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Articles 1 - 26 of 26
Full-Text Articles in Law
Toward Politically Stable Nlrb Lawmaking: Rulemaking Vs. Adjudication, Charlotte Garden
Toward Politically Stable Nlrb Lawmaking: Rulemaking Vs. Adjudication, Charlotte Garden
Faculty Articles
For the last several decades, there have been two constants with respect to the National Labor Relations Board. First, the modern Board has been notoriously reluctant to use its rulemaking authority; until recently, it had made only one significant substantive rule via the notice-and-comment process. Second, commentators academics, lawyers, judges, and politicians have issued a steady stream of calls for the Board to make law via rulemaking rather than through adjudications, arguing for the rulemaking process on both pragmatic and normative grounds. In recent years, however, the first of these has changed: the Board has engaged in two significant rulemaking …
World Poverty And Food Insecurity, Carmen Gonzalez
World Poverty And Food Insecurity, Carmen Gonzalez
Faculty Articles
Our present global economic order produces a stable pattern of widespread malnutrition and starvation among the poor, with some eighteen million persons dying each year from poverty related causes, and there are likely to be feasible alternative regimes that /ill not produce similarly severe deprivations. If this is so, the victims of avoidable deprivations are not merely poor and starving, but impoverished and starved through an institutional order coercively imposed upon them. There is an injustice to this economic order, which it would be wrong for its more affluent participants to perpetuate.
An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington (Report), Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman, Mark A. Larranaga
An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington (Report), Peter A. Collins, Robert C. Boruchowitz, Matthew J. Hickman, Mark A. Larranaga
Faculty Articles
Professor Boruchowitz and colleagues published the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought.
Mitigating Foul Blows, Mary Bowman
Mitigating Foul Blows, Mary Bowman
Faculty Articles
For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel's failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts' attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary. Cognitive bias research illuminates the reasons for, and …
A Homeless Bill Of Rights (Revolution), Sara Rankin
A Homeless Bill Of Rights (Revolution), Sara Rankin
Faculty Articles
This article examines an emerging movement so far unexplored by legal scholarship: the proposal and, in some states, the enactment of a Homeless Bill of Rights. This article presents these new laws as a lens to re-examine storied debates over positive and social welfare rights. Homeless bills of rights also present a compelling opportunity to re-examine rights-based theories in the context of social movement scholarship. Specifically, could these laws be understood as part of a new “rights revolution”? What conditions might influence the impact of these new laws on the individual rights of the homeless or the housed? On American …
The Green To Blue Pipeline: Defense Contractors And The Police Industrial Complex, Karena Rahall
The Green To Blue Pipeline: Defense Contractors And The Police Industrial Complex, Karena Rahall
Faculty Articles
Images of police in tactical gear, pointing automatic weapons at unarmed demonstrators in Ferguson, Missouri, represented a flashpoint in public awareness that American police are rapidly militarizing. Federal grants have been quietly arming police with tanks, drones, and uniforms more suited to waging war than patrolling the streets. As police have acquired more military gear, SWAT teams and deployments have proliferated. Even small towns receive surplus military materiel to fight the “wars” on drugs and terrorism. In addition, police training uses a military approach that threatens to transform the traditional police mandate of protecting and serving into one of engaging …
Tracermarks: A Proposed Information Intervention, Margaret Chon
Tracermarks: A Proposed Information Intervention, Margaret Chon
Faculty Articles
We live in a world of information. But paradoxically, we simultaneously suffer from a scarcity of “smart” information: information that is traceable and therefore reliable, trust-worthy, and ultimately verifiable. Combining the insights of global governance theory with behavioral economics, this Article approaches this challenge from a knowledge governance framework, sets forth various reasons for this unnecessary deficit and proposes an intervention to address it — tracermarks. Envisioned as a hybrid of trademarks and certification marks, tracermarks would encourage various stakeholders to disclose, disseminate and ultimately make decisions about previously hidden qualities of specific goods and services throughout global value networks. …
