Law and Society Commons^™

State Efforts To Create An Inclusive Marijuana Industry In The Shadow Of The Unjust War On Drugs, Mathew Swinburne, Kathleen Hoke

Journal of Business & Technology Law

No abstract provided.

Double Jeopardy’S Dual Sovereignty: A Tragic (And Implausible) Lack Of Humility, Stephen E. Henderson, Dean Strang

Faculty Articles

The core proposition of the Fifth Amendment’s Double Jeopardy Clause is as intuitive as it is straightforward. After all, if a state could prosecute someone despite her previous conviction or acquittal, then the scope of punishment would be unlimited and its threat unending—the sort of proposition only a tyrant could love. Yet, in Gamble v. United States, the Supreme Court once again blessed a dual sovereignty exception that permits just such duplicative prosecutions. We hardly are the first to question this rule, but we submit the Court’s most recent primary mistakes were two. First, the Court began from a …

Existe-T-Il Un « Droit À L’Enfant » En Droit Québecois?, Elisabeth Beauchamp

Canadian Journal of Family Law

La notion de « droit à l’enfant » est souvent soulevée dans le discours public, bien qu’aucune disposition législative au Québec ne prévoie un tel droit à proprement parler. Notre étude propose une analyse de l’ensemble des développements récents du droit de la famille québécois pour déterminer si un « droit à l’enfant » sous-jacent peut s’y inférer. De manière plus particulière, l’analyse porte sur l’émergence possible d’un « droit à l’enfant » dans les développements jurisprudentiels et législatifs relatifs à l’adoption, à la procréation assistée et à la gestation pour autrui. Nous tentons de démontrer que la substance du …

Respecting And Protecting Transgender And Gender-Nonconforming Children In Family Courts, Claire Houston

Canadian Journal of Family Law

Family court judges are increasingly being asked to resolve parenting disputes involving conflict over a child’s gender expression or identity. These disputes ask whether it is in the best interests of children to support their gender nonconformity, including any decision to transition to a gender different from the one they were assigned at birth. Despite more of these cases coming before family courts, judges have little guidance on how to resolve these cases in the best interests of children. Drawing on medical and social science literature and reported decisions, and applying a robust theory of children’s participation rights, this article …

Icwa Downunder: Exploring The Costs And Benefits Of Enacting An Australian Version Of The United States' Indian Child Welfare Act, Marcia Zug

Canadian Journal of Family Law

Australian Indigenous Advocates have long sought the passage of Indigeous child-welfare legislation similar to the United States’s Indian Child Welfare Act. Recently, the Australian government has indicated it is receptive to the enactment of such legislation. However, an Australian version of the ICWA is not as simple as it sounds. The legal status of the Indigenous communities of Australia and American Indian tribes is vastly different thus, many of the ICWA’s provisions, particularly those based on a recognition of Indigenous sovereignty, would require significant modifications before they coud be applied in Australia. These modifications mean an Australian ICWA …

Retrospective Removal Of Gamete Donor Anonymity: Policy Recommendations For Ontario Based On The Victorian Experience, Alicia Czarnowski

Canadian Journal of Family Law

This paper undertakes a comparative analysis of the gamete-donor anonymity schemes in Ontario, Canada and Victoria, Australia. As of March 1, 2017, Victoria became the first jurisdiction in the world to retrospectively remove gamete-donor anonymity. Conversely, donor anonymity remains protected in Ontario, largely through statutory silence. While many donor conceived individuals are calling for other jurisdictions to follow suit and retrospectively abolish anonymity, an in-depth analysis of Victoria’s policy-making process suggests that Ontario should not take a similar course of action. This conclusion is based on the inherent issues with retrospective legislation, the historical differences between the two jurisdictions in …

Front Matter

Canadian Journal of Family Law

No abstract provided.

