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Wrongful Convictions, Wrongful Prosecutions And Wrongful Detentions In India, Kent Roach

National Law School of India Review

The first part of this article examines wrongful convictions in India. In part because of the absence of a jury, appellate courts, including the apex court, are more willing to evaluate whether the evidence for a conviction is sufficient than appellate courts in other common law systems. From 2016 to 2022, the High Courts and the Supreme Court have acquitted over two hundred accused in death penalty cases alone. The willingness of appellate courts to acquit is a strength of the Indian system that should be maintained. At the same time, remedied wrongful convictions in India likely represent only the …

From Idea To Act: The Indian Legislative Process, Vasudev Devadasan, Sunil Nandraj, Vineet Chawdhry, Kamala Ram Mohan

National Law School of India Review

Beyond the formal steps prescribed by the Constitution and Parliamentary manuals, little is known about the law-making process in India. Without a baseline consensus on what legislating in India involves, future analyses and proposed reforms of Indian legislative processes may be rendered speculative. Opaqueness surrounding the legislative process also hinders the ability of citizens to meaningfully influence the laws that govern them. This article aims to provide an account of how legislation is conceived, drafted, and enacted in India using the case studies of the Clinical Establishments Act, 2010 and the Kerala Clinical Establishments Act, 2018. Beginning with these two …

How To Build The Tower Of Babel: The Kannada Language Comprehensive Development Act, 2022 And ‘Language Law’ In India, Aditya Prasanna Bhattacharya, Ritwika Sharma

National Law School of India Review

This paper serves as a critical analysis of the Kannada Language Comprehensive Development Act, 2022 and also as the identification of a novel field within constitutional law - ‘language law’. In so doing, a detailed overview of the history of the law and politics surrounding language in India has been provided. The Kannada Act has also been compared to other state-level language legislations - providing a detailed description of the state of play of language law in India. The paper concludes that although the Kannada Act may appear similar to other such legislations, it seeks to impose and not develop …

Gender In The Making Of The Constitution: Proposals For A Feminist Inquiry Into Indian Constitutional History, Achyut Chetan

National Law School Journal

A feminist inquiry into the framing of the Indian Constitution must retrieve and see the interventions of the women members of the Constituent Assembly for what they historically represent, namely, a feminist authorial voice that was developed over a period of time by the pre-Independence women’s movement in India. For a proper understanding of this voice, we must understand the gendered character of the Constituent Assembly, its architecture, its procedures, the dynamics of the gendered relations among its members, and above all, the performative aspects of the debates. This inquiry must also investigate the language employed by the members and …

Locke-Ing Down Nonsense Trademarks: Applying The Property Theory Of John Locke To The Issue Of Nonsense Trademarks, Jake H. Howell

Catholic University Journal of Law and Technology

In 2019, the United States Patent and Trademark Office received almost half a million trademark applications. This was the tenth year in a row in which the number of applications received broke the record from the previous year. Since 2015 there has been a marked increase in the number of applications for trademarks that are unusual. These applications are for trademarks that consist of an apparently random string of letters unpronounceable in English and with no meaning in another language. These unusual trademarks have come to be known as nonsense trademarks. Nonsense trademarks are a growing problem in intellectual property. …

Covid-19 And Access To Healthcare At The Crossing Of Race, Poverty, And Rurality, Shavonnie R. Carthens

Law Faculty Scholarly Articles

Black Americans make up 7.7 percent of the rural population in the United States. During the COVID-19 pandemic many in this population found themselves at a unique intersection of inequity - being Black, poor, and residing in a rural area. Poverty is a known contributor to negative health outcomes and is a risk factor for death from coronavirus infection. The association between race and poverty, when examining infectivity and mortality rates of COVID-19, have disproportionately devastated Black Americans and other minorities. Further, research indicates the presence of a general “rural mortality penalty” wherein rural Black communities have higher death rates …

Solving A Sixth Amendment Crisis: The Case For Resource Parity In Georgia's Indigent Defense System, Meagan R. Hurley

Articles

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles …

Establishment Clause Mythology, Peter J. Smith, Robert W. Tuttle

Case Western Reserve Law Review

No abstract provided.

