Law and Society Commons^™

Emerging Latina/O Nation And Anti- Immigrant Backlash, Sylvia R. Lazos

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This foreword is an introduction to the LatCrit XI, Working and Living in the Global Playground: Frontstage and Backstage symposium, convened at William S. Boyd School of Law, in Las Vegas Nevada, during October 2006 and called upon over 150 academics to focus on the impacts of globalization and immigration. At no time has LatCrit's critical approach of interconnecting the structures of inequality, the market forces of globalization, and the cultural hostility towards outsider groups been more relevant.

Backlash against immigrants, particularly Latina/o “illegals,” is on the rise. This Introduction seeks to outline the challenges that the current immigration quandary …

Toward A History Of Children As Witnesses, David S. Tanenhaus, William Bush

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This brief essay offers a selective overview of recent trends in the historical scholarship on American childhood from the origins of the American Revolution to the early years of the Cold War. This overview of the literature has two purposes. First, it highlights recent socio-cultural scholarship that presents substantive challenges to the conventional ways of understanding the history of children and the law. Second, in so doing, it points out that legal histories concerned solely with doctrinal matters can, and often do, present a limited and distorted window into the past. Instead, the essay argues that the place of children, …

Of Metaphor, Metonymy, And Corporate Money: Rhetorical Choices In Supreme Court Decisions On Campaign Finance Regulation, Linda L. Berger

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This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign …

A Diversity Theory Of Charitable Tax Exemption -- Beyond Efficiency, Through Critical Race Theory, Toward Diversity, David A. Brennen

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Part I of the article presents Robin Paul Malloy's Law and Market Economy Theory (“LMT”) as an example of the basis for a normative explanation of the charitable tax exemption. LMT addresses the relationship among law, markets, and culture. Thus, using LMT, this part demonstrates how traditional law and economic analysis, premised on self-interest and wealth maximization, simply does not capture the essence of the many values that impact the marketplace and the market exchange process. Instead, LMT approaches legal analysis in a broader market context and is premised on the need to promote a process of sustainable wealth formation …

Christian Faith And Political Life: A Dialogue [With Jason Carter], J. Randy Beck

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Several months before the 2004 presidential election, a seminar at the University of Georgia School of Law explored views of law and legal institutions reflected in various Christian theological traditions. The class included an unusually gifted group of students from a variety of theological and political backgrounds. One student brought a particularly unique and relevant set of experiences to the course. Jason Carter grew up as the grandson of Jimmy Carter, a former Democratic President who has often discussed the political implications of his Christian faith. Jason also observed first hand the interaction of Christian faith and political activity as …

Toward A New Student Insurgency: A Critical Epistolary, Rachel J. Anderson, Marc-Tizoc Gonzalez, Stephen Lee

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Taking the form of an epistolary (a collection of letters), this law review article explores the relationship between law and social change in the context of student activism at the University of California, Berkeley, School of Law (Berkeley Law formerly Boalt). The author’s contribution to this essay examines the simultaneously linear and circular history of social justice activism at Berkeley Law and discusses the relationship between social crises and resurging waves of activism, focusing on student activism in the sphere of legal scholarship.

To Err Is Human, Keith A. Rowley

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This essay reviews Allan Farnsworth's final book, Alleviating Mistakes: Reversal and Forgiveness for Flawed Perceptions (Oxford U. Press 2004). There are many kinds of mistakes. One kind - a rational, well-intended decision or act that results in unanticipated, negative consequences - was the principal subject of Allan Farnsworth's previous foray into the realm of contractual angst: Changing Your Mind: The Law of Regretted Decisions (Yale U. Press 1998). Another kind - the subject of this book - is a mistake caused by an inaccurate, incomplete, or incompetent mental state at the time of an act or decision that results in …

Bringing Families In: Recommendations Of The Incarceration, Reentry And Family Roundtables, Ann Cammett, Johnna Christian, Nancy Fisherman, Lori Scott-Pickens

