Digital Commons Network^™

Origin Stories: Critical Race Theory Encounters The War On Terror, Natsu Taylor Saito

Michigan Journal of Race and Law

Stories matter. They matter to those intent on maintaining structures of power and privilege, and to those being crushed by those structures. In the United States, the space to tell, and to hear, our stories has been expanding. This means that the histories and lived realities of those who have been excluded, particularly people of color, are seeping into mainstream discourse, into the books our children read, the movies and television shows they watch, and the many websites comprising social media. Critical race theory has played a role in this expansion. It insists that we recognize the legitimacy of the …

Aligned: Sex Workers’ Lessons For The Gig Economy, Yvette Butler

Michigan Journal of Race and Law

Society’s perception of a type of work and the people who engage in money-generating activities has an impact on whether and how the law protects (or does not protect) the people who perform those activities. Work can be legitimized or delegitimized. Workers are protected or left out to dry depending upon their particular “hustle.” This Article argues that gig workers and sex workers face similar challenges within the legal system and that these groups can and should collaborate to their collective advantage when seeking reforms. Gig workers have been gaining legitimacy while sex workers still primarily operate in the shadow …

Review Of Veterans Law Decisions Of The Federal Circuit, 2020 Edition, Angela K. Drake, Yelena Duterte, Stacey-Rae Simcox

American University Law Review

This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of …

Introduction To The Symposium: The Stakes For Critical Legal Theory, Elizabeth S. Anker, Justin Deystone

University of Colorado Law Review

No abstract provided.

The Pure Theory Of Law Is A Hole In The Ozone Layer, Peter Goodrich

University of Colorado Law Review

No abstract provided.

Matter Of Negusie And The Failure Of Asylum Law To Recognize Child Soldiers, Ruth Campbell

Lewis & Clark Law Review

In Matter of Negusie, Attorney General William Barr struck yet another blow to asylum seekers by rejecting any exception for duress or coercion in applying the “persecutor bar” to immigration relief. Commentators have previously observed that the victims of the “strict-liability persecutor bar” to asylum will often be child soldiers, usually discussed in the context of children fleeing conflicts in parts of Africa and the Middle East. This Comment aims to recontextualize concern about the availability of asylum for child soldiers as part of an ongoing crisis of children fleeing recruitment by powerful gangs and cartels in Mexico, Honduras, El …

Human Rights And Disinformation Under The Trump Administration: The Commission On Unalienable Rights, Robert C. Blitt

Saint Louis University Law Journal

The former administration of Donald J. Trump shattered norms governing the responsibility to relay accurate, truthful information to the public. Whether regarding trivialities or vital issues of the day, the “Trump Doctrine” unleashed a global torrent of damaging misinformation and disinformation. This penchant for falsehood and distortion did not spare U.S. human rights policy. The administration’s decision to establish a Commission on Unalienable Rights (COUR) represented a high-water mark in its campaign to subvert international human rights norms.

After introducing key concepts relating to misinformation and disinformation, this article reviews the establishment of the COUR and the substance of its …

Fake News & International Criminal Law, Sara L. Ochs

Saint Louis University Law Journal

In a decade defined by fake news, nations have weaponized disinformation to attack political, legal, and social systems throughout the world. Specifically, in recent years, government leaders have spread fake news about the International Criminal Court (“ICC”) in efforts to turn public opinion against the ICC and deter its attempts to investigate and prosecute controversial cases. Given the ICC’s reliance on state party cooperation, not only does this use of fake news hamper the Court’s likelihood of successfully prosecuting crimes that are of most concern to the international community, but it also promotes a version of history that denies victims …

The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford

Faculty Scholarship

This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should “do something” about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …

Race In America 2021: A Time To Embrace Beauharnais V. Illinois?, Steven A. Ramirez

Loyola University Chicago Law Journal

Hate crimes and racially motivated violence spiked in the United States over the past few years. Our foreign adversaries seek to inflame racial divisions in our nation and turn American against American. This now forms a major threat to our national security and domestic tranquility. Indeed, in light of the attempted insurrection of January 6, 2021, the costs of our festering racial hierarchy now threaten our constitutional republic. The soaring costs of the American racial hierarchy now demands aggressive legal response. This Essay demonstrates that the process of racial formation undergirding the hierarchy relies upon group libel to propagate racial …

Extending Democracy To Corporate Governace And Beyond: A Theory Of Popular Economic Sovereignty, Edward L. Rubin

University of the Pacific Law Review

No abstract provided.

The End Of School Policing, Barbara A. Fedders

Faculty Publications

Police officers have become permanent fixtures in public schools. The sharp increase in the number of school police officers over the last twenty years has generated a substantial body of critical legal scholarship. Critics question whether police make students safer. They argue that any safety benefits must be weighed against the significant role the police play in perpetuating a school-to-prison pipeline that funnels Black and Brown students and students with disabilities out of schools and into courts, jails, and prisons. In suggesting remedies for this problem, commentators have proposed several regulatory fixes. These include changes to the standards for evaluating …

Hidden Hunger In Peacetime And Wartime: Retailoring The 'Responsibility To Protect' To Food-Power Discourses In Burundi And North Korea, Between International Politics And International Law, Riccardo Vecellio Segate

North Carolina Journal of International Law

No abstract provided.

