Law Commons^™

The Child Vanishes: Justice Scalia's Approach To The Role Of Psychology In Determining Children's Rights And Responsibilities, Aviva Orenstein

Articles by Maurer Faculty

This Article explores how Justice Antonin Scalia’s hostility to psychology, antipathy to granting children autonomous rights, and dismissiveness of children’s interior lives both affected his jurisprudence and was a natural outgrowth of it. Justice Scalia expressed a skeptical, one might even say hostile, attitude towards psychology and its practitioners. Justice Scalia’s cynicism about the discipline and the therapists who practice it is particularly interesting regarding legal and policy arguments concerning children. His love of tradition and his rigid and unempathetic approach to children clash with modern notions of child psychology. Justice Scalia’s attitude towards psychology helps to explain his jurisprudence, …

Deals In The Heartland: Renewable Energy Projects, Local Resistance, And How Law Can Help, Christiana Ochoa

Articles by Maurer Faculty

Informed by original empirical research conducted in the Midwestern United States, this Article provides a rich and textured understanding of the rapidly emerging opposition to renewable energy projects. Beyond the Article’s urgent practical contributions, it also examines the importance of formalism and formality in contracts and complicates current understandings.

Rural communities in every windblown and sun-drenched region of the United States are enmeshed in legal, political, and social conflicts related to the country’s rapid transition to renewable energy. Organized local opposition has foreclosed millions of acres from renewable energy development, impeding national and state-level commitments to achieving renewable energy targets …

Pregnant Workers Fairness Acts: Advancing A Progressive Policy In Both Red And Blue America, Deborah Widiss

Articles by Maurer Faculty

Pregnant workers often need small changes—such as permission to sit on a stool or to avoid heavy lifting—to stay on the job safely through a pregnancy. In the past decade, twenty-five states have passed laws that guarantee pregnant employees a right to reasonable accommodations at work. Despite the stark partisan divide in contemporary America, the laws have passed in both Republican- and Democratic-controlled states. This Essay offers the first detailed case study of this remarkably effective campaign, and it shows how it laid the groundwork for analogous federal legislation, passed in December 2022, that ensures workers across the country will …

The Undemocratic Class Action, Nicholas Almendares

Articles by Maurer Faculty

Class actions can have profound effects. But theorists, policymakers, and judges have long worried that attorneys can use them for their own advantage, reaping generous rewards for themselves while class members receive next to nothing. Unlike citizens or shareholders, members of a class cannot exercise democratic control over the attorney that nominally works on their behalf. I label this the democratic critique of class actions, and it has been the dominant framework for understanding class actions, shaping both case law and reform proposals.

The democratic critique is based on a false premise, though, because it does not take into account …

Worth A Shot: Encouraging Vaccine Uptake Through "Empathy", Jody L. Madeira

Articles by Maurer Faculty

Pro- and anti-vaccine organizations and individuals have frequently invoked empathy as a strategy for increasing uptake of COVID-19 precautions, including vaccinations. On one hand, vaccine supporters deployed empathy to defuse conflict, prioritize safeguarding the collective welfare, and avoid government mandates. On the other hand, vaccine opponents used empathy to emphasize the alleged individual effects of pandemic precautions, mobilize public voices, and stress the importance of medical freedom in policy-making contexts.

This Article first defines empathy and reviews empathy scholarship, paying particular attention to its relationship with narrative and the contexts where empathy can be difficult or dangerous. It then applies …

Organized For Service: The Hicks Classification System And The Evolution Of Law School Curriculum, John L. Moreland

Articles by Maurer Faculty

This article traces the origins and development of the Hicks Classification System, an in-house organizational scheme used by the Yale Law Library from the late 1930s to the 1990s. It explores the relationship between the Hicks Classification System and the changing pedagogical methods of the law school curriculum during the early part of the 20th century. It provides a brief biographical sketch of Frederick C. Hicks, creator of the scheme, the need for a legal classification system, a detailed analysis of Hicks’s scheme, its finding aids, and a discussion of the inherent cultural biases in the system.

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

Articles by Maurer Faculty

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

Chosen Family, Care, And The Workplace, Deborah Widiss

Articles by Maurer Faculty

Employees often request time off work to care for the medical needs of loved ones who are part of their extended or chosen family. Until recently, most workers would not have had any legal right to take such leave. A rapidly growing number of state laws, however, not only guarantee paid time off for family health needs, but also adopt innovative and expansive definitions of eligible family.

Several provide leave to care for intimate partners without requiring legal formalization of the relationship. Some go further to include any individual who has a relationship with the employee that is “like” or …

No Voice, No Exit, But Loyalty? Puerto Rico And Constitutional Obligation, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.

When Critical Race Theory Enters The Law & Technology Frame, Jessica M. Eaglin

Articles by Maurer Faculty

Jessica Eaglin intertwines the social construction of race, law and technology. This piece highlights how the approach to use technology as precise tools for criminal administration or objective solutions to societal issues often fails to consider how laws and technologies are created in our racialized society. If we do not consider how race and technology are co-productive, we will fail to reach substantive justice and instead reinforce existing racial hierarchies legitimated by laws.

