Digital Commons Network^™

The Refugees We Are: Solidarity, Asylum, And Critique In The European Constitutional Imagination, Paul Linden-Retek

Journal Articles

This Article aims to reimagine post-national legal solidarity. It does so by bringing debates over Habermasian constitutional theory to bear on the evolving use of mutual recognition and mutual trust in the EU’s Area of Freedom, Security, and Justice (AFSJ), particularly in the context of European asylum law and reforms to the Dublin Regulation. Insofar as critiques of Habermasian “constitutional patriotism” apply to the principle of mutual trust, the Article suggests why post-national solidarity requires fallibilism and dynamic responsiveness that exceed formalized rules of forbearance and respect.

On this revised view, legal solidarity guarantees a particular form of adjudication through …

Korematsu, Hawaii, And Pedagogy, Sanford Levinson

Arkansas Law Review

I begin with some reflections on my own career in teaching—or, perhaps, attempting to teach—American constitutional law to generations of students from 1975 to the present. Or, more accurately, until about three years ago, when I taught introductory constitutional law for the last time. I am quite happy to no longer be teaching that course, whatever joys it did provide me in the past, for a very simple reason: I became more and more frustrated by the demands of coverage, i.e., the duty to take up a variety of topics—including attendant cases and collateral materials—and the unfortunate certainty that what …

Bostock’S Paradox: Textualism, Legal Justice, And The Constitution, Marc Spindelman

Buffalo Law Review

The Supreme Court’s opinion in Bostock v. Clayton County, Georgia—recognizing that anti-gay and anti-trans discrimination are forms of sex discrimination under Title VII of the 1964 Civil Rights Act—has already gained a steady reputation as a textualist statutory interpretation decision. The reality of the ruling is far more complicated than that. Bostock is a textualist decision, but, as the argument here shows, Bostock also offers a construction of Title VII’s sex discrimination rule that sounds in a rule-of-law norm of legal justice about LGBT equality that itself traces roots to the Supreme Court’s constitutional LGBT rights jurisprudence. Bostock’s rule-of-law norm …

Restorative Retributivism, Brian M. Murray

University of Miami Law Review

The current criminal justice moment is ripe for discussion of first principles. What the criminal law is, what it should do, and why society punishes is as relevant as ever as communities reconsider the reach of the criminal law and forms of punishment like incarceration. One theory recently put forth—reconstructivism—purports to offer a descriptive and normative theory of the criminal law and punishment while critiquing the ills of the American system. It comprehends the criminal law and punishment as functional endeavors, with the particular goal of restitching or “reconstructing” the social fabric that crime disrupts. In particular, reconstructivism is a …

When Rational Basis Review Is Irrational: An Argument For Applying Heightened Scrutiny To Statutes Criminalizing Homelessness, Talia Lewis

Indiana Journal of Law and Social Equality

No abstract provided.

"Rule Of Inclusion" Confusion, Dora W. Klein

San Diego Law Review

The purpose of this Article is to examine how federal circuit courts of appeals’ references to the inclusive structure of Rule 404(b) have become counterproductive to a faithful application of the rule. Specifically, characterizing Rule 404(b) as a “rule of inclusion” has led courts to imply that the rule creates a presumption in favor of admissibility. As is discussed in Part II, the structure of Rule 404(b) is inclusive, to the extent that the rule prohibits other acts evidence for the purpose of proving propensity but does not prohibit other acts evidence if offered for another purpose. But as Part …

Letter Of April 21, 2021, From Craig Scott To Canadian Judicial Council Review Panel In Justice David Spiro Proceeding (Cjc File 20-0260) Concerning The Reliability Of The University Of Toronto Cromwell Report & “For The Record”, Cover Note On Letter Of April 21, 2021, And On May 20, 2021, Canadian Judicial Council Disposition In Justice David Spiro Proceeding (Cjc File 20-0260) (April 21, 2021 & June 2, 2021), Craig M. Scott

Editorials and Commentaries

On September 20, 2020, I joined myself to a complaint filed with the Canadian Judicial Council by Professor Les Green.The complaint concerned revelations of the interference by a yet-to-be-publicly-named judge of the Tax Court of Canada into a University of Toronto Faculty of Law hiring process for a new director of its International Human Rights Program.