Public Health Policing And The Case Against Vaccine Mandates, Dr. Tryon Woods

St. Thomas Law Review

There can be no simple reading of a text, be it literary, philosophical or scientific, nor of the social text in the most general sense. Rather, the question must turn upon itself, no less than its putative object, as a matter of interpretation and, more important, as a matter of the forces at work in the interpretative activity under way. There is always the ascription of voice to what is otherwise silent, the attribution of a face or the placement of a mask. Le germe n’est rien, c’est le terrain qui est tout. The microbe is nothing, the soil is …

The Trial Preparation Procedures—Civil, Will Rhee, L. Richard Walker

Law Faculty Scholarship

In an effort to provide scholarship immediately useful to the litigator, this Article proposes a detailed systems workflow to plan and coordinate preparing for federal civil trials called the Trial Preparation Procedures—Civil or "TrialPrepPro—Civil" for short. Although there is an abundance of anecdotal "learning from doing" trial preparation guidance, empirically testable "learning about doing" trial preparation guidance is rare. We present our TrialPrepPro to learn more about doing.

The TrialPrepPro is modeled after the battle-proven U.S. Army Troop Leading Procedures used, with modifications, by all U.S. military services, our NATO allies, and many other foreign militaries. Although there is ample …

In Search Of An Established Church, Teresa M. Bejan

Roger Williams University Law Review

No abstract provided.

Cynicism As A Modus Of Political Agency: Can It Speak To International Law?, Hengameh Saberi

Articles & Book Chapters

This essay is a brief tour through the philosophical journey of cynicism as a critical ethos and modus of political agency. Against colloquial and psychological uses, all with a crippling effect, it seeks to remind of the best potential of a philosophical cynical temperament for a sense of empowered agency by revisiting its travels from ancient Athens to our time. With that history in sight, it will then in a preliminary and experimental fashion imagine some possible avenues through which international law can begin to appreciate a cynical orientation as a force for good rather than an enemy to deny, …

Unsafe At Any Campus: Don't Let Colleges Become The Next Cruise Ships, Nursing Homes, And Food Processing Plants, Peter H. Huang, Debra S. Austin Dr

Indiana Law Journal

The decision to educate our students via in-person or online learning environments while COVID-19 is unrestrained is a false choice, when the clear path to achieve our chief objective safely, the education of our students, can be done online. Our decision-making should be guided by the overriding principle that people matter more than money. We recognize that lost tuition revenue if students delay or defer education is an institutional concern, but we posit that many students and parents would prefer a safer online alternative to riskier in-person options, especially as we get closer to fall, and American death tolls rise. …

Use Of Factors In Development Estimates: Improving The Cost Analysis Toolkit, Matthew R. Markman, Jonathan D. Ritschel, Edward D. White

Faculty Publications

Factor Estimating is a technique commonly used by defense acquisition analysts to develop cost estimations. However, previous studies developing factors for the Engineering and Manufacturing Development (EMD) phase of the life cycle are limited. This research expands the current toolkit for cost analysts by developing cost factors in previously unexplored areas. More specifically, over 400 cost reports are utilized to create new standard cost factors that are delineated by five categories: commodity type, contract type, contractor type, development type, and Service. The factors are developed for those elements that are common in a wide array of projects such as program …

United States Army Report And Message Formats, United States Army

United States Army: Field Manuals

United States Army Report and Message Formats, United States Army Field Manual FM 6-99

Posted: No Phising, Lawrence J. Trautman, Mohammed T. Hussein, Emmanuel U. Opara, Mason J. Molesky, Shahedur Rahman

Emory Business Law Review

Any engineering approach to cybersecurity must recognize that many breaches are the result of human behavior, rather than sophisticated malware. Effective cybersecurity defenses require a systematic engineering approach that recognizes the organizational, cultural and psychological barriers to effectively dealing with this problem. The U.S. Securities and Exchange Commission (SEC) defines “phishing” as, “the use of fraudulent emails and copy-cat websites to trick you into revealing valuable personal information—such as account numbers for banking, securities, mortgage, or credit accounts, your social security numbers, and the login IDs and passwords you use when accessing online financial service providers.” Once this information is …

Foucault’S Keystone: Confessions Of The Flesh, Bernard E. Harcourt

Faculty Scholarship

The fourth and final volume of The History of Sexuality offers the keystone to Michel Foucault’s critique of Western neoliberal societies. Confessions of the Flesh provides the heretofore missing link that ties Foucault’s late writings on subjectivity to his earlier critique of power. Foucault identifies in Augustine’s treatment of marital sexual relations the moment of birth of the modern legal actor and of the legalization of social relations. With the appearance of the modern legal subject, Foucault’s critique of modern Western societies is complete: it is now possible to see how the later emergence of an all-knowing homo oeconomicus strips …

Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy – A Reply To Professor Rock, Leo E. Strine Jr.

