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Indian Child Welfare Act Annual Case Law Update And Commentary, Kathryn Fort, Adrian T. Smith

American Indian Law Journal

Annually there is an average of 200 appellate cases dealing with the Indian Child Welfare Act (ICWA) —though this includes published and unpublished opinions.[1] Since our first annual review of the case law in 2017, the numbers remain stable. There are approximately thirty reported state appellate court cases involving ICWA each year. This annual review is the only systematic look at the ICWA cases on appeal, including an analysis of who is appealing, what the primary issues are on appeal, and what topical trends are.

This article provides a comprehensive catalogue of published ICWA cases from across all fifty …

Mapping A Way Through Disaster And Emergency Issues Involving Indian Country And The Importance Of Legal Preparedness, Brian T. Candelaria

American Indian Law Journal

No abstract provided.

Out With The New, In With The Old: Re-Implementing Traditional Forms Of Justice In Indian Country, Nicholas R. Sanchez

American Indian Law Journal

No abstract provided.

The Unqualified Mess Of Qualified Immunity; A Doctrine Worth Overruling, Allison Weiss

Washington and Lee Law Review Online

This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit, 77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts …

Redefining Immutability: A Door To The Ostracized, Adriana Domingo

DePaul Journal for Social Justice

No abstract provided.

The Promise Of Executive Order 11246: “Equality As A Fact And Equality As A Result”, Jane Farrell

DePaul Journal for Social Justice

No abstract provided.

Conversations From Invisible Neighbors: Fighting The Stigma Of Homelessness In Chicago, Depaul Panel

DePaul Journal for Social Justice

No abstract provided.

Cedaw Disapproves: The United States’ Treatment Of Transgender Women In Prisons, Victoria Harrison

DePaul Journal for Social Justice

No abstract provided.

Table Of Contents

DePaul Journal for Social Justice

No abstract provided.

Sex-Segregation, Economic Opportunity, And Roberts V. U.S. Jaycees, Elizabeth Sepper

William & Mary Bill of Rights Journal

No abstract provided.

The Epistemic Function Of Fusing Equal Protection And Due Process, Deborah Hellman

William & Mary Bill of Rights Journal

The fusion of equal protection and due process has attracted significant attention with scholars offering varied accounts of its purpose and function. Some see the combination as productive, creating a constitutional violation that neither clause would generate alone. Others see the combination as merely strategic, offered to make a claim acceptable at a particular historical moment but not genuinely necessary. This Article offers a third alternative. Judges have and should bring both equal protection and due process together to learn what each clause independently requires. On this Epistemic vision of constitutional fusion, a focus on equality helps judges learn what …

Four Responses To Constitutional Overlap, Michael Coenen

William & Mary Bill of Rights Journal

Sometimes government action implicates more than one constitutional right. For example, a prohibition on religious expression might be said to violate both the Free Speech Clause and the Free Exercise Clause, a rule regarding same-sex marriage might be said to violate both equal protection and substantive due process, an exercise of the eminent domain power might be said to violate both procedural due process and the Takings Clause, a disproportionate criminal sentence based on judge-found facts might be said to violate both the defendant’s right to trial by jury and that defendant’s right against cruel and unusual punishment, and so …

Restraints In Massachusetts Public Schools, Elyce Hall

Master’s Theses and Projects

The purpose of this research study was to investigate the moral and legal issues around physically restraining students in Massachusetts public schools. As Massachusetts law is written, the use of restraints on a student should be the last possible resort. However, this thesis used data on restraint use from the Massachusetts Department of Education and a survey of school administrators to gain a better understanding of the 38,994 student restraints that were used in 2016-2017 school year. Findings of this study include that Hispanic and African-American students were more likely to attend schools that used restraints than those that did …

Further Harm And Harassment: The Cost Of Excess Process To Victims Of Sexual Violence On College Campuses, Hannah Walsh

Notre Dame Law Review

This Note argues that in employing the Mathews v. Eldridge test to formulate the constitutional minimum process necessary to satisfy the Fourteenth Amendment in a Title IX university disciplinary hearing, federal courts have failed to adequately weigh the inevitable harm to survivors that will result from allowing one accused of sexual assault to personally cross-examine their accuser as part of the government interest at stake. Furthermore, this Note contends that any institution permitting the practice of respondents cross-examining their complainants commits sex discrimination in violation of Title IX by directly inflicting harm on its female students. Part I will provide …

