Law Commons^™

Three Strategies For Improving Access To Civil Legal Assistance In South Carolina, Elizabeth Chambliss

South Carolina Law Review

No abstract provided.

Fraud Law And Misinfodemics, Wes Henricksen

Faculty Scholarship

No abstract provided.

Power And Possibility In The Era Of Right To Counsel, Robust Rent Laws & Covid-19, Erica Braudy, Kim Hawkins

Articles & Chapters

New York City (NYC) finds itself in an unprecedented housing crisis as the coronavirus (COVID-19) pandemic reveals with devastating force that safe, sustainable and affordable housing is both a human right and a public health necessity. The profound humanitarian and economic devastation of COVID-19 puts millions of New Yorkers at risk of eviction especially those within Black and Latinx communities. In addition, the pandemic hit just as the legal landscape for tenants was transformed through landmark legislation ensuring the Right to Counsel in eviction proceedings and sweeping reforms of New York's rent laws. The unparalleled COVID-19 pandemic, the influx of …

Taxing Parents: Welfarist Theories, Shannon Weeks Mccormack

Articles

The Internal Revenue Code (the “Code”) taxes parents inequitably. Couples with a sole earner are under-taxed compared to couples with dual earners or single parents. Previous scholarship has identified these inequities and then argued that this sole earner bias should be eliminated. These arguments, however, have often been incomplete. Simply establishing that an inequity exists does not create a full argument for legal reform. After all, the Code plays favorites all the time. Scholars have traditionally turned to theories of distributive justice when evaluating whether tax preferences are warranted. These theories offer competing visions about the way resources should be …

Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold

Indiana Law Journal

Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.

This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …

2017 Keynote Speech: Poverty's Cost, Daniel Hatcher

University of the District of Columbia Law Review

No abstract provided.

A Social Welfare Theory Of Inheritance Regulation, Mark Glover

Utah Law Review

The law of succession grants donors broad freedom to decide how to distribute their property upon death. It does so in hopes of increasing social welfare in two general ways. First, freedom of disposition generates socially beneficial estate planning decisions. In particular, donors are in the best position to evaluate their own specific circumstances and to make decisions that, on the whole, produce the greatest utility from the transfer of their estates. Second, the donor’s autonomy over estate planning decisions incentivizes socially beneficial behavior, such as productivity during the life of the donor. Because the law views freedom of disposition …

The Biology Of Inequality, Lucille A. Jewel

Scholarly Works

We have known for quite some time that disadvantaged individuals suffer from poorer health outcomes and lower life spans than the advantaged. The disadvantaged do not perform as well on educational tests than their wealthier peers. In some situations, racial discrimination intersects with poverty to worsen these outcomes for minorities. With the notion that poverty becomes implanted in an individual’s genes and brain, science helps explain how these disparate lifespans and variations in cognitive outcomes come to be. This Article collectively refers to these scientific theories as embodied inequality. Embodied inequality explains why it is so difficult for individuals to …

Understanding Crime Under Capitalism: A Critique Of American Criminal Justice And Introduction To Marxist Jurisprudence, Steven E. Gilmore

Steven E Gilmore

Utility, The Good And Civic Happiness: A Catholic Critique Of Law And Economics, Mark A. Sargent

Journal of Catholic Legal Studies

No abstract provided.

Surrogacy, Equal Status And Social Welfare Benefits, Mel Cousins

Mel Cousins

Democratizing Startups, Seth C. Oranburg

Seth C Oranburg

The Jumpstart Our Business Startups Act of 2012 intends to “help entrepreneurs raise the capital they need to put Americans back to work and create an economy that’s built to last.” The goal is to “democratize startups” by making capital available to diverse entrepreneurs in new geographies. Yet the net effect of securities regulations and market conditions is the opposite. Startup companies are encouraged to stay private so capital is consolidating in large, mature firms instead of recycling into new startups. Evidence of consolidation is that once-rare “Unicorns” (billion-dollar startups) now number over 111. More money is going into huge …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Do We Know How To Punish?, Benjamin L. Apt

Benjamin L. Apt

A number of current theories attempt to explain the purpose and need for criminal punishment. All of them depend on some sort of normative basis in justifying why the state may penalize people found guilty of crimes. Yet each of these theories lacks an epistemological foundation; none of them explains how we can know what form punishments should take. The article analyses the epistemological gaps in the predominant theories of punishment: retributivism, including limited-retributivism; and consequentialism in its various versions, ranging from deterrence to the reparative theories such as restorative justice and rehabilitation. It demonstrates that the common putative epistemological …