The "Threat" Of Marriage Fraud: A Story Of Precarity, Exclusion, And Belonging, Sarah Pringle

Canadian Journal of Family Law

Migrants can obtain permanent residency in Canada under the family-reunification category set out in s. 12(1) of the Immigration and Refugee Protection Act (IRPA). Canadian citizens or permanent residents may apply to sponsor their non-citizen spouse, common law or conjugal partner, or other relatives to move to Canada pursuant to s. 117(1)(a) of the Immigration and Refugee Protection Regulations (IRPR). The bad-faith clause under s. 4(1) of the IRPR requires spousal-sponsorship applicants to prove to visa officers that, on a balance of probabilities, their relationship is “genuine” and not “entered into primarily for the purpose of …

Front Matter

Canadian Journal of Family Law

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Does Domestic Violence Disappear From Parental Alienation Cases? Five Lessons From Quebec For Judges, Scholars, And Policymakers, Suzanne Zaccour

Canadian Journal of Family Law

The theory of parental alienation—which asserts that children who reject one parent are brainwashed by the other parent—has often been used to punish caring mothers and grant custody to dangerous fathers. The legal community’s quick infatuation with this concept has sparked fiery debates between its proponents and domestic violence scholars. My research contributes to this urgent conversation by shedding new light on the role of domestic violence in parental alienation cases.

I observe how series of cases involving the same family deal with the issue of domestic violence. This method reveals a worrisome “disappearing act”: as families repeatedly interact with …

Confronting Cannibalism, Review Of Hadley Louise Friedland, The Wetiko Legal Principles: Cree And Anishinabek Responses To Violence And Victimization​ (Univ. Toronto Press, 2018), Lisa M. Kelly, Shelby Percival

Canadian Journal of Family Law

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Disparue Comme Par Magie ? La Violence Conjugale Dans Les Cas D’Aliénation Parentale Au Québec, Suzanne Zaccour

Canadian Journal of Family Law

La théorie de l’« aliénation parentale » — qui affirme que des enfants rejettent un parent en raison d’un lavage de cerveau fait par l’autre parent — a souvent été utilisée pour punir des mères attentionnées et accorder la garde à des pères dangereux. L’engouement fulgurant de la communauté juridique pour ce concept a donc suscité des débats enflammés entre ses partisan·es et les chercheur·ses en violence conjugale.

Mon article contribue à cette conversation urgente en jetant un éclairage nouveau sur le rôle de la violence conjugale dans les cas d’aliénation parentale.

J’observe comment des séries de jugements impliquant la …

Outlaws, Pirates, Judges: Judicial Activism As An Expression Of Antiauthoritarianism In Anglo-American Culture, Beau Steenken

Law Faculty Scholarly Articles

This article will argue that the rejection of what scholars otherwise

view as controlling legal authority lies at the heart of judicial activism.

Furthermore, it will argue that judicial activism itself channels the

antiauthoritarian current in American culture (and in English culture

predating its importation to America). Part II will examine the extensive

scholarly writings already existing on judicial activism in order to identify

common themes and to explore to what extent scholars have arrived at a

consensus definition of judicial activism. Part III will then show that

judicial activism may better be understood within the context of law as …

Equality At The Cemetery Gates: Study Of An African American Burial Ground, William A. Engelhart

Michigan Journal of Race and Law

In Charlottesville, Virginia, the University Cemetery serves as the final resting place of many of the most prominent community members of the University of Virginia. In 2011, the University planned an expansion. During archaeological research to this end, sixty-seven previously unidentified interments, in both adult and child-sized grave shafts, were discovered on the proposed site of expansion, to the northeast of the University Cemetery. Further archival research revealed that “at least two late nineteenth century references note that enslaved African Americans were buried north of but outside the enclosed University, in an adjacent wooded area.” In one, Col. Charles Christian …

Regarding Narrative Justice, Womxn, Geeta Tewari

Michigan Journal of Race and Law

The story within this article explores how narrative justice can be applied as a form of advocacy for persons seeking access to justice. The questions—what is narrative justice? How do we define it?—deserve a separate space, which will be shared in a forthcoming article. Meanwhile, in short, narrative justice is the power of the word—written, spoken, articulated with the emotion or experience of an individual or collective, to shape or express reaction to law and policy.