Sí, Se Puede: Why The Agricultural Industry’S “Mujeres Imparables” Fight For Adequate Legal Remedies For Survivors Of Sexual Assault Matters, Cotroneo, Alexandra

Santa Clara Law Review

The ‘#metoo’ movement sparked cross-industry dialogue, illuminating the rampant sexual harassment within certain industries. While the Civil Rights Act of 1991 broadens the scope of available remedies to employees who endured sexual harassment in the workplace, the Act’s statutory cap on compensatory and punitive damages inadequately redresses survivors’ injuries and fails to encourage employers to implement and enforce sufficient workplace protections. The statutory cap impacts all employees who have viable sexual harassment claims; however, the statutory cap markedly affects women fieldworkers in the agricultural industry. The severe lack of adequate employee protections in conjunction with the vulnerabilities this workforce inhabits, …

The Rule Of Law: A Necessary Pillar Of Free And Democratic Societies For Protecting Human Rights, Bessler, John D.

Santa Clara Law Review

This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in …

Does Justice Have A Syntax?, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

China And Comparative International Law: Between Social Science And Critique, Matthew S. Erie

Chicago Journal of International Law

This Essay brings Abebe, Chilton, and Ginsburg’s Lead Essay into conversation with the literature on comparative international law to ask whether the social scientific approach to international law is “international.” In particular, this Essay takes the case of scholarship on international law in China to examine why or why not particular methodological and theoretical perspectives on international law may gain traction in certain jurisdictions’ legal academies. There are a number of linguistic, pedagogic, institutional, and, ultimately, political reasons why the Chinese scholarship that uses social science to understand international law is still nascent. At the same time, critical approaches to …

Modernizing Discrimination Law: The Adoption Of An Intersectional Lens, Marisa K. Sanchez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Legal Education's Curricular Tipping Point Toward Inclusive Socratic Teaching, Jamie R. Abrams

Hofstra Law Review

Two seismic curricular disruptions create a tipping point for legal education to reform and transform. COVID-19 abruptly disrupted the delivery of legal education. It aligned with a tectonic racial justice reckoning, as more professors and institutions reconsidered their content and classroom cultures, allying with faculty of color who had long confronted these issues actively. The frenzy of these dual disruptions starkly contrasts with the steady drumbeat of critical legal scholars advocating for decades to reduce hierarchies and inequalities in legal education pedagogy.

This context presents a tipping point supporting two pedagogical reforms that leverage this unique moment. First, it is …

Web Of Incarceration: School-Based Probation, Jyoti Nanda

Nevada Law Journal

Close to three quarters of a million cases flow through the United States’ juvenile justice system annually. Juvenile probation is the most commonly utilized form of sentencing, yet juvenile probation has not been the focus of sustained research or analysis. This Article focuses on School-Based Probation, a type of juvenile probation program that was created to enroll youth before a criminal charge has been filed. Described by its proponents as a ‘voluntarily probation’ program, pre-delinquent, or ‘at-risk,’ youth are identified by on-site school probation officers and enrolled in a supervised program. Deemed to be problematic by many jurisdictions, this Article …

Table Of Contents

Chicago Journal of International Law

No abstract provided.

On Relating Social Sciences To International Law: Three Perspectives, Yifeng Chen

Chicago Journal of International Law

This Essay offers a critical yet constructive reading of the social science approach to international law. In seeking to frame international legal studies alongside the positivistic social sciences, the social science approach has suffered from important methodological deficiencies. Though appearing to be an objective science, the social science approach requires a scholar to make subjective decisions throughout the research process. A reductionistic social science approach to international law risks consolidating existing inequalities and imperialistic institutions in the name of objective science. A healthy interaction between international law and the social sciences requires enriched conceptions of both international law and the …

Linguistic Minorities With Disabilities And The Right To Native Language Instruction, Carol Zhang

Chicago Journal of International Law

This Comment examines whether international law guarantees for linguistic minorities with disabilities the right to native language instruction. Linguistic minorities with disabilities currently face two challenges: the barriers presented by their disability and the difficulties of learning the majority language. A right to native language instruction would help eliminate this second challenge, removing an obstacle in academic and social development. To determine the existence of such a right, this Comment will first analyze the language rights regime and show that linguistic rights require further evaluation of the specific pragmatic interests involved. Next, this Comment looks at treaty and case law …

The Rise Of Affectivism, Terry A. Maroney, David Dukes, Et Al.

