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<title>Scholarly Commons</title>
<copyright>Copyright (c) 2012 Northwestern University School of Law All rights reserved.</copyright>
<link>http://scholarlycommons.law.northwestern.edu</link>
<description>Recent documents in Scholarly Commons</description>
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<lastBuildDate>Wed, 16 May 2012 04:56:26 PDT</lastBuildDate>
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<title>Women on Board for Change: The Norway Model of Boardroom Quotas As a Tool For Progress in the United States and Canada</title>
<link>http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/6</link>
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<pubDate>Fri, 20 Apr 2012 09:15:03 PDT</pubDate>
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	<p>Across Europe, quotas for female membership on corporate boards have been generating interest, and in a few countries, these quotas have been passed and are awaiting implementation. The quotas are designed to rectify the extreme gender imbalance on corporate boards, which persists despite female advancements in education and workforce participation. In the European Union, women represented just 9.7% of the board members at the top 300 companies in 2008. The lack of progress in women’s corporate leadership is not a European problem alone: in the United States, women make up fewer than 15% of all Fortune 1000 directors.</p>
<p>Since January 1, 2008, Norway has enforced a gender quota requirement for corporate board membership at all public limited liability companies. For most of these companies, the quota requires 40% female board membership. While it is too early to tell exactly how this quota has impacted Norway, the positive effects associated with women on corporate boards indicate the value of increased gender diversity. Quotas like the ones passed in Norway are the most viable means for increasing board diversity and, ultimately, adding value to firms in other countries as well.</p>

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<author>Anne Sweigart</author>


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<title>The Battle Before the Games: The British Olympic Association Attempts to Keep its Lifetime Ban for Athletes with Doping Offenses</title>
<link>http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/5</link>
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<pubDate>Fri, 20 Apr 2012 09:15:01 PDT</pubDate>
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	<p>This year, London is preparing to be the first city to host the Olympic Games three times. While there has been news about the various preparations taking place for the games, one story that has made the British headlines is the question of whether Dwain Chambers and other British athletes with past doping offenses will be eligible to participate. A British Olympic Association (BOA) bylaw prohibits any athlete with a past doping offense from representing Britain in the Olympics for life.</p>
<p>Dwain Chambers, a sprinter, established himself as the fastest European at the 2000 Olympics in Sydney. He became involved with the Bay Area Laboratory Cooperative (BALCO) scandal, which is perhaps the biggest doping scandal in the history of sports. In this scandal, the BALCO laboratory provided prohibited substances to many elite athletes in both track and field and U.S. professional baseball. As part of the scandal, Chambers consumed the steroid Tetrahydrogestrinone (THG) and upon getting caught, was suspended from competing in athletics for two years. This triggered the BOA’s Bylaw 25, which prohibits athletes with doping offenses from competing for Britain in the Olympics for life. Chambers admitted to using prohibited substances, came back to the track world, and ended up running faster than he did while he was doping. Nonetheless, because of the Bylaw, Chambers is prohibited from representing Britain at the Olympics again even though athletes from other countries who have completed their doping suspension will have no legal obstacle preventing them from competing in this summer’s games. The Court of Arbitration for Sport held a hearing regarding the validity of this rule on March 12th, with a decision to be released in early April.</p>

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<author>Daniel Gandert</author>


