Digital Commons Network^™

Navigating The Structural Coherence Of Sea Life, Aldo Chircop, Philip Steinberg, Greta Ferloni, Claudio Aporta, Gavin Bridge, Kate Coddington, Stuart Elden, Stephanie C. Kane, Timo Koivurova, Jessica Shadian, Anna Stammler-Gossmann

Articles, Book Chapters, & Popular Press

Ice breaking by ships can cause irreparable harm to the ecologies and cultures of northern regions. This chapter revolves around a central question: what are the barriers preventing the development of a legal mechanism to limit this act of environmental violence? The chapter suggests that the central barrier is not so much legal as it is ontological: foundational conceptions of space that underpin Western legal institutions are unable to value the form of water, reducing it instead to an ed space that is used for movement or resource extraction. This chapter demonstrates how a consideration of the environmental violence of …

Abortion Rights Beyond The Medico-Legal Paradigm, Mariana Prandini Assis, Joanna Erdman

Articles, Book Chapters, & Popular Press

Abortion rights in international law have historically been framed within a medico-legal paradigm, the belief that regulated systems of legal and medical control guarantee safe abortion. However, a growing worldwide practice of self-managed abortion (SMA) supported by feminist activism challenges key precepts of this paradigm. SMA activism has shown that more than medical service delivery matters to safe abortion and has called into question the legal regulation of abortion beyond criminal prohibitions. This article explores how abortion rights have begun to depart from the medico-legal paradigm and to support the novel norms and practices of SMA activism in a transformation …

Breathing Life Into Our Living Tree And Strengthening Our Constitutional Roots: The Promise Of The United Nations Declaration On The Rights Of Indigenous Peoples Act, Naiomi Metallic

Articles, Book Chapters, & Popular Press

In 2015, the Truth and Reconciliation Commission of Canada (“TRC”) suggested that, despite over 30 years of interpretation in the courts, section 35 of the Constitution Act, 1982, which “recognizes and affirms” the Aboriginal and treaty rights of the Aboriginal peoples of Canada, is not achieving meaningful reconciliation. The TRC defined reconciliation as being about “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples in this country.” According to the TRC, the “reconciliation vision that lies behind Section 35 should not be seen as a means to subjugate Aboriginal peoples to an absolute sovereign Crown,” implying this …

Teaching About Justice By Teaching With Justice: Global Perspectives On Clinical Legal Education And Rebellious Lawyering, Catherine F. Klein, Richard Roe

Scholarly Articles

Teaching About Justice by Teaching with Justice: Global Perspectives on Clinical Education and Rebellious Lawyering is co-authored by cadre of clinicians from around the world: Catherine F. Klein, Richard Roe, Mizanur Rahman, Dipika Jain, Abhayraj Naik, Natalia Martinuzzi Castilho, Taysa Schiocchet, Sunday Kenechukwu Agwu, Olinda Moyd, Bianca Sukrow, and Christoph König. The piece captures and reflects the content of five presentations at the 2021 Global Alliance for Justice Education (GAJE) biannual gathering, conducted virtually due to the pandemic, with over 450 participants from 45 countries. The piece illuminates many themes and issues in the teaching and practice of transformational justice …

Equality Offshore, Martin W. Sybblis

Faculty Articles

Global governance architecture, crafted by wealthy nations, has perpetuated the subordination of developing jurisdictions. The Article offers a novel and surprising analysis of governance tools used by wealthy countries and inter-governmental organizations to constrain offshore financial centers (OFCs) by focusing on the tools’ disparate impacts on tax havens whose populations comprise predominantly Black and Brown people. With tax haven issues garnering increasing attention, this Article provides a pathbreaking conceptual framework for examining the international tax, crime, and business discourse on OFCs. It also illuminates how the actions of powerful international actors, such as the Organization for Economic Cooperation and Development …

Sweet Old-Fashioned Notions: Legal Engagement With Anthropological Scholarship, Deepa Das Acevedo

Faculty Articles

The study of law, we are told often and generally with approval, has become a potluck to which everyone is invited. Over there stand the historians bearing their retrospectively informed insights; across from them are the experimental psychologists hoisting their pleasingly social-scientific brew; in the corner lurk philosophers chatting calmly over some first principles. The center of the room is quite naturally taken up by the economists, laughing exuberantly over their spread of nifty models, intimidating formulae, and soothing predictions. In the midst of this lively affair, circulating among the invitees like a dutiful host, rejecting nothing, sampling everything, and …

Ukrainian Refugees, Race, And International Law's Choice Between Order And Justice, Marissa Jackson Sow

Law Faculty Publications

The resurgence of racist rhetoric and policies concerning people fleeing the war in Ukraine serves as a reminder that the ostensible goals of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol are regularly eschewed by states making decisions about how to allocate grants of asylum. This Essay makes the claim that racial tiering of protection-seekers demonstrates that states use international refugee law to negotiate their national whiteness contracts and to secure racially hegemonic geopolitical ordering.

Reparations And The International Law Origin Story, John Linarelli

Journal of Race, Gender, and Ethnicity

No abstract provided.

