Law Commons^™

See This Empty Cage Now Corrode: The International Human Rights And Comparative Law Implications Of Sexually Violent Predator Laws, Michael L. Perlin, Heather Ellis Cucolo

Articles & Chapters

From every perspective, our sexually violent predator (SVPA) laws are a miserable failure. In this paper, we present a new approach: a turn to international human rights law as a source of rights for the population in question, and a consideration of the matter from the perspective of comparative law.

To briefly summarize, many nations have enacted laws that both mirror and contradict early developments in United States civil commitment jurisprudence. In these nations, though, challenges to community containment and preventive detention laws have been more successful when based upon international human rights law. Also, registry notification is generally far …

A Typology Of Justice Department Lawyers' Roles And Responsibilities, Rebecca Roiphe

Articles & Chapters

President Trump’s administration has persistently challenged the legitimacy of the Department of Justice (“DOJ”). In the past, DOJ, like other governmental institutions, has been fairly resilient. Informal norms and practices have served to preserve its proper functioning, even under pressure. The strain of the past three years, however, has been different in kind and scale. This Article offers a typology of different roles for DOJ lawyers and argues that over time the institution has evolved by allocating different functions and responsibilities to different positions within DOJ. By doing so, it has for the most part maintained the proper balance between …

A Clarion Call For Strengthening The Rule Of Law, Penelope Andrews

Articles & Chapters

No abstract provided.

Patent Eligibility Of Disease Diagnosis, Shahrokh Falati

Articles & Chapters

The U.S. Supreme Court effectively redefined the scope of patent eligible subject matter when it decided Mayo. This decision focused on medical diagnostic technology and has had a profound effect on the biotechnology and personalized medicine industries in the United States. Subsequent back-to-back decisions by the Supreme Court in Myriad and Alice have made it unequivocally clear that there is now wholesale broadening of the judicially created exceptions to statutory laws governing patent eligible subject matter. This has caused havoc in the biopharmaceutical industry by not only making it a near impossibility to obtain a patent in certain fields, but …

A Fiduciary Theory Of Prosecution, Bruce A. Green, Rebecca Roiphe

Articles & Chapters

Scholars have failed to arrive at a unifying theory of prosecution, one that explains the complex role that prosecutors play in our democratic system. This Article draws on a developing body of legal scholarship on fiduciary theory to offer a new paradigm that grounds prosecutors’ obligations in their historical role as fiduciaries. Casting prosecutors as fiduciaries clarifies the prosecutor’s obligation to seek justice, focuses attention on the duties of care and loyalty, and prioritizes criminal justice considerations over other public policy interests in prosecutorial charging and plea-bargaining decisions. As fiduciaries, prosecutors are required to engage in an explicit deliberative process …

Cognitive Biases, Dark Patterns, And The ‘Privacy Paradox’, Ari Ezra Waldman

Articles & Chapters

Scholars and commentators often argue that individuals do not care about their privacy, and that users routinely trade privacy for convenience. This ignores the cognitive biases and design tactics platforms use to manipulate users into disclosing information. This essay highlights some of those cognitive biases – from hyperbolic discounting to the problem of overchoice – and discusses the ways in which platform design can manipulate disclosure. It then explains how current law allows this manipulative and anti-consumer behavior to continue and proposes a new approach to reign in the phenomenon.

Get With The Pronoun, Heidi K. Brown

Articles & Chapters

No abstract provided.

Introduction To Family Law Quarterly, Volume 54, Number 1, Lisa Grumet

Articles & Chapters

No abstract provided.

Thailand: The Evolution Of Law, The Legal Profession And Political Authority, Frank W. Munger

Articles & Chapters

This article describes the origin and development of the modern Thai legal profession. Intimately linked in origin to the development of the modern Thai state, the legal profession increasingly resembles the profession in economically developed democracies. Paralleling other regional developments, Thailand’s rapid economic development, constitutional reforms, and expanding judicialization drives many of the most important changes in the education and function of lawyers. Significant differences continue to exist between the profession in Thailand and legal professions in developed democracies, reflecting the profession’s origins and the continuing influence of consciousness and class structure as well as Thailand’s peculiarly semi-democratic and monarchical …

Consent Of The Governed: A Constitutional Norm That The Court Should Substantially Enforce, David Schoenbrod

