Law and Society Commons^™

The "Publicization" Of Private Space, Sarah B. Schindler

Faculty Publications

Recently, many urban areas have moved away from the creation of publicly owned open spaces and toward privately owned public open spaces, or POPOS. These POPOS take many forms: concrete plazas that separate a building from the sidewalk; glass-windowed atriums in downtown office buildings; rooftop terraces and gardens; and grass-covered spaces that appear to be traditional parks. This Article considers the nature of POPOS and examines whether they live up to expectations about the role that public space should play and the value it should provide to communities. This is especially important because in embracing POPOS, cities have made a …

Legal Deserts: A Multi-State Perspective On Rural Access To Justice (Forthcoming), Danielle M. Conway

Faculty Publications

Rural America faces an increasingly dire access to justice crisis, which serves to exacerbate the already disproportionate share of social problems afflicting rural areas. One critical aspect of that crisis is the dearth of information and research regarding the extent of the problem and its impacts. This article begins to address that gap by providing surveys of rural access to justice in six geographically, demographically, and economically varied states: California, Georgia, Maine, Minnesota, South Dakota, and Wisconsin. In addition to providing insights about the distinct rural challenges confronting each of these states, the legal resources available, and existing policy responses, …

Watch Or Report? Livestream Or Help? Good Samaritan Laws Revisited: The Need To Create A Duty To Report, Patricia G. Montana

Faculty Publications

In July 2017, a group of five Florida teenagers taunted a drowning disabled man while filming his death on a cell phone. In the video, the teenagers laughed and shouted harsh statements like "ain’t nobody finna to help you, you dumb bitch." At the moment the man’s head sank under the water for the very last time, one of the teenagers remarked: "Oh, he just died" before laughter ensued. None of the teenagers helped the man, nor did any of them report the drowning or his death to the authorities.

Because the Good Samaritan law in Florida, like in most …

Algorithmic Jim Crow, Margaret Hu

Faculty Publications

This Article contends that current immigration- and security-related vetting protocols risk promulgating an algorithmically driven form of Jim Crow. Under the “separate but equal” discrimination of a historic Jim Crow regime, state laws required mandatory separation and discrimination on the front end, while purportedly establishing equality on the back end. In contrast, an Algorithmic Jim Crow regime allows for “equal but separate” discrimination. Under Algorithmic Jim Crow, equal vetting and database screening of all citizens and noncitizens will make it appear that fairness and equality principles are preserved on the front end. Algorithmic Jim Crow, however, will enable discrimination on …

Turner In The Trenches: A Study Of How Turner V. Rogers Affected Child Support Contempt Proceedings, Elizabeth Patterson

Faculty Publications

In its 2011 ruling in Turner v. Rogers, the Supreme Court held that a nonpaying child support obligor may not be incarcerated in a civil contempt proceeding if he did not have the ability to pay the ordered support or the purge necessary to regain his freedom. The Turner case arose in South Carolina, a state in which civil contempt proceedings are a routine part of the child support enforcement process. The author observed child support contempt proceedings in South Carolina both before and after the Turner decision to assess the extent to which indigent obligors were being held in …

Measuring The Creative Plea Bargain, Thea B. Johnson

Faculty Publications

A great deal of criminal law scholarship and practice turns on whether a defendant gets a good deal through plea bargaining. But what is a good deal? And how do defense attorneys secure such deals? Much scholarship measures plea bargains by one metric: how many years the defendant receives at sentencing. In the era of collateral consequences, however, this is no longer an adequate metric as it misses a world of bargaining that happens outside of the sentence. Through empirical research, this Article examines the measure of a good plea and the work that goes into negotiating such a plea. …

The Apps For Justice Project: Employing Design Thinking To Narrow The Access To Justice Gap, Lois R. Lupica

Faculty Publications

The lack of available resources to make civil justice available to all, coupled with the fact that existing strategies fail to account for the research on cognitive capacity and other deployment challenges faced by the poor, explain in large part why a high percentage of low-income individuals facing legal problems fail to take action to respond to their legal problems. Such a failure to respond in a timely fashion to a nascent legal problem can lead to an escalation of the initial problem and the emergence of new ones.

