Law Commons^™

Gender Confirmation Surgery And The Federal Prison System: Eighth Amendment Framework And Proposed Alternatives, Julie Barnett

Marquette Benefits and Social Welfare Law Review

As reform for individuals with gender dysphoria has developed, the prison system's accommodation of those individuals' needs has underperformed. There have been a number of cases in the past few years where inmates who are experiencing gender dysphoria have not received adequate care in the form of gender confirmation surgery. Four of the Federal Appellate Circuit Courts have decided that a physician's refusal to provide an inmate with gender confirmation surgery is not a violation of the 8th Amendment. One circuit ruled differently and held that denial of the surgery to an inmate experiencing gender dysphoria does violate the 8th …

Pathways To Justice: Positive Rights, State Constitutions, And Untapped Potential, Dustin Coffman

Marquette Benefits and Social Welfare Law Review

Positive rights, as a concept, are nothing new. Though they may not have always had such a deceptively unequivocal name, positive rights have existed in various forms and mediums throughout history. They've been utilized, underutilized, and, in some cases, outright ignored. At their core, positive rights are the imposition of an obligation upon the state to fulfill some declared right or benefit. One basis for this imposition is that because citizens give up certain rights by being parties to the "social contract," they should be entitled to certain positive protections guaranteed by the state created by way of said "contract." …

Without A Will, There Is Still A Way: A Statutory Solution To Increase The Value Of A Small Estate And Aid In Reducing The Racial Equity Gap In Wisconsin, Isabella V. Avila Perez

Marquette Benefits and Social Welfare Law Review

For generations, communities of color have struggled to increase their generational wealth. Lack of access to estate planning tools leaves minority groups and low-income families compromised and more likely to die intestate. While the current probate system creates a safety net for those that die intestate, this comment aims to address the need for a statutory solution to aid in combatting Wisconsin's racial equity gap. More specifically, this Comment suggests how increasing and indexing Wisconsin's summary settlement and summary assignment small estate values to include estates of $100,000 or less will allow for more minority and low-income families to qualify …

Bob Lutz - Expert, Mentor, And Friend, Diane Penneys Edelman

Faculty Scholarship

No abstract provided.

Jurisdiction And The Moral Impact Theory Of Law, Michael S. Green

Faculty Publications

Positivists and interpretivists (Dworkinians) might accept that conceptual facts about the law—facts about the content of the concept of law—can obtain in the absence of communities with law practices. But they would deny that legal facts can obtain in such communities’ absence. Under the moral impact theory, by contrast, legal facts can precede all communities with law practices. I identify a set of legal facts in private international law—the law of jurisdiction—that concerns when a community’s law practices can, and cannot, have the legal effects that the practices claim to have. This law is noncommunitarian, in the sense …

Policing "Bad" Mothers, I. Bennett Capers

Faculty Scholarship

Jessamine Chan’s The School for Good Mothers — a speculative novel about a mother who abandons her child for a few hours and is required to attend a school for good mothers to regain custody — may not be a great book, but it is a good yarn, and a page turner, and thought-provoking. Thought-provoking, because to measure her fitness to be a mother, the protagonist is assigned a robot doppelganger of her child — one that is sentient, one that seems almost real, one that might even pass the Turing test, and one that she is required not only …

The American Tradition Of Self-Made Arms, Joseph G.S. Greenlee

St. Mary's Law Journal

No abstract provided.

Par Funding: A Fabulous Fraud Founded In Philly, Edward J. Schoen

Rohrer College of Business Faculty Scholarship

This case describes a recent iteration of the Ponzi scheme originated in 1920 by Charles Ponzi: creating a plausible investment, attracting investors, using the money from more recent investors to pay off earlier investors, and earning a substantial profit, estimated to be $15 million (worth $220 million today).1 While not as big as Bernie Madoff’s Ponzi scheme, as a result of which he was sentenced to 150 years in prison and ordered to pay restitution of $170 billion to his victims,2 the Federal district court in Miami was asked to order Par Funding’s cofounders, Joseph W. LaForte and his wife, …

Constitutional Limits On The Imposition And Revocation Of Probation, Parole, And Supervised Release After Haymond, Nancy J. King

Vanderbilt Law Review

In its Apprendi line of cases, the Supreme Court has held that any fact found at sentencing (other than prior conviction) that aggravates the punishment range otherwise authorized by the conviction is an “element” that must be proved beyond a reasonable doubt to a jury. Whether Apprendi controls factfinding for the imposition and revocation of probation, parole, and supervised release is critically important. Seven of ten adults under correctional control in the United States are serving terms of state probation and post-confinement supervision, and roughly half of all prison admissions result from revocations of such terms. But scholars have yet …

