Law Commons^™

López Obrador Takes Power In Mexico After An Unstable Transition And Broken Campaign Promises, Luis Gomez Romero

Faculty of Law, Humanities and the Arts - Papers (Archive)

Mexicans want leftist Andrés Manuel López Obrador to transform the country. But the months leading up to his inauguration sent worrying signs about how he he will use the massive power of his office.

'Six O'Clock Is Late Enough': The 1947 New South Wales Liquor Referendum, Lauren Samuelsson

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article considers the outcome of the controversial 1947 New South Wales liquor referendum. As part of proposed reforms to liquor legislation, the New South Wales government asked the people to decide whether evening trading hours for hotel bars should be extended from six o'clock to either nine or ten o'clock. Early closing was retained with a significant majority, despite widespread recognition that early closing had created a problematic binge-drinking culture. Drawing on newspaper articles, letters to the editor, advertisements, trade journals, parliamentary records and temperance literature, this article will examine why there was such extensive public support for six …

The Integrated Structure Of Consciousness: Phenomenal Content, Subjective Attitude, And Noetic Complex, Katsunori Miyahara, Olaf Witkowski

Faculty of Law, Humanities and the Arts - Papers (Archive)

We explore the integrated structure (or the unity) of consciousness by examining the "phenomenological axioms" of the "integrated information theory of consciousness (IIT)" from the perspective of Husserlian phenomenology. After clarifying the notion of phenomenological axioms by drawing on resources from Edmund Husserl and Maurice Merleau-Ponty (Section 1), we develop a critique of the integration axiom by drawing on phenomenological analyses developed by Aron Gurwitsch and Merleau-Ponty (Section 2 & 3). This axiom is ambiguous. It can be read either atomistically as claiming that the phenomenal content of conscious experience is an integrated complex and holistically as claiming that it …

Decentering The Brain: Embodied Cognition And The Critique Of Neurocentrism And Narrow-Minded Philosophy Of Mind, Shaun Gallagher

Faculty of Law, Humanities and the Arts - Papers (Archive)

Context: Challenges by embodied, enactive, extended and ecological approaches to cognition have provided good reasons to shift away from neurocentric theories.

Problem: Classic cognitivist accounts tend towards internalism, representationalism and methodological individualism. Such accounts not only picture the brain as the central and almost exclusive mechanism of cognition, they also conceive of brain function in terms that ignore the dynamical relations among brain, body and environment.

Method: I review four areas of research (perception, action/ agency, self, social cognition) where enactivist accounts have shown alternative ways of thinking about the brain.

Results: Taken together, such analyses …

What's In A Hashtag? Vulnerability As A Transformative Disposition Within Social Media, Cassandra E. Sharp

Faculty of Law, Humanities and the Arts - Papers (Archive)

This article focuses on the disposition of vulnerability as expressed within social media using hashtags. It argues that individuals use and facilitate emotion within social media narratives to frame and contextualise normative expectations of the legal system; and that these stories collectively create one narrative of transformative vulnerability. In particular, the author argues that in times of crisis, vulnerability is constituted and maintained through the prism of fear perpetuated in social media narratives. Yet, at the same time, these narratives also contain within them the blueprints for hope - through narratives of solidarity and unity - resistance to fear is …

#Vulnerability - Expectations Of Justice Through Accounts Of Terror On Twitter, Cassandra E. Sharp

Faculty of Law, Humanities and the Arts - Papers (Archive)

There is little doubt that new digital technologies have performed a dynamic function in transforming culture, both positively and negatively. In an increasingly networked world, social media platforms have not just transformed the way individuals communicate, but they have also amplified and intensified the way they interpret, critique and legitimise the achievement of law and justice within communities. Law now finds expression, facilitation and transformation in emerging digital media platforms and it is important to reflect on and explore the performance of social media in its role of challenging and transforming expectations of law and justice.