Revisiting Immutability: Competing Frameworks For Adjudicating Asylum Claims Based On Membership In A Particular Social Group, Talia Shiff

University of Michigan Journal of Law Reform

The Immigration and Nationality Act (INA) defines a refugee as any person who has a “well-founded fear of persecution on account of race, religion, nationality, membership of a particular social group or political opinion.” An emerging issue in U.S. asylum law is how to define the category “membership of a particular social group.” This question has become ever-more pressing in light of the fact that the majority of migrants seeking asylum at the U.S.-Mexico border are claiming persecution on account of their “membership in a particular social group.” The INA does not define the meaning of “particular social group” and …

Theory Of The Nudnik: The Future Of Consumer Activism And What We Can Do To Stop It, Yonathan A. Arbel, Roy Shapira

Articles

How do consumers hold sellers accountable and enforce market norms? This Article contributes to our understanding of consumer markets in three ways. First, the Article identifies the role of a small subset of consumers-the titular "nudniks"-as engines of market discipline. Nudniks are those who call to complain, speak with managers, post online reviews, and file lawsuits. Typified by an idiosyncratic utility function and certain unique personality traits, nudniks pursue action where most consumers remain passive. Although derided in courtrooms and the court of public opinion, we show that nudniks can solve consumer collective action problems, leading to broad market improvements. …

The Violence Of Nosy Questions, Jeannine Bell

Articles by Maurer Faculty

This Essay examines a little-studied aspect of police procedure: police officers’ unfettered power to ask questions of motorists. The questions officers ask after they have stopped a car can run the gamut from questions about the nature of the motorist’s travel plans to nosy personal questions. Such questions are often intrusive, and drivers report feeling degraded by having to answer them. This Essay argues that these questions should be regulated because giving officers complete control over what they ask motorists provides a significant space for racial discrimination in policing, creates resentment, and encourages minorities to distrust the police.

Reimagining Reentry: A Vision For Transformative Justice Beyond The Carceral State, Kemiya Nutter

Ethnic Studies Senior Capstone Papers

Throughout the past decade, mass incarceration has emerged as a buzzword within academic scholarship and public policy discourse that seeks to examine the unparalleled expansion of the contemporary carceral state. With 2.2 million Americans imprisoned and over 7 million under various forms of penal control, the United States maintains the highest rate of incarceration in the world. The unprecedented inflation in the nation’s incarceration rate is a direct manifestation of the 1970’s War on Drugs, which enabled the legislative transformations that permeate modern sentencing policy and procedure. Institutions of policing, surveillance, and incarceration are constitutive features of the carceral system’s …

Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Fordham Law Review

Calls for increased diversity among arbitrators have surged with the growth of the employer movement, so-called mandatory arbitration, which requires employees to agree to arbitrate employment discrimination matters as a condition of employment. Despite good-faith efforts by neutral service providers, civil rights organizations, bar associations, and employer and employee groups to identify and address the need for more diverse arbitrators in mandatory arbitration, many commentators still lament that this diversity problem reflects negatively on access to justice. With the #MeToo movement’s focus in recent years on the lack of a public and transparent resolution for sexual harassment matters, as well …

Remedy Without Diagnosis: How To Optimize Results By Leveraging The Appropriate Dispute Resolution And Shared Decision-Making Process, Mariana Hernandez-Crespo Gonstead

Fordham Law Review

This Article aims to realize the untapped potential of the dispute resolution field beyond traditional understandings of access to justice for everyone’s benefit. It argues that, by developing skills, citizens can significantly contribute to altering the course of history in our global economy, especially in Latin America and Venezuela. It introduces and familiarizes citizens with the knowledge developed in the dispute resolution field for the past fifty years. As a new field, dispute resolution is rapidly growing and evolving. Even though the knowledge produced is vital to help us interact more effectively, the materials are complex, dispersed, and, in some …

Measuring “Access To Justice” In The Rush To Digitize, Amy J. Schmitz

Fordham Law Review

Access to Justice (A2J) is the hot topic of the day, energizing Twitter and judges alike. Meanwhile, professors and policymakers join in song, singing the praises of online dispute resolution (ODR) as means for expanding A2J. This is because ODR uses technology to allow for online claim diagnosis, negotiation, and mediation without the time, money, and stress of traditional court processes. Indeed, courts are now moving traffic ticket, condominium, landlord/tenant, personal injury, debt collection, and even divorce claims online. The hope is that online triage and dispute resolution systems will provide means for obtaining remedies for self-represented litigants (SRLs) and …