Articles & Chapters

Available at https://www.harvard-jlpp.com/

Prejudice-Based Rights In Criminal Procedure, Justin Murray

Articles & Chapters

This Article critically examines a cluster of rules that use the concept of prejudice to restrict the scope of criminal defendants’ procedural rights, forming what I call prejudice-based rights. I focus, in particular, on outcome-centric prejudice- based rights—rights that apply only when failing to apply them might cause prejudice by affecting the outcome of the case. Two of criminal defendants’ most important rights fit this description: the right, originating in Brady v. Maryland, to obtain favorable, “material” evidence within the government’s knowledge, and the right to effective assistance of counsel. Since prejudice (or equivalently, materiality) is an element of these …

Critical Developments In Housing Policy - Symposium Comments, Kat Meyers, Cheryl Gonzales, Edward Josephson, Andrew Scherer

Articles & Chapters

Professor Scherer's talk starts on page 245

You That Build The Death Planes: Bob Dylan, War And International Affairs, Michael L. Perlin

Articles & Chapters

Several years ago, I wrote that Bob Dylan was “a scholar with a well-developed jurisprudence on a range of topics including civil, criminal, public, and private law” (Perlin, 2011, p.1396). In that article, I discussed and analyzed Dylan songs that dealt with, variously, civil rights, inequality in the criminal and civil justice systems, institutions, governmental/judicial corruption, equality and emancipation, and the role of lawyers in the legal process. (Id.). But I noted that I was omitting – for space considerations – any discussion of Dylan songs dealing with war and international affairs (Id., p. 1398, n. 15).

In this paper, …

A Law-Themed Charter High School Born At New York Law School Remains Indelibly Linked, Amy Wallace

Articles & Chapters

It was a confluence of unrelated events at New York Law School in the spring of 2009 that led to the founding of the Charter High School for Law and Social Justice (CHSLSJ) in the Bronx, New York. Dedicated law school faculty members were crucial to the school’s launch and the law school, its law students and faculty continue to nurture this unique and reciprocal relationship. Professor Richard Marsico was the unstoppable force behind the founding of the charter school and its close connection to New York Law School (NYLS). This article details the origins of CHSLSJ, the current relationship …

Classroom To Cyberspace: Preserving Street Law's Interactive And Student-Centered Focus During Distance Learning, Amy Wallace

Articles & Chapters

The Street Law program at New York Law School (NYLS) is a faculty taught, credit-bearing course that trains law students to teach interactive lessons covering practical legal topics at The Charter High School for Law & Social Justice (CHSLSJ), in the Bronx, New York.

On March 3, 2020, NYLS moved online due to the rapid rise of COVID cases in New York City. Like many clinical and experiential programs, we weighed options that would provide both valuable experiences for our high school and law students while keeping everyone safe.

On Sunday March 15, 2020, the New York City public schools …

The Makings Of A Culturally Savvy Lawyer: Novel Approaches For Teaching And Assessing Cross-Cultural Skills In Law School, Shahrokh Falati

Articles & Chapters

No abstract provided.

Defusing Bullies, Heidi K. Brown

Articles & Chapters

No abstract provided.

Severing The Connection Between Sex Trafficking And U.S. Military Bases Overseas, Anna Belle Hoots

Articles & Chapters

The sex trafficking of women and girls by US. military men remains an issue plaguing US. military bases overseas. While the US. government has offered several solutions to combat this specific niche of sex trafficking, the legislation and policy put forth are insufficient to eradicate the problem. After assessing the intersection of sex trafficking and overseas US. military bases, this Note both discusses why and proposes how, through the use of Status of Forces Agreements (SOFAs), all US. military bases abroad can and must commit to the prevention of this egregious human rights violation. Because SOFAs grant wide latitude to …

Navigating Introvert Hell, Heidi K. Brown

Articles & Chapters

You don’t have to be hard-charging to be an impactful legal networker.

Fear And Lawyering, Heidi K. Brown

Articles & Chapters

Create a work culture of ‘psychological safety’ that encourages taking intellectual and creative risks.

Fool Me Once, Shame On You; Fool Me Twice, Shame On You Again: How Disparate Treatment Doctrine Perpetuates Racial Hierarchy, David Simson

Articles & Chapters

Title VII race discrimination doctrine is excessively hostile to workers of color, and many observers agree that it needs to be fixed. Yet comparatively few analyses of the doctrine weave together doctrinal and theoretical insights with systematic empirical findings from social science. This Article looks to Social Dominance Theory—a social psychology theory with a robust body of supporting empirical research—to take on this task and connect judicial interpretation of Title VII to the human tendency to create and maintain group-based hierarchies. In doing so, the Article questions the common view that Title VII race discrimination doctrine is symmetrical, protecting all …

Face Fear—Don’T Fake It, Heidi K. Brown

Articles & Chapters

No abstract provided.

