Digital Commons Network^™

The Process Before The Promise: Ensuring Indigenous Recognition From The Chilean Constitution, Michaela Mazzeo

William & Mary Bill of Rights Journal

Part I of this Note provides a background and overview of the relatively recent surge in the constitutionalization of indigenous rights and recognition in Latin America, and the state of constitutional reform in Chile. Part II lays out a theoretical understanding of the powers of a constitution as a mechanism for societal reformation and as a platform for bringing legal claims, as played out in Brazil and Bolivia. Part III demonstrates the ways in which practical manifestation of that theoretical power stops short. More specifically, both intentional and incidental barriers dampen the effectiveness of the constitutional mechanism for ensuring indigenous …

Administrative Subordination, Bijal Shah

University of Chicago Law Review

Much of the scholarship on immigration enforcement and environmental justice assumes that agencies negatively impact vulnerable and marginalized people as a result of individualized bias or arbitrariness in administration. This Article argues that, beyond idiosyncrasies or flaws in administrators themselves, the poor impact of administration on minorities emanates from institutional systems. In doing so, this Article introduces a framework of institutional oppression into the study of administration that illustrates how agencies subordinate minority interests to the ends of administrative competence and self-preservation.

A healthy federal bureaucracy is sustained by administrative efforts to reduce institutional burdens, improve efficiency, conserve resources, and …

Blurring Boundaries: A Proposed Research Agenda For Ethical, Legal, Social, And Historical Studies At The Intersection Of Infectious And Genetic Disease, Seethal Jose, Juli Bollinger, Gail Geller, Jeremy Greene, Leslie Meltzer Henry, Brian Hutler, Eric Thomas Juengst, Jeffrey Kahn, Anna Mastroianni, Graham Mooney

Articles

Contemporary understanding of the mechanisms of disease increasingly points to examples of “genetic diseases” with an infectious component and of “infectious diseases” with a genetic component. Such blurred boundaries generate ethical, legal, and social issues and highlight historical contexts that must be examined when incorporating host genomic information into the prevention, outbreak control, and treatment of infectious diseases.

Res Gestae 2024 Fall Issue, Lindsay Wilcox, Angela Turnbow, Austen Diamond, Lexie Kite, Elizabeth Kronk Warner, Violet Maw, Henry Randolph, Dave Titensor

Law School Historical Documents

The Alumni Magazine for the S.J. Quinney College of Law, University of Utah

A Fresh Look At Judicial Remedies In Eu Equality Law And Beyond: The Untapped Possibility Of Structural Injunctions., Daniel H. Halberstam, Sina Van Den Bogaert

Articles

This article proposes a shift in thinking about judicial remedies (or “sanctions”), from anti-discrimination law to equal pay and beyond.We suggest the currently preferred remedies – one-off declarations, compensation, fines, and simple orders to obey the law – may be insufficient when confronting a recalcitrant institution, complex violations, and broad, ongoing harm. In such cases, we suggest considering a remedy long overlooked in Europe: a “structural injunction”, i.e. ordering changes to an offending organization’s structure, processes, or rules. We argue that under certain circumstances, an injunction, including a structural injunction, may be appropriate or required under EU law to remedy …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Articles

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

The Origins Of The Major Questions Doctrine, Rachel Rothschild

Indiana Law Journal

In a series of recent cases, the Supreme Court has invoked the newly named “major questions doctrine” to strike down agency regulations that protect public health and the environment. Several Justices have argued that while the name “major questions” may be new, these decisions are simply the latest iteration in a longstanding effort of the courts to curtail the explosive growth of the administrative state since 1970. The first paradigmatic example of this line of cases is the 1980 “Benzene” case, in which the Supreme Court set aside the Occupational Safety and Health Administration (OSHA)’s new workplace standards for the …

Lies, Counter-Lies, And Disinformation In The Marketplace Of Ideas, Enrique Armijo

Indiana Law Journal

The First Amendment’s main theoretical account has been as consistent as it has been influential. As John Stuart Mill wrote in On Liberty in 1859, and as First Amendment theory and doctrine, following Mill, have maintained since, the truthfinding process requires that truth and falsity collide in an open marketplace of ideas. Because false speech clarifies truth, and government cannot be trusted to decide for knowledge-seekers what is true, counterspeech is the proper—indeed in most cases the only—remedy for correcting falsity. However, this account itself relies on several false premises. Participants in knowledge production environments are often not motivated by …

The Rise And Fall Of The Consideration Of Race And Ethnicity In The Admissions Process: The Long-Term Negative Consequences Of The Fall, Kevin Brown