U.S. Tax Imperialism, Diane Lourdes Dick
U.S. Tax Imperialism, Diane Lourdes Dick
Faculty Articles
This article uses historical and legal analysis to demonstrate how U.S. domination over Puerto Rico's tax and fiscal policies has been the centerpiece of a colonial system and an especially destructive form of economic imperialism. Specifically, this article develops a novel theory of U.S. tax imperialism in Puerto Rico, chronicling the sundry ways in which the United States has used tax laws to exert economic dominance over its less developed island colony. During the colonial period, U.S. officials wrote and revised Puerto Rican tax laws to serve U.S. economic interests. In more recent years, U.S. tax laws have disadvantaged Puerto …
Toward A Clinical Pedagogy Of Externship, Elizabeth Ford
Toward A Clinical Pedagogy Of Externship, Elizabeth Ford
Faculty Articles
Externships offer a tantalizing experiential option for law schools. Students are hungry for the real-world experience, the networking potential, and the chance to take the skills they have learned in the classroom to the next level. Administrators love externships because of their high enrollment, low cost nature: externships leverage small amounts of resources from hundreds of outside organizations. Faculty appreciate these programs because they provide students with context and skills, inspire them in the doctrinal classroom, and require little diversion of resources from the more traditional faculty ranks. However, the danger of grasping too tightly to externships as the experiential …
The Efficiency Norm, Brooke Coleman
The Efficiency Norm, Brooke Coleman
Faculty Articles
Efficient is not synonymous with inexpensive. Rather, it refers to an optimal tradeoff between cost and function; a system may simultaneously become both less expensive and less efficient, if the cost savings are offset by an even greater loss of productivity. Yet, this Article argues that if we conceive of the rules and doctrines governing civil procedure as a product, the Judiciary, Congress, and federal civil rulemakers have confused cheap with efficient. They have made this version of “efficiency” — what this Article calls the efficiency norm — the dominant norm of the civil litigation system. This Article argues that …
The Deliberation Paradox And Administrative Law, Bill Sherman
The Deliberation Paradox And Administrative Law, Bill Sherman
Faculty Articles
Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the …
Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts
Asymmetry As Fairness: Reversing A Peremptory Trend, Anna Roberts
Faculty Articles
A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson’s evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach — unequal allocation of peremptory challenges to prosecution and defense — and yet many state legislatures have recently abandoned asymmetry, …
Michael Sam: Upending Nfl Heteronormativity With A Piece Of Cake, Bryan Adamson
Michael Sam: Upending Nfl Heteronormativity With A Piece Of Cake, Bryan Adamson
Faculty Articles
This commentary explores the root of the virulent reactions to openly gay defensive end Michael Sam’s draft by the National Football League’s St. Louis Rams. Applauding his selection, the commentary offers a detailed analysis of the ESPN video that showed Michael Sam receiving the news with his male partner Vito Cammisano, their kisses, and cake smearing celebration. The essay then posits as a central thesis that it was the “cake play” which caused the most discomfit. In doing so, the essay examines Sam’s selection event through a lens of heteronormative constructs and explains how, for fans and the institution alike, …
Buyer Power And Healthcare Prices, John B. Kirkwood
Buyer Power And Healthcare Prices, John B. Kirkwood
Faculty Articles
One major reason why healthcare costs are much higher in America than in other countries in that our prices are exceptionally high. In this article, I address whether we ought to rely more heavily on buyer power to reduce those prices, as other nations do. I focus on two sectors where greater buyer could easily be exercised: prescription drugs covered by Medicare and hospital and physician services covered by private insurance. I conclude that the biggest buyer of all, the federal government, should be allowed to negotiate Medicare prescription drug prices. That would substantially reduce the prices of many branded …
Wanted Dead & Alive: Modern Law, Universality, And The Colonial Exception, Tayyab Mahmud
Wanted Dead & Alive: Modern Law, Universality, And The Colonial Exception, Tayyab Mahmud
Faculty Articles