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<title>&lt;em&gt;Figueiredo v. Peru&lt;/em&gt;: A Step Backward for Arbitration Enforcement</title>
<link>http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/4</link>
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<pubDate>Fri, 20 Apr 2012 09:15:00 PDT</pubDate>
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	<p>A recent decision by the United States Court of Appeals for the Second Circuit represents a dramatic step backward for the enforcement in the United States of international arbitration awards. In <em>Figueiredo Ferraz e Engenharia de Projeto Ltda. v. Republic of Peru</em>, the Second Circuit held that enforcement of international arbitration awards pursuant to a multilateral treaty is subject to the U.S. common law doctrine of forum non conveniens (FNC). Given that FNC relates to the convenience of holding a trial on the underlying merits, rather than the “convenience” of locating and executing upon assets post-judgment, FNC should have little if any relevance to enforcement actions. The Second Circuit’s reasoning is particularly weak because it did not proceed on commonly understood convenience factors at all. Instead, the Second Circuit expressed concern that enforcement in the United States would demonstrate improper respect for a Peruvian statute that would restrict payment of the arbitration award. Therefore, the court deemed it inconvenient for any Peruvian entity that would be entitled to the protective armor of this statute in Peru to be subject to enforcement proceedings in the United States.</p>
<p>The Second Circuit managed to mangle several doctrines at once, creating a number of problems. First, FNC should be a narrowly restricted doctrine that relates to the trial of underlying facts and not to the enforcement of a resulting award or judgment. Once an award is rendered, assets should be deemed convenient to attach wherever they are located, a point that is the essence of enforcement. Second, public policy concerns have nothing to do with FNC; rather, the public policy exception of the New York Convention is a wholly separate section of that treaty. Third, it is not the blanket “public policy” of the United States to defer automatically to the laws of other countries, especially where those laws interfere directly with the multilateral commitment made by both the United States and Peru to enforce international arbitration awards. By cloaking its public policy holding in FNC garb, the Second Circuit misapplied one doctrine, misstated another, and left enforcement of future international arbitration awards—at least in the critical commercial center that is New York—potentially in considerable disarray.</p>

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<author>Matthew H. Adler</author>


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<title>Wanna Go?: A Discussion of the Potential Fight Between NHL Owners and Players over Participation in the 2014 Olympic Games in Sochi</title>
<link>http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/3</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/3</guid>
<pubDate>Fri, 20 Apr 2012 09:14:58 PDT</pubDate>
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<author>James Larry</author>


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<title>Welcome to the &lt;em&gt;Ambassador&lt;/em&gt;</title>
<link>http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/2</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njilb/vol32/iss4/2</guid>
<pubDate>Fri, 20 Apr 2012 09:14:56 PDT</pubDate>
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	<p>From its founding in 1979, the Northwestern Journal of International Law and Business (JILB) has brought a particular perspective to the broad discipline known as “international law.”  While other journals might address topics such as treaties, the international criminal court, and human rights through a variety of lenses and with varying amounts of theoretical discussion, JILB has sought to bring a focus to private international law.  By exploring questions of how businesses are impacted by international law—and how international law is in turn impacted by business—JILB has illuminated practical issues confronted by multinational businesses.  The real-world focus of the journal has by no means lessened its scholarly flavor or integrity; rather, JILB has given the academy a place to engage in scholarship that both acknowledges and studies the economic and business impact of its complex doctrinal area.</p>
<p>Although JILB has stayed the course of being relevant to practice while exploring issues in an in-depth and research-intensive manner, the world is markedly different than it was in 1979.  In the late 1970s, Westlaw and Lexis were in their infancy, fax machines were rare, and personal computers were just beginning to enter homes.  The world communicated primarily by telephone and paper correspondence, and JILB was distributed to subscribers solely by mail.  JILB continues to be mailed to subscribers in 2011, but it is also available online, as is its archive.  Practitioners and scholars now interact through blawgs and other online publications, which can vary in reliability, but share an immediacy that is difficult to achieve in a traditional print journal.  Practitioners and their business clients alike have begun to demand fast and up-to-date information in a digestible format, particularly when they do not have the time to review large quantities of scholarship.  The academy, meanwhile, has taken advantage of the ability to publish time-sensitive and often shorter pieces online, which can lead to immediate feedback and impact.</p>
<p>The <em>Ambassador</em> is launching into these exciting and fast-moving waters.  It is the hope of JILB’s editors, including its new dedicated Ambassador Editor, that the <em>Ambassador</em>will be especially relevant to practitioners, and particularly of-the-moment.  To that end, the <em>Ambassador</em> will consider pieces that are time-sensitive and shorter than JILB’s typical print articles, and will endeavor to bring an enhanced practical focus to all of its offerings.  It will also, of course, adhere to the same high standards of selection and editorial quality as the print journal—it will just offer something different: more timely, more practical.  As the new faculty advisor to JILB and a practitioner-academic myself, I believe there has been no more exciting moment in JILB’s history since its founding.</p>

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<author>Stephen F. Reed</author>


