Law and Society Commons^™

Caring For The Souls Of Our Students: The Evolution Of A Community Economic Development Clinic During Turbulent Times, Gowri J. Krishna, Kelly Pfeifer, Dana Thompson

Articles

Community Economic Development (CED) clinicians regularly address issues surrounding economic, racial, and social justice, as those are the core principles motivating their work to promote vibrant, diverse, and sustainable communities. When COVID-19 arrived, and heightened attention to police brutality and racial injustice ensued, CED clinicians focused not only on how to begin to address these issues in their clinics, but on how to discuss these issues more deeply and effectively with their students. This essay highlights the ways in which the pandemic school year influenced significant rethinking of one CED clinic’s operations: first, the pandemic sharpened the clinic’s mission to …

A Human Rights Crisis Under Our Roof, Aglae Eufracio

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

Abstract forthcoming.

The Meaning, History, And Importance Of The Elections Clause, Eliza Sweren-Becker, Michael Waldman

Washington Law Review

Historically, the Supreme Court has offered scant attention to or analysis of the Elections Clause, resulting in similarly limited scholarship on the Clause’s original meaning and public understanding over time. The Clause directs states to make regulations for the time, place, and manner of congressional elections, and grants Congress superseding authority to make or alter those rules.

But the 2020 elections forced the Elections Clause into the spotlight, with Republican litigants relying on the Clause to ask the Supreme Court to limit which state actors can regulate federal elections. This new focus comes on the heels of the Clause serving …

How The Gun Control Act Disarms Black Firearm Owners, Maya Itah

Washington Law Review

Through 18 U.S.C. § 924(c), the Gun Control Act (GCA) outlaws the possession of a firearm “in furtherance of” a drug trafficking crime. The statute’s language is broad, and federal courts have interpreted it expansively. By giving prosecutors wide discretion in charging individuals with § 924(c) violations, the language enables the disproportionate incarceration of Black firearm owners.

This Comment addresses this issue in three parts. Part I discusses the ways early gun control laws overtly disarmed Black firearm owners. Additionally, Part I provides context for the passage of the Gun Control Act of 1968, which coincided with the backlash to …

Article: Anti- Love Jihad Law: An Analysis Of Women’S Religious And Marital Rights, Snehal Sharma

Gender and Women's Studies Faculty Publications

In November 2020, Uttar Pradesh government enacted an ordinance – ‘Prohibition of Unlawful Religious Conversion Ordinance, 2020’. Since the ordinance has made the process of religious conversion and interfaith marriage complicated and prolonged in the state, it is commonly known as ‘anti- love jihad law’. This paper analyses and lays out the potential impact of this ordinance on inter-religious marriages, and how it conflicts with women’s religious, marital, and bodily autonomy. Here the author discusses the procedures of anti-conversion ordinance along with the Special Marriage Act (1954) and personal laws related to marriage to assess their impact on inter-religious couples …

The Euclid Proviso, Ezra Rosser

Washington Law Review

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Pushing The First Domino: Freeing The Whales In Canada, Luc Paul Bourgeois

LLM Theses

In 2019, the Canadian Parliament adopted Bill S-203, titled the Ending the Captivity of Whales and Dolphins Act [Whales Act], to phase-out the captivity of cetaceans – that is, whales, dolphins, and porpoises – mainly for entertainment purposes. This new law reflected scientific knowledge and signaled a shift in public attitudes relating to cetacean captivity. Undeniably, this piece of legislation raises many legal and normative questions. Drawing on the capabilities approach, espoused by Martha C. Nussbaum, this paper will explore the nature and impact of the Whales Act in the Canadian political and legal landscape, as well as the newly …

The Fight Over Frankenmeat: The Fda As The Proper Agency To Regulate Cell-Based “Clean Meat”, Zoe A. Bernstein

Brooklyn Law Review

In recent years, concern over the environmental, animal welfare, and human costs of animal agriculture has spurred an increased demand for nonanimal sourced protein. This has led to significant innovation in food technology. As part of this trend, food scientists have developed a process for in-vitro cultivation of meat cells to produce protein that is biologically and nutritionally identical to meat from traditionally raised and slaughtered animal sources, but that involves neither animal agriculture nor animal slaughter. This lab-grown “clean meat” represents a new era in food technology and is already having an effect on the existing meat industry. In …

Crisis Management Lessons From The Clinton Administration's Implementation Of Presidential Decision Directive 56, Leonard R. Hawley

The US Army War College Quarterly: Parameters

Drawing on personal experience, the author asks what the current administration can learn from the Clinton administration’s implementation of Presidential Decision Directive 56, examines the real-world application of the directive during the Clinton administration and the pitfalls of its agency-centric successor during the Bush administration, and identifies recurring problems and best practices for successfully responding to current global crises.

