Law and Society Commons^™

Portmanteau Ascendant: Post-Release Regulations And Sex Offender Recidivism, J. J. Prescott

Articles

The purported purpose of sex offender post-release regulations (e.g., community notification and residency restrictions) is the reduction of sex offender recidivism. On their face, these laws seem well-designed and likely to be effective. A simple economic framework of offender behavior can be used to formalize these basic intuitions: in essence, post-release regulations either increase the probability of detection or increase the immediate cost of engaging in the prohibited activity (or both), and so should reduce the likelihood of criminal behavior. These laws aim to incapacitate people outside of prison. Yet, empirical researchers to date have found essentially no reliable evidence …

Confronting Power In Public Law, Kate Andrias

Articles

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …

Politics At Work After Citizens United, Ruben J. Garcia

Loyola of Los Angeles Law Review

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the “one percent” in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

You'll Never Work In This Town Again: Employment, Economics, And Unpaid Internships In The Entertainment And Media Industries, Mark R. Swiech

Loyola of Los Angeles Law Review

No abstract provided.

Fourth Amendment Implications Of Police-Worn Body Cameras, Erik Nielsen

St. Mary's Law Journal

Abstract forthcoming.

Culture As A Structural Problem In Indigent Defense, Eve Brensike Primus

Articles

In Part I, I will describe the ways in which today's right-to-counsel challenges are similar to and different from those that faced the writers of the 1961 symposium. I will also explain in more detail why the structural conditions of criminal defense work to create (and, to some extent, always have created) a cultural problem in indigent defense delivery systems across the country. In Part II, I will discuss why I believe that we are, once again, facing a moment for potential reform, albeit reform that is different in scope and kind from that which was possible in the 1960s. …

Personal Jurisdiction In Legal Malpractice Litigation, Cassandra Burke Robertson

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers are increasingly engaging in multi-jurisdictional practice—and their representation is increasingly giving rise to cross­-jurisdictional malpractice actions. Over the years, courts have issued divergent and contradictory opinions about whether out-of-state attorneys representing clients only on out-of-state matters can constitutionally be subject to personal jurisdiction in the client’s home state. The Supreme Court’s recent opinions in Daimler v. Bauman and Walden v. Fiore do little to settle this question and, in fact, may raise more questions than they answer. Nevertheless, the Supreme Court’s new personal jurisdiction jurisprudence offers an opportunity for courts to adopt a more cohesive analysis of personal jurisdiction …

Alternative Spring Break 2016 Report, Roger Williams University School Of Law, Association For Public Interest Law

School of Law Conferences, Lectures & Events

No abstract provided.

Decriminalizing Violence: A Critique Of Restorative Justice And Proposal For Diversionary Mediation, M. Eve Hanan

All Faculty Scholarship

The movement to reduce over-prosecution and mass incarceration has focused almost exclusively on non-violent offenders despite data showing that over half of all prisoners incarcerated within the United States are sentenced for crimes of violence. As a consequence of the focus on nonviolent offenses, the majority of current and future defendants will not benefit from initiatives offering alternatives to criminal prosecution and incarceration.

A discussion of alternatives to the criminal justice system in cases of violent crime must begin by acknowledging that violent crime is not monolithic. Many incidents meet the statutory elements of a violent crime, that is, the …

The Right To Be Forgotten: Comparing U.S. And European Approaches, Samuel W. Royston

St. Mary's Law Journal

This Article compares the European and United States stances regarding the right to be forgotten. Within that context, this Article explores the implications of technological advances on constitutional rights, specifically the intersection of the right to free speech and the right to privacy, commonly referred to as the "right to be forgotten" paradox. In the United States, the trend is to favor free speech, while Europe places an emphasis on human rights. Each approach is analyzed based on supporting case law. The consequences of each approach on society, both long- and short-term, are also discussed. This Article argues that a …

Ford V. State: Texas Forces A Resolution In The Cell Site Location Information Debate., Brandon J. Grable

St. Mary's Law Journal

Abstract Forthcoming.

Use It Or Lose It: Grappling With Classification Of Post-Petition Sale Proceeds Under Chapter Seven Bankruptcy For Consumer Debtors In The Lone Star State., Danielle Nicole Rushing

St. Mary's Law Journal

Texas affords consumer debtors some of the most generous state bankruptcy exemptions in the United States. This includes the homestead exemption, which permits consumer debtors to exempt a homestead of unlimited value from forced sale, subject to certain enumerated exceptions. Bankruptcy courts throughout the state are grappling with how to characterize proceeds from the sale of an exempted homestead once a consumer debtor files a Chapter Seven bankruptcy petition. Specifically, courts consider whether a debtor may personally retain funds from the sale of a homestead or whether a Chapter Seven Trustee should receive the sale proceeds on behalf of the …

Filming The Police: An Interference Or A Public Service, Aracely Rodman

St. Mary's Law Journal

Abstract forthcoming.

Why Is It Good To Stop At A Red Light_ The Basis Of Authority And Obligation, Brian Mccall

Faculty Articles

Throughout history, some have questioned whether the authority exercised by some over others is consistent with human nature. Is it possible for a law made by one human being to bind the conscience of another, or is such a claim merely tyranny? If such a power to bind to laws made by humans is justified, what is its scope? The answers to these related questions explored in this Article are both descriptive and normative. This Article explains the nature of authority and the extent of the obligation to obey the law as well as explains how the architecture of natural …

Gentrification: Yes ... My Community Is Improving, But For Who?, David B. Shepherd

Cardozo Journal of Equal Rights & Social Justice

The note argues that while gentrification brings economic benefits, it disproportionately harms low-income families by displacing them and eroding their community fabric. The author advocates for regulatory measures, such as growth control and zoning laws, to mitigate these negative effects and preserve affordable housing and community culture.

