Law Commons^™

Technologies Of Language Meet Ideologies Of Law, Anya Bernstein

Journal Articles

No abstract provided.

Copyright And The Brain, Mark Bartholomew

Journal Articles

This Article exploresthe intersection of copyright law, aesthetic theory, and neuroscience. The current test for copyright infringement requires a court or jury to assess whether the parties’ works are “substantially similar” from the vantage point of the “ordinary observer. ”Embedded within this test are several assumptions about audiences and art. Brain science calls these assumptions into question. The substantial similarity test posits that aesthetic reactions are unmeasurable and uniform. In actuality, they can be quantified and vary depending on audience and artistic medium. Neuroscience has already reconfigured the law in many areas, from tort damages to the death penalty. Now …

Echoes Of 9/11: Rhetorical Analysis Of Presidential Statements In The "War On Terror", Bruce Ching

Journal Articles

This article examines persuasive statements by Presidents George W. Bush, Barack Obama, and Donald Trump involving appeals to national identity as a rhetorical foundation for anti-terrorism policy since 9/11. Their specific rhetorical methods have included the use of memorable catchphrases, alliteration, metaphorical framing, and contrast between values of the United States and those of the terrorists. President Bush focused on rallying the nation’s response against the perpetrators of the 9/11 attacks, identifying the U.S. with “freedom itself” and invoking the phrase “War on Terror.” President Obama emphasized the importance of the nation’s values while denouncing the Bush administration’s torture of …

Reversing The Decriminalization Of Sexual Violence, Lisa Avalos

Journal Articles

Sexual violence has largely been decriminalized in the United States through disbelief of victims, apathy on the part of law enforcement officers, and inaction on the part of institutions. Indeed, these mechanisms are so effective at burying the problem that most people are not aware of the extent of unprosecuted sexual violence, the woefully deficient law enforcement response, and the need for sweeping reform. The Article proceeds in two parts. Part I maps the extent of this problem and argues that the weakest link in the societal response to sexual assault lies at the juncture between victim and law enforcement. …

States Of Uncertainty: The Origins Of Law And Community In Three American Towns, David M. Engel

Journal Articles

From Festschrift for Carol Greenhouse

El Dilema Democrático De La Refrendación Directa De Los Acuerdos De Paz [The Democratic Dilemma Of The Popular Ratification Of Peace Agreements], Jorge Luis Fabra-Zamora

Journal Articles

En este ensayo se explora el “dilema democrático” que surge en la refrendación directa de los acuerdos de paz, es decir, en las consultas adelantadas para que la ciudadanía apruebe o rechace el convenio alcanzado por las partes para la terminación de un conflicto. El dilema presenta dos cuernos, por un lado, es necesario que la comunidad afectada por el acuerdo lo refrende para su legitimidad y viabilidad, y por el otro lado, que los mecanismos democráticos de consulta directa tienen serias dificultades para adelantar tal refrendación. El objetivo principal de este estudio es proporcionar una caracterización del dilema que …

Sexual Lynching, Luis E. Chiesa

Journal Articles

Different groups of people experience rape in different ways. Empirical evidence confirms that women fear rape considerably more than men, that incarcerated males fear being sexually assaulted more than non-incarcerated males, and that transgender individuals are more fearful of being raped than cisgender individuals. In the case of women, fear of rape often conditions many decisions females make, including what to wear, where to go, and how much to drink. In the prison context, fear of rape leads many men to adopt overly aggressive behaviors as a way of safeguarding against being raped. Genderqueer people often follow a series of …

Climbing To 1011: Globalization, Digitization, Shareholder Capitalism And The Summits Of Contemporary Wealth, David A. Westbrook

Journal Articles

While we may find many sorts of inequality in the United States and elsewhere, this essay is about the specific form of inequality exemplified by Jeff Bezos or Bill Gates, that is, the Himalayan summits of contemporary wealth, mostly in the United States. Such wealth results from the confluence of three historical developments.

First, the social processes referred to under the rubric of “globalization” have created vast markets. A dominant position in such markets leads not only to great wealth, but the elimination of peers. Since there are few such markets, relatively significant wealth is possessed by very few people. …

Democratic Legitimacy Under Conditions Of Severely Depressed Voter Turnout, James A. Gardner

Journal Articles

Due to the present pandemic, it seems increasingly likely that the 2020 general election in November will be held under conditions of unprecedented downward pressure on voter turnout. The possibility of severely depressed turnout for a highly consequentialpresidential election raises troubling questions of democratic legitimacy. Although voter turnout in the United States has historically been poor, low turnout is not usually thought to threaten the legitimacy of electoral processes when it results from voluntary abstention and is distributed unsystematically. Conversely, electoral legitimacy is often considered at risk when nonvoting is involuntary, especially when obstacles to voting fall systematically on specific …

Lessons From A Journey Through State Subnational Constitutional Law, James A. Gardner

Journal Articles

No abstract provided.