The access-to-justice community has begun to respond to this intensifying crisis …

Alienation And Reconciliation In Social-Ecological Systems, Ann M. Eisenberg

Faculty Publications

After rancher Ammon Bundy’s forceful occupation of the Malheur National Wildlife Refuge to protest federal “tyranny” in 2016, mainstream commentary dismissed Bundy and his supporters as crackpots. But the dismissal of the occupation as errant overlooked this event’s significance. This conflict: 1) involved a clash over scarce natural resources, of the type that will likely gain more frequency and intensity in the face of climate change; and 2) highlighted the popular idea that the federal government and federal environmental regulations are the enemy of the (white, rural, male) worker. This thread of antienvironmental, anti-federal alienation among many working people has …

When Does Sex Diversity On Boards Benefit Firms?, Darren Rosenblum

Faculty Publications

Firms embrace diversity, especially with regard to sex. Overtly optimistic predictions of a diversity dividend, some built on sex stereotypes, lead these firms to count on profits that may never materialize. This Article attempts to reset the agenda on how to study corporate board diversity. We can only assess if and how sex diversity yields benefits by understanding the who, what, and where of diversity. Whether sex diversity produces a “diversity dividend” depends on three key factors: (1) the nature of the benefit of including women (whether for their experience or other qualities); (2) the kind of firm and its …

Sex Quotas And Burkini Bans, Darren Rosenblum

Faculty Publications

This Essay recounts how feminist theorists and activists managed to write their ideals into the fabric of French law and culture, and how nonfeminists began to appropriate those ideals. Parité, the 2000 law that requires half of all candidates for public office be women, saw French feminists first engineer a change in French universalism to respect sex difference; although not wholly successful, Parité advanced women's political inclusion. Then, like a drop of water in a pond, these feminist ideas disappeared in plain sight: they became intrinsic to French state norms and public values. As they became woven into such norms, …

Community Development Law, Economic Justice, And The Legal Academy, Peter R. Pitegoff

Faculty Publications

The evolution of community economic development (CED) over the past several decades has witnessed dramatic growth in scale and complexity. New approaches to development and related lawyering, and to philosophies underlying these approaches, challenge us to reimagine the framework of CED. From the early days of community development corporations to today’s sophisticated tools of finance and organization, this evolution reflects “why law matters” in pursuit of economic justice and opportunity. Change is visible in new approaches to enterprise development and novel grassroots initiatives that comprise a virtual “sharing economy,” as well as intensified advocacy around low-wage work and efforts to …

God’S Uses Of The Law And The Effort To Establish A Constitutional Right To The Means To Live, Marie A. Failinger, Patrick R. Keifert

Faculty Publications

No abstract provided.

Sexbots; An Obloquy, Thomas Simmons

Faculty Publications

Sexbots may displace humans in the sex trade (or on a wider scale) sometime between the 2020s and the 2050s. Although some perquisites may derive from the proliferation of sexbots (lower levels of sexually transmitted diseases, for example), significant social harms can also be predicted. In anticipation of those harms, lawmakers may endorse targeted regulation or outright bans. The uncertain limits of Lawrence v. Texas and its progeny of sex-toy decisions will present vague constitutional shoals to these aims. The legislating-of-sexbots crusade will also make for strange bedfellows, politically speaking, as social conservatives aiming to maintain traditional values ally with …

From Orphans To Families In Crisis: Parental Rights Matters In Maine Probate Courts, Deirdre M. Smith

Faculty Publications

This Article examines the sources of the contemporary problems associated with the adjudication of parental rights matters in Maine’s probate courts and identifies specific reforms to address both the structural and substantive law problems. The Article first reviews the development of Maine’s probate courts and their jurisdiction over parental rights matters. It traces the expansion of jurisdiction over children and families from a limited role incidental to the administration of a decedent’s estate to the current scope: a range of matters that may result in the limitation, suspension, or termination of the rights of living parents. Maine probate courts now …

Dangerous Diagnoses, Risky Assumptions, And The Failed Experiment Of "Sexually Violent Predator" Commitment, Deirdre M. Smith

Faculty Publications

In its 1997 opinion, Kansas v. Hendricks, the U.S. Supreme Court upheld a law that reflected a new model of civil commitment. The targets of this new commitment law were dubbed “Sexually Violent Predators” (SVPs), and the Court upheld indefinite detention of these individuals on the assumption that there is a psychiatrically distinct class of individuals who, unlike typical recidivists, have a mental condition that impairs their ability to refrain from violent sexual behavior. And, more specifically, the Court assumed that the justice system could reliably identify the true “predators,” those for whom this unusual and extraordinary deprivation of liberty …

