Law Commons^™

Human Rights Protection: The Role Of Institutional Capacity And Selective Adaptation, Pitman B. Potter

All Faculty Publications

This paper will examine the potential application of selective adaptation and institutional capacity to the understanding of international human rights norms and practices. Enforcement of international human rights norms depends on the capacity of intermediary institutions; that is, their ability to perform their assigned tasks. Institutional performance is in turn contingent on domestic political and socio-economic conditions, and as such, local conditions of rapid socio-economic and political transformation pose particular challenges. The other key concept in this paper, selective adaptation, describes a process by which practices and norms are exchanged across cultural boundaries. The dynamic of selective adaptation can operate …

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

All Faculty Publications

Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable …

Keeping Chance In Its Place: The Socio-Legal Regulation Of Gambling, Kate Bedford, Donal Casey, Alexandra Flynn

All Faculty Publications

In this Introduction to the collection, we lay out what these papers offer to the field of gambling research and beyond. To begin, we identify the scholarly approaches to gambling upon which we wish to build (Part I). Then, we specify three contributions we seek to make through our socio-legal endeavors. First, this collection seeks to foreground the diverse, vernacular forms and places of play that are sometimes overlooked in gambling scholarship (Part II). Second, the papers take a distinctive pluralist approach that recognizes the multi-layered character of gambling regulation (Part III). Third, and finally, the interdisciplinary and methodologically diverse …

Borders And Bits, Jennifer Daskal

Vanderbilt Law Review

Our personal data is everywhere and anywhere, moving across national borders in ways that defy normal expectations of how things and people travel from Point A to Point B. Yet, whereas data transits the globe without any intrinsic ties to territory, the governments that seek to access or regulate this data operate with territorial-based limits. This Article tackles the inherent tension between how governments and data operate, the jurisdictional conflicts that have emerged, and the power that has been delegated to the multinational corporations that manage our data across borders as a result. It does so through the lens of …

Restore, Revert, Repeat: Examining The Decompensation Cycle And The Due Process Limitations On The Treatment Of Incompetent Defendants, Margaret W. Smith

Vanderbilt Law Review

Though correctional facilities are one of the largest providers of mental health care in the country, the treatment provided often fails to address the needs of many mentally ill inmates. Indeed, after receiving treatment at a state mental health facility, many pretrial detainees who have been recently restored to competency revert to an incompetent state-or decompensate-upon their return to jail, at which point they must return to the state treatment facility to be restored to competency once again. This Note is the first to explore this "decompensation cycle," highlighting the significance of the problem and demonstrating how mental health treatment …

Invisible Bars: Adapting The Crime Of False Imprisonment To Better Address Coercive Control And Domestic Violence In Tennessee, Alexandra M. Ortiz

Vanderbilt Law Review

On average, three or more women are murdered by their intimate partners in the United States every day. Despite the now well-known correlation between coercive control-the strategic use of oppressive behavior to control primarily female partners-and intimate partner homicide, most states continue to focus their criminal domestic violence laws solely on physical violence. As a result, state laws often fail to protect victims from future and escalating violence. Focusing on Tennessee law and drawing from the work of Evan Stark as well as the United Kingdom's Serious Crime Act of 2015, this Note proposes adapting the preexisting crime of false …

Table Of Contents

Journal of Dispute Resolution

No abstract provided.

Introduction To “Dispute Resolution And Political Polarization", Rafael Gely

Journal of Dispute Resolution

Dispute resolution practitioners and scholars know conflict. In fact, some would say that we love conflict. And yet, despite our affinity with conflict, the polarization that is evident in today’s public space has been disconcerting. While we generally operate in a space where we are constantly exploring options, seeking compromise, helping participants explore their interests and finding ways to move towards agreement, what seems like an inability to even engage in any kind of dialogue is troubling. These and other related concerns led the editors of the Journal of Dispute Resolution to solicit contributions from seven well-known conflict resolution scholars …

Living With No: Political Polarization And Transformative Dialogue, Erik Cleven, Robert A. Baruch Bush, Judith A. Saul

Journal of Dispute Resolution

We argue that dispute resolution processes should not be seen as a substitute for the political process, but rather a complement that can help strengthen it. Based on this view, and on the authors’ experience with dialogue work in the former Yugoslavia, as well as in urban and rural settings in the United States, we argue that transformative processes, specifically an approach we call Transformative Dialogue, are best suited to addressing the challenges of political polarization both in the United States and internationally. This is because the primary goal of transformative processes is not to reach agreement or find common …

One Idea For Ameliorating Polarization: Reviving Conversations About An American Spirit, Nancy H. Rogers

Journal of Dispute Resolution

Historian David McCullough tells those discouraged about the nation’s current problems that Americans have an “inexhaustible source of strength”: “our story, our history, who we are, how we got to where we are, … all we have been through, what we have achieved” and our “national ambitions.” McCullough calls this the “American spirit” and urges Americans to articulate a current version. Some might express pessimism about this project – after all, one poll indicates that most Americans think we are losing an American spirit. Other commentators agree with McCullough, though, that Americans should endeavor to identify an American spirit that …

Title Page

Journal of Dispute Resolution

No abstract provided.

