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Articles 1 - 30 of 100
Full-Text Articles in Law
The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake
The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake
Articles
The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …
Global Issues In A Globalized World: The Unescapable Dialogue Between SharīʿA And The Constitution, Paolo Davide Farah
Global Issues In A Globalized World: The Unescapable Dialogue Between SharīʿA And The Constitution, Paolo Davide Farah
Book Chapters
In an increasingly globalized world, a world in flux, which is constantly subject to rapid circulation of information, change is a dimension that we all experience in our lives with ever increasing frequency. Change, be it that of customs and fashion or that of laws and systems of government, is something which now seems impossible to escape. Change is an integral part of our unstable contemporaneity.
This is not only a continuous change but also a rapid one. In such a social and political environment, at a global and local level, it is more and more difficult to find a …
Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), Spearit
Muslim Prisoner Litigation: An Unsung American Tradition (Introduction), Spearit
Book Chapters
For most Americans, “prison jihad” may sound frightening and conjure images of religious militants, bearded, turbaned, and under the spell of foreign radical networks…. While this may be the immediate impression, there is nothing like that happening in American prisons. However, there has been a different type of jihad taking place, one that is real and identifiable. This is not the sensational jihad of headline media; rather, this jihad is uneventful and quiet by comparison and has persisted since the 1960s with hardly any public notice.
Despite little attention and recognition, Muslims in prison occupy a unique spot in the …
Title Ix's Trans Panic, Deborah L. Brake
Title Ix's Trans Panic, Deborah L. Brake
Articles
Sport is an agent of social change, but that change does not always track in a progressive direction. Sport can be a site for contesting and reversing the gains of progressive social movements as much as furthering the values of equality and justice for historically marginalized groups. This dynamic of contestation and reversal is now playing out in a new wave of anti-transgender backlash that has gained adherents among some proponents of equal athletic opportunities for girls and women. In this latest twist in the debate over who deserves the opportunity to compete, the sex-separate athletic programming permitted by Title …
Understanding An American Paradox: An Overview Of The Racial Muslim: When Racism Quashes Religious Freedom, Spearit
Articles
In The Racial Muslim: When Racism Quashes Religious Freedom, Sahar Aziz unveils a mechanism that perpetuates the persecution of religion. While the book’s title suggests a problem that engulfs Muslims, it is not a new problem, but instead a recurring theme in American history. Aziz constructs a model that demonstrates how racialization of a religious group imposes racial characteristics on that group, imbuing it with racial stereotypes that effectively treat the group as a racial rather than religious group deserving of religious liberty.
In identifying a racialization process that effectively veils religious discrimination, Aziz’s book points to several important …
Introduction To Oxford Handbook Of Feminism And Law In The U.S., Deborah L. Brake, Martha Chamallas, Verna L. Williams
Introduction To Oxford Handbook Of Feminism And Law In The U.S., Deborah L. Brake, Martha Chamallas, Verna L. Williams
Book Chapters
Combining analyses of feminist legal theory, legal doctrine and feminist social movements, this Handbook offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. It connects legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinizes criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent …
Muslims In Prison: Advancing The Rule Of Law Through Litigation Praxis, Spearit
Muslims In Prison: Advancing The Rule Of Law Through Litigation Praxis, Spearit
Articles
Islamic ideas about justice and equality directly informed the development of prison law jurisprudence in the United States. Since the early 1960s, when federal courts began to hear claims by state prisoner-petitioners, Muslims began to look to courts to establish Islam in prison and inaugurated an ongoing campaign for civil rights. The trend is significant when considering Muslims represent a relatively small percentage of the American population. Decades of persistent litigation by Muslims in courts have been integral to developing the prisoners’ rights movement in America. The Muslim impact on prison law and culture is an underappreciated phenomenon that involves …
Nazi Stolen Art: Uses And Misuses Of The Foreign Sovereign Immunities Act, Vivian Grosswald Curran
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 …
Calls For Change: Seeing Cancel Culture From A Multi-Level Perspective, Tomar Pierson-Brown
Calls For Change: Seeing Cancel Culture From A Multi-Level Perspective, Tomar Pierson-Brown