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<title>The New Danger of Being Fired: Section 525(b)’s Disproportionate Effect on Older Workers and a Call to Amend</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/7</link>
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<pubDate>Thu, 02 Feb 2012 20:18:33 PST</pubDate>
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	<p>This Note explores an increasingly perverse effect of an anti-discriminatory provision of the Bankruptcy Code on numerous Americans who have declared personal bankruptcies after the recent economic recession of 2007. Under § 525(b) of the Bankruptcy Code, a private employer is not prohibited from barring a former debtor from prospective employment based on a past insolvency. This provision has had an immense impact on the large number of former debtors seeking the fresh start that bankruptcy law is meant to provide. With the dramatic increase in the number of personal bankruptcies, this Note argues that such an impact is overly punitive on the current debtor within the context of bankruptcy law policy.</p>
<p>This Note also examines how § 525(b) has a disproportionate effect on older populations since the largest constituent of those who have filed for personal bankruptcy since 2007 have been older workers. This unintended effect directly undermines Congress’s recent efforts to protect older workers in the workplace, such as the through the Age Discrimination in Employment Act. This Note proposes a number of solutions to § 525(b)’s adverse effect on debtors through legislative amendment rather than judicial interpretation. The recent increase in the practical importance of bankruptcy protection must be paralleled with the meaningful and consistent application of its policies.</p>

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<author>Jina Kim Yun</author>


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<title>Does the Privatization of Publicly Owned Infrastructure Implicate the Public Trust Doctrine? &lt;i&gt;Illinois Central&lt;/i&gt; and the Chicago Parking Meter Concession Agreement</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/5</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/5</guid>
<pubDate>Thu, 02 Feb 2012 20:18:32 PST</pubDate>
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	<p>During the nineteenth century, legislatures proved “excessively generous” in granting railroad corporations property rights in publicly owned, commercially vital municipal streets and harbors. Jacksonian jurists, suspicious of corporate influence, invoked the public trust doctrine to rescind grants of privilege inconsistent with the public interest. In <em>Illinois Central Railroad Co. v. Illinois</em>, the “lodestar” of the modern doctrine, the Supreme Court refused to recognize the Illinois legislature’s authority to convey the submerged lands of the Chicago Harbor to a railroad corporation, a conveyance that empowered a private enterprise to “practically control . . . for its own profit” a publicly owned “highway” vital to Chicago’s “vast and constantly increasing commerce.”</p>
<p>During the latter half of the twentieth century, courts seized on <em>Illinois Central</em> as a useful tool for protecting environmentally sensitive waterways while generally ignoring a century of caselaw applying the public trust doctrine to non-submerged infrastructure, namely municipal streets. The latent potential of the doctrine to protect public infrastructure from corporate monopolization remains relevant because private investors are increasingly pursuing property rights in such assets. A prominent example is the Chicago parking meter privatization, conveying to a Morgan Stanley subsidiary the rights to all on-street parking meter revenues for seventy-five years.</p>
<p>This Note analyzes the Chicago parking meter privatization under <em>Illinois Central</em>, and subsequent Illinois public trust caselaw, and concludes that the agreement represents precisely the sort of conveyance the <em>Illinois Central</em> Court sought to proscribe, namely, one that sacrifices public “management and control”  of a highway “for commerce, trade, and intercourse”  essential to Chicago’s continued economic and urban development. In the absence of judicial intervention, shortsighted state and local governments will continue to succumb to the temptation of selling rights in vital public infrastructure for temporary, short-term profit, in opaque, potentially corrupt transactions, sacrificing the ability of future generations to regulate as public necessity, safety, and welfare require.</p>

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<author>Ivan Kaplan</author>


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<title>Improving the Benefit Corporation: How Traditional Governance Mechanisms Can Enhance the Innovative New Business Form</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/6</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/6</guid>
<pubDate>Thu, 02 Feb 2012 20:18:32 PST</pubDate>
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	<p>In recent years, a number of states have offered innovative new business forms to accommodate social enterprises, organizations that pursue both profit and social purpose. These hybrid forms are designed to free socially conscious entrepreneurs from the strict pursuit of shareholder value maximization that often controls in business practice and law, allowing them instead to serve the interests of other company stakeholders or even society. One form, the benefit corporation, has been adopted by seven states and is now under consideration in several more. This Note details the development, provisions, and advantages of the benefit corporation. It also identifies and analyzes possible flaws in the benefit corporation as it is structured now. In particular, this Note focuses on the potential enforceability and accountability challenges that might accompany the social obligation provisions that are typical of the form. Finally, the Note explores ways in which states might employ traditional corporate governance mechanisms to strengthen the benefit corporation form and better ensure that it effectively serves its dual commitments to shareholders and stakeholders.</p>