Building Conflict Resilience: It's Not Just About Problem-Solving, Robert C. Bordone

Journal of Dispute Resolution

Political polarization in the United States and internationally has increased enormously in the past decade, resulting in legislative impasse in some countries, political instability and partisan re-alignment in others, and decreased levels of communication, trust, and cooperation across partisan lines in schools, communities, and across the nation. As partisan polarization has increased, I have observed several perceptible changes in the way law school students engage each other around political differences and conflict in the classroom. From conversations with my colleagues, I am not alone in observing these trends.

Inherently Unneutral Investment Treaty Arbitration: The Formation Of Decisive Arguments In Jurisdictional Determinations, Relja Radovic

Journal of Dispute Resolution

The legitimacy crisis of investment treaty arbitration is much discussed, often challenging the neutrality of that system as a whole. Besides concentrating on the direction in which cases are being decided, or in which the law is being interpreted, the neutrality of investment treaty arbitration as a system can also be discussed from the perspective of its foundations. This article looks at the arbitral use of the two basic ideals of investment treaty arbitration, namely the legalistic and teleological notions, in the formation of decisive arguments, in the particular context of jurisdictional decisions. It examines to what extent the two …

State Legislative Update, Ryan Corrigan, Samantha Groark, Alison Matusofsky, John Roark, Joshua Sieg

Journal of Dispute Resolution

No abstract provided.

Adr That Is Out Of This World: A Regime For The Resolution Of Outer-Space Disputes, George Khoukaz

Journal of Dispute Resolution

The United States’ interest in enlarging and increasing its presence in outer space is an extension of its current geographically extensive military presence around the globe. These outer-space exploratory goals are compared to the expansionist aspirations of ocean-born European empires of the 17th and 18th centuries; and therefore project a future where nations will compete over space-control to gain a geostrategic advantage on Earth.

Seeking Recognition And Enforcement Of Foreign Court Judgments And Arbitral Awards In Egypt And The Mashriq Countries, Nicolas Bremer

Journal of Dispute Resolution

Asserting a claim in an international transaction is often complex. If a transaction involves parties from different countries, the venue of dispute resolution will often be in a jurisdiction different from that where enforcement may have to be sought. In such a case, any ruling obtained will have to be recognized by the competent authority of the country where enforcement is sought (known as requested country). Obtaining recognition of a foreign ruling in the Middle East and North Africa is considerably challenging. Despite some progress having been made over the last decade, local courts are still rather reserved towards foreign …

Mediating Farm Nuisance: Comparing New Jersey, Missouri, And Iowa Right To Farm Laws And How They Utilize Mediation Techniques, Gina Moroni

Journal of Dispute Resolution

Is it a right to farm, or a right to be a bad neighbor? The ability to sue a neighbor who farms claiming nuisance is largely dependent on each state’s right to farm law. Just because there is a nuisance claim that can be filed in court does not necessarily mean the complaint should be heard in court. Instead, mediation can be a low cost, confidential, and even binding alternative which helps parties resolve their disputes in creative ways. Section II of this Comment examines what right to farm laws do, the agricultural dynamics that led to the creation of …

Online Dispute Resolution For Divorce Cases In Missouri: A Remedy For The Justice Gap, Danielle Linneman

Journal of Dispute Resolution

This Comment will analyze the use of ODR for divorce disputes in Missouri by first explaining the use of ODR and then analyzing its evolution. How ODR has grown on a global level and entered the realm of family law will also be viewed, as well as how other countries have used ODR to successfully resolve divorce case disputes. Recent proposals in the United States for use of ODR programs to resolve domestic disputes will be discussed, before evaluating how ODR programs could be implemented into Missouri’s legal system as a way to begin shaping the future of America’s family …

Remaking The Public Law Library Into A Twenty-First Century Legal Resource Center, Mark G. Harmon, Shannon Grzybowski, Bryan Thompson, Stephanie Cross

Criminology and Criminal Justice Faculty Publications and Presentations

This article reviews the current operations of Multnomah County, Oregon’s public law library and assesses the feasibility of creating a legal resource and self-help center within the library. The article reviews common governance models of law libraries and common self-help models, supplemented by interviews with key stakeholders. We conclude that the county could greatly benefit from a self-help center and make recommendations of best practices.

Legacies Of Industrial Contamination: Voices Of Resistance In White Lake, Michigan, Elizabeth A. Revord

Cal Poly Humboldt theses and projects

This research presents a case study of resistance to contamination from three large chemical plants by activists in the communities of Montague and Whitehall located on White Lake, Michigan. Although clean-up efforts have met state and federal guidelines for brownfield and Superfund sites, the people and community of White Lake have continued to be vigilant regarding environmental protection and harbor many concerns regarding their future and redevelopment of sites that are likely still contaminated.

