondiscrimination policy? Or is it the student group’s, taking the form of the desire to maintain both associational freedom and campus citizenship?</p>
<p>Current First Amendment doctrine is ill-equipped to resolve the tension between these competing values, or “ends.” It is ill-equipped because any traditional First Amendment test is written to consider only one “end” — the end of the regulator. This was true prior to the Supreme Court’s June 2010 decision in Christian Legal Society v. Martinez. However, the Court’s opinion in CLS made the situation worse by applying the simplistic and unhelpful “limited public forum” test. The limited public forum test may have been the least common denominator between competing doctrines, but choosing it was a mistake.</p>
<p>This Article takes on several tasks. It explains the notion of campus citizenship, showing how the goal of equality on campus actually has two aspects to it — the equality of the students potentially excluded from a group, and also the equality of the group that is excluded from the campus. It shows how and why current doctrine, but especially the limited public forum doctrine, are not up to the task of resolving the inherent conflict in this dual conception of equality. Finally, it offers a new (and neo-Aristotelian) means-ends analysis courts should use in this context in order to account for the dual ends of these cases: nondiscrimination and expressive association.</p>

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<author>Chapin Cimino</author>


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<title>Linking the Questions: Judicial Supremacy as a Matter of Constitutional Interpretation</title>
<link>http://works.bepress.com/tabatha_abu_el_haj/5</link>
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<pubDate>Wed, 11 Jan 2012 06:49:10 PST</pubDate>
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	<p>This Article explains that what has been missing from the debate between advocates of popular constitutionalism and defenders of judicial supremacy is any account of the practice of constitutional interpretation.  Without a clear sense of what constitutional interpretation involves, we cannot assess the prevailing assumption that the Supreme Court is uniquely positioned to interpret the Constitution or explore an expertise-based justification for its claim to finality.  The Article, therefore, revisits the debate about judicial supremacy by starting, not with history or politics, but with constitutional interpretation itself.</p>
<p>Having explored the practice of constitutional interpretation, it concludes that the Supreme Court can claim expertise with respect to determining constitutional meaning, but that its expertise has limits.  The Article proceeds to explore whether and how this insight might be translated into limits to judicial supremacy.  Toward that end, it develops a framework for assessing when the work of constitutional interpretation should be shared between the Supreme Court, the other branches of government, and the public itself.  Finally, it uses the Court’s doctrine with respect to race-conscious legislative districting to illustrate how the proposed framework might work.</p>

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<author>Tabatha Abu El-Haj</author>


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<title>Changing the People: Legal Regulation and American Democracy</title>
<link>http://works.bepress.com/tabatha_abu_el_haj/4</link>
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<pubDate>Wed, 11 Jan 2012 06:47:40 PST</pubDate>
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	<p>The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work of contemporary scholars who write about the law of the American political process. First, the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of nineteenth-century American democracy serves as a reminder that elections, political parties and voting, while critical to democracy, are not the whole deal. It thereby challenges Law of Democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.</p>

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<author>Tabatha Abu El-Haj</author>


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<title>Epistemology and Ethics in Relationship-Centered Legal Education and Practice</title>
<link>http://works.bepress.com/susan_brooks/17</link>
<guid isPermaLink="true">http://works.bepress.com/susan_brooks/17</guid>
<pubDate>Thu, 06 Oct 2011 12:22:46 PDT</pubDate>
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	<p>Epistemology involves views about knowledge and how it is developed. It is the study of how individuals come to know the truth about given phenomena as it relates to the knowledge generation process: How is knowledge acquired, internalized, and applied to situations? In the discussion that follows, the authors present a model for enhancing legal education that is premised on changing the culture of the legal profession by adjusting the epistemology toward a relationship-centered framework. This analysis draws upon recent research into personal values and how they influence behavior. The conclusions from this research are consistent with the realities in current legal practice where the dominant narrative is adversarialism and many lawyers tend to conform their behavior to meet this social expectation rather than feeling disconnected from the profession. The necessary extension of this argument, and what the authors propose, is that if the legal epistemology is changed to be consistent with a relationship-centered, experientially-rich approach, law students and practitioners will adjust their behavior in conformance with an emerging narrative that values the significance of extra-legal, contextualized elements of a client’s life. The article also draws upon neurobiology and cognitive science to explore how ethical and professional practice can be taught, including questions such as whether crucial skills such as empathy can be enhanced through educational experiences connected to a relational approach to legal practice.</p>

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<author>Susan L. Brooks et al.</author>