Evaluating Legal Needs, Luz Herrera, Amber Baylor, Nandita Chaudhuri, Felipe Hinojosa

Faculty Scholarship

This article is the first to explore legal needs in the Rio Grande Valley of Texas – a region that is predominantly Latinx and has both rural and urban characteristics. There are few legal needs assessments of majority Latinx communities, and none that examine needs in areas that are also U.S. border communities. Access to justice studies often overlook this area of the U.S. and this segment of the population despite their unique qualities. Latinos are projected to constitute the largest ethnic group in the country by 2060, making it imperative that we study access to justice-related assets, needs, opportunities, …

U.S. Hate Crime Trends: What Disaggregation Of Three Decades Of Data Reveals About A Changing Threat And An Invisible Record, Brian Levin, James Nolan, Kiana Perst

Journal of Criminal Law and Criminology

When prejudice-related data are combined and analyzed over time, critical information is uncovered about overall trends, related intermittent spikes, and less common sharp inflectional shifts in aggression. These shifts impact social cohesion and grievously harm specific sub-groups when aggression escalates and is redirected or mainstreamed. These data, so critical to public policy formation, show that we are in such a historic inflection period now. Moreover, analysis of the latest, though partial Federal Bureau of Investigation hate crime data release, when overlaid with available data from excluded large jurisdictions, reveals hate crimes hit a record high in 2021 in the United …

Racial And Cultural Competence Through The Eyes Of Public-School Educators, Laquita Mcmillion

Dissertations

The discussion of racial and cultural competence in public schools today is necessary. The student population of public schools across the United States has significantly grown racially and culturally diverse. Through the use of a narrative inquiry and a critical lens, this study explored the perception and experiences of public-school educators focused on the topic of racial and cultural competence as it relates to their classroom practice and educational policies. The focus of this research (1) describes and analyzes my personal experiences through the use of qualitative approaches, (2) shares the experiences and perceptions of three public-school educators, and (3) …

Policing Suspicion: Qualified Immunity And "Clearly Established" Standards Of Proof, Seth W. Stoughton, Kyle Mclean, Justin Nix, Geoffrey Alpert

Journal of Criminal Law and Criminology

This Article explores the intersection of Fourth Amendment standards of proof and the “clearly established” prong of qualified immunity. It illustrates how the juxtaposition of the Court’s insistence on a low level of specificity for the development of suspicion and a high degree of specificity for the imposition of liability makes it exceedingly difficult to hold officers accountable for violating constitutional rights. And it offers both a path for future research into the development of suspicion and suggestions for methods that police agencies can use to improve the development and articulation of suspicion. Ultimately, it contends that policing in the …

The New Slot Machine: An International Perspective On Why The United States Should Learn To Stop Loving The Loot Box, Ajay Harish

Emory International Law Review

Games of chance are woven into the fabric of human culture. Rapid shifts in technology have resulted in the creation of the loot box, a new video game monetization scheme formed from the dregs of slot machines and trading cards. While extremely lucrative, the existence of loot boxes allows game companies to expose children to wager-like behavior, potentially creating a new generation of problem gamblers. The United States is both financially and culturally tied to video games as an industry and has been slow in its regulation of loot boxes. Given the problematic nature of loot boxes, existing regulations in …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

The Crimes Of Digital Capitalism, Aitor Jiménez, J.C. Oleson

Mitchell Hamline Law Review

No abstract provided.

The Writing’S On The Wall: Using Multimedia Presentation Principles From The Museum World To Improve Law School Pedagogy, Cecilia A. Silver

Dickinson Law Review (2017-Present)

Law school pedagogy is a relic. Nearly 150 years after Christopher Langdell pioneered the case method, the typical doctrinal course remains predominantly a verbal domain, featuring lectures, Socratic dialogue, and final exams. But the visual disconnect between legal education and legal practice does students a disservice. Under the proliferating influence of laptops, iPads, smartphones, and Zoom, students now read, work, and study electronically more than they ever have before. So instead of business as usual, it’s time to embrace “visualization”—using multimedia to enhance, or even supplant, the near-exclusive reliance on language—to build a more vibrant and inclusive learning environment.

Law …

Notes Toward A Supreme (Legal) Fiction, Emily Kidd White

All Papers

Maksymilian Del Mar’s new book, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication offers a finely drawn map of various ways of reasoning in and through law. The book is about the ways that thoughts, values, commitments and ways of seeing, move, take hold, settle, startle and – at times – release grip, reorient, and/or transmute. It is a book that is teeming with references. There are threads to pull at everywhere.

The Legal Relations Of ‘Private’ Forests: Making And Unmaking Private Forest Lands On Vancouver Island, Estair Van Wagner

All Papers

While the vast majority of forestlands in Canada are considered ‘Crown land’, there are key areas of private forestland. On private land the incidents of fee simple ownership mean the owner emerges as land use decision maker – the “agenda setter” for the land. Yet a richer set of legal relations exists in these forests.

