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Articles 1 - 30 of 44
Full-Text Articles in Law
Essentializing Cultures In Us Asylum Law, Jaclyn Kelley-Widmer, Estelle Mckee
Essentializing Cultures In Us Asylum Law, Jaclyn Kelley-Widmer, Estelle Mckee
Brooklyn Law Review
Asylum applicants must tell a story about their home country that reduces and problematizes its culture. The requirements of asylum law demand that an applicant show why they will suffer persecution in their home country and that their government will not protect them from it. This legal framework prompts applicants to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive—or even complicit—in the face of it. Such a narrative necessarily reduces the applicant’s culture to its …
A New Private Law Of Policing, Cristina Carmody Tilley
A New Private Law Of Policing, Cristina Carmody Tilley
Brooklyn Law Review
American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …
Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco
Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco
Brooklyn Law Review
The United States has continued to hold Puerto Rico as a colony, much like the British empire did the US colonies, and has given it no clear path to incorporation, statehood, or independent sovereignty. It has also denied its citizens the right to vote for their president and have voting representation in Congress. Current case law regarding Puerto Rican presidential voting rights and voting representation in Congress rests on precedent that dates almost as far back as its acquisition—the infamous Insular Cases. This case law is inconsistent with prior precedent, constitutional principles, and does not account for Puerto Rico’s contributions …
Addressing The Toll Of Truth Telling, Inga N. Laurent
Addressing The Toll Of Truth Telling, Inga N. Laurent
Brooklyn Law Review
Across the United States, there are mounting and renewed calls for applying restorative justice principles to deeply entrenched societal ills based on reconciliation, namely in the form of truth and reconciliation commissions (TRCs). Amid our great mobilization, we would be wise to pause, contemplating lessons from lived experiences. Since the 1970s, approximately thirty-five national truth commissions have taken place. In South Africa, Canada, Sierra Leone, and many processes, TRCs have proven adept at cataloguing approved instances of victim and survivors’ (VS) stories and elaborately contextualizing conflict through a new historical lens. Despite the transformative potential of TRCs, they are still …
We Speak The Queen’S English: Linguistic Profiling In The Legal Profession, Brenda D. Gibson
We Speak The Queen’S English: Linguistic Profiling In The Legal Profession, Brenda D. Gibson
Brooklyn Law Review
This article takes you on a journey through concept to practice where minoritized populations are often judged less than—less competent, less intelligent—and pushed to society’s margins because they do not speak or write “the Queen’s English.” This practice is particularly pervasive and handicapping to diversity efforts in the legal profession, beginning in law school classrooms. To make any headway into the legal profession’s lack of diversity, a better understanding is required of the undeniable connectedness of how our biases show up in our informal and formal assessment of the speech and writing of those whom we encounter. While it is …
Foreword: The Role Of The “Victim” In The Criminal Legal System, Kate Mogulescu
Foreword: The Role Of The “Victim” In The Criminal Legal System, Kate Mogulescu
Brooklyn Law Review
On September 24, 2021, the Brooklyn Law Review brought together scholars looking at the role of the “victim” in the criminal legal system. Of consideration were the following questions: Who is labeled a victim and how does that impact outcomes and process? Where does the issue of victimization emerge, how is it received and what should the system’s response be? Who gets a voice? And when? Does the existing victim-offender binary further exacerbate a criminal legal system build on misogyny, xenophobia, and white supremacy? The series of articles and essays that make up this issue reflect the symposium’s multidimensional discussion …
Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben
Should Victims’ Views Influence Prosecutors’ Decisions?, Bruce A. Green, Brandon P. Ruben
Brooklyn Law Review
This article seeks to promote a conversation about how prosecutors, particularly in misdemeanor cases with identifiable victims, should take account of what victims want, including what they regard as the just result. The criminal law assumes that victims want retribution, which means incarcerating offenders, and prosecutors’ offices largely accept that premise. We argue that in a process that generally is weighted toward punishment and excessive use of state power, prosecutors should ascertain victims’ actual views and take them into account as a counterweight. That is, when prosecutors would otherwise pursue a misdemeanor prosecution, they should generally defer to victims’ informed …
Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave
Blame The Victim: How Mistreatment By The State Is Used To Legitimize Police Violence, Tamara Rice Lave
Brooklyn Law Review
The surprising thing about George Floyd is not that he was killed by the police. What is remarkable is that the officer who killed him was charged, convicted, and sentenced to more than twenty-two years in prison. This article examines the institutional mechanisms that support police violence against Black people. In the process, it illuminates the insidious ways in which state actors exploit structural social, economic, and health mistreatment to legitimize police violence. After exploring these issues, this article provides suggestions to reform our institutions in a manner that will bring about meaningful and lasting change.
