Law and Society Commons^™

How The State And Federal Tax Systems Operate To Deny Educational Opportunities To Minorities And Other Lower Income Students, Camilla E. Watson

Scholarly Works

The importance of education cannot be overstated. Education is a core principle of the American Dream, and as such, it is the ticket to a better paying job, homeownership, financial security, and a better way of life. Education is the key factor in reducing poverty and inequality and promoting sustained national economic growth. But while the U.S. Supreme Court has referred to education as "perhaps the most important function of the state and local governments," it has nevertheless stopped short of declaring education a fundamental right guaranteed under the Constitution. As a consequence, because education is not considered a fundamental …

Diversity In Mdl Leadership: A Field Guide, Elizabeth Chamblee Burch

Scholarly Works

Multidistrict litigation (MDL) includes some of the most high-profile torts of our day—opioids, talc, RoundUp, to name a few—but the attorneys who spearhead these proceedings often look a lot like they did fifty years ago: predominately white and predominately male.

A debate has emerged over whether attorneys best positioned to fill MDL leadership roles are the grizzled repeat players who appear time and again—and who are largely white, older, and male—or newcomers with fresh ideas and energy who may not always look like their predecessors. And if diversity is important, what kind of diversity matters?

In this short essay, I …

Rabbi Lamm, The Fifth Amendment, And Comparative Jewish Law, Samuel J. Levine

Scholarly Works

Rabbi Norman Lamm’s 1956 article, “The Fifth Amendment and Its Equivalent in the Halakha,” provides important lessons for scholarship in both Jewish and American law. Sixty-five years after it was published, the article remains, in many ways, a model for interdisciplinary and comparative study of Jewish law, drawing upon sources in the Jewish legal tradition, American legal history, and modern psychology. In so doing, the article proves faithful to each discipline on its own terms, producing insights that illuminate all three disciplines while respecting the internal logic within each one. In addition to many other distinctions, since its initial publication, …

The Music Of Mass Incarceration, Andrea L. Dennis

Scholarly Works

Intellectual property law reaches every aspect of the world, society, and creativity. Sometimes, creative expression is at the very crux of societal conflict and change. Through its history, rap music has demonstrated passionate creative expression, exploding with emotion and truths. Now the most popular musical genre in America, rap has always shared—and consistently critiqued—disproportionate effects of the criminal legal system on Black communities. The world is increasingly hearing these tunes with special acuity and paying more attention to the lyrics. Virtually every music recording artist would consider the following numbers a major career achievement: 500 percent increase; 222 percent growth; …

The Legal Landscape For Frontline Student Journalists, Jonathan Peters

Scholarly Works

They have exposed campus outbreaks and questioned reopening plans. They have documented social-distancing violations at fraternity and sorority houses. They have tracked and explained fast-breaking changes to instructional modes and commencement events. They have demanded transparency from school administrators. And through it all they have boldly told the story of the human experience.

Famously, at the University of North Carolina, the Daily Tar Heel published a biting editorial under the headline “UNC has a clusterfuck on its hands,” after virus clusters were identified in campus housing. And the day that Notre Dame announced it would move only temporarily …

The Gun Subsidy, Christian Turner, Justin Van Orsdol

Scholarly Works

Despite thousands of gun deaths annually, the United States has failed to reach consensus on any means of addressing the public health crisis that is gun violence. The issue has become politically polarized, constitutionalized, and an object of pessimism and despair. We propose a regulatory system in which gun manufacturers would be strictly liable to a federal fund for deaths caused by their guns, paired with a subsidy that will serve to ensure the availability of guns sufficient to meet the rights the Supreme Court has found in the Second Amendment. While strict liability of this kind can indeed serve …

Private Schools' Role And Rights In Setting Vaccination Policy: A Constitutional And Statutory Puzzle, Hillel Y. Levin

Scholarly Works

Measles and other vaccine-preventable childhood diseases are making a comeback, as a growing number of parents are electing not to vaccinate their children. May private schools refuse admission to these students? This deceptively simple question raises complex issues of First Amendment law and statutory interpretation, and it also has implications for other current hot-button issues in constitutional law, including whether private schools may discriminate against LGBTQ students. This Article is the first to address the issue of private schools’ rights to exclude unvaccinated children. It finds that the answer is “it depends.” It also offers a model law that states …

The Dangers Of Disclosure: How Hiv Laws Harm Domestic Violence Survivors, Courtney Cross

Scholarly Works

People living with HIV or AIDS must decide whether, how, and when to disclose their positive status. State laws play an outsized role in this highly personal calculus. Partner notification laws require that current and former sexual partners of individuals newly diagnosed with HIV be informed of their potential exposure to the disease. Meanwhile, people who fail to disclose their positive status prior to engaging in sexual acts-even acts that carry low to no risk of infection-can be prosecuted and incarcerated for exposing their partners to HIV. Although both partner notification laws and criminal HIV exposure laws were ostensibly created …

The Majoritarian Press Clause, Sonja R. West

Scholarly Works

In early 2018, stories began circulating that something troubling was happening at the United States-Mexico border. The reports claimed that the United States government was separating migrant families and then holding children (as well as adults) by the thousands in crowded, possibly inhumane environments. There were alarming accounts of children who were sick, dirty, hungry, neglected, and sleeping on concrete floors.

