Law and Society Commons^™

Bastards! . . .. And The Welfare Plantation, Zanita E. Fenton

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No abstract provided.

Opt-Out Education: School Choice As Racial Subordination, Osamudia R. James

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Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and …

Criminalizing Revenge Porn, Danielle Citron, Mary Anne Franks

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No abstract provided.

White Like Me: The Negative Impact Of The Diversity Rationale On White Identity Formation, Osamudia R. James

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In several cases addressing the constitutionality of affirmative action admissions policies, the Supreme Court has recognized a compelling state interest in schools with diverse student populations. According to the Court and affirmative action proponents, the pursuit of diversity does not only benefit minority students who gain expanded access to elite institutions through affirmative action. Rather, diversity also benefits white students who grow through encounters with minority students, it contributes to social and intellectual life on campus, and it serves society at large by aiding the development of citizens equipped for employment and citizenship in an increasingly diverse country.

Recent scholarship …

Critical Race Action: Queer Lessons And Seven Legacies From The One And Only Professor Bell, Francisco Valdes

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No abstract provided.

Breaking Glass: Identity, Community And Epistemology In Theory, Law And Education, Francisco Valdes

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No abstract provided.

Symbolic Politics For Disempowered Communities: State Environmental Justice Policies, Tonya Lewis, Jessica Owley

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No abstract provided.

I Am/I Am Not: On Angela Harris's Race And Essentialism In Feminist Legal Theory, Mary Anne Franks

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In 1990, Angela Harris wrote an article that interrogated the limitations of feminist legal theory. Nearly a quarter of a century later, the insights and challenges Harris offered in Race and Essentialism in Feminist Legal Theory continue to reverberate. The influence of her ideas can be seen in the fractured and passionate conversations about gender, race, and solidarity occurring both inside and outside of academia. In recent years, we have witnessed an explosion of debate of these topics in social media forums such as Twitter and Facebook. Far from being trivial, the intensity and persistence of these conversations suggest a …

Latcrit 2013 Conference Symposium Afterword:Theorizing And Building Critical Coalitions: Outsider Society And Academic Praxis In Local/Global Justice Struggles, Francisco Valdes

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No abstract provided.

A Proposal To Withhold Divorce Decrees On Grounds Of Equity, J. David Bleich

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Throughout the medieval period, marriage was acknowledged by temporal rulers to be a religious matter governed by the ecclesiastic law of the Church which, to be sure, incorporated many principles of Roman law. Subsequent to the Reformation, the rulers of many European countries became disposed to regard marriage as a civil act, to withdraw marriage from the control of the church and to entrust it entirely to the state. The Napoleonic Code was the first example of a legal system that treated marriage as a purely civil act. The Napoleonic Code did not deny the religious element present in marriage …

Evidence-Based Sentencing And The Scientific Rationalization Of Discrimination, Sonja B. Starr

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This Article critiques, on legal and empirical grounds, the growing trend of basing criminal sentences on actuarial recidivism risk prediction instruments that include demographic and socioeconomic variables. I argue that this practice violates the Equal Protection Clause and is bad policy: an explicit embrace of otherwise- condemned discrimination, sanitized by scientific language. To demonstrate that this practice raises serious constitutional concerns, I comprehensively review the relevant case law, much of which has been ignored by existing literature. To demonstrate that the policy is not justified by countervailing state interests, I review the empirical evidence underlying the instruments. I show that …

Abortion Distortions, Caroline Mala Corbin

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No abstract provided.

How To Feel Like A Woman, Or Why Punishment Is A Drag, Mary Anne Franks

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If a man in prison says that he was made -to feel like a woman," this is commonly understood to mean that he was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison but also sexual abuse generally These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. In contrast, this Article argues that feminization is punitive for both …

Concentrated Enforcement, Leigh Osofsky

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When enforcement resources are limited, how should the scarce enforcement resources be allocated to increase compliance with the law? The answer to this question can determine to what extent the law on the books translates to the law in practice. A dominant school of thought in the tax literature suggests that they should be allocated based on a "worst-first" method, whereby the individuals likely to be most noncompliant are targeted. However, while "worst-first" methods can encourage all individuals to increase compliance so as not to be deemed the "worst, " they can also provide cover to engage in noncompliance that …

Roll Back "Prison Nation", Donna Coker

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No abstract provided.

