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Religious Liberty, Public Accommodations, And Non-Discrimination: A Rapidly Emerging Injustice, Gordon Babst

Political Science Faculty Books and Book Chapters

The decision in Burwell v. Hobby Lobby Stores, Inc., suggested to many that the scope of religious liberty was in a principled, logical way expanded to include free expression rights of corporate entities. It is concerning that many champion the decision as a basis for expanding religious exemptions to non-discrimination law as regards public accommodations, especially since the same reasoning that is being used with respect to the contemporary target of discrimination based in religious belief—American citizens who happen to be in a sexual minority—would apply by analogy, as it once did explicitly, to racial minorities. Unfortunately, given the …

Being There: Perils Of Disembodied Mediation, Robert Mcniff

Scholarly Works

The article examines the rise of online mediation, particularly accelerated by the COVID-19 pandemic, and critiques its limitations compared to in-person mediation. Drawing on 20th-century philosophical, psychological, and sociological thought, the analysis argues that online mediation diminishes the embodied, emotional, and intersubjective dimensions of human interaction, which are critical for empathy, moral agency, and meaningful dispute resolution. While online mediation offers convenience, it risks dehumanizing the process by reducing participants to disembodied images, thereby undermining the unique strengths of mediation as a holistic and empathetic alternative to legal adjudication.

Reflections On The Importance Of Critical Theory To Teaching Environmental Law, Sean M. Kammer

South Dakota Law Review

The freedom of students to learn about critical approaches to understanding their world is under sustained political attack. In this time of increasing environmental peril and political dysfunction, Professor Sean M. Kammer reflects upon the importance of critical theory (including Critical Race Theory) to understanding - and ultimately redressing - the related problems of resource scarcity and environmental degradation. While these problems can surely be described in terms of "economic inefficiencies" or "ecological disturbances," as they most often are, they must also be understood (and taught) as problems of colonial exploitation and violence. For example, one cannot understand Justice John …

Tribal Recognition And Rhode Island: Towards A Recognition Process For The Ocean State, Declan Smith

Roger Williams University Law Review

No abstract provided.

Protection Of Male And Female Sexed Children From Genital Cutting: Making Sense Of Recent Legal Developments, J. Steven Svoboda

Cardozo Journal of Equal Rights & Social Justice

The article critically examines the disparate legal treatment of female genital cutting (FGC) and male genital cutting (MGC), arguing for a more consistent approach that recognizes both practices as violations of bodily integrity. It highlights the ethical and legal inconsistencies in how these practices are viewed and regulated, advocating for a unified legal framework that prioritizes consent and the rights of the individual.

The Masterplot Of The Market, Allison Anna Tait, Luke Norris

Law Faculty Publications

Stories about the family, work, and the market circulate in law, legal discourse, and beyond. The family, we are told by numerous authorities, is a non-market site, centred on emotional attachment rather than economic transaction. It is a site of interpersonal care, growth, and nurturance that acts as a counter to the excesses of an unbridled marketplace. The market, in contrast, is a site where autonomous beings contract, pursuing their interests efficiently and maximising wealth. This is one masterplot of the market, which, as it operates in the United States, constructs certain household members outside of the market and constructs …

Scientific Educations Among U.S. Judges, Christa J. Laser

American University Law Review

Should more judges have technical and scientific educations than are currently prevalent in the federal judiciary? This empirical study of the educational background of federal judges reports the undergraduate and graduate majors of active U.S. federal Article III judges. Information on the subject area of study is largely not publicly available, especially for judges appointed decades ago. This is the first and only publicly available research study of the subject areas of study of U.S. judges, collected via phone and email surveys to U.S. judges. The results of this study show that only 7.35% of federal judges have majors in …

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

FIU Law Review

In the wake of the Dobbs decision overturning the right to abortion, now is a critical time to re-assess how legal feminism theorizes the pregnant body. Before Dobbs, feminist legal scholarship had blazed a path of anti-maternalism, a stance rooted in liberal, formalist notions of equality that denigrates the “feminine” and too often minimizes the importance of reproductive issues both as tools of sex-based subordination in the present and as foundations for liberation in the future. Anti-maternalism is attractive to legal scholars because it minimizes sex and gender differences and may appear to be gender-inclusive. It has produced arguments that …

Why Did Prosecution Strengthen President Trump In The 2024 Election?, Steven Arrigg Koh

Faculty Scholarship

Why did criminal prosecution strengthen President Donald Trump's electoral prospects in the 2024 federal election? It was not supposed to be this way: after President Trump's 2024 New York state conviction, many speculated that President Trump's "felon" status would imperil his political career. In fact, the opposite occurred: federal and state criminal prosecutions reenergized President Trump's 2024 presidential candidacy. Contemporary criminal law theories-traditional individualist, expressivist, and critical-struggle to explain why. 

