Law Commons^™

Mandatory Corporate Social Responsibility As A Vehicle For Reducing Inequality: An Indian Solution For Piketty And The Millennials, Sandeep Gopalan, Akshaya Kamalnath

Northwestern Journal of Law & Social Policy

No abstract provided.

What’S Law Got To Do With It? Confronting Judicial Nullification Of Domestic Violence Remedies, Debra Pogrund Stark

Northwestern Journal of Law & Social Policy

No abstract provided.

Due Process And Legislation Designed To Restrict The Rights Of Rapist Fathers, Rachael Kessler

Northwestern Journal of Law & Social Policy

No abstract provided.

Silence Of The Lambs: Giving Voice To The Problem Of Rape And Sexual Assault In The United States Armed Forces, Alexandra Lohman

Northwestern Journal of Law & Social Policy

No abstract provided.

Toward A Uniform Standard Of Decency: Connecticut’S Prospective Capital Punishment Repeal And The Eighth Amendment, Suchitra Paul

Northwestern Journal of Law & Social Policy

No abstract provided.

These Aren’T My Peers: Why Illinois Should Reconsider Its Age Requirement For Jury Service, Wesley Morrissette

Northwestern Journal of Law & Social Policy

No abstract provided.

Facebook Phobia! The Misguided Proliferation Of Restrictive Social Networking Policies For School Employees, Janet R. Decker

Northwestern Journal of Law & Social Policy

Employers have dismissed and disciplined teachers and other school employees for posting controversial material and engaging in inappropriate employee-student relationships over social networking. In response, schools have enacted policies that greatly restrict educators’ social networking. This Article examines whether restrictive social networking policies are necessary. After analyzing the relevant state legislation, statewide guidance, district policies, and case law, this Article argues that restrictive policies are unwarranted and misguided. School districts have prevailed in the vast majority of the cases because they already have the legal authority to discipline employees under existing law. This Article also recommends how policymakers and school …

Critical Tax Policy: A Pathway To Reform?, Nancy J. Knauer

Northwestern Journal of Law & Social Policy

No abstract provided.

You Can’T Get There From Here: Implications Of The Walmart V. Dukes Decision For Addressing Second-Generation Discrimination, Roger W. Reinsch, Sonia Goltz

Northwestern Journal of Law & Social Policy

In Wal-Mart v. Dukes, the Supreme Court determined the plaintiffs had not shown, based on the evidence, that there were questions of law or fact common to the class. The allegedly discriminatory decisions had been made by individual supervisors at different stores who had been given discretion by Wal-Mart to make pay and promotion decisions. The Court stated the problem was that there was no specific evidence that all the discretionary decisions were made in a manner that reflected gender bias. This case not only reversed decades of court acceptance of social framework evidence in employment litigation but also …

Off With His Head: The King Can Do No Wrong, Hurricane Katrina, And The Mississippi River Gulf Outlet, Christopher R. Dyess

Northwestern Journal of Law & Social Policy

Congress passed the Federal Tort Claims Act in 1946 to provide a legal remedy to citizens for torts committed by the Federal Government. Prior to the act, United States citizens were mostly prohibited from filing suits against the government for torts committed by government employees. However, Congress when passing the act realized that some government actions are the result of considered policy judgment for what is in the best interest of the citizenry as a whole. In order to prevent the government from being sued for such actions, Congress included what is referred to as the Discretionary Function Exception. If …

The Intersection Of Dominance Feminism And Stalking Laws, Andrea Mazingo

Northwestern Journal of Law & Social Policy

No abstract provided.

Beary Landscaping, Inc. V. Costigan: The Case For Repealing The Illinois Prevailing Wage Act, Pat O’Meara

Northwestern Journal of Law & Social Policy

No abstract provided.

