Law and Society Commons^™

Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders

All Faculty Scholarship

Let me start by just stating my experience of reading The Rule of Law in the Real World¹ because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn …

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

All Faculty Scholarship

I want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe's persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for "utility" broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and our lives, …

Did The Pyeongchang Games Prove The Olympics Can Still Broker Peace?, Robert Blecker

Other Publications

No abstract provided.

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

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 …

Can Cyber Harassment Laws Encourage Online Speech?, Jonathon Penney

Articles, Book Chapters, & Popular Press

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.

Intellectual Property And Culture, Lucie Guibault

Articles, Book Chapters, & Popular Press

This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions' vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE's). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also …

Deepening The Relational Ecology Of Restorative Justice, Jennifer Llewellyn, Brenda Morrison

Articles, Book Chapters, & Popular Press

It is our pleasure to introduce and frame this Special Issue of The International Journal of Restorative Justice. This Special Issue seeks to advance and expand thinking, research and practice of a restorative approach at the level of institutions and social systems, from families to workplaces. The articles and notes from the field included here were developed out of the 2016 International Conference in Halifax, Nova Scotia, that shared the title and focus of this issue. The conference was held to fulfil a commitment made by the parties involved in a restorative justice process at the Faculty of Dentistry, Dalhousie …

The Religious And Ideological Freedom Of Teachers In The English Legal Framework: Is The Balance Between Collective And Individual Rights Appropriate?, Javier Garcia Oliva, Diana Ginn

Articles, Book Chapters, & Popular Press

How does the current legal framework safeguard the rights of teachers to religious and ideological freedom, whilst at the same time protecting the collective rights of school communities to provide an educational context aligned to identified values and principles? How does the law seek to find a resolution or accommodation where there is a clear conflict?

More Than 'Revenge Porn' Civil Remedies For The Nonconsensual Distribution Of Intimate Images, Suzie Dunn, Alessia Petricone-Westwood

Articles, Book Chapters, & Popular Press

The non-consensual distribution of intimate images, or “revenge porn” as it is colloquially known, is a growing phenomenon in the digital era that has devastated the lives of countless individuals. Targets of this conduct have suffered both short and long-lasting harms that have had serious repercussions on their mental health, physical well-being, and safety. Once their intimate images have been shared without their consent, they can face damage to their personal and professional reputations. There are reported cases where individuals have lost their jobs, have had to relocate, were stalked and harassed, experienced some form of emotional trauma, and had …

Framing Contemporary U.S. Wild Horse And Burro Management Processes In A Dynamic Ecological, Sociological, And Political Environment, J. Derek Scasta, Jacob D. Hennig, Jeffrey L. Beck

Human–Wildlife Interactions

The Wild Free-Roaming Horses and Burros Act (WFRHBA) of 1971 established all “unbranded or unclaimed” equids on U.S. public lands as “living symbols of the historic and pioneer spirit of the West.” Today, >72,000 feral horses (Equus ferus caballus) and burros (E . asinus ; WHB) live on western U.S. public rangelands. The number of WHBs exceeds the Bureau of Land Management’s maximum Appropriate Management Level (AML) of 26,715 by a factor of approximately 2.7 and has nearly doubled from 2007–2015. The AML was set to balance WHB numbers with rangeland health and support other uses such as wildlife habitat …

Prosecutors Matter: A Response To Bellin’S Review Of Locked In, John P. Pfaff

Michigan Law Review Online

In this year's Book Review issue, Jeffrey Bellin reviews my book, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, and he finds much to disagree with. I appreciate the editors of the Law Review providing me with the opportunity to correct a significant error he makes when discussing some of my data. In the book, I use data from the National Center for State Courts (NCSC) to show that prosecutors filed increasingly more felony cases over the 1990s and 2000s, even as crime fell. Bellin makes two primary claims about how I used …

Are Anti-Bullying Laws Effective?, Ari Ezra Waldman

Articles & Chapters

Since 2010, when several high profile bullying-related suicides brought bullying and cyberharassment into the national consciousness, all 50 states have passed laws that address bullying among the nation’s youth. This essay is the first in a series of three projects on federal, state, municipal, and individual school approaches to bullying. There are only 4 published studies on the relationships between law and bullying rates. This Essay adds several features to the discourse. It offers a comprehensive analysis of the contents of state anti-bullying laws, using a 16-item list of guidelines from the United States Department of Education as a frame. …

