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Articles 1 - 30 of 88
Full-Text Articles in Law
On Foxes And Hedgehogs, Roger P. Alford
On Foxes And Hedgehogs, Roger P. Alford
Journal Articles
This Article is about John Nagle’s many means to one great end. It will outline the many themes of his scholarship: (i) environmental law, (ii) statutory interpretation, (iii) constitutional law, (iv) nuisance and pollution, (v) election law and campaign finance, (vi) Christianity and the environment, and (vii) national parks. It will offer conclusions on how he used his scholarly interests as a means to pursue his overarching worldview.
Preventing Emissions From Slipping Through The Cracks: How Collaboration On New Technologies To Detect Violations And Minimize Emissions Can Efficiently Enforce Existing Clean Air Act Regulations, Kathryn Caballero
Journal Articles
The link between air pollution and poor public health is well known and has been farther documented during the COVID-19 pandemic, 1 but EPA has outdated methods and rules to detect air emissions. Enforcing existing environmental regulations presents challenges because the detection and monitoring technologies identified in the regulations, or the regulation language itself, may not sufficiently identify environmental pollution, let alone complex environmental fraud. How can EPA best use new technologies and concepts to detect violations, with the intent of minimizing emissions, to improve human health and environmental outcomes during the lengthy process of drafting and publishing new regulations? …
Wild Legalities: Animals And Settler Colonialism In Palestine/Israel, Irus Braverman
Wild Legalities: Animals And Settler Colonialism In Palestine/Israel, Irus Braverman
Journal Articles
This article examines the underlying biopolitical premises of wildlife management in Palestine/Israel that make, remake, and unmake this region's settler colonial landscape. Drawing on interviews with Israeli nature officials and observations of their work, the article tells several animal stories that illuminate the hierarchies and slippages between wild and domestic, nature and culture, native and settler, and human and nonhuman life in Palestine/Israel. Animal bodies are especially apt technologies of settler colonialism, I show here. They naturalize and normalize settler modes of existence, while criminalizing native livelihoods and relations. Utilizing the terra nullius doctrine, creating biblical landscapes by reintroducing extirpated …
Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey
Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey
Journal Articles
Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, …
Topology Of The Closet, Michael Boucai
Topology Of The Closet, Michael Boucai
Journal Articles
Despite the closet’s centrality to queer culture and theory, the metaphor’s various meanings have yet to be disaggregated and defined. Following Eve Kosofsky Sedgwick’s identification of the closet with a “crisis of homo/heterosexual definition, indicatively male, dating from the end of the nineteenth century,” the present article uses an array of late-Victorian sources—especially The Memoirs of John Addington Symonds and Teleny, a pornographic novel sometimes attributed to Oscar Wilde—to describe and distinguish: (1) so-called latent homosexuality (“the unconscious closet”); (2) deliberate strategies of suppression, abstention, and reformation (“the conscious closet”); (3) clandestine pursuits of gay sex and sociability (“the double …
Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero
Racism, Incorporated: Ramos V. Louisiana And Jogging While Black, Victor C. Romero
Journal Articles
There is more to the U.S. Supreme Court’s recent decision in Ramos v.
Louisiana than its holding requiring unanimous state jury verdicts via the
incorporation doctrine. The underlying debate among the Justices in Ramos
about the salience of race in the law is a window into the current cultural
moment. After identifying the racial debate underlying the Justices’ views in
Ramos, this Essay shows how the same pattern emerges in our social and
legal debates around vigilante policing of Black Americans, including a
close-up look at the recent killing of Ahmaud Arbery. Social psychology
teaches us that society stereotypes …
Critical Interviewing, Laila L. Hlass, Lindsay M. Harris
Critical Interviewing, Laila L. Hlass, Lindsay M. Harris
Journal Articles
Critical lawyering—also at times called rebellious, community, and movement lawyering—attempts to further social justice alongside impacted communities. While much has been written about the contours of this form of lawyering and case examples illustrating core principles, little has been written about the mechanics of teaching critical lawyering skills. This Article seeks to expand critical lawyering theory, and in doing so, provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into …
The Mischief Rule, Samuel L. Bray
The Mischief Rule, Samuel L. Bray
Journal Articles
The mischief rule tells an interpreter to read a statute in light of the “mischief” or “evil”—the problem that prompted the statute. The mischief rule has been associated with Blackstone’s appeal to a statute’s “reason and spirit” and with Hart-and-Sacks-style purposivism. Justice Scalia rejected the mischief rule. But the rule is widely misunderstood, both by those inclined to love it and those inclined to hate it. This Article reconsiders the mischief rule. It shows that the rule has two enduringly useful functions: guiding an interpreter to a stopping point for statutory language that can be given a broader or narrower …
Dissenting From The Bench, Christine Venter
Dissenting From The Bench, Christine Venter
Journal Articles
This paper examines the oral dissents of Justices Antonin Scalia and Ruth Bader Ginsburg from the year 2000 to the times of their respective deaths. It explores the concept and purpose of oral dissent and details the kinds of cases in which each justice was more likely to orally dissent. The paper analyzes the kinds of rhetoric that each justice used to refer to their subject matter, and argues that Scalia's rhetoric evinces a view of the law as "autonomous", operating independently of the facts of the case. In contrast, Ginsburg's view espouses a view of the law as responsive …
Reevaluating Legal Theory, Jeffrey Pojanowski
Reevaluating Legal Theory, Jeffrey Pojanowski
Journal Articles
Must a good general theory of law incorporate what is good for persons in general? This question has been at the center of methodological debates in general jurisprudence for decades. Answering “no,” Julie Dickson’s book Evaluation and Legal Theory offered both a clear and concise conspectus of positivist methodology, as well as a response to the longstanding objection that such an approach has to evaluate the data it studies rather than simply describe facts about legal systems. She agreed that legal positivism must evaluate. At the same time, she argued, it is possible to offer an evaluative theory of the …
Technologies Of Language Meet Ideologies Of Law, Anya Bernstein
Technologies Of Language Meet Ideologies Of Law, Anya Bernstein
Journal Articles
No abstract provided.
