Public Law and Legal Theory Commons^™

Reparation For The Irreparable: Is Punishing International Crimes A Universalist Hoax?, Kholoud Hafez Hassan

Theses and Dissertations

This thesis challenges the conventional discourse on international punishment that emphasizes the development of a single, unified system of international criminal justice. Instead, it advocates for a pluralistic approach that recognizes the fragmented nature of international punishment, which involves various actors, including permanent courts, special tribunals, internationalized tribunals, and domestic courts exercising universal jurisdiction. The sui generis nature of international crimes demands a comprehensive approach to punishment that considers multiple perspectives and norms of diverse actors involved. Rejecting the notion of universalism in determining punishment rationales and promoting accounts of sentencing consistency, the author asserts that a global framework can …

On The Fence About Immigration And Overpopulation: "Environmentalists" Challenge Dhs Policies On Nepa Basis In Whitewater Draw Natural Resource Conservation District V. Mayorkas, Maya J. Williams

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson

Michigan Law Review

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, …

Addressing The Toll Of Truth Telling, Inga N. Laurent

Brooklyn Law Review

Across the United States, there are mounting and renewed calls for applying restorative justice principles to deeply entrenched societal ills based on reconciliation, namely in the form of truth and reconciliation commissions (TRCs). Amid our great mobilization, we would be wise to pause, contemplating lessons from lived experiences. Since the 1970s, approximately thirty-five national truth commissions have taken place. In South Africa, Canada, Sierra Leone, and many processes, TRCs have proven adept at cataloguing approved instances of victim and survivors’ (VS) stories and elaborately contextualizing conflict through a new historical lens. Despite the transformative potential of TRCs, they are still …

Collusive Prosecution, Ben A. Mcjunkin, J.J. Prescott

Law & Economics Working Papers

In this Article, we argue that increasingly harsh collateral consequences have surfaced an underappreciated and undertheorized dynamic of criminal plea bargaining. Collateral consequences that mostly or entirely benefit third parties (such as other communities or other states) create an interest asymmetry that prosecutors and defendants can exploit in plea negotiations. In particular, if a prosecutor and a defendant can control the offense of conviction (often through what some term a “fictional plea”), they can work together to evade otherwise applicable collateral consequences, such as deportation or sex-offender registration and notification. Both parties arguably benefit: Prosecutors can leverage collateral consequences to …

Blue Water Navy Veterans And The Agent Orange Rulings: A Lifeboat For The Veterans; A Storm Warning For The Vba, Jennifer Howley

Catholic University Law Review

Agent Orange was a herbicidal chemical used by the U.S. military for tactical use during the Vietnam War. Although initially told by the government not to worry about exposure to the chemical, veterans, their wives, and their offspring began having severe health and reproductive issues. In the early 1990’s, Congress passed the Agent Orange Act and the government directed the Institute of Medicine to report on the health effects of Agent Orange. Through this approach, Vietnam Veterans could claim benefits for illnesses listed in connection with Agent Orange. But only some Vietnam Veterans.

Initially, only veterans who served on-shore or …

To Meet Or Not To Meet, That Is The Question: An Analysis Of The Meeting Requirement Of The Arkansas Freedom Of Information Act, Jerry L. Canfield

Arkansas Law Notes

The Arkansas Freedom of Information Act (“FOIA”) of 1967 provides open public access to “all meetings, formal and informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts and all boards, bureaus, commissions, or organizations of the State of Arkansas.” Through the years, FOIA’s open meetings provision has been amended as to executive sessions, to provide for recording of meetings, and to provide for meetings via electronic means in the event of a declared disaster emergency. However, the basic requirement that meetings of governing bodies be open to the public has remained unchanged since …

Toward Justice Epidemiology: Outlining An Approach For Person-Centred Access To Justice, Andrew Pilliar

Dalhousie Law Journal

The COVID-19 pandemic has brought widespread public attention to the fields of epidemiology and public health. These fields share a common commitment to the systematic study of disease across populations, with goals of better understanding, preventing, and treating adverse health events. They are empirical, evidence-based, and person-centred. This paper draws on the histories, norms, and methodologies of public health and epidemiology to construct a novel field of study: justice epidemiology. In recent years, a growing body of unmet legal needs research in Canada and elsewhere has demonstrated that justiciable events are likely ubiquitous, but also that these events tend to …

"What's In A [Dead] Name?": Title Vii Protections Against Misgendering And Deadnaming Of Gender Diverse Individuals, Mackenzie O'Connell

University of Florida Journal of Law & Public Policy

The Supreme Court’s 2020 holding in Bostock v. Clayton County monumentally altered the availability of employment discrimination claims under Title VII to individuals identifying as members of the LGBTQ+ community. The Court did so by finding that the meaning of Title VII’s prohibition of workplace discrimination “because of sex” includes discrimination against individuals on the basis of their homosexual or transgender statuses. The effects of this decision on other aspects of employment litigation are still uncertain.