A Hurdle Too High: The Unconstitutionality Of Mandatory Ultrasounds Under Casey's Undue Burden Standard, Katarzyna Kordas

Cardozo Journal of Equal Rights & Social Justice

The article argues that mandatory ultrasound laws impose an undue burden on women seeking abortions, violating the constitutional standard established in Planned Parenthood v. Casey. These laws, often enacted to dissuade women from proceeding with abortions, are deemed medically unnecessary and unconstitutional as they obstruct women's reproductive rights.

My Hair Is Not Like Yours: Workplace Hair Grooming Policies For African American Women As Racial Stereotyping In Violation Of Title Vii, Dawn D. Bennett-Alexander, Linda F. Harrison

Cardozo Journal of Equal Rights & Social Justice

This article argues that workplace discrimination based on hair grooming policies disproportionately impacts African American women. The article seeks to establish that natural hair is an immutable characteristic, as is all hair, made mutable by social policies that impose an "acceptable" standard of beauty that was never meant to include or reflect black women. Often placed under workplace or other institutional grooming policies, the article posits that these policies are no more than a continuation of race-based policies that reflect unlawful stereotyping under Title VII and should be eliminated. Lastly, the article proposes a set of questions that test the …

Property's Immortality, Shelly Kreiczer-Levy

Cardozo Journal of Equal Rights & Social Justice

The law ofpost most-mortem transfers assumes an autonomous individual, free to will their property as they see fit. This Article offers a relational critique of this legal reality, and highlights the implications ofsuch a critique for gender equality. Although property's role in supporting relationships and facilitating cooperation has long been celebrated, post-mortem transfers pose a challenge to relational legal theory. It is commonly held that death puts a stop to all relationships and defies all relational commitments. This Article builds on a different perception of death, and argues that the need to transcend mortality is profoundly relational. Property-related projects can …

Why Law Matters, Kellye Y. Testy

Articles

Presidential address given at the Association of American Law Schools annual meeting, Jan. 9, 2016.

Salvaging "Safe Spaces": Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner Esq.

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Overrepresentation Of Lesbian, Gay, Bisexual, Questioning, Gender Nonconforming And Transgender Youth Within The Child Welfare To Juvenile Justice Crossover Population, Angela Irvine Ph.D., Aisha Canfield M.P.P

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Patient Protection And Affordable Care Act And Choice In Childbirth: How The Aca's Nondiscrimination Provisions May Change The Legal Landscape Of Childbirth, Caitlin Mccartney

American University Journal of Gender, Social Policy & the Law

No abstract provided.

A Remedy For Male-To-Female Transgender Inmates: Applying Disparate Impact To Prison Placement, Janei Au

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Mandatory Restitution For Enticing A Minor For Sexual Purposes: Additional Punishment Or Compensation For The Victim?, Myra S. Reyes

American University Journal of Gender, Social Policy & the Law

No abstract provided.

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots And Sticks To Confront The Challenge Of Motivational Crowding-Out, Kristen Underhill

Faculty Scholarship

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for …

Investigative Inadequacies Or Investigative Corruption? Exploring The Role Of Police Misconduct Within Canadian Wrongful Conviction Cases, Michelle L. Lovegrove

Theses and Dissertations (Comprehensive)

The phenomenon of wrongful convictions has begun to attract the attention of the public and scholars alike within the past few decades. However, despite this recent fixation the issue of wrongful convictions is not new, as research on the subject dates back to 1932 with the work of Edwin Borchard. Most of the research on the subject of wrongful convictions has focused largely on identifying the factors that contribute to these injustices. For the most part academics are in agreement when it comes to the causes of wrongful convictions, which include, eyewitness misidentification, false confessions, police & prosecutor misconduct, use …

Countering The Plaintiff’S Anchor: Jury Simulations To Evaluate Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson, David V. Yokum

Faculty Scholarship

Numerous studies have shown that anchoring strongly effects juries. For scholars and policymakers, this evidence is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). For litigators, this evidence had led some to believe that “the more you ask for, the more you get.” Others believe that the damage demand must pass the “straight-face” test. But little scholarly literature exist to determine whether an outrageously high request really does undermine the plaintiff’s credibility, and whether this “credibility” effect outweighs the anchoring effect.

Likewise, little scholarly attention considers whether a …

Race And Reform In Twenty-First Century America: Foreword, Trina Jones, Guy-Uriel Charles, Angela Onwuachi-Willig

Faculty Scholarship

In November 2015, approximately two hundred activists, academics, and students from across the United States convened at Duke University School of Law for a conference entitled The Present and Future of Civil Rights Movements: Race and Reform in 21st Century America. Planning for the conference had commenced a year earlier, in the fall of 2014. At that time, the nation was reeling from the deaths of Rekia Boyd, Eric Garner, John Crawford III, and Michael Brown, among others. In addition to the killing of these unarmed Black men and women by law enforcement personnel, many people, particularly within the civil …

Dismantling Of Dissent: Militarization And The Right To Peaceably Assemble, Emmanuel Hiram Arnaud

Faculty Scholarship

This Note argues that the ritualized use of extreme police force on peacefully assembled groups is a violation of the Assembly Clause as it was originally intended to function. Part I gives a general account of the Assembly Clause, its creation, and its original intention to safeguard minority views. Part II recounts part of the history behind the militarization of police forces. Part III suggests a balancing test the courts should use when evaluating violations of the freedom to peaceably assemble in order to conform to the original meaning of the First Amendment.