Jurisprudence Commons^™

The Future Of The Allen Charge In The New Millennium, Caleb Epperson

Arkansas Law Review

"In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same." Following the death of George Floyd on May 25, 2020, social and political movements grew rapidly nationwide to combat the prevalence of police brutality against African-American communities. The impact of the ongoing Black Lives Matter movement has been observed in both cities across the United States and in related movements internationally. This movement highlights the necessity for police reform and catalyzes the public’s growing call for greater criminal justice reform. To achieve the goals …

Timing Legal Parenthood, Noy Naaman

Arkansas Law Review

When does a parent become a parent? This Article examines this question through a novel framework that analyzes the tension between an individual’s evolving self-identification as a parent and the law’s acknowledgment of the individual’s parental status. It focuses on two forms of that tension. The first concerns a scenario occurring after the birth of a child, when the self-identification as a parent is established but the law has yet to formalize the parental status. The second involves a scenario occurring before the birth, when the self-identification as a parent-to-be—the process of becoming—is legally overlooked. This Article argues that this …

Can't We Just Talk About This First?: Making The Case For The Use Of Discovery Depositions In Arkansas Criminal Cases, Bryan Altman

Arkansas Law Review

“[T]he quest for better justice is a ceaseless quest, that the single constant for our profession is the need for continuous examination and reexamination of our premises as to what law should do to achieve better justice.” From time to time, it is important that we take stock of our legal surroundings and ask ourselves if our procedures are still properly serving us, or if there is need for change and improvement. In this Article, I argue that the time has come for Arkansas to provide the criminal defense bar with the affirmative power to conduct discovery depositions. Arkansas criminal …

The Local Community Standard: Modernizing The Supreme Court's Obscenity Jurisprudence, Jacob S. Gordon

Helm's School of Government Conference - American Revival: Citizenship & Virtue

Paper presentation on the Supreme Court's outdated case law on obscenity and how it needs to be modernized to in order to combat the dissemination of inappropriate materials in the age of decentralized digital media.

Bad Acts, Worse Responses: Reconsidering The Moral Foundations Of The Us Criminal Justice System, Christian N. Futch

Honors College Theses

The purpose of this paper is to evaluate the contemporary criminal justice system in the United States, offering moral and pragmatic critiques to its current construction, and proposing an alternative construction that is both more successful pragmatically and morally. In this paper, I first establish the connection between morality and the law through the consideration of jurisprudential theories of law. After arguing for this connection, I then offer critiques of the current criminal justice system in the United States. After this, I evaluate the four general theories of punishment using the scholarship of Thom Brooks, finding that retributive and deterrent …

Truth And Reconciliation: The Ku Klux Klan Hearings Of 1871 And The Genesis Of Section 1983, Tiffany R. Wright, Ciarra N. Carr, Jade W.P. Gasek

Dickinson Law Review (2017-Present)

Over the course of seven months in 1871, Congress did something extraordinary for the time: It listened to Black people. At hearings in Washington, D.C. and throughout the former Confederate states, Black women and men—who just six years earlier were enslaved and barred from testifying in Southern courts—appeared before Congress to tell their stories. The stories were heartbreaking. After experiencing the joy of Emancipation and the initial hope of Reconstruction, they had been subjected to unspeakable horror at the hands of white terrorists. They had been raped and sexually humiliated. Their children and spouses murdered. They had been savagely beaten …

The Dignitary Confrontation Clause, Erin Sheley

Washington Law Review

For seventeen years, the Supreme Court’s Confrontation Clause jurisprudence has been confused and confusing. In Crawford v. Washington (2004), the Court overruled prior precedent and held that “testimonial” out-of-court statements could not be admitted at trial unless the defendant had an opportunity to cross-examine the declarant, even when the statement would be otherwise admissible as particularly reliable under an exception to the rule against hearsay. In a series of contradictory opinions over the next several years, the Court proceeded to expand and then seemingly roll back this holding, leading to widespread chaos in common types of cases, particularly those involving …

Race And Washington’S Criminal Justice System: 2021 Report To The Washington Supreme Court, Task Force 2.0

Washington Law Review

RACE & WASHINGTON’S CRIMINAL JUSTICE SYSTEM:

EDITOR’S NOTE

As Editors-in-Chief of the Washington Law Review, Gonzaga Law Review, and Seattle University Law Review, we represent the flagship legal academic publications of each law school in Washington State. Our publications last joined together to publish the findings of the first Task Force on Race and the Criminal Justice System in 2011/12. A decade later, we are honored to join once again to present the findings of Task Force 2.0. Law journals have enabled generations of legal professionals to introduce, vet, and distribute new ideas, critiques of existing legal structures, and reflections …

