Law and Society Commons^™

The Poverty Of Clinical Canonic Texts, Anthony V. Alfieri

Articles

No abstract provided.

Etched In Stone: Historic Preservation Law And Confederate Monuments, Jess R. Phelps, Jessica Owley

Articles

This Article examines the current controversy regarding Confederate monuments. While many have focused on the removal of these commemorative objects, the legal framework regarding their protection has not been fully explored. This Article provides an in-depth understanding of the application of historic preservation laws to monument removal efforts and examines the impact of these federal, state, and local laws. The examination raises significant questions about the permanency of preservation laws generally. This Article considers how historic significance is evaluated and valued, noting the lack of flexibility and absence of mechanisms for reevaluating past protection decisions. This Article uses the Confederate …

Talking About Black Lives Matter And #Metoo, Linda S. Greene, Lolita Buckner Innes, Bridget J. Crawford, Mehrsa Baradaran, Bennett Capers, Osamudia R. James, Keisha Lindsay

Articles

No abstract provided.

Judicial Partisanship In A Partisan Era: A Reply To Professor Robertson, Dmitry Bam

Faculty Publications

Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and …

A Theory Of Poverty: Legal Immobility, Sara Sternberg Greene

Faculty Scholarship

The puzzle of why the cycle of poverty persists and upward class mobility is so difficult for the poor has long captivated scholars and the public alike. Yet with all of the attention that has been paid to poverty, the crucial role of the law, particularly state and local law, in perpetuating poverty is largely ignored. This Article offers a new theory of poverty, one that introduces the concept of legal immobility. Legal immobility considers the cumulative effects of state and local laws as a mechanism through which poverty is perpetuated and upward mobility is stunted. The Article provides an …

Johnny Appleseed: Citizenship Transmission Laws And A White Heteropatriarchal Property Right In Philandering, Sexual Exploitation, And Rape (The Whp) Or Johnny And The Whp, Blanche Cook

Law Faculty Scholarly Articles

Title 8, United States Code, Section 1409-one of this country's

citizenship transmission laws-creates a white heteropatriarchal property right

in philandering, sexual exploitation, and rape (the "WHP"). Section 1409

governs the transmission of citizenship from United States citizens to their

children, where the child is born abroad, outside of marriage, and one parent is a

citizen and the other is not. Section 1409, however, draws a distinct gender

distinction between women and men: An unwed female American citizen who

births a child outside the United States, fathered by a foreign man, automatically

transmits citizenship to her child. An unwed male American …

Constitutional Cohesion And The Right To Public Health, James G. Hodge, Daniel G. Aaron, Haley R. Auger, Ashley Cheff, Joseph Daval

Utah Law Faculty Scholarship

Despite years of significant legal improvements stemming from a renaissance in public health law, Americans still face major challenges and barriers in assuring their communal health. Reversals of legal reforms coupled with maligned policies and chronic underfunding contribute to diminished public health outcomes. Underlying preventable morbidity and mortality nationally are realities of our existing constitutional infrastructure. In essence, there is no general obligation of government to protect or promote the public’s health. Under principles of “constitutional cohesion,” structural facets and rights-based principles interwoven within the Constitution protect individuals and groups from governmental vices (i.e., oppression, overreaching, tyranny, and malfeasance). Structural …

Reframing Radical Religion, Vanita Saleema Snow

Journal Articles

Like a thief in the night,1 politicians have stolen religion for their deceptive vices, using the term “radicalization” or “terrorism” to meet their needs.2 See Sahar F. Aziz, Caught in a Preventive Dragnet: Selective Counterterrorism in a Post-9/11 America, 47 GONZ. L. REV. 429, 481 (2012) (discussing how a police report equates “Muslim religiosity with radicalization toward terrorism”); David A. Bosworth, American Crusade: The Religious Roots of the War on Terror, 7 BARRY L. REV. 65, 65 (2006) (noting that American news and popular culture often portray religious people as “narrow-minded bigots out to destroy everything good and decent”); Ned …

Can God Create A Rock So Heavy That He Cannot Lift It?: Outlawing Pensions Under State Constitutions, Chad J. Pomeroy

Faculty Articles

Public pensions are a problem. More than twenty-seven million people participate in state and local government pension plans. And those plans are in the hole trillions of dollars. This means that state and local governments are going to have to raise additional trillions in taxes (or shift those trillions away from schools, police, firemen, or other spending targets) to satisfy these obligations.

