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Articles 1 - 30 of 999
Full-Text Articles in Law
Federal Judge Denies Preliminary Injunction Against Idaho’S Bathroom Law, But Refuses To Dismiss Challenge, Arthur S. Leonard
Federal Judge Denies Preliminary Injunction Against Idaho’S Bathroom Law, But Refuses To Dismiss Challenge, Arthur S. Leonard
Articles & Chapters
No abstract provided.
Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo
Take The Motherless Children Off The Street: Fetal Alcohol Syndrome And The Criminal Justice System, Michael L. Perlin, Heather Ellis Cucolo
Articles & Chapters
Remarkably, there has been minimal academic legal literature about the interplay between fetal alcohol syndrome disorder (FASD) and critical aspects of many criminal trials, including issues related to the role of experts, quality of counsel, competency to stand trial, the insanity defense, and sentencing and the death penalty. Nor has there been any literature about the interplay between FASD-related issues and the legal school of thought known as therapeutic jurisprudence.
In this article, the co-authors will first define fetal alcohol syndrome and explain its significance to the criminal justice system. We will then look at the specific role of experts …
In These Times Of Compassion When Conformity’S In Fashion: How Therapeutic Jurisprudence Can Root Out Bias, Limit Polarization And Support Vulnerable Persons In The Legal Process, Michael L. Perlin
Articles & Chapters
In this paper, I consider the extent to which caselaw has – either explicitly or implicitly – incorporated the precepts of therapeutic jurisprudence (TJ), a school of legal thought that focuses on the law’s influence on emotional life and psychological well-being, and that asks us to assess the actual impact of the law on people’s lives. Two of the core tenets of TJ in practice are commitments to dignity and to compassion. I conclude ultimately that, with these principles as touchstones, TJ can be an effective tool – perhaps the most effective tool - in rooting out bias, limiting polarization, …
Randomness, Ai Art, And Copyright, Richard H. Chused
Randomness, Ai Art, And Copyright, Richard H. Chused
Articles & Chapters
No abstract provided.
Feminist Legal Theory And #Metoo: Revisiting Tarana Burke's Vision Of Empowerment Through Empathy, Penelope Andrews
Feminist Legal Theory And #Metoo: Revisiting Tarana Burke's Vision Of Empowerment Through Empathy, Penelope Andrews
Articles & Chapters
It is my purpose to ground this article in ubuntu and the politics of radical love as applied to the goals of #MeToo and its pursuit of redress for victims of sexual harms. Part II explores the convergences and divergences of #MeToo with feminist campaigns of an earlier era. Part III questions whether a renewed quest for gender equality, largely spawned by a Twitter/social media campaign, may lead to sustainable change built on notions of empathy and restorative justice, which influenced Tarana Burke when she founded #MeToo. Part IV examines restorative justice approaches in the South African Truth and Reconciliation …
Prosecutorial Nonenforcement And Residual Criminalization, Justin Murray
Prosecutorial Nonenforcement And Residual Criminalization, Justin Murray
Articles & Chapters
In recent years a small but influential group of locally elected prosecutors committed to criminal justice reform have openly refused to enforce various criminal laws—laws prohibiting marijuana possession, sentence enhancements, laws authorizing the death penalty, and much more—because they see those laws as unjust and incompatible with core reform objectives. Condemned by many on the political right for allegedly usurping the legislature’s lawmaking role and praised by many on the left for bypassing dysfunctional state legislatures in favor of local solutions, these prosecutorial nonenforcement policies are commonly said to have the same effect as nullifying, or even repealing, the laws …
Sovereign Imaginaries: Visualizing The Sacred Foundation Of Law’S Authority, Richard K. Sherwin
Sovereign Imaginaries: Visualizing The Sacred Foundation Of Law’S Authority, Richard K. Sherwin
Articles & Chapters
If a world is to be lived in, it must be founded. This foundational function belongs to the sovereign imagination. What a polity names as sovereign in the state of exception, when the sacred irrupts anew, is a matter of individual and collective responsibility. In this dispensation, law, politics, and religion become inescapably entangled in metaphysics. It behooves us to understand the nature and consequences of this state of affairs.
