Law Commons^™

Property's Boundaries, James Toomey

Elisabeth Haub School of Law Faculty Publications

Property law has a boundary problem. Courts are routinely called upon to decide whether certain kinds of things can be owned--cells, genes, organs, gametes, embryos, corpses, personal data, and more. Under prevailing contemporary theories of property law, questions like these have no justiciable answers. Because property has no conceptual essence, they maintain, its boundaries are arbitrary--a flexible normative choice more properly legislative than judicial.

This Article instead offers a straightforward descriptive theory of property's boundaries. The common law of property is legitimated by its basis in the concept of ownership, a descriptive relationship of absolute control that exists outside of …

Social Media Harms And The Common Law, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

This article finds fault with the judiciaries' failure to create a set of common law norms for social media wrongs. In cases concerning social media harms, the Supreme Court and lower courts have consistently adhered to traditional pre-social media principles, failing to use the power of the common law to create a kind of Internet Justice.

Part I of this article reviews social media history and explores how judicial decisions created a fertile bed for social media harm to blossom. Part II illustrates social media harms across several doctrinal disciplines and highlights judicial reluctance to embrace the realities of social …

A Random Stroll Amongst Anthony Trollope's Lawyers, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

Anthony Trollope (1815-1882) resides in the pantheon of nineteenth century English literature. Overcoming a miserable childhood, he became an official with the post office and is credited with introducing the familiar red mailbox. While working full time in his postal position until 1867, he still managed to publish 47 novels, travel books, biographies, short stories, collections of essays, and articles on various topics. Trollope has been described as the novelist of the ordinary for his realistic description of English society. Law and legal issues flow through Trollope’s fiction. The legal system held a special importance to him as the skeleton …

Criminal Acts And Basic Moral Equality, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Modern criminal justice presupposes that persons are not morally equal. On the contrary, those who do wrong are viewed by the law as less worthy of respect, concern and decent treatment: Offenders, it is said, “deserve” to suffer for their misdeeds. Yet, there is scant logical or empirical basis for the law's supposition that offenders are morally inferior. The usual reasoning is that persons who intentionally or knowingly do wrong are the authors and initiators of their acts and, as such, are morally responsible for them. But this reasoning rests on the assumption that a person's mental states, such as …

Teaching With Feminist Judgments: A Global Conversation, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger, Gabrielle Appleby, Susan Frelich Appleton, Ross Astoria, Sharon Cowan, Rosalind Dixon, J. Troy Lavers, Andrea L. Mcardle, Elisabeth Mcdonald, Teri A. Mcmurtry-Chubb, Vanessa E. Munro, Pamela A. Wilkins

Elisabeth Haub School of Law Faculty Publications

This conversational-style essay is an exchange among fourteen professors—representing thirteen universities across five countries—with experience teaching with feminist judgments. Feminist judgments are ‘shadow’ court decisions rewritten from a feminist perspective, using only the precedent in effect and the facts known at the time of the original decision. Scholars in Canada, England, the U.S., Australia, New Zealand, Scotland, Ireland, India, and Mexico have published (or are currently producing) written collections of feminist judgments that demonstrate how feminist perspectives could have changed the legal reasoning or outcome (or both) in important legal cases. This essay begins to explore the vast pedagogical potential …

Dehumanization 'Because Of Sex': The Multiaxial Approach To The Title Vii Rights Of Sexual Minorities, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

Although Title VII prohibits discrimination against any employee “because of such individual’s . . . sex,” legal commentators have not yet accurately appraised Title VII’s trait and causation requirements embodied in that phrase. Since 2015, most courts assessing the sex discrimination claims of LGBT employees began to intentionally analyze “sex” as a trait using social-construction evidence, and evaluated separately whether the discriminatory motive caused the workplace harm. Responding to what this Article terms a “doctrinal correction” to causation within this groundswell of decisions, the Supreme Court recently issued an “expansive” and “sweeping” reformulation of but-for causation in Bostock v. Clayton …

Learning From Feminist Judgments: Lessons In Language And Advocacy, Bridget J. Crawford, Linda L. Berger, Kathryn M. Stanchi

Elisabeth Haub School of Law Faculty Publications

This essay offers a perspective-shifting approach to meeting some of our pedagogical goals in law school: the study of re-imagined judicial decisions. Our thesis is that exposing students to “alternative judgments”—opinions that have been rewritten by authors who look at the law and the facts differently—will help students develop a more realistic and nuanced view of judicial decision-making: one that is aspirational and based in the real world, and one that allows them to envision their futures as successful advocates. The “alternative judgments” of the feminist judgments projects can enrich the law-school experience in multiple ways. First, seeing a written …

Feminist Judging Matters: How Feminist Theory And Methods Affect The Process Of Judgment, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

The word “feminism” means different things to its many supporters (and undoubtedly, to its detractors). For some, it refers to the historic struggle: first to realize the right of women to vote and then to eliminate explicit discrimination against women from the nation's laws. For others, it is a political movement, the purpose of which is to raise awareness about and to overcome past and present oppression faced by women. For still others, it is a philosophy--a system of thought--and a community of belief centering on attaining political, social, and economic equality for women, men, and people of any gender. …

How Is Sex Harassment Discriminatory?, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

