Law and Society Commons^™

Aristotle And Animal Law: The Case For Habeas Corpus For Animals, Charles Edward Andrew Lincoln Iv

Student Scholarship

This article is divided into three substantive sections. Section I delineates Aristotle’s theory of the soul as laid out in De Anima. Section II defines habeas corpus as a legal concept and demonstrates under what circumstances it should be granted. Section III applies Aristotle’s theory of the soul as a structure whereby animals could be granted habeas corpus rights.

Safety, Crisis, And Criminal Law, Jenny E. Carroll

Faculty Scholarship

Concepts of safety and prevention of danger pervade the criminal law canon. Arizona is no exception. The state’s criminal systems pivot around central and entwined goals of protecting public safety and preventing danger. The state constitution permits pretrial detention both for the most serious offenses and when no other condition of release will adequately protect the community from the danger the accused’s freedom might pose. The rules of criminal procedure and the criminal code designate some offenses and actors “dangerous” and urge judges to weigh not only the accused’s risk of flight, but also his future dangerousness in making decisions …

Talking About Abortion (Listening Optional), Jennifer W. Reynolds

Texas A&M Law Review

Whether we can expect others to listen—and whether we choose to listen to others—have become central challenges in handling conflicts around polarized and high-profile political matters. For those who study alternative dispute resolution (“ADR”), these concerns about listening hit especially close to the bone because they implicate some of the most foundational precepts of dispute resolution practice. This paper explores some of these implications in the context of the fight over reproductive rights, with special focus on the “listening dilemma” that people experience when navigating extremely difficult conversations around crucial political entitlements, especially when those entitlements are in the process …

Expansion Of New Law In Southeast May Stave Off Black Land Loss, Thomas W. Mitchell, Sarah Stein, Ann Carpenter

Faculty Scholarship

Landownership and homeownership are significant contributors to the creation of wealth and thus, drivers of intergenerational economic mobility. However, many people who have inherited family land are unable to realize these opportunities because of the legal effect of their particular form of landownership, often called heirs' property. These landowners are more likely to lose their land through what is known as a partition sale—a property sale resulting from a dispute between co-owners, often ignited by an outside party with an investment interest in the land. This Partners Update article explores the repercussions of heirs' property ownership and examines legislative solutions …

Artificial Financial Intelligence, William Magnuson

Faculty Scholarship

Recent advances in the field of artificial intelligence have revived long-standing debates about what happens when robots become smarter than humans. Will they destroy us? Will they put us all out of work? Will they lead to a world of techno-savvy haves and techno-ignorant have-nots? These debates have found particular resonance in finance, where computers already play a dominant role. High-frequency traders, quant hedge funds, and robo-advisors all represent, to a greater or lesser degree, real-world instantiations of the impact that artificial intelligence is having on the field. This Article will argue that the primary danger of artificial intelligence in …

Repealing The Statute Of Wizarding Secrecy In Legal Education, Mark Burge

Faculty Scholarship

In the fictional Harry Potter universe, J.K. Rowling has fashioned a parallel world based on our own, but with the fundamental difference of a separate magical society grafted onto it. In Rowling’s fictional version, the magical population lives among the non-magical Muggle population, but we Muggles are largely unaware of them. This secrecy is by elaborate design and was brought about by centuries-long hostility toward wizards by the non-magical majority. But what if secrecy is precisely the wrong approach? What if widespread wizard-Muggle collaboration were precisely the thing needed to address the enormous and pressing problems of the day?

The …

The Law Professor Pipeline, Milan Markovic

Faculty Scholarship

Throughout U.S. legal education’s history, a small number of elite law schools have produced the vast majority of law professors. Although law professor hiring is now more inclusive in certain respects, the law school an aspiring professor attended continues to serve as a powerful predictor of hiring market success. Some scholars have maintained that this preference for graduates of elite law schools infects legal education with class bias and distorts legal pedagogy, but the absence of reliable data on socioeconomic diversity within law schools has muted these criticisms.