Making Me Ill: Environmental Racism And Justice As Disability, Britney Wilson
Making Me Ill: Environmental Racism And Justice As Disability, Britney Wilson
Articles & Chapters
Civil rights legal scholars and practitioners have lamented the constraints of the largely intent-based legal framework required to challenge racial discrimination and injustice. As a result, they have sought alternative methods that seemingly require less overt proof of discrimination and are more equipped to address structural harm. One of these proposed solutions involves the use of the Americans with Disabilities Act (ADA)—due to its affirmative mandate to address discrimination by reasonable modification or accommodation—and the framing of issues of racial injustice in terms of disability or the deprivation of medical rights. Environmental justice, an area in which issues of both …
Anti-Speech Acts And The First Amendment, Richard K. Sherwin
Anti-Speech Acts And The First Amendment, Richard K. Sherwin
Articles & Chapters
In many states today, there are laws on the books designed to protect the legitimacy and fairness of elections by barring the knowing or reckless dissemination of demonstrably false statements. Regulating this kind of deliberate deception protects the public against the erosion of First Amendment freedoms – such as the freedom to think and express one’s own thoughts and to meaningfully deliberate in an electoral process free from deliberate efforts to flood the zone of public discourse with confusion and mistrust based on deliberate and provable falsehoods. Some of these regulations, however, have been successfully challenged on First Amendment grounds. …
Killing Rarity, Shahrokh Falati
Killing Rarity, Shahrokh Falati
Articles & Chapters
On May 22, 2019, Botswana decided after many years to lift its ban on hunting elephants and in February 2020 held its first auctions for the right to hunt elephants. This turnaround change in their law coincides with a rapidly changing legal landscape in the United States related to the practice of trophy hunting of rare, intelligent animals, including elephants. This Article analyzes the fluid legal landscape surrounding this uncommon form of hunting of rare animals and possible ways of using the Administrative Procedures Act and the Federal Advisory Committee Act as a means of challenging the government’s rapidly changing …
The Distant Ships Of Liberty: Why Criminology Needs To Take Seriously International Human Rights Laws That Apply To Persons With Disabilities, Michael L. Perlin, Alison Lynch, Kelly Frailing, Ashley Juneau
The Distant Ships Of Liberty: Why Criminology Needs To Take Seriously International Human Rights Laws That Apply To Persons With Disabilities, Michael L. Perlin, Alison Lynch, Kelly Frailing, Ashley Juneau
Articles & Chapters
Persons institutionalized in forensic psychiatric facilities have been hidden from the public view for decades – physically, socially, and legally. The forensic population also faces multiple forms of discrimination, both for their criminal history and mental illness. This reality must be radically reconsidered in light of the ratification of the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD), the first legally binding instrument devoted to the comprehensive protection of the rights of persons with disabilities. There has been, however, virtually no attention paid by criminologists to the potential impact of this Convention on forensic populations. In this …
Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson
Most Favored Racial Hierarchy: The Ever-Evolving Ways Of The Supreme Court's Superordination Of Whiteness, David Simson
Articles & Chapters
This Article engages in a critical comparative analysis of the recent history and likely future trajectory of the Supreme Court’s constitutional jurisprudence in matters of race and religion to uncover new aspects of the racial project that Reggie Oh has recently called the “racial superordination” of whiteness—the reinforcing of the superior status of whites in American society by, among other things, prioritizing their interests in structuring constitutional doctrine. This analysis shows that the Court is increasingly widening the gap between conceptions of, and levels of protection provided for, equality in the contexts of race and religion in ways that prioritize …
Private And Public Sector Models For Entrepreneur, Small Business Owner, And Investor Immigration Pathways, Shane Dizon
Private And Public Sector Models For Entrepreneur, Small Business Owner, And Investor Immigration Pathways, Shane Dizon
Articles & Chapters
No abstract provided.
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce Green, Rebecca Roiphe
Articles & Chapters
The ABA adopted Model Rule 8.4(g), which targets certain speech and conduct that are based on “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status.” In particular, according to the accompanying comment, Rule 8.4(g) reaches speech that is “derogatory and demeaning” or that “manifests bias or prejudice towards others” and is “harmful” (including, presumably, emotionally harmful). This rule targets a significant amount of speech that would be constitutionally protected if it were uttered by a nonlawyer. This article argues that there is no justification for treating lawyers differently from others in many …
"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon
"Insanity Is Smashing Up Against My Soul": The Fifth Circuit And Competency To Be Executed Cases After Panetti V. Quarterman, Michael L. Perlin, Talia Roitberg Harmon
Articles & Chapters
One of the open secrets of death penalty law and policy is the astonishingly high percentage of individuals on death row with serious mental disabilities. This is well known to lawyers who represent this cohort (and presumably, equally well known to the district attorneys who nevertheless prosecute them and the judges who try and sentence them), but is not generally discussed in the press nor, certainly, in political discourse. In the aggregate, this is far beneath society’s radar.
