Law Commons^™

Human Rights Reporting As Human Rights Governance, Margaret E. Mcguiness

Faculty Publications

Contrary to the view that the rejection of human rights treaty membership has left the United States outside the formal international human rights system, the United States has played a key role in international human rights governance through congressionally mandated human rights monitoring and reporting. Since the mid-1970s, congressional oversight of human rights diplomacy, which requires reporting on global human rights practices, has integrated international human rights law and norms into the execution of U.S. foreign policy. While the congressional human rights mandates have drifted from their original purpose to condition allocation of foreign aid, they have effectively embedded international …

When Public Defenders And Prosecutors Plea Bargain Race – A More Truthful Narrative, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper challenges prevailing stereotypes about public defenders and prosecutors and updates those stereotypes with a more accurate narrative about how reform-minded public defenders and prosecutors can plea bargain race to yield more equitable justice outcomes.

I was invited to the discussion about criminal justice reform in plea bargaining, because of my work in dispute resolution, dispute system design, and discrimination. Plea bargaining is a justice system negotiation that is used in upwards of 97% of criminal case dispositions. Unlike many of my colleagues in criminal justice reform who have also had years of experience working in the criminal …

Our Collective Work, Our Collective Strength, Renee Nicole Allen

Faculty Publications

This essay considers the collective strength of women of color in two contexts: when we are well represented on law school faculties and when we contribute to accomplishing stated institutional diversity goals. Critical mass is broadly defined as a sufficient number of people of color. Though the concept has been socially appropriated, its origins are scientific. While much of the academic literature encourages diversity initiatives designed to reach a critical mass, social change is not a science. Diversity in numbers may positively benefit individual experiences for women of color, however, diversity alone will not change social norms at the root …

Preventing Predatory Alienation By High-Control Groups: The Application Of Human Trafficking Laws To Groups Popularly Known As Cults, And Proposed Changes To Laws Regarding Federal Immigration, State Child Marriage, And Undue Influence, Robin Boyle-Laisure

Faculty Publications

In this article, I summarize some of the significant legal developments in the United States that have taken place within the past year. First, United States v. Raniere was a criminal case launched against the founder of a purported self-help organization, NXIVM, and several of his associates. The Raniere case established precedent for using the human-trafficking statutes, among other grounds, to pursue justice for victims of high-demand groups. Second, the number of asylum seekers is increasing annually, and some of these undocumented immigrants are escaping from their countries-of-origin cults, gangs, and other extremist groups. However, once they arrive in the …

Attribution Time: Cal Tinney’S 1937 Quip, “A Switch In Time’Ll Save Nine”, John Q. Barrett

Faculty Publications

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.

Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, from 1933 through 1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then, in early 1937, President Roosevelt proposed to “pack”—to enlarge—the Court, so that it would …

Coming To Terms: Using Contract Theory To Understand The Detroit Water Shutoffs, Marissa Jackson Sow

Faculty Publications

After the City of Detroit underwent financial takeover and filed the largest municipal bankruptcy in American history in 2013, the city’s emergency manager encouraged mass water shutoffs as a way of making the city’s water utility a more attractive asset for sale— and for privatization—by ridding the water department of its association with bad debt. The sale never took place, but the water shutoff, too, became the largest ever in American history, with over 141,000 homes subjected to water disconnections over a period of over six years. The governor of the State of Michigan ordered that the shutoffs be temporarily …

Cracking The Whole Code Rule, Anita S. Krishnakumar

Faculty Publications

Over the past three decades, since the late Justice Scalia joined the Court and ushered in a new era of text-focused statutory analysis, there has been a marked move towards the holistic interpretation of statutes and “making sense of the corpus juris.” In particular, Justices on the modern Supreme Court now regularly compare or analogize between statutes that contain similar words or phrases—what some have called the “whole code rule.” Despite the prevalence of this interpretive practice, however, scholars have paid little attention to how the Court actually engages in whole code comparisons on the ground.

