Digital Commons Network^™

Carrie Menkel-Meadow: Leading Us Toward Justice And Peace, Jean R. Sternlight

Scholarly Works

This Essay explores how Carrie Menkel-Meadow's life and work have both highlighted the path of "And"-showing and explaining that it is not only possible but also desirable to seek justice as well as peace, to be both activist and neutral. Of course, tensions will remain. Regarding particular issues in specific moments we all must decide which path we can and should take. Which activism is best, and which goes too far? With whom can we or should we negotiate, and when should we instead say, "I can't negotiate with this person or group"? When should we talk and listen, and …

Decitizenizing Asian Pacific American Women, Shoba Sivaprasad Wadhia, Margaret Hu

University of Colorado Law Review

The Page Act of 1875 excluded Asian women immigrants from entering the United States, presuming they were prostitutes. This presumption was tragically replicated in the 2021 Atlanta Massacre of six Asian and Asian American women, reinforcing the same harmful prejudices. This Article seeks to illuminate how the Atlanta Massacre is symbolic of larger forms of discrimination, including the harms of decitizenship. These harms include limited access to full citizenship rights due to legal barriers, restricted cultural and political power, and a lack of belonging. The Article concludes that these harms result from the structure of past and present immigration laws …

Essential, Not Expendable: Protecting The Economic Citizenship Of Agricultural Workers, Hunter Knapp

University of Colorado Law Review

No abstract provided.

Can Nature Tourists Police Themselves? Comparing Eco-Pledges In The United States And Palau, Marcia Moana Levitan-Haffer

University of Colorado Law Review

No abstract provided.

Our Constitutionalism Of Force, Farah Peterson

Public Law and Legal Theory Working Papers

The Founders’ constitution—the one they had before the Revolution and the one they fought the Revolution to preserve—was one in which violence played a lawmaking role. An embrace of violence to assert constitutional claims is worked deeply into our intellectual history and culture. It was entailed upon us by the Founding generation, who sincerely believed that people “are only as free as they deserve to be” and that one could tell how much freedom people deserved by how much blood they were willing to shed to obtain it. This constitutionalism of force survived ratification. Its legacy is a constitutional order …

Streaming Property, Lee Anne Fennell

Public Law and Legal Theory Working Papers

People acquire property rights in objects and real estate in order to capture the stream of services that these assets can provide over time. The thing or parcel itself is merely a delivery mechanism, a way of packaging and protecting rights to that value stream. And, significantly, these assets cannot stream services to anyone without a set of facilitating conditions and complementary goods, such as public infrastructure, that do not lie within the asset owner’s individual control. This Essay argues that we can gain fresh traction on inequality by recasting property as service streams rather than as owned things. Doing …

Strategic Rulemaking Disclosure, Jennifer Nou, Edward H. Stiglitz

Public Law and Legal Theory Working Papers

Congressional enactments and executive orders instruct agencies to publish their anticipated rules in what is known as the Unified Agenda. The Agenda’s stated purpose is to ensure that political actors can monitor regulatory development. Agencies have come under fire in recent years, however, for conspicuous omissions and irregularities. Critics allege that agencies hide their regulations from the public strategically, that is, to thwart potential political opposition. Others contend that such behavior is benign, perhaps the inevitable result of changing internal priorities or unforeseen events.

To examine these competing hypotheses, this Article uses a new dataset spanning over thirty years of …

Militant Democracy Comes To The Metaverse, Aziz Z. Huq

Public Law and Legal Theory Working Papers

Social media platforms such as Facebook, Twitter, Instagram, and Parlor are an increasingly central part of the democratic public sphere in the United States. But the prevailing view of this platform-based public sphere has of late become increasingly dour and pessimistic. What were once seen as technologies of liberation have come to be viewed with skepticism as channels and amplifiers of “antisystemic” forces, damaging the quality and feasibility of democracies. If correct, this skepticism yields an interesting tension: How can the state protect its democratic character against unravelling pressure from actors who are necessary components of democratic practice in the …

Personalized Law, Political Power, And The Dangerous Few, Adam Davidson

Public Law and Legal Theory Working Papers

No abstract provided.

Still Awaiting Justice: An Analysis On The Impact Of Anti-Immigrant Sentiment On The Reproductive Autonomy Of Migrant Women, Annays Esperanza Yacaman

Senior Independent Study Theses

My research aims to explain the impact of anti-immigrant sentiment on the reproductive autonomy of migrant women. Legislators typically act as their constituents feel on a certain issue, so I aimed to explore how legislators responded with legislation when their constituents held higher levels of anti-immigrant sentiment, hypothesizing that this would lead to more legislation limiting the reproductive autonomy of migrant women. I explore topics of eugenics and how anti-immigrant sentiment has led to modern day eugenics.

