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Articles 61 - 90 of 99
Full-Text Articles in Law
The Significance Of Skin Color In Asian And Asian-American Communities: Initial Reflections, Trina Jones
The Significance Of Skin Color In Asian And Asian-American Communities: Initial Reflections, Trina Jones
Faculty Scholarship
No abstract provided.
Family History: Inside And Out, Kerry Abrams
Family History: Inside And Out, Kerry Abrams
Faculty Scholarship
No abstract provided.
United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young
United States V. Windsor And The Role Of State Law In Defining Rights Claims, Ernest A. Young
Faculty Scholarship
The Supreme Court’s recent decision in United States v. Windsor is best understood from a Legal Process perspective. Windsor struck down Section 3 of the federal Defense of Marriage Act (“DOMA”), which defined marriage as exclusively between a man and a woman for purposes of federal law. Much early commentary, including Professor Neomi Rao’s essay in these pages, has found Justice Kennedy’s opinion for the Court to be “muddled” and unclear as to its actual rationale. But the trouble with Windsor is not that the opinion is muddled or vague; the rationale is actually quite evident on the face of …
American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy
American Natures: The Shape Of Conflict In Environmental Law, Jedediah Purdy
Faculty Scholarship
There is a firestorm of political and cultural conflict around environmental issues,including but running well beyond climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension,approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and …
Marriage Fraud, Kerry Abrams
Marriage Fraud, Kerry Abrams
Faculty Scholarship
This Article examines the astonishing array of doctrines used to determine what constitutes marriage fraud. It begins by locating the traditional nineteenth-century annulment-by-fraud doctrine within the realm of contract fraud, observing that in the family law context fraudulent marriages were voidable solely at the option of the injured party. The Article then explains how, in the twentieth century, a massive expansion of public benefits tied to marriage prompted new marriage fraud doctrines to develop in various areas of the law, shifting the concept of the injured party from the defrauded spouse to the public at large. It proposes a framework …
A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar
A Jurisprudence Of Insurgency: Lawyers As Companions Of Unimagined Change, Michael E. Tigar
Faculty Scholarship
No abstract provided.
The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel
The Liberty Of Free Riders: The Minimum Coverage Provision, Mill’S “Harm Principle,” And American Social Morality, Jedediah Purdy, Neil S. Siegel
Faculty Scholarship
In this Article, the authors show that cost-shifting and adverse selection problems link the federalism dimension of the debate over the Affordable Care Act to the doctrinally separate and suppressed individual rights dimension. As the scope of these free-rider problems justifies federal power to require individuals to obtain health insurance coverage, so the very existence of the free-rider problems illuminates the difficulty of arguing directly — as opposed to indirectly through the Commerce Clause — that the minimum coverage provision infringes individual liberty. The interdependence between some people’s decisions to forgo insurance and the well-being of other people means that …
Peaceful Penetration: Proxy Marriage, Same-Sex Marriage, And Recognition, Kerry Abrams
Peaceful Penetration: Proxy Marriage, Same-Sex Marriage, And Recognition, Kerry Abrams
Faculty Scholarship
No abstract provided.
Legal Culture, Ralf Michaels
Legal Culture, Ralf Michaels
Faculty Scholarship
Written for an encyclopedia on European private law, this brief
article addresses the term legal culture, the relation between law and
culture, the relevance of legal culture, legal culture in the national
and European context, and criticism of the concept.
