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Articles 31 - 60 of 110
Full-Text Articles in Law and Society
Review Of Colin Dayan’S The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, Dean Spade
Review Of Colin Dayan’S The Law Is A White Dog: How Legal Rituals Make And Unmake Persons, Dean Spade
Faculty Articles
Professor Dean Spade reviews Colin Dayan’s The Law Is a White Dog: How Legal Rituals Make and Unmake Persons.
The Invention Of Asian Americans, Robert S. Chang
The Invention Of Asian Americans, Robert S. Chang
Faculty Articles
The essay begins by examining amicus briefs submitted in Fisher v. Texas by Asian American organizations in support of and in opposition to affirmative action. What does it mean when groups that purportedly protect, advance, and represent the interests of Asian Americans invoke the historical treatment of Asian Americans and present facts about Asian Americans but end up advocating for opposite outcomes? This Essay starts with the competing Asian American perspectives and assertions of authority expressed in these briefs to explore the theme of a Symposium at the UC Irvine School of Law, provocatively entitled, Reigniting Community: Strengthening the APA …
Your Mayor, Your “Friend”: Public Officials, Social Networking, And The Unmapped New Public Square, Bill Sherman
Your Mayor, Your “Friend”: Public Officials, Social Networking, And The Unmapped New Public Square, Bill Sherman
Faculty Articles
The use of online social networks by local public officials has drawn the ire of local governments, some of whom have gone so far as to bar public officials from social networks for fear of violating campaign finance, open meeting, freedom of information, and government ethics laws. These objections overlook the unique nature of civic social networks as an emerging political institution, characterized by a high degree of transparency and intense public pressure for accountability. The nature of this new institution renders the alarmist reaction overblown. Civic social networks are the new public square, and local governments should embrace them …
The Corporation As Imperfect Society, Brian Mccall
The Corporation As Imperfect Society, Brian Mccall
Faculty Articles
Corporations are ubiquitous in modern society. They pervade every aspect of our life, consumer, professional, investment activity. Probably, people have more contact with corporations on a daily basis than any other institution, including government. From the South Sea Bubble to the Stock market Crash of 1929 to Enron to General Motors and Countrywide Mortgage, corporate scandals and controversies invite fundamental questions about corporate law. This article attempts to bring a fresh perspective to the question: “what is a corporation and how should the law treat it?” The article articulates a corporate metaphysics rooted in political philosophy. The dominant models of …
On (Cr)Edibility: Why Food In The United States May Never Be Safe, Denis Stearns
On (Cr)Edibility: Why Food In The United States May Never Be Safe, Denis Stearns
Faculty Articles
Most critiques of regulation are premised on the concepts of “free markets” and “market failures” as justifying, or not, the need for government interventions and control of the marketplace. Using the market for food as an example, this article questions not only the possibility of a buyer being a free actor when buying food, but also whether it is meaningful to speak in terms of a “free” market at all. One centerpiece of this questioning is the author’s coining of the term “(cr)edibility” to stand for the twinned ideas of credibility and edibility as defining the nature of all commercial …
Half-Full, Half-Empty? Asian American Electoral ‘Presence’ In 2008, Robert S. Chang, Keith Aoki
Half-Full, Half-Empty? Asian American Electoral ‘Presence’ In 2008, Robert S. Chang, Keith Aoki
Faculty Articles
The article discusses the role of Asian Americans in the election of the U.S. President Barack Obama in 2008. It notes that the influence of Asian American in national politics may not significantly affect the next cycles of presidential elections in the U.S. It notes the importance of patience and optimism in envisioning and constructing Asian American electorate.
Way To Represent: The Role Of Black Lawyers In Contemporary American Democracy, Carla Pratt
Way To Represent: The Role Of Black Lawyers In Contemporary American Democracy, Carla Pratt
Faculty Articles
The legal profession has articulated a commitment to racial diversity. This essay attempts to articulate the unique contribution that black lawyers make to the legal profession and the role black lawyers play in strengthening our democracy.
Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane Stoever
Stories Absent From The Courtroom: Responding To Domestic Violence In The Context Of Hiv And Aids, Jane Stoever
Faculty Articles
HIV/AIDS dramatically impacts domestic violence survivors' needs and demands reconceptualization of current responses to domestic violence. This article aims to illuminate the problem of domestic violence in the context of HIV/AIDS and to prompt further development of legal response systems. Specifically, this article brings together the worlds of law, public health, and women's lived experiences to argue for recognizing and responding to domestic violence in the context of HIV/AIDS in the United States. Utilizing accounts of clients' experiences and data from public health studies, this article sets forth eight categories of HIV/AIDS-related domestic violence: repercussions from partner notification, use of …
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian Mccall
Exploring The Foundations Of Dworkin's Empire: The Discovery Of An Underground Positivist, Brian Mccall
Faculty Articles
This review essay examines the jurisprudence of Ronald Dworkin as presented in the anthology: Exploring Law's Empire: The Jurisprudence of Ronald Dworkin, edited by Scott Hershovitz. Notwithstanding the influence Dworkin's jurisprudence has had on the reconsideration of moral reasoning within legal reasoning, the essay concludes that at its foundation Dworkin's jurisprudence is based upon Legal Positivist principles. The essay first summarizes the jurisprudence of Dworkin and then contrasts his jurisprudence with traditional Natural Law Legal Theory and finally exposes the Positivist foundations of Dworkin's Legal Empire.
Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez
Squatters, Pirates, And Entrepreneurs: Is Informality The Solution To The Urban Housing Crisis?, Carmen Gonzalez
Faculty Articles
Giving the poor legal title to the lands they occupy extra-legally (informally) has been widely promoted by the World Bank and by best-selling author Hernando de Soto as a means of addressing both poverty and the scarcity of affordable housing in the urban centers of the global South. Using Bogota, Colombia, as a case study, this article interrogates de Soto's claims about the causes of informality and the benefits of formal title. The article concludes that de Soto's analysis is problematic in three distinct respects. First, de Soto exaggerates the benefits of formal title and fails to consider its risks. …
Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin
Immunity For Hire: How The Same-Actor Doctrine Sustains Discrimination In The Contemporary Workplace, Natasha Martin
Faculty Articles
This article provides a doctrinal critique of an employment discrimination principle recognized by the courts-the same-actor inference-based on its incongruence with both cognitive psychological research and the social dynamics of the workplace. The same-actor principle, in its most potent form, provides that where the same decision-maker engages in an alleged adverse employment action within a short period of time of making a positive employment decision, such evidence creates a strong presumption that the decision-maker harbored no unlawful discriminatory animus. The same-actor doctrine was first recognized by the Fourth Circuit in Proud v. Stone, in which the court deemed the nature …
John Calmore’S America, Robert S. Chang, Catherine Smith
John Calmore’S America, Robert S. Chang, Catherine Smith
Faculty Articles
In their contribution to this symposium honoring Professor John Calmore, Professors Robert Chang and Catherine Smith analyze the recent school desegregation case, Parents Involved in Community Schools v. Seattle School District No. 1, through the lens of Professor Calmore's work. In particular, they locate this case as part of what Professor Calmore calls the Supreme Court's Racial Project. Understood as a political project that reorganizes and redistributes resources along racial lines, the Supreme Court's Racial Project creates a jurisprudence around race that solidifies the work of the new right and neoconservatives. Borrowing from Calmore's methodology, Professors Chang and Smith clarify …
Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell
Theology In Public Reason And Legal Discourse: A Case For The Preferential Option For The Poor, Russell Powell
Faculty Articles
There is a strange disconnect between the formal understanding of the separation of religion from government in the United States and the almost ubiquitous use of religious language in political discourse, not to mention the web of complicated religious motivations that sit on or just below the surface of policy debates. This paper presents an argument for the relevance of the principle of the "preferential option for the poor" from Catholic social thought in public reason and legal discourse in order to explore the possible advantages of making the veil between religion and the secular state more permeable. As a …
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
The Terrorism Exception To Asylum: Managing The Uncertainty In Status Determination, Won Kidane
Faculty Articles
The Immigration and Nationality Act ("INA "), as it must, excludes a terrorist from receiving asylum. The substantive criteria, and the adjudicative procedures set forth under the INA for the identification of the undeserving terrorist inevitably exclude those who are neither terrorists nor otherwise undeserving. Such unintended consequences are perhaps unavoidable in any well-conceived statutory scheme. What is disconcerting is, however the margin of the possible error in the application of this statutory scheme. Those who may be excluded by the application of these provisions are often not those who are supposed to be excluded as terrorists. Moreover, the existing …
The Challenges Of Representing Detained Non-Citizens In Expedited Removal Proceedings From The Perspective Of The Dickinson School Of Law Immigration Clinic, Won Kidane
Faculty Articles
Persons deprived of their liberties as a result of administrative detention for immigration reasons face a multitude of serious challenges. There is currently no recognized right to the government-appointed representation in immigration proceedings. As a result, on a very small percentage of immigrants obtain pro bono or any other kind of legal representation. This problem is compounded by the fact that most immigration detainees are detained in remote rural areas where the private bar is virtually unavailable. Those who are fortunate to obtain pro bono or other types of legal representation also face some serious challenges at the different stages …