Liberalism's Identity Politics: A Response To Professor Fukuyama, Athena D. Mutua
Liberalism's Identity Politics: A Response To Professor Fukuyama, Athena D. Mutua
Journal Articles
No abstract provided.
Legal Consciousness Reconsidered, Lynette J. Chua, David M. Engel
Legal Consciousness Reconsidered, Lynette J. Chua, David M. Engel
Journal Articles
Legal consciousness is a vibrant research field attracting growing numbers of scholars worldwide. Yet differing assumptions about aims and methods have generated vigorous debate, typically resulting from a failure to recognize that three different clusters of scholars—identified here as the Identity, Hegemony, and Mobilization schools—are pursuing different goals and deploying the concept of legal consciousness in different ways. Scholarship associated with these three schools demonstrates that legal consciousness is actually a flexible paradigm with multiple applications rather than a monolithic approach.Furthermore, a new generation of scholars has energized the field in recent years, focusing on marginalized peoples and non-Western settings. …
Reframing Radical Religion, Vanita Saleema Snow
Reframing Radical Religion, Vanita Saleema Snow
Journal Articles
Like a thief in the night,1 politicians have stolen religion for their deceptive vices, using the term “radicalization” or “terrorism” to meet their needs.2 See Sahar F. Aziz, Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America, 47 GONZ. L. REV. 429, 481 (2012) (discussing how a police report equates “Muslim religiosity with radicalization toward terrorism”); David A. Bosworth, American Crusade: The Religious Roots of the War on Terror, 7 BARRY L. REV. 65, 65 (2006) (noting that American news and popular culture often portray religious people as “narrow-minded bigots out to destroy everything good and decent”); Ned …
Nudges That Should Fail?, Avishalom Tor
Nudges That Should Fail?, Avishalom Tor
Journal Articles
Professor Sunstein (2017) discusses possible causes for and policy implications of the failure of nudges, with a special attention to defaults. Though he focuses on nudges that fail when they should succeed, Sunstein recognizes that some failures reveal that a nudge should not have been attempted to begin with. Nudges that fail, however, does not consider fully the relationship between the outcomes of nudging and their likely welfare effects, most notably neglecting the troubling case of nudges that succeed when they should fail. Hence, after clarifying the boundaries of legitimate nudging and noting the fourfold relationship between the efficacy of …
It All Started With Columbo: Teaching Law With Popular Culture, Christine Corcos
It All Started With Columbo: Teaching Law With Popular Culture, Christine Corcos
Journal Articles
No abstract provided.
The Problem Of Wage Theft, Nicole Hallett
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 #Buffalo 25 And The New Era Of Immigration Enforcement, Nicole Hallett
The #Buffalo 25 And The New Era Of Immigration Enforcement, Nicole Hallett
Journal Articles
No abstract provided.
The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint
The New Gospel Of Wealth: On Social Impact Bonds And The Privatization Of Public Good, Etienne C. Toussaint
Journal Articles
Since Andrew Carnegie penned his famous Gospel of Wealth in 1889, corporate philanthropists have championed considerable public good around the world, investing in a wide range of social programs addressing a diversity of public issues, from poverty to healthcare to criminal justice. Nevertheless, the problem of “the Rich and the Poor,” as termed by Andrew Carnegie in his famous essay, remains unsolved. Socially conscious investors have recently called for America to reimagine a new “gospel of wealth”, one that not only grapples with the what of social injustice, but also explores the how and the why of systemic social and …
There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett
There Are No Ordinary People: Christian Humanism And Christian Legal Thought, Richard W. Garnett
Journal Articles
This short essay is a contribution to a volume celebrating a new casebook, "Christian Legal Thought: Materials and Cases", edited by Profs. Patrick McKinley Brennan and William S. Brewbaker.
