Digital Commons Network^™

Ex Post Modernism: How The First Amendment Framed Nonrepresentational Art, Sonya G. Bonneau

Sonya G Bonneau

Nonrepresentational art repeatedly surfaces in legal discourse as an example of highly valued First Amendment speech. It is also systematically described in constitutionally valueless terms: nonlinguistic, noncognitive, and apolitical. Why does law talk about nonrepresentational art at all, much less treat it as a constitutional precept? What are the implications for conceptualizing artistic expression as free speech?

This article contends that the source of nonrepresentational art’s presumptive First Amendment value is the same source of its utter lack thereof: modernism. Specifically, a symbolic alliance between abstraction and freedom of expression was forged in the mid-twentieth century, informed by social and …

Troubled Waters: Diana Nyad And The Birth Of The Global Rules Of Marathon Swimming, Hadar Aviram

Hadar Aviram

On September 3, 2013, Diana Nyad reported having completed a 110-mile swim from Cuba to Florida. The general enthusiasm about her swim was not echoed in the marathon swimming community, whose members expressed doubts about the integrity and honesty of the swim. The community debate that followed gave rise to the creation of the Global Rules of Marathon Swimming, the first effort to regulate the sport. This Article uses the community’s reaction to Nyad’s deviance to examine the role that crime and deviance plays in the creation and modification of legal structures. Relying on Durkheim’s functionalism theory, the Article argues …

Restorative Justice In The Gilded Age: Shared Principles Underlying Two Movements In Criminal Justice, Ali M. Abid

Ali M Abid

Two very different approaches to Criminal Justice have developed in recent years suggesting systemic reforms that would reduce rates of crime and incarceration and lessen the disproportionate effect on minority groups and other suspect classes. The first of these is the Restorative Justice movement, which has programs operating in most US states and many countries around the world. The Restorative Justice movement focuses on reintegrating offenders with the community and having them repair the damage directly to their victims. The movement describes itself as based on the systems of indigenous and pre-modern societies and as wholly distinct from the conventional …

Unesco’S Cultural Heritage Lists: Protecting Indigenous Traditional Sports And Games, Jesse W. Busta

Jesse Busta

This Note, entitled UNESCO’s Cultural Heritage Lists: Protecting Indigenous Traditional Sports and Games, will be the first to examine fully from a legal perspective a proposal to develop a means for protecting indigenous traditional sports and games, which are a valuable asset to all humanity. Protections are needed for indigenous traditional sports and games due to the harmful effects of globalization and the deviation of today’s people from their ancestors’ traditions. Currently, only tangible cultural heritage and limited intangible cultural heritage are protected by the United Nations Educational, Scientific, and Cultural Organization (“UNESCO”). Cultural heritage forms the backbone of human …

Leaving The Dale To Be More Fair: On Cls And First Amendment Jurisprudence, Mark Strasser

Mark Strasser

In Christian Legal Society of the University of California, Hastings College of Law v. Martinez, the Supreme Court upheld the Hastings College of Law’s requirement that all recognized student groups have an open membership policy. The decision has been criticized for a variety of reasons, e.g., that the Court conflated the First Amendment tests for speech and association. What has not been adequately explored is the degree to which the Court has modified limited purpose public forum analysis in the university context over the past few decades, resulting in a jurisprudence that is virtually unrecognizable in light of the more …

Preventive Detention In The Law Of Armed Conflict: Throwing Away The Key?, Diane Webber

Diane Webber

More than ten years after 9/11, the “clear legal framework for handling alleged terrorists” promised by President Obama in 2009 is still undeveloped and “the country continues to hold suspects indefinitely, with no congressionally approved mechanism for regular judicial review.” Should terrorists be treated as criminals, involving traditional criminal law methods of detection, interrogation, arrest and trial? Or should they be treated as though they were involved in an armed conflict, which would involve detention and trial in accordance with a completely different set of rules and procedures? Neither model is a perfect fit to deal with twenty-first century terrorism. …

Weak Loyalties: How The Rule Of Law Prevents Coups D'Etat And Generates Long-Term Political Stability, Ivan Perkins

Ivan Perkins

The “rule of law” is lauded for producing a variety of positive governance characteristics, including minimal corruption, human rights, and economic prosperity. What has been overlooked, however, is that rule-of-law institutions are also responsible for another phenomenon: the fact that certain states experience long-term political stability, without any coups or coup attempts (defined as internal efforts to seize central state authority through force). The prevailing theory of stability holds that “professional” military officers refrain from coups because they have internalized norms of civilian authority and constitutional procedure. However, this theory requires a system of socialization capable of counteracting self-interest, throughout …