Committing A Crime While A Refugee: Rethinking The Issue Of Deportation In Light Of The Principle Against Double Jeopardy, Won Kidane
Faculty Articles
The Double Jeopardy Clause of the United States Constitution provides: No person shall...be subject for the same offense to be twice put in jeopardy of life or limb . . . If a refugee who has committed a deportable offense and served his sentence is subsequently deported from a place where he calls home to a place where he would face persecution, he could literally be said to have been twice put in jeopardy of life and limb. That seems to be a prima facie violation of the Double Jeopardy Clause of the Fifth Amendment. This constitutional guarantee is, however, …
Afterword: The Race Question In Latcrit Theory And Asian American Jurisprudence, Robert S. Chang, Neil Gotanda
Afterword: The Race Question In Latcrit Theory And Asian American Jurisprudence, Robert S. Chang, Neil Gotanda
Faculty Articles
In the tradition of LatCrit Afterwords, Professors Chang and Gotanda take the liberty of raising questions that extend beyond the particular themes of this LatCrit Conference and the papers published in this Symposium. They return to two questions - ethnicity versus race and black exceptionalism - that were raised in early LatCrit Conferences but which have since been moved to the background. They ask what LatCrit Theory and Asian American Jurisprudence might teach us about minority on minority conflict and other ethno-racial fault lines. They present an analytic model to help understand commentaries on racial conflict and coalition. This model …
The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine
The Intimacy Discount: Prosecutorial Discretion, Privacy, And Equality In The Statutory Rape Caseload, Kay L. Levine
Faculty Articles
This Article proceeds as follows. It begins in Part I by presenting the structural and case-based factors that scholars have identified as relevant to prosecutorial decision-making in the United States. Part II considers the existing social science research documenting the relationship between intimacy and criminal Justice treatment. Part III explains the empirical study of California prosecutors on which this Article's data and conclusions are based. After introducing California's statutory rape prosecution program in Part IV, the Article describes in Part V how the program's underlying rationale led to the development and deployment of prosecutorial assessments of intimacy and exploitation in …
Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel
Equal Protection Unmodified: Justice John Paul Stevens And The Case For Unmediated Constitutional Interpretation, Andrew Siegel
Faculty Articles
In one of his first major writings on the United States Supreme Court, Justice John Paul Stevens famously argued that "[t]here is only one Equal Protection Clause." In the ensuing three decades, that quotation has become something of a battle cry for commentators critical of tiered equal protection review, many of whom not only seek to dismantle tiered equal protection scrutiny but also to replace it with an alternative (usually more complicated) doctrinal super-structure. This Article argues that his association with these commentators has partially obscured Justice Stevens's unique equal protection methodology. While he shares (indeed inspired) their critique of …
Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud
Postcoloniality And Mythologies Of Civil(Ized) Society, Tayyab Mahmud
Faculty Articles
This article argues that the discourse of viability of civil society in postcolonial polities is theoretically ungrounded, and helps to further marginalize subordinated sections of these societies. These failings result from the imprisonment of dominant social theories in Eurocentric unilinear evolutionism, an imprisonment that blinds one from the particularities of supposedly universal categories that issue from Europe's experience of modernity. Furthermore, enthusiasm for civil society ignores the truncated colonial career of modernity and the nature of the postcolonial state. In order to substantiate these propositions, the paper traces the genealogy of the concept of civil society, examines the colonial career …
Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve
Somerset’S Case And Its Antecedents In Imperial Perspective, George Van Cleve
Faculty Articles
The article offers a look on the Somerset's Case that served as a milestone in the campaign to abolish slavery in Great Britain. The case become famous in the Anglo-American law of slavery, with its proceedings widely circulated in periodicals. However, historians have argued about what the ruling was and its effects. It has been known in English slavery law that courts prior to the case generally agreed that English law governed status, but also limited slavery, for slaves who came to England.