Americans, of course, demanded answers: What was happening at these migrant detention centers? Why was it happening? What were the official policies involved? Were the government's actions appropriate? Were they legal? In other words, this was a textbook example …

Boots And Bail On The Ground: Assessing The Implementation Of Misdemeanor Bail Reforms In Georgia, Sandra Mayson, Andrea Woods, Lauren Sudeall, Guthrie Armstrong, Anthony Potts

Scholarly Works

This Article presents a mixed-methods study of misdemeanor bail practice across Georgia in the wake of reform. We observed bail hearings and interviewed system actors in a representative sample of fifty-five counties in order to assess the extent to which pretrial practice conforms to legal standards clarified in Senate Bill 407 and Walker v. Calhoun. We also analyzed jail population data published by county jails and by the Georgia Department of Community Affairs. We found that a handful of counties have made promising headway in adhering to law and best practices, but that the majority have some distance to …

Debt In Just Societies: A General Framework For Regulating Credit, John Linarelli

Scholarly Works

Debt presents a dilemma to societies: successful societies benefit from a substantial infrastructure of consumer, commercial, corporate, and sovereign debt but debt can cause substantial private and social harm. Pre- and post-crisis solutions have seesawed between subsidizing and restricting debt, between leveraging and deleveraging. A consensus exists among governments and international financial institutions that financial stability is the fundamental normative principle underlying financial regulation. Financial stability, however, is insensitive to equality concerns and can produce morally impermissible aggregations in which the least advantaged in a society are made worse off. Solutions based only on financial stability can restrict debt without …

Drone Invasion: Unmanned Aerial Vehicles And The Right To Privacy, Rebecca L. Scharf

Scholarly Works

Since the birth of the concept of a legally-recognized right to privacy in Samuel D. Warren and Louis D. Brandeis’ influential 1890 law review article, The Right to Privacy, common law – with the aid of influential scholars -- has massaged the concept of privacy torts into actionable claims. But now, one of the most innovative technological advancements in recent years, the unmanned aerial vehicle, or drone, has created difficult challenges for plaintiffs and courts navigating common law privacy tort claims.

This Article explores the challenges of prosecution of the specific privacy tort of intrusion into seclusion involving non-governmental use …

About A Revolution: Toward Integrated Treatment In Drug And Mental Health Courts, Sara Gordon

Scholarly Works

This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic …

Mandatory Arbitration Stymies Progress Towards Justice In Employment Law: Where To, #Metoo?, Jean R. Sternlight

Scholarly Works

Today our employment law provides workers with far more protection than once existed with respect to hiring, firing, salary, and workplace conditions. Despite these gains, continued progress towards justice is currently in jeopardy due to companies’ imposition of mandatory arbitration on their employees. By denying their employees access to court, companies are causing employment law to stultify. This impacts all employees, but particularly harms the most vulnerable and oppressed members of our society for whom legal evolution is most important. If companies can continue to use mandatory arbitration to eradicate access to court, where judges are potentially influenced by social …

Daniel Amsterdam's Roaring Metropolis: Businessmen's Campaign For A Civic Welfare State, Laura Phillips Sawyer

Scholarly Works

Daniel Amsterdam’s Roaring Metropolis: Businessmen’s Campaign for a Civic Welfare State challenges the conventional narrative of early twentieth-century American businessmen as promoting laissezfaire or antistatist politics. Instead, as Amsterdam argues, elite business leaders campaigned vigorously for greater municipal spending on civic welfare projects, which included building and improving public schools, public health infrastructure, parks and playgrounds, libraries, and museums. Rather than focus on national-level business in- government, his narrative traverses multiple cities (Detroit, Philadelphia, and Atlanta) to demonstrate both the diversity of political challenges and institutional constraints that civic-minded reformers faced as well as the striking convergence of civic welfare …

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Scholarly Works

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

Make New York Affordable Again, Michael Lewyn

Scholarly Works

Suggests a package of zoning reforms to hold down New York City housing costs, and responds to counterarguments.

Resilience And Native Girls: A Critique, Addie C. Rolnick

Scholarly Works

The term resilience is often used with reference to Indigenous women and Indigenous youth. Native girls are included in each of these categories but are rarely the main focus of a campaign. Their triple vulnerability (gender, indigeneity, and age), however, means that the focus on resilience is often greatest when applied to them. This Article centers them. It traces the development of resilience in the (non-Native) ecological and psychological literature. Although resilience is used across many different disciplines, it is especially prominent in ecological literature about resilient institutions, such as communities and cities, and in psychological literature about resilient individuals. …

Realizing Restorative Justice: Legal Rules And Standards For School Discipline Reform, Lydia Nussbaum

Scholarly Works

Zero-tolerance school disciplinary policies stunt the future of school children across the United States. These policies, enshrined in state law, prescribe automatic and mandatory suspension, expulsion, and arrest for infractions ranging from minor to serious. Researchers find that zero-tolerance policies disproportionately affect low-income, minority children and correlate with poor academic achievement, high drop-out rates, disaffection and alienation, and greater contact with the criminal justice system, a phenomenon christened the "School-to-Prison Pipeline."

