Law Commons^™

A Performative Model For Conducting Critical Race Analysis: Josephine Baker, Modern Dance, And Utilizing Narrative To Transform Legal Doctrine, Patrick C. Brayer

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No abstract provided.

Introduction: Access To Healthcare Symposium, Yvonne F. Lindgren

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The four Articles in this Access to Healthcare symposium edition address the different ways that the U.S. healthcare delivery system is failing marginalized communities, including individuals who are disabled, who are birthing, who are women of color or represent another marginalized group, or who live in poverty. The result is a rich conversation that uncovers the complex systems that contribute to unequal access to health care and unjust disparities in health outcomes in the United States.

Antiabortion Civil Remedies And Unwed Fatherhood As Genetic Entitlement, Yvonne F. Lindgren

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Antiabortion civil remedy laws in effect in five states grant putative fathers the right to sue abortion providers for wrongful death regardless of their relationship to the gestating parent. While these laws represent an important new development in the movement to restrict the abortion right, they also expand parental recognition of unwed fathers. Constitutional law requires that unwed fathers who seek to assert parental rights must establish that they possess both biological connection and a relationship with their child or the gestating parent—what has come to be known as “biology-plus.” However, antiabortion civil remedy laws vest parental recognition and rights …

The Sense Of An Ending: Shifting Paradigms In Search Of Our Common Future, Irma S. Russell

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This article focuses on the important role law school deans play as protectors of innovation and faculty scholarship. Like all lawyers, deans have a duty as public citizens for justice and for legal reform when such reform is necessary for the public good. In this time of challenges, including the climate crisis and political upheaval, all lawyers must be sustainability lawyers and all must question the components of legal rules that potentially undermine our safety and democracy. Moving from a discussion of the duty of deans to the duty of lawyers generally, the article calls on lawyer leaders to address …

The Fathers' Veto And Fatherhood As Property, Yvonne F. Lindgren

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Over the last twenty-five years, state legislators have been quietly adding civil remedy provisions to antiabortion legislation to supplement, and in the case of Texas’s Senate Bill 8, to completely replace the traditional criminal and administrative enforcement mechanisms of restrictive abortion legislation. Laws currently in effect in at least eight states permit fathers to sue abortion providers for civil damages for wrongful death and emotional distress for alleged harms that result from the abortion procedure. Several state legislatures have introduced laws—although to date all have been enjoined or are being challenged—that require women seeking an abortion to get signed consent …

An Ecological And Holistic Analysis Of The Epistemic Value Of Law Libraries, Paul D. Callister, Dana Neacsu

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We examine the libraries' roles within the "epistemic foundation of society.” Our analysis is in response to the omission of Yale Law Dean Gerken of the role of libraries in her recent article about legal education's new focus and to remarks by AALS President Vicki Jackson that suggest an uncertain role for libraries. We have adapted holistic ecological media theory, as developed by Ronald Deibert, to reject a technologically deterministic view of libraries as having no future. We have considered the role of law libraries in the social epistemology or cognitive authority of the legal community, the role of law …

Microaggressions, Questionable Science, And Free Speech, Edward Cantu, Lee Jussim

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The topic of microaggressions is hot currently. Diversity administrators regularly propagate lists of alleged microaggressions and express confidence that listed items reflect what some psychologists claim they do: racism that is, at the very least, unconscious in the mind of the speaker. Legal academics are increasingly leveraging microaggression research in theorizing law and proposing legal change. But how scientifically legitimate are claims by some psychologists about what acts constitute microaggressions? The authors—one a law professor, the other a psychologist—argue that the answer is “not much.” In this article, the authors dissect the studies, and critique the claims, of microaggression researchers. …

The Iccpr, Non-Self-Execution, And Daca Recipients' Right To Remain In The United States, Timothy E. Lynch

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The United States is a party to the International Covenant on Civil and Political Rights (ICCPR). Article 12.4 states, “No one shall be arbitrarily deprived of the right to enter his own country.” Citizens clearly enjoy the rights of Article 12.4, but this Article demonstrates that this right reaches beyond the citizenry. Using customary methods of treaty interpretation, including reference to the ICCPR’s preparatory works and the jurisprudence of the Human Rights Committee, I demonstrate that Article 12.4 also forbids states from deporting long-term resident non-citizens – both documented and undocumented – except under the rarest circumstances. As a result, …

Sexual Exploitation And The Adultified Black Girl, Mikah K. Thompson

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A troubling legacy of American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black girls and women based not only on the fact that they were considered property but also on stereotypes about their sexuality. Even though the law now criminalizes the rape of Black girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. …

Machines Finding Injustice, Hannah S. Lacqueur, Ryan W. Copus

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With rising caseloads, review systems are increasingly taxed, stymieing traditional methods of case screening. We propose an automated solution: predictive models of legal decisions can be used to identify and focus review resources on outlier decisions—those decisions that are most likely the product of biases, ideological extremism, unusual moods, and carelessness and thus most at odds with a court’s considered, collective judgment. By using algorithms to find and focus human attention on likely injustices, adjudication systems can largely sidestep the most serious objections to the use of algorithms in the law: that algorithms can embed racial biases, deprive parties of …

The Art And Science Of The (Survival) Deal: The Role Of Administrative Agencies In Protecting The Public Against Unreasonable Risks, Irma S. Russell

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No abstract provided.

