Law Commons^™

A Prolegomenon To The Study Of Racial Ideology In The Era Of International Human Rights, Justin Deystone

Publications

There is no critical race approach to international law. There are Third World approaches, feminist approaches, economic approaches, and constitutional approaches, but notably absent in the catalogue is a distinct view of international law that takes its point of departure from the vantage of Critical Race Theory (CRT), or anything like it. Through a study of racial ideology in the history of international legal thought, this Article offers the beginnings of an explanation for how this lack of attention to race and racism came to be, and why it matters today.

Women’S Votes, Women’S Voices, And The Limits Of Criminal Justice Reform, 1911–1950, Carolyn B. Ramsey

Publications

Deriving its vigor from the work of grassroots organizations at the state and local levels, the League of Women Voters (LWV) sought, in the first half of the twentieth century, to provide newly enfranchised women with a political education to strengthen their voice in public affairs. Local branches like the San Francisco Center learned from experience—through practical involvement in a variety of social welfare and criminal justice initiatives. This Article, written for a symposium commemorating the centennial of the Nineteenth Amendment, assesses the role of LWV leaders in California and especially San Francisco in reforming three aspects of the criminal …

Introduction To The Symposium: The Stakes For Critical Legal Theory, Elizabeth S. Anker, Justin Deystone

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No abstract provided.

Abortion Rights In The Supreme Court: A Tale Of Three Wedges, Jennifer S. Hendricks

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No abstract provided.

How The Supreme Court Talks About The Press (And Why We Should Care), Helen Norton

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No abstract provided.

Deep Cuts: Four Critiques Of Legal Ideology, Justin Deystone, Akbar Rasulov

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This Article begins an effort to rekindle the intellectual tradition of critical legal theory. The context for the project is significant. On the one hand is the grip of a social crisis, the contours of which continue to confound the commentariat. Racism, xenophobia, gendered violence, migration and nation, climate change, health pandemics, political corruption. The parade is as intimidating as it is spectacular. On the other hand, the very tools of criticism we depend upon in identifying these characters in the parade, much less the spectacle of the parade itself, are themselves in crisis. There is, in a word, a …

Law, Labor, And The Hard Edge Of Progressivism: The Legal Repression Of Radical Unionism And The American Labor Movement's Long Decline, Ahmed White

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No abstract provided.

Decarceration And Default Mental States, Benjamin Levin

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This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of …

Transformative Silence And Protest, Deborah J. Cantrell

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Social movement protests have become common place in the last several years. Images come easily to mind of protestors marching down streets holding signs and chanting. Just as easily, images come to mind of counter-protestors yelling back, and law enforcement engaging protestors, often trying to control them with notable force. This Article recognizes that protestors often engage with speech, silence and the law in very pragmatic, but important ways. How does a locality handle permitting for protests? Are there noise restrictions to know about? How likely will it be that law enforcement will be present and making arrests? If there …

The Fourth Amendment’S Forgotten Free-Speech Dimensions, Aya Gruber

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No abstract provided.

Best Regulatory Practices For Deep Seabed Mining: Lessons Learned From The U.S. Surface Mining Control And Reclamation Act, Mark S. Squillace

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Mining operations around the globe are responsible for significant environmental problems. These problems often stem from poor planning, inadequate regulatory standards, and a failure of regulatory oversight, particularly with respect to inspection and enforcement regimes. Mining regulators are often hamstrung, however, by inadequate information about potential impacts before operations commence. This problem is particularly daunting when considering mining on ocean floors where information about the environment is limited, and the impacts of mining are poorly understood.

As the International Seabed Authority (ISA) develops a comprehensive regulatory program for deep seabed mining, they should draw on the experience gained in regulating …

Zooming Into The Future Of Skills-Based Teaching, Paige L. Wilson, Evan Daryl Walton, Michael Murphy, Emily Bucholz

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No abstract provided.

A Most Ingenious Paradox: Competition Vs. Coordination In Mutual Fund Policy, Ann Lipton

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No abstract provided.

"The Cornerstone Of The Stability Of Our Government": The Forgotten Penalty Clause And Electoral Reform In The Aftermath Of The 2020 Election, Delaram Takyar

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The 2020 presidential election, which was preceded by months of efforts by Republican party members to disenfranchise voters during a global pandemic, highlighted the United States' historic need for electoral reform. The tools for this reform might already exist in the Penalty Clause of the Fourteenth Amendment, which provides a built-in remedy—reduced representation in Congress—in cases where a state abridges the voting rights of its citizens. This Remark provides an overview of the history of the long-neglected Penalty Clause, including a discussion of how important its drafters viewed its role, as well as practical proposals for ways it could be …

Prevention And Cure, Michael Pappas

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Laws can address harms in two distinct yet intersecting ways. They may intervene to prevent harms from occurring, or they may allow harms to arise and then try to cure them.

Whether operating separately or in tandem, prevention and cure approaches pervade laws, policies, and individual actions. A landlord may exercise prevention via a "no pets " policy, or she may opt for cure by requiring pet owners to pay a damage deposit and cleaning fee. Alternatively, a combination of prevention and cure governs motorist behavior. Speed limits seek to prevent accidents while negligence liability provides compensation for accident victims. …

Climate Changes Property: Disasters, Decommodification, And Retreat, Michael Pappas, Victor B. Flatt

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No abstract provided.

