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Human Rights, Human Duties: Making A Rights-Based Case For Community-Based Restorative Justice,, Aparna Polavarapu

Scholarly Works

Restorative justice is often framed as an alternative to the criminal legal system, and thus justifications of restorative justice tend to be rooted in the language of the criminal system. However, this approach limits our way of thinking about the practice of restorative justice, especially non-state, community-based practices. This Article argues for an independent, rights-based justification to support these community-based practices. By offering an in-depth analysis originating from a rights-based perspective, this Article engages with two underdeveloped areas of scholarly literature and suggests a new way of thinking about the day-to-day practice of restorative justice through a human rights lens. …

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Luke Norris, Helen Hershkoff

Law Faculty Publications

Jurisdiction is foundational to the exercise of a court’s power. It is precisely for this reason that subject matter jurisdiction today has come to the center of a struggle over corporate power and the regulatory state. Corporations have sought to manipulate forum choice to wear out less-resourced parties and circumvent hearings on the merits, along the way insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court or …

The Values-Based Trade Agenda, Fernanda Giorgia Nicola Dr., Michelle Egan

Scholarly Articles in Law Reviews & Journals

With the increasing trade tensions between the United States and China, pressures created by Brexit, and the COVID-19 pandemic, most trade scholars have focused on rising protectionism exhibited through defensive strategies such as tariffs and export controls. However, this focus ignores the fundamental shift in international trade goals of the United States and the European Union towards a values-based trade agenda.

Instead of merely focusing on free trade based on efficiency and market access, trade regulators on both sides of the Atlantic have independently pursued measures designed to address environmental sustainability and social equity. These policies resonate with their domestic …

Access To U.S. Discovery In International Commercial And Investor-State Arbitration, George A. Bermann

Faculty Scholarship

A provision of U.S. law — 28 U.S.C. section 1782 has for decades enabled litigants in foreign courts and international tribunals to avail themselves of U.S.-style discovery. Litigants and even so-called other interested parties have access to documentary and testimonial evidence even though the parties and dispute have no connection with the U.S. and such discovery is unavailable in the fora where the proceedings are pending. Use of this powerful evidence-gathering tool section 1782 in proceedings before foreign courts and international tribunals has become commonplace.

Among the most controversial issues in the U.S. law of international arbitration in recent years …

The Logic And Limits Of The Federal Reserve Act, Lev Menand

Faculty Scholarship

The Federal Reserve is a monetary authority subject to minimal executive and judicial oversight. It also has the power to create money, which permits it to disburse funds without drawing on the U.S. Treasury. Since 2008, it has leveraged this power to an unprecedented extent. It has rescued teetering financial conglomerates, purchased trillions of dollars of mortgage-backed securities, and opened numerous ad hoc lending facilities to support ordinary businesses, nonprofits, and municipalities.

This Article identifies the causes and consequences of the Federal Reserve's expanded footprint by recovering the logic and limits of its enabling act. It argues that to understand …

Practicing Queer Legal Theory Critically, Kendall Thomas

Faculty Scholarship

This introduction to the Critical Analysis of Law special issue on queer legal studies excavates three conjugal artifacts: an academic manuscript delineating interracial and same-sex marriages as loci of state surveillance and unfreedom; a TED Talk on same-sex marriage as irrefutably queer; and the United States Supreme Court decision holding same-sex marriage a constitutional right. These artifacts, along with their singular referent (state-sanctioned marriage), point to what is or should be critical about the interdiscipline of queer legal studies: theorization not only of the subjectification of subjects of gender and sexual regulation (spouses, singles, you and me), but also theorization …

Remarks On Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights, Amber Baylor, Valena Beety, Susan P. Sturm

Faculty Scholarship

The following are remarks from a panel discussion co-hosted by the Columbia Journal of Gender and Law and the Center for Gender and Sexuality Law on the book Manifesting Justice: Wrongly Convicted Women Reclaim Their Rights.

In These Times Of Compassion When Conformity’S In Fashion: How Therapeutic Jurisprudence Can Root Out Bias, Limit Polarization And Support Vulnerable Persons In The Legal Process, Michael L. Perlin

Articles & Chapters

In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool - in rooting out bias, limiting polarization, …

Randomness, Ai Art, And Copyright, Richard H. Chused

Articles & Chapters

No abstract provided.

Transcript - Civil Liberties: The Next 100 Years, Susan Herman, Erwin Chemerinsky, Ellis Cose, Anthony Romero, Nadine Strossen

Articles & Chapters

No abstract provided.

