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Full-Text Articles in Law

Law School News: Transforming Adversity Into Advocacy 9-4-2024, Andrew Clark, Roger Williams University School Of Law Sep 2024

Law School News: Transforming Adversity Into Advocacy 9-4-2024, Andrew Clark, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Law School News: Mandell-Boisclair Justice Camp Prepares Young Scholars To Become Future Lawyers, Social Justice Advocates 7-26-2024, Jordan J. Phelan, Roger Williams University School Of Law Jul 2024

Law School News: Mandell-Boisclair Justice Camp Prepares Young Scholars To Become Future Lawyers, Social Justice Advocates 7-26-2024, Jordan J. Phelan, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Chapter 3: Civic Education And Democracy's Flaws, Robert L. Tsai Jul 2024

Chapter 3: Civic Education And Democracy's Flaws, Robert L. Tsai

Faculty Scholarship

Today, liberalism and democracy are beset by competitors that seek to return power to religious traditionalists or partisans masquerading as civic republicans.1 In such an environment, can civic education do some good, and even help bridge our society’s deepening divides?

Seana Shiffrin has characteristically brought deep learning and penetrating insight to the project of civic education in a modern democracy. Against a “dominant” model of citizenship in which “citizens vote and hand off power to their representatives”— which she believes encourages the people to maintain an unhealthy distance from government— she proposes a richer account of political community in …


The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw Mar 2024

The "Bounds" Of Moore: Pluralism And State Judicial Review, Leah M. Litman, Katherine Shaw

Articles

In Moore v. Harper, the Supreme Court rejected a maximalist version of the “independent state legislature theory” (ISLT), invoking state judicial practices both before and after the Constitution was ratified. This piece uses Moore’s method to examine another variation on the ISLT, one pushed most recently by Justice Brett Kavanaugh and before him by Chief Justice William Rehnquist. The Rehnquist-Kavanaugh version of the ISLT would empower federal courts to review state officers’ interpretation of state laws regarding federal elections. But the logic of Moore is fatal to that potential version of the ISLT. The Rehnquist-Kavanaugh version of the ISLT contemplates …


An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua Feb 2024

An Exegesis Of The Meaning Of Dobbs: Despotism, Servitude, & Forced Birth, Athena D. Mutua

Journal Articles

The Dobbs decision has been leaked. Gathered outside of New York City's St. Patrick's Old Cathedral, pro-choice protesters chant: "Not the church, not the state, the people must decide their fate."

A white man wearing a New York Fire Department sweatshirt and standing on the front steps responds: "l am the people, l am the people, l am the people, the people have decided, the court has decided, you lose . . . . You have no choice. Not your body, not your choice, your body is mine and you're having my baby."

Despicable but not unexpected,³ this man's comments …


No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz Jan 2024

No Balancing For Anti-Constitutional Government Conduct, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals


First Amendment Fetishism, John M. Kang Jan 2024

First Amendment Fetishism, John M. Kang

Faculty Scholarship

The Supreme Court, starting in 1971, has lit upon a reckless path of protecting speech that is, by any reasonable measure, appallingly vulgar, emotionally hurtful, and dangerous. Against the wishes of the community, the Court has protected a roster of extremely offensive speech:

• a rageful repetition of the F-word uttered by a teacher before children in a school auditorium

• a White skinhead’s cross burning on the front lawn of a Black family’s house

• the public burning of the American flag by an avowed Communist who hated the United States and who cared nothing for the emotional pain …


A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey Jan 2024

A Matter Of Facts: The Evolution Of Copyright’S Fact-Exclusion And Its Implications For Disinformation And Democracy, Jessica Silbey

Faculty Scholarship

The Article begins with a puzzle: the curious absence of an express fact-exclusion from copyright protection in both the Copyright Act and its legislative history despite it being a well-founded legal principle. It traces arguments in the foundational Supreme Court case (Feist Publications v. Rural Telephone Service) and in the Copyright Act’s legislative history to discern a basis for the fact-exclusion. That research trail produces a legal genealogy of the fact-exclusion based in early copyright common law anchored by canonical cases, Baker v. Selden, Burrow-Giles v. Sarony, and Wheaton v. Peters. Surprisingly, none of them …


The War On Higher Education, Athena Mutua, Jonathan Feingold Jan 2024

The War On Higher Education, Athena Mutua, Jonathan Feingold

Faculty Scholarship

Academic freedom is under assault in the United States.1 Like the authoritarian populism rising across the globe, domestic attacks on individual professors and academic institutions buttress a broader and multifaceted campaign to undermine multiracial democracy and the institutions that sustain and safeguard it.2 The individuals and entities driving this antidemocratic movement have also targeted the electoral process; public education; the right to bodily autonomy; the civil rights and liberties of minoritized and marginalized communities; and freedom of speech and expression (increasingly marshaled against pro-Palestinian advocacy).3 Their openly stated goal is to delegitimize, defund, and “lay siege to” …