Vanderbilt Law School Faculty Publications

Research over the past decades has demonstrated the explanatory power of emotions, feelings, motivations, moods, and other affective processes when trying to understand and predict how we think and behave. In this consensus article, we ask: has the increasingly recognized impact of affective phenomena ushered in a new era, the era of affectivism? ...

The behavioural and cognitive sciences have faced perennial challenges of incorporating emotions, feelings, motivations, moods, and other affective processes into models of human behaviour and the human mind. Such processes have long been marginalised or ignored, typically on the basis that they were irrational, un-measurable, or …

The Gun Rights Movement And 'Arms' Under The Second Amendment, Eric M. Ruben

Faculty Journal Articles and Book Chapters

After Donald Trump supporters breached the U.S. Capitol on January 6 wielding weapons including tasers, chemical sprays, knives, police batons, and baseball bats, Sen. Ron Johnson (R-WI) remarked that the insurrection “didn’t seem . . . armed.” Johnson, who is A-rated by the National Rifle Association (NRA), observed, “When you hear the word ‘armed,’ don’t you think of firearms?” For many, the answer is likely yes.

This essay describes how the gun rights movement has contributed to the conflation of arms and firearms. In doing so, it shows how that conflation is flatly inconsistent with the most important legal context …

The Rule Of Law: A Necessary Pillar Of Free And Democratic Societies For Protecting Human Rights, John Bessler

All Faculty Scholarship

This essay traces the history and development of the concept of the Rule of Law from ancient times through the present. It describes the elements of the Rule of Law and its importance to the protection of human rights in a variety of contexts, including under domestic and international law. From ancient Greece and Rome to the Enlightenment, and from the American and French Revolutions to modern times, the Rule of Law has played a key role in societies around the world. The essay discusses definitions of the Rule of Law, its origins, and its development over time, including in …

The Ethical Path: The True Significance Of Saenz Versus Roe And The Establishment Of The Right To Travel, Owen Meyer

Student Research

In 1999, the Supreme Court heard a case that, at the time, was viewed as inconsequential. Saenz v. Roe began as a welfare suit in the state of California, and, at its core, it is a case that tries the grounds on which the states can deny welfare benefits. The historical precedent goes beyond welfare; the precedent touches on subjects of wealth, race, and sex. While the case itself had very little in the means of legal history, which forced the Court to make its decision not based on the law, but on making the ethical choice. The decision of …

Future Of Scholarly Communication: Forging An Inclusive And Innovative Research Infrastructure For Scholarly Communication In The Social Sciences And Humanities, Maciej Maryl, Marta Błaszczyńska, Operas

Copyright, Fair Use, Scholarly Communication, etc.

Authors: Karla Avanço • Ana Balula • Marta Błaszczyńska • Anna Buchner • Lorena Caliman • Claire Clivaz • Carlos Costa • Mateusz Franczak • Rupert Gatti • Elena Giglia • Arnaud Gingold • Susana Jarmelo • Maria João Padez • Delfim Leão • Maciej Maryl • Iva Melinščak Zlodi • Kajetan Mojsak • Agata Morka • Tom Mosterd • Elisa Nury • Cornelia Plag • Valérie Schafer • Mickael Silva • Jadranka Stojanovski • Bartłomiej Szleszyński • Agnieszka Szulińska • Erzsébet Tóth-Czifra • Piotr Wciślik • Lars Wieneke

This report discusses the scholarly communication issues in Social Sciences and …

The Walking Dead: How The Criminal Regulation Of Sodomy Survived Lawrence V. Texas, Jordan Carr Peterson

Missouri Law Review

Eighteen years after the Supreme Court held in Lawrence v. Texas that a law criminalizing sodomy violated the constitutional guarantee to substantive due process, individuals are still arrested, prosecuted, convicted, and incarcerated pursuant to statutes that are the material equivalent of the one at issue in Lawrence. Though this seems both strange and unfair, it is neither unusual nor accidental. Because the constitutional order renders the judiciary a passive institution and radically fragments authority across a polycentric collection of governments, noncompliance with judicial decisions is endemic to American institutional design.