The So-Called Stateless: Firm Resettlement, African Immigrants, And Human Rights Violations In Mexico, Claire R. Thomas

Articles & Chapters

This paper explores Mexico’s reactionary migration policies, especially concerning the labeling of African migrants and asylum-seekers as so-called “stateless” and the subsequent unsolicited permanent residence status it offers, and address the numerous international and domestic legal violations contained within. Part I of this article presents the lived experiences of African asylum-seekers traveling through Mexico in 2015 and 2019 to demonstrate the direct impact of Mexican migratory policy changes. Many Black migrants and asylum-seekers, as well as Afro-Mexicans, have raised awareness of anti-Blackness in Mexico and of how racism is pervasive. Part II of this article explains Trump-era changes to U.S. …

Restorative Justice Diversion As A Structural Health Intervention In The Criminal Legal System, Thalia Gonzalez

Faculty Scholarship

No abstract provided.

A Fiduciary Principle Of Policing, Stephen R. Galoob

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.

Nondomination And The Ambitions Of Employment Law, Aditi Bagchi

Faculty Scholarship

There is something missing in existing discussions of domination. While republican theory and critical legal theory each have contributed significantly to our understanding of domination, their focus on structural relationships and group subordination can leave out of focus the individual wrongs that make up domination, each of which is an unjustified exercise of power by one person over another. Private law (supported by private law theory) plays an important role in filling out our pictures of domination and the role of the state in limiting it. Private law allows us to recognize domination in wrongs by one person against another, …

Reflection, Deliberation, And Dialogue: Stipanowich's Contribution To Dispute Resolution, Jacqueline Nolan-Haley .

Faculty Scholarship

No abstract provided.

It's A Code: Amending The Federal Rules Of Evidence To Achieve Uniform Results, Daniel J. Capra, Jessica Berch

Faculty Scholarship

This Article identifies, explores, and attempts to resolve nine conflicts that have arisen in the federal courts regarding the proper interpretation and scope of the Federal Rules of Evidence. For each conflict, we set forth the language of the current rule, its policy goals, and the differing positions taken by the courts. We then analyze the merits of the debate and propose new rule language to resolve the matter.

In this Article, we consider whether theft-based convictions are automatically admissible under Rule 609(a)(2), and how to calculate the passage of ten years for old convictions under Rule 609(b). We chart …

Punishment Without The State, I. Bennett Capers

Faculty Scholarship

People are speaking up on social media and in other virtual spaces, sometimes to spur the criminal process, sometimes in response to the criminal system’s perceived failures, and even sometimes completely indifferent to the criminal system. People are expressing moral condemnation. They are shaming, shunning, banishing, and canceling. What are the implications of punishment through virtual spaces, in lieu of the usual—and now seemingly antiquated—space of physical courtrooms? More broadly, when all the world can become a virtual courtroom, a “place” for judgment, what are the implications for how we think about crime itself? And perhaps most importantly, if social …

Three Modalities Of (Originalist) Fiduciary Constitutionalism, Ethan J. Leib

Faculty Scholarship

There is an ongoing body of scholarship in contemporary constitutional theory and legal history that can be labeled “fiduciary constitutionalism.” Some have wanted to strangle this work in its cradle, offering an argument pitched “against fiduciary constitutionalism,” full stop. But because there are enough different modalities of fiduciary constitutionalism – and particularly originalist varieties of it at the center of recent critiques – it is worth getting clearer about some methodological commitments of this work to help evaluate its promise and potential pitfalls. This paper develops the ambitions, successes, and deficiencies of three modalities of historical and originalist argument that …

Anti-Carceral Human Rights Advocacy, Chi Adanna Mgbako, Nate Johnson, Vivienne Bang Brown, Megan Cheah, Kimya Zahedi

Faculty Scholarship

The theory of carceral abolition entered the mainstream during the 2020 global protests for Black lives. Abolition calls for divestment from carceral institutions like police and prisons in favor of the expansion of social and economic programs that ensure public safety and nurture community well-being. Although there is little scholarship explicitly linking abolition to international human rights, there are scholars and advocates who implicitly echo abolitionist theories by critiquing the international human rights regime's overreliance on criminal law. These critics argue that relying on carceral institutions to address impunity for human rights abuses and promote gender justice does little to …

Proceed With Caution: Criminal Responsibility For Non-Participating Actors In University Hazing Incidents, Charlie Penrod

Touro Law Review

Hazing in university fraternities has become an epidemic. Most hazing involves new pledges who are coerced to endure physical, emotional, or psychological harm to prove themselves worthy of admission to the group. Sadly, many students suffer severe injuries from hazing, up to and including death. Many states have passed specific laws banning hazing and expanded the universe of persons guilty of hazing to possibly include non-participants who aided the hazing. In 2020, a Florida appellate court broadened this further, potentially holding a fraternity president responsible for hazing for making the mistake of allowing liquor at an off-campus party. The fraternity …

An Order, Most Fixed, Alexandra D. Lahav

Michigan Law Review

A Review of Rules: A Short History of What We Live By. By Lorraine Daston.

Introduction: Three Responses To Rewritten Opinions In Critical Race Judgments, Gabe Chess, Elena Meth

Michigan Law Review

A Review of Critical Race Judgments: Rewritten U.S. Court Opinions on Race and the Law. Edited by Bennett Capers, Devon W. Carbado, R.A. Lenhardt and Angela Onwuachi-Willig.

Disabling Lawyering: Buck V. Bell And The Road To A More Inclusive Legal Practice, Jacob Izak Abudaram

Michigan Law Review

A Review of Demystifying Disability: What to Know, What to Say, and How to Be and Ally. By Emily Ladau and Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell By Paul A. Lombardo.

Rights, Power, And Inequality, Bryan H. Druzin

Oklahoma Law Review

No abstract provided.

Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …

Our Avatars, Ourselves, Mala Chatterjee

Faculty Scholarship

On 2013 an episode of the British TV show Black Minvrimagined a harrowing possibility: that technology might allow us to recreate the dead. A young woman named Martha loses her partner in a sudden accident and copes with the loss-or perhaps refuses to cope with itwith the assistance of an unnerving artificial intelligence, trained on her partner's data footprint, that can speak, act, and appear exactly as he did. It's not long before Martha becomes obsessed with the emulation, gathering every remnant of her partner's life to incorporate into the model and spending hours on the phone conversing with his …

The Restatement Of Property: The Curse Of Incompleteness, Thomas W. Merrill

Faculty Scholarship

The central feature of the American Law Institute’s Restatement of Property is that it remains incomplete after nearly seventeen volumes produced over nearly ninety years. The principal explanation for this is the proclivities of the Reporters who have been responsible for the first three iterations of this effort. Some of these proclivities, such as a commitment to meticulous research, have been commendable. But the incompleteness of the effort has reduced the influence of the property Restatement, relative to other Restatements like contracts and torts. The chapter concludes with a description of the Fourth Restatement of Property, now underway, and the …

Waste And Chemical Management In A 4°C World, Michael B. Gerrard

Faculty Scholarship

Many chemicals and hazardous substances are kept in places that can withstand ordinary rain, but not severe storms or floods. If these events occur and the chemicals are released, people and the environment may be endangered. This Article discusses the hazards posed to chemical and waste disposal facilities by extreme weather events that would be worsened as a result of climate change, and how U.S. laws do (or do not) deal with these hazards; and considers how the law would need to change to cope with what would happen to these facilities in a potentially 4°C world. It is adapted …

Once The Jury Sees It, The Jury Can’T Unsee It: The Challenge Trial Judges Face When Authenticating Video Evidence In The Age Of Deepfakes, Taurus Myhand

Scholarly Works

The proliferation of deepfake videos has resulted in rapid improvements in the technology used to create them. Although the use of fake videos and images are not new, advances in artificial intelligence have made deepfakes easier to make and harder to detect. Basic human perception is no longer sufficient to detect deepfakes. Yet, under the current construction of the Federal Rules of Evidence, trials judges are expected to do just that. Trial judges face a daunting challenge when applying the current evidence authentication standards to video evidence in this new reality of widely available deepfake videos. This article examines the …

Private Enforcement In The States, Diego A. Zambrano, Neel Guha, Austin Peters, Jeffrey Xia

Faculty Scholarship

Scholarship on U.S. litigation and civil procedure has scarcely studied the role of private enforcement in the states. Over the past two decades, scholars have established that, almost uniquely in the world, the U.S. often relies on private parties rather than administrative agencies to enforce important statutory provisions. Take your pick of any area in American governance, and you will find private rights of action: environmental law, civil rights, employment discrimination, antitrust, consumer protection, business competition, securities fraud, and so on. In each of these areas, Congress has deliberately empowered private plaintiffs instead of, or in addition to, government agencies. …