How Ai Can Learn From The Law: Putting Humans In The Loop Only On Appeal, I. Glenn Cohen, Boris Babic, Sara Gerke, Qiong Xia,, Theodoros Evgeniou, Klaus Wertenbroch

Faculty Scholarly Works

While the literature on putting a “human in the loop” in artificial intelligence (AI) and machine learning (ML) has grown significantly, limited attention has been paid to how human expertise ought to be combined with AI/ML judgments. This design question arises because of the ubiquity and quantity of algorithmic decisions being made today in the face of widespread public reluctance to forgo human expert judgment. To resolve this conflict, we propose that human expert judges be included via appeals processes for review of algorithmic decisions. Thus, the human intervenes only in a limited number of cases and only after an …

Front Pages

American Indian Law Review

No abstract provided.

State Ex Rel. Matloff V. Wallace: Reversing Course On Subject Matter Jurisdiction, Andrew Case

American Indian Law Review

No abstract provided.

The Winding Trail: A Look At Non-Linear Temporality In Literary Works In Response To The Issue Of Sovereignty, Gabrielle Jones

American Indian Law Review

No abstract provided.

The Administration Of Injustice: The Conflict Between Federal And Tribal Criminal Jurisdiction, Grace Slaff

American Indian Law Review

No abstract provided.

Winner, Best Appellate Brief In The 2023 Native American Law Student Association Moot Court Competition, Noah Goldenberg, Clayton Kinsey

American Indian Law Review

No abstract provided.

From Smallpox To Covid-19: Social And Legal Responses To Vaccinations And Vaccine Mandates, Janet L. Dolgin

Hofstra Law Faculty Scholarship

No abstract provided.

Water Bankruptcy Through The Bankruptcy Code, Jack Zarin-Rosenfeld

Hofstra Law Faculty Scholarship

Water scarcity due to climate change is forcing the state and local government agencies that regulate water use to prioritize certain water uses and users above others. Water agencies could just stand pat and enforce existing priorities, even if doing so would cut off valuable collective uses of water that are lower in priority than uses by narrow private interests. Alternatively, the agencies could try to adapt water priorities to climate change by reducing water obligations owed to certain groups of users in order to free up water supplies for other groups of users, even if doing so would trigger …

Rationing Access, Roy Baharad, Gideon Parchomovsky

Vanderbilt Law Review

Protection of common natural resources is one of the foremost challenges facing our society. Since Garrett Hardin published his immensely influential The Tragedy of the Commons, theorists have contemplated the best way to save common-pool resources-—national parks, fisheries, heritage sites, and fragile ecosystems-—from overuse and extinction. These efforts have given rise to three principal methods: private ownership, community governance, and use restrictions. In this Essay, we present a different solution to the commons problem that has eluded the attention of theorists: access rationing. Access rationing measures rely not only on restrictions on the number of users but also on a …

Felony Financial Disenfranchisement, Neel U. Sukhatme, Alexander Billy, Gaurav Bagwe

Vanderbilt Law Review

Individuals with prior felony convictions often must complete all terms of their sentence before they regain voter eligibility. Many jurisdictions include legal-financial obligations (“LFOs”)-—fines, fees, and/or restitution stemming from convictions-—in the terms of the sentence. Twenty-eight states, governing over 182 million Americans, either directly or indirectly tie LFO repayment to voting privileges, a practice we call felony financial disenfranchisement.

Proponents of felony financial disenfranchisement posit that returning citizens must satisfy the financial obligations stemming from convictions to restore themselves as community equals. Moralism aside, others claim low rates of electoral participation among those with felony convictions imply such disenfranchisement is …

New York Adopts Nation’S Strongest Environmental Justice Law, Michael B. Gerrard, Edward Mctiernan

Faculty Scholarship

On March 3, New York Gov. Kathy Hochul signed the strongest environmental justice (EJ) law in the United States. While federal guidelines and the laws of some other states — notably California, Massachusetts, and Washington — require analysis, disclosure and consideration of EJ issues, only a New Jersey law adopted in 2020 imposed substantive limitations, as we discussed in our May 12, 2021, column. New York’s new law—building on enactments in 2019 and 2020 — is even more restrictive.

