Law and Society Commons^™

Punish The Crown, But Protect The Government: A Comparative Analysis Of State Tort Liability For Exemplary Damages In England And Punitive Damages In The United States, Bradley Raboin

Cardozo Journal of International and Comparative Law

The article examines the contrasting approaches of the United States and England regarding punitive and exemplary damages in tort claims against the government. While the U.S. prohibits punitive damages against the government under the Federal Tort Claims Act (FTCA), England allows exemplary damages against the Crown in specific cases. The author argues that England's approach, which holds the government accountable through exemplary damages, is preferable and suggests that the U.S. should consider a similar, regulated approach to enhance government accountability.

Do As I Say, Not As I Do: Inconsistencies In International Cultural Property Repatriation, Samantha Anderson

Cardozo Journal of International and Comparative Law

The note critiques the United States' application of international cultural property laws, arguing that it misuses these laws for political and diplomatic leverage rather than adhering to their ethical and legal purposes. It highlights inconsistencies in how the U.S. handles repatriation cases, favoring foreign nations like Peru and Cambodia while neglecting the cultural heritage of Native American communities. The note advocates for a more equitable and consistent approach to cultural property repatriation, emphasizing the need for clearer definitions and reciprocal agreements.

Humbug: Toward A Legal History, Susanna Blumenthal

Buffalo Law Review

No abstract provided.

Bridge Over Troubled Waters: Resolving The Ri Grande (Rio Bravo) Water Dispute., Ruben R. Barrera, Dan A. Naranjo

St. Mary's Law Journal

Abstract Forthcoming.

The Dilemma Of Interpreting Rules Of Civil Procedure: A Proposal For Elastic Formalism., L. Wayne Scott

St. Mary's Law Journal

When lawyers are well prepared, know the law, present the law, and have it ignored by judges who interpret the law in their own way, it can be frustrating. When courts publish opinions embodying this attitude, students, too, become frustrated or conclude that the law is whatever judges decide it should be. This Article does not focus on unethical judges who decide cases with wrong motives but, rather, it focuses on ethical judges who are faced with “hard” cases and have the dilemma of deciding the case, either by the rule or by the judge’s concept of fairness. In both …

Suppressing The Truth: States' Purposeful Violation Of The Right Of No Cruel Or Unreal Punishment In Lethal Injection Executions., Nadine G. Rodriguez

St. Mary's Law Journal

Abstract Forthcoming.

A Law And Economics Analysis Of The Duty Of Utmost Good Faith (Uberrimae Fidei) In Marine Insurance Law For Protection And Indemnity Clubs., Elizabeth Germano

St. Mary's Law Journal

Writing for the Supreme Court in The Lottawanna in 1875, Justice Joseph P. Bradley envisioned federal and state regulation of maritime affairs as “a system of law coextensive with, and operating uniformly in, the whole country.” He thought state involvement in maritime law defeated the consistency and uniformity the Constitution sought to achieve for interstate and international commerce. Over 100 years later, Justice Antonin Scalia, describing the current relationship between state and federal regulation in the admiralty arena, stated: “It would be idle to pretend that the line separating permissible from impermissible state regulation is readily discernible in our admiralty …

The Admissibility Of Aerial Photographs - Evidentiary Foundations., Kristopher R. Hufstetler

St. Mary's Law Journal

Services such as Google Maps and MapQuest significantly impact how consumers use the Internet. For as much as they contribute to Internet use, issues arise concerning the use of satellite images and aerial photographs in the context of litigation. Historical concerns about satellite and aerial imagery typically involved expectations of privacy and the application of the Fourth Amendment. Courts and citizens alike express concern with when and where privacy ends with respect to aerial views. Concerns as to the admissibility of aerial photographs have also been prominent. Specifically, interest in admissibility of these photographs focuses on sufficiency, relevance, and accuracy. …

The Development Of Chinese Constitutionalism, Chenglin Liu

St. Mary's Law Journal

Since the establishment of the People's Republic of China (PRC) in 1949, the country has enacted four constitutions. This Article provides a historical analysis of how the Communist Party of China (the Party) and its paramount leaders shaped each constitution, influenced the public perception of the law, and determined the method individual constitutional rights should be permitted. Through examining leading incidents that defined the PRC's history, this Article provides a detailed examination of how the Party used a constitutional framework to achieve its specific agenda of the time.

Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick

St. Mary's Law Journal

Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …

Sexbots; An Obloquy, Thomas Simmons

Faculty Publications

Sexbots may displace humans in the sex trade (or on a wider scale) sometime between the 2020s and the 2050s. Although some perquisites may derive from the proliferation of sexbots (lower levels of sexually transmitted diseases, for example), significant social harms can also be predicted. In anticipation of those harms, lawmakers may endorse targeted regulation or outright bans. The uncertain limits of Lawrence v. Texas and its progeny of sex-toy decisions will present vague constitutional shoals to these aims. The legislating-of-sexbots crusade will also make for strange bedfellows, politically speaking, as social conservatives aiming to maintain traditional values ally with …

Homeschooling: Choosing Parental Rights Over Children's Interests, Martha Fineman, George B. Shepherd

University of Baltimore Law Review

Homeschooling, the most extreme form of privatization of education, often eliminates the possibility of the child gaining the resources essential for success in adult life. It sacrifices the interests of the child to the interests of the parents, allowing them to control and isolate the child’s development. In addition, homeschooling frustrates the state’s legitimate interest in the child’s receiving a sound, diverse education, so that the child can achieve her potential as a productive employee and as a constructive participant in civic life. This Article uses vulnerability theory as a heuristic frame both to reexamine the dominant rhetoric of parental …

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

A Brook With Legal Rights: The Rights Of Nature In Court, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

Over two decades ago, Professor Christopher Stone asked what turned out to be a question of enduring interest: should trees have standing? His question was recently answered in the affirmative by a creek in Pennsylvania, which successfully intervened in a lawsuit between an energy company and a local township to prevent the lifting of a ban against drilling oil and gas wastewater wells. Using that intervention, this Article examines whether such an initiative might succeed on a broader scale. The Article parses the structure, language, and punctuation of Article III, as well as various theories of nonhuman personhood to see …

Law's Emotions, Robin West

Georgetown Law Faculty Publications and Other Works

The emerging interdisciplinary field of “Law and Emotions” brings together scholars from law, psychology, classics, economics, literature and philosophy all of whom have a defining interest in law’s various relations to our emotions and to emotional life: they share a passion for law’s passions. They also share the critical premise, or assumption, that most legal scholars of at least the last half century, with a few exceptions, have mistakenly accorded too great of a role to reason, rationality, and the cool calculations of self interest, and have accorded too small a role to emotion, to the creation, the imagining, the …

G2i Knowledge Brief: A Knowledge Brief Of The Macarthur Foundation Research Network On Law And Neuroscience, David L. Faigman, Anthony Wagner, Richard J. Bonnie, Bj Casey, Andre Davis, Morris B. Hoffman, Owen D. Jones, Read Montague, Stephen J. Morse, Marcus E. Raichle, Jennifer A. Richeson, Elizabeth S. Scott, Laurence Steinberg, Kim Taylor-Thompson, Gideon Yaffe

Faculty Scholarship

Courts are daily confronted with admissibility issues – such as in cases involving neuroscientific testimony – that sometimes involve both the existence of a general phenomenon (i.e., “G”) and the question of whether a particular case represents a specific instance of that general phenomenon (i.e., “i”).

