Law Commons^™

Arresting Assembly: An Argument Against Expanding Criminally Punishable Protest, Allison Freedman

Faculty Scholarship

ARRESTING ASSEMBLY: AN ARGUMENT AGAINST EXPANDING
CRIMINALLY PUNISHABLE PROTEST
ALLISON M. FREEDMAN

ABSTRACT

In recent years, public protests have shed light on societal inequities that had previously gone unheard. Yet instead of responding to protesters’ concerns, many state legislators are attempting to silence disenfranchised groups by introducing hundreds of “anti-protest” bills. This is a recent phenomenon and one that is accelerating—the largest wave of “anti-protest” bills was introduced on the heels of the most robust protest movement in recent history, Black Lives Matter during the summer of 2020.

Although it is clear that legislators are attempting to tamp down public …

Race, Gender, And Class Conscious Approaches To Mentoring, Verónica C. Gonzales

Faculty Scholarship

A presentation designed to teach attendees how to understand how identity is relevant to academic rigor and other "colorblind" standards; to learn best practices for mentoring students from traditionally underrepresented and excluded groups; and how to apply social justice frameworks to enhance diverse mentor-mentee relationships and outcomes.

From The Devine Gift To The Devil's Bargains: Asian Americans In The Ideology Of White Supremacy, Vinay Harpalani

Faculty Scholarship

White supremacy is complex, evolving, and ever nuanced in all of its aspects, including its positioning of Asian Americans. Through different lenses, Stacy Hawkins, Robert Chang, Matthew Shaw, and Shakira Pleasant challenge me to interrogate this positioning even further. My reply can only begin to do so, but this colloquy will also inspire my future writings. In delineating my thoughts, I also draw inspiration from my mentor, the late Derrick Bell, whose insights have consistently informed my work.

Climate, Health, And Equity Implications Of Large Facility Pollution Sources In New Mexico, Gabriel Pacyniak, Angélica Ruiz, Shannon Sanchez-Youngman, Elena Krieger

Faculty Scholarship

In 2019, New Mexico Governor Michelle Lujan Grisham issued an executive order establishing a goal of cutting New Mexico greenhouse gas (GHG) emissions 45 percent by 2030.1 In parallel, the state legislature enacted the 2019 Energy Transition Act (ETA), which requires New Mexico utilities to decarbonize their electricity supply by 2045.2 In keeping with these actions, state agencies issued regulations to reduce GHG emissions from oil and gas and transportation sources and to implement the ETA.

These ambitious policies are essential to address the climate-driven extreme weather events, such as record-breaking wildfires, drought, and heat, which are already impacting New …

Keeping All The Lights On: A Roadmap To Affordable, Universal Electricity Service In The Clean Energy Transition, Gabriel Pacyniak

Faculty Scholarship

The COVID-19 pandemic, the ongoing reckoning with structural racism, and an emerging focus on justice in the clean energy transition have combined to spotlight utility disconnections and the related issues of energy access, affordability, and security. Recent empirical scholarship has demonstrated that electricity disconnections of lower-income people are relatively common, disproportionately affect people of color, and cause significant harm. This Article describes how a number of U.S. states are fashioning an emerging policy model that makes significant progress toward truly affordable and accessible electricity service for all. It also describes how these state actions are consistent with U.S. utility law …

Masking Vulnerability: Including Ppe As A Covered Service In Health Insurance, Mary Leto Pareja

Faculty Scholarship

The COVID-19 pandemic laid bare the shared vulnerability inherent in the human condition, prompting a collective recognition of our physical susceptibility to infectious diseases. While great strides have been made in combating COVID-19 through vaccinations and treatments, a portion of the population remains profoundly vulnerable due to health conditions that make the disease more dangerous, that limit vaccine efficacy, or that prevent vaccination altogether. This article explores a path forward by proposing a solution within health benefit plans—encompassing both private health insurance and public health benefits. Specifically, the article advocates for a coverage mandate for over-the-counter personal protective equipment (PPE) …

The Need For An Asian American Supreme Court Justice, Vinay Harpalani

Faculty Scholarship

In her insightful Comment on Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina (hereinafter SFFA cases), Dean Angela Onwuachi-Willig critiques Chief Justice Roberts’s majority opinion for its “simplistic understanding of race and racism.” She interrogates the “doxa” — the “unexamined cultural beliefs” that structure the majority’s narrative on racial experiences. Onwuachi- Willig elucidates how Chief Justice Roberts accepts whiteness as a tacit norm and ignores the marginalization of people of color. She contrasts this with the “fuller” history of American racism brought forth by Justices …

Achieving Climate Justice Through Land Back: An Overview Of Tribal Dispossession, Land Return Efforts, And Practical Mechanisms For #Landback, Vanessa Racehorse

Faculty Scholarship

Due to the increasing pressures of the climate change crisis, federal and state governments are beginning to acknowledge that Indigenous-led stewardship and control over Tribal aboriginal homelands is a crucial component of addressing climate change. In the United States, Tribal nations have a long history of responsible land stewardship, with environmental conservation and respect for the world's biodiversity being an inextricable piece of Tribal customs, traditions, and knowledge. This Article strives to pay due respect to traditional land stewardship and its important role in the past, present, and future.