The new law — which we’ll call the EJL — provides that the Department of Environmental Conservation(DEC) “shall not issue an …

Pink Tax And Other Tropes, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Law reform advocates should be strategic in deploying tax tropes. Through an examination of five common tax phrases—the “nanny tax,” “death tax,” “soda tax,” “Black tax,” and “pink tax”—this Article demonstrates that tax rhetoric is more likely to influence law when used to describe specific economic injustices resulting from actual government duties, as opposed to figurative inequalities. In comparison, slogans describing figurative taxes are less likely to influence law and human behavior, even if they have descriptive force in both popular and academic literature as a short-hand for group-based disparities. This Article catalogues and evaluates what makes for effective tax …

Against A Uniform Law On The Income Taxation Of Trusts, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

In many areas, uniformity of state law is both practical and desirable. The Uniform Commercial Code, for example, brought harmony to conflicting state laws regarding the sale of goods and secured transactions, smoothing the way for interstate commerce. The law of trusts and estates is another area to which the Uniform Law Commissioners have recently turned their attention. Given the multitude of conflicts in state law regarding intestacy, fiduciary powers, and remote notarization, greater consistency between the states would be welcome. One area that should be off-limits to uniform lawmaking is the state income taxation of trusts. Despite complex and …

Monuments Without Faces?, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

Monuments take many forms and can serve several purposes. Typically associated with honor and a need to commemorate significant events, monuments seem to represent the ideas of the communities which house them. However, it remains to be seen whether all monuments represent a “good” memory. In this essay, the author seeks to comment on the concept of collective memory, specifically in the context of the history and experiences of marginalized groups in the United States. The author argues that monuments are a tool of promoting a collective memory: monuments are not part of history but rather part of the creation …

The Intentional Community: Toward Inclusion And Climate-Cognizance, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

In adapting communities to new levels of fairness, we must resist the notion that building equitable and accessible communities is antagonistic to building climate-cognizant communities. This paper will raise some of the core points in this endeavor and will offer suggestions for finding harmony between the two ends through creating communities with intention.

In Part I, I offer some details on what climate change, if unheeded, portends most in our daily lives. In Part II, I tell tales of two cities to frame the larger discussion. In Part III, I highlight some social, political, and economic history that produced a …

Implementing Nature's Rights In Colombia: The Arato And Amazon Experiences, Camila Bustos, Whitney Richardson

Elisabeth Haub School of Law Faculty Publications

Nature's rights approaches are being developed as an alternative legal means to enable justice for nature and, oftentimes, humans, too. This study examines Colombia's two seminal court-ordered nature's rights approaches which recognize ecosystems-the Atrato River Basin (2016) and the Colombian Amazon (2018)-as a legal subject with rights to protection, maintenance, conservation, and restoration. Developed as remedies for human rights violations, both cases offer opportunities to explore variations in nature's rights approaches and the relationship between efforts to enable justice for humans and nature. We build on existing scholarly engagement with the cases by contributing a detailed archival study on their …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Reasonable Accommodation Requests: Fair Evaluation And The Role Of Decision Makers, Mona Hawkins

Theses and Dissertations

The purpose of this qualitative study was to examine fair evaluations and the role of the decision-makers in the reasonable accommodation process. In many instances, fair evaluations in the reasonable accommodation process which disabled employees experienced, were challenging and looked upon as perceived discrimination in decision-making process. A review of the literature identified further clarification and insight into educating decision-makers about the disability laws, and then altering their behavior in granting reasonable accommodations. The literature progressed with discussions surrounding why every qualified disabled employee should be accommodated as long as the reasonable accommodation is not an undue hardship to the …

Felony Murder Liability For Homicides By Police: Too Unfair And Too Much To Bear, Maria T. Kolar

Journal of Criminal Law and Criminology

On November 23, 2020, a fifteen-year-old boy was gunned down by five Oklahoma City police officers, after he exited a convenience store and dropped the gun that he and a sixteen-year-old partner had earlier used to rob the store’s owner. Initially, the boy’s non-present partner was charged with first-degree (felony) murder for this killing. But after months of efforts by the boy’s mother and local activists, the district attorney also charged five officers with first-degree manslaughter for this same killing.

This case raises the question of whether Oklahoma—or any American state—can convict a defendant of felony murder based upon a …

The Problem Of Habitual Offender Laws In States With Felony Disenfranchisement, Daniel Loehr

Journal of Criminal Law and Criminology

Habitual offender laws operate to increase the sentence of an individual if that person already has a felony conviction. At the same time, many people with felony convictions cannot vote or run for office due to felony disenfranchisement laws. Thus, habitual offender laws target a formally disenfranchised group—people with felony convictions. That creates an archetypal political process problem. As John Hart Ely argued, laws that target a formally disenfranchised group are tainted and deserve heightened constitutional scrutiny. When reviewing habitual offender laws under the Eighth Amendment, however, courts have applied the opposite of heightened scrutiny—they have applied an extreme form …