It is now over 14 years since the US Supreme Court decided a case that clarified the underlying issues. In Panetti v. …
The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace
The Exclusion Of Public Legal Education From Mandatory And Aspirational State Pro Bono Service Requirements, Amy Wallace
Articles & Chapters
Pro bono service is embedded in legal education and practice. Every year, lawyers and law students across the United States engage in countless hours of pro bono service. There are over 1.3 million lawyers in the country and more than one hundred thousand law students enrolled in law school. Lawyers perform an average of thirty-seven hours of pro bono work each year. They reference several factors that motivate them to perform this work but the desire to help people in need ranks highest. Professional duty is also listed as an important factor for lawyers choosing to perform pro bono work. …
Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson
Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson
Articles & Chapters
This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies …
Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe
Impeaching Legal Ethics, Bruce Green, Rebecca Roiphe
Articles & Chapters
In the investigations, hearings, and aftermath of President Trump’s first impeachment, lawyer-commentators invoked the rules of professional conduct to criticize the government lawyers involved. To a large extent, these commentators mischaracterized or misapplied the rules. Although these commentators often presented themselves to the public as neutral experts, they were engaged in political advocacy, using the rules, as private litigators often do, as a strategic weapon against an adversary in the court of public opinion. For example, commentators on the left wrongly conveyed that, under the rules, government lawyers had a responsibility to the public to voluntarily assist in the impeachment, …
Metasoftware: Building Blocks For Legal Technology, Houman Shadab
Metasoftware: Building Blocks For Legal Technology, Houman Shadab
Articles & Chapters
This Article develops a novel concept in information technology called metasoftware. It then applies the concept of metasoftware to developing legal technology.
Metasoftware enables users to create the software of their choosing and stands in sharp contrast to traditional, functional software that is intended for a particular purpose or a defined range of tasks. Functional software is the default type of software that is currently produced and includes word processing, email, social networking, enterprise resource management, online marketplaces, and video game software. Metasoftware, by contrast, is not functional. Metasoftware presents the user with a blank slate upon which to build …
Lawyering 'Twisties': Naming And Untangling Performance Anxiety, Heidi K. Brown
Lawyering 'Twisties': Naming And Untangling Performance Anxiety, Heidi K. Brown
Articles & Chapters
No abstract provided.
Eviscerating Patent Scope, Shahrokh Falati
Eviscerating Patent Scope, Shahrokh Falati
Articles & Chapters
The scope of patent claims directed to inventions in the field of pharmaceuticals and biotechnology has been stumped by the Court of Appeals for the Federal Circuit’s recent jurisprudence on 35 U.S.C. § 112. Specifically, the application of a heightened test for enablement of claims to a genus of compounds with functional limitations or a genus of therapeutic antibodies, coupled with an increasingly broader application of the written description doctrine, has resulted in considerable uncertainty in the biopharmaceutical industry. The Federal Circuit’s shift in interpreting 35 U.S.C. § 112 contravenes the statute and Supreme Court precedent by splitting the singular …
Ineffective Counsel In Death Penalty Cases And The Promise Of Therapeutic Jurisprudence, Michael L. Perlin, J.D.
Ineffective Counsel In Death Penalty Cases And The Promise Of Therapeutic Jurisprudence, Michael L. Perlin, J.D.
Articles & Chapters
It is absolutely essential to consider the abject ineffectiveness of counsel in a significant number of death penalty cases involving defendants with serious mental disabilities and how such ineffectiveness is often (scandalously) accepted by reviewing courts. We must also assess all of the concerns raised in this excellent paper by Hiromoto and colleagues through the filter of therapeutic jurisprudence as a way to guide counsel to thoroughly investigate all aspects of such cases (especially those involving defendants with PTSD) and to present substantial mitigating evidence to the fact finders in the sorts of cases the authors are discussing.