The Ancient And Honorable Court Of Dover: Mock Trials, Fraternal Orders, And Solemn Foolery In Nineteenth-Century New York State, Angela Fernandez

Angela Fernandez

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom …

The Ancient And Honorable Court Of Dover: Mock Trials, Fraternal Orders, And Solemn Foolery In Nineteenth-Century New York State, Angela Fernandez

Angela Fernandez

This article is about a fraternal order operating in the first half of the Nineteenth Century in New York called “The Ancient and Honorable Court of Dover.” This group organized a mock trial, probably in 1834, to prosecute one of its members. A prosecutor was appointed and the President of the group gave a long speech. At issue was whether or not non-members could participate in the trial. After a description of these records and an account of their discovery, this article explains who the individuals involved in the trial were, Jacksonian politicians and lawyers with connections to the Custom …

"Trophy Husbands" And "Opt-Out" Moms, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Women were not the only ones opting out. Nearly one year before The New York Times in its article “The Opt-Out Revolution” showcased highly educated, upwardly mobile women opting out of paid work for the lure of staying at home, Fortune magazine had already reported that some men, which it coined “trophy husbands,” had been doing the same. “Trophy husbands” were presented as leaving paid work by choice, like their later opt-out counterparts. Opt-out moms and trophy husbands—as described in these two germinal stories—have much in common. While, on the surface, the actions of these mothers and fathers may have …

Grutter's Regrets: An Empirical Investigation Of How Affirmative Action Is(N'T) Working, Deirdre Bowen

Deirdre M Bowen

This exploratory empirical work examines whether students of color enjoy the benefits articulated by the U.S. Supreme Court in the Grutter decision that rationalized the continuation of affirmative action based on diversity interests. Specifically, the Court stated that affirmative action was permissible because students of all backgrounds would increase their racial understanding and decrease their racial stereotyping of minorities. Supporters and opponents were skeptical that such benefits would really materialize for students of color. Supporters argued that minority students would merely be tokens in which only white students would benefit from a diverse classroom. Opponents argued that this diversity rationale …

A Post-Racial Voting Rights Act, Jason Rathod (R-Z)

Jason Rathod (R-Z)

The Voting Rights Act of 1965 (VRA) was enacted “to foster our transformation to a society that is no longer fixated on race.” Georgia v. Ashcroft, 539 U.S. 461, 490 (2003). This article critiques the prevailing election law scholarship and jurisprudence as out of step with VRA’s post-racial aspirations and offers proposals for Congress to correct course. The United States has long been torn between civic nationalism and racial nationalism. By the mid-20th Century, the uneasy interplay of these visions had produced a remarkable expansion of citizenship to all migrants from Europe alongside appalling discrimination against, or outright exclusion of, …

Freedom In A Slave Country: A True Story Of Race, Law, Sex, And Politics, Jason A. Gillmer

Jason A Gillmer

This Article unpacks the rich and textured story of the Ashworths, an obscure yet prosperous free family of color in the antebellum South who owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the times there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which—despite legal rules and conventional thinking—life was not so black and white. Drawing on local records rather than canonical cases, and listening to the voices from the community rather than the legislatures, this Article emphasizes the …

Shades Of Gray: The Life And Times Of An Antebellum Free Family Of Color, Jason A. Gillmer

Jason A Gillmer

The history of race and slavery is often told from the perspective of either the oppressors or the oppressed. This Article takes a different tact, unpacking the rich and textured story of the Ashworths, an obscure yet prosperous free family of color who moved from Louisiana to Texas in the early 1830s, where they owned land, raised cattle, and bought and sold slaves. It is undoubtedly an unusual story; indeed in the history of the time there are surely more prominent names and more famous events. Yet their story reveals a tantalizing world in which—despite legal rules and conventional thinking—life …

“Why Rebottle The Genie?”: Capitalizing On Closure In Death Penalty Proceedings, Jody L. Madeira

Jody L Madeira

Closure, though a term with great rhetorical force in the capital punishment context, has to date evaded systematic analysis, instead becoming embroiled in ideological controversy. For victims who have rubbed the rights lamp for years, inclusion in capital proceedings and accompanying closure opportunities are perceived as a force with the potential to grant wishes of peace and finality. Scholars, however, argue for rebottling the closure genie lest closure itself prove false or its pursuit violate a defendant’s constitutional rights. In order to effectively appraise the relationship of closure to criminal jurisprudence, however, and thus to decide whether and to what …