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<title>Meeting the Professional Identity Challenge in Legal Education Through a Relationship-Centered Experiential Curriculum</title>
<link>http://works.bepress.com/susan_brooks/16</link>
<guid isPermaLink="true">http://works.bepress.com/susan_brooks/16</guid>
<pubDate>Thu, 06 Oct 2011 12:21:47 PDT</pubDate>
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	<p>Legal education is facing a series of crises, the worst of which may well be its graduates’ perceived lack of professionalism--qualities such as civility, judgment, and commitment to service. This urgent message has been amplified by recent high profile critiques emphasizing the need to teach professionalism, as well as to make law schools more nurturing and humanistic environments. The purpose of this article is to show that the challenge of preparing law students to become caring and competent professionals can be met by using a sequence of experiential learning opportunities to teach relational competencies.</p>
<p>Even the harshest critics of legal education agree that clinical programs in law schools succeed; however, the idea of expanding such programs presents challenges. Others worry that law schools will be tempted to do clinics “on the cheap.” Nevertheless, if we truly are concerned about the quality of legal education, we should focus instead on understanding what exactly students learn through clinics that contribute to their development of professionalism, and, further, whether other academic experiences, such as externships or simulations, can contribute to these same goals.</p>
<p>The article sets out a conceptual model for exploring this professional identity challenge. The first part is called the “Experiential Learning Helix,” a developmental approach that identifies three different roles all law students should experience toward becoming a professional: (1) simulated practice; (2) the “mentee” role, and the “first-chair” role. The second part of this model is “Relationship-Centered Lawyering,” a normative framework focusing on three areas of competency every effective lawyer needs: (a) understanding theory about the person-in-context, (b) promoting procedural justice, and (c) appreciating interpersonal, cultural, and emotional issues. When grounded in this relational framework, the Helix holds promise for legal education’s sustainability into the future.</p>

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<author>Susan L. Brooks</author>


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<title>Sliding Doors: The Rowley Decision, Interpretation of Special Education Law, and What Might Have Been</title>
<link>http://works.bepress.com/terry_seligmann/8</link>
<guid isPermaLink="true">http://works.bepress.com/terry_seligmann/8</guid>
<pubDate>Wed, 28 Sep 2011 13:55:27 PDT</pubDate>
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	<p>When the decision in Board of Education v. Rowley was announced in 1982, advocates for special education viewed it as a defeat for students with disabilities. But in many respects the Rowley decision supported a robust and forceful mandate at the federal level to provide special education at the state and local level.  It found the statute sufficiently clear to bind the states to the standards as the Court saw them.  It enshrined the individual determination of needs and services and the parent's enforcement role. And the Court refused, both in Rowley and in later decisions, to allow cost to determine appropriateness of services. This reflection, written as part of a symposium issue commemorating the thirtieth anniversary of the Rowley decision, suggests that as to each of these issues, a differently disposed Court could have taken a different tack.  Had it done so, special education would not look today as it does, and advocates would have far more to lament. This essay "slides the doors"  as to each of these aspects of the Rowley decision to consider how things might have been different had the Court resolved them another way. Because acknowledged shifts in the Court suggest that the pendulum has swung away from enforcement of individual entitlements in the intervening years, I suggest that Rowley deserves celebrating on its own merits for these critical elements of a strong special education law.</p>

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<author>Terry Jean Seligmann</author>


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<title>Regulating Patient Safety: The Patient Protection and Affordable Care Act</title>
<link>http://works.bepress.com/barry_furrow/17</link>
<guid isPermaLink="true">http://works.bepress.com/barry_furrow/17</guid>
<pubDate>Thu, 22 Sep 2011 09:38:56 PDT</pubDate>
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	<p>Patient injury is a predictable feature of health care, particularly in hospitals, in the United States and elsewhere. Analysis of patient safety rests on four basic propositions. First, patient injury (ranging from minor injuries to death) is a recurring feature of health care and negatively affects roughly one in every ten patients. Second, physicians (and the hospitals in which they practice) all too often continue to practice bad medicine in spite of what is known about good medical practice. Third, medical practice too often ignores effective practices. Fourth, regulatory tools need to be expanded in order to force more integration and coordination in health care delivery.</p>
<p>This article examples the range of patient safety efforts undertaken in the U.S. over the past fifteen years, with particular emphasis on the patient safety initiatives in the Patient Protection and Affordable Care Act. Six broad strategies are examined, including 1) Standardizing Good Medical Practices; 2) Tracking Adverse Events in Hospitals; (3) Disclosing Provider Performance; (4) Reforming Payment Systems; (5) Coordinating and Integrating Care; and (6) Expanding Provider Responsibility.</p>
<p>The PPACA is a major attempt to improve access to health care by expanding coverage through Medicaid and by reforming the private insurance market. Quality is also an important focus of PPACA - it promotes disease management, care coordination, new payment models, value-based purchasing initiatives, and the use of comparative effectiveness research. PPACA offers a strong regulatory push toward the goal of “flawless execution,” the health care equivalent of zero defects in industrial production.</p>