This Article advances a theory of criminal coalescence to explain why the Trump prosecutions led the former President to political victory. Criminal coalescence is the intensification of mass support for …

Judicial Accountability, Anya Bernstein

Faculty Scholarship

Judicial decisions are moving ever more authority over regulatory statutes away from agencies and to courts instead. One justification offered for this power transfer: agencies lack the accountability of courts. This Article takes up that claim, assessing the institutions’ relative capacities for accountability in their authoritative interpretations of regulatory statutes—agency regulations and court rulings. I take accountability to involve actors undertaking reasoned decisionmaking grounded in publicly recognized values and facts and justifying their decisions to others who can evaluate, influence, or override those judgments. Accountability thus involves a give and take: it gives an account of government reasoning to a …

Restorative Justice And Building Communities Of Radical Belonging In The Law School Classroom, Aparna Polavarapu

Scholarly Works

No abstract provided.

Constitutional Comparisons And Language, De Maartje Visser

Research Collection Yong Pung How School Of Law

Language can be seen as an intuitive challenge for those who embark on comparative constitutional research: its intricate entanglement with law is often overlooked and not engaged with explicitly. This chapter argues that this is a missed opportunity at best, and arguably presents a hazard for the collective quality of the scholarly discourse. It discusses four ways in which language matters when engaging in constitutional comparisons: the problem of literal translation; the problem of legal-conceptual translation; a multilingual discourse that is marked by fragmentation; and expectations in communication with a foreign or international readership. The approach taken is constructive, with …

Pengakuan Hak Masyarakat Adat Dalam Hukum Pengelolaan Sumber Daya Alam: Studi Perbandingan Indonesia–Australia, Farid Al Hadana, Sukarman Sukarman, Farhan Margono, Hamzah Hamzah

Jurnal Hukum & Pembangunan

Meskipun terdapat pengakuan konstitusional di Indonesia dan Australia, hak-hak masyarakat adat dalam tata kelola sumber daya alam masih lemah perlindungannya, terutama karena kerangka kerja Indonesia yang terfragmentasi dan tersentralisasi gagal mewujudkan keadilan lingkungan. Makalah ini membandingkan rezim hukum Indonesia dan Australia terkait tata kelola lahan dan sumber daya masyarakat adat untuk mengidentifikasi bagaimana pengakuan dapat diubah menjadi hak yang dapat ditegakkan dan untuk merumuskan model reformasi yang berorientasi pada keadilan bagi Indonesia. Dengan menggunakan analisis hukum komparatif kualitatif, makalah ini menggabungkan observasi doktrinal terhadap yurisprudensi konstitusional, peraturan-undangan, dan yurisprudensi dengan pemeriksaan dokumen kebijakan dan konflik ilustratif yang melibatkan wilayah masyarakat …

Impacto De La Pandemia De La Covid-19 En Las Familias De Los Jóvenes Universitarios De Las Poblaciones Rurales Mayas Del Estado De Yucatán, Jorge Atocha Pacheco Castro

Journal of Maya Heritage

Abstract. This study examines the impacts of the COVID-19 pandemic on the families of university students from rural Maya communities in Yucatán, Mexico. Utilizing an anthropological framework, the research highlights the interplay of structural vulnerabilities and cultural resilience. It explores how families navigated economic challenges, social interactions, and cultural practices amid the crisis. Key findings include the reliance on traditional subsistence practices such as small-scale agriculture and backyard farming, which provided a safety net during economic downturns. Socially, rural families reported lower stress levels and stronger communal bonds compared to their urban counterparts, owing to expansive living spaces and outdoor …

Beyond Hierarchy: Investigating The Role Of Complex-Fluid Structures In The Accountability Of Criminal Organizations, María Manuela Márquez Velásquez, Rodrigo Moreno

Genocide Studies and Prevention: An International Journal

Globalization and technological development have led to quick transformations in criminal organizations, adapting to new forms/degrees of control and hierarchy. Existing legal frameworks governing responsibility for atrocity crimes have developed from the experiences of Western (center) countries and their understanding of traditional warfare structures. Thus, peripheral regions have been forced to employ doctrines with weak sociological basis. New and conventional local dynamics inside organizations and their consequential fluidity challenge the applicability of traditional modes of liability when seeking their members’ accountability.