A promising replacement for this punitive disciplinary regime derives from restorative justice theory and, using a variety of different legal interventions, reform advocates and lawmakers have tried to institute …

Judicial Peremptory Challenges As Access Enhancers, Jeffrey W. Stempel

Scholarly Works

Discussions regarding diminishing access to justice have centered on the high disputing costs, gradual contraction of substantive rights, and increasingly defendant-friendly procedure. The importance of the ideological, experiential, and jurisprudential orientation of the judges presiding over litigation at the trial level has received much less-and insufficient-attention. Because so much focus has been on federal appellate courts, commentators have largely overlooked a potentially powerful tool for improving access and promoting a fair airing of claims at the trial level: a litigant's automatic ability to transfer a case to a different judge as a matter of right to avoid judges who are …

The Masculinity Motivation, Ann C. Mcginley

Scholarly Works

In this essay, Professor Ann McGinley explores a phenomenon she coins the Masculinity Motivation. Society and courts ignore that harassing behaviors and the motives behind them are nearly identical in schools and workplaces. Moreover, the motives driving same-sex harassment are often the same as those causing sex-based harassment of women and girls. These motives include proving the perpetrators' and their group's masculinity, punishing those who do not adhere to gender expectations, and upholding conventional gender norms. Professor McGinley advocates for courts to broadly define "because of sex" under Titles VII and IX by clarifying that harassment motivated to denigrate the …

Our National Psychosis: Guns, Terror, And Hegemonic Masculinity, Stewart Chang

Scholarly Works

In this Article, Professor Stewart Chang, through the examination of three recent mass shooting, proposes that mass shootings driven by hegemonic masculinity should be classified and addressed as acts of terrorism. Professor Chang defines hegemonic masculinity as patterns or practices that promote the dominant social position of men and the subordinate social position of women and other gender identities. In this Article, he examines how hegemonic masculinity is allowed to become mainstream and flourish unchecked based on our characterization, classification and reaction to mass shootings and their perpetrators.

Religious Freedom, Human Rights, And Peaceful Coexistence, Leslie C. Griffin

Scholarly Works

At the Second Vatican Council, Fr. John Courtney Murray, S.J., persuaded the Catholic Church to abandon its long, and absolute, opposition to the separation of church and state. He brought a new concept of religious freedom to the Catholic Church. In honor of Murray, this essay looks at several current ways “religious freedom” harms individual rights.

The article describes the ministerial exception, which gives religious organizations the right to dismiss many employment discrimination lawsuits brought against them. It studies women’s right to contraceptive access, which has long been opposed by the Catholic hierarchy, and where employers have earned a legal …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Scholarly Works

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

Victims And Press After War: Tensions Between Privacy, Historical Truth And Freedom Of Expression, Vivian Newman-Pont, Maria P. Angel, Maria Ximena Davila

Scholarly Works

The drive to conduct this research was born out of the tension that developed on May of 2017 in the context of the journalistic coverage of the exhumations of those who died in the Bojayá massacre.   Thus, this document has the purpose of asking and answering, from a socio-legal perspective, the following question: How can the events related to the armed conflict and to the transition to peace be narrated without violating the right to privacy of the victims? Or, how can a journalist record a dramatic event or recount an injuste that moves readers while respecting the limits of …

Athens Access To Justice Initiative: Judicial Leadership + Bar Support + Local Resources = Powerful Synergy, Eleanor Lanier

Scholarly Works

No abstract provided.

Policing Narrative, Tal Kastner

Scholarly Works

Counter narrative, a story that calls attention to and rebuts the presumptions of a dominant narrative framework, functions as an essential tool to reshape the bounds of the law. It has the potential to shape the collective notion of what constitutes legal authority. Black Lives Matter offers a counter narrative that challenges the characterization of the shared public space, among other aspects of contemporary society, as the space of law. Using the concept of necropower--the mobilization and prioritization of the state's power to kill--I analyze the contested physical and conceptual space of law exposed by the counter narrative of Black …

Leveraging Academic Law Libraries To Expand Access To Justice, Paul Mclaughlin

Scholarly Works

Academic law libraries are in a unique position to help citizens gain access to the court system and legal information. By creating clinics that focus on helping pro se patrons find and complete legal forms, academic law libraries would not only benefit their schools but also the justice system.

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

Scholarly Works

On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Pressing Charges, Zohra Ahmed

Scholarly Works

There is a prosecutor in Manhattan Criminal Court who wears a Black Lives Matter button on the job. One day, a group of public defenders, myself included, found him alone in a courtroom where only quality of life offenses are heard, authorizing plea bargains more lenient than the standard recommendations of the New York County District Attorney’s office: reducing fines, reducing community service, even avoiding convictions. The button seemed a puzzling appropriation for a prosecutor. At the height of the Black Lives Matter movement in 2015, after all, public defenders had worn the same pins in court only to face …