Trump’S Angry White Women: Motherhood, Nationalism, And Abortion, Yvonne F. Lindgren

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A majority of white women — fifty-two percent — voted for Donald Trump in the 2016 presidential election. White working-class women supported Trump in even greater numbers: sixty-one percent of white women without college degrees voted for Trump. This result seems remarkable considering Trump’s derogatory statements about women and his staunch opposition to legal access to abortion. Why did white women, especially those most likely to need access to reproductive healthcare—poor and working-class women — vote heavily against their own interests to embrace a candidate who called for punishing women who access abortion? Much recent commentary has considered this question …

Attorney As Accompagnateur: Resilient Lawyering When Victory Is Uncertain Or Nearly Impossible, Margaret Reuter

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Social justice lawyers come to the profession intending to make a difference through the instruments of law. And gloriously, they often make a difference in people’s lives for the better. They make our world a more just, compassionate, and tolerant place. But there is no denying that, in poverty law practice, legal success can be elusive, ephemeral, or perhaps a mirage. How does that lawyer feel when the legal remedies at her disposal, even if “successful,” fail to mitigate the injustices suffered by her clients? Are there definitions of professional satisfaction and success that are enduring, even if legal success …

Rule Of Law With Asian Characteristics: Cultural Insights From The Occupy Central Movement In Hong Kong, Jeffrey E. Thomas

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No abstract provided.

Entertainment As Crime Prevention: Evidence From Chicago Sports Games., Hannah S. Lacqueur, Ryan W. Copus

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The concern that mass media may be responsible for aggressive and criminal behavior is widespread. Comparatively little consideration has been given to its potential diversionary function. This paper contributes to the emerging body of literature on entertainment as a determinant of crime by analyzing Chicago by-the-minute crime reports during major sporting events. Sports provide an exogenous infusion of TV diversion that we leverage to test the effect of entertainment on crime. Because the scheduling of a sporting event should be random with respect to crime within a given month, day of the week, and time, we use month-time-day-of-week fixed effects …

The Ozark National Scenic Riverways And The Sagebrush Rebellion In Missouri, John W. Ragsdale Jr

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This article focuses on the back country-the Ozark National Scenic Riverways (ONSR) and the community around and with the rivers. It begins historically, tracing the origins and courses of stable-state, subsistence agricultural societies in the rugged hills overlooking the Current and Jacks Fork Rivers. It shows that such societies, though autonomous, are vulnerable to outside aggression. War, raiders, in­dustrial timbermen, and modern technology can shatter the environ­mental balance. Dam builders, government land managers, and tour­ism can erode internal sovereignty, custom, and self-esteem. These forces befell the Ozark highlands around the ONSR.

Out of the breakdown of land and economy, and …

The Death Of The Firm, June Carbone, Nancy Levit

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This Article maintains that the decision in Burwell v. Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the “death of the firm” as a unit of legal analysis in which business entities are treated as more than the sum of their parts and appropriate partners to advance not just commercial, but public ends. The Hobby Lobby reference to the firm as a fiction is a product of a decades-long shift in the treatment of corporations. This shift reflects both an ideological embrace of the free-market-oriented “agency-cost” …

A Culture Of Silence: Exploring The Impact Of The Historically Contentious Relationship Between African-Americans And The Police, Mikah K. Thompson

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The relationship between African-Americans and the police has traditionally been focused on authority, control, and the enforcement of laws we now acknowledge were racially discriminatory. This historical relationship, when combined with a modern-day narrative that the police disproportionately stop, arrest, and utilize deadly force against African-Americans, has resulted in pervasive, inter-generational fear and distrust of the police. Most African-Americans view police officers not as the heroic protectors they can call upon when in need of help or the hard-hitting investigators they would trust to look into a family member’s murder. Instead, many African-Americans believe police officers have bought into the …

Who Is Parent And Who Is Child In Same-Sex Family? - Legislative And Judicial Issues For Lgbt Families Post-Separation, Part Ii: The U.S. Perspective, Mary Kay Kisthardt, Richard A. Roane

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No abstract provided.