Rotten Social Background And Mass Incarceration: Who Is A Victim?, Steven Zeidman
Rotten Social Background And Mass Incarceration: Who Is A Victim?, Steven Zeidman
Brooklyn Law Review
Despite the theoretical right to be heard at different junctures in the criminal legal system, in practice, the right is unsecured for many accused and convicted of various offenses. Criminal defendants are rarely heard at trial, upon sentencing, or at parole board interviews to determine eligibility for release. Consequently, these individuals are not able to offer explanations for their behavior. This is particularly harmful given the role that “severe environmental deprivation” or, sometimes controversially referred to as “rotten social background,” plays in criminal behavior. Research now indicates that societal shortcomings, including a lack of healthcare, education, and employment opportunities, combined …
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
The Victim/Offender Overlap And Criminal System Reform, Cynthia Godsoe
Brooklyn Law Review
Victimization makes people more likely to harm others, and vice versa. In short, “hurt people hurt people.” This victim/offender overlap is especially pronounced in sexual and violent offenses. Unfortunately, the criminal law continues to imagine victims and offenders in two different and mutually exclusive categories, each rigidly defined and morally laden. I first encountered this phenomenon while representing teenagers termed “crossover youth” due to their being both in the foster care system and the juvenile criminal system, and was surprised to find so little on this topic in the criminal law literature. Beginning to fill this gap is an important …
Down And Dirty: Remedies And Reparations For Intersected Environmental And Reproductive Justice, Mickaela J. Fouad
Down And Dirty: Remedies And Reparations For Intersected Environmental And Reproductive Justice, Mickaela J. Fouad
Brooklyn Law Review
Pollution is a rampant issue in the United States, ranging from smog-filled air to infertile soil to contaminated water. Yet despite the pervasive nature of pollution, its harms are not equally distributed amongst society. Black, Indigenous, People of Color (BIPOC) communities disproportionately bear the burden of pollution and consequently suffer more harms because of it. Many of the health consequences from pollution are reproductive in nature: proximity to pollution can compromise fertility, cause difficulty in carrying a pregnancy to term and result in birth defects, disabilities, and reproductive cancers. This note focuses on the reproductive consequences of pollution and relies …
Giving Meaning To The Apostrophe In Victim[’]S Rights, Margaret Garvin
Giving Meaning To The Apostrophe In Victim[’]S Rights, Margaret Garvin
Brooklyn Law Review
There is a lack of consistency in how courts interpret the use or placement of an apostrophe on “victim.” While this may seem like a minor grammatical or typological error, it has a tremendous effect on victim’s rights, as it virtually erases the victim due to the confusion over the ownership of said rights. This essay analyzes how the placement of the apostrophe, in cases dealing with subpoenas duces tecum, have led courts to interpret victim rights in multiple ways, but all with the same outcome—excluding the actual victim from consideration. This causes the actual victims, even when the court …
White Supremacy’S Police Siege On The United States Capitol, Vida B. Johnson
White Supremacy’S Police Siege On The United States Capitol, Vida B. Johnson
Brooklyn Law Review
On January 6, 2021, law enforcement failed the people and the institutions it was supposed to protect. This article explores how white supremacy and far-right extremism in policing contributed to the insurrection at the Capitol. Police officers enabled the siege of the Capitol, participated in the attack, and failed to take seriously the threat posed by white supremacists and other far-right groups. The debacle is emblematic of the myriad problems in law enforcement that people of color, scholars, and those in the defund and abolitionist movements have been warning about for years. Police complicity in the attack on the Capitol …
Black Deaths Matter: The Race-Of-Victim Effect And Capital Punishment, Daniel S. Medwed
Black Deaths Matter: The Race-Of-Victim Effect And Capital Punishment, Daniel S. Medwed
Brooklyn Law Review
