Digital Commons Network^™

Protecting Restorative Justice Participants: The Implications Of Implementing Restorative Justice Practices Without Proper Safeguards For Participants, Abigail Young

University of Miami Race & Social Justice Law Review

No abstract provided.

The Unfulfilled Promise Of Self-Determination In Court-Connected Mediation, Peter Reilly

Faculty Scholarship

In the context of mediation, party self-determination refers to the ability of disputants to have power, control, and autonomy in the process. There are numerous process design questions involved in running a mediation, no matter its subject matter. Consider just one example: “Should the mediation be conducted in-person, or virtually?” The answer to this question can have a profound impact on the direction and course of a mediation, including its outcome. Yet, in the context of court-connected mediation, disputing parties are not consistently provided the opportunity to give input on how such process design questions are resolved. In fact, these …

Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela J. Keet

Articles & Book Chapters

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law's intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children.

The Artistry Of Mediation: A Look At Mediation’S Effectiveness For Resolving Cross-Cultural Disputes Through The Leonardo Da Vinci Conflict Between France’S Louvre Museum And Italy’S Uffizi Gallery, Sophia D. Casetta

Pepperdine Journal of Communication Research

Art is powerful, as it symbolizes the history and identity of the country that claims it. However, through timely transitions, such as trade and wars, the ownership of meaningful artworks blurs, with museums fighting to claim their heritage to put on honorable display for their people. Mediation can be a peaceful means to resolve art ownership disputes, as it accounts for respecting the individual cultures of the countries represented in the dispute. Using the key medication traits described within this essay, a prepared mediator involved in such a cross-cultural conflict should be able to help resolve the issue at hand. …

Toward Justice Epidemiology: Outlining An Approach For Person-Centred Access To Justice, Andrew Pilliar

Dalhousie Law Journal

The COVID-19 pandemic has brought widespread public attention to the fields of epidemiology and public health. These fields share a common commitment to the systematic study of disease across populations, with goals of better understanding, preventing, and treating adverse health events. They are empirical, evidence-based, and person-centred. This paper draws on the histories, norms, and methodologies of public health and epidemiology to construct a novel field of study: justice epidemiology. In recent years, a growing body of unmet legal needs research in Canada and elsewhere has demonstrated that justiciable events are likely ubiquitous, but also that these events tend to …

“This Isn’T Justice”: Abused Women Navigate Family Law In Greater Vancouver, Wendy Chan, Rebecca Lennox

Canadian Journal of Family Law

With the implementation of the Family Law Act in 2013, the family legal system in British Columbia saw a series of progressive reforms. These include the recognition of emotional, psychological, and financial control as family violence, a new protection order process to replace the limited restraining orders formerly available to abuse victims, a mandate that courts consider how exposure to family violence impacts children, and minimum mandatory training standards for family dispute resolution professionals. While there has been a great deal of legal commentary on these new provisions, there is a paucity of scholarly research documenting the experiences of frontline …

The Intersection Of Child Protection And Family Law Systems In Cases Of Domestic Violence, Wanda Wiegers

Canadian Journal of Family Law

Both the child protection and the family law systems are intended to promote the best interests of children, and both can profoundly affect the relationships between children and their parents or caregivers. Over the past two decades, both systems have also accorded more weight in the assessment of best interests to how exposure to domestic violence can harm or place children at risk. However, these systems have evolved differently, are governed by different statutes, and are administered in different ways. Child protection proceedings purport to have primarily a protective function and invariably involve a public agency, while family law proceedings, …

The Common Law Of Landscape Hostility In The Lives And Deaths Of Honeybees, Caleb Goltz

Animal Studies Journal

This article offers a legal explanation for the decline of honeybees. While most investigations into bee populations and bee survival rates have been scientific, this article provides an additional set of causes, showing how our legal definitions of property and standards of negligence contribute to a landscape hostile to the lives of bees. Examining recent litigation in the United States and Canada, it shows how legal concepts of property impact the lives of bees, especially in cases of pesticide overspray near property boundaries, and in the forms of knowledge and ignorance in play in contesting duties of care in negligence …

Introduction: Domestic Violence And Access To Justice Within The Family Law And Intersecting Legal Systems, Jennifer Koshan, Wanda Wiegers, Janet Mosher, Wendy Chan, Michaela Keet

Canadian Journal of Family Law

The articles in this collection explore the access to justice issues that arise for survivors of domestic violence in their encounters with Canada’s family law system. While family law and family dispute resolution processes are the central focus of the articles, three contributions also address family law's intersections with other legal domains (civil restraining orders, child welfare, and immigration). Common across the contributions is a desire to carefully interrogate the potential of law and legal processes to enhance—or conversely to undermine—the safety and well-being of survivors and their children.

