Law and Society Commons^™

Pointing Guns, Joseph Blocher, Samuel W. Buell, Jacob D. Charles, Darrell A. H. Miller

Faculty Scholarship

The American gun debate is increasingly populated with scenes of people pointing and otherwise displaying guns. What is the legal regime governing gun displays, and how well can it address the distinct social and legal problems they pose? In this Essay, we argue that the current structure of criminal law does not supply clear rules of conduct sufficient to avoid the negative effects of gun displays, and that the rhetorical and expressive effects of Second Amendment debates threaten to make the situation worse. We also suggest how the legal rules might be improved, and how battles over norms—as much as …

Equality Metrics, Veronica Root Martinez, Gina-Gail S. Fletcher

Faculty Scholarship

This time is different. This time the death of another Black man at the hands of white police officers prompted calls for change not only within police departments, but across all aspects of American life. Those calls for change resulted in significant displays of support for the Black Lives Matter movement and interest in how to eliminate systemic racism and promote racial diversity and justice within one’s daily life and workplace. For the most part, corporations were quick to publicly align themselves with the movement. When carefully examined, however, many of the statements issued by corporations in support of the …

When Critical Race Theory Enters The Law & Technology Frame, Jessica M. Eaglin

Articles by Maurer Faculty

Jessica Eaglin intertwines the social construction of race, law and technology. This piece highlights how the approach to use technology as precise tools for criminal administration or objective solutions to societal issues often fails to consider how laws and technologies are created in our racialized society. If we do not consider how race and technology are co-productive, we will fail to reach substantive justice and instead reinforce existing racial hierarchies legitimated by laws.

The Expressiveness Of Regulatory Trade-Offs, Benjamin M. Chen

Georgia Law Review

Trade-offs between a sacred value—like human life—
against a secular one—like money—are considered taboo.
People are supposed to be offended by such trade-offs and to
punish those who contemplate them. Yet the last decades in the
United States have witnessed the rise of the cost-benefit state.
Most major rules promulgated today undergo a regulatory
impact analysis, and agencies monetize risks as grave as those
to human life and values as abstract as human dignity.
Prominent academics and lawmakers advocate the weighing of
costs and benefits as an element of rational regulation. The
cost-benefit revolution is a technocratic coup, however, if …

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, …

Digital Gatekeepers, Thomas E. Kadri

Scholarly Works

If in William Blackstone's time we might have thought of a person's home as their castle, in Mark Zuckerberg's time we might say that their website is too. Under cyber-trespass laws like the Computer Fraud and Abuse Act, courts have treated online platforms as digital gatekeepers--as property owners that may permit and restrict access to websites much like landowners may do with private land in the real world. If platforms withhold their consent through words or inference, cyber-trespass laws let them enforce their preferences about who may access their services and gather information from the internet. Concerned about reputations and …

Are We (Americans) All International Realists Now?, Harlan G. Cohen

Scholarly Works

Is American international law distinctly legal realist? The claim is often made, but underexplored. What would it mean for American international law scholarship and practice to be legal realist in its orientation? Where would such an orientation come from, and what do those origin stories mean for current international law work? Are there common realist-inspired approaches within the varied schools of American international law scholarship? Does wielding those approaches produce distinctly American views on international law doctrine, its operation, or its function? And if American international law scholarship and practice is, in these ways, somewhat distinct, what does it mean …

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 …

Constructing Countervailing Power: Law And Organizing In An Era Of Political Inequality, Kate Andrias

Faculty Scholarship

This Article proposes an innovative approach to remedying the crisis of political inequality: using law to facilitate organizing by the poor and working class, not only as workers, but also as tenants, debtors, welfare beneficiaries, and others. The piece draws on the social-movements literature, and the successes and failures of labor law, to show how law can supplement the deficient regimes of campaign finance and lobbying reform and enable lower-income groups to build organizations capable of countervailing the political power of the wealthy. As such, the Article offers a new direction forward for the public-law literature on political power and …

States And Laws, Jews And Palestinians: Yadgar's Traditionist Alternative. A Reflection On Yadgar, Israel's Jewish Identity Crisis (Cambridge, 2020), James J. Friedberg

Intercultural Human Rights Law Review

This essay reviews Israel's Jewish Identity Crisis: State and Politics in the Middle East, published last year by Yaacov Yadgar (Stanley Lewis Professor of Israel Studies at the University of Oxford School of Global and Area Studies). His book connects Israel's sometimes arcane internal identity debates to core issues in the Israel/Palestine conflict, a connection largely unexamined prior to this book.