The Fox Guarding The Henhouse: The Regulation Of Pharmacy Benefit Managers By A Market Adversary, Joanna Shepherd

Northwestern Journal of Law & Social Policy

Pharmacy benefit managers (PBMs) save Americans billions of dollars each year by lowering both the prices that consumers pay for prescription drugs and the prices that health plans pay for drug coverage. As I explain in this Article, however, new regulatory developments in some states threaten to undercut competition in the PBM industry and disrupt the cost-savings PBMs currently generate. The regulatory scheme that was adopted by Mississippi in 2011, and that is currently under legislative consideration in several other states, shifts regulatory control of PBMs from the neutral Insurance Commissions to the states’ Boards of Pharmacy. The fundamental problem …

Sentencing The Family: Recognizing The Needs Of Dependent Children In The Administration Of The Criminal Justice System, Tamar Lerer

Northwestern Journal of Law & Social Policy

Hundreds of thousands of incarcerated persons are parents; in many instances, their incarceration has profound effects on their young children. Despite the predictable harm that the these children experience when their caretakers are incarcerated, the criminal justice system lacks a uniform, principled, and transparent way to consider their interests at critical stages in the process.

In this Article, I argue that the interests of the children of incarcerated offenders should be considered and demonstrate how this can be done. The paper proceeds in three Parts. In the first Part, I explain why we should care about caretaker incarceration: it harms …

Booking Students: An Analysis Of School Arrests And Court Outcomes, Kerrin C. Wolf

Northwestern Journal of Law & Social Policy

The fate of school discipline and security in America is at a crucial turning point. While the “school-to-prison pipeline” has recently received an increased amount of attention from policy makers interested in improving public education, the recent shooting at Sandy Hook Elementary School in Connecticut led to renewed calls for the heightened security measures that helped give rise to the pipeline. This article provides clear evidence that heightened disciplinary and security measures in schools are faulty policy responses, as they have adverse impacts on the students they intend to protect and siphon resources away from policies that more effectively ensure …

Sex In The Sexy Workplace, Lua Kamál Yuille

Northwestern Journal of Law & Social Policy

This article presents yet another problem that cannot be addressed adequately either through an honest application of existing sexual harassment paradigm under Title VII of the Civil Rights Act of 1964 or through any of the solutions to that paradigm’s deficiencies that have been proffered since its inception: hostile environment sexual harassment of the non-sexualized worker in the “sexy” workplace. It offers a comprehensive doctrinal illustration of how both existing sexual harassment doctrine and popular critiques of that doctrine fail to respond to the unique case of the sexual harassment of a non-sexualized worker in the sexual titillation industry (e.g. …

Fqhcs And Health Reform: Up To The Task?, James Hennessy

Northwestern Journal of Law & Social Policy

This Article addresses the future of Federally Qualified Health Centers (FQHCs) in an entirely reformed primary care landscape under the Affordable Care Act (ACA). Given health centers’ ability to fill crucial access gaps that will remain after health reform, FQHCs stand to undertake an increased role and are thus vital to the implementation of the ACA. Yet questions remain as to whether current FQHCs are capable of taking on an increased demand for services resulting from ACA expansion. Health centers are already busy, and more patients are coming as many burdens of health reform will inevitably fall on their shoulders. …

Skin Flicks Without The Skin: Why Government Mandated Condom Use In Adult Films Is A Violation Of The First Amendment, Elizabeth Sbardellati

Northwestern Journal of Law & Social Policy

The filming of sexual acts for publication is legal in California, which has led to the development of a robust adult film industry in Southern California, particularly in the Los Angeles area. Recently, regulations have been proposed that would require actors in pornographic films to wear condoms. This comment examines legal objections to “The County of Los Angeles Safer Sex in the Adult Film Industry Act” and CalOSHA’s assertion that California law requires the use of prophylactics in adult films. It argues that sexual expression in these adult films is protected under the First Amendment, although it may still be …

Preventing A Return To Twilight And Straitjackets: Using The Patient Protection And Affordable Care Act As A Starting Point For Evidence-Based Obstetric Reform In The United States, Alexius Cruz O'Malley