The New Old Legal Realism, Mitu Gulati, Tracey E. George, Ann Mcginley
The New Old Legal Realism, Mitu Gulati, Tracey E. George, Ann Mcginley
Faculty Scholarship
Do the decisions of appellate courts matter in the real world? The American judicial system, legal education, and academic scholarship are premised on the view that they do. The authors want to reexamine this question by taking the approach advocated by the original Legal Realists. The current project seeks to add to our knowledge of the relevance of case law by focusing on an area that has received little examination: how pronouncements about employment discrimination law by appellate courts translate into understandings and behavior at the ground level. As our lens, we use evidence of how people talk about the …
Price And Pretense In The Baby Market, Kimberly D. Krawiec
Price And Pretense In The Baby Market, Kimberly D. Krawiec
Faculty Scholarship
Throughout the world, baby selling is formally prohibited. And throughout the world babies are bought and sold each day. As demonstrated in this Essay, the legal baby trade is a global market in which prospective parents pay, scores of intermediaries profit, and the demand for children is clearly differentiated by age, race, special needs, and other consumer preferences, with prices ranging from zero to over one hundred thousand dollars. Yet legal regimes and policymakers around the world pretend that the baby market does not exist, most notably through prohibitions against “baby selling” – typically defined as a prohibition against the …
The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah Purdy
The Politics Of Nature: Climate Change, Environmental Law, And Democracy, Jedediah Purdy
Faculty Scholarship
Legal scholars’ discussions of climate change assume that the issue is one mainly of engineering incentives, and that “environmental values” are too weak, vague, or both to spur political action to address the emerging crisis. This Article gives reason to believe otherwise. The major natural resource and environmental statutes, from the acts creating national forests and parks to the Clean Air and Clean Water Acts, have emerged from precisely the activity that discussions of climate change neglect: democratic argument over the value of the natural world and its role in competing ideas of citizenship, national purpose, and the role and …
“Equal Citizenship Stature”: Justice Ginsburg’S Constitutional Vision, Neil S. Siegel
“Equal Citizenship Stature”: Justice Ginsburg’S Constitutional Vision, Neil S. Siegel
Faculty Scholarship
In this essay, Professor Siegel examines the nature and function of constitutional visions in the American constitutional order. He argues that Associate Justice Ruth Bader Ginsburg possesses such a vision and that her vision is defined by her oft-stated commitment to “full human stature,” to “equal citizenship stature.” He then defends Justice Ginsburg’s characteristically incremental and moderate approach to realizing her vision. He does so in part by establishing that President Barack Obama articulated a similar vision and approach in his Philadelphia speech on American race relations and illustrated its capacity to succeed during the 2008 presidential election.
A Few Questions About The Social-Obligation Norm, Jedediah Purdy
A Few Questions About The Social-Obligation Norm, Jedediah Purdy
Faculty Scholarship
Reponse to an article by Gregory S. Alexander, 'The Social-obligation Norm in American Property Law,' in a Special Issue of the Journal on Property Obligation.
The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams
The Hidden Dimension Of Nineteenth-Century Immigration Law, Kerry Abrams
Faculty Scholarship
No abstract provided.
Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks
Marriage As A Message: Same-Sex Couples And The Rhetoric Of Accidental Procreation, Kerry Abrams, Peter Brooks
Faculty Scholarship
In his dissent in the 2003 case Goodridge v. Department of Health, Justice Robert Cordy of the Massachusetts Supreme Court introduced a novel argument in support of state bans on same-sex marriage: that marriage is an institution designed to create a safe social and legal space for accidental heterosexual reproduction, a space that is not necessary for same-sex couples who, by definition, cannot accidentally reproduce. Since 2003, every state appellate court considering a same-sex marriage case has adopted Justice Cordy's dissent until the recent California Supreme Court decision In Re Marriage Cases. In case after case, courts have held that …
American Law And Transnational Corruption: Is There A Need For Lincoln’S Law Abroad?, Paul D. Carrington
American Law And Transnational Corruption: Is There A Need For Lincoln’S Law Abroad?, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams
Becoming A Citizen: Marriage, Immigration, And Assimilation, Kerry Abrams
Faculty Scholarship
No abstract provided.
Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin
Criminal Lying, Prosecutorial Power, And Social Meaning, Lisa Kern Griffin
Faculty Scholarship
This article concerns the prosecution of defensive dishonesty in the course of federal investigations. It sketches a conceptual framework for violations of 18 U.S.C. § 1001 and related false-statement charges, distinguishes between harmful deception and the typical investigative interaction, and describes the range of lies that fall within the wide margins of the offense. It then places these cases in a socio-legal context, suggesting that some false-statement charges function as penalties for defendants’ refusal to expedite investigations into their own wrongdoing. In those instances, the government positions itself as the victim of the lying offense and reasserts its authority through …
Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur
Happiness And Punishment, John Bronsteen, Christopher Buccafusco, Jonathan Masur
Faculty Scholarship