Reassociating Student Rights: Giving It The Ole College Try, Tyler Mlakar

Arkansas Law Review

At the beginning of 2020, the World Health Organization (“WHO”) declared Coronavirus disease 2019 (“COVID-19”) a “public health emergency of international concern.” Governments around the world began instituting citywide and even nationwide “lockdowns.” In the United States, the approach was far more splintered. While there was no nationwide lockdown, states across the country instituted varying measures ranging from “shelter-in-place” and “stay at home” orders, to school closures, limits on the size of public gatherings, “mask mandates,” and even some states allowing restaurants and bars to remain open. Across the United States, these measures have resulted in the most pervasive governmental …

Nonlawyers In The Legal Profession: Lessons From The Sunsetting Of Washington's Lllt Program, Lacy Ashworth

Arkansas Law Review

Today, the number of attorneys in the world fails to serve the number of people in need of legal assistance. Approximately sixty percent of law firm partners are baby boomers, meaning those in their mid fifties to early seventies, and twenty-five percent of all lawyers are sixty-five or older. These individuals will predictably retire. Meanwhile, law school costs more than ever. The average law student graduates $160,000 in debt only to enter into the legal profession with an average starting salary of $56,900 in the public sector and $91,200 in the private sector. It is no surprise law schools have …

Structural Racism And The Redressing Of Foundational Wrongs, Natsu Taylor Saito

Journal of Race, Gender, and Ethnicity

No abstract provided.

Settling Claims For Reparations, Daniel Butt

Journal of Race, Gender, and Ethnicity

The scale and character of past injustice can seem overwhelming. Grievous wrongdoing characterizes so much of human history, both within and between different political communities. This raises a familiar question of reparative justice: what is owed in the present as a result of the unjust actions of the past? This article asks what should be done in situations where contemporary debts stemming from past injustice are massive in scale, and seemingly call for nonideal resolution or settlement. Drawing on recent work by Sara Amighetti and Alasia Nuti on deliberative reparative processes, the article differentiates between two different approaches to settling …

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Journal of Race, Gender, and Ethnicity

No abstract provided.

The Role Of Truth-Telling In Indigenous Justice, Sara L. Ochs

Journal of Race, Gender, and Ethnicity

No abstract provided.

Taxonomy And Restorative Justice: Can We Even See The Problem?, Dominique Day

Journal of Race, Gender, and Ethnicity

No abstract provided.

Reparations And The International Law Origin Story, John Linarelli

Journal of Race, Gender, and Ethnicity

No abstract provided.

Movement Judges, Brandon Hasbrouck

Scholarly Articles

Judges matter. The opinions of a few impact the lives of many. Judges romanticize their own impartiality, but apathy in the face of systems of oppression favors the status quo and clears the way for conservative agendas to take root. The lifetime appointments of federal judges, the deliberate weaponization of the bench by reactionary opponents of the New Deal and progressive social movements, and the sheer inertia of judicial self-restraint have led to the conservative capture of the courts. By contrast, empathy for the oppressed and downtrodden renders substantive justice possible and leaves room for unsuccessful litigants to accept unfavorable …

Litigation As Integration And Participation: The Role Of Lawsuits In The U.S. Environmental Justice Movement, Tomas Sebastian Forman

Senior Projects Spring 2022

What is, has been, and could be the role of litigation in the U.S. environmental justice movement? To what ends do Indigenous communities, federally-recognized tribes, and rural Black communities choose to engage with the U.S. legal system, an institution which has, over history, consistently subjugated and dispossessed them? How do these groups' particularistic relationships to natural and built environments, conceptions of justice and fairness, and understandings of what effective environmental regulation look like inform that choice? This paper draws from in-depth qualitative research to demonstrate the following things: (1) how environmental justice lawsuits differ from canonical environmental and civil rights …

Revisiting A Jurisprudence Of Obligation, Ariel Evan Mayse, Kenneth A. Bamberger

Touro Law Review

Through his landmark exploration of obligation as the conceptual touchstone of what he describes as the “Jewish jurisprudence of the social order,” Robert Cover offered an alternate language for legal regimes grounded in a rhetoric of individual rights. The present essay revisits Cover’s account of the socially embedded nature of law and juridical process, taking seriously both its claims, as well as the cautions of its critics. The essay thus neither abandons the concept of rights as key to jurisprudence nor seeks to present a naïve or romantic characterization of Jewish legal thought, and proceeds wary of the pitfalls inherent …

On Proper[Ty] Apologies And Resilience Gaps, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

The Lost Cause Of Free Speech, Mary Anne Franks

Articles

No abstract provided.