Presidential Ideology And Immigrant Detention, Catherine Y. Kim, Amy Semet

Journal Articles

In our nation’s immigration system, a noncitizen charged with deportability may be detained pending the outcome of removal proceedings. These individuals are housed in remote facilities closely resembling prisons, with severe restrictions on access to counsel and contact with family members. Given severe backlogs in the adjudication of removal proceedings, such detention may last months or even years.

Many of the noncitizens initially detained by enforcement officials have the opportunity to request a bond hearing before an administrative adjudicator called an Immigration Judge (IJ). Although these IJs preside over relatively formal on-the-record hearings and are understood to exercise “independent judgement,” …

How Mobile Homes Correlate With Per Capita Income, Randall K. Johnson

Journal Articles

This study explores the nature of the relationship between the number of state-regulated mobile homes and per capita income, so as to determine whether higher-income parts of Illinois have more mobile homes than would be predicted by a recent BBC News article. It does so by identifying a simple way to determine the direction and strength of any relationship between mobile homes and per capita income, which that article assumes to be negative, if only at the county level in Illinois. The study, specifically, collects and analyzes mobile home data from Illinois and per capita income data from the U.S. …

Let The Jury Decide! A Plea For The Proper Allocation Of Decision-Making Authority In Louisiana Negligence Cases, Thomas C. Galligan Jr.

Journal Articles

No abstract provided.

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Journal Articles

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake …

An Empirical Study Of Political Control Over Immigration Adjudication, Catherine Y. Kim, Amy Semet

Journal Articles

Immigration plays a central role in the Trump Administration’s political agenda. This Article presents the first comprehensive empirical assessment of the extent to which immigration judges (IJs), the administrative officials charged with adjudicating whether a given noncitizen will be deported from the United States, may be influenced by the presidential administration’s political preferences.

We constructed an original dataset of over 830,000 removal proceedings decided between January 2001 and June 2019 after individual merits hearings. First, we found that every presidential administration—not just the current one—disproportionately appointed IJs with backgrounds in the former Immigration and Naturalization Service, the Department of Homeland …

Describing Law, Raff Donelson

Journal Articles

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law's nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as practical claims about how we should view law or order our society (pragmatism). This paper argues …

The Specific Consumer Expectations Test For Product Defects, Clayton J. Masterman, W. Kip Viscusi

Journal Articles

In this Article, we propose that courts adopt an amended version of the consumer expectations test that we call the “specific consumer expectations test.” The specific consumer expectations test would apply to any product or product component for which consumers have clear, articulable ex ante expectations about the function of the product. Under the specific consumer expectations test, a defendant is liable if consumers expected such a product to reduce a particular risk, and the product in fact increased that risk. Similarly, if a product was intended to convey a particular benefit, but in fact harmed consumers along the same …

Promoting International Procedural Norms In Competition Law Enforcement, Roger P. Alford

Journal Articles

It is a pleasure to participate in the 2019 Kansas Law Review Symposium, "Antitrust Law and Policy in the 21st Century." Antitrust is once again a hot topic and discussion about how to effectively enforce the laws in a digital age is generating widespread attention. My focus will be on the topic of promoting fundamental due process in competition law investigation and enforcement. With competition authorities around the globe becoming increasingly more active, it is one of the most important topics on the antitrust agenda. And this year, we witnessed a watershed moment with the adoption of a new framework …

Selective Incompatibilism, Free Will, And The (Limited) Role Of Retribution In Punishment Theory, Luis E. Chiesa

Journal Articles

No abstract provided.

The Constitutional Convention And Constitutional Change: A Revisionist History, Matthew J. Steilen

Journal Articles

How do we change the Federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland.

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and leg-islatures to be used for amendment, and, as it happens, all but one of the 27 amendments to the Constitution have …

Fleshy Encounters: Meddling With Zoo And Aquarium Veterinarians, Irus Braverman

Journal Articles

This article aims to make visible expert practices that take place behind closed doors and that are perceived as being of no concern to the public, who wouldn’t understand them anyway. The experts that this article is concerned with are medical practitioners of a particular kind: zoo and aquarium veterinarians. I utilize both text and multimedia presentations to allow the veterinarians I interviewed to directly explain their work to the reader, who may then experience this work, the space and environment where it is performed, and the tools with which it is conducted, on a more affective and sensorial plane. …

Presidential Whim, Matthew J. Steilen

Journal Articles

This article describes a new body of legal literature on the presidency. In contrast to older bodies of writing, which emphasize presidential independence, this body of writing emphasizes the dependence of the executive power, and a set of moral values associated with the office: faith, faithfulness, responsibility, honesty, due care, and professionalism, among others. The article considers prospects for enforcing this vision of the presidency in light of the particular problems posed by the Trump presidency. Many writers have complained of President Trump's leadership style, which is abrupt, reflexive, dissembling, and unilateral. I refer to this as the problem of …