Part I of this Article starts with an overview of the …

Carceral Control: A Nationwide Survey Of Criminal Court Supervision Rules, Kate Weisburd

Faculty Scholarship

The day-to-day operation of criminal court supervision—including probation, parole, and electronic ankle monitoring—is understudied and undertheorized. To better understand the mechanics of these systems, this study comprehensively analyzes the rules governing people on criminal court supervision in the United States. Drawing on the analysis of 187 public records from all fifty states, this study documents how criminal court supervision functions and impacts daily life. In particular, this study examines the various ways that supervision rules limit or restrict privacy, bodily autonomy, liberty, dignity, speech, and financial independence. This study also explores the nature and prevalence of supervision rules across the …

Prosecution And Polarization, Steven Arrigg Koh

Faculty Scholarship

Domestically and internationally, two prominent contemporary discourses arise in law and society. First, we live in a time of tremendous uncertainty about the nature and function of criminal justice. In the United States, we chronicle mass incarceration, while the international community weighs war crimes prosecutions in Ukraine. Second, we live in a time of polarization, both at home and abroad. Cultural and political division is elevated domestically, while the international community debates fragmentation in a multipolar world.

This symposium contribution to the Fordham Urban Law Journal’s “Future of Prosecution” symposium asks: what does it mean to prosecute in a time …

Judicial Resistance To New York's 2020 Criminal Legal Reforms, Angelo Petrigh

Faculty Scholarship

Scholars have examined judiciaries as organizations with their own culture and considered how this organizational culture can form a significant impediment to the implementation of reforms.²² There is a strong connection between judicial culture and a reform’s ability to accomplish its stated goals. Some go so far as to state that most reforms will fail because of the difficulty in altering judicial culture.²³ These studies sometimes focus on legislators misunderstanding the actual effects of legislation when it was drafted, or on the failure to account for particularities in a law’s implementation by undervaluing the fragmentation, adversarial nature, and …

Lloyd And The Legislative Void: Representative Actions In Transatlantic Context, Suzanne E. Chiodo

All Papers

The Canadian class action regimes have had a strong influence on the development of collective redress procedures in England. Canadian class proceedings legislation provided a model for the competition law class action regime in the UK, and before then, it featured prominently in the Civil Justice Council’s report that recommended the enactment of generic class actions legislation in England. It is fitting, then, that the UK Supreme Court’s recent decision in Lloyd v Google referred to the Canadian jurisprudence on the representative rule, which allows one or more claimants to represent a group with the ‘same interest’. While Lloyd did …

Canadian “Dreamers”: Access To Postsecondary Education, Elise Mercier, Sean Rehaag, Francisco Rico-Martinez

All Papers

Youth with precarious legal status (PLS) in Canada are entitled to access primary and secondary education regardless of their immigration status. However, once they graduate from high school their opportunities for postsecondary education are highly constrained. This article sets out an argument for expanding postsecondary educational opportunities for PLS students, drawing on the example of the only existing program in Canada targeting such students: York University’s “Access for Students with Precarious Immigration Status Program”. The article considers possible legal impediments to the establishment of such programs, including offenses under Canadian immigration legislation, and argues that charges against postsecondary institutions or …

Renewing Freedom Of Expression, Part Two: From The Contextual Approach To Proportionality Balancing, Jamie Cameron

All Papers

This article continues the project to renew the Charter’s methodology of expressive freedom in two parts. Part One explained that the Court’s approach to s.2(b) decision making is skewed against expressive freedom and must be addressed holistically, under ss.2(b) and s.1. (see J. Cameron, “Resetting the Foundations: Renewing Freedom of Expression under Section 2(b) of the Charter”, in B. Bird and D. Ross, eds., Forgotten Foundations of the Canadian Constitution. (LexisNexis Canada, 2022). Part One provided a critique of the current methodology, addressed the meaning of freedom under s.2(b), proposed a revised standard of breach, and sketched a …