The racial dimensions of the death penalty are well-documented. Many observers assume this state of affairs derives from bias—often implicit and occasionally explicit—against black defendants in particular. Research points to an even more alarming factor. The race of the victim, not the defendant, steers cases in the direction of death. Regardless of the perpetrator’s race, those who kill whites are more likely to face capital charges, receive a death sentence, and die by execution than those who murder blacks. This short Essay adds a contemporary gloss to the race-of-victim effect literature, placing it in the context of the Black Lives …
Health Insurance And Bankruptcy Risk: Examining The Impact Of The Affordable Care Act, Philip M. Pendergast, Michael D. Sousa, Tim Wadsworth
Health Insurance And Bankruptcy Risk: Examining The Impact Of The Affordable Care Act, Philip M. Pendergast, Michael D. Sousa, Tim Wadsworth
Brooklyn Law Review
The passage of the Patient Protection and Affordable Care Act (“ACA”) in 2010 represented a watershed moment for healthcare in the United States. As is well-noted, the federal courts are still wrangling over the constitutionality of the law, and there is significant uncertainty regarding the extent to which the ACA will survive these legal battles. Unquestionably, the ACA has expanded access to health insurance for many millions of Americans. Prior to the advent of the ACA, Medicaid income eligibility for adults without dependents was approximately 61 percent of the Federal Poverty Line. Empirical studies since the advent of the ACA …
Copying Copyright: Adopting A Fair Use Defense In Patent Law In Times Of Public Health Crisis, Kellie C. Van Beck
Copying Copyright: Adopting A Fair Use Defense In Patent Law In Times Of Public Health Crisis, Kellie C. Van Beck
Brooklyn Law Review
Epidemics have devastated humankind for centuries. Given the simultaneous rise of advanced disease prevention and treatment and the great potential for mass public uptake, it is unsurprising that the U.S. pharmaceutical industry has grown to $775 billion in annual sales revenue. It is clear that the commercialization of important public health measures is not without controversy. Of particular debate is that vaccine and other drug manufacturers monopolize their products and control them through patent laws. Yet there is a strong dichotomy between the importance of patents and the need for public access to innovations. This is not to say that …
Putting A Finger On Biometric Privacy Laws: How Congress Can Stitch Together The Patchwork Of Biometric Privacy Laws In The United States, Eliza Simons
Brooklyn Law Review
The use of biometric identification in the consumer industry has grown immensely over the last decade and is projected to continue growing at an even faster rate. As private entities abandon password-based security systems and opt for the more secure, convenient, and cost-effective method of using biometric data, individuals are worried how that information will be protected. Although the right to privacy has always been valued in the United States, Congress has yet to specifically address biometric privacy. This note sets the legal landscape of privacy law, through the lens of biometric privacy, by surveying four categories of privacy law: …
Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben-Dor
Ai In Adjudication And Administration, Cary Coglianese, Lavi M. Ben-Dor
Brooklyn Law Review
The use of artificial intelligence has expanded rapidly in recent years across many aspects of the economy. For federal, state, and local governments in the United States, interest in artificial intelligence has manifested in the use of a series of digital tools, including the occasional deployment of machine learning, to aid in the performance of a variety of governmental functions. In this Article, we canvass the current uses of such digital tools and machine-learning technologies by the judiciary and administrative agencies in the United States. Although we have yet to see fully automated decision-making find its way into either adjudication …
Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani
Redefining The Safe Third Country Exception Of The Immigration And Nationality Act In The Wake Of Trump, Daniel E. Rabbani
Brooklyn Law Review