A Man Of Ubuntu: A South African Colleague's Tribute To Stephen Ellmann, Penelope Andrews

Articles & Chapters

In Memoriam: Stephen Ellmann

Temptation's Page Flies Out The Door: Navigating Complex Systems Of Disability And The Law From A Therapeutic Jurisprudence Perspective, Michael L. Perlin, Mehgan Gallagher

Articles & Chapters

This article considers the difficulties inherent in the navigation of the legal system and the disability system, difficulties made more complicated when these systems intersect. Although this problem is not a new one, remarkably, it has never been the subject of any legal scholarship. We argue here that it is futile to consider either system to be a uniform one, and that to make any sense of the underlying ambiguities, it is necessary to consider both the potential conflicts both between domestic and international law (using fitness to proceed to trial as a case example), and the conflicts between social …

Privacy's Law Of Design, Ari Ezra Waldman

Articles & Chapters

Privacy by design is about making privacy part of the conception and development of new data collection tools. But how should we interpret “privacy by design” as a legal mandate? As it transitions from an academic buzzword into binding law, privacy by design will, for the first time, impose real responsibilities on real people to do specific things at specific times. And yet, there remains significant disagreement about what privacy by design actually means in practice: we have yet to define its who, what, when, why, and how. Different approaches to privacy by design have tried to answer those questions …

Safe Social Spaces, Ari Ezra Waldman

Articles & Chapters

Technologies that mediate social interaction can put our privacy and our safety at risk. Harassment, intimate partner violence and surveillance, data insecurity, and revenge porn are just a few of harms that bedevil technosocial spaces and their users, particularly users from marginalized communities. This Article seeks to identify the building blocks of safe social spaces, or environments in which individuals can be free of privacy and safety dangers. Relying on analogies to offline social spaces—Alcoholics Anonymous meetings, teams of coworkers, and attorney-client relationships—this Article argues that if a social space is defined as an environment characterized by disclosure, then a …

The Strings In The Books Ain't Pulled And Persuaded: How The Use Of Improper Statistics And Unverified Data Corrupts The Judicial Process In Sex Offender Cases, Heather Ellis Cucolo, Michael L. Perlin

Articles & Chapters

An examination of a range of judicial decisions involving sexual offender determinations reveals that, frequently, courts rely improperly on inaccurate and under-developed statistics as well as unverified and outdated information. This reliance, too often, underlies rulings that subject the sex offender to significant sanctions and loss of liberty. Additionally, the continuation of the testimonial script that all sex offenders are high recidivists, dangerous, compulsive and untreatable, contributes to the anti-therapeutic effect of shaming and humiliation. This results in isolation, seclusion, lack of dignity; also, it further trivializes the judicial process, and violates the tenants of therapeutic jurisprudence. Despite the “frightening …

There's Voices In The Night Trying To Be Heard: The Potential Impact Of The Convention On The Rights Of Persons With Disabilities On Domestic Mental Disability Law, Michael L. Perlin, Naomi Weinstein

Articles & Chapters

This paper carefully examines, through a therapeutic jurisprudence framework, the likely impact of the ratification of this UN Convention on society’s sanist attitudes towards persons with mental disabilities. We argue that it is impossible to consider the impact of anti-discrimination law on persons with mental disabilities without a full understanding of how sanism -- an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry -- permeates all aspects of the legal system and the entire fabric of American society.

Notwithstanding nearly …

Hidden Nondefense: Partisanship In State Attorneys General Amicus Briefs And The Need For Transparency, Lisa Grumet

Articles & Chapters

In all fifty states, the State Attorney General (SAG) — as the state’s chief legal officer — is charged with defending state laws that are challenged in court. If an SAG declines to defend or challenges a state law on the ground that it is unconstitutional — an action scholars describe as “nondefense” — the SAG ordinarily will disclose this decision to the public.

This Essay discusses a hidden form of nondefense that can occur when SAGs file amicus curiae briefs on behalf of their states in matters before the U.S. Supreme Court. Surprisingly, some SAGs have joined multistate amicus …

Power, Process, And Automated Decision-Making, Ari Ezra Waldman

Articles & Chapters

Many decisions that used to be made by humans are now made by machines. And yet, automated decision-making systems based on “big data” – powered algorithms and machine learning are just as prone to mistakes, biases, and arbitrariness as their human counterparts. The result is a technologically driven decision-making process that seems to defy interrogation, analysis, and accountability and, therefore, undermines due process. This should make algorithmic decision-making an illegitimate source of authority in a liberal democracy. This Essay argues that algorithmic decision-making is a product of the neoliberal project to undermine social values like equality, nondiscrimination, and human flourishing …