Law Commons^™

Reevaluating Regional Law Reform Strategies After Dobbs, Jamie Abrams

Articles in Law Reviews & Other Academic Journals

This article studies the triad of 2016 social media campaigns known as “#AskDr.Kasich,” “#askbevinaboutmyvag,” and “#PeriodsforPence.” While these campaigns, each located in the regional mid-South, were motivated by restrictive state abortion bills, they uniquely positioned menstruation and women’s bodies at the center of their activism—not abortion alone. They leveraged, as a political fault line, the contradiction of these states’ governors’ perceived disgust relating to basic women’s reproductive health, relative to their patriarchal assuredness in regulating and controlling women’s bodies.

In so doing, they tapped into meaningful disruptions in the geographies, religiosities, and masculinities of abortion politics. These campaigns achieved regional …

The Futures Of Law, Lawyers, And Law Schools: A Dialogue, Sameer M. Ashar, Benjamin H. Barton, Michael J. Madison, Rachel F. Moran

Articles

On April 19 and 20, 2023, Professors Bernard Hibbitts and Richard Weisberg convened a conference at the University of Pittsburgh School of Law titled “Disarmed, Distracted, Disconnected, and Distressed: Modern Legal Education and the Unmaking of American Lawyers.” Four speakers concluded the event with a spirited conversation about themes expressed during the proceedings. Distilling a lively two days, they asked: what are the most critical challenges now facing US legal education and, by extension, lawyers and the communities they serve? Their agreements and disagreements were striking, so much so that Professors Hibbitts and Weisberg invited those four to extend their …

The Law Of Friends, Ezra Rosser

Articles in Law Reviews & Other Academic Journals

A serious law professor would not write an article about the TV show Friends, but having just written a book and an article, I’m on a “break.” Besides, I’m not that serious a law professor. And Friends is as good a topic as any. For those of us of a certain age—too young to have watched M.A.S.H. when it came out and old enough to remember watching broadcast TV and not just through a streaming service on a device—Friends was and is a big deal. It both captured a particular moment in history and helped make that moment.

Looking back …

Second-Trimester Abortion Dangertalk, Greer Donley, Jill Wieber Lens

Articles

Abortion rights are more vulnerable now than they have been in decades. This Article focuses specifically on the most assailable subset of those rights: the right to a pre-viability, second-trimester abortion. Building on Carhart v. Gonzales, where the Supreme Court upheld a federal ban on a safe and effective second-trimester abortion procedure, states have passed new second-trimester abortion restrictions that rely heavily on the woman-protective rationale—the idea that the restrictions will benefit women. These newer second-trimester abortion restrictions include bans on the Dilation & Evacuation (D&E) procedure, bans on disability-selective abortions, and mandatory perinatal hospice and palliative care counseling …

John The Theologian: Towards Integrating Law And Religion, Gordon T. Butler

Faculty Articles

No abstract provided.

A Constitution For The Age Of Demagogues: Using The Twenty-Fifth Amendment To Remove An Unfit President, Paul F. Campos

Publications

This Article argues that, properly understood, the 25th Amendment is designed to allow the executive and legislative branches, working together, to remove a president from office when it becomes evident that the person elevated to that office by the electoral process is manifestly unsuited for what can, without exaggeration, be described as the most important job in the world.

It argues further that the first two years of Donald Trump’s presidency have provided a great deal of evidence for the proposition that President Trump has in fact demonstrated the requisite level of fundamental unfitness for the office that would justify …

Techno-Optimism & Access To The Legal System, Tanina Rostain

Georgetown Law Faculty Publications and Other Works

For legal technologists, apps raise the prospect of putting the law in the hands of disadvantaged people who feel powerless to deal with their legal problems. These aspirations are heartening, but they rest on unrealistic assumptions about how people living in poverty deal with legal problems. People who are poor very rarely resort to the law to solve their problems. In the situations when they do seek solutions, they confront educational and material impediments to finding, understanding, and using online legal tools effectively. Literacy is a significant barrier. More than 15 percent of all adults living in the United States …

The Public Trust In Public Art: Property Law's Case Against Private Hoarding Of “Public” Art, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Private hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important …

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 …

Are Anti-Bullying Laws Effective?, Ari Ezra Waldman

Articles & Chapters

Since 2010, when several high profile bullying-related suicides brought bullying and cyberharassment into the national consciousness, all 50 states have passed laws that address bullying among the nation’s youth. This essay is the first in a series of three projects on federal, state, municipal, and individual school approaches to bullying. There are only 4 published studies on the relationships between law and bullying rates. This Essay adds several features to the discourse. It offers a comprehensive analysis of the contents of state anti-bullying laws, using a 16-item list of guidelines from the United States Department of Education as a frame. …

Stages Of Constitutional Grief: Democratic Constitutionalism And The Marriage Revolution, Anthony Michael Kreis

All Faculty Scholarship

Do courts matter?Historically, many social movements have turned to the courts to help achieve sweeping social change. Because judicial institutions are supposed to be above the political fray, they are sometimes believed to be immune from ordinary political pressures that otherwise slow down progress. Substantial scholarship casts doubt on this romanticized ideal of courts. This Article posits a new, interactive theory of courts and social movements, under which judicial institutions can legitimize and fuel social movements, but outside actors are necessary to enhance the courts’ social reform efficacy. Under this theory, courts matter and can be agents of social change …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Articles & Chapters

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust.

Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows …

Agenda: A Celebration Of The Work Of Charles Wilkinson: Served With Tasty Stories And Some Slices Of Roast, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment

A Celebration of the Work of Charles Wilkinson (Martz Winter Symposium, March 10-11)

Conference held at the University of Colorado, Wolf Law Building, Wittemyer Courtroom, Thursday, March 10th and Friday, March 11th, 2016.

Conference moderators, panelists and speakers included University of Colorado Law School professors Phil Weiser, Sarah Krakoff, William Boyd, Kristen Carpenter, Britt Banks, Harold Bruff, Richard Collins, Carla Fredericks, Mark Squillace, and Charles Wilkinson

"We celebrate the work of Distinguished Professor Charles Wilkinson, a prolific and passionate writer, teacher, and advocate for the people and places of the West. Charles's influence extends beyond place, yet his work has always originated in a deep love of and commitment to particular places. We …

South African Marriage In Policy And Practice: A Dynamic Story, Michael W. Yarbrough

Publications and Research

Law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two foundational institutions are still poorly understood. This article attempts to help bridge this gap by applying sociolegal concepts to empirical findings about state law's role in family, and especially in marriage, drawn from across several decades and disciplines of South Africanist scholarly research. I sketch the broad outlines of a nuanced theoretical approach for analysing the law-family relationship, which insists that the relationship entails a contingent and dynamic interplay between relatively powerful regulating institutions and relatively powerless regulated populations. …

The High Cost Of Transferring The Dream, Kim Brooks

Articles, Book Chapters, & Popular Press

This paper is part of a larger project where I use the facts in tax decisions to reveal something about who we are. It looks through a small window into the lives of the people who find themselves caught between our collective and their individual expenditure aspirations. More specifically, it explores the circumstances in which individuals find that their outstanding tax debts pose a threat to their ability to maintain ownership of their home. In this paper I use the facts of tax cases for two ends. First, I am interested in disrupting legal knowledge hierarchies. We choose cases to …

The Concept Of The State In American History, William J. Novak

Book Chapters

Debates about the state rage in contemporary America. On the right, libertarian and tea party rhetoric fulminates about shrinking the state or shutting down the government, frequently in hyperbolic terms like the Americans for Tax Reform notion of" drowning it in a bathtub." On the left, concern about the fate of the welfare state and an ever-expanding warfare and penal state produces equally impassioned retorts. Discussion of the American state-its nature, its size, and its uncertain future-dominates the political landscape as perhaps never before.

"Not Just A Common Criminal": The Case For Sentencing Mitigation Videos, Regina Austin

All Faculty Scholarship

Sentencing mitigation or sentencing videos are a form of visual legal advocacy that is produced on behalf of defendants for use in the sentencing phases of criminal cases (from charging to clemency). The videos are typically short (5 to 10 minutes or so) nonfiction films that explore a defendant’s background, character, and family situation with the aim of raising factual and moral issues that support the argument for a shorter or more lenient sentence. Very few examples of mitigation videos are in the public domain and available for viewing. This article provides a complete analysis of the constituent elements of …

Women's Legal History Symposium Introduction: Making History, Felice J. Batlan

All Faculty Scholarship

This essay introduces the Chicago-Kent Symposium on Women's Legal History: A Global Perspective. It seeks to situate the field of women's legal history and to explore what it means to begin writing a transnational women's history which transcends and at times disrupts the nation state. In doing so, it sets forth some of the fundamental premises of women's legal history and points to new ways of writing such histories.

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

Faculty Working Papers

This article makes an originalist argument in defense of the Supreme Court's holding in Loving v. Virginia that antimiscegenation laws are unconstitutional. This article builds on past work by Professor Michael McConnell defending Brown v. Board of Education on originalist grounds and by Professor Calabresi defending strict scrutiny for gender classifications on originalist grounds. Professor Calabresi's work in this area was defended and praise recently by Slate magazine online. The article shows that Loving v. Virginia is defensible using the public meaning originalism advocated for by Justices Antonin Scalia and Clarence Thomas. This article shows that the issue in Loving …

The Evolving International Judiciary, Karen J. Alter

Faculty Working Papers

This article explains the rapid proliferation in international courts first in the post WWII and then the post Cold War era. It examines the larger international judicial complex, showing how developments in one region and domain affect developments in similar and distant regimes. Situating individual developments into their larger context, and showing how change occurs incrementally and slowly over time, allows one to see developments in economic, human rights and war crimes systems as part of a longer term evolutionary process of the creation of international judicial authority. Evolution is not the same as teleology; we see that some international …

Insurance In Sociolegal Research, Tom Baker

All Faculty Scholarship

Insurance has a long history in sociolegal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This essay reviews developments in both bodies of work. Part one examines the relationship between liability insurance and tort law in action using the metaphors of window and frame. Part …

Law And Development: The Way Forward Or Just Stuck In The Same Place?, D. Daniel Sokol

UF Law Faculty Publications

This Essay does three things. First, it provides an overview of Law and Development issues. Second, it responds to other pieces in the symposium "The Future of Law and Development". Third, it suggests that to measure success, Law and Development needs clearer goals.