Articles
Transition Design offers a framework and employs an array of tools to engage with complexity. “Cancel culture” is a complex phenomenon that presents an opportunity for administrators in higher education to draw from the Transition Design approach in framing and responding to this trend. Faculty accused of or caught using racist, sexist, or homophobic speech are increasingly met with calls to lose their positions, titles, or other professional opportunities. Such calls for cancellation arise from discreet social networks organized around an identified lack of accountability for social transgressions carried out in the professional school environment. Much of the existing discourse …
Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake
Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake
Articles
This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …
9/11 Impacts On Muslims In Prison, Spearit
9/11 Impacts On Muslims In Prison, Spearit
Articles
This essay is part of a volume that reflects on the 20-year anniversary of the attacks of September 11, 2001. The work examines the impacts this event had on the management of Muslims in prison. Soon after the attacks, the culture war against Muslims in the United States began to seep into prisons, where Muslims faced heightened levels of Islamophobia, which cut across several areas of existence: the ability to access religious literature, religious leaders, and paraphernalia, in addition to the federal creation of Communication Management Units. There was also heightened hysteria about the idea of Muslim radicalization in prison, …
Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc Tizoc Gonzaléz, Sarudzayi M. Matambanadzo, Sheila I. Velez Martinez
Latina And Latino Critical Legal Theory: Latcrit Theory, Praxis And Community, Marc Tizoc Gonzaléz, Sarudzayi M. Matambanadzo, Sheila I. Velez Martinez
Articles
LatCrit theory is a relatively recent genre of critical “outsider jurisprudence” – a category of contemporary scholarship including critical legal studies, feminist legal theory, critical race theory, critical race feminism, Asian American legal scholarship and queer theory. This paper overviews LatCrit’s foundational propositions, key contributions, and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. The paper organizes this conversation highlighting Latcrit’s theory, community and praxis.
Lawyers For White People?, Jessie Allen
Lawyers For White People?, Jessie Allen
Articles
This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate against …
Law And Authors: A Legal Handbook For Writers (Introduction), Jacqueline D. Lipton
Law And Authors: A Legal Handbook For Writers (Introduction), Jacqueline D. Lipton
Book Chapters
Drawing on a wealth of experience in legal scholarship and publishing, Professor Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, academic, journalism, freelance content development). This introductory chapter outlines the key legal and business issues authors are likely to face during the course of their careers, and emphasizes that most legal problems have solutions so law should never be an excuse to avoid writing something that an author feels strongly about creating. The larger work draws from case studies and hypothetical examples to address issues of copyright …
Rules, Tricks And Emancipation, Jessie Allen
Rules, Tricks And Emancipation, Jessie Allen
Book Chapters
Rules and tricks are generally seen as different things. Rules produce order and control; tricks produce chaos. Rules help us predict how things will work out. Tricks are deceptive and transgressive, built to surprise us and confound our expectations in ways that can be entertaining or devastating. But rules can be tricky. General prohibitions and prescriptions generate surprising results in particular contexts. In some situations, a rule produces results that seem far from what the rule makers expected and antagonistic to the interests the rule is understood to promote. This contradictory aspect of rules is usually framed as a downside …
Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman
Reproducing Inequality Under Title Ix, Deborah L. Brake, Joanna L. Grossman
Articles
This article elaborates on and critiques the law’s separation of pregnancy, with rights grounded in sex equality under Title IX, from reproductive control, which the law treats as a matter of privacy, a species of liberty under the due process clause. While pregnancy is the subject of Title IX protection, reproductive control is parceled off into a separate legal framework grounded in privacy, rather than recognized as a matter that directly implicates educational equality. The law’s division between educational equality and liberty in two non-intersecting sets of legal rights has done no favors to the reproductive rights movement either. By …
Foreword: The Dispossessed Majority: Resisting The Second Redemption In América Posfascista (Postfascist America) With Latcrit Scholarship, Community, And Praxis Amidst The Global Pandemic, Sheila I. Velez Martinez
