Public Law and Legal Theory Commons^™

Prefatory Matter

Richmond Public Interest Law Review

No abstract provided.

Letter From The Editor

Richmond Public Interest Law Review

No abstract provided.

Safe At Home: Addressing Virginia's Housing Policy Concerns In A Pandemic, Ghazala Hashmi

Richmond Public Interest Law Review

This article examines the crisis of eviction that exists in the Commonwealth

of Virginia and the ways in which the COVID-19 pandemic highlighted

the particular vulnerability of low-income and minority communities.

Zoning policies, financing practices, limitations on tenants’ rights, and other

legal structures built into the Virginia Code underscore issues of systemic

racism that exacerbate the lack of affordable housing and instability of rental

opportunities. The article provides a highlight of recent legislation passed by

the Virginia General Assembly that seeks to address some of these concerns.

First In The South: Cannabis Legalization In Virginia, Jm Pedini, Cassidy Crockett-Verba

Richmond Public Interest Law Review

In 2021, Virginia made history when it became the first state in the

South to legalize cannabis for responsible use by adults. Though legalization

is now the law of the land, which today includes personal possession

and cultivation, there remains much work to be done before Virginians are

able to legally purchase cannabis outside of the medical program. Concerns

over social equity provisions, retail sales dates, and the reenactment

clauses added during the 2021 legislative session have drastically slowed

the process of expanding the regulated marketplace to adult-use consumers.

With many key components requiring reenactment by the 2022 General Assembly …

A Year Of Monumental Change: A Review Of Virginia's 2021 General Assembly Regular And Special Sessions, Andrew Mullen

Richmond Public Interest Law Review

Between the abolition of the death penalty and the continued fallout from

the COVID-19 pandemic, the Virginia General Assembly had a full plate of

legislative priorities in 2021. This Article will provide a summary of the major

bills that were introduced, passed, or that failed during the 2021 Regular

and Special Sessions. The other articles within this issue cover the following

topics in depth: reproductive justice, criminal justice legal reform, housing

policy concerns during the pandemic, cannabis legalization, and environmental

justice. This Article summarizes legislation grouped in the following

parts: I. Civil and Criminal law, II. Education, III. Labor and …

Empowering The Defense To Confront The Government's Powers: Virginia Criminal Justice Legal Reform, Bryan Kennedy, Catherine F. Zagurskie

Richmond Public Interest Law Review

During the 2021 Session and 2021 Special Session, Virginia took steps to

restore the balance between individuals ensnared in the criminal legal system

and the government. These new laws allow people who are involved in

the criminal legal system to emphasize their humanity and to hold the government

to its various burdens at all stages of the case, including pre-trial,

trials, sentencing, and appeal. This article discusses four of the most important

changes to Virginia law that ensure a more level playing field between

the government and the accused.

First, eliminating the presumption against bail challenges the government’s

power of …

Access Is Everything - Post Rhpa Virginia - What's Next? The Case For Rhea And Other Matters, Galina Varchena, Margie Del Castillo

Richmond Public Interest Law Review

Virginia has taken positive forward steps to liberalize its abortion legislation,

bringing it closer in line with medical science and common sense. However,

accessing abortion care remains difficult for many, and additional legislative

measures are necessary to make the full range of reproductive

healthcare accessible for all, regardless of immigration status, race, gender,

income, or geography. The Reproductive Equity Healthcare Act, a bill modeled

in part on its Oregon namesake, is the next logical step forward towards

making reproductive justice a reality for all Virginians. While the details of

the final bill may vary, there are fundamental pillars that reproductive …

A Legal Update On Environmental Justice In Virginia: Where Are We Now?, Jasdeep S. Khaira, Patrice Lewis, Abigail Thompson, Scott Foster

Richmond Public Interest Law Review

Environmental justice (“EJ”) is rapidly evolving in Virginia while people

are still trying to understand what EJ actually means. As a result, regulators

are unsure of how to incorporate environmental justice in their decisionmaking

process while the regulated are uncertain of how to proceed in the

ever-changing political, social, and regulatory landscape. This article gives

an overview of EJ’s evolution in Virginia, synthesizing notable environmental

justice legal decisions; providing supplementary research on environmental

justice studies, workgroups, and reports; and offering several predictions

on EJ’s fate in the Commonwealth.

Let Us Not Be Intimidated: Past And Present Applications Of Section 11(B) Of The Voting Rights Act, Carly E. Zipper

Washington Law Review

As John Lewis said, “[the] vote is precious. Almost sacred. It is the most powerful non-violent tool we have to create a more perfect union.” The Voting Rights Act (VRA), likewise, is a powerful tool. This Comment seeks to empower voters and embolden their advocates to better use that tool with an improved understanding of its little-known protection against voter intimidation, section 11(b).