A Restatement Of Democracy, Joshua Ulan Galperin Jan 2024

A Restatement Of Democracy, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Debates about democracy are everywhere. Extremists, whether on the streets of Washington or Brasilia, perpetrate violence under the banner of democracy. But what do we mean when we talk about democracy? The debates, in the streets, popular media, or pages of academic journals, leave one wanting for depth and precision. This Article thus aims to provide an analytically useful model of Western democracy by surveying the vast and complex literature and distilling from that literature a series of core elements. From this exercise, this Article identifies the following four elements of democracy: majoritarianism, individual contestation, reason-giving, and deliberation. Although the …


Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart Jan 2024

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …


Keep Charitable Oversight In The Irs, Philip Hackney Jan 2024

Keep Charitable Oversight In The Irs, Philip Hackney

Articles

Critics are increasingly calling for Congress to remove charity regulation from the IRS. The critics are wrong. Congress should maintain charity regulation in the IRS. What is at stake is balancing power between the state, charity as civil society, and the economic order. In a well-balanced democracy, civil society maintains its independence from the state and the economic order. Removing charitable jurisdiction from the IRS would blind the IRS to dollars placed in the charitable sector increasing tax and political shelters and wealthy dominance of charities as civil society. A new agency without understanding of, or jurisdiction over, tax cannot …


Dobbs And Democracy, Melissa Murray, Katherine A. Shaw Jan 2024

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

Faculty Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …


Written Testimony Of Philip Hackney For The Hearing On Growth Of The Tax-Exempt Sector And The Impact On The American Political Landscape (U.S. House Ways & Means Subcommittee On Oversight, December 13, 2023), Philip Hackney Dec 2023

Written Testimony Of Philip Hackney For The Hearing On Growth Of The Tax-Exempt Sector And The Impact On The American Political Landscape (U.S. House Ways & Means Subcommittee On Oversight, December 13, 2023), Philip Hackney

Testimony

In written testimony before the House Ways & Means Subcommittee on Oversight on December 13, 2023, Professor Hackney emphasized three points about tax-exempt organizations and politics: (1) a diverse nonprofit sector that fosters civic participation and engagement is a gem of the United States -- we should maintain that; (2) the IRS budget for Exempt Organizations continues to NOT be sufficient to ensure the laws are equally and fairly enforced; and (3) there are simple things the IRS could do to enforce the law that it is not doing.


Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer Dec 2023

Une Histoire Pragmatique Du Politique, William J. Novak, Stephen W. Sawyer

Articles

Comme le montre ce numero, nous ne sommes guere en manque de tentatives recentes de repenser l'histoire du politique. En effet, deux generations d'historiens ont deja produit un grand nombre de nouvelles approches et de perspectives a partir desquelles il est maintenant possible d'etudier l'histoire politique a nouveaux frais. Dans le contexte historiographique americain, nous avons ete temoins d'une serie de nouvelles approches allant de ce que l'on a appele la « nouvelle histoire sociale politique » des annees 1970 a l'effort des sciences sociales pour « repenser l'Etat » (Bringing the State Back In) dans les annees 1980 et …


A Fireside Chat With A Senator Sheldon Whitehouse, Roger Williams University School Of Law Sep 2023

A Fireside Chat With A Senator Sheldon Whitehouse, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


To Democratize Algorithms, Ngozi Okidegbe Sep 2023

To Democratize Algorithms, Ngozi Okidegbe

Faculty Scholarship

Jurisdictions increasingly employ algorithms in public sector decisionmaking. Facing public outcry about the use of such technologies, jurisdictions have begun to increase democratic participation in the processes by which algorithms are procured, constructed, implemented, used, and overseen. But what problem is the current approach to democratization meant to solve? Policymakers have tended to view the problem as the absence of public deliberation: agencies and courts often use algorithms without public knowledge or input. To redress this problem, jurisdictions have turned to deliberative approaches designed to foster transparency and public debate.

This Article contends that the current approach to democratization is …


Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman Aug 2023

Law School News: A More Perfect Union Through A Diverse Judiciary 08-07-2023, Gregory W. Bowman

Life of the Law School (1993- )

No abstract provided.


The Intersectional Origins Of Modern Feminist Legal Advocacy, Serena Mayeri Jun 2023

The Intersectional Origins Of Modern Feminist Legal Advocacy, Serena Mayeri

All Faculty Scholarship

Intersectionality, reproductive justice, abolitionism, LGBTQ+ liberation, and democracy defense have moved to the center of twenty-first century feminist legal thought and advocacy, with feminists of color and queer scholars and activists at the forefront. But it wasn’t always so. Or was it?


