Law and Society Commons^™

Essentializing Cultures In Us Asylum Law, Jaclyn Kelley-Widmer, Estelle Mckee

Brooklyn Law Review

Asylum applicants must tell a story about their home country that reduces and problematizes its culture. The requirements of asylum law demand that an applicant show why they will suffer persecution in their home country and that their government will not protect them from it. This legal framework prompts applicants to present a narrative in which their home culture plays the role of the ultimate antagonist, the force that propels the applicant’s persecutors to single them out for harm and renders their government passive—or even complicit—in the face of it. Such a narrative necessarily reduces the applicant’s culture to its …

A New Private Law Of Policing, Cristina Carmody Tilley

Brooklyn Law Review

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco

Brooklyn Law Review

The United States has continued to hold Puerto Rico as a colony, much like the British empire did the US colonies, and has given it no clear path to incorporation, statehood, or independent sovereignty. It has also denied its citizens the right to vote for their president and have voting representation in Congress. Current case law regarding Puerto Rican presidential voting rights and voting representation in Congress rests on precedent that dates almost as far back as its acquisition—the infamous Insular Cases. This case law is inconsistent with prior precedent, constitutional principles, and does not account for Puerto Rico’s contributions …

Protecting The Beanstalk: Folklore As Traditional Cultural Expressions, Ainsley E. Marlette

The University of Cincinnati Intellectual Property and Computer Law Journal

No abstract provided.

How Remote Support Technology Can Alleviate The Caregiver Shortage, Thomas Tarver

Marquette Benefits and Social Welfare Law Review

Since the COVID-19 pandemic, nearly every sector of the economy has struggled with workforce shortages, and one of the most severely impacted industries is the long-term care services industry. Indeed, this industry has historically been unable to attract and retain enough caregivers to meet the needs of its clients and the pandemic only exacerbated this problem. Those who rely on long-term care services are typically members of some of society’s most vulnerable populations such as frail elders and individuals with disabilities. Not having enough caregivers adversely affects these populations as care staff shortages are more likely to lead to abuse …

Safeguarding Silence: The Weaponization Of Nondisclosure Agreements And The Need For More Regulation, Johanna Shinners

Marquette Benefits and Social Welfare Law Review

With the surge of the #MeToo movement, the weaponization of Nondisclosure agreements in cases of sexual assault and harassment has been brought to the forefront. This comment discusses the use and laws of nondisclosure agreements (NDAs) in cases of sexual assault and sexual harassment, highlighting their role in silencing victims and shielding perpetrators from accountability and underscores the broader implications of NDAs in perpetuating a culture of silence. Emphasizing the prevalence of NDAs, this comment scrutinizes their misuse and explores the historical context, highlighting the intertwining of #MeToo movement and NDAs.

This comment compares State responses, exemplified by Washington, California, …

Family Treatment Courts In Rural Settings, Alissa Hendricks, John Lepage

UMKC Law Review

Missouri courts deal in hundreds of thousands of cases each year that involve money, property, and crime, but no category of cases is more important than those dealing with the safety and welfare of children. The collaborative model of family treatment courts was created out of the passion for this responsibility to children and to the families of this state.

Family treatment courts evolved from the adult drug court model, where collaborative efforts found success within the criminal justice system. Family treatment courts are now one of the most expansive improvements conducted in the judicial, child welfare, substance use disorder …

Litigation Landmines: Exclusionary Zoning And Sober Living Homes, Rachel L. Andersen

Marquette Benefits and Social Welfare Law Review

This article delves into the intricate landscape of sober living home ordinances within residential zoning districts, shedding light on exclusionary restrictions and requirements that have triggered extensive and costly discrimination litigation. Providing a concise history of the origins of modern-day sober living homes, the article examines legislative initiatives and ongoing litigation concerning zoning ordinances aimed at regulating these homes in residential neighborhoods. It explores the nuanced use or prohibition of specific terms and conditions within such ordinances and compares historical interpretations of regulatory provisions for recovery residences. The article presents examples of contentious terms and requirements that have fueled litigation, …

Hurt, Hungry, And Handcuffed: How The Prison System Fails Pregnant Women And Their Newborns, Sarah B. Bondar

Marquette Benefits and Social Welfare Law Review

Over 200,000 women are incarcerated in the United States’ federal and state correctional institutions on any given day. In fact, more women are incarcerated now than ever before, and those rates of incarceration continue to grow at an exponential rate. Despite this large increase in the number of incarcerated women, jail policies, health-care protocols, and important interventions continue to focus primarily on incarcerated men and fail to consider the gender-specific needs of the increasing population of incarcerated females.