The Dichotomy Between Overcriminalization And Underregulation, Ellen S. Podgor

American University Law Review

The U.S. Securities and Exchange Commission (SEC) failed to properly investigate Bernard Madoff’s multi-billion-dollar Ponzi scheme for over ten years. Many individuals and charities suffered devastating financial consequences from this criminal conduct, and when eventually charged and convicted, Madoff received a sentence of 150 years in prison. Improper regulatory oversight was also faulted in the investigation following the Deepwater Horizon tragedy. Employees of the company lost their lives, and individuals were charged with criminal offenses. These are just two of the many examples of agency failures to properly enforce and provide regulatory oversight, with eventual criminal prosecutions resulting from the …

Rewarding Bad Behavior In Initial-Review Collateral Proceedings: Teague Says Yes, Due Process Says No, Bethany Callahan

American University Law Review

For centuries, criminal defendants have had the opportunity to challenge their convictions with a writ of habeas corpus. The Founding Fathers described the writ as a path to liberation for those imprisoned without sufficient cause. It is a critical safeguard of individual freedom against lawless state action in criminal proceedings. However, with every safeguard comes a loophole.

The finality of state court decisions is revered in the American criminal justice system. It is no surprise, then, that the Supreme Court has approached the issue of whether to retroactively apply new laws to cases already finalized on direct review with trepidation. …

Equality Is A Brokered Idea, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay examines the Supreme Court's stunning decision in the census case, Department of Commerce v. New York. I characterize Chief Justice John Roberts' decision to side with the liberals as an example of pursuing the ends of equality by other means – this time, through the rule of reason. Although the appeal was limited in scope, the stakes for political and racial equality were sky high. In blocking the administration from adding a citizenship question to the 2020 Census, 5 members of the Court found the justification the administration gave to be a pretext. In this instance, that lie …

Producing Justice In Poor People’S Courts: Four Models Of State Legal Actors, Tonya L. Brito

Lewis & Clark Law Review

This Article examines how judges and government attorneys produce justice in poor people’s courts, which are characterized by a substantial volume of cases, socioeconomically disadvantaged litigants, and an absence or asymmetry of representation. The Article’s findings are drawn from an extensive qualitative empirical study of one type of poor people’s court, specifically family court proceedings where the state is pursuing child support from low- and no-income noncustodial fathers. Focusing on the judges and government lawyers who handle these cases, and drawing from their own accounts as well as on ethnographic in-court observations, I identify four distinct models of state legal …

The End Of Mandatory State Bars?, Leslie C. Levin

Faculty Articles and Papers

The country’s thirty-one mandatory state bar associations are facing an existential threat following the U.S. Supreme Court’s decision in Janus v. ACSME, 138 S. Ct. 2448 (2018). In Janus, the Court considered the constitutionality of compelling public employees to pay agency fees to a labor union. In the process, the Court effectively upended the reasoning of earlier Supreme Court precedent that enabled mandatory state bars to compel bar dues payments from objecting lawyers and expend dues to fund traditional bar functions. Mandatory state bars—which function both as regulators and as traditional bar associations—are now defending themselves against claims in several …

Cognitively Enhanced Humans As Both Warfighters And Weapons Of War, Carolyn Sharp

University of Florida Journal of Law & Public Policy

With the advent of neuromorphic computing, artificial intelligence and machine learning can now behave in a human-like manner by analyzing information and responding with subjective reasoning. And when this informed decision-making process is combined with brain-computer interfaces (BCIs), not only could a neuromorphic BCI take direction from the brain, but it could also observe its complexity and use that information to incorporate new knowledge and capabilities into the brain itself as it exploits the plasticity, or adaptability, of the brain. This combination of biological and technological intelligence could lead to the development and delivery of thoughts/outputs that are powerful enough …

