Law Commons^™

Reaching And Teaching Millennials: Designing The Future Of Student Services, Brian T. Detweiler, Kimberly Mattioli, Mike Martinez Jr.

Law Librarian Journal Articles

Today's students have come to expect library services that are quite different from their predecessors and law librarians must evolve to meet their needs. As law libraries in the United States face the realities of declining enrolment and decreasing budgets, it is imperative that we find new and creative ways to build positive relationships with our students while also preparing them for the realities of practicing law in an environment driven by rapid technological change. Three law librarians from the United States, Brian Detweiler, Kimberly Mattioli, and Mike Martinez, Jr., discuss their successes and failures in reaching out to their …

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

Mens Rea In Comparative Perspective, Luis E. Chiesa

Journal Articles

This Essay compares and contrasts the American and civilian approaches to mens rea. The comparative analysis generates two important insights. First, it is preferable to have multiple forms of culpability than to have only two. Common law bipartite distinctions such as general and specific intent fail to fully make sense of our moral intuitions. The same goes for the civilian distinction between dolus (intent) and culpa (negligence). Second, attitudinal mental states should matter for criminalization and grading decisions. Nevertheless, adding attitudinal mental states to our already complicated mens rea framework may end up confusing juries instead of helping them. …

Neuromarks, Mark Bartholomew

Journal Articles

This Article predicts trademark law’s impending neural turn. A growing legal literature debates the proper role of neuroscientific evidence. Yet outside of criminal law, analysis of neuroscientific evidence in the courtroom has been lacking. This is a mistake given that most of the applied research into brain function focuses on building better brands, not studies of criminal defendants’ grey matter. Judges have long searched for a way to measure advertising’s psychological hold over consumers. Advertisers already use brain imaging to analyze a trademark’s ability to stimulate consumer attention, emotion, and memory. In the near future, businesses will offer a neural …

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

Journal Articles

No abstract provided.

Providing Legal Assistance In Times Of Crisis, Brian T. Detweiler

Law Librarian Other Scholarship

No abstract provided.

E-Notice, Christine P. Bartholomew

Journal Articles

Social media platforms and smartphone manufacturers face class action lawsuits, but how open are federal courts to using these very technologies to notify members of a class action? This Article details the results from an empirical analysis of over 2700 federal class notice decisions. It finds class notice changing, but very slowly. Supreme Court precedent demands a dynamic standard for class action notice. However, fears of change, technology, and imprecision keep courts tethered to twentieth-century modes of communication. This judicial fear encumbers E-Notice—at a cost to the utility of class action procedures.

Democratizing Interpretation, Anya Bernstein

Journal Articles

Judges interpreting statutes sometimes seem eager to outsource the work. They quote ordinary speakers to define a statutory term, point to how an audience understands it, or pin it down with interpretive canons. But sometimes conduct that appears to diminish someone’s power instead sneakily enhances it. So it is, I argue, with these forms of interpretive outsourcing. Each seems to constrain judges’ authority by handing the reins to someone else, giving interpretation a democratized veneer. But in fact each funnels power right back to the judge.

The outsourcing approaches I describe show a disconnect between the questions judges pose and …

Wilfrid J. Waluchow: El Positivismo Incluyente Y El Constitucionalismo Del “Árbol Vivo” [Wilfrid J. Waluchow: Inclusive Legal Positivism And The Understanding Of Constitutionalism In The Living Three], Jorge Luis Fabra-Zamora

Journal Articles

Este artículo presenta los dos temas centrales de la filosofía del derecho de Wilfrid J. Waluchow –el positivismo incluyente y el constitucionalismo del “árbol vivo”– con una exposición crítica de sus principales tesis, los contextos en los que surgen y las principales objeciones y desaf íos a los que aún deben responder.

[This paper addresses the two main Wilfred J. Waluchow’s research interests on philosophy of law, namely Inclusive Legal Positivism and the Constitutionalism presented in The Living Tree. The author provides us with a critical exposition of Waluchow’s main theses and a proper background where Waluchow’s philosophy is set, …

Reforming Restrictive Housing: The 2018 Asca-Liman Nationwide Survey Of Time-In-Cell, Judith Resnik, Anna Vancleave, Kristen Bell, Alexandra Harrington, Gregory Conyers, Catherine Mccarthy, Jenny Tumas, Annie Wang

Other Scholarship

Reforming Restrictive Housing: The 2018 ASCA-Liman Nationwide Survey of Time-in-Cell is the fourth in a series of research projects co-authored by the Association of State Correctional Administrators (ASCA) and the Arthur Liman Center at Yale Law School. These monographs provide a unique, longitudinal, nationwide database. The topic is “restrictive housing,” often termed “solitary confinement,” and defined as separating prisoners from the general population and holding them in cells for an average of 22 hours or more per day for 15 continuous days or more.