This comment discusses ways the United States prison system fails the pregnant women in their care. It discusses four main points including: …

Combating Substance Abuse And Violence In Jackson County, Missouri: A Public Health Approach To The "War On Drugs", Danielle Bukacheski, Grant Baker, Stephen R. Bough

UMKC Law Review

In 1989, Jackson County, Missouri, made history - voters passed the first tax solely dedicated to funding substance abuse prevention and treatment. Today, the COMmunity Backed Anti-Crime Tax ("COMBAT") continues to annually generate between $25 to $30 million that supports Jackson County courts, the Jackson County Prosecutor's Office, local law enforcement agencies, and nonprofit organizations focusing on prevention and treatment. COMBAT has achieved success through its de-emphasis on punitive law enforcement practices and emphasis on public health. Instead of focusing on the prosecution of drug-related offenses, COMBAT is leading a more holistic "War on Drugs" by funding community-based resources to …

A New Generation Of Reform In Drug Enforcement In Kansas City, Jean Peters Baker

UMKC Law Review

Jackson County, Missouri has been at the forefront of drug policy reform for decades, with the establishment of one of America's first Drug Courts in the early 1990s. This Article will delve into the impact of the county's shift in drug policy on the drug court model, both positive and negative, and where the county expects to go in the future. We will examine what we currently understand about drugs, including the destructive effects of drugs on individuals and their families, the history of the War on Drugs and its lack of impact, and the statistics on drug crimes and …

Engaging The Base: Using Veterans Treatment Courts In Missouri To Address Core Issues, Evan Rodriguez

UMKC Law Review

With a per capita veteran population surpassing the national average, Missouri presents its veterans with unique challenges in their day-to-day lives. For example, nearly one-third of Missouri veterans are disabled, compared to one-sixth of civilians. The State established the Missouri Veterans Commission, which supports veterans and their families with the veteran-specific obstacles they face. To that end, Missouri offers the second highest number of veteran benefits of any state in the country.

Like all groups of people, some veterans will unfortunately enter the criminal justice system due to varying factors. Veterans Treatment Courts ("VTCs") originated to address veteran-specific reasons for …

Housing Court: A Balancing Act, Todd Wilcher

UMKC Law Review

This article provides a general description of the Kansas City Municipal Court's Housing Court - its origin, jurisdiction, and process-and discusses the broader themes and competing interests at issue in its cases. Because detached single-family home cases take up most of the space on the dockets, the single-family home theme is a major thread in the fabric of this Article. At the same time, however-in the broader context of the municipal environment-every building, structure and open land is subject to building, zoning, and maintenance regulations. These regulations are pervasive in our modern society, and ensuring they are applied in a …

Building Resilience By Removing Barriers: Addressing Structural Impediments To Advocacy By Nonprofit Organizations On Behalf Of The Unenfranchised, Kirsten Widner, Heather Kolinsky

UF Law Faculty Publications

Charitable contributions, particularly from private foundations, are an essential source of support for many nonprofit charitable organizations. However, the ability to accept these contributions comes with significant restrictions on lobbying and advocacy. Using vulnerability theory and an original survey of nonprofit advocacy organizations, we show that current restrictions on 501(c)(3) organizations disproportionally limit advocacy on behalf of the most politically disadvantaged groups—those without the right to vote. This, in turn, reinforces existing inequalities in whose voices are heard and whose interests are considered by policymakers. This Article argues that reforming the laws that structure what organizations can take tax-deductible charitable …

Problem-Solving Courts And The Outcome Oversight Gap, Erin R. Collins

UMKC Law Review

The creation of a specialized, “problem-solving” court is a ubiquitous response to the issues that plague our criminal legal system. The courts promise to address the factors believed to lead to repeated interactions with the system, such as addiction or mental illness, thereby reducing recidivism and saving money. And they do so effectively – at least according to their many proponents, who celebrate them as an example of a successful “evidence-based,” data-driven reform. But the actual data on their efficacy is underwhelming, inconclusive, or altogether lacking. So why do they persist?