Against Integrity: A Feminist Theory Of Moral Rights, Creative Agency & Attribution, Carys Craig, Anupriya Dhonchak

All Papers

This Chapter explores insights that feminist theories can bring to the study and development of moral rights protections in copyright law. It begins by explaining why certain facets of conventional moral rights theory are ill-suited to—indeed inconsistent with—a feminist approach in both concept and effect. In particular, to the extent that strong moral rights of integrity and association limit dialogic engagement with, and transformation of, protected works, they risk suppressing critical and counter-hegemonic expression, and support an individualized and romanticized conception of the (patriarchal) author-figure. Employing alternative feminist conceptions of situated selfhood, relationality and dialogic authorship, the Chapter then explores …

Gripe Sites & Trademark User Rights: Lessons From Canada’S Cooperstock Case, Carys Craig

All Papers

This Chapter is concerned with the nature of trademarks as vehicles of expression. It takes, as its lesson study, the unfortunate Canadian Federal Court case of United Airlines v. Cooperstock in which a disgruntled United passenger quite spectacularly failed in his efforts to defend a trademark parody on his consumer complaints “gripe” site. The case demonstrates the risks of relying on trademark law’s internal limits and implicit exceptions to define the boundaries of the trademark owner’s control. I argue, first, that the case therefore underscores the need for explicit statutory exceptions to ensure breathing space for parody, criticism, and other …

Fiscal Contract And The Canada Disability Benefit: Lessons From Income Tax Law, Jinyan Li

All Papers

This paper adopts a fiscal contract approach to examining the design of the Canada Disability Benefit and advocates using the CCB as a design model. It argues that a fiscal contract underlies the Income Tax Act which collects taxes as well as spends public money on poverty-reduction programs. In a tax state, the government’s spending is tied to taxing. The current fiscal contract reflects key Canadian values, such as equity and fairness, ability to pay, work, family and the rule of law. The CCB, which is implemented through the Income Tax Act, is a superior design model to the Guaranteed …

Regulating Health And Safety In Capitalist Workplaces: History, Practices And Prospects, Eric Tucker

All Papers

The chapter provides a broad overview of occupational health and safety (OHS) regulation in advanced capitalist countries with a focus on the English-speaking world. It views OHS regulation through a political economy lens in which protective legislation is enacted and implemented against the imperative of a profit-driven system of production. The chapter provide examines the historical development of OHS regulation beginning with the rise of industrial capitalism leading up to modern OHS regimes that increasing embrace mandated partial self regulation. It then considers contemporary debates over the efficacy of these regimes, focusing on the scope of self regulation, the practice …

Workers’ Boards: Sectoral Bargaining And Standard-Setting Mechanisms For The New Gilded Age, Sara Slinn

All Papers

This article explores the potential of sectoral standard-setting models (often referred to as “wage boards” or “workers’ boards”) as a solution for contemporary workplace issues, which existing labor relations and minimum standards regulatory systems continue to struggle to address. This argument, the article examines three historical statutory systems of sector-based minimum workplace standard-setting established in the early 20th century as a response to unacceptable wages and working conditions: the British Wages Council system, the Canadian Industrial Standards Act, and the US Fair Labor Standards Act. The article applies the conceptions of fairness identified in Seth Harris's study of the origins …

The Future Of The Corporate Form In Income Tax: A Case Study Of Canada, Jinyan Li

All Papers

A corporation is nothing but a piece of paper. And yet, this piece of paper enjoys the status of a person and has an independent identity as a taxpayer (the “separate entity principle”). It can generate tremendous value for its shareholders through tax savings resulted from tax deferral, tax shifting, and tax subsidies. Why does tax law allow such value to exist? Is there any hard line constraining the scope of the tax benefits associated with the corporate form? To what extent can the two pillars (Pillar One and Pillar Two) crush the corporate form? What is the future of …

Stuck In Neutral? Reforming Corporate Purpose And Fiduciary Duties, Barnali Choudhury, Martin Petrin

All Papers

After decades of corporate leadership based on shareholder wealth maximization, momentum is now gathering behind a shift towards the recognition of stakeholder interests. However, from voluntary actions by business to changes in soft and hard law, the steps taken thus far have been insufficient to result in meaningful changes. Instead, we are stuck in neutral. A more decisive push is needed to ensure that business contributes to tackling the most pressing societal issues of our times in a substantial and timely manner. The Canadian corporate landscape, although beginning to shift away from shareholder primacy, is still not settled and in …

Transgender Erasure: Barriers Facing Transgender Refugees In Canada, Sean Rehaag, Alexandra Verman

All Papers

This paper explores the experiences of transgender refugee claimants in Canada’s refugee status determination system, using mixed methods: quantitative analysis of data obtained from the Immigration and Refugee Board (IRB), reviews of published and unpublished decisions, country condition documentation packages and IRB guidelines, as well as interviews with refugee lawyers. Using these methods, we explore how credibility arises in transgender refugee claims, noting the impact of medicalization and country conditions materials on transgender claims, and drawing parallels between medical gatekeeping and credibility assessments in refugee claims. We identify potential explanations for low recorded numbers of transgender claims as rooted in …

Islamic Law And Colonialism, Rabiat Akande, Halimat Adeniran

All Papers

No abstract provided.