Directed Questions: A Non-Socratic Dialogue About Non-Socratic Teaching, Kris Franklin, Rory Bahadur
Directed Questions: A Non-Socratic Dialogue About Non-Socratic Teaching, Kris Franklin, Rory Bahadur
Articles & Chapters
Despite frequent criticism of Socratic and case-method teaching, the core teaching in most foundational law classes has been remarkably stagnant. But in a time of turmoil and reexamination of the traditions we have all inherited, there is also opportunity for meaningful adaptation to the modern era. This Article introduces Directed Questions methodology as an alternative to the traditional teaching models currently operating in most law schools. Directed reading pedagogy allows legal educators to seamlessly transition to a modern and effective pedagogy incorporating best practices which recognizes that fostering inclusion and the success of diverse students is mandatory in post-Langdellian legal …
The Paradox Of Free Speech In The Digital World: First Amendment Friendly Proposals For Promoting User Agency, Nadine Strossen
The Paradox Of Free Speech In The Digital World: First Amendment Friendly Proposals For Promoting User Agency, Nadine Strossen
Articles & Chapters
The United States Supreme Court has continued a speech-protective trend dating back to the 1960s, safeguarding even the most controversial speech from government regulation, including speech that critics of this trend label with the stigmatizing terms "hate speech," "disinformation," "misinformation," "extremist speech," and "terrorist speech." In contrast, as dominant online platforms have become increasingly important forums for both individual self-expression and democratic discourse, the platforms have been issuing and enforcing increasing restrictions on their users' speech pursuant to each platform's content moderation policies. These restrictions often suppress speech that the U.S. Constitution bars government from suppressing. As private sector entities, …
Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri Krishna, Kelly Pfeifer, Dana Thompson
Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri Krishna, Kelly Pfeifer, Dana Thompson
Articles & Chapters
Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to …
Book Review: Public Legal Education - The Role Of Law Schools In Building A More Legally Literate Society (Routledge 2021), Amy Wallace
Articles & Chapters
No abstract provided.
"My Bewildering Brain Toils In Vain": Traumatic Brain Injury, The Criminal Trial Process, And The Case Of Lisa Montgomery, Alison Lynch, Michael L. Perlin, Heather Ellis Cucolo
"My Bewildering Brain Toils In Vain": Traumatic Brain Injury, The Criminal Trial Process, And The Case Of Lisa Montgomery, Alison Lynch, Michael L. Perlin, Heather Ellis Cucolo
Articles & Chapters
Individuals with traumatic brain injuries (TBI) have a greater risk of becoming justice-involved due to the role that many TBIs play in impulse control and judgment. Attorneys assigned to represent this cohort may not have encountered individuals with TBI before, and may not be familiar with behavioral manifestations that could be relevant as a defense or as mitigation in individual cases. In this regard, TBI is grossly misunderstood.
A grave example of this point, and a foundation for this article, is the case of Lisa Montgomery, who despite evidence of serious mental illness and significant brain damage, was convicted, sentenced …
Exploring The Interpretation And Application Of Procedural Rules: The Problem Of Implicit And Institutional Racial Bias, Edward A. Purcell Jr.
Exploring The Interpretation And Application Of Procedural Rules: The Problem Of Implicit And Institutional Racial Bias, Edward A. Purcell Jr.
Articles & Chapters
No abstract provided.
“Some Mother’S Child Has Gone Astray”: Neuroscientific Approaches To A Therapeutic Jurisprudence Model Of Juvenile Sentencing, Michael L. Perlin, Alison Lynch
“Some Mother’S Child Has Gone Astray”: Neuroscientific Approaches To A Therapeutic Jurisprudence Model Of Juvenile Sentencing, Michael L. Perlin, Alison Lynch
Articles & Chapters
There is a robust body of evidence that tells us that the juvenile brain is not fully developed by age 18, and this evidence should and does raise important questions about the sentencing of juveniles in criminal cases. This evidence, though, must be considered in the context of public opinion (about certain juvenile crimes that have been subject to saturation publicity) in the context of judges’ decision-making (where such judges do not want to be perceived as “soft on crime”). The conflict between what we now know and what (false) “ordinary common sense” demands (in the way of enhanced punishments) …
Gain Or Loss Of Foreign Persons From Sale Or Exchange Of Partnership Interests, Alan Appel
Gain Or Loss Of Foreign Persons From Sale Or Exchange Of Partnership Interests, Alan Appel
Articles & Chapters
No abstract provided.