This Article seeks to answer that question by scrutinizing …

Legislating Courts, Michael Pollack

UMKC Law Review

Judges are ordinarily thought of as deciders of a specific sort: people who apply the rule of law to resolve disagreements between the parties appearing before them. But in every state, judges do far more. They are charged by state statutory or constitutional law with a range of quasi-administrative, quasi-legislative, and quasi-executive law enforcement functions. These roles raise a number of theoretical and practical concerns. In many states, though, legislatures have gone even further. They have either wholly delegated significant policymaking power to state court judges or have sat idle while those judges have assumed the mantle of functions that …

The Model Law Enforcement Officer And Other First Responder's Deflection Act: A National Blueprint For Creating Successful Deflection Programs Across The Country, Marc Consalo

UMKC Law Review

The idea of finding alternatives to the traditional approach of arresting, prosecuting, and punishing an individual for criminal behavior in the hopes it will deter future illegal conduct is not new. In 1947, the Judicial Conference of the United States met to make recommendations for the first diversion programs focusing on youthful offenders. Approximately fifteen years later, states began to explore diversion as an option for some adult lawbreakers.

The birth of diversion generated a novel approach to addressing criminal activity. However, before any individual could participate in a diversion program, law enforcement arrested the person which imposed a host …

Building A Successful Team In A Problem-Solving Court: The Western District Of Missouri Model, Carie Allen, Stephen R. Bough, Lajuana Counts, Arthur Diaz, Jeffrey Mccarther, Katie Meister, James Parker

UMKC Law Review

Problem-solving courts work. We know that reentry programs and intensive supervision programs like drug courts are effective alternatives to incarceration that reduce recidivism. For example, the United States District Court for the Western District of Missouri's Reentry Court has an 85.7% success rate for graduates, meaning they complete their term of supervised release without any new charges. A reduction of recidivism means hefty savings of tax-payer dollars. More importantly, successful problem-solving courts mean people engage in their communities, raise families, work productive jobs, and pay taxes.

Courts and legislators and executive branches around the country are increasingly turning to problem …

Kansas City Municipal Court's Domestic Violence Court Programming, Courtney A. Wachal, Gerald Sorensen, Jenna Phelps, Nephateri Hill

UMKC Law Review

The Kansas City Municipal Domestic Violence Court identifies cases as domestic violence if they involve intimate partner violence, violations of protective order, interfamily violence, or cases where there is a child witness. This court manages a large caseload of domestic violence violations that vary widely in the severity of the charges and the levels of violence.

The Kansas City Municipal Domestic Violence Court has prioritized their probation resources by focusing services on those cases that are most in need of supervision and on those cases most likely to be receptive to services. This article will discuss The Compliance Docket and …

Aligning The Stars: Institutional Convergence As Social Change, Raymond H. Brescia

Fordham Law Review

In a democracy, in which the legal and constitutional systems should reflect popular will and individual and collective self-determination are the engines through which those systems are realized, what are the means by which individuals, organizations, and social movements might bring about meaningful and sustainable social change that makes that society more just, more inclusive, and more equitable? A common understanding of how social change happens, and who can bring about that change, is represented in an oft-quoted phrase, attributed to Margaret Mead: “Never doubt that a small group of committed people can change the world: Indeed, it is the …

The Ideology Of Press Freedom, Hannah Bloch-Wehba

Faculty Scholarship

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …

Re-Evaluating Gpt-4’S Bar Exam Performance, Eric H. Martinez

Faculty Scholarship

Perhaps the most widely touted of GPT-4’s at-launch, zero-shot capabilities has been its reported 90th-percentile performance on the Uniform Bar Exam. This paper begins by investigating the methodological challenges in documenting and verifying the 90th-percentile claim, presenting four sets of findings that indicate that OpenAI’s estimates of GPT-4’s UBE percentile are overinflated. First, although GPT-4’s UBE score nears the 90th percentile when examining approximate conversions from February administrations of the Illinois Bar Exam, these estimates are heavily skewed towards repeat test-takers who failed the July administration and score significantly lower than the general test-taking population. Second, data from a recent …

Outcome Reasons And Process Reasons In Normative Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Constitutional theory is a mess. Disagreements about originalism and living constitutionalism have become intractable. Constitutional theorists make some arguments that seem clearly fallacious and advance proposals that are pie in the sky. One of the reasons for the mess is an overreliance by constitutional theorists on “outcome reasons,” justifications that rely on the theorist’s beliefs about what outcomes are good and what outcomes are bad. This outcome-drive approach is exemplified by the so-called “canonical cases” argument, which evaluates positions in normative constitutional theory on the basis of its counterfactual implications for a handful of prior decisions of the Supreme Court. …