Ai, Originality, And Creativity: Copyrighting All The Melodies To Avoid Accidental Infringement,, Damien Riehl

Chapman Law Review

If you think of the 'Live Your Life' song, who thinks that 'Levitating' by Dua Lipa sounds like—or is substantially similar to—'Live Your Life,' by Artikal Sound System? Who does not think they sound substantially similar?

It’s a trap. That’s the wrong question to even ask. Really, the question of substantial similarity is number three in this. Really, the order of questions we should be asking is the following: is this melody even copyrightable in the first place? That’s the first question. And that’s what we are going to be talking about today. In 2019, I said to my colleague, …

The Scandal Of Particularity: A New Approach To Rural Attorney Shortages And Access To Justice, Michele Statz

South Dakota Law Review

No abstract provided.

The Line: Ai And The Future Of Personhood, James Boyle

Faculty Books

The line that distinguishes people from animals, systems, and things is getting harder to draw. For all the concern about AI and genetic engineering, there has been surprisingly little discussion of the possible personhood of the new entities this century will bring us: what about their claims to be inside the line, to be "us" -- not machines or animals but persons -- deserving all the moral and legal respect that any other person has by virtue of their status?

Rebalancing Judicial Immunity For Civil Rights Actions, Bailey D. Barnes

Faculty Publications

Sterilization for shorter jail sentences. Vasectomies and birth control implants for freedom. In 2017, a criminal court judge in rural Tennessee made this offer to people incarcerated through sentences issued by his court. When litigators sought monetary damages and to enjoin the practice, and the local media exposed the scheme, the judge begrudgingly rescinded the order while expressing surprise that it was controversial. The Board of Judicial Conduct issued a letter of reprimand to the judge. Meanwhile, the United States District Court for the Middle District of Tennessee summarily dismissed the constitutional tort claims against the judge based on absolute …

Targeting Children: Liability For Algorithmic Recommendations, Michal Lavi

American University Law Review

We live in the algorithmic society, characterized by massive digital surveillance and data collection by private companies exploiting human information vulnerabilities for profit. The infrastructure of free expression translates into an infrastructure of digital surveillance. This model, dubbed “surveillance capitalism,” includes massive personalized algorithmic targeting that departs from human speakers, allowing a level of influence never witnessed before in scale, scope, or depth.

Personalized targeting can garner many benefits, as it allows individuals to find content that interests them without needing to invest energy in seeking out that content. However, personalized targeting can also cause tremendous harm because it can …

Historical Fact, Ryan Williams

Faculty Scholarship

No abstract provided.

Strictly Intersectional Scrutiny: A Recommendation For Transforming The Epc To Highlight Queer Black Women, Kayla M. Richardson

Undergraduate Honors Theses

The purpose of this thesis is to explore the interpretation of the Equal Protection Clause by the Supreme Court of the United States (SCOTUS) and how this interpretation can become more intersectional for Black queer women. This question is explored within the scope of two theoretical frameworks: Derrick Bell’s theory of interest convergence and Kimberlé Crenshaw’s theory of intersectionality. This project examines whether any factors compel SCOTUS to be more intersectional in its approach to the Fourteenth Amendment. Simultaneously, this study also considers what social contexts make SCOTUS more likely to focus on the interests of the oppressor, a demographic …

Is The Women's Treaty A Paper Tiger? Indian Courts' Application Of The United Nations Treaty, Amanda L. Stephens

Faculty Articles

This Article examines whether the United Nations ("U.N.") Treaty, the Convention on the Elimination of All Forms of Discrimination Against Women ("CEDAW'), is a "paper tiger"-a law that seems powerful but is in fact weak and ineffectual. While some scholars question the Treaty's effectiveness based on statistical studies, others point to legal reforms in state parties as evidence of its success. Neither provides a nuanced middle ground by examining the CEDAW at a micro rather than a macro level. This Article fills this gap by conducting a qualitative analysis of 10 Indian judicial opinions. Specifically, the Article explores how the …