Ira M. Millstein Center for Global Markets and Corporate Ownership

This reply to For Whom Is the Corporation Managed in 2020? The Debate Over Corporate Purpose by Professor Edward Rock supports his depiction of the current state of corporate law in the United States. But by contrast to Professor Rock, I do not trace the debate over corporate purpose to recent statements by business elites belatedly recognizing that our corporate governance system has failed to work for the many and is contributing to growing inequality. Rather, I source the debate to the work of advocates and scholars who have long been trying to restore fairness to our economy by updating …

Ostracism And Democracy, Alex Zhang

Faculty Articles

The 2020 Presidential Election featured an unprecedented attempt to undermine our democratic institutions: allegations of voter fraud and litigation about mail-in ballots culminated in a mob storming of the Capitol as Congress certified President Biden’s victory. Former President Trump now faces social-media bans and potential disqualification from future federal office, but his allies have criticized those efforts as the witch-hunt of a cancel culture that is symptomatic of the unique ills of contemporary liberal politics.

This Article defends recent efforts to remove Trump from the public eye, with reference to an ancient Greek electoral mechanism: ostracism. In the world’s first …

Recognizing The Role Of Inspectors General In The U.S. Government's Cybersecurity Restructuring Task, Amy Gaudion

Faculty Scholarly Works

Months prior to the 2015 public disclosure of a data breach at the U.S. government’s Office of Personnel and Management (OPM), the Office of the Inspector General for OPM issued a report that identified significant deficiencies and material weaknesses in a number of the agency’s information systems and IT security programs. In response to the 2020 SolarWinds supply chain hack, attributed to Russia, calls are underway for inspectors general to conduct audits and inspections and to review prior inspector general assessments of information systems and vulnerabilities at federal agencies. The use of inspectors general to assess information system vulnerabilities and …

No Time To Waste: Embracing Sustainable Procurement To Mitigate The Accelerating Climate Crisis, Steven L. Schooner

GW Law Faculty Publications & Other Works

Procurement professionals will increasingly be asked to play an important role in adapting to and mitigating the effects of climate change. Unfortunately, we don't have time to waste, either feeling hopeless or waiting for changes to the Federal Acquisition Regulation (FAR) and subsequent efforts to implement new regulations. The time to start progressing up the learning curve is now. We need to talk - seriously, thoughtfully - about climate change and sustainable procurement, particularly early in the acquisition planning process. We need to rethink the value proposition, particularly with regard to factoring in the social costs of continuing to rely …

Hate Speech On Social Media: Content Moderation In Context, Richard A. Wilson, Molly Land

Faculty Articles and Papers

For all practical purposes, the policy of social media companies to suppress hate speech on their platforms means that the longstanding debate in the United States about whether to limit hate speech in the public square has been resolved in favor of vigorous regulation. Nonetheless, revisiting these debates provides insights essential for developing more empirically-based and narrowly tailored policies regarding online hate.

First, a central issue in the hate speech debate is the extent to which hate speech contributes to violence. Those in favor of more robust regulation claim a connection to violence, while others dismiss these arguments as tenuous. …

Diagrammatics And The Proactive Visualization Of Legal Information, Michael D. Murray

Law Faculty Scholarly Articles

This article performs an analysis of one mode of visual legal communication:

diagrammatics and the visualization of legal data and other information

in legal instruments and communications.

The Proactive Law movement and the Legal Design movement each

seek to transform legal instruments and documents to improve access to and

comprehension of the communication of law to all persons. “All persons”

includes both law-trained and non-law-trained persons and extends from the

literate and educated all the way to disadvantaged, illiterate, and less-thanfully

literate persons. The overall goal of the Proactive Law movement and a

primary goal of Legal Design is to …

Grounding Suicide Terrorism In Death Anxiety And Consumer Capitalism, James M. Donovan

Law Faculty Scholarly Articles

This article examines an influential theory on suicide attacker motivations, the Significance Quest Theory, and suggests that this death anxiety approach can be improved by shifting its focus toward the related, but more comprehensive, Terror Management Theory. The theoretical productivity of this realignment is tested by examining the relationship between suicide attacks and one of the variables thought to trigger the underlying anxieties: the local pressures from global consumer capitalism. After describing the relationship between death anxiety and suicide terrorism generally, this article concludes by applying these insights to the ethnographic context of Egypt.

The Biopolitics Of Maskless Police, India Thusi

Articles by Maurer Faculty

Despite the recent movement against police violence, police officers have been endangering their communities by engaging in a new form of violence— policing while refusing to wear facial coverings to prevent the spread of COVID-19. Many states advise people to wear masks and to socially distance when in public spaces. However, police officers have frequently failed to comply with these guidelines as they interact with the public to enforce these COVID-19 laws. Police enforcement of COVID-19 laws is problematic for two reasons: (1) it provides a method for pathologizing marginalized communities as biological threats; (2) it creates a racialized pathway …