This paper inquires about the suitability of two modes of liability under ICL –perpetration through an organization and superior …

Toward A Broader Theocentric Environmentalism, Melvin L. Otey

Duke Environmental Law & Policy Forum

No abstract provided.

Revisiting Territorial Sovereignty: Origins, Legitimacy, And Modern Implications, Henan Hu

San Diego International Law Journal

The conventional linkage between territory and sovereignty in international law requires reevaluation, with territorial rights shifting from states to nations. Drawing on Anthony Smith’s theory of historical continuity between pre-modern ethnic communities and modern nations, this article argues that legitimate claims to territory are grounded in the historical consolidation of social, economic, and political ties by ethnic groups to specific lands. It traces the evolution of territorial rights from loosely defined ethnic living areas and fluid state boundaries to the modern conception of national territories under effective control. By distinguishing sovereignty as a construct of the state and territory as …

Protection Of Trade Secrets In Global Markets And International Business: Implications For Labor Relations, Oleg M. Yaroshenko, Oleksii Tykhonovych, Yaroslav Kostohryz, Yuliia Ivchuk, Dmytro Sirokha

Markets, Globalization & Development Review

Against the background of globalization and the constant evolution of economic relations, the protection of trade secrets in labor relations becomes a necessity to ensure the sustainable competitiveness of enterprises in the international market. This article analyzes the multifaceted dimensions of trade secret protection, covering global business strategies, intercultural labor practices, international economic relations, and public policy fundamentals. Through the analysis of international agreements such as the TRIPS Agreement and the European Union Directive on Non-Competition Provisions, the article explores how various legal systems address trade secrets in labor relations, emphasizing the need for global harmonization. It also considers cultural …

Understanding The Transitional Needs Of Servicemembers To Veterans: A Focus On Mental, Social, And Behavioral Health, Marieann C. Raguso

Theses and Dissertations

This applied dissertation was designed to fill the gaps on the transitional American veterans’ lived experience using their own voice. The reconstruction of an American Veteran’s identity after transitioning back into civilian life is a process with many challenges. Transitional practices often fail to help veterans to acculturate back into the civilian world. This includes the formulation of identities and associations. There is a lack of consistency in military transitional practices leading to identity loss and the formulation of mental and behavioral disorders. The aim of this study is to examine the lived experiences of veterans who have transitioned back …

“True Crime Effect”: The Influence Of True Crime Media On Jurors’ Perceptions Of Innocence In A Criminal Trial, Abigail Curran

Honors College Theses

In the mid-2000s, the popular TV show CSI: Crime Scene Investigation and its portrayal of forensic evidence was blamed for a so-called “CSI effect” - hypothesizing that jurors had greater expectations of the use of forensic evidence than was realistic. While CSI has fallen in popularity - ultimately ending its 15-year run on television in 2015 - stories of crime and criminality remain popular. The most recent iteration of this fascination can be seen in the rise in popularity of true crime documentaries and podcasts. This study aims to investigate the existence of a “true crime effect” in which all …

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Connecticut Law Review

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR’s unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, crossnational exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of “looking up, down, and sideways.” Notably, NLR embraces both “top-down” and “bottom-up” methods, providing comprehensive insights into the intricate interactions …

The Constitutional Case Against State-Controlled Fact-Checking: A Case Comment On Kunal Kamra V. Union Of India, Abhinav Ravi, Aravind Sundar

National Law School of India Review

The Bombay High Court in Kunal Kamra v Union of India struck down the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023, which had established a centralised fact-checking unit to issue takedown orders against social media posts that were identified as “fake or false or misleading”. The Rules threatened the safe harbour protection of social media intermediaries for failing to adhere to such takedown orders. The Court held that the establishment of the fact-check unit violates the rights of free speech, profession and equality under the Indian Constitution. This article explores the free speech implications of …

New Legal Realism At 20: Rethinking Law In An Era Of Populism And Social Movements, Jeffrey Omari, Pablo Rueda-Saiz, Richard Ashby Wilson