Indiana Law Journal

Chief Justice Roberts wrote the majority opinion for the Supreme Court that struck down the affirmative action policies of Harvard College and the University of North Carolina. While Justices Thomas, Gorsuch, and Kavanaugh each wrote separate concurring opinions, they also joined Chief Justice Roberts’s opinion along with Justices Alito and Barrett. Thus, unlike the Court’s prior significant decisions that narrowly upheld affirmative action by one vote, this decision’s six-Justice majority allowed Chief Justice Roberts to write an opinion that more definitively rejected affirmative action than the Court’s tentative and cautious opinions upholding it. Despite what many may think about the …

The Cycle Of Delegitimization: Lessons From Dred Scott On The Relationship Between The Supreme Court And The Nation, Jonathon J. Booth

UC Law Constitutional Quarterly

This Article examines how Chief Justice Taney’s opinion in Dred Scott v. Sandford sparked a cycle of delegitimization that parallels contemporary debates about the Supreme Court’s legitimacy crisis. Part I explicates how one family’s fight for freedom in Missouri reached the Supreme Court, the resulting radical decision, and the nation’s reaction to show the initial stages of this cycle. Part II examines the impact of Dred Scott on politics and law during the James Buchanan administration (1857–1861). During this period, the federal government, Southern states, and some Western territories swiftly implemented the decision, for example by expelling free Black residents. …

How American Society And Law Continue To Undermine People With Disabilities Seeking Education And Employment, Angelica Guevara

UC Law Constitutional Quarterly

Our Founders specifically identified education as necessary to economic success and full participation in our democracy and society. However, the Supreme Court held in San Antonio Independent School District v. Rodriguez that education in America is not a constitutional right; instead, it is a commodity that few can afford. Then, in 2023, Biden v. Nebraska exposed the direct result of that ruling: the average American––regardless of their disability status––struggles to pay back their student loans, even when they have a well-paying job. The student debt crisis significantly impacts the economic future of students with disabilities, who make on average sixty-six …

The Uncertain Future Of Restorative Justice: Anti-Woke Legislation, Retrenchment And Politics Of The Right, Thalia González, Mara Schiff

William & Mary Journal of Race, Gender, and Social Justice

As diverse forms of anti-democratic and anti-inclusionary politics escalate in the United States, public education is increasingly a site for retrenchment and contestation with targeted efforts to silence and erase civil rights victories for equity and access. Addressing a critical, yet unattended issue at the intersection of education law and policy and civil rights, this Article joins with the growing discourse interrogating the “parental rights” movement and racially regressive legislation. Employing a case study analysis of social movement activism and education policy legislation from 2018–2023 in Florida, it aims to provoke critical praxis emanating from essential inquiry— what is the …

Narratives Unbound: The Role Of Queer Transformative Works In Shaping Legal And Cultural Landscapes, Morgan E. Spencer

William & Mary Journal of Race, Gender, and Social Justice

Queer transformative works promote social justice in marginalized queer communities by offering much-needed representation and visibility. These works fill an essential gap in a societal storytelling canon historically bereft of such material. Notwithstanding this societal benefit, these works pose complex legal and ethical challenges at the crossroads of copyright protections and creative expression. This Note examines the cultural significance and social benefits of queer transformative works in combination with an analysis of the legal landscape and ethical considerations that such works must navigate to maintain a harmonious existence with the original works that inspired them. A more nuanced understanding of …

Kebijakan Transmigrasi Dalam Kerangka Kesejahteraan Sosial Dan Ketahanan Nasional Di Provinsi Lampung, Heru Susetyo, Satrio Febriyanto, Tien Tis’Aini Latifah, Deden Ardiansyah, Feymi Angelina, Ibrahim Ghifar Hamadi, Najma Izzatul Haq, Nurroby Fatih

Jurnal Ilmu Kesejahteraan Sosial

Transmigration in Lampung Province is part of Indonesia's national transmigration program, which aims to equalize development and reduce the population density of densely populated islands such as Java. Transmigration in Lampung began in 1905 with a colonial approach by the Dutch and continued during the Old Order New Order and began to decline after the 1998 reformation. The challenges of transmigration in Lampung include social and economic problems, integration of immigrants with local communities, and environmental impacts; the next challenge is the availability of health and welfare infrastructure and sustainable development. This study examines the dynamics of transmigration in Lampung …

Negara Hukum Kesejahteraan Di Batas Pantai: Paradoks Perlindungan Negara Terhadap Masyarakat Pesisir Di Tengah Perubahan Iklim, Aji Baskoro

Jurnal Ilmu Kesejahteraan Sosial

Climate change poses significant challenges to vulnerable coastal communities in Indonesia. As a welfare state, the Indonesian government is expected to safeguard these vulnerable groups through policies that promote their welfare and sustainable livelihoods. However, current policies create a paradox. This article explores this paradox: on the one hand, Indonesia adheres to the welfare state principle, which demands that all government actions be grounded in law, ensuring public safety and welfare. On the other hand, the policies focus on exploiting natural resources, exacerbating the vulnerabilities of coastal communities, particularly in the face of climate change. The article employs a normative …