The Demanding Idea Of Consent To International Law, Jean D'Aspremont

Saint Louis University Law Journal

The concept of consenting to international law is no simple idea. It rests on sophisticated discursive moves. This article seeks to unpack five of the main discursive moves witnessed in literature and case-law discussing consent to international law. This article argues that these five specific discursive moves are performed, as is claimed here, by almost anyone analyzing the question of consent to international law, be such engagement on the more orthodox side or a critique from the argumentative side of the spectrum. These five discursive moves are (1) the reproduction of a very modernist understanding of authority, (2) the constitution …

Refugee Identities At The Mercy Of Legal Determination, Rosário Frada

Saint Louis University Law Journal

The Refugee Status Determination process bears immediate repercussions not only on the formulation of refugee narrative identities, but on how asylum-seekers construct their very sense of self alongside their relationship to their past and future. Yet, International Refugee Law provides no guidance over status determination procedures, establishing a legal void that confers disproportionate power to State discretion. In an epoch characterized by exclusionary non-entrée regimes propelled by a post-9/11 securitization logic, the myopic fixation on border control has generated a dehumanizing surveillance machinery that transformed the asylum system into a threatening opponent of refugee protection, eliminating individual subjectivity and undermining …

Transnationalization Of Legal Education: A Confluence Of Multiple Factors Review Of “The Globalization Of Legal Education: A Critical Perspective” By Bryant Garth And Gregory Shaffer, Md. Rizwanul Islam

Saint Louis University Law Journal

Legal education across many parts of the world is increasingly transnationalized. Transnationalized legal education is a metamorphosis propelled by a combination of factors, some endogenous to the law school and legal community, some exogenous to them. This review essay finds that globalization and reform of legal education are often part of a broader change within a state. Any reform of legal education is often chaotic, as it deals with human actors, not with value-free formulas. The engineers of reform of legal education have not been a single or cohesive force, but more often groups of reformers have coalesced with others …

The Strange Persistence Of Originalism, Mark A. Hannah, Francis J. Mootz Iii

Saint Louis University Law Journal

Originalism has positioned itself as the au courant doctrine of legal interpretation. Proponents argue that originalism is a core element of our democratic identity and should be adopted by every judge. The originalist tenet—that the meaning of a legal text is the ordinary meaning the text had at the time of its enactment—purportedly provides an objective basis for judging with integrity. Despite originalists’ grandiose claims, critics have lodged many well-reasoned objections that problematize originalists’ goals and methods. Why, then, has originalism gained such widespread prominence? In this article, we offer a rhetorical analysis that explains its ascendance and strange persistence. …

Federalism: Analyses Of Economic Effects Of Domestic Violence On Interstate Commerce Under The U.S. Constitution, Olawale Olumodimu

Saint Louis University Law Journal

This work explains that there are instances where congressional intent may necessitate immediate or sporadic regulation of local or intrastate activities. However, when Congress does act or takes steps to regulate a necessary local or intrastate activity, it must do so only if it is constitutionally proper and when it does not lead to the unfettered accumulation of states’ plenary powers and does not violate the enumeration of constitutional powers. This work bifurcates the U.S. Supreme Court cases on the Commerce Clause into the formalist and realist approaches as provided under Article 1. Section 8, Clause 3 of the Constitution. …

The Ersatz Of The Plain-Meaning Rule Of Statutory Construction In Sackett V. Epa (Ii), Dana Neacsu

Law Faculty Publications

This essay uses the United States Supreme Court second decision in Sackett v. EPA, or Sackett (II), to stress the obvious: judges are tasked with decoding the nation’s laws for everyone’s understanding. This judiciary duty is heightened when judges encounter ordinary sounding words, such as “water” or “wetlands,” especially if they are used in technical statutes like the Clean Water Act (CWA). Moreover, it is this author’s opinion that when in doubt, rather than be afraid of acknowledging ignorance, as some comedians do, judges should aspire to incorporate scientific expertise in their legal reasoning, and avoid the fiction …

Personal Jurisdiction And The Declaration Of Independence, Ryan Williams

Faculty Scholarship

No abstract provided.