Regulating The Underground: Secret Supper Clubs, Pop-Up Restaurants And The Role O F Law, Sarah B. Schindler

Faculty Publications

Instagram pictures of elegantly plated dinners, long farmstyle tables, and well-to-do people laughing in what looks like a loft apartment are followed by commenters asking, “Where is this?” This is the world of underground dining. Aspiring and established chefs invite strangers into their homes (or their friends’ stores after hours, or the empty warehouse at the edge of town, or the nearest farm) for a night of food and revelry in exchange for cash. Although decidedly antiestablishment, these secret suppers and pop-up restaurants are popular—there are websites to help people locate them, and many respected publications have penned stories about …

Architectural Exclusion: Discrimination And Segregation Through Physical Design Of The Built Environment, Sarah B. Schindler

Faculty Publications

The built environment is characterized by man-made physical features that make it difficult for certain individuals — often poor people and people of color — to access certain places. Bridges were designed to be so low that buses could not pass under them in order to prevent people of color from accessing a public beach. Walls, fences, and highways separate historically white neighborhoods from historically black ones. Wealthy communities have declined to be served by public transit so as to make it difficult for individuals from poorer areas to access their neighborhoods. Although the law has addressed the exclusionary impacts …

Fitting The Forum To The Pernicious Fuss: A Dispute System Design To Address Implicit Bias And 'Isms In The Workplace, Elayne E. Greenberg

Faculty Publications

(Excerpt)

This paper proposes a dispute system design to address workplace discrimination caused by implicit biases so that employees and employers involved in such disputes can secure a more responsive justice than existing legal processes are able to provide. Workplace discrimination caused by implicit bias continues to contaminate our work environment despite our focused legal efforts to combat such overt "isms" as sexism, racism, ageism, and ableism. Although overt expressions of bias have significantly decreased in recent years, expressions of implicit bias, the primary cause of workplace discrimination, persists.

This paper extends the research on implicit bias to dispute system …

Banning Lawns, Sarah B. Schindler

Faculty Publications

Recognizing their role in sustainability efforts, many local governments are enacting climate change plans, mandatory green building ordinances, and sustainable procurement policies. But thus far, local governments have largely ignored one of the most pervasive threats to sustainability — lawns. This Article examines the trend toward sustainability mandates by considering the implications of a ban on lawns, the single largest irrigated crop in the United States.

Green yards are deeply seated in the American ethos of the sanctity of the single-family home. However, this psychological attachment to lawns results in significant environmental harms: conventional turfgrass is a non-native monocrop that …

Secret Consumer Scores And Segmentations: Separating Consumer 'Haves' From 'Have-Nots', Amy J. Schmitz

Faculty Publications

“Big Data” is big business. Data brokers profit by tracking consumers’ information and behavior both on- and offline and using this collected data to assign consumers evaluative scores and classify consumers into segments. Companies then use these consumer scores and segmentations for marketing and to determine what deals, offers, and remedies they provide to different individuals. These valuations and classifications are based on not only consumers’ financial histories and relevant interests, but also their race, gender, ZIP Code, social status, education, familial ties, and a wide range of additional data. Nonetheless, consumers are largely unaware of these scores and segmentations, …

Kids Can Change: Reforming South Dakota’S Juvenile Transfer Law To Rehabilitate Children And Protect Public Safety, Wendy Hess

Faculty Publications

South Dakota, like many other states, permits adult criminal prosecution, sentencing, and imprisonment of certain minors who commit a crime. The mechanism which allows prosecution of a child as an adult is referred to as “juvenile transfer,” because the juvenile court’s jurisdiction over the child is transferred to the adult criminal court. The article discusses how the juvenile transfer mechanism developed — both generally and in South Dakota — as well as how it operates today. The author summarizes research findings about the efficacy and fairness of juvenile transfer. Harsh criminal consequences for juveniles are increasingly disfavored as we learn …