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Building on the findings of the New Jersey Reentry Roundtable and a growing concern around the state about how to improve outcomes for the more than 70,000 individuals expected to return home from prison over the next five years, the roundtable examined the complex role that families – broadly defined – play in the lives of prisoners during incarceration and after their release. This document presents a set of recommendations emerging directly from roundtable sessions and provides a road map for individual and collaborative efforts accepted by a range of key players in New Jersey, including government officials, community and …

Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, And Hierarchy, Frank Rudy Cooper

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In this article, Professor Frank Rudy Cooper contends that popular representations of heterosexual black men are bipolar. Those images alternate between a Bad Black Man who is crime-prone and hypersexual and a Good Black Man who distances himself from blackness and associates with white norms. The threat of the Bad Black Man label provides heterosexual black men with an assimilationist incentive to perform our identities consistent with the Good Black Man image.

The reason for bipolar black masculinity is that it helps resolve the white mainstream's post-civil rights anxiety. That anxiety results from the conflict between the nation's relatively recent …

Lord Of The Flies: The Development Of Rules Within An Adolescent Culture, Nancy B. Rapoport

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This essay, included in the book SCREENING JUSTICE--THE CINEMA OF LAW: Significant Films of Law, Order and Social Justice (Rennard Strickland, Teree E. Foster & Tauyna Lovell Banks, eds., William S. Hein & Co. 2006), discusses the development of the law in Goldman's Lord of the Flies and raises the question of whether an island populated by a mix of boys and girls - or an island populated by only girls - would have developed a different law.

The Wto Agreement On Government Procurement And The Uncitral Model Procurement Law: A View From Outside The Region, John Linarelli

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Two of the most significant efforts to bring municipal procurement institutions up to international standards are the WTO Agreement on Government Procurement (GPA) and the UNCITRAL Model Law on Procurement of Goods, Construction and Services. Though the Model Law has had limited adoptions, it enjoys global influence as a source of norms and practices for good public procurement. The GPA, also reflective of international standards, seems to be on the rise, as more WTO members elect to become GPA contracting parties. This article explores two aspects of these instruments. First, the article explores how the Model Law promotes efficient public …

What Do We Owe Each Other In The Global Economic Order?: Constructivist And Contractualist Accounts, John Linarelli

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No legal system deserving of continued support can exist without an adequate theory of justice. A world trade constitution cannot credibly exist without a clear notion of justice upon which to base a consensus. This paper examines two accounts of fairness found in moral philosophy, those of John Rawls and Tim Scanlon. The Rawlsian theory of justice is well-known to legal scholars. Scanlon's contractualist account may be less well-known. The aim of the paper is to start the discussion as to how fairness theories can be used to develop the tools for examining international economic policies and institutions. After elaborating …

Harry Potter & The Law: Status, Rules, And The Enslavement Of The House-Elves, James C. Smith

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Is elfin bondage morally justified, or is it as evil as the human institution of slavery? Rowling shows Hermione as a crusader, as an abolitionist. Yet as narrator Rowling does not interject a moral judgment. The reader is left to decide whether Hermione's cause has great merit, is half-cocked, or is somewhere in between.

Harry Potter & The Law: Family Life And Moral Character, James C. Smith

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Harry Potter's mistreatment by his Muggle family does not amount to a legal wrong. Notice that Dumbledore did not threaten the Dursleys with legal proceedings, either in Muggle or Wizard tribunals. The ethic of equitable treatment is societal and lacks a legal basis in Anglo-American family law. Family law has many facets; it is an amalgam of legal rules and principles. My focus is the lens of property law -- in particular, family property norms -- although it is also plain that the Dursleys have not violated non-property based family law norms.