Prolegomenon To A Defense Of The City Of Gold, David A. Westbrook
Prolegomenon To A Defense Of The City Of Gold, David A. Westbrook
Journal Articles
In recent political contests, economics has been used as a subjective language of disputation and identification, contradicting the field's traditional aspirations to objectivity, even science. In both partisan politics and the related but not identical bifurcation between "populist" and "establishment" or "elite" discourse, positions have become routinized into antagonistic tropes. This poses a serious problem for the United States, which uses political discourse not only for politics, but to create social cohesion among disparate groups. More generally, elites bereft of Marx no longer have a grammar with which to conceptualize, critique, and ultimately defend the global liberal order that they …
Racial And Gender Justice In The Child Welfare And Child Support Systems, Margaret Brinig
Racial And Gender Justice In The Child Welfare And Child Support Systems, Margaret Brinig
Journal Articles
While divorcing couples in the United States have been studied for many years, separating unmarried couples and their children have proven more difficult to analyze. Recently there have been successful longitudinal ethnographic and survey-based studies. This piece uses documents from a single Indiana county’s unified family court (called the Probate Court) to trace the effects of race and gender on unmarried families, beginning with a sample of 386 children for whom paternity petitions were brought in four months of 2008. It confirms prior theoretical work on racial differences in noncustodial parenting and poses new questions about how incarceration and gender …
Money Norms, Julia Y. Lee
Money Norms, Julia Y. Lee
Journal Articles
Money norms present a fundamental contradiction. Norms embody the social sphere, a system of internalized values, unwritten rules, and shared expectations that informally govern human behavior. Money, on the other hand, evokes the economic sphere of markets, prices, and incentives. Existing legal scholarship keeps the two spheres distinct. Money is assumed to operate as a medium of exchange or as a tool for altering the payoffs of different actions. When used to make good behavior less costly and undesirable behavior more costly, money functions to incentivize, sanction, and deter. Although a rich literature on the expressive function of law exists, …
Reimagining Accountability: A Move Toward Re-Entrenching The Higher Education Act, Twinette L. Johnson
Reimagining Accountability: A Move Toward Re-Entrenching The Higher Education Act, Twinette L. Johnson
Journal Articles
In 1964, while delivering his "Great Society Speech"' at the University of Michigan, President Lyndon B. Johnson stated that, "[e]ach year, more than 100,000 high school graduates, with proven ability, do not enter college because they cannot afford it." 2 In 1964, there were 1,037,000 students enrolled in college, according to the National Center for Education Statistics (NCES). 3 By 1965, President Johnson signed into law the Higher Education Act4 (HEA or the Act). "[T]he Act sought to bridge the ... gap for [economically and socially disadvantaged] citizens ... by providing [them] the means to pursue higher education." 5 The …
The Pet Keeping Industry In The American City, Irus Braverman
The Pet Keeping Industry In The American City, Irus Braverman
Journal Articles
Two years ago, my now nine-year-old daughter decided that she, too, wants in on the American dream. A family without a dog is incomplete, so the dominant narrative around us seems to dictate – and that narrative was readily picked up by my daughter and, subsequently, by her younger sister as well. The pressure is now fully on for us to “adopt” a dog who would fill our days with laughter and fun. A dog who would make us belong. Despite my initial urge to satisfy my daughters’ passionate desire, I cannot help but to contemplate the broader role of …
Incarceration To Incorporation: Economic Empowerment For Returning Citizens Through Social Impact Bonds, Etienne C. Toussaint
Incarceration To Incorporation: Economic Empowerment For Returning Citizens Through Social Impact Bonds, Etienne C. Toussaint
Journal Articles
No abstract provided.
Post-Ferguson Social Engineering: Problem-Solving Justice Or Just Posturing, Mae C. Quinn
Post-Ferguson Social Engineering: Problem-Solving Justice Or Just Posturing, Mae C. Quinn
Journal Articles
No abstract provided.
What Is Buddhist Law?, Rebecca Redwood French
Philosophical Inquiry And Social Practice, John Henry Schlegel
Philosophical Inquiry And Social Practice, John Henry Schlegel
Journal Articles
No abstract provided.
Keynote Address: Reimagining Law And Society Research In Southeast Asia, David M. Engel
Keynote Address: Reimagining Law And Society Research In Southeast Asia, David M. Engel
Journal Articles
No abstract provided.