Unfortunately, courts have yet to carefully consider the implications of “G2i” for their admissibility decisions. In some areas, courts limit an expert’s testimony to the general phenomenon. They insist that whether the case at hand is an instance of that phenomenon is exclusively a jury question, and thus not an appropriate subject of expert …

Overcoming The Great Forgetting: A Comment On Fishkin And Forbath, Jedediah S. Purdy

Faculty Scholarship

Fishkin and Forbath’s (F&F’s) manuscript is a project of recovery. It portrays the present as a time marked by a “Great Forgetting” of a tradition of constitutional political economy. F&F name what has been forgotten the “democracy of opportunity” tradition. Recovering it would mean again treating the following three principles as linked elements at the core of our Constitution: (1) an anti-oligarchy principle that works to prevent wealth from producing grossly unequal political power; (2) a commitment to a broad middle class with secure, respected work; and (3) a principle of inclusion that opens participation in both citizenship and the …

When Extrinsic Incentives Displace Intrinsic Motivation: Designing Legal Carrots And Sticks To Confront The Challenge Of Motivational Crowding-Out, Kristen Underhill

Faculty Scholarship

The rise of “nudges” has inspired countless efforts to encourage individual choices that maximize personal and collective welfare, with a preference for less restrictive tools such as setting default options or reordering choice sets. As part of this trend, there has been renewed interest in the behavioral impacts of incentives – namely, rewards or penalties for shaping individual choices, including but not limited to financial incentives. Explicit incentives are pervasive in the law, including carrots offered by governments (for example, tax deductions for charitable contributions, rebates for recycling, sentence reductions for prisoners who complete drug rehabilitation programs, and incentives for …

Can A Little Representation Be A Dangerous Thing?, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

Access to justice interventions that provide a little representation, including nonlawyer representation and various forms of limited legal services, may be valuable solutions for low- and middle-income Americans. However, a thoughtful approach to improving access to justice efforts should recognize that a little representation may have risks. In particular, one potential risk of a little representation is that while it provides assistance with a discrete legal need in a specific moment, the nature of the assistance is incompatible with challenging the law. As a result, individual litigants do not have the benefit of legal challenges in their own cases and …

Confronting Power In Public Law, Kate Andrias

Articles

In his important and provocative Foreword, Professor Daryl Levinson criticizes American constitutional law for failing to attend sufficiently to questions of power, which he defines as “the ability to effect substantive policy outcomes by influencing what the government will or will not do.” As Levinson details, structural constitutional law has focused on how power is distributed among governmental institutions. It has not consistently or adequately considered how power is — or should be — distributed among social groups. Ultimately, Levinson suggests that the narrow focus of separation of powers law and theory on “equalizing the power of government institutions” lacks …

Toward A Civilized System Of Justice: Reconceptualizing The Response To Sexual Violence In Higher Education, Hannah Brenner, Kathleen Darcy

Faculty Scholarship

The reporting, investigation, and prevention of sexual violence in settings that are closed off from the greater community and subject to their own laws, rules, norms and biases present special challenges for survivors of sexual violence. This essay builds on our existing scholarship that explores the pervasive problem and exceedingly high incidence of sexual violence perpetrated against women in closed institutional systems like prison, the military, and immigration detention centers. Survivors in these contexts are routinely denied access to justice internally and from the external criminal justice system; they also face major limitations (imposed by both federal law and Supreme …

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Publications

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the …

When Fantasy Becomes Reality: Attempts To Regulate The Highly Unregulated Daily Fantasy Sports Industry., Garrett Greene

St. Mary's Law Journal

Legislation is beginning to creep into the once safeguard-devoid sphere of the daily fantasy sports industry. Daily fantasy sports are a subset of traditional season-long fantasy sports and are immensely lucrative, yet there are hardly any standard regulations. Ironically, the Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006, which was used to outlaw online poker gambling, paved the way for daily fantasy sports, because it federally exempted fantasy sports from being classified as illegal sports gambling. The UIGEA further protects daily fantasy sports from the Professional and Amateur Sports Prohibition Act (PASPA) of 1992 which prohibits states from sponsoring sports …

Rationed Justice, Jennifer M. Smith

Journal Publications

In the United States, "equal justice under law" is at the very forefront of our American justice system. "Equal justice" is meant to guarantee equal access to the justice system. "Equal access to the judicial process is the sin qua non of a just society." Many Americans, however, do not have any access to the justice system, never mind that of equal access. "Equal justice" has not reached the nation's indigent, or even many of our moderate-income citizens.