This Article provides the …

Victims, Right?, Anna Roberts

Faculty Publications

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks …

Ethical Compass: Three Different Judicial Treatments For Settlement Fever, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This is the first of a three-part series that examines different aspects of the settlement fever that has stricken our justice system. What can we learn from judicial decisions about how individual judges assess the settlement means that lawyers, in consultation with their clients, have chosen to resolve their case?

Rejecting Honorary Whiteness: Asian Americans And The Attack On Race-Conscious Admissions, Philip Lee

Faculty Publications

Since the 1960s, Asian Americans have been labeled by the dominant society as the “model minority.” This status is commonly juxtaposed against so-called “problem” minorities such as African Americans and Latinx Americans. In theory, the model minority narrative serves as living proof that racial barriers to social and economic development no longer exist in America. If Asians can succeed against all odds, the reasoning goes, so can everyone else. Further, if a member of a minority group fails, it is because of their own lack of diligence and ambition, and not some supposed systemic unfairness. However, the model minority narrative …

An Overview Of Brokercheck And The Central Registration Depository, Christine Lazaro, Albert Copeland

Faculty Publications

(Excerpt)

Securities brokers are governed by a unique regulatory framework, subject to both extensive state and federal statutory and regulatory regimes. The vast bulk of federal regulation and oversight of brokers and brokerage firms has been delegated to the Financial Industry Regulatory Authority (“FINRA”), a self-regulatory organization with the power to govern its members’ conduct. FINRA operates under the oversight of the Securities and Exchange Commission (the “SEC”), a federal agency established by the federal securities laws.

FINRA was created on July 26, 2007 through the consolidation of the National Association of Securities Dealers (“NASD”) and the member regulation, enforcement …

We Are In This Together: A Faculty-Led Approach To Fostering Innovation In Online Instruction, Courtney Selby, Rachel H. Smith

Faculty Publications

(Excerpt)

After reviewing this chapter, readers will understand how to:

• Implement a faculty-led approach to improving online instruction at their in­stitutions;
• Convene a faculty task force to spearhead that approach;
• Engage faculty members in productive discussions about the pedagogy of online law teaching;
• Prepare a set of institution-specific recommendations for improved online teaching; and
• Foster a faculty culture invested in innovating online instruction well beyond emergency use.

As so many platitudes tell us, challenges present opportunities. And the challenges of teaching law in a pandemic certainly created an avalanche, a flood, a—pick your natural disaster—of opportunity. Indeed, the sudden switch …

Proposition 22: A Vote On Gig Worker Status In California, Miriam A. Cherry

Faculty Publications

(Excerpt)

In the shadow of the 2020 United States Presidential election, an important vote was also taking place about the employment status of gig workers. In 2019, the California Legislature had enacted AB5, a bill that expanded the definition of “employees” to include workers in the on-demand economy. In response, gig platforms like Uber, Lyft, and Postmates backed a direct ballot initiative, California’s Proposition 22, which asked voters to undo the work of the Legislature. Gig workers would be reclassified as independent contractors, but they would also receive certain benefits, including, among others, the ability to sue for discrimination under …

Addressing Racial Inequities In The Criminal Justice System Through A Reconstruction Sentencing Approach, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Justice reform is having a moment. Across the nation and in the federal government, legislation has passed “to reduce the scale of incarceration and the impact of collateral consequences of a felony conviction.” While some of these reforms were the result of fiscal concerns over mass incarceration, others were in response to the criminal justice reckoning brought on by events of 2020 and intensified calls for racial justice. In the summer of 2020 media attention on the police killings of George Floyd and Breonna Taylor sparked nationwide and global protests and accompanying antiracism pledges by individuals and institutions. This …

Presumed Punishable: Sentencing On The Streets And The Need To Protect Black Lives Through A Reinvigoration Of The Presumption Of Innocence, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

Following the police killing of George Floyd in the summer of 2020, there has been a renewed focus on protecting Black people in America from excessive police violence. While the images of George Floyd were shocking to the public, that level of extreme violence and disregard for life has been a common aspect of the lives of Black Americans throughout history. In America, Black people are "pre­sumed punishable." Due to the historical and persistent biases against Black people, Black people find themselves subject to false assumptions about their criminality and presumptions that they are deserving of punishment. This stands …