The Australian And Antarctic Perspective On Global Ocean Governance, Robin M. Warner

Faculty of Law, Humanities and the Arts - Papers (Archive)

Australia with its lengthy coastline, vast maritime jurisdiction, and multiple offshore territories undoubtedly fits the description of a maritime nation with an important stake in global ocean governance. It is surrounded on all sides by oceans and seas including the world's largest ocean, the Pacific Ocean, the Indian Ocean, the Southern Ocean, the Tasman Sea, the Coral Sea, the Timar Sea, and the Arafura Sea. There are abundant living and non-living resources in Australia's coastal and marine areas many of which are largely untapped. Maritime security is a prominent concern for Australia given its geographic position to the south of …

Food Security In Solomon Islands: A Survey Of Honiara Central Market: Preliminary Report, Nichole Georgeou, Charles Hawksley, James Monks, Anouk Ride, Melinda Ki'i, Liesje Barrett

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Honiara Central Market (HCM) is the largest fresh produce market in Solomon Islands. Understanding the interactions taking place at HCM between rural farmers and urban consumers is important both for rural producers who sell their produce to create wealth, and for urban residents who need fresh food. This study focuses on the HCM and examines the factors that affect linkages between rural smallholders and urban consumers of fresh produce. The findings of the study will contribute to public policy formation in Solomon Islands on future food supply and food security needs by identifying potential areas where stakeholders (i.e. Solomon …

Unraveling The Blue Paradox: Incomplete Analysis Yields Incorrect Conclusions About Phoenix Islands Protected Area Closure, Quentin A. Hanich, Randi Rotjan, Transform Aqorau, Megan Bailey, Brooke M. Campbell, Noella Gray, Rebecca Gruby, John Hampton, Yoshitaka Ota, Hannah Parris, Chris Reid, Rashid Sumaila, Wilf Swartz

Faculty of Law, Humanities and the Arts - Papers (Archive)

In PNAS, McDermott et al. (1) analyze a 2014-2016 central Pacific fishing surge, focusing on the Phoenix Islands Protected Area (PIPA) inside the Kiribati exclusive economic zone (EEZ). The authors incorrectly attribute the surge to the anticipated industrial fishing closure of PIPA and describe the phenomenon as a blue paradox (i.e., an unintended negative consequence of a conservation policy). However, a broader analysis demonstrates that this surge was unrelated to the closure of PIPA and was due to a strong El Ni~no event that created a fishing surge across multiple EEZs and high seas, not just PIPA (2).

Sociodemographic Variation In Consumption Patterns Of Sustainable And Nutritious Seafood In Australia, Anna K. Farmery, Gilly Hendrie, Gabrielle M. O'Kane, Alexandra Mcmanus, Bridget S. Green

Faculty of Law, Humanities and the Arts - Papers (Archive)

National dietary guidelines (DGs) consistently recommend consuming seafood for health benefits, however, the sustainability of increasing seafood consumption is often challenged. Seafood products vary in environmental performance as well as health benefits, yet there is no information integrating the health and ecological impacts of different seafood choices. The first step in optimising improved health and environmental outcomes is to examine more closely the types of seafood being consumed at population and individual levels, to develop the means to increase the intake of seafood that is optimal for human health and the environment. The purpose of this analysis was to better …

Educating The Right Stuff: Lessons In Enactivist Learning, Shaun Gallagher

Faculty of Law, Humanities and the Arts - Papers (Archive)

On an enactivist conception of cognition, the unit of explanation is not just the brain, not just the body, and not just the environment, but the body-brain-environment understood as a dynamically coupled structure or gestalt. On this view, referencing Viktor von Weizsäcker's metaphor of the gestalt circle (Gestaltkreis), the brain is not in the center of a circle issuing radial commands to elements on the circumference; rather, it is one element on that circumference, along with body and environment. Taking this idea into the educational context implies that one can intervene at any point on the circle to get results. …

Can Women Share The Honour When Honour Has Historically Kept Women Away From Frontline Combat?, Sharon Crozier-De Rosa

Faculty of Law, Humanities and the Arts - Papers (Archive)

On Anzac Day, a day when many of my colleagues will be writing about the crucial issue of the place of indigenous Australians in commemorations of war, I will reflect on another issue, the role of gender in war. In particular, I will look at how emotional regimes, specifically honour codes, have been constructed to keep women away from frontline combat.

