Law Commons^™

Design Justice In Municipal Criminal Regulation, Amber Baylor

Faculty Scholarship

This article explores design justice as a framework for deeper inclusion in municipal criminal court reform. Section I provides a brief summary of a typical litigant’s path through modern municipal courts. Then, section I explores the historic role of municipal courts, the insider/outsider dichotomy of municipal criminal regulation, and the limitations of past reform efforts. Section II shifts into an overview of participatory design and discusses the new emergence of design justice. Within the discussion of design justice, the article focuses on three precepts of design justice: excavating the history and impact of the courts, creating tools for participation, and …

Red Mining: Mining And The Right To Water In Porgera, Papua New Guinea, Human Rights Institute, Earth Institute

Human Rights Institute

An interdisciplinary study of the human right to water in the villages near the Porgera Joint Venture (PJV) gold mine in Papua New Guinea (PNG) finds that local residents do not have consistent access to sufficient, acceptable, and safe water, or adequate information about their water resources. It concludes that the PNG government and the mining companies Barrick Gold and Zijin Mining, as well as their jointly controlled operator of the mine, Barrick (Niugini) Limited (BNL), can do more to meet their human rights obligations and responsibilities.

Autonomy For Contract, Refined, Hanoch Dagan, Michael A. Heller

Faculty Scholarship

In The Choice Theory of Contracts, we advance a claim about the centrality of autonomy to contract. This Issue offers thoughtful and penetrating critiques. Here, we reply. Autonomy is the grounding principle of contract. In Choice Theory, we stressed the (1) proactive facilitation component of autonomy, in particular, the state’s obligation regarding contract types. Here, we highlight two additional, necessary implications of autonomy for contract: (2) regard for future selves and (3) relational justice. These three aspects of autonomy shape the range, limit, and floor, respectively, for the legitimate use of contract. They provide a principled and constrained path for …

Can A Little Representation Be A Dangerous Thing?, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and …

Law Reform Agenda As Ali Approaches Its Centennial, Lance Liebman

Faculty Scholarship

The American Law Institute and I are happy and proud that the Brooklyn Law School and its Law Review chose to hold an important conference about ALI work, to persuade such an outstanding group of scholars to write such varied and interesting papers, and now to publish their work. I am especially happy because, as I near the end of my service as ALI Director, these papers give me an opportunity to reflect on the projects, perfect and imperfect, that the ALI accomplished (or attempted and failed to accomplish) in our effort to improve the American legal system.

Inter Arma Enim Non Silent Leges, Philip C. Bobbitt

Faculty Scholarship

There is good reason to think that law and war have nothing to do with one another, and this has certainly been so for most of the lifetime of mankind. Cicero's famous observation-silent enim leges inter arma – from which I take my title, was not a novel insight when uttered in 52 B.C. and in any case was not said in the context of war, but of a prosecution for murder in the aftermath of the Roman riots of that era between the partisans of the populares and optimates. Clausewitz, however, said much the same thing when he decried …

Family Law Cases As Law Reform Litigation: Unrecognized Parents And The Story Of Alison D. V. Virginia M., Suzanne B. Goldberg

Faculty Scholarship

Although the gap between law and lived experience comes as no surprise to most people, the divergence is especially striking – and disturbing – in the area of family law. Legal training quickly reveals that love is not a foundational element of family law, yet it can still be jarring to find that love has little, if any, bearing on the contours of the legal family. Love, after all, does not account for who can and cannot marry. Nor does the past love of an unmarried couple trigger the protections of divorce should the couple separate.

When children are involved, …

Domestic Partnerships, Implied Contracts, And Law Reform, Elizabeth S. Scott

Faculty Scholarship

The domestic partnership chapter of the Principles is the shortest chapter, but, as the contributions to this volume suggest, among the most interesting to many people. The legal regulation of informal intimate unions generally and particularly the Principles' approach of creating a status that carries the legal rights and obligations of marriage between cohabiting parties have generated considerable debate. In some quarters, the domestic partnership provisions are admired as an effective mechanism to protect dependent partners in marriage-like unions who otherwise may be unable to establish claims to property and support when their relationships end. Others praise the Principles for …

Bird In A Cage: Chinese Law Reform After Twenty Years, Stanley B. Lubman

Hong Yen Chang Center for Chinese Legal Studies

I am grateful to the editors of this journal for inviting me to return to its pages to help mark the twentieth anniversary of its inaugural issue. History now tells us that publication of that first issue happened to coincide with the beginning of an extraordinary period in Chinese history that has seen extensive reforms transform the Chinese economy and Chinese society. These reforms, no less dramatic than the revolutionary transformations of the 1950s, have caused law to gain unprecedented importance in Chinese society. The Journal's anniversary provides an opportunity to review some of the major characteristics of Chinese legal …

State-Local Relations And Constitutional Law, Richard Briffault

Faculty Scholarship

A persistent theme in the literature on state-local relations has been the plenary power of state governments and the legal powerlessness of local governments. The "black letter" rules of state-local relations are that the state governments enjoy complete hegemony over their political subdivisions, that local governments are mere "creatures" of the states, with only those powers that the states delegate to them, and there is no such thing as an "inherent right" of local self-government.

The Theory Of Criminal Negligence: A Comparative Analysis, George P. Fletcher

Faculty Scholarship

Negligence is a problematic ground for criminal liability. Every major Western legal system punishes negligent as well as intentional violations of protected interests; but theorists both here and abroad feel uneasy about the practice Negligent motoring and negligent manufacturing significantly threaten the public interest; yet Western judges seem more comfortable punishing counterfeiters and prostitutes than imposing sanctions against those who inadvertently take unreasonable risks. Negligence appears indeed to be an inferior, almost aberrant ground for criminal liability. Every interest protected by the criminal law is protected against intentional violations; but only a few-life, bodily integrity, and sometimes property-are secured against …