What can be done about such a large, seemingly intractable problem? A number of states have installed specific pension funding requirements within their constitutions. Most state constitutions contain some kind of balanced budget requirement, and a number of …

Making And Unmaking Citizens: Law And The Shaping Of Civic Capacity, Tabatha Abu El-Haj

University of Michigan Journal of Law Reform

American democracy is more fragile today than in recent memory. As evidence of stubborn imbalances in political influence grow, so too does public skepticism concerning the relative benefits of our democratic institutions. Scholars have taken note, and two dominant camps have emerged to offer proposals for restoring democratic accountability and responsiveness. The first, like the public, identifies the flood of money into electoral politics as the primary source of our troubles, whereas the second points to political parties as the root of the crisis. More recently, however, a nascent third approach has emerged. Looking beyond the usual suspects—money in politics …

Scènes À Faire In Music: How An Old Defense Is Maturing, And How It Can Be Improved, Torrean Edwards

Marquette Intellectual Property Law Review

First, this Comment will provide background on the test for copyright infringement used by the Fourth, Eighth, and Ninth Circuits. Second, the Comment will address what scènes à faire is and how recent cases have treated scènes à faire in music. Third and finally, the Comment will offer a suggestion as to a proper scènes à faire determination and analyze how scènes à faire should be applied.

How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez

Catholic University Journal of Law and Technology

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book’s assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to …

Let’S Get This Show On The Road: Driverless Cars Have Arrived And It’S Time To Advance The Regulatory Framework, Joshua D. Borneman

Catholic University Journal of Law and Technology

The potential benefits that driverless automobile technology will provide to the U.S. and its roadways are vast. Greatly enhanced safety of American citizens is chief among these benefits. Congressional and administrative support will be required if these benefits are to be completely realized by American society. However, lawmakers are dragging their feet on passing legislation that will allow driverless cars to hit the road in full force. This comment examines the legislative proposals put forth by the House of Representatives and Senate. It argues that the differences between the two versions are inconsequential and urges lawmakers to act in order …

Life Becoming Hazy: The Withdrawal Of The United States From The Paris Agreement And How The Youth Of America Are Challenging It, Anne Ustynoski

Catholic University Journal of Law and Technology

This Comment covers the ways in which each presidential administration has viewed the United States’ role and responsibilities in combating climate change. It discusses the ways in which the Clean Air Act has evolved and changed, as well as the ways in which the United States has been involved in environmental protection initiatives undertaken by the United Nations. The Comment also examines the ways in which individual states and groups have taken the initiative to combat climate change. Finally, this Comment discusses alternative approaches to combating climate change. For example, it focuses on how youths in America are arguing that …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

Front Matter

Canadian Journal of Family Law

No abstract provided.

Les Amoureux Sur Les Bancs Publics : Le Traitement Juridique Du Polyamour En Droit Québécois, Michaël Lessard

Canadian Journal of Family Law

L’auteur offre un tour d’horizon des manières dont le droit québécois désavantage les relations polyamoureuses. Dans la première partie, l’auteur définit le polyamour, le monoamour et certaines notions connexes. Dans les sections subséquentes, il avance une catégorisation du traitement juridique du polyamour. Selon son analyse, quatre angles sont exploités pour orienter les relations conjugales vers le monoamour et hors du polyamour : (1) limiter à deux le nombre de parents par enfant (biparenté vs pluriparenté), (2) faciliter la prestation de soins de conjoint·e à conjoint·e, (3) protéger les conjoint·es contre des vulnérabilités économiques, et (4) prohiber certains comportements polyamoureux (criminalisation …

Case Comment: Mccain V Mccain And Barton V Sauvé: A New Approach To Autonomous Domestic Contractual Bargaining In Ontario, Mark Cornish

Canadian Journal of Family Law

This case comment explores the tension between principles that guide domestic contractual bargaining and interpretation in Ontario with reference to two recent trial-level decisions. The courts’ analyses in McCain and Barton suggest a way to reconcile the apparent tension between principles of autonomy and fairness. In light of these decisions, and drawing on the literature in this area, the paper suggests a two-pronged approach for courts to adopt when deciding whether to set aside a domestic contract. This approach attempts to ensure that courts only uphold domestic contracts that are negotiated by truly autonomous parties.

In Memoriam: The Canadian Research Institute For Law And The Family, 1987–2018, John-Paul E. Boyd

Canadian Journal of Family Law

No abstract provided.

Faire Valoir Ses Droits À La Chambre De La Jeunesse : État Des Lieux Des Barrières Structurelles À L’Accès À La Justice Des Familles, Emmanuelle Bernheim, Marilyn Coupienne

Canadian Journal of Family Law

S’il est convenu que l’intervention en protection de la jeunesse constitue en soi une atteinte aux droits fondamentaux des parents, il est souvent pris pour acquis que les droits des parents et des enfants s’opposent autour de notions telles que l’intérêt supérieur de l’enfant et le projet de vie permanent. Au Québec, dans un contexte où les mères vivant dans la pauvreté, et plus particulièrement les mères autochtones ou issues de minorités visibles, sont surreprésentées en protection de la jeunesse et où le nombre de dossiers judiciarisés a cru de 20% depuis les années 1990, il apparaît non seulement pertinent …

Relationally Speaking: The Implications Of Treating Embryos As Property In A Canadian Context, Kathleen Hammond