Community Accountability, M. Eve Hanan, Lydia Nussbaum

Scholarly Works

This Essay takes a close look at how the idea of community accountability is used in current transformative and restorative justice efforts, situating the concept within the history of delegalization, or a collection of different efforts to reclaim conflict resolution and public safety from the state. In fact, these efforts to reclaim the authority and means of redressing harm from legal systems may track earlier efforts to reclaim dispute resolution from the state. In Part I, we situate both transformative and restorative justice movements in the history of delegalization while noting essential differences between the objectives of these two reform …

The Higher-Cost Problem: How The Case Act Addresses The History Of Inequity In The American Copyright Regime, Michael Newell

University of Miami Law Review

The legislative history of copyright law in the United States and its judicial interpretation resulted in a complex web of statutes and doctrine theoretically meant to further the constitutional goal of “promot[ing] the Progress of Science and the useful Arts.” But because of its complexity, enforcing rights against infringers in federal court became prohibitively expensive for most. The American copyright regime simultaneously allowed the music industry to unfairly profit from the creativity of the under-resourced—particularly, musicians of color.

This Note discusses the disparate impact of the American copyright regime. Then, the Note discusses the Copyright Alternatives in the Small-Claims Enforcement …

Lessons From A Pandemic: Recommendations From The Georgia Tpo Forum For Strengthening Protections Against Domestic Violence, Christine M. Scartz, Sarah White, Jaime Boorman

Scholarly Works

A civil protective order in Georgia is commonly called a temporary protective order, or TPO. The Georgia TPO Forum (the Forum) is a collaborative effort among practitioners who are deeply passionate about ending domestic violence and minimizing its effects on victims.1 The Forum is made up of advocates and attorneys who work every day with people who need protection from violence. Members provide each other not only with suggestions and solutions to problems, but also a listening ear in a profession where another tragic case is always on its way. The Forum is also uniquely positioned to offer recommendations about …

Negotiating Social Change: Backstory Behind The Repeal Of Don’T Ask, Don’T Tell, Linell A. Letendre, Hal Abramson

Scholarly Works

This Article is about negotiating social change in the largest U.S.institution, the Military and its five Services. Inducing social change in any institution and society is notoriously difficult when change requires overcoming clashing personal values among stakeholders. And, in this negotiation over the repeal of Don’t Ask, Don’t Tell (DADT), clashing values over open service by gays and lesbians were central to the conflict.

In response to President Obama’s call to repeal DADT, the Secretary of Defense selected a Working Group to undertake studies, surveys and focus groups to inform the debate. During the nine-month process of gathering a massive …

Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran

Articles

U.S. courts in Foreign Sovereign Immunities Act (“FSIA”) cases must interpret a comprehensive statute which has been said to stand or fall on its terms. At the same time, in Nazi-looted art cases, they do not ignore entirely the backdrop of the U.S.’ adoption of international principles and declarations promising to ensure the return of such art. To some extent, such an undertaking has been incorporated into a statutory amendment of the FSIA. The years 2021 and 2022 have seen major developments in the FSIA both at the U.S. Supreme Court and in the D.C. Circuit Court of Appeals in …

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

Articles by Maurer Faculty

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

The Power Of Two Words To Split Circuits, Natalie Whitacre

University of Miami Law Review

28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …

Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

Two seismic curricular disruptions create a tipping point for legal education to reform and transform. COVID-19 abruptly disrupted the delivery of legal education. It aligned with a tectonic racial justice reckoning, as more professors and institutions reconsidered their content and classroom cultures, allying with faculty of color who had long confronted these issues actively. The frenzy of these dual disruptions starkly contrasts with the steady drumbeat of critical legal scholars advocating for decades to reduce hierarchies and inequalities in legal education pedagogy.

This context presents a tipping point supporting two pedagogical reforms that leverage this unique moment. First, it is …

Flood Management In Texas: Planning For The Future, John Diggs, Samantha Mikolajczyk, Lora Naismith, Margaret Reed, Rory Smith

EENRS Program Reports & Publications

This Report examines existing flood-related regulations in Texas and the United States, the Texas State Flood Plan, current flood mitigation strategies in the state, and the potential to implement green stormwater infrastructure. The report offers policy recommendations to clarify and help alleviate the current ambiguities and uncertainties between the Texas State Water Plan and State Flood Plan for future flood mitigation practices, and to simplify the implementation of green infrastructure.

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Introduction To Symposium On "Adr's Place In Navigating A Polarized Era", Nancy A. Welsh

Faculty Scholarship

Ours is a nation built for conflict, for friction. Such conflict, while painful, can be good. It can signal newfound agency, and it can be a catalyst for dialogue, customized and creative solutions, and ultimately progress. This is what many dispute resolution academics teach their students. But we are caught in such an extraordinarily polarized time, and many wonder what role ADR can and should play in navigating a polarized era. That was the question addressed by Texas A&M School of Law's March 2020 symposium, with the resulting articles - by Baruch Bush & Peter Miller, Jonathan Cohen, Jill DeTemple, …

Curbing Concepcion: How States Can Ease The Strain Of Predispute Arbitration To Counter Corporate Abusers, Cameron Molis

University of Pennsylvania Journal of Law and Social Change

No abstract provided.