Indigenous legal orders derived from an enduring relationship with the land and place also govern forestlands. Using the case of the Esquimalt and Nanaimo Railway lands in British Columbia, this article explores the intersection between historical and contemporary human-forest relations upheld by Anglo-Canadian law and …

The Myth Of Legal Realist Skepticism, Dan Priel

All Papers

Here are some things everyone knows about the legal realists: They didn’t believe in legal rules, they thought—and demonstrated—that law is inherently indeterminate, and they taught us that it is the personality of the judge that decided cases. To the extent that they studied legal doctrine, it was in order to demonstrate its incoherence. This is why they “vociferously objected” to the Restatements. It is the victory of their ideas that killed the doctrinal legal treatise as a respectable form of scholarship in the United States. In addition to this jurisprudential radicalism, the legal realists were also politically radical. Their …

The Ai-Copyright Challenge: Tech-Neutrality, Authorship, And The Public Interest, Carys Craig

All Papers

Many of copyright’s core concepts—from authorship and ownership to infringement and fair use—are being challenged by the rapid rise of generative AI. Whether in service of creativity or capital, however, copyright law is perfectly capable of absorbing this latest innovation. More interesting than the doctrinal debates that AI provokes, then, is the opportunity it presents to revisit the purposes of the copyright system in the age of AI. After introducing the AI-copyright challenge in Part 1, Part 2 considers the guiding principles and normative objectives that underlie—and so ought to inform—copyright law and its response to AI technologies. It proposes …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Faculty Publications

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment.

This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Anthropometry Considerations In The Design And Evaluation Of Flight Deck Displays And Controls: Literature Review, Robert Joslin

International Journal of Aviation, Aeronautics, and Aerospace

The regulatory requirements and guidance for showing compliance with the Federal Aviation Administration anthropometric considerations in aircraft design are widely dispersed in an array of source documents. Consequently, they are difficult for aircraft manufacturers/applicants to identify, interpret, and address thereby extending the time to certify new/modified aircraft and aircraft systems. This literature review is intended to provide a compendium of the anthropometry considerations in the design certification of displays and controls in aircraft flight decks. This document is not a compliance document and the references herein are frequently updated, hence should be verified by the reader.

Antidiscrimination Law Through A Sociolegal Lens, Anna Offit

Faculty Journal Articles and Book Chapters

This Symposium invites reflection on whether the Anthropology of Law has “any space left for the content of rules” at a time when the concerns of legal anthropologists have largely shifted to processes, materials, and practices that are “adjacent to law.”1 Taking the jury system as an illustrative case, this Essay advocates for the relevance and value of the anthropological study of rules, their content, and their effects. Looking in particular at antidiscrimination rules derived from Batson v. Kentucky,2 decided in 1986, it argues that a sociolegal, ethnographic approach to how lawyers perpetuate discrimination in jury selection offers insight into …

Transactional Clinical Support For Mutual Aid Groups: Toward A Theory Of Transactional Movement Lawyering, Michael Haber

Faculty Scholarship

No abstract provided.

Some Reflections On The Fourth Chilean-German-Tanzanian Legal Talk, James M. Cooper

Faculty Scholarship

On December 3, 2021, the Heidelberg Center for Latin America convened a group of academicians from around the world to explore the way legal pluralism contests values (including the protection of universal human rights), disrupts our national legal systems, and provides for self-determination. The transnational webinar was co-sponsored by the University of Heidelberg and University of Bayreuth of Germany, Universidad de Chile, University of Dar Es Salaam in Tanzania, Faculdades de Campinas in Brasil, as well as California Western School of Law/Proyecto ACCESO in the United States, and the German Academic Exchange Service (DAAD).

The webinar brought together participants with …

Vulnerable Populations: Climate Change And Extreme Weather Threats Facing Urban Communities, Kara Consalo

Journal Publications

This article explores increasing extreme weather threats facing American cities due to global climate change, including hurricanes, floods, heat waves, and wildfires. After explanation of such threats, the paper delves into case studies of the response and resiliency measures being undertaken by three preeminent coastal American cities to prepare for weather disasters: New York, Miami, and San Francisco. The paper concludes by providing guidance and recommendations for urban policymakers seeking to develop resiliency measures in the face of long-term effects and short-term emergencies created by climate and weather extremes. Such recommendations include how to initiate and fund development of climate …

A Comparative Analysis Of Repatriation Of Native American Artifacts And Human Remains Laws In Montana, Usa And Alberta Canada, Helen Cryer

Graduate Student Theses, Dissertations, & Professional Papers

ABSTRACT: Native American and Indigenous communities across the United States and Canada have lost an extensive amount of human remains and sacred artifacts to non-Native people exhuming Native American and Indigenous burial sites that may have been dug up for personal gain, stolen, placed in museums, or left in the hands of non-Native collectors. The repatriation of human remains and sacred artifacts to Native nations can be a lengthy, political, and challenging process yet it is worth the effort for Native people. Native American advocacy and evolving public sentiment toward Native people have led to legislative advancements in the United …

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

Journal of Race, Gender, and Ethnicity

No abstract provided.

Rights, Resilience, And Responsibility, Martha Albertson Fineman

Emory Law Journal

No abstract provided.

Normative Systems And Human Rights, Richard S. Kay

Emory Law Journal

No abstract provided.