Foreword: The Dispossessed Majority: Resisting The Second Redemption In América Posfascista (Postfascist America) With Latcrit Scholarship, Community, And Praxis Amidst The Global Pandemic, Sheila I. Velez Martinez
Articles
As LatCrit reaches its twenty-fifth anniversary, we aspire for this symposium Foreword to remind its readers of LatCrit’s foundational propositions and ongoing efforts to cultivate new generations of ethical advocates who can systemically analyze the sociolegal conditions that engender injustice and intervene strategically to help create enduring sociolegal, and cultural, change. Working for lasting social change from an antisubordination perspective enables us to see the myriad laws, regulations, policies, and practices that, by intent or effect, enforce the inferior social status of historically- and contemporarily-oppressed groups. In turn, working with a perspective and principle of antisubordination can inspire us to …
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Articles
2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …
Coworker Retaliation In The #Metoo Era, Deborah Brake
Coworker Retaliation In The #Metoo Era, Deborah Brake
Articles
The national firestorm sparked by #MeToo has galvanized feminist legal scholars to reconsider the Title VII framework governing workplace sexual harassment and the potential for #MeToo to transform workplace culture in a way that Title VII, to date, has not. In the analysis of #MeToo’s prospects for change, less attention has been paid to how Title VII’s protection from retaliation intersects with the movement. One particular aspect of retaliation law – coworker retaliation – has thus far escaped the attention of legal scholars. Already underdeveloped as a species of retaliation law, coworker retaliation holds particular resonance for the #MeToo movement …
Automatically Extracting Meaning From Legal Texts: Opportunities And Challenges, Kevin D. Ashley
Automatically Extracting Meaning From Legal Texts: Opportunities And Challenges, Kevin D. Ashley
Articles
This paper examines impressive new applications of legal text analytics in automated contract review, litigation support, conceptual legal information retrieval, and legal question answering against the backdrop of some pressing technological constraints. First, artificial intelligence (Al) programs cannot read legal texts like lawyers can. Using statistical methods, Al can only extract some semantic information from legal texts. For example, it can use the extracted meanings to improve retrieval and ranking, but it cannot yet extract legal rules in logical form from statutory texts. Second, machine learning (ML) may yield answers, but it cannot explain its answers to legal questions or …
Using Ai To Analyze Patent Claim Indefiniteness, Dean Alderucci, Kevin D. Ashley
Using Ai To Analyze Patent Claim Indefiniteness, Dean Alderucci, Kevin D. Ashley
Articles
In this Article, we describe how to use artificial intelligence (AI) techniques to partially automate a type of legal analysis, determining whether a patent claim satisfies the definiteness requirement. Although fully automating such a high-level cognitive task is well beyond state-of-the-art AI, we show that AI can nevertheless assist the decision maker in making this determination. Specifically, the use of custom AI technology can aid the decision maker by (1) mining patent text to rapidly bring relevant information to the decision maker attention, and (2) suggesting simple inferences that can be drawn from that information.
We begin by summarizing the …
Exploring Diversity With A "Culture Box" In First-Year Legal Writing, Ann N. Sinsheimer
Exploring Diversity With A "Culture Box" In First-Year Legal Writing, Ann N. Sinsheimer
Articles
Studying law is in many ways like studying another culture. Students often feel as though they are learning a new language with unfamiliar vocabulary and different styles of communication. Throughout their legal education, students are also exposed to a profession comprised of unique traditions and expectations. As a result, learning law takes time and energy. It can be both engaging and frustrating and may even challenge some of students’ values and belief systems. To ease her students’ transition to law school, the author starts her course each year with a “culture box” exercise, which encourages students to examine who they …
The Foreign Sovereign Immunities Act's Evolving Genocide Exception, Vivian Grosswald Curran
The Foreign Sovereign Immunities Act's Evolving Genocide Exception, Vivian Grosswald Curran
Articles
The Foreign Sovereign Immunities Act (FSIA) was passed by Congress as a comprehensive statute to cover all instances when foreign states are to be immune from suit in the courts of the United States, as well as when foreign state immunity is to be limited. Judicial interpretation of one of the FSIA’s exceptions to immunity has undergone significant evolution over the years with respect to foreign state property expropriations committed in violation of international law. U.S. courts initially construed this FSIA exception by denying immunity only if the defendant state had expropriated property of a citizen of a nation other …
Contraceptive Equity: Curing The Sex Discrimination In The Aca's Mandate, Greer Donley
Contraceptive Equity: Curing The Sex Discrimination In The Aca's Mandate, Greer Donley
Articles
Birth control is typically viewed as a woman’s problem despite the fact that men and women are equally capable of using contraception. The Affordable Care Act’s contraceptive mandate (Mandate), which requires insurers to cover all female methods of birth control without cost, promotes this assumption and reinforces contraceptive inequity between the sexes. By excluding men, the Mandate burdens women in four ways: it fails to financially support a quarter to a third of women that rely on male birth control to prevent pregnancy; it incentivizes women to endure the risks and side effects of birth control when safer options exist …
Regulation Of Encapsulated Placenta, Greer Donley
Regulation Of Encapsulated Placenta, Greer Donley
Articles
The practice of placenta encapsulation is rapidly growing. It typically involves post-partum mothers consuming their placentas as pills in the months after childbirth. The perceived benefits include improved mood and energy, reduced bleeding and pain, and greater milk supply. But these effects are unproven, and consumption comes with health risks. The rise of this trend has sparked a vigorous debate in the recent medical literature, but this Article is the first to consider the legal implications of placenta encapsulation. This Article examines whether FDA should regulate encapsulated placenta, and if so, whether it should be regulated as a drug, supplement, …
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Doctrinal Reasoning As A Disruptive Practice, Jessie Allen
Articles
Legal doctrine is generally thought to contribute to legal decision making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.
Critical Race Ip, Anjali Vats, Deidre A. Keller
Critical Race Ip, Anjali Vats, Deidre A. Keller
Articles
In this Article, written on the heels of Race IP 2017, a conference we co-organized with Amit Basole and Jessica Silbey, we propose and articulate a theoretical framework for an interdisciplinary movement that we call Critical Race Intellectual Property (Critical Race IP). Specifically, we argue that given trends toward maximalist intellectual property policy, it is now more important than ever to study the racial investments and implications of the laws of copyright, trademark, patent, right of publicity, trade secret, and unfair competition in a manner that draws upon Critical Race Theory (CRT). Situating our argument in a historical context, we …
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
A Case Of Motivated Cultural Cognition: China's Normative Arbitration Of International Business Disputes, Pat K. Chew
Articles
The centuries-old conception of judges and arbitrators as highly predictable and objective is being dismantled. In its place, a much more textured, complicated, and challenging understanding of legal decision-making is being constructed. New research on “Motivated Cognition” demonstrates that judges and arbitrators are more human than mechanical, pouring themselves – and the cultural and institutional contexts within which they act – into their decision making. This article extends the emerging model of Motivated Cultural Cognition, a form of Motivated Cognition, to the global stage, investigating arbitration of business disputes between two world-powers: United States and China. Through a first-of-its-kind empirical …
Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen
Blackstone, Expositor And Censor Of Law Both Made And Found, Jessie Allen
Book Chapters
Jeremy Bentham famously insisted on the separation of law as it is and law as it should be, and criticized his contemporary William Blackstone for mixing up the two. According to Bentham, Blackstone costumes judicial invention as discovery, obscuring the way judges make new law while pretending to uncover preexisting legal meaning. Bentham’s critique of judicial phoniness persists to this day in claims that judges are “politicians in robes” who pick the outcome they desire and rationalize it with doctrinal sophistry. Such skeptical attacks are usually met with attempts to defend doctrinal interpretation as a partial or occasional limit on …
Back To Basics: Excavating The Sex Discrimination Roots Of Campus Sexual Assault, Deborah Brake
Back To Basics: Excavating The Sex Discrimination Roots Of Campus Sexual Assault, Deborah Brake
Articles
This article, written for a symposium devoted to the legacy of celebrated Lady Vols coach, Pat Summit, connects the dots between Title IX’s regulation of campus sexual assault and the law’s overarching goal of expanding women’s access to leadership. Beginning with a discussion of how sexual objectification and harassment obstruct women’s paths to leadership, the article situates campus sexual assault as an important part of Title IX’s overarching agenda to promote equal educational opportunity. Although liberal feminism and dominance feminism are often discussed as competing theoretical frames for understanding and challenging gender inequality, they are best seen as complementary and …