Although the term “voter intimidation” may connote armed confrontations at polling places, some forms of intimidation are much more subtle and insidious—dissuading voters from heading to the polls on election day rather than confronting them outright when …

Tiny Homes: A Big Solution To American Housing Insecurity, Lisa T. Alexander

Faculty Scholarship

“There’s no place like home,” said Dorothy. Yet, millions of people in the United States may face eviction, foreclosure, or homelessness in 2021 and beyond. America is on the brink of an unprecedented housing crisis in the wake of Covid-19. The federal government, and various states and localities, have taken actions to avert a housing crisis in the aftermath of Covid 19. While these actions have undeniably helped mitigate widespread foreclosure and eviction crises, they do not fully address the more fundamental American housing challenge—an inadequate supply of affordable housing at all income levels, a longstanding problem that Covid-19 has …

Online Falsehoods, Constitutional Free Speech And Its Limits: The Online Citizen V The Attorney-General, Gary K. Y. Chan

Research Collection Yong Pung How School Of Law

The Singapore Court of Appeal has for the first time in The Online Citizen v The Attorney-General (8 October 2021) adjudicated on the constitutionality of correction directions issued by Ministers against allegedly false statements of fact under the Protection from Online Falsehoods and Manipulation Act 2019. An overarching framework was utilised to assess whether the Ministerial directions restrict free speech under Article 14(1)(a) of the Constitution; if so, whether the restrictions are justifiable under the Constitution and whether there is a rational nexus between the statutory aims and enumerated exceptions. This case comment also examines the constitutional stance towards subject …

Analysing The Constitutionality Of Executive Action Under Articles 14 And 15 In Singapore – Theoretical And Doctrinal Perspectives, Wei Yao, Kenny Chng

Research Collection Yong Pung How School Of Law

Articles 14 and 15 of the Singapore Constitution enshrine the rights to free speech, religious freedom, and other related rights in Singapore. These provisions also set out the circumstances under which these rights may be restricted. Notably, however, these provisions are directed at legislativerestrictions. The question is how they are applicable to executive action. This paper suggests that there are two possible means by which one can assess the constitutionality of executive action under Articles 14 and 15 in Singapore – the jurisdictional and substantive approaches – and demonstrates that evidence of both approaches can be found in Singapore law. …

The Un Security Council And The Saga Of “Global Legislation”, Gadi Ezra

International Law Studies

The release of the UN Security Council from the “veto chains” that characterized the Cold War has led it to intensively engage in a wide spectrum of conflicts and issues. This expanded activity has peaked around its “global legislation” attempts. Although often used in the legal literature, this term is vague and contested. Scholarly work occasionally discusses the Council’s alleged global legislation, but without initially offering a proper working definition of the term. Arguments both for and against are frequently laid incoherently and can roughly be divided into two types: those assessing the Council’s authority to engage in global legislation, …

Good Governance And Civil Service Reform In Egypt, Ahmed Atef Labib

Theses and Dissertations

Governments in different states and even different governments within the same state may pursue different goals. To achieve their goals they apply administrative reforms, including civil service reforms, to adjust the government for achieving the intended goals. Pursuing different goals entails applying different administrative reforms. In the 2000s, the World Bank and the International Monetary Fund (IMF) suggested the Egyptian government, through loan conditionality, an administrative and civil service reform to promote economic growth based on their concept of good governance. In this paper, I argue that the suggested reform does not target economic growth but targets debt repayment. To …

P*Law 2022, Center For Public Service Law

2021–2022 Flyers

This document outlines the full schedule for P*LAW Week 2022 at Cardozo School of Law, presented by the Center for Public Service Law. Held virtually from January 24 to January 27, the week featured panels, workshops, and discussions on key issues in public interest law, including immigration policy, educational equity, criminal justice reform, reproductive rights, data privacy, military law, labor rights, and overdose prevention. Events brought together legal professionals, advocates, scholars, and Cardozo students to explore law’s role in advancing social justice and supporting vulnerable communities.

Disparities In The Use Of Prophylactic Treatments In Reproductive Health Between The Sexes: A Recommendation For The Use Of Hpv Vaccination Schemes Rather Than Surgical Interventions To Reduce Inequities And Threats To The Public’S Health, Paul Mclaughlin

Scholarly Works

This Article will examine the unequal treatment of the sexes under the law with regard to prophylactic treatments against STDs. The second section of this Article will discuss the ethical and legal issues in the use of prophylactic treatments and the issues involving informed consent regarding their use. The third section of this Article will discuss the historic and current use of prophylactic surgeries on both sexes to prevent disease and the challenges that have been raised against such practices. The fourth section of this Article will discuss the use of the H.P.V. vaccinations in both sexes to reduce the …

Liability For Use Of Artificial Intelligence In Medicine, W. Nicholson Price, Sara Gerke, I. Glenn Cohen

Law & Economics Working Papers

While artificial intelligence has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties, but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving health-care providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability: individual health-care providers, focused on physicians; institutions, focused on hospitals; and developers.