Media Freedom And Technological Change, Vivek Krishnamurthy, Mark Latonero, Rachel Kuchma, Elif Nur Kumru, Geneviève Plumptre

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No abstract provided.

Imagining The Progressive Prosecutor, Benjamin Levin

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As criminal justice reform has attracted greater public support, a new brand of district attorney candidate has arrived: the “progressive prosecutors.” Commentators increasingly have keyed on “progressive prosecutors” as offering a promising avenue for structural change, deserving of significant political capital and academic attention. This Essay asks an unanswered threshold question: what exactly is a “progressive prosecutor”? Is that a meaningful category at all, and if so, who is entitled to claim the mantle? In this Essay, I argue that “progressive prosecutor” means many different things to many different people. These differences in turn reveal important fault lines in academic …

Wage Theft Criminalization, Benjamin Levin

Publications

Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

Decolonizing Indigenous Migration, Angela R. Riley, Kristen A. Carpenter

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As global attention turns increasingly to issues of migration, the Indigenous identity of migrants often remains invisible. At the U.S.-Mexico border, for example, a significant number of the individuals now being detained are people of indigenous origin, whether Kekchi, Mam, Achi, Ixil, Awakatek, Jakaltek or Qanjobal, coming from communities in Venezuela, Honduras, Guatemala and other countries. They may be leaving their homelands precisely because their rights as Indigenous Peoples, for example the right to occupy land collectively and without forcible removal, have been violated. But once they reach the United States, they are treated as any other migrants, without regard …

Shareholder Primacy And The Moral Obligation Of Directors, Mark J. Loewenstein, Jay Geyer

Publications

One of the most written-about and important topics in corporate law is the fiduciary obligations of corporate directors. Increasingly, critics of American capitalism have urged that corporations, and implicitly, corporate directors, act in a more socially responsible fashion and thus eschew the notion that shareholder primacy is the exclusive guide to a director’s fiduciary duty. Under this view, directors must consider the effect of their actions on “stakeholders” other than shareholders and be guided by morality—doing the right thing—when making business judgments.

When directors move away from shareholder primacy, however, decision-making becomes more difficult and problematic. This article analyzes the …

Researching Colorado Employment Law, Jill Sturgeon

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No abstract provided.

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

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No abstract provided.

Introduction To The Symposium On The Impact Of Indigenous Peoples On International Law, S. James Anaya, Antony Anghie

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No abstract provided.

Policing And "Bluelining", Aya Gruber

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In this Commentary written for the Frankel Lecture symposium on police killings of Black Americans, I explore the increasingly popular claim that racialized brutality is not a malfunction of policing but its function. Or, as Paul Butler counsels, “Don’t get it twisted—the criminal justice system ain’t broke. It’s working just the way it’s supposed to.” This claim contradicts the conventional narrative, which remains largely accepted, that the police exist to vindicate the community’s interest in solving, reducing, and preventing crime. A perusal of the history of organized policing in the United States, however, reveals that it was never mainly about …

Pandemic Emotions: The Good, The Bad, And The Unconscious —Implications For Public Health, Financial Economics, Law, And Leadership, Peter H. Huang

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Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and …

Catalyzing Privacy Law, Anupam Chander, Margot E. Kaminski, William Mcgeveran

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The United States famously lacks a comprehensive federal data privacy law. In the past year, however, over half the states have proposed broad privacy bills or have established task forces to propose possible privacy legislation. Meanwhile, congressional committees are holding hearings on multiple privacy bills. What is catalyzing this legislative momentum? Some believe that Europe’s General Data Protection Regulation (GDPR), which came into force in 2018, is the driving factor. But with the California Consumer Privacy Act (CCPA) which took effect in January 2020, California has emerged as an alternate contender in the race to set the new standard for …

Sanctuary Cities And The Power Of The Purse: An Executive Dole Test, Douglas M. Spencer

Publications

A constitutional clash is brewing. Cities and counties are flexing their muscles to frustrate national immigration policy while the federal Executive is threatening to interfere with local law enforcement decision making and funding. Although the federal government generally has plenary authority over immigration law, the Constitution forbids the commandeering of state and local officials to enforce federal law against their will. One exception to this anti-commandeering principle is the Spending Clause of Article I that permits Congress to condition the receipt of federal funds on compliance with federal law. These conditions, according to more than 30 years of Supreme Court …

The Political (Mis)Representation Of Immigrants In Voting, Ming H. Chen, Hunter Knapp

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Who is a member of the political community? What barriers to inclusion do immigrants face as outsiders to this political community? This Essay describes several barriers facing immigrants and naturalized citizens that impede their political belonging. It critiques these barriers on the basis of immigrants and foreign-born voters having rights of semi-citizenship. By placing naturalization backlogs, voting restrictions, and reapportionment battles in the historical context of voter suppression, it provides a descriptive and normative account of the political misrepresentation of immigrants.

Getting Real About Procedure: Changing How We Think, Write And Teach About American Civil Procedure, Suzette M. Malveaux

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No abstract provided.