Northwestern Journal of Law & Social Policy

The United States has the most medicalized approach to childbirth of any nation in the world. Women in the United States have a greater lifetime risk of dying due to pregnancy-related complications than women in forty other developed nations. Babies born in the United States have a higher risk of dying within the first months of life than babies born in the forty other countries. Poor outcomes combined with costly, procedure-intensive care have been labeled the “perinatal paradox: doing more and accomplishing less.” Inspired by her own pregnancy and childbirth experience, the Author explores this “perinatal paradox” and the state …

Does Research With Children Violate The Best Interests Standard? An Empirical And Conceptual Analysis, Seema Shah

Northwestern Journal of Law & Social Policy

Even as research with children has increasingly been recognized as urgently needed for generating effective treatments for childhood diseases, drug formulations for infants and young children, and dosages appropriate for children, it has remained controversial. Scholars have engaged in heated debates over whether non-beneficial research with children is morally and legally justified. On one point, however, there has been agreement: Whether they support or criticize pediatric research, commentators generally assume that pediatric research should be justified under the “best interests of the child” legal standard. This assumption not only threatens important research and public health interventions, but it is also …

Race And Gender On The Bench: How Best To Achieve Diversity In Judicial Selection, Constance A. Anastopoulo, Daniel J. Crooks Iii

Northwestern Journal of Law & Social Policy

How can states increase diversity on the bench? This article begins by presuming that increasing racial and gender diversity is a worthy goal—among other positive results, a diverse bench increases the judicial system’s perceived legitimacy by increasing a diverse citizenry’s confidence that judges will treat them fairly and impartially. Next we examine the unique judicial selection systems of South Carolina and Virginia—where the entire process is controlled exclusively by the state legislature—and reach the counterintuitive conclusion that these systems actually increase judicial diversity very effectively when compared with the systems of other states. Finally, we propose four specific reforms to …

'Til Death Do Us Part: The Difficulties Of Obtaining A Same-Sex Divorce, Ellen Shapiro

Northwestern Journal of Law & Social Policy

This Article explores a problem faced by many wedded same-sex couples: the difficulty in obtaining a divorce. Suppose two men from Pennsylvania travel to Massachusetts to obtain a marriage license and return to Pennsylvania shortly thereafter. If their marriage breaks down, the couple will be unable to divorce in the state because Pennsylvania refuses to recognize the marriage for any purpose. Moreover, due to Massachusetts’ residency requirement, the couple cannot simply travel back to Massachusetts to divorce. Because this problem is in part encouraged by state mini-DOMAs, and the Supreme Court has the opportunity to rule on DOMA’s constitutionality, this …

Multilingual Prospective Jurors: Assessing California Standards Twenty Years After Hernandez V. New York, Farida Ali

Northwestern Journal of Law & Social Policy

This Article explores the ramifications of linguistically motivated peremptory challenges against multilingual prospective jurors in California in the twenty years since such challenges were legitimatized under Hernandez v. New York. An examination of state and federal case law reveals that the pretext analysis for reviewing Hernandez-based peremptory challenges remains both an arbitrary and a flawed tool that California courts have, nevertheless, been reluctant to second-guess. This problem is particularly acute in California because it is home to the largest multilingual population in the United States, with 43% of Californians speaking a language other than English. California, therefore, provides …

The Asylum Claim For Victims Of Attempted Trafficking, Kelly Karvelis

Northwestern Journal of Law & Social Policy

The state of the law regarding refugees in the United States has been characterized in the recent past by inconsistent rulings among the Circuit Courts, and narrow applications of the Immigration and Nationality Act of 1952, which provides the basis for asylum eligibility. In the midst of this sometimes-contradictory application of the INA, victims of attempted sex trafficking (those who have faced threats or attempts by sex traffickers to force them into sexual slavery) have consistently been rejected for asylum by U.S. courts. Federal courts have uniformly denied these asylum claims by ruling that these victims do not meet the …

To “Advice And C̶O̶N̶S̶E̶N̶T̶Delay”: The Role Of Interest Groups In The Confirmation Of Judges To The Federal Courts Of Appeal, Donald E. Campbell