To Shame Or Not To Shame-That Is The Sanitation Question, Myles Bateman, Susan N. Engel

Faculty of Law, Humanities and the Arts - Papers (Archive)

The Community-Led Total Sanitation (CLTS) programme aims to end open defecation through facilitating activities that evoke a sense of shame, shock and disgust. The programme's initial success and low-cost design has seen it become hegemonic in donor-supported rural sanitation. However, the theoretical basis of the use of shame has not been critically evaluated. Supporters claim that shame helps form and maintain social relationships, yet contemporary psychosocial literature highlights that it is a volatile and often harmful emotion, particularly in conditions of poverty. Using a case study of Cambodia, which rejected the coercive elements of shame in CLTS, we explore the …

Class 05-84, Lacy Ward

Mighty Pen Project Anthology & Archive

A young Navy pilot finds a humorous way to hold onto his individuality during basic training.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so both writer and audience may benefit.

Carry-On Luggage, Jack Frazer

Mighty Pen Project Anthology & Archive

A soldier comes home from Vietnam, measuring his life by what he brings home in his pockets and duffel from the war.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so both writer and audience may benefit.

Button, Chris Knaggs

Mighty Pen Project Anthology & Archive

A veteran volunteer at the Virginia War Memorial tries to strike up a dialogue with a young, angry protester, and learns a hard lesson about the grief of others.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so …

Post Awesome, Chip Lauterbach

Mighty Pen Project Anthology & Archive

A Marine in Afghanistan returns from a battle, eager to speak with his wife; he can't reach her, and his heart sinks in worry.

Articles, stories, and other compositions in this archive were written by participants in the Mighty Pen Project. The program, developed by author David L. Robbins, and in partnership with Virginia Commonwealth University and the Virginia War Memorial in Richmond, Virginia, offers veterans and their family members a customized twelve-week writing class, free of charge. The program encourages, supports, and assists participants in sharing their stories and experiences of military experience so both writer and audience may …

Exclusionary Megacities, Wendell Pritchett, Shitong Qiao

All Faculty Scholarship

Human beings should live in places where they are most productive, and megacities, where information, innovation and opportunities congregate, would be the optimal choice. Yet megacities in both China and the U.S. are excluding people by limiting housing supply. Why, despite their many differences, is the same type of exclusion happening in both Chinese and U.S. megacities? Urban law and policy scholars argue that Not-In-My-Backyard (NIMBY) homeowners are taking over megacities in the U.S. and hindering housing development therein. They pin their hopes on an efficient growth machine that makes sure “above all, nothing gets in the way of building.” …

Baby M Turns 30: The Law And Policy Of Surrogate Motherhood, Eric A. Feldman

All Faculty Scholarship

This article marks the 30th anniversary of the Supreme Court of New Jersey’s Baby M decision by offering a critical analysis of surrogacy policy in the United States. Despite fundamental changes in both science and society since the case was decided, state courts and legislatures remain bitterly divided on the legality of surrogacy. In arguing for a more uniform, permissive legal posture toward surrogacy, the article addresses five central debates in the surrogacy literature.

First, should the legal system accommodate those seeking conception through surrogacy, or should it prohibit such arrangements? Second, if surrogacy is permitted, what steps can be …

Findlay Stark, Culpable Carelessness: Recklessness And Negligence In The Criminal Law, Cambridge: Cambridge University Press, 2016, Kimberly Kessler Ferzan

All Faculty Scholarship

Culpable Carelessness by Findlay Stark is a careful and considered contribution to the 'punishment for negligence' debate. As well as providing a comprehensive overview of the doctrinal and theoretical aspects of recklessness and negligence in the criminal law, it also offers novel insights for scholars already steeped in these debates. An additional methodological strength is that Stark takes seriously the connection between theory and law, offering useful potential jury instructions on recklessness and negligence.

Defense And Desert: When Reasons Don’T Share, Kimberly Kessler Ferzan

All Faculty Scholarship

Many retributivists maintain that when a defendant commits an offense, (1) the defendant forfeits rights against punishment and (2) it is intrinsically good for the defendant to get the punishment he deserves. Self-defense theorists often maintain that when certain conditions are met, (1) an aggressor forfeits his rights against defensive force and (2) the aggressor may be harmed instrumentally to prevent his attack. In the context of a symposium on Uwe Steinhoff’s "Just War Theory," this paper examines the intersection of defense and desert. First, may desert and defense be aggregated when, for instance, the amount of harm that is …

Patty Hearst Reconsidered: Personal Identity In The Criminal Law, Kimberly Kessler Ferzan

All Faculty Scholarship

In this contribution to a symposium celebrating Joshua Dressler, I revisit the Dressler/Delgado debate over Patty Hearst through the prism of personal identity. After reviewing why personal identity presents a problem for punishment, I discuss how a "personal identity" defense would fit within the criminal law, including when it would undermine status responsibility, when it would undermine a voluntary act, and when it would serve as an excuse.