Cook V. Nara Versus The Public’S Right To Know, Sarah Lamdan

Indiana Law Journal

In Cook v. National Archives and Records Administration , the court misapplied the Freedom of Information Act’s (FOIA) privacy exemption to hide presidential records, favoring secrecy over the public interest. The court set up a double standard by protecting George W. Bush and Richard Cheney’s library reference requests—even though, under laws created during the Bush administration, librarians would face possible prison sentences for refusing to turn over similar requests.

In 2013, a Gawker reporter named John Cook made a FOIA request to the National Archives and Records Administration (NARA) to get more information on “who’s digging through what in former …

Will Work For Free: The Legality Of Unpaid Internships, Nicole M. Klinger

Brooklyn Journal of Corporate, Financial & Commercial Law

This Note addresses the current ambiguity in the law regarding if unpaid interns are employees under the Fair Labor Standards Act. The Note explores relevant case law throughout the circuit courts, but primarily focuses on the Second Circuit’s recent decision in Glatt v. Fox Searchlight Pictures. It argues that the primary benefits test created by the Second Circuit in Glatt does not adequately protect unpaid interns nor does it inform employers of the standards they need to meet in order to adopt legal unpaid internship programs. Instead, courts should adopt a clearer, more rigid test that finds an intern not …

Debunking The Myth Of Universal Male Privilege, Jamie R. Abrams

University of Michigan Journal of Law Reform

Existing legal responses to sexual assault and harassment in the military have stagnated or failed. Current approaches emphasize the prevalence of sexual assault and highlight the masculine nature of the military’s statistical composition and institutional culture. Current responses do not, however, incorporate masculinities theory to disentangle the experiences of men as a group from men as individuals. Rather, embedded within contestations of the masculine military culture is the unstated assumption that the culture universally privileges or benefits the individual men that operate within it. This myth is harmful because it tethers masculinities to military efficacy, suppresses the costs of male …

Reforming (But Not Eliminating) The Parental Discipline Defense, Hazel Blum

University of Michigan Journal of Law Reform

This Note argues that although states should retain the parental discipline defense, their legislators should rewrite their statutes to limit the defense to a specific range of disciplinary methods that social science research has shown to have either net-beneficial or net-neutral effects on children. Part II explores religious and cultural attitudes about corporal punishment, including an overview of traditional American attitudes toward corporal punishment. Specifically, it explores how religious teachings, including Evangelical Christianity, Methodism, and Judaism, affect attitudes towards parental discipline. Additionally, Part II will examine the build-up to and aftermath of Sweden’s ban on corporal punishment—the first nation worldwide …

Left Behind: The Dying Principle Of Family Reunification Under Immigration Law, Anita Ortiz Maddali

University of Michigan Journal of Law Reform

A key underpinning of modern U.S. immigration law is family reunification, but in practice it can privilege certain families and certain members within families. Drawing on legislative history, this Article examines the origins and objectives of the principle of family reunification in immigration law and relies on legal scholarship and sociological and anthropological research to reveal how contemporary immigration law and policy has diluted the principle for many families—particularly those who do not fit the dominant nuclear family model, those classified as unskilled, and families from oversubscribed countries—and members within families. It explores the ways in which women and children, …

Law And Lgbq-Parent Families, Emily Kazyak, Brandi Woodell

Department of Sociology: Faculty Publications

This paper addresses how the law affects LGBQ-parent families. We first outline the legal landscape that LGBQ parents face in the US, underscoring that it varies drastically by state and creates inequity for families. Reviewing existing social science research, we then address how the law affects three processes for LGBQ people: desiring parenthood, becoming a parent, and experiencing parent- hood. Our review indicates that the law affects if and how LGBQ people become parents. LGBQ people consider the law as they make decisions about whether to pursue adoption, donor insemination, or surrogacy and often view the latter two pathways as …