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<author>Steven Munch</author>


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<title>Partiality and Disclosure in Supreme Court Opinions</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/4</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/4</guid>
<pubDate>Thu, 02 Feb 2012 20:18:31 PST</pubDate>
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	<p>This Essay begins by identifying the various kinds of partiality the Justices of the Supreme Court can have in the cases they decide. Although there is widespread recognition of the influence these biases might have, for the most part the Justices continue to write opinions as if they (and other judges) were entirely disinterested. This practice is often thought to be justified as a source of judicial legitimacy, but there are a number of reasons to doubt that a pretense of impersonality is actually important for maintaining respect for the Court. Consequently, the possibility has to be considered that the Justices should routinely acknowledge their interests. This Essay, however, assesses some exceptional categories of cases where the Justices have addressed the issue of partiality and concludes that judicial self-interest prevents candid or realistic appraisals of possible bias.</p>

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<author>Robert F. Nagel</author>


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<title>Legislating a Family-Friendly Workplace: Should It Be Done in the United States?</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/3</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/3</guid>
<pubDate>Thu, 02 Feb 2012 20:18:30 PST</pubDate>
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	<p>This Article reviews both domestic and international efforts to legislate a more family-friendly workplace, with an eye toward measuring the impact of these various initiatives and predicting both their future success and the likelihood of more widespread adoption. In particular, the Article reviews federal, state, and international legislative efforts to mandate: paid parental leaves; paid sick days; and flexible work arrangements. The Article then attempts to measure the effectiveness of such legislatively required, family-friendly policies by suggesting ways to measure and to predict the impact of U.S. legislative efforts to reconcile the conflicting responsibilities of work and parenthood. The Article concludes by presenting economic, legal, and ethical reasons why family-friendly policies should be both voluntarily adopted and legislatively required.</p>

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<author>Marianne DelPo Kulow</author>


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<title>Bail: Reforming Policies to Address Overcrowded Jails, the Impact of Race on Detention, and Community Revival in Harris County, Texas</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/2</link>
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<pubDate>Thu, 02 Feb 2012 20:18:29 PST</pubDate>
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	<p>Starting in the 1970s, the U.S. federal government and many state and local governments adopted “get tough” policies against crime. These new strict policy initiatives produced an explosion of incarceration in prisons throughout the country. They also impacted local jails as well, particularly in the numbers of persons detained pre-trial. This Article explores this phenomenon and its implications for local governments, as well as its unforeseen consequences on communities, particularly communities of color. The Article uses Harris County, Texas to exemplify the systematic problems resulting from the over-jailing of its citizens, particularly persons who are detained pre-trial. We attempt to show that with some changes to local policies and the development of new initiatives, Harris County could substantially reduce its jail population without increasing crime, at a substantial savings to the county in both monetary and human capital.</p>

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<author>Marcia Johnson et al.</author>


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<title>After the Flood: The Legacy of the “Surge” of Federal Immigration Appeals</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol7/iss1/1</link>
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<pubDate>Thu, 02 Feb 2012 20:18:28 PST</pubDate>
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	<p>For many years, the big news in the United States courts of appeal was the skyrocketing immigration caseload. For courts that traditionally had busy immigration dockets, the effect was tsunamic. One of those circuits, the Second, instituted a nonargument calendar that, over the past five years, has enabled the court to regain some control over its swollen docket. While this administrative strategy has rescued the court from drowning, the flow of cases continues, somewhat abated, but with enduring force. This so-called surge had unanticipated consequences extending far beyond court management changes. As a result of their increased exposure to immigration cases at the hearing stage—reading transcripts and immigration judge decisions—federal judges increasingly found fault with immigration adjudication, criticizing the quality of both the judging and the lawyering. The glaring attention generated public reaction, forcing some reforms from the inside and continuing pressure from the outside. This Article examines the legacy of this exposure and its positive impact on the quest for better access to justice for immigrants facing removal.</p>