Calling The Shots: Balancing Parental And Child Rights In The Age Of Anti-Vax, Mahrukh Badar

Indiana Journal of Global Legal Studies

Vaccinations have become a contentious issue in recent times. Although there has always been opposition to vaccines, the internet has made it possible for pseudoscience and false information to spread like never before. This has led to alarming declines in vaccine confidence and adherence rates globally. High-income countries have seen the sharpest drop in vaccine confidence rates. Factors such as the complacency effect and religious objections likely explain this decline. Most countries have attempted to raise vaccine confidence levels by enacting laws that make vaccinations for children compulsory, with strict penalties for parents who refuse to comply. In addition to …

Bad Law Or Just Bad Timing?: Post-Pandemic Implications Of Managed Care Advisory Group, Llc V. Cigna Healthcare, Inc.’S Ban On The Use Of Virtual Technology For Taking Non-Party Evidence Under Section 7 Of The Federal Arbitration Act, Latoya C. Brown

University of Miami Law Review

The COVID-19 pandemic has had an enormous socio-economic impact globally. To continue operations, the legal field, like other sectors, has had to adapt to the exigencies of the pandemic by, inter alia, becoming increasingly reliant on remote technologies to conduct business. Yet, only a few months before COVID-19 was declared a pandemic, the Eleventh Circuit ruled in Managed Care Advisory Group, LLC v. CIGNA Healthcare, Inc., 939 F.3d 1145 (11th Cir. 2019), that Section 7 of the Federal Arbitration Act (the “FAA”), 9 U.S.C. § 7, prohibits prehearing discovery and does not allow a summonsed witness to appear in locations …

Foreword, Lauren F. Louis

University of Miami Law Review

No abstract provided.

Cruise Contracts, Public Policy, And Foreign Forum Selection Clauses, John F. Coyle

University of Miami Law Review

A cruise ship contract is the prototypical contract of adhesion. The passenger is presented with the contract on a take-it-or-leave-it basis. If she refuses to sign, the ship sails without her. To ensure that cruise companies do not draft one-sided contracts that are unfair to passengers, Congress has enacted a number of statutes that regulate these agreements. One such statute is 46 U.S.C. § 30509. This law stipulates that any contract provision that limits the liability of the cruise company for personal injury or death is void as against public policy if the ship stops at a U.S. port.
In …

The Power Of Two Words To Split Circuits, Natalie Whitacre

University of Miami Law Review

28 U.S.C. § 1782 authorizes federal judges to grant assistance to a “foreign or international tribunal” for discovery proceedings. The meaning of the term “foreign or international tribunal” has been the subject of much dispute. In 2019 the Sixth Circuit became the first court of appeals to extend the purview of the statute to private commercial arbitration, creating a circuit split. However, the use of 28 U.S.C. § 1782 in arbitral proceedings raises a number of questions about whether U.S. style discovery would impede the efficiency of arbitration and whether the practice could be extended to international tribunals located within …

Informed Consent: Disclosure Of The Presentence Investigation Report Before A Guilty Plea, George D. Bell

University of Miami Law Review

The Constitution bestows upon all accused persons the right to a trial by jury, the right to confront accusers, the right to remain silent, and the right to be presumed innocent. The law requires waiver of these rights to be done voluntarily, with the fullest possible knowledge of material consequences. Punishment is possibly the most material consequence of a guilty plea, yet criminal defendants who pleaded guilty are forced to relinquish their rights before punishment is determined. Our jurisprudence of due process prohibits this kind of practice, but it is routine in Federal court. For a guilty plea to comport …

Does It Really Matter?: Making The Case For A Materiality Requirement In False Claims To U.S. Citizenship Under The Immigration And Nationality Act, Elizabeth Montano, Edward F. Ramos

University of Miami Law Review

Materiality plays an important role in limiting the reach of laws that penalize misrepresentations. Laws that include no materiality element punish any covered misrepresentation regardless of its relevance—like lying about hair color on a loan application. By contrast, laws that include a materiality element withhold punishment for immaterial misrepresentations of that kind—in other words, misrepresentations that have no tendency to affect the ultimate decision.
Our immigration laws make it a deportable offense for a noncitizen to “falsely represent” herself as a U.S. citizen for a purpose or benefit under the law. Although this law has been on the books for …

Notice: Aircraft Lien Law In Florida, Timothy M. Ravich

University of Miami Law Review

Establishing (e.g., perfecting) and enforcing a lien presents technical pitfalls and practical problems with which practitioners and courts are often unfamiliar or uncomfortable. After all, the law of liens requires an understanding of many different areas of the law, including the law of contract, bailment, unjust enrichment, and customary law. But among the most fraught with uncertainty are mechanic’s liens, which establish a right in favor of persons—“artisans”—performing or furnishing labor, services, fuel, or material upon personal property. Florida’s mechanic’s lien statute raises particularly challenging legal issues as applied to aircraft.
In Florida, the perfection and enforcement of a mechanic’s …

What An Ethics Of Discourse And Recognition Can Contribute To A Critical Theory Of Refugee Claim Adjudication: Reclaiming Epistemic Justice For Gender-Based Asylum Seekers, David Ingram

Philosophy: Faculty Publications and Other Works

Abstract: Using examples drawn from gender-based asylum cases, this chapter examines how far recognition theory (RT) and discourse theory (DT) can guide social criticism of the judicial processing of women’s applications for protection under the Geneva Convention Relating to the Status of Refugees (1951) and subsequent protocols and guidelines put forward by the United Nations High Commissioner for Refugees (UNHCR). I argue that these theories can guide social criticism only when combined with other ethical approaches. In addition to humanitarian and human rights law, these theories must rely upon ideas drawn from distributive, compensatory, and epistemic justice. Drawing from recent …

Introduction, Kate Levine

Cardozo Law Review

No abstract provided.