That Is Enough Punishment: Situating Defunding The Police Within Antiracist Sentencing Reform, Jalila S. Jefferson-Bullock, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

During the summer of 2020, the police killings of George Floyd, Breonna Taylor, and others created a movement that unearthed a reality that Black people in the United States have always been aware of: systemic racism, in the form of police brutality, is alive and well. While the blatant brutality of George Floyd’s murder at the hands of police is the flame, the spark was ignited long ago. One need only review the record of recent years — the killings of Eric Garner, Michael Brown, Tamir Rice, Antwon Rose, Alton Sterling, Philando Castile, Breonna Taylor, and countless other souls …

Reconstruction Sentencing: Reimagining Drug Sentencing In The Aftermath Of The War On Drugs, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

The year is 2020, and the world has been consumed by a viral pandemic, social unrest, increased political activism, and a history-changing presidential election. In this moment, anti-racism rhetoric has been adopted by many, with individuals and institutions pledging themselves to the work of dismantling systemic racism. If we are going to be true to that mission, then addressing the carnage of the failed War on Drugs has to be among the top priorities. The forty years of treating drug law offenders as enemies of society have left us with decimated communities and have perpetuated a biased view of …

Discovery In Federal Courts In Support Of Foreign Litigation: Lending A Helping Hand Or Legal Imperialism?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

For over a century and a half, Congress has authorized the federal courts to assist in the production of evidence for use in foreign tribunals. In 1948, these provisions were codified at 28 U.S.C. § 1782, which currently provides:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person . . . .”

Historically, invocations for assistance …

Meta Rules For Ordinary Meaning, Anita S. Krishnakumar

Faculty Publications

(Excerpt)

“Ordinary meaning” is a notoriously undefined concept in statutory interpretation theory. Courts and scholars sometimes describe ordinary meaning as the meaning that a “reasonable reader” would ascribe to the statutory language at issue, but it remains unclear how judges and lawyers should go about identifying such meaning. Over the past few decades, as textualism has come to dominate statutory interpretation, courts increasingly have employed dictionary definitions as (purportedly) neutral, and sometimes dispositive, evidence of ordinary meaning. And in the past few years especially, some judges and scholars have advocated using corpus linguistics — patterns of usage across various English …

The Cognitive Power Of Analogies In The Legal Writing Classroom, Patricia G. Montana

Faculty Publications

(Excerpt)

New law students traditionally learn better when they can connect what they are learning to a familiar non-legal experience. Therefore, the use of an analogy, which can be defined as a comparison showing the similarities of two otherwise unlike things to help explain an idea or concept, is an obvious way to facilitate a student’s connection between the new and what is already known. An analogy is a logical step in introducing the complex processes of legal research and analysis by attempting to simplify the alien structure of summarizing that legal research and analysis into a coherent piece of …

From Academic Freedom To Cancel Culture: Silencing Black Women In The Legal Academy, Renee Nicole Allen

Faculty Publications

In 1988, Black women law professors formed the Northeast Corridor Collective of Black Women Law Professors, a network of Black women in the legal academy. They supported one another’s scholarship, shared personal experiences of systemic gendered racism, and helped one another navigate the law school white space. A few years later, their stories were transformed into articles that appeared in a symposium edition of the Berkeley Women’s Law Journal. Since then, Black women and women of color have published articles and books about their experiences with presumed incompetence, outsider status, and silence. The story of Black women in the legal …

Unshackling Plea Bargaining From Racial Bias, Elayne E. Greenberg

Faculty Publications

“History, despite its wrenching pain, cannot be unlived, [but] if faced with courage, need not be lived again.”