Maximum Feasible Participation Of The Poor: New Governance, New Accountability, And A 21st Century War On The Sources Of Poverty, Tara J. Melish

Journal Articles

In 1964, President Lyndon B. Johnson called for a Nationwide War on the Sources of Poverty to “strike away the barriers to full participation” in our society. Central to that war was an understanding that given poverty’s complex and multi-layered causes, identifying, implementing, and monitoring solutions to it would require the “maximum feasible participation” of affected communities. Equally central, however, was an understanding that such decentralized problem-solving could not be fully effective without national-level orchestration and support. As such, an Office of Economic Opportunity was established – situated in the Executive Office of the President itself – to support, through …

Go West Young Woman!: The Mercer Girls And Legal Historiography, Kristin Collins

Faculty Scholarship

This essay is a response to Professor Kerry Abrams’s article The Hidden Dimension of Nineteenth-Century Immigration Law, published in Vanderbilt Law Review. The Hidden Dimension tells the story of Washington Territory’s entrepreneurial Asa Shinn Mercer, who endeavored to bring hundreds of young women from the East Coast to the tiny frontier town of Seattle as prospective brides for white men who had settled there. Abrams locates the story of the Mercer Girls, as they were called, in the history of American immigration law. My response locates The Hidden Dimension in American legal historiography, both that branch of American legal historiography …

Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth

Georgetown Law Faculty Publications and Other Works

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …

Spam Jurisprudence, Air Law, And The Rank Anxiety Of Nothing Happening (A Report On The State Of The Art), Pierre Schlag

Publications

In 1969, I saw The Endless Summer. It was a surfer movie about two guys (Robert and Mike) who traveled the world in search of the perfect wave. High art -- it was not. Plus the plot was thin. And it's for sure, there weren't enough girls. But there was one line which, for my generation, will go down as one of the all-time great movie lines ever. And always it was a line delivered by some local to Robert and Mike, the surfer dudes, as they arrived on the scene of yet another dispiritingly becalmed ocean. And every …

Evolutionary Theory And Kinship Foster Care: An Initial Test Of Two Hypotheses, David J. Herring, Jeffrey J. Shook, Sara Goodkind, Kevin H. Kim

Articles

Public child welfare systems increasingly rely on kin to serve as foster parents. This study tests two hypotheses concerning kinship foster care that have been formulated based on evolutionary theory and behavioral biology research. The first hypothesis is that on average foster children are likely to benefit from higher levels of parental investment and realize better outcomes if placed with kin rather than non-kin foster parents. The second hypothesis is that on average children in kinship foster care placements are likely to benefit from higher levels of parental investment and realize better outcomes if placed with some types of kin …

What Screen Do You Have In Mind? Contesting The Visual Context Of Law And Film Studies, Richard K. Sherwin

Articles & Chapters

Law on the screen gives rise to a distinct way of doing jurisprudence. In this sense, it is incumbent upon legal scholars to discern with great care the kind of reality and the way of being that cinematic and electronic screens invite us to assume. Jurisprudence theorizes law in accordance with the cultural and cognitive meaning making tools at its disposal: story frames, character types, social scenarios, metaphors, as well as cultural and socially embedded or constructed emotional patterns, among other narratival and purely sensational elements. Law and film studies thus may be viewed as encompassing a larger concern with …

Still, At The Margins, Emily Houh

Faculty Articles and Other Publications

An anthology by Austin Sarat is reviewed from a critical race perspective. The book's agenda is to show how the law seeks to work in the world, particularly when, why, and how legal decisions respond to social characteristics of those making them as well as those who are subject to them. Also emphasized are the complex relations among the law's various parts (e.g., judges and jurors, police and prosecutors, appellate and trial courts). The book is organized around the law's paradoxes, purposes of the law which can be somewhat mutually exclusive. Many of the leading voices in the law and …

Lawyering For A Cause And Experiences From Abroad, Jayanth K. Krishnan

Articles by Maurer Faculty

For more than a decade, there has been a steady growth in what is now commonly referred to as the 'cause lawyering' literature. Partly as a response to those who were critical of the legal profession during the 1970s and 1980s, cause lawyering scholars have sought to rebut these critics' charges, as well as more comprehensively illustrate what, why, and how cause lawyers do what they do. While the critics of cause lawyers on the one hand, and cause lawyering scholars on the other, have made enormous contributions to the debate, only recently has the discourse shifted to examining an …