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<author>Stacy Caplow</author>


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<title>Check-in</title>
<link>http://scholarlycommons.law.northwestern.edu/njtip_symposium/SCHEDULE/Schedule/8</link>
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<pubDate>Fri, 24 Feb 2012 08:30:00 PST</pubDate>
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	<p>Check-in for the Northwestern Journal of Technology and Intellectual Property's 7th Annual Symposium</p>

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<author>Attendees of the Symposium</author>


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<title>Misconstructing Sexuality in Same-Sex Marriage Jurisprudence</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol6/iss1/7</link>
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<pubDate>Mon, 30 Jan 2012 15:07:10 PST</pubDate>
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	<p>Drawing on sociology, queer studies, 			and legal scholarship, this Comment develops a textual methodology to study 			sexuality in court opinions. In 			particular, this methodology uses inconsistencies between opinions to highlight 			how courts rely on cultural assumptions. 			This Comment applies this methodology to eighteen state same-sex 			marriage cases, identifying four analytic models of sexuality: sexuality 			consists only of behaviors; sexuality belongs to lesbians and gays; society 			should regulate sexuality; and marriage forms a normatively desirable model for 			sexuality. These models contribute 			significantly to public discourse over the meaning of sexuality. Applying sociological insights to narrow 			judicial models of sexuality suggests that courts fail to recognize the 			diversity of sexuality and its importance to individual identities. This Comment argues that courts should 			protect same-sex marriage through equal protection, rather than due process, in 			order to maximize individual autonomy with respect to sexuality. Finally, the Comment considers recent 			opinions that make progress towards broader judicial understandings of 			sexuality.</p>

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<author>Jeffrey Kosbie</author>


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<title>If You Will It, It Is No Dream: Balancing Public Policy and Testamentary Freedom</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol6/iss1/6</link>
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<pubDate>Mon, 30 Jan 2012 15:07:08 PST</pubDate>
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<author>Orly Henry</author>


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<title>Disability and the Persistence of Poverty: Reconstructing Disability Allowances</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol6/iss1/5</link>
<guid isPermaLink="true">http://scholarlycommons.law.northwestern.edu/njlsp/vol6/iss1/5</guid>
<pubDate>Mon, 30 Jan 2012 15:07:07 PST</pubDate>
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	<p>Focusing on the construction and 				negation of disability allowances, this Article identifies and traces the roots 				of a fundamental tension that underlies disability politics with regard to 				disability allowances: are cash benefits an archaic and outdated form of 				assistance to disabled people, or are they still a relevant mode of response to 				their systematic marginalization and exclusion? 				Based on a field study of the Israeli disability community, the Article 				shows that while disability rights advocates tend to reject disability 				allowances as fundamentally wrong and to support the transformation of 				society's social structures, welfare activists tend to view disability 				allowances as a response to a pressing necessity, an expression of social 				responsibility, and a means to provide economic security for disabled 				people. The Article employs a disability 				legal studies framework to analyze the study's findings, attending primarily to 				questions of power and difference, and offering a framework that considers both 				perspectives as two authentic voices that express genuine concerns. At the same time, the analysis maintains that 				both approaches lack a more complex understanding of the relationships between 				disability and poverty, within which the meanings of disability allowances are 				negotiated. It concludes with a call to 				re-conceptualize disability allowance, as a form of compensation that redresses 				disabled peopleindividually and collectivelyfor society's past and present 				continuing practices of exclusion and discrimination. The struggles of disabled people over rights 				and allowances become a fascinating site from which to draw the critical 				lessons that disability activism has to offer to social 				theory.</p>

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<author>Sagit Mor</author>


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<title>Autonomy and &quot;Gray Area&quot; Pro Se Defendants: Ensuring Competence to Guarantee Freedom</title>
<link>http://scholarlycommons.law.northwestern.edu/njlsp/vol6/iss1/4</link>
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<pubDate>Mon, 30 Jan 2012 15:07:06 PST</pubDate>
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<author>Jona Goldschmidt</author>


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