The 2018 monograph is based on survey responses from 43 prison systems that held 80.6% of …

The Law Of Advertising Outrage, Mark Bartholomew

Journal Articles

This article examines the stimulation of audience outrage, both as a marketing strategy and as a subject of legal regulation. A brief history of advertising in the United States reveals repeated yet relatively infrequent attempts to attract consumer attention through overt transgressions of social norms relating to sex, violence, race, and religion. Natural concerns over audience reaction limited use of this particular advertising tactic as businesses needed to be careful not to alienate prospective purchasers. But now companies can engage in “algorithmic outrage”—social media advertising meant to stimulate individual feelings of anger and upset—with less concern for a consumer backlash. …

The Problem Of Wage Theft, Nicole Hallett

Journal Articles

Wage theft inflicts serious harm on America's working poor but has received little attention from policymakers seeking to address income inequality in the United States. This Article provides a comprehensive analysis of the causes of the wage theft crisis and the failure of the current enforcement regime to address it. It argues that existing policy reforms will fail, because they misunderstand the nature of the crisis and the incentives that employers face when deciding to steal workers' wages. It then proposes series of reforms that could work, while arguing that changing the economic calculus alone will be unlikely to solve …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

2018 Aba Tech Show Review, Brian T. Detweiler

Law Librarian Other Scholarship

No abstract provided.

Making Room For Children: A Response To Professor Estin On Immigration And Child Welfare, Rick Su

Journal Articles

No abstract provided.

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.

The Model Penal Code, Mass Incarceration, And The Racialization Of American Criminal Law, Luis E. Chiesa

Journal Articles

No abstract provided.

Comparative Analysis As An Antidote To Tunnel Vision In Criminal Law Reform: The Example Of Complicity, Luis E. Chiesa

Journal Articles

In the context of criminal law reform, the tunnel vision that is produced by deeply embedded paradigms or patterns of criminality has the effect of stifling creativity. If left unchecked, the assumptions that serve as the backdrop to our criminal justice system will likely prevent reformers from giving serious consideration to alternatives that are in tension with the dominant patterns of criminality. I will end by arguing that one way of avoiding this outcome is by engaging in the comparative analysis of criminal law. Comparative analysis serves as a kind of “second opinion” that may help criminal law reformers to …

Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the …

Francesco Palermo & Karl Kössler's Comparative Federalism: Constitutional Arrangements And Case Law (Book Review), James A. Gardner

Book Reviews

No abstract provided.

Models Of Other-Regarding Preferences And Redistribution, Matthew Dimick, David Rueda, Daniel Stegmueller

Journal Articles

Despite the increasing popularity of comparative work on other-regarding preferences, the implications of different models of altruism are not always fully understood. This article analyzes different theoretical approaches to altruism and explores what empirical conclusions we should draw from them, paying particular attention to models of redistribution preferences where inequality explicitly triggers other-regarding motives for redistribution. While the main contribution of this article is to clarify the conclusions of these models, we also illustrate the importance of their distinct implications by analyzing Western European data to compare among them. We draw on individual-level data from the European Social Survey fielded …

Understanding The Complicated Landscape Of Civil War Monuments, Jessica Owley, Jess Phelps

Journal Articles

This essay examines the controversy regarding confederate monuments and attempts to contextualize this debate within the current preservation framework. While much attention has been paid to this topic over the past year, particularly with regard to “public” monuments, such discussion has generally failed to recognize the varied and complicated property law layers involved—which can fundamentally change the legal requirements for modification or removal. We propose a spectrum or framework for assessing these resources ranging from public to private, and we explore the messy space in-between these poles where most monuments actually fall. By highlighting these categories, we provide an initial …

The #Buffalo 25 And The New Era Of Immigration Enforcement, Nicole Hallett

Journal Articles

No abstract provided.

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as …

Defining The Economic Pie, Not Dividing Or Maximizing It, Martha T. Mccluskey

Journal Articles

This essay challenges the question that drives much of legal analysis: whether to maximize or divide the “economic pie.” Regardless of the answer, this question skews legal analysis and rests on dubious economics. This framing binary inherently presents economic maximizing as the presumptive norm, represented as superior to socioeconomic distribution in both spatial and temporal dimensions. By definition, economic “maximizing” stands larger in scope and first in order. The essay first critiques the idea that legal analysis can aim to make the economy bigger without engaging contested questions of value and politics, showing how this misleading separation of quantity from …

To Dress For Dinner: Teaching Law In A Bureaucratic Age, John Henry Schlegel

Journal Articles

No abstract provided.

Are We Economic Engines Too? Precarity, Productivity, And Gender, Martha T. Mccluskey

Journal Articles

No abstract provided.

Unforeseen Land Uses: The Effect Of Marijuana Legalization On Land Conservation Programs, Jessica Owley

Journal Articles

This Article explores the tension between land conservation and marijuana cultivation in the context of legalization. The legalization of marijuana has the potential to shift the locations of marijuana cultivation. Where cultivation need no longer be surreptitious and clandestine, growers may begin to explore sanctioned growing sites and methods. Thus, the shift to legalization may be accompanied by environmental and land-use implications. Investigating commercial-scale marijuana cultivation, this Article details how, in some ways, legalization can reduce environmental impacts of marijuana cultivation while also examining tricky issues regarding tensions between protected lands and marijuana cultivation. If we treat cultivation of marijuana …

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond …

Saving Species, One Individual At A Time: Zoo Veterinarians Between Welfare And Conservation, Irus Braverman

Journal Articles

The role of zoo veterinarians has changed significantly in the last several decades, reflecting and revealing broader transformations in zoo culture, especially among North American accredited zoos. This article draws on several interviews with prominent zoo vets, as well as on regulations that pertain to their work, to highlight their current position at the nexus of animal health and welfare, on the one hand, and of species conservation, on the other hand. The transformation of zoos into conservation institutions in particular has resulted in the vets’ novel focus on the sustainability of populations and their intensified involvement in in situ …