Canadian Journal of Family Law

In July 2018, the Ontario Superior Court, in S.H. v D.H., dealt with a dispute between a recently separated couple over a frozen embryo that the couple had created. In his judgment, Justice Del Frate stated that the embryo should be conceived of as property. This was the cause of uproar among feminist legal scholars who were concerned with the possible repercussions for cisgender women of labeling embryos as property. The Superior Court decision was subsequently overturned by the Ontario Court of Appeal this past May (2019). However, given the likelihood that embryos will be treated as property in …

Autonomous Motherhood In The Era Of Donor Linking: New Challenges And Constraints?, Fiona Kelly

Canadian Journal of Family Law

The number of single mothers by choice (SMCs), that is, unpartnered women who choose to conceive a child that they intend to raise on their own; has grown rapidly in Australia, where they now represent the largest user group of clinic-based donor sperm. Despite the growing visibility of SMCs, constraints remain for women who wish to parent autonomously from a partner. This article explores a complex new challenge for Australian SMCs: whether to participate in the increasingly popular phenomenon of “donor linking,” defined as the process by which parents who use donated gametes to conceive seek access to the donor’s …

All Families Are Equal, But Do Some Matter More Than Others? How Gender, Poverty, And Domestic Violence Put Quebec's Family Law Reform To The Test, Suzanne Zaccour

Canadian Journal of Family Law

Who needs family law? While it is tempting to answer “everyone”, the stakes are not the same for all. I propose to evaluate family law rules in terms of how they address high-stakes situations—that is, the condition of vulnerable women. Thus, the test of good family law should be how well it deals with poverty and domestic violence, factors that directly constrain women’s ability to negotiate fair outcomes.

To explore this method, I take the example of a recent proposal, developed by Alain Roy’s reform committee (the “Comité consultatif sur le droit de la famille”), and regarding which the Quebec …

Hong Kong's Children Proceedings (Parental Responsibility) Bill: Comparative Family Law Reform And Multidisciplinary Collaboration, Katherine Lynch

Canadian Journal of Family Law

Many comprehensive reviews of family justice systems have been undertaken in common law jurisdictions over the past 20 years, all seeking to provide more meaningful affordable access to justice for families and children. Hong Kong is also under pressure to enact legislative reforms originally proposed in 2002-2005 which deal with children’s matters and more broadly, with family and matrimonial issues. Legislative reform was anticipated when the Government announced the long awaited Children’s Proceedings (Parental Responsibility) Bill (“Children’s Bill”) in 2015. After significant public consultation, however, the Government announced in 2018 that it would delay implementation of this draft legislation. Unfortunately, …

Front Matter

Canadian Journal of Family Law

No abstract provided.

Introduction To The Special Issue: Shifting Normativities, Régine Tremblay, Erez Aloni

Canadian Journal of Family Law

On May 9 and 10, 2019, we held an international and interdisciplinary conference entitled Shifting Normativities: Families, Feminisms, Laws—Celebrating the Work of Professor Susan B. Boyd. This event, cohosted by the Centre for Feminist Legal Studies and the Canadian Journal of Family Law, brought together to the Peter A. Allard School of Law at the University of British Columbia scholars from different countries and disciplines. It had three principal goals. First, celebrating the work of Professor Susan B. Boyd; second, producing cutting-edge scholarship in under-researched fields, namely, family studies and feminist theory; and third, creating new networks of …

Intent To Parent Is What Makes A Parent? A Comparative Analysis Of The Role Of Intent In Multi-Parenthood Recognition, Nola Cammu

Canadian Journal of Family Law

In most jurisdictions, the two-parent rule does not take into account the social reality of intentional multiple-parent families where more than two parents share parenting tasks from a child’s birth. Many cases show that children in non-traditional parenting constellations are emotionally attached to all parental figures and perceive them as true parents. Unfortunately, the law does not adequately acknowledge multiple parenting practices, and thus a discrepancy exists between the social and the legal reality of (often young) children in intentional plus-two-parent families. This article argues that the law should aim to rectify this discrepancy by legally accommodating multiple parenthood, preferably …

Punished For Poverty, Andrew Rock

Criminal Law Practitioner

No abstract provided.

Criminalizing The Victim: Ending Prosecution Of Human Trafficking Victims, Jessica Aycock

Criminal Law Practitioner

No abstract provided.

Too Much, Too Soon? Obergefell As Applied Equality Practice, James M. Donovan, Alyssa Oakley Milby

Law Faculty Scholarly Articles

Abrupt cultural change inevitably arouses anxieties, and often those fears provoke a retrograde reaction seeking to preserve the familiar status quo. When the world by which we define ourselves undergoes unexpected transitions, especially in directions that contradict the comfortable taken-for-granted assumptions that had been earlier enjoyed, we feel threatened. One needs only recall how the new standards of racial equality announced in Brown I and Brown II elicited virulent protests as some districts chose to shutter all public schools rather than have them become racially integrated. In the shadow of such traumas, it may seem an obvious lesson that progress …