Gender Quotas After The End Of Men, Julie C. Suk

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The article explores the evolving role of gender quotas in a society where women are increasingly surpassing men in education and professional sectors, a concept termed "the end of men." It examines the legal and social implications of gender quotas, contrasting France's constitutional commitment to gender parity with Sweden's shift away from such quotas as they begin to disadvantage women in certain contexts. The author argues that the justification for gender quotas is being reevaluated, moving from correcting historical discrimination to maintaining gender balance as a permanent societal goal.

Rethinking Sustainability To Meet The Climate Change Challenge, Jessica Owley, Michael Burger, Elizabeth Burleson, Rebecca M. Bratspies, Robin Kundis Craig, David M. Driesen, Alexandra R. Harrington, Keith H. Hirokawa, Sarah Krakoff, Katrina Fischer Kuh, Stephen R. Miller, Patrick Parenteau, Melissa Powers, Shannon M. Roesler, Jonathan Rosenbloom

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A group of environmental law professors formed the Environmental Law Collaborative with the goal of engaging environmental law scholars in the thorny issues of the day. The members of the Collaborative gathered in the summer of 2012 to produce an intensive and collective assessment of sustainability in the age of climate change. Their writings examine the process of adapting the principles and application of sustainability to the demands of climate change, including framing the term sustainability in climate change discussions; coordinating sustainable practices across disciplines such as law, economics, ethics, and the hard sciences; and conceptualizing the role of sustainability …

The Field In Ireland In 2014, Tom Dunne

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Repossessions are an important part of recovery in the housing market

Community Education And Access To Justice In A Time Of Scarcity: Notes From The West Grove Trolley Garage Case, Anthony V. Alfieri

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No abstract provided.

A Match Made On Earth: Getting Real About Science And The Law, Susan Haack

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Modern legal systems increasingly depend on scientific testimony; but they also need somehow to ensure, so far as possible, that fact-finders aren't misled by highly speculative, poorly-conducted, or dishonestly-presented science. The Critical Common-sensist understanding of science that the author has developed in Defending Science and elsewhere sheds some light on why these interactions between law and science have proven so problematic. But Ms. Acharya's approach to these difficult issues rests on a flawed conception of the supposed "scientific method, " and an idea of legal "legitimacy" too weak to bear the weight she places on it; and her claim that …

Next Generation Civil Rights Lawyers: Race And Representation In The Age Of Identity Performance, Anthony V. Alfieri, Angela Onwuachi-Willig

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This Book Review addresses two important new books, Professor Kenneth Mack's Representing the Race: The Creation of the Civil Rights Lawyer and Professors Devon Carbado and Mitu Gulati's Acting White? Rethinking Race in Post-Racial America, and utilizes their insights to both explore the challenges that face the next generation of civil rights lawyers and offer suggestions on how this next generation of civil rights lawyers can overcome these difficulties. Overall, this Book Review highlights one similarity in the roles of black civil rights attorneys past and present: the need for lawyers in both generations to perform their identities in …

Critique Of Money Judgment Part Three: Restraining Notices, David G. Carlson

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New York is virtually unique in permitting lawyers to issue court orders restraining debtors and third parties from conveying away any assets that could be used to satisfy a money judgment. In effect, these orders command the recipient to do nothing, whereas a turnover or garnishment orders the recipient to do something — pay the creditor or sheriff or surrender illiquid property to the sheriff. The weakness and strength of this debt collection tool is assessed at length. The Article also analyzes in detail New York’s Exempt Income Protection Act, enacted in 2008 to force banks to protect the exempt …

Provisional Arrest And Incarceration In The International Criminal Tribunals, Melinda Taylor, Charles C. Jalloh

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This article examines the widely ignored but important issue regarding the provisional arrest and detention of persons suspected of having committed international crimes by international or internationalized courts. The paper examines the pioneer case law and practice of the United Nations International Criminal Tribunals for the former Yugoslavia and Rwanda, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon, as well as the emerging practice of the permanent International Criminal Court, to evaluate how these courts have generally addressed the rights of these individuals to due process and freedom from arbitrary arrest and detention before …

Protecting Elites: An Alternative Take On How United States V. Jones Fits Into The Court's Technology Jurisprudence, Tamara Rice Lave

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This Article argues that the Supreme Court's technology jurisprudence can be best understood as protecting the privacy interest of elites. After providing an overview of the major technology cases from Olmstead to Kyllo, the Article focuses on the recent case of United States v Jones. The Article does not contend that the Court intended to protect elites, but instead posits that this motive likely operated at a more unconscious level because of the Justices' greater relative affluence and elevated social position.

