Law Commons^™

Hidden In Plain View: Legal Geography From A Visual Perspective, Irus Braverman

Journal Articles

Law, with a capital “L” at least, is not particularly fond of hiding itself. In order to be effective, law must be asserted in the world; it must be acknowledged; and, most importantly, it must be visually seen. Why, then, would law hide itself in space? And, perhaps more importantly, how would it do so? And why would such hidden places of law be of importance to us? This paper explores the dual project of seeing and concealing within the context of legal geography. It examines how law sees the physical landscape and how it is seen from a spatial …

Lessons Learned, Lessons Lost: Immigration Enforcement's Failed Experiment With Penal Severity, Teresa A. Miller

Journal Articles

This article traces the evolution of “get tough” sentencing and corrections policies that were touted as the solution to a criminal justice system widely viewed as “broken” in the mid-1970s. It draws parallels to the adoption some twenty years later of harsh, punitive policies in the immigration enforcement system to address perceptions that it is similarly “broken,” policies that have embraced the theories, objectives and tools of criminal punishment, and caused the two systems to converge. In discussing the myriad of harms that have resulted from the convergence of these two systems, and the criminal justice system’s recent shift away …

Immigration As Urban Policy, Rick Su

Journal Articles

Immigration has done more to shape the physical and social landscape of many of America’s largest cities than almost any other economic or cultural force. Indeed, immigration is so central to urban development in the United States that it is a wonder why immigration is not explicitly discussed as an aspect of urban policy. Yet in the national conversation over immigration, one would strain to hear it described in this manner. This essay addresses this oversight by making the case for a reorientation of immigration toward urban policy; and it does so by advocating for an immigration regime that both …

Rights, Privileges, And Access To Information, Alina Ng

Journal Articles

Protecting property rights in creative works represents a classic institutional approach to the specific economic problems of nonrivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for educational purposes. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as emerging technologies provide users of creative works with …

Governing With Clean Hands: Automated Public Toilets And Sanitary Surveillance, Irus Braverman

Journal Articles

To anyone familiar with the story of urban decay in major American cities in the 1980s – and with the subsequent abolition of toilets from city streets – the introduction of automated public toilets (APTs) to urban spaces sounds like very good news. This article explores the re-democratizing message that commonly accompanies the introduction of APTs to North American city streets as well as their on-the-ground manifestations. It focuses on two major components of APTs: privatization and automation. The process of privatization, which characterizes most APT operations in North America, carries with it various exclusionary effects that stand in stark …

Happy Talk And The Stock Market, David A. Westbrook

Journal Articles

No abstract provided.

The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renee Mcdonald Hutchins

Journal Articles

For more than two months beginning in late December of 2005, police officers in New York State continuously monitored the location and movements of Scott Weaver's van using a surreptitiously attached global positioning system ("GPS") device, known as a "Qball."' The reason Weaver was targeted for police surveillance has never been disclosed. 2 In addition, law enforcement made no attempt to justify the heightened scrutiny of Weaver by seeking the pre-authorization of a warrant from a neutral magistrate.3 Rather, for sixty-five days, the police subjected Weaver to intense surveillance without oversight, interruption, or explanation. 4 More than a year after …

Tragedy, Law, And Rethinking Our Financial Markets, David A. Westbrook

Journal Articles

No abstract provided.

Personal Jurisdiction Over Non-Resident Class Members: Have We Gone Down The Wrong Road?, Tanya J. Monestier

Journal Articles

No abstract provided.

The Significance Of Signatures: Why The Framers Signed The Constitution And What They Meant By Doing So, Michael Coenen

Journal Articles

The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed in the Convention’s wake. To begin, the Note explains the signatures’ ambiguous form as the product of political maneuvering designed to win support for the Constitution during ratification. The Note then hypothesizes two ways in which the signatures may have helped to secure this support: (1) by highlighting pro-Constitution selling-points likely to resonate with the ratifying public; and (2) by limiting …

Women Lawyers, Women’S Rights In Senegal: The Association Of Senegalese Women Lawyers, Judy Scales-Trent

Journal Articles

L'Association des Femmes Juristes Sénégalaises (The Association of Senegalese Women Lawyers) has been working to improve the lives of women in Senegal for almost forty years. In a predominantly Muslim country where most women do not even attend high school, these women have used their legal skills to make change. With little money, no paid attorneys on staff, and using a borrowed room in a law firm as an office, they have successfully pushed the government to make positive changes in the Family Code and other laws and have played an important role in the development of human rights consciousness …

Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury And Causation, David M. Engel

Journal Articles

Empirical studies of the tort law system suggest that "lumping, " or decisions by victims to do without adequate remedies, should be regarded as the predominant response to injury in American society and elsewhere. Yet research on lumping remains conceptually impoverished and gives insufficient attention to the culturalftameworks victims use to interpret their experiences and determine their responses. This Article presents the stories of injury victims in Thailand and compares their common-sense understandings of torts and tort law to those of injured Americans. It argues that analyses of lumping in America as well as Asia should take into account the …

How The Biological/Social Divide Limits Disability And Equality, Martha T. Mccluskey

Journal Articles

What is disability - a biological or social condition? In the conventional equality frameworks, the division between biology and social identity puts disability at the bottom of the formal equality hierarchy, but at the top of the substantive equality hierarchy. Compared with race and then gender, disability deserves the least protection against formal discrimination, on the theory that disadvantages are based on real and relevant functional differences more than on suspect social judgments. But turning to substantive equality, disability’s supposed greater biological basis justifies affirmative accommodation of difference, compared to the social differences of race, with gender in the middle …

In Memoriam: Virginia Leary, Makau Wa Mutua

Journal Articles

No abstract provided.

The Death Of The Public Disclosure Tort: A Historical Perspective, Samantha Barbas

Journal Articles

In 1890, Samuel Warren and Louis Brandeis, in their famous Harvard Law Review article The Right to Privacy, called for a new legal right that would allow the victims of truthful but embarrassing press publicity to recover damages for emotional harm. Currently, in most states, it constitutes a tort if the disclosure of “matter concerning the private life of another” would be highly offensive to a reasonable person and the matter is not “of legitimate concern to the public,” or newsworthy. However, because courts generally consider virtually everything that appears in the news media to be newsworthy, the public disclosure …

Normalizing Trepidation And Anxiety, Christine P. Bartholomew, Johanna Oreskovic

Journal Articles

No abstract provided.

Minimalism And Deliberative Democracy: A Closer Look At The Virtues Of "Shallowness", Matthew J. Steilen

Journal Articles

Cass Sunstein has long argued that judicial minimalism promotes democracy. According to Sunstein’s view, a court can encourage the political branches of government to address an issue by using doctrines such as vagueness, nondelegation, and desuetude. Although much has been written about minimalism, very little has been said about the democracy-promotion thesis in particular. Yet it is one of the central claims of contemporary minimalism. This article attempts to remedy the deficiency. It argues that minimalism does not promote democracy because minimalist decisions lack the depth necessary to trigger democratic deliberation. The argument occurs in three steps. First, the article …

Local Fragmentation As Immigration Regulation, Rick Su

Journal Articles

Immigration scholars have traditionally focused on the role of national borders and the significance of nation-state citizenship. At the same time, local government scholars have called attention to the significance of local boundaries, the consequence of municipal residency, and the influence of the two on the fragmentation of American society. This paper explores the interplay between these two mechanisms of spatial and community controls. Emphasizing their doctrinal and historic commonalities, this article suggests that the legal structure responsible for local fragmentation can be understood as second-order immigration regulation. It is a mechanism that allows for finer regulatory control than the …

The Overlooked Significance Of Arizona's New Immigration Law, Rick Su

Journal Articles

The current debate over Arizona's new immigration statute, S.B. 1070, has largely focused on the extent to which it “empowers” or “allows” state and local law enforcement officials to enforce federal immigration laws. Yet, in doing so, the conversation thus far overlooks the most significant part of the new statute: the extent to which Arizona mandates local immigration enforcement by attacking local control. The fact is the new Arizona law does little to adjust the federalist balance with respect to immigration enforcement. What it does, however, is threaten to radically alter the state-local relationship by eliminating local discretion, undermining the …

Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope, James A. Gardner

Journal Articles

Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And …

The Dignity Of Voters—A Dissent, James A. Gardner

Journal Articles

Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one’s vote “cancelled out” by fraud or error in the casting and …

Trying A New Way: Barack Obama's Tolerance Of Intolerance, Stephanie L. Phillips

Journal Articles

No abstract provided.