This Essay reorients the debate on law school hiring by focusing on …

Civil Procedure As A Critical Discussion, Susan Provenzano, Brian N. Larson

Faculty Scholarship

This Article develops a model for analyzing legal dispute resolution systems as systems for argumentation. Our model meshes two theories of argument conceived centuries apart: contemporary argumentation theory and classical stasis theory. In this Article, we apply the model to the Federal Rules of Civil Procedure as a proof of concept. Specifically, the model analyzes how the Federal Rules of Civil Procedure function as a staged argumentative critical discussion designed to permit judge and jury to rationally resolve litigants’ differences in a reasonable manner. At a high level, this critical discussion has three phases: a confrontation, an (extended) opening, and …

Griffin V. Illinois: Justice Independent Of Wealth, Neil Sobol

Faculty Scholarship

More than sixty years ago in Griffin v. Illinois, Justice Hugo Black opined that equal justice cannot exist as long as “the kind of trial a man gets depends on the amount of money he has.” While Griffin dealt with the limited issue of the inability of a defendant to pay for an appellate transcript, the Supreme Court and legislatures would subsequently extend Black’s equal justice analysis to cases involving other forms of criminal justice debt assessed at trial, appeal, incarceration, and probation. Despite the promise of these judicial and legislative pronouncements, indigent defendants, relative to defendants with financial …

Loans And Marketing Guarantees In Athlete Agent Recruiting: Why They Are Ill-Advised Under Agency Law And Attorney Ethics Regulations Principles, Joshua Lens

Texas A&M Law Review

Athlete agents use various means to recruit prospective clients. Controversial yet common methods include offering loans and marketing guarantees to prospective clients. In each transaction, the agent provides his client with money, in some cases amounting to millions of dollars. The agent typically expects repayment of the loan whereas the marketing guarantee is an advance on future marketing income that the agent will arrange for the athlete. While both National Football League Players Association (“NFLPA”) agent regulations and state athlete agent laws prohibit agents from offering inducements to prospective clients, neither authority considers loans or marketing guarantees illicit or prohibits …

Arbitrarily Selecting Black Arbitrators, Michael Z. Green

Faculty Scholarship

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 …

The Debt Collection Pandemic, Pamela Foohey, Dalié Jiménez, Christopher K. Odinet

Faculty Scholarship

As of May 2020, the United States' reaction to the unique and alarming threat of COVID-19 has partially succeeded in slowing the virus’s spread. Saving people’s lives, however, came at a severe economic cost. Americans’ economic anxiety understandably spiked. In addition to worrying about meeting basic expenses, people’s anxieties about money necessarily included what might happen if they could not cover already outstanding debts. The nearly 70 million Americans with debts already in collection faced heightened anxiety about their inability to pay.

The coronavirus pandemic is set to metastasize into a debt collection pandemic. The federal government can and should …

Immigration Challenges Of The Past Decade And Future Reforms, Fatma Marouf

Faculty Scholarship

Over the past decade, immigrants have faced numerous challenges in the United States, including a dramatic increase in deportations, the expansion and privatization of immigration detention, major changes to the asylum system combined with drastic cutbacks in refugee admissions, and a new wave of racism and xenophobia. This Article discusses these challenges and explores possible ways to address them in 2020 and beyond.

Access To Algorithms, Hannah Bloch-Wehba

Faculty Scholarship

Federal, state, and local governments increasingly depend on automated systems — often procured from the private sector — to make key decisions about civil rights and civil liberties. When individuals affected by these decisions seek access to information about the algorithmic methodologies that produced them, governments frequently assert that this information is proprietary and cannot be disclosed.