Anton Chekhov’S “Home” And “A Visit To Friends”: The Dichotomy Between The Personal And The Professional, Or The Lawyer Subjectified And Objectified, James Downing Redwood

James Downing Redwood

The busy life of the practicing attorney is proverbial and leaves but little room and time for the demands of home. Further, it is equally well known that the lawyer’s training emphasizes the objective over the subjective, the rational and logical over the emotional and personal. This article analyzes two short stories by the renowned Russian author Anton Chekhov, both of which give the reader a practicing lawyer attempting to reconcile the demands of the office with those of the home. In one story the attorney harmonizes the two by becoming more personal and “subjectified,” while in the other work …

Anton Chekhov's "Home" And "A Visit To Friends": The Dichotomy Between The Personal And The Professional, Or The Lawyer Subjectified And Objectified, James Redwood

James Downing Redwood

The busy life of the practicing attorney is proverbial and leaves but little room and time for the demands of home. Further, it is equally well known that the lawyer’s training emphasizes the objective over the subjective, the rational and logical over the emotional and personal. This article analyzes two short stories by the renowned Russian author Anton Chekhov, both of which give the reader a practicing lawyer attempting to reconcile the demands of the office with those of the home. In one story the attorney harmonizes the two by becoming more personal and “subjectified,” while in the other work …

Anton Chekhov's "Home" And "A Visit To Friends": The Dichotomy Between The Personal And The Professional, Or The Lawyer Subjectified And Objectified, James Downing Redwood

James Downing Redwood

The busy life of the practicing attorney is proverbial and leaves but little room and time for the demands of home. Further, it is equally well known that the lawyer’s training emphasizes the objective over the subjective, the rational and logical over the emotional and personal. This article analyzes two short stories by the renowned Russian author Anton Chekhov, both of which give the reader a practicing lawyer attempting to reconcile the demands of the office with those of the home. In one story the attorney harmonizes the two by becoming more personal and “subjectified,” while in the other work …

Accountable Intelligence And Intelligent Accountability, Mary O'Rawe

Mary O'Rawe

Abstract Intelligence led policing is in the ascendancy on a global level. This poses serious and often delegitimated questions around law’s ability to prevent and sanction wrongdoing by state security agents. The ramifications of law’s failures are particularly felt in conflicted and post conflict societies. This paper, through the prism of the Northern Ireland experience, problematises the more global sanitation and reification of ‘covert intelligence’ approaches and their potential to contribute to insecurity rather than security.

"Nigger": A Critical Race Realist Analysis Of The N-Word Within Hate Crimes Law, Shayne E. Jones, Gregory S. Parks

Shayne E Jones

On a 2005 summer morning, Nicholas “Fat Nick” Minucci (White) beat Glenn Moore (Black) with a baseball bat and robbed him. During the assault, Minucci repeatedly screamed the N-word. At trial, Minucci’s attorney argued that he had not committed a hate crime. The essence of the defense’s argument was that Minucci’s use of the N-word while assaulting and robbing Moore was not indicative of any bias or prejudice. The defense went on to indicate that Minucci had Black friends, was immersed in Black culture, and employed the N-word as part of his everyday vocabulary. Two Black men—Gary Jenkins (hip hop …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …

Property, Persona, And Publicity, Deven R. Desai

Deven R. Desai

This article focuses on a paradox latent within the nature of creative phenomenon: although one can find strong arguments for control over intangible creations during one’s life, these arguments falter if not fail after the creator dies. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such and service providers terminate or deny access to people’s property all the time. In addition, when one dies, some …

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias In Employer-Defendants, Jessica Fink

Jessica Fink

In recent years, employees have turned with increasing frequency to the courts to redress alleged violations of their civil rights in the workplace, often bringing suits under laws such as Title VII of the Civil Rights Act of 1964. Indeed, employment discrimination claims consistently consume a substantial (and rising) portion of the federal court docket. In the four-plus decades since the passage of Title VII, however, the nature of workplace bias itself has changed, becoming more difficult to detect in many cases. Some employers, often with the help of counsel, have learned to finesse their workplace actions to avoid the …

How Government Regulation Forces Americans Into Their Cars: A Case Study, Michael E Lewyn

Michael E Lewyn

Shows how zoning law in Jacksonville contributes to automobile dependence.