What is sexual harassment, and what is its actual harm? Since the 1980s, these two questions have perplexed lawmakers, policymakers, feminists, and the public. Today, with the rise of #MeToo, and with increased national attention to Title IX claims regarding sexual violence on college campuses, these questions are once again in the spotlight. As some commentators have observed, in the last several years lawmakers and policymakers have been increasingly influenced by a feminist antisubordination approach to sexual harassment and assault. This growing influence is currently reflected in more strict standards of consent (“affirmative consent”) to sex, in higher procedural and …

Rewriting Judicial Opinions And The Feminist Scholarly Project, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In 1995, the authors of a law review article examining “feminist judging” focused on the existing social science data concerning women judges and compared the voting records and opinions of the only female Justices on the U.S. Supreme Court: Ruth Bader Ginsburg and Sandra Day O'Connor. Based on this review, the authors concluded that appointing more women as judges would make little difference to judicial outcomes or processes. The authors accused those who advocated for more women on the bench of having a hidden feminist agenda and bluntly concluded that “[b]y any measure, feminist judges fit very uneasily in most …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Using Feminist Theory To Advance Equal Justice Under Law, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This essay provides an overview of the purposes, themes and scholarly methodologies evidenced at the October 2016 conference, The U.S. Feminist Judgments Project: Writing the Law, Rewriting the Future, a two-day conference hosted by the Center for Constitutional Law at the University of Akron School of Law. This essay provides some of the background to the development of the path-breaking book, Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016). It also focuses attention on the importance of diversity on the bench, with a particular need for judges who understand or experience the intersecting relationships …

Foreword: The Supreme Court's Estate Planning Jurisprudence, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Sophisticated trust and estate counsel must keep up with near-daily developments in the substantive state law of wills, trusts and estates, as well as state and federal laws of wealth transfer taxation. Because of the sheer volume of statutory law and administrative regulations that estate planners must master, it is easy to lose sight of the important role that federal courts play in shaping the field of estate planning. Federal tax cases are routinely heard by the United States Tax Court, the Federal District Courts, the Court of Federal Claims and appellate courts in all circuits. Yet very few tax …

Legal Rhetoric And Social Science: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Pace International Law Review Online Companion

In the realm of American jurisprudence, little draws more excitement or controversy than investigating the role of federal judges in our constitutional order. Yet, at the same time, the scholarly literature has not settled upon a singular descriptive device to explain how federal judges actually carry out this role. In broad strokes, current academic commentary appears to be divided on the issue of whether fidelity to the law or fidelity to political ideology largely determines how judges decide cases. This division, however interesting it may be, should not be afforded the luxury of being examined on a level playing field. …

Legal Holes, Noa Ben-Asher

Elisabeth Haub School of Law Faculty Publications

By explaining the legal holes debate via the lens of science and theology, the essay offers two main insights. First, the essay argues that although the legal holes debate is often understood as simply being about executive measures in emergencies, the debate should also be seen as implicating a broader jurisprudential dispute about the very nature of the legal system. Second, the essay shows that the two approaches bear several surprising similarities--their skepticism of judges, their skepticism of legislators, and, most notably, their use of law-preserving violence.

Social Factoring The Numbers With Assisted Reproduction, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

In late winter 2009, the airwaves came alive with stories about Nadya Suleman, the California mother who gave birth to octuplets conceived via assisted reproductive technology. Nadya Suleman and her octuplets are the vehicles through which Americans express their anxiety about race, class and gender. Expressions of concern for the health of children, the mother’s well-being, the future of reproductive medicine or the financial drain on taxpayers barely conceal deep impulses towards racism, sexism and classism. It is true that the public has had a longstanding fascination with multiple births and with large families. This is evidenced by a long …

Taking Victims Seriously: A Dworkinian Theory Of Punishment, Luis E. Chiesa

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Evolutionary Statutory Interpretation: Mr. Justice Scalia Meets Darwin, Jeffrey G. Miller

Elisabeth Haub School of Law Faculty Publications

This paper examines the seeming contrast between the legal doctrines that the interpretation of statutes can evolve over time and that the interpretation of statutes must be grounded only in their texts, which never change unless amended by Congress. That examination is illuminated by complexity and meme theories. The examination is concluded by applying both doctrines and theories to the question of whether the term “navigable water” in a water pollution control statute includes underground water.

Law, Order And Democracy: An Analysis Of The Judiciary In A Progressive State--The Saskatchewan Experience, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

Current legal debates on the Charter of Rights and Freedoms in Canada have focused on the apparent shift in the location of power from elected representatives to the judiciary since 1982. In this paper, I take an historical perspective on that issue. I will explore the relationship of political power, as exercised by the judiciary through the interpretation of legislation, with concepts of parliamentary supremacy in Saskatchewan during the fist half of this century.

The paper first describes the political character of the judiciary in Saskatchewan from 1905 until 1941, and then describes the political movements which gave rise to …

Chief Justice Nemetz's Judicial Record: Judicial Decision-Making And Judicial Values, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

Much of Chief Justice Nemetz's life has been devoted to the public good and public service - to the betterment of society through law. Through his judgments and through his contribution to the administration of justice in British Columbia and Canada, he has brought the law closer to every one of us. Few of us can appreciate the degree of sacrifice and dedication to the public good which a life of judging requires. For all these reasons, and out of respect for the dedication of the judiciary, lawyers rarely discuss “judicial values" and particularly the values of a specific judge; …