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<author>Barry Furrow</author>


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<title>Land Rights Issues in International Human Rights Law</title>
<link>http://works.bepress.com/anil_kalhan/11</link>
<guid isPermaLink="true">http://works.bepress.com/anil_kalhan/11</guid>
<pubDate>Thu, 22 Sep 2011 09:29:02 PDT</pubDate>
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	<p>Up to one quarter of the world’s population is estimated to be landless, including 200 million people living in rural areas. For many of these people, the condition of landlessness threatens the enjoyment of a number of fundamental human rights. Access to land is important for development and poverty reduction, but also often necessary for access to numerous economic, social and cultural rights, and as a gateway for many civil and political rights. However, there is no right to land codified in international human rights law. This article, which was originally written as a briefing paper for the “Forum on Land, Business, and Human Rights” convened in Manesar, India by the Institute for Human Rights and Business in June 2009, provides a brief overview of the legal implications of access to land for a broad range of human rights. Land is a cross-cutting issue, and is not simply a resource for one human right in the international legal framework. Rights have been established in the international legal framework that explicitly relate to land access for particular groups, such as indigenous people and, to a more limited extent, women. In addition, numerous rights are affected by access to land, including the rights to housing, food, water and work, and general principles in international law also provide protections relating to access to land, such as equality and nondiscrimination in ownership and inheritance.</p>

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<author>Elizabeth Wickeri et al.</author>


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<title>Government as the Crucible for Free Market Health Care: Regulation, Reimbursement, and Reform</title>
<link>http://works.bepress.com/robert_field/16</link>
<guid isPermaLink="true">http://works.bepress.com/robert_field/16</guid>
<pubDate>Thu, 11 Aug 2011 07:20:39 PDT</pubDate>
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	<p>Political debates over economic policy commonly pit the virtues of the free market against those of government oversight. Regulatory policy then becomes an ongoing contest between the public and private sectors, infusing policy debates with a sense that it is necessary to choose between them. On closer examination, this duality is false. On a fundamental level, free-market entrepreneurs and government regulators are not opponents, but are, on the contrary, partners in a common enterprise. Across a range of major industries, one party could not exist without the other.</p>
<p>In no industry is this interplay more important than in health care. A series of government programs, most initiated during the latter half of the twentieth century, literally created the health care system as it exists in the United States today. Hospitals grew to their present size and technological complexity because of funding provided by the Hill-Burton Act and Medicare. Medicare also funds physician training, as well as reimbursement for many physician-provided services. Pharmaceutical manufacturers rely on the National Institutes of Health to support basic biomedical research that leads to the development of new drugs. A huge tax subsidy for employer-sponsored coverage finances, in large part, the health insurance industry. Without these programs, none of these health care industry segments could have approached its present size or vitality. To ignore this dynamic is to ignore the true nature of American health care and to fundamentally misunderstand the opportunities for reform.</p>
<p>The Patient Protection and Affordable Care Act (PPACA) continues and extends this paradigm. It will expand coverage in large part by facilitating broader demand for individual policies, which will revitalize private insurance markets. It will also extend Medicaid, a program that in most states is administered by private managed care plans, to millions more beneficiaries. Far from representing a government takeover or novel incursion into the health care system, PPACA extends the underlying arrangement that has built and sustains the structure of American health care as it exists today. In the American health care system, private innovation and government intervention represent not opposing forces, but rather partners in a common enterprise.</p>

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<author>Robert I. Field</author>


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<title>I Don&apos;t Rhyme For the Sake of Riddling: When Hip Hop Speaks, Law Listens</title>
<link>http://works.bepress.com/donald_tibbs/13</link>
<guid isPermaLink="true">http://works.bepress.com/donald_tibbs/13</guid>
<pubDate>Fri, 29 Jul 2011 08:54:49 PDT</pubDate>
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<author>Donald F. Tibbs</author>


<category>Law and Hip Hop</category>

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