Northwestern Journal of Law & Social Policy

Political and partisan battles over nominees to the federal courts of appeal have reached unprecedented levels. This article considers the reasons for this change in the process. Using evidence from law and political science, this article proposes that current confirmation struggles are greatly influenced by increased involvement of interest groups in the process. The article tests the role of interest groups through an in-depth examination of George W. Bush’s nomination of Leslie H. Southwick to the Fifth Circuit Court of Appeals. Utilizing the Southwick case study, the article provides evidence of how interest groups impact the confirmation process by designating …

The Art Of Legal Reasoning And The Angst Of Judging: Of Balls, Strikes, And Moments Of Truth, Timothy P. Terrell

Northwestern Journal of Law & Social Policy

An essay of only five short paragraphs published several years ago by the noted Harvard paleontologist Stephen Jay Gould about a controversial call by baseball umpire Babe Pinelli provides all the foundation necessary for a thorough investigation of the phenomenon of legal reasoning. The present article contrasts Gould’s analysis of a “strike” with the comment by then-Judge John Roberts at his Supreme Court confirmation hearings that he just wanted to “call [the] balls and strikes,” and through this exchange develops a new approach toward identifying—and teaching—the basic elements of sophisticated legal thinking. This article divides legal reasoning into four interrelated …

May It Please The Court: Questions About Policy At Oral Argument, Cynthia K. Conlon, Julie M. Karaba

Northwestern Journal of Law & Social Policy

This Article examines the questions that Supreme Court Justices ask during oral argument. The authors content-coded questions asked in fifty-three cases argued during the October 2009, 2010, and 2011 terms—a total of 5,115 questions. They found that the Justices vary significantly in the extent to which they ask about different aspects of a case, including threshold issues, precedent, facts, external actors, legal argument, and policy. They also found that the Justices were more likely to ask policy-oriented questions in education cases than in constitutional cases that did not arise in a school setting. The authors included a case study of …

Easing The Tension Between Statutes Of Limitations And The Continuing Offense Doctrine, Jeffrey R. Boles

Northwestern Journal of Law & Social Policy

This Article is the first to analyze comprehensively the relationship between the continuing offense doctrine and criminal statutes of limitations. The continuing offense doctrine is a powerful tool for prosecutors who face statute of limitations challenges. It functions to delay the running of statutes of limitations for certain crimes by postponing the completion of those crimes. In order to trigger the operation of the doctrine, a court must conclude that a particular crime is a “continuing offense” for statute of limitations purposes. Identifying what crimes are continuing offenses has been a problematic exercise for federal courts, leading to a growing …

Applying Indices Post-Grutter To Monitor Progress Toward Attaining A Diverse Student Body, Roger W. Reinsch, Sonia Goltz, Hong Chen, Joel C. Tuoriniemi

Northwestern Journal of Law & Social Policy

The Supreme Court decision in Grutter v. Bollinger provided more definitive guidance for institutions of higher education desiring to use racial preferences in an effort to achieve a diverse student body. This Article first examines Grutter and other relevant cases to set forth the parameters established by the Supreme Court concerning how university preferences, including but not limited to race, may be used in an admissions policy. This Article then provides a framework for creating and using diversity indices that can help institutions implement the guidelines found in these court decisions and monitor whether or not the goal of diversity …

An Inconvenient Lie: Big Tobacco Was Put On Trial For Denying The Effects Of Smoking; Is Climate Change Denial Off-Limits?, Elizabeth Dubats

Northwestern Journal of Law & Social Policy

Plaintiffs have made several notable attempts to bring nuisance, trespass, and negligence suits against major sources of greenhouse gas emissions for climate change related injuries. While climate change is a widely recognized environmental issue, courts have refused to recognize it as a basis for a valid cause of action in tort, finding either petitioners lack standing to bring the claim, or that the claim raises political questions that should not be addressed by the judiciary. Some more recent climate change tort claims have also included allegations of fraud on the part of the hydrocarbon industry for actively perpetuating misinformation about …