The Rhetoric Of Abortion In Amicus Briefs, Jamie Abrams

Presentations

No abstract provided.

The Post-Racial Deception Of The Roberts Court, Cedric M. Powell

SMU Law Review

Students for Fair Admissions v. Harvard/UNC (SFFA) is a post-racial deception unmoored from precedent and societal reality. SFFA deceives the polity and signals an all out assault on anti-discrimination law. To preserve its institutional legitimacy, the Roberts Court promotes doctrinal and conceptual distortions—post-racial deceptions of cognizable injuries advanced through reverse discrimination claims of white plaintiffs; racial proxy claims of discrimination proffered by Asian-Americans; and the fairness rationale of the Court’s circular post-racial edict that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Chief Justice Roberts’s majority opinion discards the …

Racial Classifications In Higher Education Admissions Before And After Sffa, David E. Bernstein

SMU Law Review

Hundreds of law review articles have discussed the legality of affirmative action programs. Virtually all of them begin with the implicit assumption that the racial classifications used in these programs are legitimate and uncontroversial (an assumption I challenge in my 2022 book, Classified: The Untold Story of Racial Classifications In America). That assumption has been undermined by Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (“SFFA”).

Chief Justice Roberts, writing for a 6–3 majority, asserted that the underlying classifications are “imprecise in many ways” and “opaque.” He quoted Justice Gorsuch’s concurring opinion, which criticized the classifications …

Did January 6 Defendants (Including Donald Trump) “Otherwise Obstruct An Official Proceeding”? Linguistic Analysis For The Fischer Case Before The Supreme Court, Clark Cunningham, Ute Römer-Barron

Faculty Publications By Year

When judges, skilled and sophisticated users of the English language, come to opposing conclusions about the “plain” or “ordinary” meaning of a phrase, how can such a conflict be resolved in an objective way? Traditionally courts have resorted to citing dictionary definitions, but in recent years an alternative approach has been gaining attention and respect: the use of corpus linguistics. The supreme courts of Michigan, Idaho, Utah, Vermont have used made use of corpus-based research in their decisions as has the U.S. Court of Appeals for the Third Circuit. Both the Sixth Circuit and the Ninth Circuit have requested that …

Assemblages And Actor Networks In The Borderlands - The Apposition Of Reproductive Rights Along The Mexican-American Border, Madeleine M. Plasencia

Articles

In 1971, Sarah Weddington argued Roe v. Wade as a class action on behalf of pregnant women living in Texas, many of whom, including herself had to flee the State to obtain an abortion in Mexico. In 2021, Texas enacted S. B. 8, otherwise known as the Texas Heartbeat Act, which created a private cause of action for injunctive relief and statutory damages awards against any person assisting in and any physician accused of performing an abortion, thus reigniting the cross-border flows that historically have made Mexico a haven for runaway enslaved people and pregnant persons heading south to freedom. …

Guns, Abortion And Courts, Sloss, David L.

Santa Clara Law Review

The Supreme Court decided both Dobbs v. Jackson Women’s Health and New York State Rifle v. Bruen in June 2022. Bruen involves gun rights and incorporation doctrine. Dobbs addresses abortion rights and substantive due process (SDP). However, the doctrinal distinction between SDP and in- corporation is untenable. Both doctrines are rooted in the Four- teenth Amendment Due Process Clause; neither finds support in the text or original understanding of the Fourteenth Amend- ment.

The Court applies the same historical test for both SDP and incorporation cases to determine which rights the Due Process Clause protects. Both doctrines address legal issues …

Housing Equity In Golden Gate Village, Nicole White

Social Justice | Senior Theses

For generations, the African American community has faced many forms of housing discrimination that have created major inequalities in their everyday lived experiences (Lockwood, 2020). This study explores the long-lasting effects of discriminatory housing policies in creating disparate housing conditions within the public housing community in Marin City called Golden Gate Village, as well as the role of the Marin Housing Authority in practices of displacement and neglect. The methodology for the study included seven different interviews with Golden Gate Village residents to obtain knowledge about the community as well as grasp an understanding of the lived experiences of the …