An Imperial History Of Race-Religion In International Law, Rabiat Akande

All Papers

More than half a century after the United Nations General Assembly’s adoption of the International Convention on the Prohibition of All Forms of Racial Discrimination (ICERD), efforts are underway to formulate a protocol to the landmark convention. Much of the momentum for that endeavor comes from sustained local and global advocacy against racism. An integral part of contemporary anti-racism efforts is a push for legal recognition of the intersectional dimensions of racial domination and subjugation to address the unique precarity of persons inhabiting marginalized axes of identities and experiences. United Nations (UN) debates over repowering the ICERD have therefore featured …

Impossibility And Frustration, Jennifer Nadler

All Papers

No abstract provided.

Perceptions Of Florida Victim Advocates During The Covid-19 Pandemic, Katarina Renee Hamburg

Theses and Dissertations

In December of 2019, a new virus known as COVID-19 emerged out of Wuhan, China. COVID-19 is a respiratory virus which is highly contagious and, in some cases, lethal. By January 20th, 2020, the United States reported its first case of COVID-19. Between January and December of 2020 there were 18.7 million cases and 329,000 deaths in the United States alone. Globally, during that time frame, there were 79.8 million cases and 1.75 million deaths. Due to the highly contagious and dangerous nature of COVID-19, countries across the world have attempted to promote public health by enacting social distancing measures. …

First-Line Police Supervisors’ Utilization Of Criminal Justice Higher Education, Dennis George Hippert

Theses and Dissertations

A first-line police supervisor holds a large influence over street-level police officer behavior (Ingram, et al., 2014), but little consistency exists between police agencies regarding the minimum educational requirements necessary to successfully perform the functions of a first-line police supervisor. This study explored the experiences of criminal justice degree holding first-line police supervisors in using the content of their college curriculum to guide street-level officers in acceptable use of force practices, professional communication with the public, and discretionary decision-making. Employing a grounded theory method of inquiry with a constructivist approach, this study utilized semi-structured, one-on-one interviews to examine the ways …

Experiential Education In Advocacy For Occupational Therapy Students: Didactic Approaches And Learning Outcomes, Aaron Bonsall, Rebecca L. Wolf, Abe Saffer

Journal of Occupational Therapy Education

Advocacy is a foundational value in occupational therapy, but uniformity in teaching and learning advocacy is lacking. This paper proposes and reports on the implementation of an advocacy course based on experiential education. The objective of the study was to evaluate student learning after an advocacy course with an experiential education component using an open-ended survey design. Participants were occupational therapy doctoral students, and the setting was a course taught in a health sciences university. Students voluntarily completed a four-item anonymous survey after participating in an experiential advocacy course. Written responses were coded into themes using an inductive approach. The …

Perceptions Of School Resource Officers On Their Role In Southern Maryland Public Elementary Schools, Lori B. Lodge

Theses and Dissertations

This applied dissertation was designed to investigate the perceptions of school resource officers (SROs) in Southern Maryland regarding the support SROs could provide elementary schools to foster positive interpersonal relationships while maintaining school safety and what additional resources that the SROs needed to support their job.

The overall school climate and morale at some elementary schools have significantly decreased due to increased student-aggressive behaviors. The school climate is correlated to student academic success (Sanders et al., 2018). School climate can include safety, interpersonal relationships, teaching and learning, and the school environment.

There is a need for school resource officers in …

Trauma-Informed (As A Matter Of) Course, Natalie Netzel

Faculty Scholarship

Law students are impacted by trauma and law professors are in a position to help by adopting a trauma-informed approach as a matter of universal precaution. The 2021 Survey of Law Student Well-Being (“SLSWB”) revealed that over twenty percent of responding law students meet criteria that indicate they should be evaluated for post-traumatic stress disorder (“PTSD”). The study also revealed that almost fifty percent of responding students reported an important motivation for attending law school was experiencing a trauma or injustice. Put differently, law schools are full of law students who have experienced trauma, many of whom are actively struggling …