The ubiquitous exclusion/inclusion binary is not a helpful frame to measure the depth and reach of constitutionalism and human rights. Inscription of the law over subjugated bodies and spaces continues to subscribe to an enduring grammar of modernity’s engagement with alterity. This grammar is not one of exclusion, but, rather, forms a three-pronged matrix engagement: engulfment/exception/subordination. The Other is not “discovered,” left out or left alone — excluded from operations of constitutional regimes, and then gradually incorporated as a rights-bearing subject. The Other is always-already engulfed in operations of modern law, placed in zones of exception, and positioned in states …
Bridging The North-South Divide: International Environmental Law In The Anthropocene, Carmen Gonzalez
Bridging The North-South Divide: International Environmental Law In The Anthropocene, Carmen Gonzalez
Faculty Articles
This article calls for a fundamental reorientation of international environmental law to bridge the North-South divide and respond to the ecological crises of the Anthropocene. Such a reconceptualization of international environmental law must be normatively grounded in respect for nature and in the quest for environmental justice within, as well as between, countries. International environmental law must directly challenge the relentless drive toward economic expansion and unbridled exploitation of people and nature rather than merely attempt to mitigate its excesses. An essential step toward such a reconceptualization is to examine the ways in which international law has historically engaged with …
Foreword – Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud
Foreword – Latcrit Praxis @ Xx: Toward Equal Justice In Law, Education And Society, Tayyab Mahmud
Faculty Articles
This article marks the twentieth anniversary of Latina and Latino Critical Legal Theory or the LatCrit organization, an association of diverse scholars committed to the production of knowledge from the perspective of Outsider or OutCrit jurisprudence. The article first reflects on the historical development of LatCrit’s substantive, methodological, and institutional commitments and practices. It argues that these traditions were shaped not only by its members’ goals and commitments but also by the politics of backlash present at its birth in the form of the “cultural wars,” and which have since morphed into perpetual “crises” grounded in neoliberal policies. With this …
Applied Legal Storytelling: A Bibliography, Christopher Rideout
Applied Legal Storytelling: A Bibliography, Christopher Rideout
Faculty Articles
This article contains a bibliography on the movement known as Applied Legal Storytelling. Those who are interested in Applied Legal Storytelling examine the use of stories—and of storytelling or narrative elements—in law practice, in law school pedagogy, and within the law generally. The Applied Legal Storytelling movement is largely associated with a series of biennial academic conferences that began in 2007, and the majority of the entries in this bibliography originated with presentations at one of those conferences. But the bibliography also acknowledges a number of articles that pre-date 2007 and that could be called precursors. The bibliography first lists …
Grassroots Shareholder Activism In Large Commercial Bankruptcies, Diane Lourdes Dick
Grassroots Shareholder Activism In Large Commercial Bankruptcies, Diane Lourdes Dick
Faculty Articles
In early 2013, a group of similarly situated individuals gathered to discuss how they could defend themselves against a grave potential injustice. Time was of the essence, so they would need to act quickly to preserve their rights. Fortunately, their path to justice was already paved: the matter was pending in federal court, and each had standing to appear and be heard. But frustratingly, this seemingly well-paved path was barred to them. These individuals, who were technically parties to the proceeding, were virtually invisible to the court and largely disenfranchised in settlement negotiations. Striving to overcome these obstacles, they persisted …
Environmental Justice, Human Rights, And The Global South, Carmen Gonzalez
Environmental Justice, Human Rights, And The Global South, Carmen Gonzalez
Faculty Articles
From the Ogoni people devastated by oil drilling in Nigeria to the Inuit and other indigenous populations threatened by climate change, communities disparately burdened by environmental degradation are increasingly framing their demands for environmental justice in the language of environmental human rights. Domestic and international tribunals have concluded that failure to protect the environment violates a variety of human rights (including the rights to life, health, food, water, property, and privacy; the collective rights of indigenous peoples to their ancestral lands and resources; and the right to a healthy environment). Some scholars have questioned the utility of the human rights …