This Article continues our project of applying new findings in the behavioral psychology of human happiness to some of the most deeply analyzed questions in law. When a state decides how to punish criminal offenders, at least one important consideration is the amount of harm any given punishment is likely to inflict. It would be undesirable, for example, to impose greater harm on those who commit less serious crimes or to impose harm that rises to the level of cruelty. Our penal system fits punishments to crimes primarily by adjusting the size of monetary fines and the length of prison …
Book Review, Jennifer L. Behrens
Book Review, Jennifer L. Behrens
Faculty Scholarship
reviewing, Charles J. Ogletree, Jr. & Austin Sarat eds., When Law Fails: Making Sense of Miscarriages of Justice, (2009)
Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett
Making Good On Good Intentions: The Critical Role Of Motivation In Reducing Implicit Workplace Discrimination, Katharine T. Bartlett
Faculty Scholarship
Discrimination in today’s workplace is largely implicit, making it ambiguous and often very difficult to prove. Employment discrimination scholars have proposed reforms of Title VII to make implicit discrimination easier to establish in court and to expand the kinds of situations to which liability attaches. The reform proposals reflect a broad consensus that strong legal norms are crucial to addressing the problem. Yet it is mistaken to assume that strengthening plaintiffs’ hands in implicit discrimination cases will necessarily achieve the long-term goal of reducing its occurrence. This Article brings together several strands of social science research showing that (1) implicit …
No Future Without (Personal) Forgiveness: Re-Examining The Role Of Forgiveness In Transitional Justice, John D. Inazu
No Future Without (Personal) Forgiveness: Re-Examining The Role Of Forgiveness In Transitional Justice, John D. Inazu
Faculty Scholarship
The role of forgiveness has been much discussed in the literature on transitional justice, but a basic point has been muddled: most acts of forgiveness are inherently personal and cannot be achieved by state actors alone. What I call personal forgiveness is extended by a single human victim who has been harmed by a wrongdoer. Personal forgiveness is distinguishable from three other forms of forgiveness: group forgiveness, legal forgiveness (a form of group forgiveness), and political forgiveness. In the context of transitional justice, I argue that: (1) personal forgiveness is a necessary condition for political forgiveness; (2) group forgiveness (including …
Book Review, Jennifer L. Behrens
Time For A Twenty-First Century Justice Department, Samuel W. Buell
Time For A Twenty-First Century Justice Department, Samuel W. Buell
Faculty Scholarship
This is a brief contribution to an issue of The Federal Sentencing Reporter directed to criminal justice policy discussions relevant to the 2008 election season. The United States Department of Justice is a uniquely valuable domestic institution. After a period of stunning ascendancy at the end of the last century, the institution has faltered—perhaps as much from strategic neglect as from deliberate diversion of its mission in service of political and foreign policy objectives that most Americans have concluded were misguided. A twenty-first-century executive branch should set as a priority thoughtful consideration of how to confine the powerful tools of …
The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo
The Lost Sanctuary: Examining Sex Trafficking Through The Lens Of United States V. Ah Sou, M. Margaret Mckeown, Emily Ryo
Faculty Scholarship
No abstract provided.
Race, Redistricting, And Representation, Guy-Uriel Charles
Race, Redistricting, And Representation, Guy-Uriel Charles
Faculty Scholarship
This Essay, which was written for the Ohio State Law Journal's symposium on Election Law and the Roberts Court, examines the Court's decision in League of United Latin American Citizens (LULAC) v. Perry. The Essay explores two ways of reading LULAC: first as a racial representation case and second as a case concerned with representation itself. The essay argues that politics not race is the majority's worry in LULAC and that the case is the first application of Justice Kennedy's representation rights concept first introduced in Vieth.
Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams
Mae Ngai's Impossible Subjects: Illegal Aliens And The Making Of Modern America, Kerry Abrams
Faculty Scholarship
No abstract provided.
Property And Empire: The Law Of Imperialism In Johnson V. M’Intosh, Jedediah Purdy
Property And Empire: The Law Of Imperialism In Johnson V. M’Intosh, Jedediah Purdy
Faculty Scholarship
Chief Justice's Marshall's opinion in Johnson v. M'Intosh, 21 U.S. (8 Wheat.)543 (1823) has long been a puzzle, both in its doctrinal structure and in long, strange dicta which are both triumphal and elegiac. In this Essay, I show that the opinion becomes newly intelligible when read in the context of the law and theory of colonialism, concerned, like the case itself, with the expropriation of continents and relations between dominant and subject peoples. I examine several instances where the seeming incoherence of the opinion instead shows its debt to imperial jurisprudence, which rested on a distinction between two bodies …
The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah Purdy
The New Biopolitics: Autonomy, Demography, And Nationhood, Jedediah Purdy
Faculty Scholarship
In India and China, a population gap has opened between young men and women. There are now about 100 million more men than women in those countries and a few of their neighbors. Many of the "missing women" either were never born because of sex-selective abortion or died in childhood because families devote more medical and other resources to boys. "Missing women" mean men who will never marry. Socially unintegrated young men are associated with a variety of social pathologies; most importantly, they are the prime recruitment targets of nationalist and fundamentalist political groups. Conservative and reactionaries have always argued …