The Privacy Fallacy: Harm And Power In The Information Economy By Ignacio Cofone, Christopher D'Souza

Canadian Journal of Law and Technology

‘‘Our privacy is besieged by tech companies,”1 laments Ignacio Cofone, Law Professor and privacy aficionado, in The Privacy Fallacy: Harm and Power in the Information Economy. In an enlightening yet harrowing discourse, Cofone draws on insights from behavioural science, sociology, and economics2 to argue that the widespread consent-based model of privacy is not only outdated, but untenable given modern data practices.3 Further, Cofone acknowledges the increasing use of Artificial Intelligence (AI) in data processing, leading to novel challenges for the safeguarding of personal information.4 Thus, The Privacy Fallacy is more than just about privacy law’s shortcomings; it also raises questions …

Learning In Lockdown: Assessing The Impact Of Online Legal Education On The Development Of Professional Competencies And Identity, Adrien Habermacher, Sulaimon Giwa

Dalhousie Law Journal

We administered a survey to law students at three Canadian law schools in the Atlantic region at the end of the Fall 2020 term. The survey asked students to compare their learning of each of the Federation of Law Societies of Canada (FLSC)-mandated competencies, as well as several others taken from the Law Society of New Brunswick (LSNB) competency profile, in the Fall 2020 (online) term versus previous terms of study. The survey also solicited testimonies on students’ socialization into the legal community during their unexpected online law school experience. Our data sheds lights on which competencies, among those deemed …

How The Settler State Continues To Dispossess: Infrastructural (Dis)Entitlement On The Critical Minerals Frontier, Dayna Nadine Scott

All Papers

The scramble for critical minerals to fuel the energy transition is driving new extractive frontiers across the globe. In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amidst a growing polarization in positions of Indigenous leadership. There is both a surging resistance to, and a resigned acceptance of, critical minerals mining by First Nations. Drawing on years of community-engaged research, I detail here the contemporary state tactics of infrastructural (dis)entitlement; infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is …

Childhood Adversity's Impact On Criminal Behavior, Isobel Marie Avento

Theses and Dissertations

Adverse childhood experiences (ACEs), such as abuse, neglect, and family criminal history, have been identified as potential risk factors for negative physical, psychological, and behavioral health outcomes. Emerging literature suggests that ACEs are also among the primary factors leading to delinquency and adult criminal behavior. However, there is limited applied research that provides practitioners with appropriate insight to intervene when ACEs are identified among juvenile delinquents to reduce recidivism risk. This study adds to the existing literature by examining how cumulative ACEs shape criminal behavior of individuals from the onset until its desistance over the span of twenty years. Using …

Illegal, Unreported And Unregulated (Iuu) Fishing As Pathways To Human Trafficking: Navigating The Trafficked State Of Migrant Filipino Fishermen In J.W. Henley’S Migrante, Mary Harmony I. Guevarra

Akda: The Asian Journal of Literature, Culture, Performance

This study focuses on how J.W. Henley’s Migrante (2020) illustrates the synchroneity of Illegal, Unreported and Unregulated (IUU) fishing to the human trafficking dynamics at sea, in which the maturation and onset of its male protagonist’s psychological and physiological damages confirm his trafficked state. This paper offers further scrutiny on the gendered footing of human trafficking and opens a reframing of its discourse. Migrante tells the painful story of Rizal, who finds employment in a fishing vessel on the shores of Su’ao, Taiwan; as his crew go about their routine at sea which is interspersed with illegal trades in the …

Shifting Toward Boilerplate Regulation, Wayne R. Barnes

Faculty Scholarship

Consumer assent to standard form contracts has been creating cognitive dissonance among contracts scholars for a century. Businesses impose standard forms on consumers, who never read the terms. But consumers would not understand them if they did. And they don’t have the bargaining power to change them anyway—the terms are famously “take it or leave it.” Contracting is ideally theorized as an act of voluntary, knowing consent to all the terms agreed to. The dissonance is that consumers, although ostensibly signaling their assent to the boilerplate by signing (or clicking, or tapping their phone screen), do not in fact know …

Privacy Law’S Role In An Information Economy, Sari Mazzurco

Cardozo Law Review

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multifaceted selfhood by eliminating the boundaries that make social roles distinct and hindering …

The Forever Family’S Legal Loophole: A 50-State Survey On Adoption Dissolution, Kira Kilstein

Cardozo Law Review

Adoption is said to be “forever”—longing parents fulfill their dream of parenthood and children get a “forever family.” While the legal system intends for adoptive parent-child relationships to be permanent, a happily-ever-after ending is elusive when adoptions are enabled to fail. In the United States, each state can set its own standard for when courts may grant a request to dissolve an adoption, as well as time limits within which a parent may ask the court to vacate the adoption decree. This legal loophole, known as adoption dissolution, has been met with controversy about the permissibility of parents giving up …