Signs Of Ghost Appearance In Short Stories In Bataviaasch Nieuwsblad (1936-1939): Semiotic Analisys, Rufaida Rufaida, Fajar Muhammad Nugraha

International Review of Humanities Studies

In 2018-2019 the production of the Indonesian ghost story is much in demand and favored, even in 2020 the ghost content on YouTube is still lively and salable in the Indonesian market. The existence of ghosts cannot be separated from the daily lives of Indonesians.The author is interested in exploring further how the signs of the emergence of a ghostly figure believed by the people in the colonial era. This study uses a descriptive qualitative method with an approach using the analysis of language semiotics from the perspective of Charles Sanders Peirce's semiotics theory. 5 ghost stories published by the …

"Our Most Sacred Legal Commitments": A Digital Exploration Of The U.S. Supreme Court Defining Who We Are And How They Should Opine, Eric C. Nystrom, David S. Tanenhaus

University of Cincinnati Law Review

No abstract provided.

Genocide In China: Uighur Re-Education Camps And International Response, Julia Stern

Immigration and Human Rights Law Review

No abstract provided.

Inuit Nunangat Regional Overlaps: Reciprocal Harvesting & Wildlife Management Agreements, Christopher M. Macneill

American Indian Law Journal

This article after a brief introduction which describes the Inuit of Canada and their administrative segmentation by the territorial and provincial boundaries of the Yukon Territory, Northwest Territory, Nunavut Territory, Province of Quebec and the Province of Labrador. While arguably the Inuit are also considered to have traditionally used the northern regions of other provinces this study will focus on the present governance organizational framework assigned via Inuit Land Claims with Canada. The formation of Canada in 1867 and the subsequent partitioning of the Yukon and Nunavut from the Northwest Territory, and the addition of the Northern Quebec (Ungava Bay …

“She Blinded Me With Science”: The Use Of Science Frames In Abortion Litigation Before The Supreme Court, Laura Moyer

Faculty and Staff Scholarship

While much of the work on amicus briefs focuses on whether such briefs affect Supreme Court outcomes or doctrine, much less is known about the content of these briefs, particularly how groups opt to frame issues as part of their litigation strategy. In this study, I leverage an approach to content analysis that has previously been used to analyze judicial opinions and use it to assess the frames used by amicus groups in a single policy area over four decades. Using an original dataset of amicus briefs filed in Supreme Court cases on the right to abortion, I test the …

Exploring Tactile Art-Making With Deafblind Students And Their Families: An Opportunity For Creative Play, Alice Rodgers

Expressive Therapies Capstone Theses

The impact of a deafblind diagnosis on an individual’s mental health and the well-being of the family involved can be profound. However, current research and available literature for the mental health treatment and therapy practices of deafblind persons and their families is limited (Kyzar et al., 2016; “WFDB Global Report 2018,” n.d.). This thesis used the Leeds Family Psychology and Therapy Service principles (Leeds FPTS) and the Expressive Therapies Continuum with established deafblind teaching strategies to facilitate an original arts-based community project entitled: “Things We Like.” This project provided an opportunity for deafblind students (ages three to 22) and their …

Vocation Or Victimization: An Analysis Of Legal Models Addressing Prostitution, K'Reisa J. Cox

Honors Projects

This discussion of legal models addressing prostitution evaluates the three predominate models currently implemented worldwide: criminalization, legalization/full decriminalization, and partial decriminalization (also termed the Nordic Model). Specific focus is given to each model’s capacity to maintain nations’ human rights obligations to people in prostitution, specifically the right to free choice of employment, and the right to safe working conditions free of exploitation and coercion. Along with evaluating the origins, structure, strengths, and weaknesses of each, case studies of all three models in practice are incorporated to transition from theoretical to practical evaluation. Each model’s unique design, purported outcomes, and various …