Public Actors In Private Markets: Toward A Developmental Finance State, Robert Hockett, Saule Omarova

Saule T. Omarova

The recent financial crisis brought into sharp relief fundamental questions about the social function and purpose of the financial system, including its relation to the “real” economy. This Article argues that, to answer these questions, we must recapture a distinctively American view of the proper relations among state, financial market, and development. This programmatic vision – captured in what we call a “developmental finance state” – is based on three key propositions: (1) that economic and social development is not an “end-state” but a continuing national policy priority; (2) that the modalities of finance are the most potent means of …

Information Overload, Multi-Tasking, And The Socially Networked Jury: Why Prosecutors Should Approach The Media Gingerly, Andrew E. Taslitz

School of Law Faculty Publications

The rise of computer technology, the internet, rapid news dissemination, multi-tasking, and social networking have wrought changes in human psychology that alter how we process news media. More specifically, news coverage of high-profile trials necessarily focuses on emotionally-overwrought, attention-grabbing information disseminated to a public having little ability to process that information critically. The public’s capacity for empathy is likewise reduced, making it harder for trial processes to overcome the unfair prejudice created by the high-profile trial. Market forces magnify these changes. Free speech concerns limit the ability of the law to alter media coverage directly, and the tools available to …

In Defense Of Disparate Impact: An Opportunity To Realize The Promise Of The Fair Housing Act, Valerie Schneider

School of Law Faculty Publications

Abstract:

Twice in the past three years, the Supreme Court has granted certiorari in Fair Housing cases, and, each time, under pressure from civil rights leaders who feared that the Supreme Court might narrow current Fair Housing Act jurisprudence, the cases settled just weeks before oral argument. Settlements after the Supreme Court grants certiorari are extremely rare, and, in these cases, the settlements reflect a substantial fear among civil rights advocates that the Supreme Court’s recent decisions in cases such as Shelby County v. Holder and Fisher v. University of Texas are working to dismantle many of the protections of …

Emergency Alert: This Is Not A Test! An International Disaster Relief Plan For Protecting Children And Families, Cynthia R. Mabry

School of Law Faculty Publications

There are more than 132,000,000 orphans worldwide. As a result of recent natural disasters in the United States and other countries, the number of orphans has increased. Recent events in the Gulf Coast in the United States, Haiti and Japan showed that thousands of children become separated from their parents or guardians when disasters strike. Family members were scattered during these tragedies. Many children were reunited with their families; but some children were sent to orphanages while others waited in classrooms for their family members to come for them. Many Haitian children were sent to foreign countries far from their …

David Felix: Jailed By An Unjust System, Failed By City Services, Killed By Police, Brendan M. Conner Esq., Marissa Ram Esq.

Brendan M. Conner

No one claimed the body of David Felix for 21 days; instead, it lay in state at the Office of the Medical Examiner, the blackened and seared edges of the gunpowder’s stippling forming a dark halo on his ebony skin until his grief-stricken parents arrived from Haiti to identify the body of their oldest son. The “Felix David” described by the police and the New York media – none of whom got his name right – is unrecognizable to those of us who knew David Felix. The 24 year-old polyglot, aspiring fashion student and black immigrant with a love for …

Cleaning The Muck Of Ages From The Windows Into The Soul Of Income Tax, John Passant

John Passant

The aim of this paper is to provide readers with an insight into Marx’s methods as a first step to understanding income tax more generally but with specific reference to Australia’s income tax system. I do this by introducing readers to the ideas about the totality that is capitalism, appearance and form, and the dialectic in Marx’s hands. This will involve looking at income tax as part of the bigger picture of capitalism, and understanding that all things are related and changes in one produce changes in all. Appearances can be deceptive and we need to delve below the surface …

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

Protecting The Welfare Of Our Children For A Better Tomorrow, Aileen N. Gonzalez

Aileen N Gonzalez

No abstract provided.