Access To Justice And Dispute Resolution Across Cultures, Sukhsimranjit Singh

Fordham Law Review

There is a saying in the United States: the justice one receives is the justice one can afford. All too often, this saying proves true for both lower- and middle-class individuals. For the greatly impoverished, the access to justice crisis is twofold: part of the problem is knowing when to seek legal help and another is ensuring adequate delivery of legal assistance on request. Middle- class individuals face a different challenge, as they surpass the income threshold for free civil public legal aid but cannot afford the rising costs of conventional litigation. The problem persists across different cultures. This Article …

Bringing Transparency And Accountability (With A Dash Of Competition) To Court-Connected Dispute Resolution, Nancy A. Welsh

Fordham Law Review

Among the various dispute resolution processes, mediation is the most widely institutionalized in American courts. As a result, this Article focuses primarily, although not exclusively, on the data collected and disseminated regarding court-connected mediation. The Article begins with a brief description of the institutionalization of mediation and other dispute resolution processes in the federal judicial system and in select U.S. state court systems. This narrative reveals substantial reference to the availability of mediation but a dizzying patchwork in terms of institutionalization and a significant lack of system-wide information in some states. The Article then focuses on the data that these …

Religious Liberty Challenges To Health Care In The Age Of Covid-19 – Supreme Court Arguments In Little Sisters Of The Poor V. Pennsylvania, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

On Wednesday, May 6, 2020 the Supreme Court will be hearing arguments (telephonically) in the most recent challenge to the Affordable Care Act’s requirement that employee health plans include contraception coverage, Little Sisters of the Poor v. Pennsylvania. The case raises the important question of whether religious liberty rights can be used to limit access to health care at a time when the nation – and the world – is experiencing one of the worst global pandemics in human history. For this reason, the issues in this case take on special significance.

Can We Have Our Cake And Eat It Too?: What Masterpiece Cakeshop And Religious Refusals Mean For Texas’S Adoption Bill, Nadeen Abou-Hossa

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Mandating Women: Defending Sb 826 And Female Quotas In The Corporate Workplace, Lauren Kim

Loyola of Los Angeles Law Review

No abstract provided.

The Common Law As A Force For Women, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This essay introduces a collection of Symposium Essays examining Anita Bernstein's book, The Common Law Inside the Female Body (Cambridge University Press, 2019). Professor Bernstein explores the common law's recognition of both rights and liberties, highlighting in particular negative liberties such as the right to be left undisturbed. The Symposium Essays test and explore Professor Bernstein's thesis as applied to the right to be free from rape and unwanted pregnancies. Grounded in perspectives informed by the study of tort law, legal history, intellectual property, constitutional law, and critical race theory, these Essays--together with Professor Bernstein's book--suggest that the common law …

American Diversity In International Arbitration: A New Arbitration Story Or Evidence Of Things Not Seen, Benjamin G. Davis

Fordham Law Review

This Essay suggests that the unseen presence of blacks and other underrepresented groups (such as women, minorities, LGBTQ individuals, and persons with disabilities) in the shadows of the development of international arbitration law in the United States helps us to see that diversity, while unrecognized, has been inherent in American international arbitration for hundreds of years.

Racially Neutral In Form, Racially Discriminatory In Fact: The Implications For Voting Rights Of Giving Disproportionate Racial Impact The Constitutional Importance It Deserves, Gary J. Simson

Mercer Law Review

In two decisions in the mid-1970s, Washington v. Davis and Village of Arlington Heights v. Metropolitan Housing Development Corp., the U.S. Supreme Court made clear that proving that a law racially neutral on its face disproportionately disadvantages racial minorities does not establish a violation of the Equal Protection Clause or even create a presumption that such a violation has occurred. Disproportionate racial impact “is not irrelevant,” the Court explained, but “it is not the sole touchstone of an invidious racial discrimination forbidden by the Constitution.” The key, according to the Court, lies in proving that the law was the …

A Textuary Ray Of Hope For Lgbtq+ Workers: Does Title Vii Mean What It Says?, Eduardo Juarez

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.