The U.S. Immigration and Nationality Act lays out when an asylum seeker has the right to apply for asylum in the United States. This right is not available, however, when an asylum seeker passes through a designated Safe Third Country. A Safe Third Country is an internationally used concept that, pursuant to an international agreement, requires refugees to seek asylum in the first safe country that they step foot in. As the Safe Third Country exception on the Immigration and Nationality Act stands now, there are no guidelines on how to evaluate whether a country is in fact safe. This …
Mechanical Turk Jurisprudence, Shlomo Klapper
Mechanical Turk Jurisprudence, Shlomo Klapper
Brooklyn Law Review
This paper argues that data-driven interpretation creates a “Mechanical Turk” jurisprudence: a jurisprudence that appears mechanical but in fact is thoroughly human. Its contribution to the literature is twofold. First, it articulates an intellectual history of data-driven interpretation: data-driven tools have been adopted because society associates quantification with a mechanical objectivity and because objectivity is at the center of debates over statutory interpretation. Second, it criticizes surveys as an interpretative tool: in addition to a host of practical execution problems, surveys misunderstand the concept of “ordinary meaning” and threaten to undermine the value of faithful agency.
Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries
Corpus Linguistics And The Law: Extending The Field From A Statistical Perspective, Stefan Th. Gries
Brooklyn Law Review
During the last 5–10 years, corpus-linguistic applications have slowly become more widespread in matters of legal interpretation; specifically, we see more court cases in which corpus-linguistic data are brought to bear on the (original) ordinary/public meaning of expressions in legal texts (in briefs and judicial opinions), but also more academic research focusing on if/how corpus-linguistic methods can shed light on the plain/ordinary meaning of words in a legal text.While this development is welcome, it also comes with shortcoming/risks, some of which are now hotly debated in recent and forthcoming law review articles. In particular, there is a whole family of …
Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum
Big Data And Accuracy In Statutory Interpretation, Brian G. Slocum
Brooklyn Law Review
Scholarship is increasingly devoted to improving the “accuracy” of statutory interpretations, but accuracy is a contingent concept dependent on interpretive perspective. If, for instance, a scholar focuses on the language production of the legislature, she may seek to improve the methodology of statutory interpretation through a more sophisticated understanding of the legislative process. Thus, the scholar may argue that one can assess the reliability of the different types of legislative history by focusing on the actors and processes that produce them. Conversely, a scholar might focus on the language comprehension of some speech community, such as the one comprised of …
Natural Language And Legal Interpretation, Stephen C. Mouritsen
Natural Language And Legal Interpretation, Stephen C. Mouritsen
Brooklyn Law Review
Judges and lawyers often appeal to the “ordinary meaning” of the words in legal texts. Until very recently, claims about the ordinary meaning of words in legal texts have not been informed by evidence of the way that words are used or understood by ordinary people. This is because no such evidence—and no method to gather such evidence—was available. Instead, judges, parties, and scholars have been left to rely on their own linguistic intuitions and dictionaries, both of which are problematic guides to the usage or understanding of ordinary people. This symposium on Data Driven Interpretation focuses on recent developments …
The Fight Over Frankenmeat: The Fda As The Proper Agency To Regulate Cell-Based “Clean Meat”, Zoe A. Bernstein
The Fight Over Frankenmeat: The Fda As The Proper Agency To Regulate Cell-Based “Clean Meat”, Zoe A. Bernstein
Brooklyn Law Review
In recent years, concern over the environmental, animal welfare, and human costs of animal agriculture has spurred an increased demand for nonanimal sourced protein. This has led to significant innovation in food technology. As part of this trend, food scientists have developed a process for in-vitro cultivation of meat cells to produce protein that is biologically and nutritionally identical to meat from traditionally raised and slaughtered animal sources, but that involves neither animal agriculture nor animal slaughter. This lab-grown “clean meat” represents a new era in food technology and is already having an effect on the existing meat industry. In …
The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner
The Rise Of Ada Title Iii: How Congress And The Department Of Justice Can Solve Predatory Litigation, Sarah E. Zehentner
Brooklyn Law Review
The Americans with Disabilities Act (ADA) was enacted in 1990 to afford equal opportunities for individuals with disabilities. Title III of the ADA, specifically, was enacted to afford disabled individuals equal access to places of public accommodation. When the ADA was enacted, the internet was still in its infancy and Congress did not contemplate the need for governing accessibility to websites of public accommodations. Today, the internet has become embedded in virtually every aspect of our lives, yet there are still millions of disabled individuals who are unable to equally access the websites of American businesses. With the ADA being …
Hypothesis Testing Ordinary Meaning, Daniel Keller, Jesse Egbert
Hypothesis Testing Ordinary Meaning, Daniel Keller, Jesse Egbert
Brooklyn Law Review
Corpus linguistic tools promise to make determinations of the ordinary meaning (OM) of a word or phrase in a statute more objective, replicable, and transparent. However, significant questions remain as to how corpora may best be employed in the process of determining OM. In this paper, we argue that objectivity, replicability, and transparency are bolstered when legal practitioners take a hypothesis testing approach to determining ordinary meaning. In this approach, the corpus (a large collection of authentic texts) is treated as a sample of data which the practitioner may use to draw inductive inferences about the meaning of the term …
Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail
Two Types Of Empirical Textualism, Kevin Tobia, John Mikhail
Brooklyn Law Review
Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an objective answer. This essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The essay expresses optimism about new insight that empirical methods can bring, but it also cautions against the view that these methods will deliver …
What Counts As Data?, Anya Bernstein
What Counts As Data?, Anya Bernstein
Brooklyn Law Review
We live in an age of information. But whether information counts as data depends on the questions we put to it. The same bit of information can constitute important data for some questions, but be irrelevant to others. And even when relevant, the same bit of data can speak to one aspect of our question while having little to say about another. Knowing what counts as data, and what it is data of, makes or breaks a data-driven approach. Yet that need for clarity sometimes gets ignored or assumed away. In this essay, I examine what counts as data in …
Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel
Adding Context And Constraint To Corpus Linguistics, Jeffrey W. Stempel
Brooklyn Law Review
Corpus linguistics presents an exciting tool for improving interpretation of documentary language. But it would be a mistake to overvalue the tool or to use it as grounds for ejecting consideration of other data from the interpretative task. While properly operationalized corpus linguistics analysis represents an advancement over traditional textualism, it remains subject to the same problems that plague excessively rigid textualism that refuses to give consideration to contextual evidence of meaning. To be most effective in achieving accurate and just interpretative results, corpus linguistics, like traditional reading of documentary language, requires context. This includes not only the context of …
Shifting Antitrust Laws And Regulations In The Wake Of Hospital Mergers: Taking The Focus Off Of Elective Markets And Centering Health Care, Maya Inka Ureño-Dembar
Shifting Antitrust Laws And Regulations In The Wake Of Hospital Mergers: Taking The Focus Off Of Elective Markets And Centering Health Care, Maya Inka Ureño-Dembar
Brooklyn Law Review
Access to health care requires access to a care center and access to comprehensive health care services. Rampant hospital mergers are uniquely poised to reduce both the number of hospitals, requiring patients to travel further, and the services provided within a newly merged hospital, namely reproductive health services. This phenomenon is clearly seen through the merging of secular and nonsecular hospitals, which often result in patients being forced to travel much further for reproductive health care. In the United States’ current model, health care is not a right, but is treated as a commodity. As such, it is governed by …