Civil-Izing Federalism, Brooke Coleman
Civil-Izing Federalism, Brooke Coleman
Faculty Articles
When Chief Justice Roberts and Justice Alito joined the United States Supreme Court, most commentators predicted it would become more conservative. Indeed, many believed that the reinvigorated federalism revolution under Chief Justice Rehnquist would, if anything, become more robust under the new chief. To a large degree, those commentators were right; the Court has decided numerous hotly contested federalism cases along predictable ideological lines. But there are some important counterexamples in the Court’s federalism jurisprudence. In a list of cases about access to plaintiff-friendly state courts, the Justices seem to abandon their federalism principles. Instead, the liberal wing of the …
Incarcerated Child Birth And “Broader Birth Control”: Autonomy, Regulation, And The State, Deborah Ahrens
Incarcerated Child Birth And “Broader Birth Control”: Autonomy, Regulation, And The State, Deborah Ahrens
Faculty Articles
In recent years, the scholarly literature, the journalistic press, and even pop culture have begun to grapple with the many ways in which prison life works to degrade and dehumanize female prisoners, particularly pregnant women and new mothers. These voices are drawn — quite understandably — to the worst abuses, to practices (such as the shackling of laboring women) that underscore the dichotomy between the brutality of prison life and the allegedly autonomous norms governing pregnancy and parenting in the outside world. This article supplements — and in crucial places challenges — the narrative implicit in those depictions by, first, …
Precarious Existence And Capitalism: A Permanent State Of Exception, Tayyab Mahmud
Precarious Existence And Capitalism: A Permanent State Of Exception, Tayyab Mahmud
Faculty Articles
The contemporary neoliberal era is marked by an exponential expansion of contingent and precarious labor markets. In this context, the construct of precarity emerged to signify labor conditions of permanent insecurity and precariousness. Coming at the heels of the era of Keynesian welfare, precarity is mostly seen as an exception to the normal trajectory of capitalist formations. The basic argument of this paper is that under capitalism, for the working classes precarious existence is the norm rather than the exception. Precarity is the outcome not only of insecurities of labor markets but also of capital’s capture and colonization of life …
Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman
Abrogation Magic: The Rules Enabling Act Process, Civil Rule 84, And The Forms, Brooke Coleman
Faculty Articles
The Committee on the Federal Rules of Practice and Procedure seeks to abrogate Federal Rule of Civil Procedure 84 and its attendant Official Forms. Poof - after seventy-six years of service, the Committee will make Rule 84 and its forms disappear. This Essay argues, however, that like a magic trick, the abrogation sleight of hand is only a distraction from the truly problematic change the Committee is proposing. Abrogation of Rule 84 and the Official Forms violates the Rules Enabling Act process. The Forms are inextricably linked to the Rules; they cannot be eliminated or amended without making a change …
Strategic Dodging Of Esa Listing Determinations, Madeline Kass
Strategic Dodging Of Esa Listing Determinations, Madeline Kass
Faculty Articles
Endangered Species Act (ESA) listing determinations create a focal point for controversy and litigation. A decision to list can elicit the full force of the ESA’s “pit bull” regulatory authorities and, potentially, result in onerous regulatory constraints on land uses. A decision not to list can continue the status quo and, potentially, result in species extinction. Increasingly, efforts to avoid ESA protective measures include anticipatory efforts to avert, divert, or postpone listing determinations. This article describes some of these “dodging” efforts and whether they are likely to benefit at-risk species.
Constitutional Theory, Constitutional Culture, Andrew Siegel
Constitutional Theory, Constitutional Culture, Andrew Siegel
Faculty Articles
In evaluating the success of the American constitutional system, constitutional theorists often focus their attention on the broad structures through which constitutional law is made--for example, the existence of multi-member courts a majority of whose members usually must agree on the text of a single opinion or the difference in training and life experiences that judges have in comparison with legislators. The same theorists tend to pay little attention to a related set of institutional arrangements that are more recent in their development--for example, the proliferation of amicus briefs filed by advocacy groups, the substantial increase in the use of …