Democracy At Risk: Domestic Terrorism And Attack On The U.S. Capitol, Lawrence J. Trautman

Seattle University Law Review

The year 2022 begins with democracy hanging in the balance. On February 13, 2021, Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president, into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack—and at least five deaths are attributed to this insurrection. More than 725 individuals are subsequently charged for their role in this …

The New Major Questions Doctrine, Daniel Deacon, Leah Litman

Law & Economics Working Papers

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …

No New Tax Cuts? Examining The Rescue Plan's New State Tax Limits, Conor Clarke, Edward G. Fox

Law & Economics Working Papers

In this article, Clarke and Fox examine the American Rescue Plan Act’s restrictions on state tax cuts, arguing that the restrictions are a variation on more familiar maintenance-of-effort provisions. These provisions are common, and are designed to help ensure that federal grants supplement rather than supplant state spending by requiring the state to maintain its level of spending on a program. Clarke and Fox conclude that the Rescue Plan’s requirements create similar incentives, and argue that the similarity makes it more likely that the act’s tax provisions are consonant with the Constitution’s spending clause.

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

Regulating International Commercial Surrogacy: A Balance Of Harms And Benefits, Sophia Shepherd

University of Florida Journal of Law & Public Policy

International surrogacy can produce great joy, as well-paid surrogates help produce healthy children for caring parents. However, many current cross-border surrogacy arrangements occur under conflicting citizenship laws, which can leave surrogate-born children stateless and their intended parents fighting for parental rights. In addition, without sufficient regulation, international surrogacy can lead to abuses, including exploitation of surrogate mothers and abandonment of surrogate-born children. At the other extreme, excessive regulation, including prohibition, can also cause great harm as surrogates and intended parents are denied surrogacy’s benefits. Moreover, inadequate regulation can quickly lead to prohibition, as abuses cause a country to flip from …

Stopping The Spin: Reforming The Rhode Island State Ethics Commission And The Revolving Door Statute, Samuel Weathers

Roger Williams University Law Review

No abstract provided.

Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey

Michigan Law Review

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …

“No Skateboarding Allowed”: Municipal Bylaws, Urban Common And Public Property, And The Regulation Of “Undesirable” Or “Disruptive Use", Sara Gwendolyn Ross

Articles, Book Chapters, & Popular Press

The mechanics of daily local inequality and marginalization can be readily observed within the language of local bylaws that govern urban spaces and places and their use — whether these govern the hours and types of use that can be made of local “public” parks, spaces where loitering is identified as unwelcome, or how and where certain activities can take place. While affinity spaces can be, on the one hand, welcomed and celebrated for the mentorship of youth, extracurricular activity, environmentally friendly transportation, or as a skill-building goal-oriented endeavour, the language of bylaws creates an ecosystem equally predisposed to prohibiting …

Understanding Chilling Effects, Jonathon Penney

Articles, Book Chapters, & Popular Press

With digital surveillance and censorship on the rise, the amount of data available online unprecedented, and corporate and governmental actors increasingly employing emerging technologies like artificial intelligence (AI), machine learning, and facial recognition technology (FRT) for surveillance and data analytics, concerns about “chilling effects”, that is, the capacity for these activities “chill” or deter people from exercising their rights and freedoms have taken on greater urgency and importance. Yet, there remains a clear dearth in systematic theoretical and empirical work point. This has left significant gaps in understanding. This article has attempted to fill that void, synthesizing theoretical and empirical …

Introduction To Julie Bilotta’S Story, Sheila Wildeman

Articles, Book Chapters, & Popular Press

Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance.

In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of …

Animals As Legal Beings: Contesting Anthropocentric Legal Orders, By Maneesha Deckha, Jodi Lazare

Articles, Book Chapters, & Popular Press

Scholarship on animal rights has long been dominated by the widely held idea that justice for nonhuman animals will not be achieved until they are granted legal personhood. In Animals as Legal Beings: Contesting Anthropocentric Legal Orders, Maneesha Deckha provides an alternative legal classification for nonhuman animals. “Beingness,” rooted in relational feminism, post-colonial theory, and critical animal studies, recognizes nonhuman animals’ inherent value, while avoiding some of the downsides to legal personhood, namely, its embeddedness in the imperialist liberal individualism that characterizes western legal systems. Given its anthropocentric nature, personhood must be displaced as the aspirational classification for animals. …

Judicial Workbook On Bill C-92 — An Act Respecting First Nations, Inuit And Métis Children, Youth And Families, Hadley Friedland, Naiomi Metallic, Koren Lightning-Earle

Articles, Book Chapters, & Popular Press

Objective: Based on the purpose, history, textual wording and relevant interpretative principles, these are the approaches to the provisions of the Act that we believe will best achieve its purpose, which Canada has identified as “to protect and ensure the well-being of Indigenous children, families and communities by promoting culturally sensitive child welfare services, with the goal of putting an end to the overrepresentation of Indigenous children in child and family services systems."

Doing Business Guidance, Legal Origins Theory, And The Politics Of Governance By Knowledge, Liam Mchugh-Russell

Articles, Book Chapters, & Popular Press

This article uses the World Bank’s Doing Business project to illuminate the politics of “governance by knowledge.” It synthesizes scholarship critiquing the project’s legitimacy and contributes to research challenging the instrumental benefits of improved Doing Business performance. The article’s major contribution is an immanent critique of Legal Origins Theory, which was developed largely to provide ex post validation for the project’s core claims, but whose premises, when taken seriously, lead to conclusions that contradict its “one-size-fits-all” logic. The article demonstrates much can be learned about the politics of development by engaging rationalizations of power on their own terms.