Maximizing Inclusionary Zoning’S Contributions To Both Affordable Housing And Residential Integration, Tim Iglesias

Tim Iglesias

Inclusionary zoning is a popular policy that can uniquely serve both affordable housing and fair housing goals at the same time. Assuming the U.S. Department of Housing and Urban Development finalizes its proposed “Affirmatively Furthering Fair Housing” regulation, inclusionary zoning will become more broadly used. But more extensive use of inclusionary zoning poses both opportunities and risks for housing advocates because of the following three issues: (1) Unacknowledged tradeoffs between affordable housing and fair housing goals in inclusionary zoning design and implementation; (2) Conflicting concepts of residential integration; and (3) Legal challenges to inclusionary zoning. The challenge facing inclusionary zoning …

Addressing Prescription Opioid Abuse Concerns In Context: Synchronizing Policy Solutions To Multiple Public Health Problems, Kelly Dineen

Kelly Dineen

No abstract provided.

Fearing The Bogeyman: How The Legal System's Overreaction To Perceived Danger Threatens Families And Children, David Pimentel

David Pimentel

In the last generation, American parenting norms have shifted dramatically, reflecting a near obsession with child safety and especially the risk of stranger abduction. A growing body of literature shows, however, that the threats to children are more imagined than real, and that the effort to protect children from these “bogeymen” may be doing more harm than good. Advocates of “Free-Range” parenting argue that giving children a long leash can help them learn responsibility, explore the world outside, get physical exercise, and develop self-sufficiency. But the State, usually acting through Child Protective Services (CPS), is likely to second-guess parents’ judgments …

Accidentally On Purpose: Intent In Disability Discrimination Law, Mark C. Weber

Mark C. Weber

American disability discrimination laws contain few intent requirements. Yet courts frequently demand showings of intent in disability discrimination lawsuits. Intent requirements arose almost by accident: through a false statutory analogy; by repetition of obsolete judicial language; and by doctrine developed to avoid a nonexistent conflict with another law. Demanding that section 504 and Americans with Disabilities Act (“ADA”) claimants show intent imposes a burden not found in those statutes or their interpretive regulations. This Article provides reasons not to impose intent requirements for liability or monetary relief in section 504 and ADA cases concerning reasonable accommodations. It demonstrates that no …

Systemic Lying, Julia Simon-Kerr

Julia Simon-Kerr

This Article offers the foundational account of systemic lying from a definitional and theoretical perspective. Systemic lying involves the cooperation of multiple actors in the legal system who lie or violate their oaths across cases for a consistent reason that is linked to their conception of justice. It becomes a functioning mechanism within the legal system and changes the operation of the law as written. By identifying systemic lying, this Article challenges the assumption that all lying in the legal system is the same. It argues that systemic lying poses a particular threat to the legal system. This means that …

Thinking Globally, Policy Locally: A Plan For Decentralized Law Enforcement In Côte D’Ivoire, __ J. Of Int’L Bus. & L. __ (Forthcoming 2015), Hugh Mundy

Hugh Mundy

During a 2009 speech in Ghana, President Barack Obama said, “Africa doesn’t need strongmen. It needs strong institutions.” Obama credited Ghana’s “impressive rates of growth” to the country’s “repeated peaceful transfers of power even in the wake of closely contested elections.” Free elections and non-violent power transfers, he said, “may lack the drama of the twentieth century’s liberation struggles” but “will ultimately be more significant.” Last July, the president expressed similar sentiments during a highly anticipated trip to Kenya. Côte d’Ivoire offers a stark example of the instability wrought when an unseated leader refuses to cede power. Once hailed as …

Social Security, Discrimination And Justification Under The European Convention On Human Rights, Mel Cousins

Mel Cousins

This article considers the current state of the law concerning justification of potentially discriminatory treatment in the area of social security under the European Convention on Human Rights. Over time the UK courts have become familiar with the Convention and have improved their interpretation of human rights law and, in particular, non-discrimination under Article 14 of the Convention. The final step in this process is the consideration of proportionality in relation to the justification of potentially discriminatory provisions. There have been a number of recent important decisions on this issue from the Supreme Court including the Recovery of Medical Costs …

Social Welfare Appeals, Appeal Revisions And Oral Hearings, Mel Cousins

Mel Cousins

This note discusses two recent Irish High Court decisions which concern when a social welfare appeals decision can be revised and when an oral hearing may be held as part of the social welfare appeals process. It would appear that the claimants (or their legal teams) were seeking to establish when an oral hearing should be held. However, the Social Welfare Appeals Office (SWAO) – having originally decided both cases without an oral hearing – proposed to reconsider the appeals with an oral hearing after judicial review proceedings were initiated.