Reclaiming The Streets, Vanessa Casado-Pérez

Faculty Scholarship

Pedestrians have been getting the short end of the stick in street policies and regulations. Drivers and cars dominate our streets even though automobiles’ externalities kill thousands of people every year. Given the environmental, health, safety, and community effects of cars, municipalities should embrace a policy that puts pedestrians at the center and produces more miles of wider, well-maintained sidewalks. Sidewalks make communities greener, healthier, safer, more socially connected, and even, wealthier. COVID-19 lockdowns have shown both the relevance of sidewalks, as well as the possibility of pedestrians regaining space currently allocated to cars by widening sidewalks.

This Essay identifies, …

Christian Accounts Of Religious Liberty: Two Views Of Conscience, Joel Harrison

BYU Law Review

No abstract provided.

Catholicism, Liberalism, And Populism, Andrea Pin, Luca P. Vanoni

BYU Law Review

No abstract provided.

Legal Construction Of Nationalism And National Identity In The Hashemite Kingdom Of Jordan, Zaina Siyam

Theses and Dissertations

Nationalism is an ideology that is not unique to one nation or one area, but it is a concept unique in the way it is defined. How it is defined and what it really is depends on where the definition is coming from. It is most important to post-colonial nations that relied and still rely on the creation of national identity and construction of an imagined community, in order to reach their liberation. Nations are imagined communities constructed through shared history, beliefs, traditions, and experiences that happen over different periods in time, between individuals that do not necessarily know each …

One Vote, Two Winners: Team-Ticket Gubernatorial Elections And The Need For Further Reform, T. Quinn Yeargain

University of Miami Law Review

Historically, governors and lieutenant governors were elected in separate elections. This frequently meant that governors and lieutenant governors of different parties were elected, undermining the democratic legitimacy of gubernatorial succession. But when New York adopted team tickets in 1953, it ignited a flurry of similar changes nationwide. Today, most states with lieutenant governors elect them on a team ticket with governors. And, since the initial adoption of team tickets, several other trends—specifically, trends away from separate primaries and toward post-primary selection—have emerged in how lieutenant governors are elected. Despite the significance of these changes, however, they remain largely unexplored by …

The Dawn Of A Judicial Takings Doctrine: Stop The Beach Renourishment, Inc. V. Florida Department Of Environmental Protection, Brendan Mackesey

University of Miami Law Review

In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), the U.S. Supreme Court granted certiorari to determine whether the Florida Supreme Court had violated a group of littoral property owners’ Fifth Amendment rights—or committed a “judicial taking”—by upholding the state of Florida’s Beach and Shore Preservation Act. Under the Act, the State is entitled to ownership of previously submerged land it restores as beach; this is true even though the normal private/state property line, the mean-high water line, is moved seaward, and the affected littoral owner(s) lose their right to have their property …

One Step Forward, Two Steps Backward: An Elastic Products Liability Framework For E-Cigarette Regulation, Evan Robinson

University of Miami Law Review

Societal innovation is frequently triggered by need. Year after year, novel technologies are created by entrepreneurs who seek to find a more effective, efficient, or less dangerous way of accomplishing a specific goal. Oftentimes, these new technologies enter the marketplace bringing with them a host of uncertainties concerning both their performance and effect on consumer activity. Despite these inevitable uncertainties, new technologies play a vital role in advancing society when appropriately controlled. Indeed, while the appropriate levels of control may vary across industries and technologies, one principal remains constant amongst the mall: the obligation to balance risk with reward. The …

Therapeutic Jurisprudence: Foundations, Expansion, And Assessment, David C. Yamada

University of Miami Law Review

Therapeutic Jurisprudence: Foundations, Expansion, and Assessment Founded in 1987 by law professors David Wexler and the late Bruce Winick, therapeutic jurisprudence (“TJ”) is a multidisciplinary school of legal theory and practice that examines the therapeutic and anti-therapeutic properties of law, policy, and legal institutions. In legal events and transactions, TJ inherently favors outcomes that advance human dignity and psychological well-being. Starting with original groundings in mental health and mental disability law, criminal law, and problem-solving courts, and with a geographic focus on the United States, TJ now embraces many aspects of law and policy and presents a strong international orientation. …