Recognizing that opaque algorithmic governance poses a threat to civil rights and liberties, scholars have called for a renewed focus on transparency and accountability for automated decision making. But scholars have neglected a critical avenue for promoting public accountability and transparency for automated …

The Algorithmic Divide And Equality In The Age Of Artificial Intelligence, Peter K. Yu

Faculty Scholarship

In the age of artificial intelligence, highly sophisticated algorithms have been deployed to provide analysis, detect patterns, optimize solutions, accelerate operations, facilitate self-learning, minimize human errors and biases and foster improvements in technological products and services. Notwithstanding these tremendous benefits, algorithms and intelligent machines do not provide equal benefits to all. Just as the digital divide has separated those with access to the Internet, information technology and digital content from those without, an emerging and ever-widening algorithmic divide now threatens to take away the many political, social, economic, cultural, educational and career opportunities provided by machine learning and artificial intelligence. …

The Budding Hemp Industry: The Effect Of Texas House Bill 1325 On Employment Drug Policies, Meina Heydari

Student Scholarship

Contemporary attitudes toward cannabis use in the United States have shifted from War on Drugsera prohibition toward decriminalization over the past two decades. As states that do not seek to decriminalize marijuana nonetheless enact legislation legalizing CBD, policy tensions arise. In 2019, Texas joined the ranks of states that legalized hemp and hemp-derived products with the passage of House Bill 1325. In light of this legislation, this Article discusses the implications of legalized cannabidiol (CBD) on employment drug policies in Texas. The benefits of CBD legalization must be weighed against the practical implications to effectively balance policies that aim to …

Trauma-Informed Advocacy: Learning To Empathize With Unspeakable Horrors, Susan Ayres

Faculty Scholarship

No abstract provided.

Transparency After Carpenter, Hannah Bloch-Wehba

Faculty Scholarship

This brief invited response to Professor Matthew Tokson’s Foulston-Siefkin lecture on the Supreme Court's decision in Carpenter v. United States makes two contributions. First, I highlight the social, political, and economic factors at play in the Carpenter decision. The Carpenter Court recognized, in particular, that digital surveillance implicates the rights of more than just criminal suspects: it poses unique and unappreciated threats to public governance of policing. The decision, I argue, reflects longstanding preoccupations in Fourth Amendment decisions with protecting the “public” — particularly innocent third parties — from intrusive and baseless investigations. In so doing, I situate Professor Tokson’s …

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Student Scholarship

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

Community In Property: Lessons From Tiny Homes Villages, Lisa T. Alexander

Faculty Scholarship

The evolving role of community in property law remains undertheorized. While legal scholars have analyzed the commons, common interest communities, and aspects of the sharing economy, the recent rise of intentional co-housing communities re-mains relatively understudied. This Article analyzes tiny homes villages for unhoused people in the United States, as examples of co-housing communities that create a new housing tenure—stewardship—and demonstrate the growing importance of community, co-management, sustainability, and flexibility in con-temporary property law. These villages’ property relationships challenge the predominance of individualized, exclusionary, long-term, fee simple ownership in contemporary property law and exemplify property theories such as progressive property …

Dr. Jekyll & Mr. Holmes: A Tale Of Two Testaments, Stephen R. Alton

Faculty Scholarship

Author's Note: This Article takes the form of an epistolary exchange across the centuries, comparing and contrasting two noted wills in Victorian literature. To preserve verisimilitude, the author lets these letters and emails speak for themselves, without any formal introduction, just as would have occurred in Victorian epistolary fiction. It is the author's hope that the relevant testaments and the legal issues they present will make themselves clear as these exchanges proceed. Any reader desiring a more formal introduction to this Article is directed to the first email (below) written by the author to Mr. Utterson and Mr. Holmes; this …

The Paradox Of Minority Attorney Satisfaction, Milan Markovic, Gabrielle Plickert

Faculty Scholarship

A substantial literature documents the challenges faced by minority attorneys in the legal profession, ranging from underrepresentation in prestigious practice settings and lower incomes to discrimination from fellow lawyers, clients, and judges. In light of the foregoing, one would expect minority attorneys to regret their decisions to attend law school and become lawyers. Yet, empirical research indicates that minority attorneys are predominately satisfied with their decision to become attorneys and that their satisfaction is on par with that of white attorneys. How to account for this seeming paradox?