The Social Foundations Of Law, Martha Albertson Fineman
The Social Foundations Of Law, Martha Albertson Fineman
Faculty Articles
There are several important questions to ask both our politicians and ourselves as we seek to refine and further define an otherwise abstract commitment to substantive equality with which to replace our current formal version. As with many concepts of historic magnitude, some of the most significant questions to pose about equality have to do with how we should respond to evolutions in understanding and changes in aspiration for the term: ls a mere commitment to formal equality sufficient for a humane and modem state? How should the state respond to the fact that our society is increasingly one in …
Allegory From The Cave: A Story About A Mis-Educated Profession And The Paradoxical Prescription, Natasha Martin
Allegory From The Cave: A Story About A Mis-Educated Profession And The Paradoxical Prescription, Natasha Martin
Faculty Articles
The article reviews and engages Professor Derrick Bell’s more recent scholarship on the nature of the legal profession and the practice of law – ETHICAL AMBITION: LIVING A LIFE OF MEANING AND WORTH – placing Bell’s work in the broader framework of the entire legal enterprise highlighting its relevance to legal ethics, the ills of the profession and legal training. The article juxtaposes Bell’s more contemporary critique of the legal profession and practice with the observations of Carter G. Woodson in THE MIS-EDUCATION OF THE NEGRO, another African-American educator largely unfamiliar to the broader legal academy. The author proposes that …
Essay: A Search For Reason In Fairy Tales, John F. Hernandez
Essay: A Search For Reason In Fairy Tales, John F. Hernandez
Faculty Articles
A fairy tale: Once upon at time (not so very long ago), in a land (not so far away) lived a beautiful queen (well, actually a "runner up ") with a golden voice. The beautiful queen reined over her people and sang of sunshine. Some of the queen's subjects had felt that they were not treated fairly by the laws of the land and sought to have their unfair treatment prohibited. Apparently, this caused the queen to develop a fear and hatred for these subjects. These subjects had done nothing to the queen. Yet, the queen made it her mission …
Limit Horizons & Critique: Seductions And Perils Of The Nation, Tayyab Mahmud
Limit Horizons & Critique: Seductions And Perils Of The Nation, Tayyab Mahmud
Faculty Articles
This essay introduces four contributions on nation and nationalism that form a cluster in the 2005 Annual Symposium of Latina/o Critical Legal Theory (LatCrit). It puts forward the concept of "limit horizons": the hegemonic ontological categories that so imprint the imaginary of an age the even critique remains imprisoned in the normalcy of these categories - an imprisonment that curtails the transformatory potential of critique. It is argued that the modern concept of the nation is such a limit horizon. Consequently, any critical engagement with the concept of the nation must concurrently be an exercise in self-critique to ensure that …
Citizen And Citizenship Within And Beyond The Nation, Tayyab Mahmud
Citizen And Citizenship Within And Beyond The Nation, Tayyab Mahmud
Faculty Articles
This review essay deploys critical social theory and critical race theory to interrogate concepts of citizen and citizenship. It reviews three submissions to a Lationa/o Critical Legal Theory (LatCrit) Symposium. One explores the relationship between law, race, and nation-building. The second examines the relationship between race and citizenship through the prism of police round-up of undocumented workers in Arizona. The last located the question of citizenship and legal subjecthood beyond the traditional confines of the nation-state.
Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey
Screening The Law: Ideology And Law In American Popular Culture, Mark Niles, Naomi Mezey
Faculty Articles
This paper reevaluates Frankfurt School theory, and other cultural critiques, in an effort to bring a more sophisticated analysis to bear on popular culture depictions of law. It invokes the cultural critiques of the Birmingham School in order to assess the more subtle ideological content more often found in film. The focus is not only on how popular culture functions as a mechanism for communicating and reproducing ideologies, but also what this function is based on, a theoretical analysis that asks what images of law and legal justice one might expect to see in popular media. The article also assesses …
Lawrence Summers’ Speech On “Innate” Differences Between Men And Women--A Different Perspective, Thomas Fischer
Lawrence Summers’ Speech On “Innate” Differences Between Men And Women--A Different Perspective, Thomas Fischer
Faculty Articles
In this article, Professor Fischer outlines his experience in the admissions department at Georgetown University Law Center as well as other legal academic settings, and the perspective he gained with regard to women in the sphere of legal academia. The article outlines a careful reflection over the role of gender in these settings, in contrast with Lawrence Summer's perspective on innate gender differences.
Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse
Freedom In A Regulatory State?: Lawrence, Marriage And Biopolitics, Dean Spade, Craig Willse
Faculty Articles
This paper attempts to trace the links between the Lawrence v. Texas decision and campaigns for gay marriage rights in order to envision movements that seek justice for more than just the most racially and economically privileged lesbians and gay men. The authors outline the limits of the agenda represented by Lawrence and propose alternative modes for resisting the coercive regulation of sexuality, gender, and family formations.
Trade Liberalization, Food Security And The Environment: The Neoliberal Threat To Sustainable Rural Development, Carmen G. Gonzalez
Trade Liberalization, Food Security And The Environment: The Neoliberal Threat To Sustainable Rural Development, Carmen G. Gonzalez
Faculty Articles
This article examines the historic and contemporary roots of chronic malnutrition and environmental degradation in the developing world. It chronicles the patterns of trade and production that contribute to this problem from the colonial period until the present, and analyzes the role of contemporary trade, aid and development practices in ameliorating or exacerbating the problem. The article argues that the neoliberal economic reforms imposed on developing countries through the International Monetary Fund (IMF), the World Bank, and the World Trade Organization (WTO) exacerbate hunger and environmental degradation by reinforcing pre-existing inequities in the global trading system that relegate many developing …