Schooling Congress: The Current Landscape Of The Tax Treatment Of Higher Education Expenses And A Framework For Reform, Stuart G. Lazar

Journal Articles

Education may be a cornerstone of our society, but the tax treatment of higher education expenses does not appear to have resulted from an intellectual exercise that would make our nation’s educators’ proud. The Internal Revenue Code provides two separate, but equally unsatisfying, routes that allow taxpayers to offset their income with the costs of higher education. Where an individual can reduce her tax liability while receiving an education, the effect is to reduce significantly the cost of that education.

First, where amounts spent on education qualify as an “ordinary and necessary business expense,” a taxpayer will be entitled to …

Beyond Torture: The Nemo Tenetur Principle In Borderline Cases, Luis E. Chiesa

Journal Articles

In this article I examine three borderline cases in which it is not clear whether a confession had been obtained in violation of the nemo tenetur principle (i.e. the rights against self-incrimination and forced inculpation). The case of the false confession presents a situation in which a person made a voluntary confession but the overwhelming evidence pointed to the falsity of the statements. In contrast, the confession obtained in the case of the truth serum is of high probative value. However, it could be argued that the suspect did not voluntarily decide to incriminate himself, given that he confessed when …

Navigating Tricky Ethical Shoals In Environmental Law: Parameters Of Counseling And Managing Clients, Kim Diana Connolly

Journal Articles

This article explores some of the ethical situations that environmental and natural resource lawyers can encounter when counseling clients. It begins by exploring the Model Rule of Professional Conduct (MRPC) 2.1, regarding counsel’s role as “advisor,” which provides that appropriate client counseling refers not only to law, but also to moral, economic, social, and political factors, when making decisions. It also explores the environmental lawyer’s ability to withdraw from representation pursuant to MRPC 1.16. It places the obligations and options under these rules and other mandates in the environmental and natural resource context, and encourages attorneys practicing in the area …

Matter Of S-E-G-: The Final Nail In The Coffin For Gang-Related Asylum Claims?, Lindsay M. Harris, Morgan M. Weibel

Journal Articles

In July 2008, the Board of Immigration Appeals (BIA)1 affirmed an Immigration Judge’s (“IJ”) denial of asylum to three young Salvadoran siblings fleeing gang violence and threats. This decision affects the likelihood that other youth and their family members fleeing gang violence will gain protection in the United States. The reach of the BIA decision in Matter of S-E-G-2 stretches far beyond the facts of the actual case or gang cases in general and may shape the future of asylum based on membership in a particular social group. The BIA published Matter of S-E-G- as one of only 36 precedent …

Teaching Public Citizen Lawyering: From Aspiration To Inspiration, Mae Quinn

Journal Articles

A longtime social justice activist and clinical professor, Douglas Colbert,2 recently sought information from colleagues across the country3 for the second part of an important project examining a lawyer’s ethical obligation to engage in pro bono work during a time of crisis, such as the aftermath of Hurricane Katrina or 9/11.4 He sent out surveys to learn which schools actually taught the Preamble to the ABA Model Rules of Professional Conduct in ethics or other courses.5 As Professor Colbert’s letter explained, the Preamble states: “A lawyer, as a member of the legal profession, is a representative of clients, an officer …

Argument, Analogy, And Audience: Using Persuasive Comparisons While Avoiding Unintended Effects, Bruce Ching

Journal Articles

No abstract provided.

Stories Told And Untold: Confidentiality Laws And The Master Narrative Of Child Welfare, Matthew I. Fraidin

Journal Articles

In most states, child welfare hearings and records are sealed or confidential. This means that by law, court hearings and records may not be observed. The same laws and court rules also preclude those who are authorized to enter and watch from discussing anything learned or observed in a closed courtroom or from a sealed court record with anyone not involved in the case. It is the restriction on speech—on telling stories about child welfare—with which this Article is concerned. I will argue in this Article that the insights of narrative theory and agenda-setting studies help us understand the damaging …

Imagining A More Humane Immigration Policy In The Age Of Obama: The Use Of Plenary Power To Halt The State Balkanization Of Immigration Regulation, Kristina M. Campbell

Journal Articles

The first decade of the twenty-first century has been grim for immigrants to the United States—both legal and undocumented—and the lawyers and advocates who work on their behalf. Following the failure of comprehensive immigration reform at the federal level, states and municipalities have seen fit to take matters into their own hands and pass a patchwork of local ordinances, statutes, and ballot initiatives ostensibly designed to do what the federal government had failed to do—regulate the flow of immigration into their cities and towns. As the economy continues to spiral downward into what may very well be the next Great …