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 …

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.

Sport And Expression, Sport As Expression, Howard M. Wasserman

FIU Law Review

No abstract provided.

“Juveniles Are Different”: Easier Said Than Done Resolving Disparities Among Courts Regarding The Constitutionality Of Sentencing Juveniles To De Facto Life-Without-Parole, Audrey Fernandez

FIU Law Review

No abstract provided.

The Two Percent: How Florida’S Capital Punishment System Defies The Eighth Amendment, Sofia Perla

FIU Law Review

No abstract provided.

Race, Risk, And Personal Responsibility In The Response To Covid-19, Aziza Ahmed, Jason Jackson

Faculty Scholarship

The COVID-19 crisis has tragically revealed the depth of racial inequities in the United States. This Piece argues that the disproportion­ate impact of the pandemic on racial minorities is a symptom of a failing approach to public health, one that privileges individual behaviors over the structural conditions that generate vulnerability and inequitable health outcomes. Despite clear racial disparities in illness and deaths, the neoliberal ideology of personal responsibility shifts the onus for mitigation of risk away from the social and legal determinants of health and onto the individual. To understand how and why these disparate racial outcomes arise, this Piece …

The Use Of Force To Prevent Recurrence Of Conflict: Where Are The Limits Of Self-Defense?, Laurie R. Blank

Brooklyn Law Review

The prohibition on the use of force is the central pillar of the international system of peace and security, and yet contemporary conflicts continue to stretch and pressure this foundational rule. This article examines how international law applies to the use of force in the territory of another state for the purpose of preventing a resurgence of violence after a conflict has ended. In the absence of consent or U.N. Security Council authorization, can self-defense be a justification for a state to use force to prevent the resurgence of conflict? In January 2018, the United States announced an intended policy …

Going Gunless, Dru Stevenson

Brooklyn Law Review

Firearm policy in the United States is subject to longstanding political gridlock. Up to now, most of the legal academic literature has focused on the constitutionality of various—or any—regulations regarding firearm possession, sales, or usage. This article inverts the problem and proposes a system for voluntary registration and certification of nonowners, those who want to waive or renounce their Second Amendment rights as a matter of personal conviction. The proposed system is analogous to both the registration of conscientious objectors during wartime conscriptions, and the newer suicide prevention laws whereby individuals can add their names to a do-not-sell list for …

Not All Violence In Relationships Is "Domestic Violence", Tamara Kuennen

Brooklyn Law Review

This article argues that not all violence in intimate relationships is “domestic violence.” Domestic violence is a pattern of acts perpetrated with a motive: power and control over another. National anti-domestic violence organizations, activists and advocates, and a number of academics agree on this construct of domestic violence. Law, on the other hand, requires neither a pattern nor a motive; it defines domestic violence to include any single act of violence in a relationship, regardless of the perpetrator’s intent. Because legal intervention is the primary intervention for domestic violence today, feminist legal scholars have sought to reform the law to …

Of Sex Crimes And Fencelines: How Recognition Of Environmental Justice Communities As Crime Victims Under State And Federal Law Can Help Secure Environmental Justice, Joshua Ozymy, Melissa L. Jarrell

Pace Environmental Law Review

Environmental justice communities throughout the United States continue to face disproportionate health burdens from living near industrial sources of pollution. Such burdens were caused by historically racist public policies and continue to be perpetuated by inadequate regulatory responses at the federal and state level. State and federal law has increasingly recognized an emerging set of rights afforded to victims of crime in court proceedings. We argue that members of environmental justice communities should be viewed as crime victims and have the same rights applied as other victims of violent crime. Using case examples under the federal Crime Victims’ Rights Act …

Unveiling The “Trojan Horses” Of Gentrification: Studies Of Legal Strategies To Combat Environmental Gentrification In Washington, D.C. And New York, N.Y., Sarena Malsin

Pace Environmental Law Review

No abstract provided.