Theory Matters—And Ten More Things I Learned From Martha Chamallas About Feminism, Law, And Gender, Deborah L. Brake

Articles

This Festschrift article celebrates the scholarship of Martha Chamallas, Distinguished University Professor and Robert J. Lynn Chair in Law Emeritus of the Ohio State University Moritz College of Law, and one of the most impactful scholars of feminist legal theory and employment discrimination of her generation. Mining the insights of Chamallas’s body of work, the article identifies ten core “lessons” relating to feminism and law drawn from her scholarship and academic career. It then weaves in summaries and synthesis of her published works with discussion of subsequent legal and social developments since their publication. These lessons (e.g., feminism is plural; …

Prison Transfers And The Mootness Doctrine: Disappearing The Rule Of Law In Prisons, Spearit

Book Chapters

Access to the legal system does not come easily for people in prison. There are administrative procedures that must be exhausted; federal legislation like the Prison Litigation Reform Act disadvantages prisoner-petitioners in multiple ways, including by imposing significant limits on damages and creating financial disincentives for lawyers to take on cases. Such onerous legislation and lack of legal aid ensure genuine issues evade redress. Sometimes, however, the law itself is the cause of evasion. Sometimes doctrine prevents the Rule of Law from functioning in prison, particularly when a prison-transfer moots a legal claim. In the most egregious situations, a transfer …

The Supreme Court’S Hands-Off Approach To Religious Questions In The Era Of Covid-19 And Beyond, Samuel J. Levine

Scholarly Works

No abstract provided.

A Call For Transparency In Sports To The Government Of Puerto Rico, Karla V. Aponte

St. Thomas Law Review

Much like a state, Puerto Rico is self-governed, but cannot interfere with federal law. However, sports federations in Puerto Rico are not governed by the existing applicable federal law. Sports federations are avoiding most of the strict regulations imposed by federal acts, mainly because Puerto Rico has its own Olympic identity, and is recognized by the International Olympic Committee as a separate country. As a result, the language on the federal acts has been interpreted to only apply to those organizations representing the United States. Because of this, federations avoid strict auditing procedures, and other regulations, which consequently have deterred …

Rights And Duties In Jewish Law, Itamar Rosensweig, Shua Mermelstein

Touro Law Review

In this Article, we argue that rights play a central role in Jewish law. In Section I, we reconstruct Robert Cover’s thesis distinguishing the West’s jurisprudence of rights from Judaism’s jurisprudence of obligation. In Section II, we present Rabbi Lichtenstein’s theory that rights play no central role in Jewish law. We show that the theories of Rabbi Lichtenstein and Robert Cover have given rise to the idea that there are no rights in Jewish law, only obligations. In Section III we develop two types of arguments in support of our position that rights are central to Jewish law. Our first …

Bridges Of Law, Ideology, And Commitment, Steven L. Winter

Touro Law Review

Law has a distinctive temporal structure—an ontology—that defines it as a social institution. Law knits together past, present, purpose, and projected future into a demand for action. Robert Cover captures this dynamic in his metaphor of law as a bridge to an imagined future. Law’s orientation to the future necessarily poses the question of commitment or complicity. For law can shape the future only when people act to make it real. Cover’s bridge metaphor provides a lens through which to explore the complexities of law’s ontology and the pathologies that arise from its neglect or misuse. A bridge carries us …

‘Nothing About Us Without Us’: Toward A Liberatory Heterodox Halakha, Laynie Soloman, Russell G. Pearce

Touro Law Review

The role and function of “halakha” (Jewish law) in Jewish communal life is a divisive issue: while Orthodox Jews tend to embrace Jewish law, non-Orthodox Jews (here deemed “Heterodox”) generally reject Jewish law and halakhic discourse. We will explore the way in which Robert Cover’s work offers an antidote to categorical Heterodox distaste for halakha specifically, and law more broadly, providing a pathway into an articulation of halakha that may speak to Heterodox Jews specifically: one that is driven by creative “jurisgenerative” potential, that is informed by a paideic pluralism, and that is fundamentally democratic in its commitment to being …

Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore

Arkansas Law Review

It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …