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Articles 1 - 21 of 21
Full-Text Articles in Law
On Time, (In)Equality, And Death, Fred O. Smith Jr.
On Time, (In)Equality, And Death, Fred O. Smith Jr.
Michigan Law Review
In recent years, American institutions have inadvertently encountered the bodies of former slaves with increasing frequency. Pledges of respect are common features of these discoveries, accompanied by cultural debates about what “respect” means. Often embedded in these debates is an intuition that there is something special about respecting the dead bodies, burial sites, and images of victims of mass, systemic horrors. This Article employs legal doctrine, philosophical insights, and American history to both interrogate and anchor this intuition.
Law can inform these debates because we regularly turn to legal settings to resolve disputes about the dead. Yet the passage of …
Beyond #Metoo: Addressing Workplace Sexual Misconduct Cases And The Targeted Use Of Non-Disclosure Agreements, Taylor Percival, Lane Gibbons
Beyond #Metoo: Addressing Workplace Sexual Misconduct Cases And The Targeted Use Of Non-Disclosure Agreements, Taylor Percival, Lane Gibbons
Brigham Young University Prelaw Review
Recent allegations against prominent figures have brought the targeted use of non-disclosure agreements (NDAs) in sexual misconduct cases to public knowledge. NDAs have historically been used in a variety of ways in such cases, but situations of coercion and uneven power dynamics often leave victims with no real choice, and they end up losing their right to speak publicly about their experiences. This paper discusses the history of NDAs in sexual misconduct cases, explores when and why their enforcement is unlawful, and proposes the adoption of federal legislation like the BE HEARD Act to limit the inappropriate use of NDAs.
"If Consent Is Bought, It Is Not Freely Chosen": Compromised Consent In Prostituted Sex In Ireland, Ivana Bacik
"If Consent Is Bought, It Is Not Freely Chosen": Compromised Consent In Prostituted Sex In Ireland, Ivana Bacik
Dignity: A Journal of Analysis of Exploitation and Violence
This article offers feminist arguments for the reconsideration of consent as a legal concept, informed by insights gained through the work of the #MeToo movement and other feminist campaigns. It suggests that consent may be seen as legally compromised in certain contexts of structured gender inequality, such as domestic violence, workplace sexual harassment, and prostitution. The legal understanding of consent in such contexts is antithetical to the conception of consent as “freely and voluntarily” given within a mutual sexual relationship. This understanding of consent underpins the recent introduction of the Nordic model approach into Irish law through the Criminal Law …
Due Process Supreme Court Appellate Division
Health Information Equity, Craig Konnoth
Health Information Equity, Craig Konnoth
Publications
In the last few years, numerous Americans’ health information has been collected and used for follow-on, secondary research. This research studies correlations between medical conditions, genetic or behavioral profiles, and treatments, to customize medical care to specific individuals. Recent federal legislation and regulations make it easier to collect and use the data of the low-income, unwell, and elderly for this purpose. This would impose disproportionate security and autonomy burdens on these individuals. Those who are well-off and pay out of pocket could effectively exempt their data from the publicly available information pot. This presents a problem which modern research ethics …
Marriage, Monogamy, And Affairs: Reassessing Intimate Relationships In Light Of Growing Acceptance Of Consensual Non-Monogamy, Linda S. Anderson
Marriage, Monogamy, And Affairs: Reassessing Intimate Relationships In Light Of Growing Acceptance Of Consensual Non-Monogamy, Linda S. Anderson
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein
Storming The Castle: Fernandez V. California And The Waning Warrant Requirement, Joshua Bornstein
Loyola of Los Angeles Law Review
No abstract provided.
The Dangers Of Psychotropic Medication For Mentally Ill Children: Where Is The Child’S Voice In Consenting To Medication? An Empirical Study, Donald H. Stone
The Dangers Of Psychotropic Medication For Mentally Ill Children: Where Is The Child’S Voice In Consenting To Medication? An Empirical Study, Donald H. Stone
All Faculty Scholarship
When a child with a mental illness is being prescribed psychotropic medication. who decides whether the child should take the medication — the parent or the child? What if the child is sixteen years of age? What if the child is in foster care: Should the parent or social service agency decide? Prior to administering psychotropic medication, what specific information should be provided to the person authorized to consent on behalf of the child? Should children be permitted to refuse psychotropic medications? If so, at what age should a child he able to refuse such medication What procedures should be …
A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand
A Liberalism Of Sincerity: The Role Of Religion In The Public Square, Michael Helfand
Michael A Helfand
This article considers the extent to which the liberal nation-state ought to accommodate religious practices that contravene state law and to incorporate religious discourse into public debate. To address these questions, the article develops a liberalism of sincerity based on John Locke’s theory of toleration. On such an account, liberalism imposes a duty of sincerity to prevent individuals from consenting to a regime that exercises control over matters of core concern such as faith, religion, and conscience. Liberal theory grounds the legitimacy of the state in the consent of the governed, but consenting to an intolerant regime is illegitimate because …
Substance And Method In The Year 2000, Akhil Reed Amar
Substance And Method In The Year 2000, Akhil Reed Amar
Pepperdine Law Review
No abstract provided.
Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens, Bernard E. Harcourt
Making Willing Bodies: Manufacturing Consent Among Prisoners And Soldiers, Creating Human Subjects, Patriots, And Everyday Citizens, Bernard E. Harcourt
Faculty Scholarship
In March 1944, doctors at the University of Chicago began infecting volunteer convicts at Stateville Prison with a virulent strand of malaria to test the effectiveness and side-effects of potent anti-malarial drugs. According to Dr. Alf Alving, the principal investigator, malaria "was the number-one medical problem of the war in the Pacific" and "we were losing far more men to malaria than to enemy bullets." This refrain would rehearse one of the most productive ways of speaking about prisoner experimentation. The Stateville prisoners became human once again and regained their citizenship and political voice by sacrificing their bodies to the …
The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout
The Language Of Consent In Police Encounters, Janice Nadler, J.D. Trout
Faculty Working Papers
In this chapter, we examine the nature of conversations in citizen-police encounters in which police seek to conduct a search based on the citizen's consent. We argue that when police officers ask a person if they can search, citizens often feel enormous pressure to say yes. But judges routinely ignore these pressures, choosing instead to spotlight the politeness and restraint of the officers' language and demeanor. Courts often analyze the language of police encounters as if the conversation has an obvious, context-free meaning. The pragmatic features of language influence behavior, but courts routinely ignore or deny this fact. Instead, current …
The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty
The Giuliani Years: Corporation Counsel 1994–1997, Paul A. Crotty
NYLS Law Review
No abstract provided.
Informed Consent For Routine Infant Circumcision: A Proposal, David Solomon
Informed Consent For Routine Infant Circumcision: A Proposal, David Solomon
NYLS Law Review
No abstract provided.
Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope
Monstrous Impersonation: A Critique Of Consent-Based Justifications For Hard Paternalism, Thaddeus Mason Pope
Faculty Scholarship
Restricting a person's substantially voluntary, self-regarding conduct primarily for the sake of that person is hard paternalism. Particularly in the public health context, scholars, legislators, and judges are devoting increasing attention to discussing the conditions and circumstances under which hard paternalism is justified. One popular type of argument for the justifiability of hard paternalism takes its normative warrant from the consent of the restricted person.
In this Article, I argue that scholars and policymakers should abandon consent-based arguments for the justifiability of hard paternalism. Such arguments are torn between incoherence and lacking moral force. Very few consent-based arguments successfully resolve …
Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Barnes
Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Barnes
Michigan Law Review
Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today . . . the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that. " Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It …
(E)Racing The Fourth Amendment, Devon W. Carbado
(E)Racing The Fourth Amendment, Devon W. Carbado
Michigan Law Review
It's been almost two years since I pledged allegiance to the United States of America - that is to say, became an American citizen. Before that, I was a permanent resident of America and a citizen of the United Kingdom. Yet, I became a black American long before I acquired American citizenship. Unlike citizenship, black racial naturalization was always available to me, even as I tried to make myself unavailable for that particular Americanization process. Given the negative images of black Americans on 1970s British television and the intra-racial tensions between blacks in the U.K. and blacks in America, I …
The Fourth Amendment: Relaxing The Rule In Child Abuse Investigations, Jillian Grossman
The Fourth Amendment: Relaxing The Rule In Child Abuse Investigations, Jillian Grossman
Fordham Urban Law Journal
This Note considers the Fourth Amendment concerns raised by strip searches of children in child abuse investigations. The Note first describes the evolution of children's rights and identifies the interests of the child and parents in child abuse investigations. The Note then analyzes the two exceptions under which a nude search of a child's body may be conducted - consent and exigent circumstances, as well as the qualified immunity defense with respect to social workers and police officers. Finally, this Note concludes that a child should possess the authority to consent to a strip search in a child abuse investigation …
Imagining Children's Rights, Suellyn Scarnecchia
Imagining Children's Rights, Suellyn Scarnecchia
Articles
Today, I will tell you some stories about real, live children, whose futures have been determined by our legal system. To speak of children's rights hypothetically, raises images of children suing to go live with their rich uncle or suing to demand a Nintendo system from their parents. I hope that by bringing you stories of the legal system's treatment of real children, you will have a better understanding of what I mean by children's rights and why they must be recognized. Although children's rights have been recognized in limited ways in the areas of free speech, criminal law and …
Surrogate Parenting After Baby M: The Ball Moves To The Legislature’S Court, John R. Dunne, Gregory V. Serio
Surrogate Parenting After Baby M: The Ball Moves To The Legislature’S Court, John R. Dunne, Gregory V. Serio
Touro Law Review
No abstract provided.