On The Proposed Legalization Of Commercial Surrogacy: I Thought We Had Abolished The Sale Of Human Beings, Phyllis Chesler

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

A New Frontier Facing Attorneys And Paralegals: The Promise & Challenges Of Artificial Intelligence As Applied To Law & Legal Decision-Making, Marissa Moran

Publications and Research

Artificial Intelligence/AI invisibly navigates and informs our lives today and may also be used to determine a client’s legal fate. Through executive order, statements by a U.S. Supreme Court justice and a Congressional Commission on AI, all three branches of the United States government have addressed the use of AI to resolve societal and legal matters. Pursuant to the American Bar Association Model Rules of Professional Conduct[i] and New York Rules of Professional Conduct (NYRPC), [ii] the legal profession recognizes the need for competency in technology which requires both substantive knowledge of law and competent use of technology for …

How The Covid-19 Pandemic Has And Should Reshape The American Safety Net, Andrew Hammond, Ariel Jurow Kleiman, Gabriel Scheffler

UF Law Faculty Publications

The COVID-19 pandemic has delivered an unprecedented shock to the United States and the world. It is unclear precisely how long the twin crises, epidemiological and economic, will last, and it is difficult to gauge the extent and direction of the changes in American life these crises will cause. Nonetheless, it is beyond dispute that the COVID-19 pandemic is putting significant strain on both the ability of Americans to meet basic needs and our government’s capacity to assist them. Federal, state, and local governments have responded in various ways to deploy existing safety net programs like Medicaid, SNAP (food stamps), …

How The Race Of A Neighborhood Criminalizes The Citizens Living Within: A Focus On The Supreme Court And The "High Crime Neighborhood", Deandre' Augustus

St. Thomas Law Review

My whole life I was taught that all men are not created equal. This was beaten into my brain by my loving mother who just wanted me to be safe. You see, this message was part of what most young Black men hear when given “the talk.” I remember multiple variations of the talk given to me throughout my early childhood. However, a variation of the talk was most vividly remembered while taking our dog for a walk around my neighborhood with my mother. At the time, we lived in a suburban area, in a predominantly White neighborhood of Baton …

Reevaluating Politicized Identity & Notions Of An American Political Community In The Legal & Political Process, Marvin L. Astrada Jd, Phd

Indiana Journal of Law and Social Equality

No abstract provided.

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

Faculty Publications By Year

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 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 go. Most …

Doing Unrepresented Status: The Social Construction And Production Of Pro Se Persons, Victor D. Quintanilla

Articles by Maurer Faculty

In this Article, I propose an understanding of the dynamic process through which society does unrepresented status that is informed by psychological and sociological research. In describing this doing of unrepresented status, I elaborate on two new concepts: the social construction of pro se status and the social production of unrepresented persons. These concepts illuminate ways in which the doing of unrepresented status is a routine, recurring feature in how court officials, lawyers, and law-trained persons perceive and interact with unrepresented persons within our civil justice system. That is, a pro se party is not something that an unrepresented person …

Families Belong Together: The Path To Family Sanctity In Public Housing, Mckayla Stokes

Northwestern Journal of Law & Social Policy

In its 2015 landmark civil rights decision in Obergefell v. Hodges, the Supreme Court finally held that the Equal Protection and Due Process Clauses of the United States Constitution guarantee same-sex couples’ marital equality. The Court’s unprecedented declaration that the right to marry is a fundamental right under the Due Process Clause strengthened married couples’ right to privacy because it subjects government actions infringing on marital unions to heightened scrutiny. The Supreme Court has the option to minimize the impact of Obergefell by interpreting the right to marriage very narrowly—as only encompassing the right to enter into a state-recognized union …

The Pursuit Of Comprehensive Education Funding Reform Via Litigation, Lisa Scruggs

Northwestern Journal of Law & Social Policy

No abstract provided.