Abu Ghraib, Diane Marie Amann

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This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …

Race And The California Recall Election: A Top Ten List Of Ironies, Sylvia R. Lazos, Keith Aoki, Steven Bender

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Arnold Schwarzenegger's election as governor of California in the 2003 recall campaign is rife with cruel ironies. An immigrant himself, he beat the grandson of Mexican immigrants, Lieutenant Governor Cruz Bustamante, by playing the race card, and managed to dodge allegations of his praise for Hitler as a strong leader. While the pundits say that the California recall was about angry voters lashing back at faithless, self-dealing politicians, more lurks beneath the surface. In California, racial and ethnic minorities now comprise a majority of the population, and the recall election brought barely concealed and seething schisms to the surface. Californians, …

Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive? What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos

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Race matters, but judges and courts have failed to fashion a rule of law that is inclusive of all racial perspectives and realities in the United States. The reason for this dismal performance lies in how predominantly White judges, and therefore courts, conceptualize race. This article illustrates this proposition by analyzing the Rehnquist Court's race relations jurisprudence in three Supreme Court decisions handed down in 2003: Grutter v. Bollinger,Gratz v. Bollinger,and Georgia v. Ashcroft.Even as the United States Supreme Court entered increasingly complex areas of race relations, the Court continued to apply a simplistic concept of how race functions. The …

“Kulturkampf[S]” Or “Fit[S] Of Spite”?: Taking The Academic Culture Wars Seriously, Sylvia R. Lazos

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Polarization and heated debate within legal academia are nothing new. Some might argue that vigorous contentiousness, even if not always civil, is essential to a healthy intellectual culture. Others would note that lawyers, legal academics especially, are a highly contentious bunch with a reputation for aggressive behavior.

Fundamentally, this Article asks whether strife and disagreement are a necessary part of academic discourse. The Article describes the academic Kulturkampfs aimed at Critical Race Theory that have taken place in the last ten years both outside of and within the Critical Race Theory (CRT) movement. The Article particularly examines what it is …

Aliens In Our Midst Post-9/11: Legislating Outsider-Ness Within The Borders, Sylvia R. Lazos, Raquel E. Aldana

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Three recent books written by Professors Bill Ong Hing, Kevin R. Johnson, and Victor C. Romero provide skillfully crafted roadmaps with which to understand the key emerging issues that will shape immigration law well into the next decade: the relationship of immigration control to national security. This Review captures the insights provided by these three authors to examine the restrictive laws and policies aimed at noncitizens in the name of national security as highlighted by the current efforts to federalize driver’s licenses. As this Review explains, these three books map the current antagonistic attitudes towards noncitizens post 9/11, and serve …

Making Work Pay: Promoting Employment And Better Child Support Outcomes For Low-Income And Incarcerated Parents, Ann Cammett

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The New Jersey Institute for Social Justice prepared this report in response to concerns about child support debt—in particular as it creates a barrier to employment for low-income parents and works at cross-purposes with the goals of the child support program. Drawing on examples from other states, this report identifies a range of policies that inform child support practice in New Jersey and offers administrative, legislative, and programmatic solutions to address child support arrears owed by low-income and incarcerated parents.

Legal Reform: The Role Of Public Institutions And Legal Culture, Ruben J. Garcia

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In this symposium held at California Western School of Law, Professor Garcia comments on the presentations of other participants and provides his own reflections about the role that legal cultures and legal institutions play in emerging democracies and in our very own.

"May It Please The Camera,...I Mean The Court"--An Intrajudicial Solution To An Extrajudicial Problem, Lonnie T. Brown

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This Article explores the depths of the ethical issues presented when lawyers zealously advocate on behalf of their clients to the media, as well as the negative public policy ramifications that such behavior generates. The latter effect most seriously signals the need for reform in this area. Part II of the Article provides insight into the principal source of the problem--the ineffectiveness of the existing regulatory devices. This section traces the evolution of the ethical rules that pertain to public commentary by lawyers from the early days of steadfast condemnation to the modern appraoch of cautious equivocation. It also considers …

Two Early Codes, The Ten Commandments And The Twelve Tables: Causes And Consequences, Alan Watson

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Comments on the legal history of the ten commandments and the Roman Twelve Tables, and a comparison of the two legal collections. This paper also discusses the peculiarities in the traditions behind the collection of these laws; and the rules of behavior between humans covered by these laws.