Wait, Wait, Don’T Tell Me: Accountability, Plausible Deniability, Model Rule 1.13, And The Role Of Corporate Counsel In An Age Of Enhanced Monitoring, Irma S. Russell

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No abstract provided.

Analysis Of Freedom Of Information For Its Effect On Society By Considering 2011, The Year Of The Arab Spring, Paul D. Callister, Kimberlee Everson

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2011, the year of the Arab Spring, presents a unique opportunity to look back and study how the relative freedom and development of information environments affect stability in nations throughout the Middle East and world. Such study raises interesting questions about whether freedom of information and speech are ultimately stabilizing influences for society in terms of loyalty, violence and political unrest — questions all the more important as societies face the onslaught of the internet, mobile devices and cell phones. Are non-democratic regimes “better off” by monopolizing and controlling the flow of information over new information channels? Are democratic societies, …

Implicit Bias And Capital Decision-Making: Using Narrative To Counter Prejudicial Psychiatric Labels, Sean O'Brien, Kathleen Wayland

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Overreliance on psychiatric diagnostic labels in the defense of death penalty cases risks triggering prejudicial associations in the minds of decision-makers. This article emphasizes the importance of developing a mitigating counter-narrative of the defendant’s life story, based on an extensive longitudinal and developmental investigation of the defendant and his family’s life trajectory. It is the client’s life story, not diagnostic labels, that reveals his humanity. Cognitive psychology provides a useful framework for explaining human perceptions, and how implicit or explicit biases can interfere with the objective interpretation of data in ways that affect judgment and behavior.

Children's Interests: An Annotated Bibliography, 2013-2015, Nancy Levit

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No abstract provided.

Rule Of Law With Chinese Characteristics: An Empirical Cultural Perspective On China, Hong Kong And Singapore, Jeffrey E. Thomas

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This article uses empirical data to analyse the meaning of rule of law with Chinese characteristics. It compares rule of law data on China, Hong Kong and Singapore from the World Justice Project and finds patterns of more limited protection of individual rights and fewer limits on governmental powers. It then uses Geert Hofstede’s cultural dimensions to consider whether those patterns are related to common cultural characteristics. It finds low scores on the cultural value of individualism in those three jurisdictions are correlated with lower protection for individual rights, and that high scores on Hofstede’s Power Distribution Index are inversely …

Introduction: Mental Health, Psychology, And The Law, Mary Kay Kisthardt

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The authors coordinated and edited a symposium law review issue on Mental Health, Psychology and the Law. The Introduction summarizes submissions that included a memoir from an author whose family members were consumers of mental health services, legal scholars and practitioners who use mental health evidence to defend clients facing the death penalty, and the duty of attorneys to tend to their own mental health care needs while dealing with these emotionally heavy issues.

Mayo, Myriad, And The Future Of Innovation In Molecular Diagnostics And Personalized Medicine, Christopher M. Holman

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Contrary to popular perception, the Supreme Court’s recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc., finding certain patent claims reciting isolated genomic DNA molecules patent ineligible is likely to have a relatively minor impact on the patenting of diagnostics and personalized medicine. Method claims generally play a much more important role than isolated DNA claims in the patenting of innovations in this important technological sector, and the Court’s earlier decision in Mayo v. Prometheus Labs that held claims directed towards non-genetic methods of personalized medicine to be patent ineligible will likely prove significantly more problematic in this …

Book Review: Lawless Capitalism: The Subprime Crisis And The Case For An Economic Rule Of Law, William K. Black

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No abstract provided.

A Content Analysis Of Protective Factors Within States' Antibullying Laws, Lori M. Weaver, James R. Brown, Daniel B. Weddle, Matthew C. Aalsma

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No abstract provided.

Do Police Learn From Lawsuit Data?, Randall K. Johnson

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A compelling new theory argues that lawsuit data collection has a deterrent effect on police misconduct. If this theory is correct, why has the number of police misconduct cases still increased over time? Does the trend continue if police departments consistently gather lawsuit data? A § 1983 dataset, which is introduced in this paper, provides an answer. This dataset shows that lawsuit data collection does not correlate with better deterrence of § 1983 cases. The dataset therefore indicates that police departments may not learn from lawsuit data.

A Law Clinic Systems Theory And The Pedagogy Of Interaction: Creating Legal Learning System, Patrick C. Brayer

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This article introduces a clinical systems approach that reframes professional experience as an interaction with a professional environment. The article encourages clinical faculty and other legal educators to contemplate the pedagogy of systemic interaction when teaching from experience and to then expand professional interactive opportunities within the short period of student participation. Clinical systems theory operates on the premise that students should reframe how they look at their surroundings so that the challenges that make up their professional system are not seen as problems but as means to a solution. Reframing by the student is realized in a clinical system …