Biometric Id Cybersurveillance, Margaret Hu

Faculty Publications

The implementation of a universal digitalized biometric ID system risks normalizing and integrating mass cybersurveillance into the daily lives of ordinary citizens. ID documents such as driver’s licenses in some states and all U.S. passports are now implanted with radio frequency identification (RFID) technology. In recent proposals, Congress has considered implementing a digitalized biometric identification card—such as a biometric-based, “high-tech” Social Security Card—which may eventually lead to the development of a universal multimodal biometric database (e.g., the collection of the digital photos, fingerprints, iris scans, and/or DNA of all citizens and noncitizens). Such “hightech” IDs, once merged with GPS-RFID tracking …

A Bibliography Of Title Ix Of The Education Amendments Of 1972, Christine Iaconeta Dulac

Faculty Publications

It has been thirty-five years since the passage of Title IX of the Education Amendment of 1972. Title IX provides that no person shall be excluded from participation in any educational program or activity that receives federal funding. This legislation is credited with bolstering the participation rates of girls and women in athletics. Although athletics are not explicitly addressed in the statutory language, Title IX requires schools to offer male and female students equal opportunities to play sports, to give male and female athletes their fair share of athletic scholarship money, and to treat male and female athletes equally in …

State-Sponsored Religious Displays In The U.S. And Europe: Introduction, Mark L. Movsesian

Faculty Publications

On June 22, 2012, the Center for Law and Religion proudly hosted, together with the Department of Law at Libera Universita Maria SS. Assunta (LUMSA), an international conference, State-Sponsored Religious Displays in the U.S. and Europe. Held at LUMSA's campus in Rome, Italy, the conference brought together leading American and European scholars, judges, and government officials to address the legality of public religious displays in different nations. Professor Silvio Ferrari of the University of Milan delivered the Conference Introduction. Panels included Cultural or Religious? Understanding Symbols in Public Places; The Lautsi Case and the Margin of Appreciation; and State-Sponsored Religious …

Order In The Desert: Law Abiding Behavior At Burning Man, Manuel A. Gómez

Faculty Publications

No abstract provided.

Assessment Of The Jury System For The Ninth Judicial Circuit Court, Michigan, Paula Hannaford-Agor, Daniel J. Hall

Faculty Publications

Under a contract between the Ninth Judicial Circuit Court of Michigan and the National Center for State Courts (NCSC), the NCSC Center for Jury Studies conducted an assessment of jury operations in the circuit and district courts, particularly focused on the extent to which jury pools in those respective courts reflect a fair cross section of the community, to identify factors that may affect the demographic composition of the jury pool, and to make recommendations to improve representation as necessary. The Ninth Judicial Circuit Court employs a one-step process to summon and qualify jurors for the countywide circuit court in …

Book Review, The Beauty Bias: The Injustice Of Appearance In Life And Law, Hannah Haksgaard

Faculty Publications

No abstract provided.

The Financial Crisis Inquiry Commission And The Politics Of Governmental Investigations, Michael A. Perino

Faculty Publications

In May 2009, Congress passed the Fraud Enforcement and Recovery Act which created the Financial Crisis Inquiry Commission, an independent, bipartisan panel tasked to examine the causes of the current financial and economic crisis in the United States.

Franklin Roosevelt never created an independent commission to investigate Wall Street, but the Pecora hearings, the eponymous investigation of Wall Street wrongdoing run by a former New York prosecutor, captivated the country. For sixteen months in the worst depths of the Great Depression, Ferdinand Pecora paraded a series of elite financiers before the Senate Banking and Currency Committee. In one hearing after …

The Influence Of Past Racism On Criminal Injustice: A Review Of The New Jim Crow And The Condemnation Of Blackness, Jelani Jefferson Exum

Faculty Publications

(Excerpt)

There are books that, on their own, are informative and moving. But, oftentimes, reading books together—one right after the other—compounds each works’ transformative power. Michelle Alexander’s much-needed report (calling it simply a book hardly does it justice), The New Jim Crow: Mass Incarceration in the Age of Colorblindness, can certainly stand on its own as an important statement about the current use of mass incarceration to maintain a racial caste system in the United States. The same strength can be found in The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America, Khalil Gibran …

No Place For Children: Addressing Urban Blight And Its Impact On Children Through Child Protection Law, Domestic Relations Law, And "Adult-Only" Residential Zoning, James G. Dwyer

Faculty Publications

No abstract provided.