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

Business Law–Corporate Purpose And Benefit Corporations–Making Benefit Corporation Legislation Work For Socially Minded Investors, Cody Mckinney

The Arkansas Journal of Social Change and Public Service

No abstract provided.

Responsible Energy Storage For A Renewable Electrical Grid, Matt Longacre

Seattle Journal of Technology, Environmental, & Innovation Law

The United States economy, its national security, and even the health and safety of its citizens depend on reliably available electricity. Electricity is largely available through the grid – more than 9,200 generating units, capable of generating more than one terawatt of electricity, connected to more than 600,000 miles of wire. The grid extends to nearly everything: from charging cellphones to cellphone towers, from light emitting diodes to street lights, and from parking meters to electric cars; the grid has become ubiquitous.

The current grid infrastructure has been valued at two trillion dollars, but much of it is aging to …

The Impact Of Cultural Heritage On Japanese Towns And Villages, Yuichiro Tsuji Dr.

Seattle Journal of Technology, Environmental, & Innovation Law

In 1954, when historically significant clays and clay pots were found in the Iba district of Shizuoka prefecture, the city applied to the prefectural education committee for a historic site designation. The committee granted this designation to the city..

However, in 1973 the education committee lifted its permission to promote development around the location. Historians have sought revocation of this decision under the Administrative Case Litigation Act (ACLA), but the Supreme Court has denied standing. By denying standing, the Japanese Supreme Court allows the prefecture to destroy a historical site.

First, this paper seeks to discuss the doctrine of standing …

The Life And Death Of Confederate Monuments, Jessica Owley, Jess Phelps

Buffalo Law Review

Confederate monuments have again received increased attention in the aftermath of George Floyd’s tragic death in Minneapolis, Minnesota, on May 25, 2020. Momentum and shifting public opinion are working toward the removal of these problematic monuments across the country. This Article seeks to provide insight for monument-removal advocates: specifically focusing on the legal issues associated with the “death” or removal of these monuments, how property law shapes and defines these efforts, and briefly examining what happens to these statues after removal. Our exploration of Confederate monuments reveals that some removal efforts occur outside of legally created processes. Both public and …

The Clean Air Act: How It Can Be Localized To Promote Both Environmental And Social Justice, Tate Kirk

Seattle Journal of Technology, Environmental, & Innovation Law

Legislators attempt to achieve intended goals by enacting laws that provide for regulatory enforcement. However, many times laws are unable to achieve their stated goals and in some ways may create new or exacerbate existing issues. Luckily, upon review, many of these issues can be fixed with quick modifications to either their implementation or enforcement mechanisms. In its current form, the Clean Air Act does not effectively account for differences in regional climate patterns, and, moreover, it perpetuates environmental injustice. If local governments were given more autonomy to enforce the Clean Air Act, they could shape its enforcement to more …

Fault Lines: An Empirical Legal Study Of California Secession, Bill Tomlinson, Andrew W. Torrance

Seattle Journal of Technology, Environmental, & Innovation Law

Over the last decade, multiple initiatives have proposed that California should secede from the United States. This article examines the legal aspects of California secession and integrates that analysis with findings from an empirical study of public perceptions of such secession. There is no provision in the United States Constitution allowing states, or other political or geographical units, to secede unilaterally. The Civil War was fought to uphold this principle, and the United States Supreme Court confirmed it in its 1869 Texas v. White decision. Nevertheless, numerous instances of secession, both legal and extralegal, have occurred across human history, and …

Law School News: Rwu Law Dean Seeking To Build On Culture Of Service, Innovation 12/09/2020, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Middle Ground: A Meaningful Balance Between The Benefits And Limitations Of Artificial Intelligence To Assist With The Justice Gap, Katherine L. W. Norton

University of Miami Law Review

Access to justice continues to be an ongoing battle for those who cannot afford an attorney in civil legal matters. These civil legal matters touch issues that significantly impact daily life, from issues relating to health, such as advance directives, to family, such as custody of children. Lawyers, courts, and scholars have attempted to tackle this ongoing problem in our justice system. Some suggest that providing free counsel for all civil legal matters is the solution, while others suggest that self-help materials provide more immediate access to services and information. Regardless of the position one takes, the need is clear …