Pre-Bostock, transgender and non-binary individuals were largely left without a legal remedy under Title VII for hostile work environment sexual harassment claims. …

Up In Smoke: Preparing The Air Force For The Legalization Of Marijuana, Major Jeffrey D. Baldridge

University of Florida Journal of Law & Public Policy

Over the last four decades, public sentiment regarding marijuana has changed drastically. Many states now allow medicinal marijuana to be prescribed and consumed, while some even permit recreational use. The federal government, as both sovereign and employer, is behind the curve. In both roles, the federal government has failed to act meaningfully. Lax enforcement and the shift in public sentiment will force Congress and the President to enact some significant changes to marijuana law in the very near future. If no action is taken, a dramatic clash between state and federal law will ensue within the nation’s court system.

The …

Prefatory Matter

Richmond Public Interest Law Review

No abstract provided.

Symposium Transcript

Richmond Public Interest Law Review

No abstract provided.

A Call For Change: Doing More To Protect Black And Brown Victims Of Domestic Violence, Kiana Gilcrist

Richmond Public Interest Law Review

Domestic violence (“DV”) disproportionately affects Black and Brown
women. This article examines the tense history of law enforcement
engagement with minority groups, which has caused a strain on that
relationship, leaving minority groups more likely to choose to stay in their
DV situations than seek out law enforcement help. The divide still impacts
these groups today. Additionally, the article highlights several organizations
that have formed to address the needs of minority individuals. Other
organizations have been around, but their ties to law enforcement create an
added barrier for Black and Brown women seeking protection. The article
concludes by briefly examining …

Letter From The Editor, Carley Ruival

Richmond Public Interest Law Review

No abstract provided.

Dobbs In The Context Of Intimate Partner Violence: The Case For A Virginia Constitutional Amendment Protecting Reproductive Choice, Courtenay Schwartz, Caitlin Bradley, Jonathan Yglesias

Richmond Public Interest Law Review

Advocates for victims of sexual and domestic violence have long
understood the critical role that reproductive freedom plays in ensuring
victim safety in the aftermath of trauma. Lawmakers, on the other hand, have
used victims of domestic and sexual violence as political footballs, oftentimes
supporting “exceptions” to abortion bans, such as for rape and incest, as a
means of distracting from the actual harms these restrictions cause. These
exceptions fail to meet the needs of victims and are inadequate protections
against the many forms of abuse, such as reproductive coercion and control,
that victims in abusive relationships face. This article …

Benefits And Drawbacks Of No-Drop Policies And Evidence-Based Prosecution, Nancy Simpson

Richmond Public Interest Law Review

In order to combat the massive threat that domestic violence poses to pub-
lic safety, prosecutors’ offices across America have enacted no-drop policies
requiring prosecutors to seek a guilty verdict on all domestic violence cases.
However, for many and varied reasons, victims of domestic violence are often
hesitant to testify against their abusers in court proceedings. Evidence-based
prosecution, sometimes called victimless prosecution, has become the goal
for many prosecutors seeking to hold abusers accountable when the victim
does not want to testify. However, there can be practical barriers to success-
ful evidence-based prosecutions, which, when combined with strict no-drop
policies, …

Individual Funding: A Policy Solution To Family Abuse In Rural Areas Impacted By The Covid-19 Pandemic, Jessica King

Richmond Public Interest Law Review

Intimate partner violence is an issue in the United States experienced by
more than one in three women. This article addresses the topic of intimate
partner violence and the factors contributing to the perpetuation of abuse. It
focuses on how these factors manifest in rural areas and in the context of the
COVID-19 pandemic, which increased isolation and economic abuse. This
article explores policies currently used to combat intimate partner violence
in these contexts. The current acts, including the Victims of Crime Act
(VOCA), the Family Violence Prevention and Services Act (FVPSA), and the
Violence Against Women Act (VAWA), expressly …