My hypothesis did not manifest itself in the expected way, but the results do provide evidence for a causal link between legislation meant …

Cause For Concern Or Cause For Celebration?: Did Bostock V. Clayton County Establish A New Mixed Motive Theory For Title Vii Case And Make It Easier For Plaintiffs To Prove Discrimination Claims?, Terrence Cain

Seattle University Law Review

Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to discriminate against an employee “because of” race, color, religion, sex, or national origin. This seems simple enough, but if an employer makes an adverse employment decision partly for an impermissible reason and partly for a permissible reason, i.e., if the employer acts with a mixed motive, has the employer acted “because of” the impermissible reason? According to Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v. Nassar, the answer is no. The Courts in Gross and Nassar held …

First Comes Love. Then Comes Marriage. Then Comes A Baby In A Baby Carriage: An Application Of Protective Surrogacy Laws To The Tarheel State, Justin Lo

Seattle University Law Review

Assisted Reproductive Technology (ART) and determining parentage have a common feature: each is governed by state law or the lack of such laws. This lack of statutory regulations presents significant legal challenges to gay men who wish to start a family. Because same-sex male couples seeking to become fathers through ART and surrogacy are the most likely demographic to be impacted when determining parentage, laws that influence the direction of surrogacy will undeniably facilitate whether both males will be deemed a father. To provide same-sex male couples with a pathway to parenthood, North Carolina should (1) develop robust, protective surrogacy …

Leading Law Schools: Relationships, Influence, And Negotiation, Michael T. Colatrella Jr.

McGeorge School of Law Scholarly Articles

No abstract provided.

The Landscape Of Startup Corporate Governance In The Founder-Friendly Era, Jennifer S. Fan

Articles

In corporate governance scholarship, there is an important debate about the nature and roles of the members of the board of directors in venture capital-backed private companies. The impact of a newly emerged, founder-centric model has been underappreciated, while the role of the independent director as tiebreaker or swing vote is vastly overstated. The reality is that corporate governance in these companies is a norm-driven, consensus-building process that rarely spills out into open conflict.

This is the first empirical study of startup corporate governance post-Great Recession and during the pandemic. Using survey and interview methodologies, this Article makes four primary …

Terrified By Technology: How Systemic Bias Distorts U.S. Legal And Regulatory Responses To Emerging Technology, Steve Calandrillo, Nolan Kobuke Anderson

Articles

Americans are becoming increasingly aware of the systemic biases we possess and how those biases preclude us from collectively living out the true meaning of our national creed. But to fully understand systemic bias we must acknowledge that it is pervasive and extends beyond the contexts of race, privilege, and economic status. Understanding all forms of systemic bias helps us to better understand ourselves and our shortcomings. At first glance, a human bias against emerging technology caused by systemic risk misperception might seem uninteresting or unimportant. But this Article demonstrates how the presence of systemic bias anywhere, even in an …

Brief Of Black Women Law Scholars As Amici Curiae In Support Of Respondents, Students For Fair Admissions, Inc. V. President And Fellows Of Harvard College And Univ. Of N.C., Suzette Malveaux

Scholarly Articles

Amici are Black women law scholars who, based on their professional and personal experiences, share a deeply rooted commitment to defending the legality of race-conscious admissions policies in educational institutions across the country. They submit this brief to present their unique and vital perspective on the history, constitutionality, and importance of race-conscious programs like those adopted by Harvard University and the University of North Carolina (“UNC”).

The Natural Law Ethics Of Public Health Lockdowns, Eric C. Ip

Notre Dame Journal of Law, Ethics & Public Policy

No abstract provided.

Lecture: 2022 Sumner Canary Memorial Lecture: Textualism’S Political Morality, Honorable Neomi Rao

Case Western Reserve Law Review

No abstract provided.

Read Thyself, Alice Ristroph

Faculty Scholarship

No abstract provided.

Social Justice As Desistance: Rethinking Approaches To Gender Violence, Deborah M. Weissman

American University Law Review

Scholars and activists have directed increasing attention to the failure of the U.S. criminal legal system and the institutions of mass incarceration it has wrought and have identified the need for transformative changes in approaches to acts of harmful behaviors. Proponents of reforms have advocated for legal corrections to constrain sentencing practices, and remedy racial disparities in imprisonment to mitigate rates of incarceration and related punishments. COVID-19 release campaigns have revealed both the egregious conditions of prisons and the irrationality of punishment paradigms. Indeed, not a few abolitionists have repudiated the criminal legal system.