Interlinking Between Income Tax, Citizenship And Democracy? A Case Study Of Canada And China, Jinyan Li May 2023

Interlinking Between Income Tax, Citizenship And Democracy? A Case Study Of Canada And China, Jinyan Li

Conference Papers

The interlink between taxation, citizenship and democracy appears to be obvious in Western democracies: citizens are voters, taxpayers and beneficiaries of public spending funded by tax revenues. The literature on the politics of taxation suggests that democratic institutions affect taxation at every stage of the policy-making process, the type of elections and governance model influence the level of redistribution and complexity of the tax system, democracies generally choose policies that are more favorable to the poor than non-democracies, the tax mix varies with the nature of the political regime, and more repressive governments rely less on personal income taxation. Political …


Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit May 2023

Grid Governance In The Energy-Trilemma Era: Remedying The Democracy Deficit, Daniel E. Walters, Andrew N. Kleit

Faculty Scholarship

Transforming the electric power grid is central to any viable scenario for addressing global climate change, but the process and politics of this transformation are complex. The desire to transform the grid creates an “energy trilemma” involving often conflicting desires for reliability, cost, and decarbonization; and, at least in the short run, it is difficult to avoid making tradeoffs between these different goals. It is somewhat shocking, then, that many crucial decisions about electric power service in the United States are made not by consumers or their utilities, nor by state public utilities commissions or federal regulators. Instead, for much …


The Theological Error Behind Post-Liberalism’S Bid For Political Power, Bruce Ledewitz Apr 2023

The Theological Error Behind Post-Liberalism’S Bid For Political Power, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.


Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain Mar 2023

Moore V. Harper: The Independent State Legislature Theory And The Court At The Brink, Braden Fain

Duke Journal of Constitutional Law & Public Policy Sidebar

Moore v. Harper tasks the Supreme Court with considering a fringe legal idea known as the Independent State Legislature Theory (ISLT). Donald Trump gave ISLT new life by invoking the theory during his attempts to overturn the results of the 2020 election. Instead of presidential elections, the litigation in Moore concerns congressional elections and partisan gerrymandering. Were the Court to accept ISLT, the theory would render states effectively impotent to curb gerrymandering and would aggrandize the Court's authority in federal elections. Scholars have recognized the theory's threat to American democracy and have accordingly produced a detailed record debunking the ISLT. …


Why I Am No Longer A Jew, Bruce Ledewitz Feb 2023

Why I Am No Longer A Jew, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.


An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz Jan 2023

An Alternative To The Independent State Legislature Doctrine, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals


The Openness Of Talmud, Bruce Ledewitz Jan 2023

The Openness Of Talmud, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.


Algorithmic Personalized Wages, Zephyr Teachout Jan 2023

Algorithmic Personalized Wages, Zephyr Teachout

Faculty Scholarship

The paper explores algorithmically created personalized wages: what they are, what they mean, and what we can do about them. First, it establishes a taxonomy of five different forms of algorithmic wage differentiation: productivity-based wage adjustments, wages shifted through incentive bonuses and demerits, behavioral wages, dynamic wages, and wages shifted to conduct an experiment. It argues that these techniques are likely to spread from gig work to the formal employment context.

Second, it argues that the spread of these techniques has democratic implications. They will increase economic and racial inequality. They will harm labor solidarity. Perhaps most importantly, they put …


Book Review: Comparative Election Law, Lori A. Ringhand Jan 2023

Book Review: Comparative Election Law, Lori A. Ringhand

Scholarly Works

Review of the book Comparative Election Law by James A Gardner, ed. (Cheltenham: Edward Elgar Publishing, 2022) 544 p.


A Worker-Centered Trade Policy, Desiree Leclercq Jan 2023

A Worker-Centered Trade Policy, Desiree Leclercq

Scholarly Works

What is a “worker-centered” trade policy? The Biden administration claims that it means protecting all workers—foreign and American—from exploitative working conditions in trade sectors. The administration’s vigorous enforcement of international labor rights suggests a significant departure from previous U.S. trade priorities centered on domestic interests. For economic and humanitarian reasons, various policymakers and scholars celebrate these developments. They optimistically assume that the administration’s new trade policy will influence foreign governments and facilities to comply with international labor rights in trade if the costs of noncompliance outweigh the benefits. They also assume that the policy will influence compliance with strong labor …


Antipolitics And The Administrative State, Cary Coglianese, Daniel Walters Jan 2023

Antipolitics And The Administrative State, Cary Coglianese, Daniel Walters

All Faculty Scholarship

The modern administrative state plays a vital role in governing society and the economy, but the role that politics should play in administrators’ decisions remains contested. The various regulatory and social service agencies that make up the administrative state are staffed with experts who are commonly thought to be charged with making only technocratic judgments outside the pressures of ordinary politics. In this article, we consider what it might mean for the administrative state to be antipolitical. We identify two conceptions of an antipolitical administrative state. The first of these—antipolitics as antidiscretion—holds that, in a democracy, value judgments should only …