J. Krishnamurti And The Contemporary World Crises: Scholars’ Panel Two Session Four, Ashwani Kumar, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this presentation, I describe my journey with Krishnamurti’s existential inquiry at a personal level and in the context of my academic life. I was introduced to Krishnamurti’s work during my Bachelor of Education program in India in 2004. While Krishnamurti was quite peripheral to the curriculum, he became a central focus of study for me during the Bachelor of Education, Masters of Education, and during my PhD. His insights have had a deep impact on how I view personal, educational, and social problems and how I approach teaching and research. His work is central to the four pedagogical and …

Psychological Abuse Claims In Family Law Courts In Bc: Legal Applications And Gaps, Haya Sakakini

Canadian Journal of Family Law

This research paper investigates a particular form of family violence (“FV”) under the British Columbia Family Law Act (FLA): psychological abuse. The paper defines the scope and assessment of psychological abuse claims in family law courts (“courts”) in British Columbia since 2013. It identifies the shortcomings in addressing such claims and analyzes the multifaceted reasons behind the limitations and gaps which victims of psychological abuse face when bringing forward such claims.

The paper provides a brief background on FV and psychological abuse before moving on to identifying the various forms of psychological abuse accepted by courts in BC, …

J. Krishnamurti And The Contemporary World Crises: Introduction To The Conference Proceedings, Ashwani Kumar, Nayha Acharya

Articles, Book Chapters, & Popular Press

We, Ashwani Kumar and Nayha Acharya, are excited and honoured to share the conference proceedings of the J. Krishnamurti and the Contemporary World Crises International Online Conference. The conference took place at the end of February 2021. It was free for anyone to attend. In our introduction we share how the conference was conceptualized, why J. Krishnamurti is a relevant focus in today’s world, how the conference unfolded, and how attendees responded to this conference.

I, Ashwani Kumar, have spent much of my academic journey studying, applying, teaching, and engaging in dialogues about J. Krishnamurti’s insights into human consciousness and …

Class Certification In The U.S. Courts Of Appeals: A Longitudinal Study, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

There is a vast literature on the modern class action, but little of it is informed by systematic empirical data. Mindful both that there have been few Supreme Court class certification decisions and that they may not provide an accurate picture of class action jurisprudence, let alone class action activity, over time, we created a comprehensive data set of class certification decisions in the United States Courts of Appeals consisting of all precedential panel decisions addressing whether a class should be certified from 1966 through 2017, and of nonprecedential panel decisions from 2002 through 2017.

In Section I, through a …

Talking About Abortion (Listening Optional), Jennifer W. Reynolds

Texas A&M Law Review

Whether we can expect others to listen—and whether we choose to listen to others—have become central challenges in handling conflicts around polarized and high-profile political matters. For those who study alternative dispute resolution (“ADR”), these concerns about listening hit especially close to the bone because they implicate some of the most foundational precepts of dispute resolution practice. This paper explores some of these implications in the context of the fight over reproductive rights, with special focus on the “listening dilemma” that people experience when navigating extremely difficult conversations around crucial political entitlements, especially when those entitlements are in the process …

Targeting The Texas Citizen Participation Act: The 2019 Texas Legislature's Amendments To A Most Consequential Law, Amy Bresnen, Lisa Kaufman, Steve Bresnen

St. Mary's Law Journal

Few Texas laws enacted in recent decades have had a greater impact on civil litigation or been more litigated than the Texas Citizen’s Participation Act (“TCPA”) passed in 2011. Despite its stated purpose of protecting First Amendment rights, as written, the TCPA’s seemingly limitless application confounded judges and litigants alike, causing the 86th Legislature in 2019 to pass sweeping changes to that law. The Article describes the original statute’s problematic nature, the caselaw interpreting it, and the recent changes’ legislative history and substance. The authors highlight contributions of key legislators and stakeholders. The Article’s extensive treatment of changes to key …

Research Across The Curriculum: Using Cognitive Science To Answer The Call For Better Legal Research Instruction, Tenielle Fordyce-Ruff

Dickinson Law Review (2017-Present)

The American Bar Association (ABA), law students, and employers are demanding that law schools do better when teaching legal research. Academic critics are demanding that law professors begin to apply the lessons from the science of learning to improve student outcomes. The practice of law is changing.

Yet, the data shows that law schools are not changing their legal research curriculum to respond to the need of their students or to address the ABA’s mandate. This stagnation comes at the same time as an explosion in legal information and a decrease in technical research skills among incoming students. This article …

Copyright Reform: Imagining More Balanced Copyright Laws, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Earlier chapters of this book provide a history of copyright and libraries in the United States, a review of outdated language in the existing copyright code, and a discussion of actions by both copyright owners and the public to rebalance copyright outside of legislation. This chapter simply imagines what copyright could be if we disregard the known political and legal obstacles. It starts with no constraints, which one might argue is both impractical and foolish. Why spend time discussing what could be when treaties, self-interest, and powerful industry lobbies stand in the way?

The answer is simply that environments can …