Maine Law Magazine - Issue No. 97, University Of Maine School Of Law

Maine Law Magazine

• The House That Deirdre Smith Built For nearly 20 years, Professor Smith has led the Cumberland Legal Aid Clinic.
• Why Study Cannabis Law? Legalized cannabis is one of the fastest-growing industries in the country. Here’s what that means for lawyers.
• Maine Law is on the Move Maine Law’s new location has both a physical and philosophic significance.
• Investigating the Boston Asylum Office A multi-year report drives calls for action.
• The Boundaries of Multi-Parentage What happens when a child has more than two parents?
• Alumni at Work: Joann Bautista '18 The daughter of Mexican immigrants, Bautista is Maine’s first Latin deputy …

Whiteness As Guilt: Attacking Critical Race Theory To Redeem The Racial Contract, Marissa Jackson Sow

Law Faculty Publications

The year of racial justice awakening following George Floyd’s 2020 murder have been accompanied by a rise in attacks on Black thought, including Critical Race Theory, led by far-right activists who are invested in maintenance of a white supremacist status quo in the United States. This Essay uses artist Kara Walker’s 2014 Sugar Sphinx to contextualize the critiques on Critical Race Theory and other manifestations of Black intellectualism as a campaign for perpetual absolution of white guilt, and even redemption of white supremacy, that is openly embraced by white nationalists but also secretly nourished—and cherished—by the white liberal elite.

Home Of The Dispossessed, Allison Anna Tait

Law Faculty Publications

The objects that people interact with on a daily basis speak to and of these people who acquire, display, and handle them—the relationship is one of exchange. People living among household objects come to care for their things, identify with them, and think of them as a constituent part of themselves. A meaningful problem arises, however, when people who have deep connections to the objects that populate their lived spaces are not those who possess the legal rights of ownership. These individuals and groups—usually excluded from the realm of property ownership along lines of gender, race, and ethnicity—live on an …

Textualism, Judicial Supremacy, And The Independent State Legislature Theory, Leah Litman, Katherine Shaw

Articles

This piece offers an extended critique of one aspect of the so-called “independent state legislature” theory. That theory, in brief, holds that the federal Constitution gives state legislatures, and withholds from any other state entity, the power to regulate federal elections. Proponents ground their theory in two provisions of the federal Constitution: Article I’s Elections Clause, which provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” and Article II’s Presidential Electors Clause, which provides that “[e]ach State shall appoint, in such Manner as the Legislature …

Lawyering Paradoxes: Making Meaning Of The Contradictions, Susan P. Sturm

Faculty Scholarship

Effective lawyering requires the ability to manage contradictory yet interdependent practices. In their role as traditionally understood, lawyers must fight, judge, debate, minimize risk, and advance clients’ interests. Yet increasingly, lawyers must ALSO collaborate, build trust, innovate, enable effective risk-taking, and hold clients accountable for adhering to societal values. Law students and lawyers alike struggle, often unproductively, to reconcile these tensions. Law schools often address them as a dilemma requiring a choice or overlook the contradictions that interfere with their integration.

This Article argues instead that these seemingly contradictory practices can be brought together through the theory and action of …

Willard Hurst, Technological Changes, And The Transformation Of American Public Law, William J. Novak

Articles

As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities …

Crime And The Corporation: Making The Punishment Fit The Corporation, John C. Coffee Jr.

Faculty Scholarship

The debate over corporate criminal liability has long involved a fight between proponents who argue that corporate liability is necessary for effective deterrence and opponents who claim that it “punishes the innocent.” This Article agrees and disagrees with both sides. Corporate criminal liability could play a critical role in establishing an effective deterrent to organizational misconduct, but today it largely fails. Currently, we have a system that combines Deferred Prosecution Agreements, Non-Prosecution Agreements, and extraordinarily generous sentencing credits for compliance plans that have failed, and the result is a system that is more carrots than sticks. The evidence seems clear …

Floors And Ceilings In International Copyright Treaties: Berne/Trips/Wct Minima And Maxima, Jane C. Ginsburg

Faculty Scholarship

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by …

Countering The New Election Subversion: The Democracy Principle And The Role Of State Courts, Jessica Bulman-Pozen, Miriam Seifter

Faculty Scholarship

Among the threats to American democracy, the most serious may also be the most banal: future elections will be compromised by quiet changes to the law. State legislators across the country have introduced bills that give them power to reject the will of voters. They have established sham audits and investigations. And they have created new criminal offenses that undermine professional election administration. While power-shifting legislation, audits, and criminal penalties advertise their fealty to law, they threaten the franchise and electoral integrity, as well as nonpartisan, expert election administration. Because of its ostensibly legal, even legalistic, character, however, the new …

Relying On Restatements, Shyamkrishna Balganesh

Faculty Scholarship

Restatements of the Law occupy a unique place in the Americanlegal system. For nearly a century, they have played a prominent and influential role as legal texts that courts routinely rely on in a wide variety of fields. Despite their ubiquitous and pervasive use by courts, Restatements are not formal sources of law. While they resemble statutes in their form and structure, Restatements are produced entirely by a private organization of experts set up to clarify and simplify the law and thus lack the force of law on their own. And yet, courts treat them as formal and authoritative sources …