Effective Trial Counsel After Martinez V. Ryan: Focusing On The Adequacy Of State Procedures, Eve Brensike Primus

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Everyone knows that excessive caseloads, poor funding, and a lack of training plague indigent defense delivery systems throughout the states, such that the promise of Gideon v. Wainwright is largely unfulfilled. Commentators have disagreed about how best to breathe life into Gideon . Many disclaim any possibility that federal habeas corpus review of state criminal cases could catalyze reform give n the many procedural obstacle s that currently prevent state prisoners from getting into federal court. But the Supreme Court has recently taken a renewed interest in using federal habeas review to address the problem of ineffective attorneys in state …

Taxing The Platypygous, James J. White

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This Article maintains that obesity in the United States is an enormous public health issue that causes the health care costs of the obese Americans greatly to exceed those of citizens of normal weight. Recognizing that that much of that cost will be born by publicly financed programs and that the taxes supporting those programs will constitute an externality that the fat impose on the thin, the Article proposes a tax on high calorie food-but only when that food is purchased by the obese. The Article addresses many of the administrative, moral and other objections to a tax aimed at …

Imagining A Same-Sex Marriage Decision Based On Dignity: Considering Human Experience In Constitutional Law, Danieli Evans

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California’s Proposition 8 allows same sex couples to join through civil unions, which grant the legal benefits afforded to married couples but denies them the official label of “marriage.” The lower court eschewed the question of whether Proposition 8 burdens any fundamental right by concluding there is not even a rational basis (the minimum standard for the constitutionality of any law) for this law, as its sole effect is to deny same sex couples the designation of marriage.

We appreciate the lower court’s caution not to extend our fundamentalrights jurisprudence beyond precedent. However, we are positioned to elaborate fundamental constitutional …

They Saw A Protest: Cognitive Illiberalism And The Speech-Conduct Distinction, Dan M. Kahan, David A. Hoffman, Donald Braman, Danieli Evans, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski, Jeffrey J. Rachlinski

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“Cultural cognition” refers to the unconscious influence of individuals’ group commitments on their perceptions of legally consequential facts. We conducted an experiment to assess the impact of cultural cognition on perceptions of facts relevant to distinguishing constitutionally protected “speech” from unprotected “conduct.” Study subjects viewed a video of a political demonstration. Half the subjects believed that the demonstrators were protesting abortion outside of an abortion clinic, and the other half that the demonstrators were protesting the military’s “don’t ask, don’t tell” policy outside a campus recruitment facility. Subjects of opposing cultural outlooks who were assigned to the same experimental condition …

The Topography Of Legal Recognition Of Same-Sex Relationships, Edward D. Stein

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This article categorizes and explains the variety of forms of relationship recognition that have emerged in the United States over the last dozen or so years. Five issues regarding same-sex marital andnonmarital relationship statuses are examined: (1) eligibility, (2) benefits, (3) dissolution, (4) recognition from other jurisdictions, and (5) the intersection of state and federal law. The article then offers various proposals about what states should do in the face of the options that have emerged: (a) states that recognize same-sex marriages and nonmarital relationships should adapt their statutes to recognize "substantially similar" relationships; (b) jurisdictions should adopt statutes that …

Social Media And The Press, Lili Levi

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The Internet and social media are transforming news as we knew it, yet the precise consequences of these changes are not yet clear. Journalists now rely on Twitter, crowdsourcing is available through social media, facts and stories are googled, traditional print newspapers have websites and reporter blogs, "open newsrooms" invite community participation in the editorial process itself, video from citizen journalists is commonly used in mainstream media storytelling, bloggers consider themselves journalists, and media consolidation marries entities like AOL and the Huffington Post. In turn, changes in the news-access practices of readers are increasingly influencing the length, breadth, and subjects …