Dr. Maya Angelou

When an African American male defendant tries to plea bargain an equitable justice outcome, he finds that the deep-rooted racial bias that casts African American men as dangerous, criminal and animalistic, compromises his justice rights. Plea bargaining has become the preferred process used to secure convictions for upwards of 97 percent of cases because of its efficiency. This efficiency, however, comes at a cost. The structure and process of plea bargaining makes it more likely that the historical racial …

Scarred: The True Story Of How I Escaped Nxivm The Cult That Bound My Life, Robin Boyle Laisure

Faculty Publications

(Excerpt)

Sarah Edmondson provides us with candid insight into the lure of NXIVM, a business built on the promise of empowering members to achieve their personal goals. In the aftermath of the federal criminal trial of the organization’s kingpin, Keith Raniere, we get a deeper understanding of how Raniere and his cadre of manipulators were able to entice people into believing that, by spending thousands of dollars on workshops and following the ever-changing rules of the organization, they would find success.

Enterprise Group Restructuring: Dutch Options And United States Enforcement, G. Ray Warner, Michael Veder

Faculty Publications

On 1 January 2021 the Dutch Wet Homologatie Onderhands Akoord, also referred to as the Dutch scheme, entered into force. The Dutch scheme represents a robust restructuring framework that incorporates many of the main restructuring concepts from both the English scheme of arrangement and US chapter 11. It also adds a few new restructuring tools that will make it easier to restructure enterprise group debt by expressly providing that a restructuring plan may include the release of group guarantees and by adopting liberal jurisdictional rules that should permit proceedings to be opened in the Netherlands for all members of …

Decarceration And Default Mental States, Benjamin Levin

Publications

This Essay, presented at “Guilty Minds: A Virtual Conference on Mens Rea and Criminal Justice Reform” at ASU’s Sandra Day O’Connor College of Law, examines the politics of federal mens rea reform legislation. I argue that current mens rea policy debates reflect an overly narrow vision of criminal justice reform. Therefore, I suggest an alternative frame through which to view mens rea reform efforts—a frame that resonates with radical structural critiques that have gained ground among activists and academics.

Common arguments for and against mens rea reform reflect a belief that the problem with the criminal system is one of …

Slavery And The Postbellum University: The Case Of Smu, Lolita Buckner Inniss, Skyler Arbuckle

Publications

People who practiced slavery across the United States, or engaged in slavery-related practices, were often the same civically-minded social, legal, and economic leaders who founded the nation’s first colleges and universities. There was, thus, from our earliest times, an unacknowledged but firm tie between the values and high ideals of the academy that existed in stark contraposition to the horrors of human bondage that fueled those institutions. Many North American colleges founded before the Civil War relied on money derived from the elite members of society with direct involvements in slavery. While a growing body of scholarly work discusses early …

Humble Pie Is Cold Comfort: Comment On M. Sandel's The Tyranny Of Merit, Daria Roithmayr

Publications

No abstract provided.

Hong Kong And China: Building Bridges Between Two Systems In One Country, Harold Kang

Cardozo Journal of Conflict Resolution

In 1984, Britain and China negotiated an agreement that resulted in Hong Kong's reunification with China over one hundred years after it was surrendered to Britain following the Opium War. The Sino-British Joint Declaration stipulated that although China would exercise territorial sovereignty over Hong Kong, Hong Kong would still maintain a high degree of autonomy until the year 2047. This meant that Hong Kong would have independent executive, legislative, and judicial powers while maintaining its capitalist system and way of life. However, these promisesdespite codification in the Basic Law, which is a quasi-Constitution-do not escape the inherent contradiction in "one …

Website Accessibility Lawsuits: Using Online Dispute Resolution To Provide More Efficient Outcomes Within The Second Circuit, Zachary Kriesberg

Cardozo Journal of Conflict Resolution

No abstract provided.

As Long As You Love Me: The Effects Of Enforcing Prenuptial Agreements On Intimate Partner Violence, Annie L. Zagha

Cardozo Journal of Conflict Resolution

Marriage is a sacrament. Marriage is the life-long commitment of one person to another. Marriage is a safely guarded right, a constitutional protection that has been continually reaffirmed to protect the inviolability of unions. But what happens when a marriage fails to live up to its idealized and fantastical notion and begins to develop into a primary source of mental, physical, and emotional pain for an individual? What takes place when marriage is being used as a shield for coercive-and potentially lethal behavior?