Deferred Prosecution Agreements In Singapore?, Eunice Chua

Research Collection Yong Pung How School Of Law

On 15 January 2018, Minister for Law and Home Affairs K Shanmugam said at a dialogue organised by the Law Society that deferred prosecution agreements (DPAs) could be introduced in Singapore as part of proposed changes to the criminal justice system. DPAs are agreements by the prosecutor to suspend prosecution of a corporate entity if it complies with specific conditions. If the corporation fails to comply with the conditions, the prosecution may resume. This post examines the case for and against DPAs and explores the issues they may present in the Singapore context.

Good Person, Good Prosecutor In 2018, Abbe Smith

Georgetown Law Faculty Publications and Other Works

Nearly twenty years ago, I wrote an essay on the ethics of prosecution in a time of mass incarceration called “Can You Be a Good Person and a Good Prosecutor?” I am both pleased and perplexed that the essay, which caused some controversy at the time, continues to strike a chord—at least with the organizers of this online conversation. I appreciate the invitation to weigh in on whether you can be a good person and a good prosecutor in 2018.

Government Lies And The Press Clause, Helen Norton

Publications

This essay considers a particular universe of potentially dangerous governmental falsehoods: the government's lies and misrepresentations about and to the press.

Government's efforts to regulate private speakers' lies clearly implicate the First Amendment, as many (but not all) of our own lies are protected by the Free Speech Clause. But because the government does not have First Amendment rights of its own when it speaks, the constitutional limits, if any, on the government's own lies are considerably less clear.

In earlier work I have explored in some detail the Free Speech and Due Process Clauses as possible constraints on certain …

Its Own Dubious Battle: The Impossible Defense Of An Effective Right To Strike, Ahmed White

Publications

One of the most important statutes ever enacted, the National Labor Relations Act envisaged the right to strike as the centerpiece of a system of labor law whose central aims included dramatically diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. These goals have never been more relevant. But they have proved difficult to realize via the labor law, in large part because an effective right to strike has long been elusive, undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right …

Decriminalization Of Prostitution: The Soros Effect, Jody Raphael

Dignity: A Journal of Analysis of Exploitation and Violence

This article explores the activities of George Soros and his charitable organization, Open Society Foundations (OSF), in advocating for the full decriminalization of the sex trade industry. Research finds that OSF spends only a small amount of money on grass roots “sex worker” groups around the world advocating for full decriminalization, but the foundation awards larger amounts of funds to large human rights groups whose reports and policies have a wider reach. OSF’s rationale for full decriminalization fails to consider violence and coercion in the sex trade industry, misreads research, and does not include research from venues where full decriminalization …

Book Review: The Pimping Of Prostitution: Abolishing The Sex Work Myth By Julie Bindel, Roger Matthews

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Sanctuary Networks And Integrative Enforcement, Ming Hsu Chen

Publications

My intended focus is on the widespread response--in cities, churches, campuses, and corporations that together comprise "sanctuary networks"--to the Trump Administration's Executive Order 13768 Enhancing Public Safety in the Interior of the United States as an instance of the changing relationship between federal, local, and private organizations in the regulation of immigration. After briefly covering the legal background of the Trump Interior E.O., the focus of the Article shifts to the institutional dynamics arising in communities. These institutional dynamics exemplify the beginnings of a reimagined immigration enforcement policy with a more integrative flavor.

Nova Scotia Home For Colored Children Restorative Inquiry: Council Of Parties Third Public Report, Jennifer Llewellyn, Jean Flynn, Chief Judge Pam Williams, Deborah Emmerson, Michael Dull, Dean Smith, Wayn Hamilton, George Gray, Tony Smith, Gerald Morrison, Joan Jones

Reports & Public Policy Documents

The Nova Scotia Home for Colored Children Restorative Inquiry was established following a 17-year journey for justice by former residents of the Nova Scotia Home for Colored Children (NSHCC, or the Home). It was established under the authority of the Public Inquiries Act following a collaborative design process involving former residents, Government, and community members.