Tanggung Jawab Negara Terhadap Eksistensi Masyarakat Pemukim Di Atas Air (Studi Kasus: Suku Bajo Desa Samabahari, Kabupaten Wakatobi), Aditya Nurahmani An

Jurnal Hukum & Pembangunan

The settler communities on the water are like the Bajo tribe, they have had a tradition of living on the water and in coastal areas for generations even before Indonesia became independent. The settler communities on the water have faced various problems such as legal certainty for settlements, threats of eviction, difficulty in accessing clean water and acts of discrimination. In this research, there are 2 (two) things to be studied, firstly what is the position of the settler community on the water in terms of the principle of common property resources in marine management and secondly what is …

Mass Shootings In The United States, Sydney Livingston

Journal of Nonprofit Innovation

High rates of mass shootings are becoming a uniquely American problem; the US makes up 73% of the world’s mass shootings, yet makes up only 4.25% of the world’s population. School shootings, in particular, have increased dramatically in the US since the Columbine High School shooting in 1999, an event many perpetrators have since drawn upon as inspiration. There is a strong divide of opinions in the nation regarding how firearm deaths should be reduced, which has complicated and slowed progress in identifying effective solutions. Each mass shooting causes additional shootings to occur, and each one takes a toll on …

Effects Of Gerrymandering On State Social Policy, Gary D. Brinker

eJournal of Public Affairs

Partisan Bias occurs when an election results in a party gleaning a significantly different proportion of legislative seats than the proportion of votes cast for that party. It can be strategically produced via gerrymandering and is thought by many to threaten the basic principles of democracy. This research uses the 2022 state election results to compute statewide measures of Partisan Bias, then analyzes the correlation with controversial state social policies. Results showed that the redistricting method used and the percent of the party’s legislators were related to Partisan Bias. Analysis also showed that Partisan Bias explains significant levels of variance …

Analysis Of The Implications Of The Water Convention And Protocols For Water And Health, Ester Indahyani Jusuf, Tiurma Mangihut Pitta Allagan, Tris Eryando

Indonesian Journal of International Law

Many international conventions contain positive values for humanity, which are in line with the human rights values guaranteed by our country’s constitution. The Indonesian state constitutionally guarantees the right of every Indonesian citizen to live a healthy and prosperous life, including providing water for every Indonesian citizen. However, it turns out that the Indonesian State has so far chosen not to ratify or access the Water Convention and the Water and Health Protocol, the contents of which are the good intentions of the countries participating in the convention to maintain the availability and quality of world water. This article provides …

The Paradox Of Visibility: Anti-Blackness, Pathologization, And The Limitations Of Canadian Criminal Law, Danardo Sanjay Jones

PhD Dissertations

This dissertation offers a quadripartite analysis of the endemic nature of anti-Black racism within Canadian criminal law, contributing to the growing body of Canadian critical race theory (CRT) literature and advancing the field of race-conscious doctrinal work on Canadian criminal law. Each chapter engages the system along different axes: (a) the temporal, procedural axis – moving from policing to the trial process to criminal sentencing; (b) the micro to the macro axis, with chapters that range from an individual case study to an analysis of a small constellation of recent court decisions, to a more theoretical analysis of foundational theories …

A Bird’S Eye View Of Crime: Assessing The Effectiveness Of Mobile Watchtowers On Vehicle-Related Thefts, James D. Kelsay, Ian A. Silver, Jaya B. Davis, Brook Rollins

Open Initiatives Grant Funded Publications-Archive

Objective Recent reports suggest that thefts of vehicles and thefts from vehicles have increased significantly over the last several years. Some police agencies have turned to mobile surveillance watchtowers to address this problem. This study examines the effectiveness of these mobile watchtowers at reducing vehicle-related thefts in Arlington, Texas.

Methods An interrupted time series analysis is used to determine whether the use of mobile watchtowers reduces the frequency of vehicle-related thefts.

Results The watchtowers are associated with a small, but significant, decrease in vehicle-related thefts. However, this effect appears to decay over time.

Conclusion Mobile watchtowers may be a viable …

Providing End-Of-Life Counseling: A Narrative Inquiry, Carol Hecht, Sibyl West

Adultspan Journal

This qualitative study aimed to address the gap in the research related to end-of-life counseling by exploring the experiences of counselors working with clients at end of life. While counseling literature and education are lacking regarding end of life, many counselors will work alongside clients approaching death. The purpose of this study was twofold: (a) to better understand the nuanced experiences of counselors providing end-of-life counseling and (b) to explore the supports and preparations helpful for counselors to provide end-of-life counseling. A narrative approach, using the Listening Guide (Gilligan, 2015), was employed to analyze and present the stories of three …