Addressing Educational Inequality In The United States: A Comparative Approach To The European System, Yi-Sheng Liu

Marquette Benefits and Social Welfare Law Review

This study compares educational inequality in the U.S. and Europe. Utilizing a comparative approach based on the Positive Obligations of the European Convention on Human Rights and the Fourteenth Amendment to the U.S. Constitution, we expand on social contexts and objective facts to address how the U.S responds to educational inequality issues in contemporary constitutional interpretation (digital transformation and disparity, for example). We examine emerging issues in social change and expectations and discuss the rationale for constitutional legal norms to explain how these contribute to constitutional change. We suggest that the nation’s confrontation with educational inequality should be guided by …

Loose Ends In Singapore Equal Protection Doctrine, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

A trilogy of landmark Singapore Court of Appeal decisions has defined the landscape of constitutional equal protection doctrine in Singapore: Lim Meng Suang, Syed Suhail and Tan Seng Kee. While this trio of cases has laid the doctrinal foundation for the constitutional right to equality in Singapore, three loose ends remain for clarification. First, what is the relationship between the legal tests articulated in Syed Suhail and Lim Meng Suang? Second, what is the relationship between both steps in the Syed Suhail test? Third, what is the distinction between the Syed Suhail test and the common law judicial review ground …

The Uncertain Future Of Tourism On Migrating Barrier Islands: How And Why The Outer Banks Of North Carolina Should Adjust To Growing Threats, Lillian Coward

William & Mary Law Review

Erosion, storms, and the migration of the barrier islands that comprise the Outer Banks themselves are not new. The rising seas that have resulted from climate change have merely exacerbated what has always occurred. What is new, however, is the economic havoc that natural processes and disasters alike can wreak on the islands. Today, because climate change has accelerated natural island migration, individuals, local governments, and the federal government alike have a lot to lose in the fight against the tides.

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This Note will evaluate a variety of potential solutions to the problems that pose nearly existential threats to …

The Road To Hell Is Paved With Good Intentions: Deinstitutionalization And Mass Incarceration Nation, Corinna Barrett Lain

William & Mary Law Review

They say that the road to hell is paved with good intentions, and our failed implementation of deinstitutionalization in the 1970s is a prime example of the point. In this symposium contribution—a response to Jeffrey Bellin’s book Mass Incarceration Nation—I offer a historical account of deinstitutionalization of state mental hospitals, tracing how severely mentally ill patients were discharged from state hospitals and eventually made their way back to secure beds, but in our nation’s jails and prisons instead. Mental health and mass incarceration are not separate crises, I argue, but rather interconnected problems with an interconnected past that require …

Community Responsive Public Defense, Alexis Hoag-Fordjour

Fordham Law Review

This colloquium asks us to consider how social change is influencing the legal profession and the legal profession’s response. This Essay applies these questions to organizing around criminal injustice and the response from public defenders. This Essay surfaces the work of four innovative indigent defense organizations that are engaged with and duty-bound to the communities they represent. I call this “community responsive public defense,” which is a distinct model of indigent defense whereby public defenders look to their clients and their clients’ communities to help shape advocacy, strategy, and representation.

Methodologically, this Essay relies primarily on qualitative interviews with leaders …

Symposium Introduction: The Volume Problem, Jeffrey Bellin

William & Mary Law Review

Introduction to the 2024 William & Mary Law Review symposium, "Understanding and Responding to Mass Incarceration."

Transformasi Dan Marginalisasi Masyarakat Adat: Suku Ata Modo Di Tengah Hegemoni Pengembangan Pariwisata Taman Nasional Komodo (Transformation And Marginalization Of Indigenous Communities: The Ata Modo Tribe's Experience Amidst The Hegemony Of Komodo National Park Tourism Development), Arif Putra Pratama, Avicenna Elang Chandra, Noor Risa Isnanto, An Nuur Khairune Nisa

The Indonesian Journal of Socio-Legal Studies

The massive development of tourism in Komodo National Park (KNP) has had a signi;icant impact on the local community there, in this case the Ata Modo Tribe. This tribe is a local tribe that has remained silent for a long time and was formed on Komodo Island long before the Komodo National Park was established. They have also lived side by side with the endangered Komodo dragon for decades and tried to maintain their culture and customs amidst the existence of KNP tourism development. This research tries to answer what cultural potential is still maintained by the Ata Modo Tribe, …