This public inquiry was the first of its kind in Canada to take a restorative approach. The Inquiry was a part of the Government of Nova Scotia’s commitment to respond to the institutional abuse and other failures of care experienced by former residents of the …

Nova Scotia Home For Colored Children Restorative Inquiry: Council Of Parties Second Public Report, Jennifer Llewellyn, Jean Flynn, Chief Judge Pam Williams, Deborah Emmerson, Michael Dull, Dean Smith, Wayn Hamilton, George Gray, Tony Smith, Gerald Morrison, Joan Jones

Reports & Public Policy Documents

The Nova Scotia Home for Colored Children Restorative Inquiry was established following a 17-year journey for justice by former residents of the Nova Scotia Home for Colored Children (NSHCC, or the Home). It was established under the authority of the Public Inquiries Act following a collaborative design process involving former residents, Government, and community members.

This public inquiry was the first of its kind in Canada to take a restorative approach. The Inquiry was a part of the Government of Nova Scotia’s commitment to respond to the institutional abuse and other failures of care experienced by former residents of the …

Designing Without Privacy, Ari Ezra Waldman

Articles & Chapters

In Privacy on the Ground, the law and information scholars Kenneth Bamberger and Deirdre Mulligan showed that empowered chief privacy officers (CPOs) are pushing their companies to take consumer privacy seriously, integrating privacy into the designs of new technologies. But their work was just the beginning of a larger research agenda. CPOs may set policies at the top, but they alone cannot embed robust privacy norms into the corporate ethos, practice, and routine. As such, if we want the mobile apps, websites, robots, and smart devices we use to respect our privacy, we need to institutionalize privacy throughout the corporations …

Dorothy Moser Medlin Papers - Accession 1049, Dorothy Moser Medlin

Manuscript Collection

(The Dorothy Moser Medlin Papers are currently in processing.)

This collection contains most of the records of Dorothy Medlin’s work and correspondence and also includes reference materials, notes, microfilm, photographic negatives related both to her professional and personal life. Additions include a FLES Handbook, co-authored by Dorothy Medlin and a decorative mirror belonging to Dorothy Medlin.

Major series in this collection include: some original 18th century writings and ephemera and primary source material of André Morellet, extensive collection of secondary material on André Morellet's writings and translations, Winthrop related files, literary manuscripts and notes by Dorothy Medlin (1966-2011), copies …

Alternative Spring Break 2018 Report, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Deterrence, David Crump

St. Mary's Law Journal

Abstract forthcoming

Finality Of A Conviction: A Noncitizen's Right To Procedural Due Process, Daniela Mondragon

St. Mary's Law Journal

Abstract forthcoming

Counter-Critical Theory: An Intervention In Contemporary Critical Thought And Practice, Bernard E. Harcourt

Faculty Scholarship

Walter Benjamin and Bertolt Brecht's short-lived project for a critical theory journal, Krise und Kritik, foundered in 1931 on the shoals of positivism. Since then, a series of anti-foundational challenges to traditional critical theory has fragmented the landscape of critical theory and, especially, critical praxis, leaving us disarmed today, in these unprecedented times. This essay offers a way forward by means of what it calls “counter-critical theory”: a critical method that indexes the original impulse of critical theory, but liberates it from its foundation in order to allow for a more open-ended and permanent re-examination of how power circulates …

Why Courts Fail To Protect Privacy: Race, Age, Bias, And Technology, Bernard Chao, Catherine Durso, Ian Farrell, Christopher Robertson

Faculty Scholarship

The Fourth Amendment protects against unreasonable “searches and seizures,” but in the digital age of stingray devices and IP tracking, what constitutes a search or seizure? The Supreme Court has held that the threshold question is supposed to depend on and reflect the “reasonable expectations” of ordinary members of the public concerning their own privacy. For example, the police now exploit the “third party” doctrine to access data held by email and cell phone providers, without securing a warrant, on the Supreme Court’s intuition that the public has no expectation of privacy in that information. Is that assumption correct? If …

The Body Politic: Federalism As Feminism In Health Reform, Elizabeth Mccuskey

Faculty Scholarship

This essay illuminates how modern health law has been mainstreaming feminism under the auspices of health equity and social determinants research. Feminism shares with public health and health policy both the empirical impulse to identify inequality and the normative value of pursing equity in treatment. Using the Affordable Care Act's federal health insurance reforms as a case study of health equity in action, the essay exposes the feminist undercurrents of health insurance reform and the impulse toward mutuality in a body politic. The essay concludes by revisiting-from a feminist perspective-scholars' arguments that equity in health insurance is essential for human …