Secrecy & Evasion In Police Surveillance Technology, Jonathan Manes

Journal Articles

New technologies are transforming the capabilities of law enforcement. Police agencies now have devices to track our cellphones and software to hack our networks. They have tools to sift the vast quantities of digital silt we leave behind on the Internet. They can deploy “big data” algorithms meant to predict where crimes will occur and who will commit them. They have even transformed the humble closed-circuit video camera—and its more recent companion, the body camera—into biometric tracking devices equipped with artificial intelligence meant to pick faces out of a crowd and, eventually, to mine gigabytes of stored footage to automatically …

Vicarious Trauma And Ethical Obligations For Attorneys Representing Immigrant Clients: A Call To Build Resilience Among The Immigration Bar, Hannah C. Cartwright, Lindsay M. Harris, Liana M. Montecinos, Anam Rahman

Journal Articles

This article analyzes the ethical obligations for attorneys representing immigrant clients and the consequences of vicarious trauma, compassion fatigue, and burnout for the immigration bar and immigrant clients. The authors identify barriers for immigration attorneys in preventing, recognizing, and responding to vicarious trauma in themselves and colleagues and suggest practical ways that the immigration bar can and should seek to build resilience.

Invisible Article Iii Delinquency: History, Mystery, And Concerns About "Federal Juvenile Courts", Mae C. Quinn, Levi T. Bradford

Journal Articles

This essay is the second in a two-part series focused on our nation’s invisible juvenile justice system—one that operates under the legal radar as part of the U.S. Constitution’s Article III federal district court system.1 The first publication, Article III Adultification of Kids: History, Mystery, and Troubling Implications of Federal Youth Transfers, 2 examined the little-known practice of prosecuting children as adults in federal courts. This paper will look at the related phenomenon of juvenile delinquency matters that are filed and pursued in our nation’s federal court system.3 To date, most scholarship evaluating youth prosecution has focused on our country’s …

The Ground On Which We All Stand: A Conversation About Menstrual Equity Law And Activism, Marcy L. Karin, Bridget J. Crawford, Margaret E. Johnson, Laura Strausfeld, Emily Gold Waldman

Journal Articles

This essay grows out of a panel discussion among five lawyers on the subject of menstrual equity activism. Each of the authors is a scholar, activist, or organizer involved in some form of menstrual equity work. The overall project is both enriched and complicated by an intersectional analysis. This essay increases awareness of existing menstrual equity and menstrual justice work; it also identifies avenues for further inquiry, next steps for legal action, and opportunities that lie ahead. After describing prior and current work at the junction of law and menstruation, the contributors evaluate the successes and limitations of recent legal …

A Starting Point For Disability Justice In Legal Education, Christina Payne-Tsoupros

Journal Articles

This article explores how a disability justice framework would provide greater access to law school and therefore the legal profession for disabled students of color; specifically, disabled Black, Indigenous, and Latinx students. Using DisCrit principles formulated by Subini Annamma, David Connor, and Beth Ferri (2013), this article provides suggestions for incorporating a disability justice lens to legal education. In doing so, this article specifically recognizes the work of three disability justice activist-attorney-scholars, Lydia X.Z. Brown, Talila “TL” Lewis, and Katherine Pérez, and considers lessons from their advocacy and leadership that can apply in the law school setting.

The Invisible Prison: Pathways And Prevention, Margaret Brinig, Marsha Garrison

Journal Articles

In this paper, we propose a new strategy for curbing crime and delinquency and demonstrate the inadequacy of current reform efforts. Our analysis relies on our own, original research involving a large, multi-generational sample of unmarried fathers from a rust-belt region of the United States as well as the conclusions of earlier researchers.

Our own research data are unusual in that they are holistic and multigenerational: The Court-based record system we utilized for data collection provided detailed information on child maltreatment, juvenile status and delinquency charges, child support, parenting time, orders of protection, and residential mobility for focal children (the …

Conscience And Justice In Equity: Comments On Equity: Conscience Goes To Market, Paul B. Miller

Journal Articles

This short essay introduces and engages several philosophical questions raised by Irit Samet’s Equity: Conscience Goes to Market. Amongst other things, it addresses questions going to: the proper scope of equity; the relationship between equity’s remedial and supplemental functions; whether, and if so, to what extent equity promotes compliance with moral obligations; what, if any, moral aims animate equitable intervention; and whether, and if so, how, equity is distinctively concerned with matters of conscience and “particular” justice. All the while, I express appreciation for Samet’s project while raising some doubts about her views on how law and equity divide labor …

Forgotten Borrowers: Protecting Private Student Loan Borrowers Through State Law, Judith Fox

Journal Articles

Private student loan borrowers arguably have the fewest protections of any users of credit in the United States. In a scarcely debated amendment to federal bankruptcy law, in 2005 private student lenders gained the same protections against discharge previously afforded to federal student lenders. Yet, private student loan borrowers received none of the rights available to federal student loan borrowers. These include income-driven repayment, relief from repayment on disability, loan discharge for fraud or closed schools, and public service loan forgiveness. Private student loan borrowers thus have neither the bankruptcy protections afforded to non-student loan debtors nor the repayment and …