Dr. Jekyll & Mr. Skilling; How Enron's Public Image Morphed From The Most Innovative Company In The Fortune 500 To The Most Notorious Company Ever, Nancy B. Rapoport, Jeffrey D. Van Niel

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In this article, we explore the hypothesis that Enron's financial releases were so complex and misleading that no one could have predicted its rapid downfall, and we find that, contrary to our hypothesis, a number of people were contradicting Enron's own rosy view of itself long before the middle of 2001. We then talk about the ways in which Enron became part of the public consciousness, far beyond what it had done merely as a business entity.

Masculinities At Work, Ann C. Mcginley

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This article focuses on the study of masculinities, a body of theoretical and empirical work by sociologists, feminist theorists and organization management theorists. This work, much of which employment law scholars have ignored, studies the role of masculinities, which are often invisible, in creating structural barriers to the advancement of many women and some men at work. Masculinities comprise both a structure that reinforces the superiority of men over women and a series of practices, associated with masculine behavior, performed by men or women, that aid men to maintain their superior position over women. In their less visible form, masculinities …

Lawyers Should Be Lawyers, But What Does That Mean?: A Response To Aiken & Wizner And Smith, Katherine R. Kruse

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Lawyers should be more like social workers. That is the message of Law as Social Work, the provocative essay by Jane Aiken and Stephen Wizner (Aiken & Wizner) in the Washington University Journal of Law & Policy volume, which preceded the conference on Promoting Justice Through Interdisciplinary Teaching, Practice, and Scholarship, hosted by Washington University School of Law in March 2003. Almost as if in reply, Abbe Smith's contribution to the same pre-conference volume reasserts the importance of lawyers as zealous and partisan advocates, using the realities of the criminal defense context to argue for the value of the lawyer's …

Popular Culture As A Lens On Legal Professionalism, Alex Scherr, Hillary Farber

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Why use art to teach lawyering?' Despite divergences in method and intention, the two disciplines overlap. If the prevalence of lawyers in movies, television, literature, and even humor means anything, popular culture remains fascinated with lawyers. Our practices, our ethics, and our professional personae serve as a mine for image and narrative, a target for cultural critique, and a catalyst for expression. Not surprisingly, images of lawyers in cartoons, film, television, and literature offer unique opportunities to teach and explore professionalism. The proliferation of lawyer images in popular culture provides an array of material ranging from career choice to particular …

Treaty Governance, Intellectual Property And Biodiversity, John Linarelli

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When resources become valuable, various social and institutional pressures come to bear to enclose them in a property rights regime. Given the substantial progress of biotechnology and the life sciences, genetic resources found in biological diversity are experiencing such pressures. The question of how much commodification or commercialization of genetic resources is appropriate is of global concern; it affects the distribution of wealth in and among societies and countries. This article explores the emerging treaty law on intellectual property and biodiversity. It inquires What is biodiversity? and Why is biodiversity preservation important? It then focuses on the United Nations Framework …

Cultural Context Matters: Terry's "Seesaw Effect", Frank Rudy Cooper

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This Article investigates why the enforcement of a given legal doctrine may vary with changes in the cultural context in which it is applied. It argues that officials apply the law along an "enforcement practices continuum" in accord with changes in the prevailing articulations of the meaning of cultural identity norms associating particular groups with crime.

Terry v. Ohio doctrine allows police officers to make "stops" and "frisks" of limited scope upon reasonable suspicion of crime rather than requiring the higher standard of probable cause. The Article contends the officer discretion resulting from this "scope continuum" approach permits cultural identity …

Introduction To Symposium, The Rights Of Parents With Children In Foster Care: Removals Arising From Economic Hardship And The Predicative Power Of Race, Ann Cammett

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Professor Cammett introduces a symposium at the Association of the Bar of the City of New York exploring the predicament posed by the surge of child removals through neglect petitions, and the subsequent placement of those children in foster care. The panel’s published comments offer some poignant reflections on the crisis of the child welfare system.