The connection to place and sense of community that the residents of White Lake honor is the foundation of their resistance. Using data collected from semi-structured …

Access To Consumer Bankruptcy, Pamela Foohey

Articles by Maurer Faculty

This essay examines the state of access to justice in the context of consumer bankruptcy from two vantage points: (1) how people decide that their money problems are legal problems addressable by filing bankruptcy; and (2) the barriers people face in using the consumer bankruptcy system. To shed new light on how people decide to use bankruptcy to address their financial troubles, I analyze a sample of narratives accompanying consumers' complaints about financial products and services submitted to the Consumer Financial Protection Bureau. I also chronicle the evolution of research regarding consumer bankruptcy’s “local legal culture,” systemic racial bias, and …

"We Only Spy On Foreigners": The Myth Of A Universal Right To Privacy And The Practice Of Foreign Mass Surveillance, Asaf Lubin

Articles by Maurer Faculty

The digital age brought with it a new epoch in global political life, one neatly coined by Professor Philip Howard as the “pax technica.” In this new world order, government and industry are “tightly bound” in technological and security arrangements that serve to push forward an information and cyber revolution of unparalleled magnitude. While the rise of information technologies tells a miraculous story of triumph over the physical constraints that once shackled mankind, these very technologies are also the cause of grave concern. Intelligence agencies have been recently involved in the exercise of global indiscriminate surveillance, which purports to go …

Two Steps Forward, One Step Back: Developments In The Law Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

Our past surveys have observed that frequent changes in the rules surrounding electronic payments-spurred by both regulation and enforcement actions create uncertainty and make forward progress difficult for many providers. This survey year is no exception: regulators have taken "two steps forward, one step back" on a number of fronts. This survey reports on (1) the proposal by the Office of the Comptroller of the Currency ("OCC") regarding "fintech" charters, which states have challenged in actions still pending- (2) changes to Regulation CC regarding remote check deposit and disputes over altered or forged checks-(3) the Supreme Court's decision in Expression …

Reaching And Teaching Millennials: Designing The Future Of Student Services, Kimberly Mattioli, Brian Detweiler, Mike Martinez Jr.

Articles by Maurer Faculty

Today’s students have come to expect library services that are quite different from their predecessors and law librarians must evolve to meet their needs. As law libraries in the United States face the realities of declining enrolment and decreasing budgets, it is imperative that we find new and creative ways to build positive relationships with our students while also preparing them for the realities of practicing law in an environment driven by rapid technological change. Three law librarians from the United States, Brian Detweiler, Kimberly Mattioli, and Mike Martinez, Jr., discuss their successes and failures in reaching out to their …

Is There A Future For Work?, Wendi S. Lazar, Nantiya Ruan

Scholarly Works

No abstract provided.

Legal Activism In The Face Of Political Challenges: The Nigerian Case, Jayanth K. Krishnan, Kunle Ajagbe

Articles by Maurer Faculty

Countries that move from authoritarianism to democracy often see increased rights-based, social justice lawyering after the transition. Given the new freedoms and opportunities present, this outcome is hardly surprising. However, relying on a literature and theoretical frame developed over the past two decades, this study argues that, in fact, such lawyering can have its historical roots in the legal activism that occurred during previous authoritarian periods. Consider Africa’s most populous country – Nigeria. Since gaining independence in 1960, Nigeria has witnessed, in total, nearly 30 years of military dictatorship. In 1999, the country adopted a democratic system of government, which …

Life In The Sweatbox, Pamela Foohey, Robert M. Lawless, Katherine Porter, Deborah Thorne

Articles by Maurer Faculty

The time before a person files bankruptcy is sometimes called the financial “sweatbox.” Using original data from the Consumer Bankruptcy Project, we find that people are living longer in the sweatbox before filing bankruptcy than they have in the past. We also describe the depletion of wealth and well-being that defines people’s time in the sweatbox. For those people who struggle for more than two years before filing bankruptcy—the “long strugglers”—their time in the sweatbox is particularly damaging. During their years in the sweatbox, long strugglers deal with persistent collection calls, go without healthcare, food, and utilities, lose homes and …

Dead Canaries In The Coal Mines: The Symbolic Assailant Revisited, Jeannine Bell

Articles by Maurer Faculty

The well-publicized deaths of several African-Americans—Tamir Rice, Philando Castile, and Alton Sterling among others—at the hands of police stem from tragic interactions predicated upon well-understood practices analyzed by police scholars since the 1950s. The symbolic assailant, a construct created by police scholar Jerome Skolnick in the mid-1960s to identify persons whose behavior and characteristics the police view as threatening, is especially relevant to contemporary policing. This Article explores the societal roots of the creation of a Black symbolic assailant in contemporary American policing.

The construction of African-American men as symbolic assailants is one of the most important factors characterizing police …

Moving Forward After Daca: Student Stories And Town Hall, Hastings Race And Poverty Law Journal

UC Law Journal of Race and Economic Justice

No abstract provided.

Masthead

UC Law Journal of Race and Economic Justice

No abstract provided.