The Biopolitics Of Maskless Police, India Thusi

Articles by Maurer Faculty

Despite the recent movement against police violence, police officers have been endangering their communities by engaging in a new form of violence— policing while refusing to wear facial coverings to prevent the spread of COVID-19. Many states advise people to wear masks and to socially distance when in public spaces. However, police officers have frequently failed to comply with these guidelines as they interact with the public to enforce these COVID-19 laws. Police enforcement of COVID-19 laws is problematic for two reasons: (1) it provides a method for pathologizing marginalized communities as biological threats; (2) it creates a racialized pathway …

On Beauty And Policing, India Thusi

Articles by Maurer Faculty

“To protect and serve” is the motto of police departments from Los Angeles to Cape Town. When police officers deviate from the twin goals of protection and service, for example by using excessive force or by maintaining hostile relations with the community, scholars recommend more training, more oversight, or more resources in policing. However, police appear to be motivated by a superseding goal in the area of sex work policing. In some places, the policing of sex workers is connected to police officers’ perceptions of beauty, producing a hierarchy of desirable bodies as enforced by those sworn to protect and …

Blue Lives & The Permanence Of Racism, India Thusi

Articles by Maurer Faculty

In true dystopian form, the killing of unarmed Black people by the police has sparked a national narrative about the suffering of police officers. “Blue Lives Matter” has become the rallying call for those offended by the suggestion that we should hold police officers accountable for killing unarmed Black people. According to a December 2016 poll, 61% of Americans believed that there was a “war on police,” and 68% of Whites had a favorable view of the police as compared to 40% of Blacks. Lawmakers around the country have been proposing Blue Lives Matter laws that make it a hate …

Doing Unrepresented Status: The Social Construction And Production Of Pro Se Persons, Victor D. Quintanilla

Articles by Maurer Faculty

In this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate on two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person …

Mindsets In Legal Education, Victor D. Quintanilla, Sam Erman

Articles by Maurer Faculty

If you teach 1Ls, you may share the following concern. At the start of each year, we meet enthusiastic and successful students who are passionate about law. They arrive on campus invested in learning, ready to work hard, and eager to participate in class. But trouble brews soon thereafter. Students worry whether they have what it takes to do well, whether they will fit in, and whether they belong in law school. Answering questions in class, many sense (rightly or wrongly) that their professors and peers think that they aren’t smart and that they will not do well. When they …

The Institute For The Future Of Law Practice: A New Narrative For Legal Education And The Legal Profession, William D. Henderson

Articles by Maurer Faculty

"The mission of IFLP is to produce more legal professionals who have strong legal knowledge plus foundational training in allied disciplines — in other words, “T-shaped” legal professionals."

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You look down at your smartphone and see that you just got a text from a close family relative. They are asking to schedule a phone call.

The next line reads, “I’m thinking about going to law school.”

Well, if you read PD Quarterly, you’re likely a logical person to seek out for advice. You’ve got some time to think about it. What are you going to say?

Whatever your counsel, …

Harm, Sex, And Consequences, India Thusi

Articles by Maurer Faculty

At a moment in history when this country incarcerates far too many people, criminal legal theory should set forth a framework for reexamining the current logic of the criminal legal system. This Article is the first to argue that “distributive consequentialism,” which centers the experiences of directly impacted communities, can address the harms of mass incarceration and mass criminalization. Distributive consequentialism is a framework for assessing whether criminalization is justified. It focuses on the outcomes of criminalization rather than relying on indeterminate moral judgments about blameworthiness, or “desert,” which are often infected by the judgers’ own implicit biases. Distributive consequentialism …

Dignity And Social Meaning: Obergefell, Windsor, And Lawrence As Constitutional Dialogue, Steve Sanders

Articles by Maurer Faculty

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing …

Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz

Articles by Maurer Faculty

No abstract provided.

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Articles by Maurer Faculty

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Religious Arguments, Religious Purposes, And The Gay And Lesbian Rights Cases, Steve Sanders

Articles by Maurer Faculty

No abstract provided.

Human-Centered Civil Justice Design, Victor D. Quintanilla

Articles by Maurer Faculty

This Article introduces a novel approach to improving the civil justice system, referred to as human-centered civil justice design. The approach synthesizes insights and practices from two interdisciplinary strands: human-centered design thinking and dispute system design. The approach is rooted in human experiences with the processes, systems, people, and environments that members of the public encounter when navigating the civil justice system and how these experiences interact with the entangled web of hardships and legal adversities they face in the everyday.

Human-centered civil justice designers empathize with the intended beneficiaries and stakeholders of the civil justice system, seeking to deeply …

Habermas, The Public Sphere, And The Creation Of A Racial Counterpublic, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

Book Review. Tax And Spend: The Welfare State, Tax Politics, And The Limits Of American Liberalism By Molly C. Michelmore, Ajay K. Mehrotra

Articles by Maurer Faculty

No abstract provided.

Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla

Articles by Maurer Faculty

This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.

In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …

Charity And Information: Correcting The Failure Of A Disjunctive Social Norm, Brian Broughman, Robert Cooter

Articles by Maurer Faculty

Charitable donations fund social goods that the state and markets undersupply. Despite widespread belief in the importance of private charity, most Americans donate little or nothing. Experiments in behavioral economics show that anonymity, not human nature, causes low contributions. Anonymity poses a particular challenge for charity because of the special character of the obligation. Charity is a disjunctive social norm, meaning the obligation is owed to ‘A or B or C or …’. Disclosure of each individual’s aggregate conduct is necessary for the effectiveness of any disjunctive social norm. To revitalize charity we propose a public registry where each taxpayer …

The Personal, The Political, And Race, Jeannine Bell

Articles by Maurer Faculty

This essay is a response to Richard Lempert’s Law & Society Association Presidential Address.

Change In Racial And Ethnic Classifications Is Here: Proposal To Address Race And Ethnic Ancestry Of Blacks For Affirmative Action Admissions Purposes, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Indiana's Latest Study Of The Legal Needs Of The Poor, Amy Applegate, Monica A. Fennell

Articles by Maurer Faculty

No abstract provided.

Book Review. Governing Through Crime: How The War On Crime Transformed American Democracy And Created A Culture Of Fear By Jonathan Simon, Jeannine Bell

Articles by Maurer Faculty

No abstract provided.