Articles

This Article critically examines the New Legal Realism (NLR) movement on its twentieth anniversary and illuminates its distinctive intellectual contributions. In evaluating NLR's unique methodological and substantive contributions, we explore the movement's relationship to other interdisciplinary theories and empirical approaches to law. NLR approaches show a commitment to a comparative, cross-national exploration of legal phenomena while allowing for grounded generalizations about the relationship between law and society. NLR approaches embrace a diverse range of methods and emphasize the importance of "looking up, down, and sideways." Notably, NLR embraces both "top-down" and "bottom-up" methods, providing comprehensive insights into the intricate interactions …

Learning To Read Like An Eighteenth-Century Lawyer: The Historical Critique Of Originalism Revisited, Saul Cornell

William & Mary Bill of Rights Journal

Historians have been among the fiercest critics of originalism. Among the many virtues of Jack Balkin’s book, Memory and Authority, is the deft way he analyzes and dismantles these efforts to insulate originalism from historical critique. In a short essay, it would be impossible to fully acknowledge the sophistication of Balkin’s analysis. Instead, I would like to build on his impressive achievement by pointing out additional problems with the originalist response to historical critique.

This abstract has been taken from the author's opening paragraph.

Contesting And Controlling Abortion In China’S Courts, Molly Bodurtha, Benjamin L. Liebman, Li Chenquian, Xiaohan Wu

Faculty Scholarship

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the judiciary’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding.

Yet, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China — the largest authoritarian state and a country …

"Waves Of Freedom": Kant And The Right To Rescue On The High Seas, Aravind Ganesh

Buffalo Law Review

This Article draws upon the legal philosophy of Immanuel Kant to argue that all seafarers—from stateless migrants to billionaires on mega-yachts—possess legal rights to rescue on the high seas. These rights are of the kind legal practitioners call “human rights,” and correspond to obligations enforceable against the flag state of any Coast Guard, naval, or other “public” vessel receiving the seafarers’ distress signals. A second, corollary claim is that we must abandon the “Grotian” model of the seas as commons and view them instead as “global public goods” that the international legal order always already maintains through institutions for the …

The Workings Of Legal Exceptionalism: Arbitration As A Portal To Stateless Law-In-Action Regimes, Thomas Schultz

Buffalo Law Review

This Essay seeks to explores the fertility of thinking about arbitration as a portal to stateless legal regimes. Using the distinction between law in books and law in action, as well as the concepts of social and political disembeddedness and quiet politics, it argues that under the current paradigm of arbitration, it operates as a porous portal, getting corporate and natural citizens to escape into stateless law-in-action legal regimes (though in practice not into a law-in-books stateless legal regime). This raises questions of control of and accountability for the political effects of such stateless law-inaction legal regimes on the rest …

When European State Courts Face Post-Colonial Legality: A Private International Law Approach Inspired By Decolonial Theory, Sandrine Brachotte

Buffalo Law Review

This Essay develops avenues for private international law (PIL) to deal with cases involving the interaction between Western state law and distinctive forms of law that citizens from post-colonial states, especially African states, bring with them to Europe. Laws of the second type, which I call “postcolonial legality,” incorporate both traditional forms of legality usually dubbed “religious” and “customary” law along with state law that originates from colonial law. Drawing on some lessons from decolonial theory, I try to apply to this particular context a “less colonial” PIL theory and subsequent PIL rules and reasoning. The argument builds on the …

Toxic Narratives, Toxic Communities, And Enforcement Of Environmental (In)Justice, Alyse Bertenthal

Washington Law Review

The United States has committed to enforce environmental justice in ways it never has before. A spate of new policies aims to increase resources for environmental agencies’ enforcement sections, improve training for environmental enforcement staff, and ensure community engagement in environmental enforcement decision-making. Yet there exists mounting evidence that enforcement of environmental laws happens less frequently and less vigorously in low-income and minoritized communities.

We need to understand why that is happening. Many commentators, opining from a distance, point to insufficient resources for environmental enforcement and legal and political constraints on environmental agencies. While not discounting these reasons, this Article …

Rwu Law Alumni Newsletter December 2024, Roger Williams University School Of Law, Pbn Connect, Edward Fitzpatrick, Danna Lorch

RWU Law

No abstract provided.