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Full-Text Articles in Law

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis Nov 2015

Declining Controversial Cases: How Marriage Equality Changed The Paradigm, Elena Baylis

Articles

Until recently, state attorneys general defended their states’ laws as a matter of course. However, one attorney general’s decision not to defend his state’s law in a prominent marriage equality case sparked a cascade of attorney general declinations in other marriage equality cases. Declinations have also increased across a range of states and with respect to several other contentious subjects, including abortion and gun control. This Essay evaluates the causes and implications of this recent trend of state attorneys general abstaining from defending controversial laws on the grounds that those laws are unconstitutional, focusing on the marriage equality cases as …


Reflections On Comity In The Law Of American Federalism, Gil Seinfeld Apr 2015

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Articles

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …


Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin Jan 2015

Intentional Discrimination In Establishment Clause Jurisprudence, Caroline Mala Corbin

Articles

In Town of Greece, New York v. Galloway, the Supreme Court upheld a legislative prayer practice with overwhelmingly Christian prayers in part because the Court concluded that the exclusion of all other religions was unintentional. This requirement-that a religiously disparate impact must be intentional before it amounts to an establishment violation-is new for Establishment Clause doctrine. An intent requirement, however, is not new for equal protection or free exercise claims. This Essay explores the increased symmetry between the Establishment Clause, the Equal Protection Clause, and the Free Exercise Clause. It argues that many of the critiques of the intentional …


Empirical Doctrine, Jessie Allen Jan 2015

Empirical Doctrine, Jessie Allen

Articles

We can observe and measure how legal decision makers use formal legal authorities, but there is no way to empirically test the determinative capacity of legal doctrine itself. Yet, discussions of empirical studies of judicial behavior sometimes conflate judges’ attention to legal rules with legal rules determining outcomes. Doctrinal determinacy is not the same thing as legal predictability. The extent to which legal outcomes are predictable in given contexts is surely testable empirically. But the idea that doctrine’s capacity to produce or limit those outcomes can be measured empirically is fundamentally misguided. The problem is that to measure doctrinal determinacy, …


Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti Jan 2015

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

Articles

This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …


Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez Jan 2015

Towards An Outcrit Pedagogy Of Anti-Subordination In The Classroom, Sheila I. Velez Martinez

Articles

This article discusses how traditional teaching practices can reinforce systemic discrimination, exclusion, subordination and oppression within the classroom in particular detriment to women and students of color. The article traces the discussions about pedagogy in Outcrit literature and proposes that Outcrit scholars teaching techniques within the classroom should reflect anti-subordination praxis in teaching. Drawing from the work of Freire, Bell and others, the article proposes that teaching from an anti-subordination perspective requires a praxis of collaborative, non-hierarchical teaching that calls for an epistemological shift. A pedagogy that frees the student to think independently and leads to an experience where there …


Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit Jan 2015

Evolving Standards Of Domination: Abandoning A Flawed Legal Standard And Approaching A New Era In Penal Reform, Spearit

Articles

This Article critiques the evolving standards of decency doctrine as a form of Social Darwinism. It argues that evolving standards of decency provided a system of review that was tailor-made for Civil Rights opponents to scale back racial progress. Although as a doctrinal matter, evolving standards sought to tie punishment practices to social mores, prison sentencing became subject to political agendas that determined the course of punishment more than the benevolence of a maturing society. Indeed, rather than the fierce competition that is supposed to guide social development, the criminal justice system was consciously deployed as a means of social …