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer E. Rothman

All Faculty Scholarship

This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s 2 symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent …

A Dose Of Color, A Dose Of Reality: Contextualizing Intentional Tort Actions With Black Documentaries, Regina Austin

All Faculty Scholarship

This article describes the way documentary films can provide important cultural context in the assessment of tort claims. This kind of contextual analysis exposes the social conditions that drive legal disputes. For example, in the case of Klayman v. Obama, Larry Klayman claimed that Black Lives Matter, among other defendants, was liable for various intentional torts (including intentional infliction of emotional distress) by fomenting hostility toward the police in black communities. The court dismissed the case but declined to hold Klayman liable for sanctions. One documentary film, I Am Not Your Negro, locates Klayman’s claims in a historical …

Women’S Human Rights And Migration: Sex-Selective Abortion Laws In The United States And India, Rangita De Silva De Alwis

All Faculty Scholarship

Sital Kalantry’s Women’s Human Rights and Migration: Sex Selective Abortion Laws in the United States and India addresses a long-existing gap in feminist theory at the intersection of a migrant woman’s experience and culturally motivated reproductive decisions. By recognising the possibility that ‘practices that are oppressive to women in one country context may not have a negative impact on women in another country context’ Kalantry takes an important step in creating a framework for evaluating competing human rights interests within the complex cultural contexts that arise in migrant-receiving countries. Her proposed framework rejects the decontextualisation and politicisation of the migrant …

Arguing With Friends, William Baude, Ryan D. Doerfler

All Faculty Scholarship

It is a fact of life that judges sometimes disagree about the best outcome in appealed cases. The question is what they should make of this. The two purest possibilities are to shut out all other views, or else to let them all in, leading one to concede ambiguity and uncertainty in most if not all contested cases.

Drawing on the philosophical concepts of “peer disagreement” and “epistemic peerhood,” we argue that there is a better way. Judges ought to give significant weight to the views of others, but only when those others share the judge’s basic methodology or interpretive …

Consent And Coercion, Kimberly Kessler Ferzan

All Faculty Scholarship

There are substantial disputes as to what sorts of behavior constitute coercion and thereby undermine consent. This disagreement was on full display during the public fray over Aziz Ansari’s behavior on a date. Whereas some commentators condemned Ansari’s behavior as nothing short of sexual assault, others believed his behavior did not rise to the level of undermining consent.

This Article claims that the way forward is to see that there are two normative functions for coercion, and each is at play with respect to consent. Sometimes coercion is about the blameworthiness of the coercer, and sometimes coercion is about the …

The Loving Story: Using A Documentary To Reconsider The Status Of An Iconic Interracial Married Couple, Regina Austin

All Faculty Scholarship

The Loving Story (Augusta Films 2011), directed by Nancy Buirski, tells the backstory of the groundbreaking U.S. Supreme Court case, Loving v. Virginia, that overturned state laws barring interracial marriage. The article looks to the documentary to explain why the Lovings should be considered icons of racial and ethnic civil rights, however much they might be associated with marriage equality today. The film shows the Lovings to be ordinary people who took their nearly decade long struggle against white supremacy to the nation’s highest court out of a genuine commitment to each other and a determination to live in …

Petitioning And The Making Of The Administrative State, Maggie Blackhawk

All Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state …

Introduction: For Better Or For Worse? Relational Landscapes In The Time Of Same-Sex Marriage, Michael W. Yarbrough

Publications and Research

As same-sex marriage has become a legal reality in a rapidly growing list of countries, the time has come to assess what this means for families and relationships on the ground. Many scholars have already begun to examine how marriage is helping some same-sex couples, but in this introduction I call for a broader and more critical research agenda. In particular, I argue that same-sex marriage crystallizes a key tension surrounding families and relationships in many contemporary societies. On the one hand, strict family norms are relaxing in many places, allowing more people to form more diverse types of caring …