Drawing on data from a large cross-section of Texas lawyers, this is …

Assigned Counsel Mentoring Programs: Results And Lessons From Two Pilot Projects, Susan Saab Fortney

Faculty Scholarship

Working with a team of three subject matter experts, the National Legal Aid and Defender Association implemented and evaluated two pilot mentoring projects aimed at helping lawyers who serve as assigned counsel. This report discusses the program design, evaluation outcomes, and offers guidance through lessons learned for other jurisdictions interested in introducing assigned counsel mentoring programs. The author of the report was the principal investigator who evaluated the programs.

This project was supported by grant number 2015-AJ-BX-K043 awarded by the Bureau of Justice Assistance, Office of Justice Programs to the National Legal Aid and Defender Association. The opinions, findings, and …

Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short

Faculty Scholarship

merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a …

Historic Partition Law Reform: A Game Changer For Heirs’ Property Owners, Thomas W. Mitchell

Faculty Scholarship

Over the course of several decades, many disadvantaged families who owned property under the tenancy-in-common form of ownership—property these families often referred to as heirs’ property—have had their property forcibly sold as a result of court-ordered partition sales. For several decades, repeated efforts to reform State partition laws produced little to no reform despite clear evidence that these laws unjustly harmed many families. This paper addresses the remarkable success of a model State statute named the Uniform Partition of Heirs Property Act (UPHPA), which has been enacted into law in several States since 2011, including in five southern States. The …

Bloody Hell: How Insufficient Access To Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, Lauren Shaw

Texas A&M Law Review

For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and …

Reconsidering Christianity As A Support For Secular Law: A Final Reply To Professor Calhoun, Wayne Barnes

Faculty Scholarship

This symposium has revolved around Professor Calhoun’s article, which posits that it is completely legitimate, in proposing laws and public policies, to argue for them in the public square based on overtly religious principles. In my initial response, I took issue with his argument that no reasons justify barring faith-based arguments from the public square argument. In fact, I do find reasons justifying the prohibition of “faith-based,” or Christian, arguments in the public square – and, in fact, I find such reasons within Christianity itself. This is because what is being publicly communicated in Christian political argumentation is that if …

Senate Bill 4: Police Officer's Opinions On Texas's Ban Of Sanctuary Cities, Megan E. Reed

Student Scholarship

For this Article, the Author interviewed six local law enforcement agencies in Texas regarding SB4. Based on those interviews and other research, this Article concludes that SB4 likely does not uproot and change Texas policing practices and asserts that SB4 may in fact be highly ineffective at improving resident safety, which was Texas lawmakers’ stated purpose for SB4. SB4 continues to have far reaching impacts, including concerns of racial profiling, victims and witnesses refusing to come forward due to fears of deportation, and damage to police officers’ reputations. Further, while some local law enforcement agencies claim they will not have …

The "Uncanny Valley" And The Verisimilitude Of Sexual Offenders--Part I: An "Ethorobotic" Perspective, Michael T. Flannery

Texas A&M Law Review

This Article is the first in a series of three articles in which I explain the cycle of misperception of sexual offenders that has encouraged the unconstitutional application of sexual offender laws, including civil commitment laws, in a false effort to quell public fear, protect children, and reduce sexual victimization. In this first Article of the series, I propose that this cycle of misperception and the resistance to the release of civilly committed sexual offenders may be, in part, the product of a novel phenomenon known as the “uncanny valley” effect.

Reefer Madness: The Constitutional Consequence Of The Federal Government's Inconsistent Marijuana Policy, Zachary Ford

Texas A&M Law Review

In the past twenty years, the United States has witnessed over half of its states create marijuana laws that expressly contradict the federal government’s complete ban of the drug. Nine states have completely legalized marijuana for recreational use in the past five years alone. Meanwhile, much of the country remains staunchly opposed to legalization in any form. This difference between state and federal law has the largest negative impact on noncitizens, namely lawful permanent residents whom reside in states that follow the federal government’s complete ban. Congress’s Immigration and Nationality Act broadly defines “conviction,” so even minor drug convictions under …