Primacy In Theory And Application: Lessons From A Half-Century Of New Judicial Federalism, Catherine R. Connors, Connor Finch

Maine Law Review

In his 1977 article, State Constitutions and the Protection of Individual Rights, Justice Brennan famously reminded jurists that our governmental system includes two constitutions applicable to each state, and New Judicial Federalism was born. Since then, state courts have applied their own Bills of Rights using different approaches with varying degrees of enthusiasm. The primacy approach, requiring state courts to consider the state constitution first, and turning to the federal constitution only if needed to resolve the case, is theoretically optimal but inconsistently followed, even in the few jurisdictions professing to adopt that approach. This Article posits that the reason …

Police-Generated Evidence In Bail Hearings: Generating Criminality And Mass Pretrial Incarceration In Canada, Jillian Rogin

Dalhousie Law Journal

Systemic racism in policing impacts many aspects of the criminal legal system including the system of judicial interim release. This paper traces the ways in which reliance on police-created evidence at bail hearings might contribute to mass pretrial incarceration in Canada which is disproportionately felt by Indigenous, Black, and marginalized people. The police synopsis and police-created criminal records are state knowledge created for state purposes. This state-created evidence in fact generates race and racialization; all of the structural inequalities built into the system of policing become relied on at bail hearings through police-created evidence which contributes to mass pretrial incarceration …

Against Political Theory In Constitutional Interpretation, Christopher S. Havasy, Joshua C. Macey, Brian Richardson

Vanderbilt Law Review

Judges and academics have long relied on the work of a small number of Enlightenment political theorists-—particularly Locke, Montesquieu, and Blackstone—-to discern meaning from vague and ambiguous constitutional provisions. This Essay cautions that Enlightenment political theory should rarely, if ever, be cited as an authoritative source of constitutional meaning. There are three principal problems with constitutional interpretation based on eighteenth-century political theory. First, Enlightenment thinkers developed distinct and incompatible theories about how to structure a republican form of government. That makes it difficult to decide which among the conflicting theories should possess constitutional significance. Second, the Framers did not write …

Misuse Of Originalism: The Legal Landscape Of The 2nd Amendment Post-Bruen, American Constitution Society, Cardozo Public Interest Law Students Association

2022–2023 Flyers

No abstract provided.

Eviction Crisis Not Averted: Challenging Disparate Impact In The Search For Housing Stability During The Virginia Rent Relief Program's Epilogue, Olivia Seksinsky, Madelyn Bellew

Richmond Public Interest Law Review

Historically, the Commonwealth of Virginia has experienced some of the highest eviction rates in the county, containing five of the top ten U.S. cities with the highest eviction rates. After experiencing scrutiny in the national news due to these rates, the Commonwealth enacted legislation which provided increased tenant protections and distributed the highest percentage of rental assistance funds in the country. It was once thought that the Virginia Rent Relief Program (“RRP”) could be the solution to the eviction crisis, but now that the Program has ended, Virginia is once again experiencing an eviction crisis. Though thousands of households received …

Prefatory Matter

Richmond Public Interest Law Review

No abstract provided.

Letter From The Editor, Carley Ruival

Richmond Public Interest Law Review

No abstract provided.

Redefining Youth: The Case For Applying The Principles Of Miller V. Alabama To Criminal Cases Involving Adults In Late Adolescence, Salua Kamerow

Richmond Public Interest Law Review

In 2012, in Miller v. Alabama, the United States Supreme Court held it unconstitutional to impose a mandatory sentence of life without parole on children because such a sentence fails to adequately account for a child’s developmental stage or ability to weigh long-term consequences. Children are fundamentally different from adults, making them more susceptible to lack of self-regulation, poor decision making, and peer pressure. In Miller, the Court found that these aspects of children’s behavior made children less culpable than adults.

Psychological studies have demonstrated that adolescence is more protracted than previously recognized. Profound malleability of the brain characterizes the …

The Proper Role Of Judicial Opportunism In Constitutional Rights Scrutiny, R. George Wright

Richmond Public Interest Law Review

To one degree or another, judges in constitutional rights cases may exploit their available range of discretion in a narrowly political, ideologically rigid, or partisan way. But there are also important contexts in which a court’s ample discretion under tiered scrutiny and related tests can be turned toward some more nearly consensual or reasonably well-established basic public good. These opportunities to judicially promote the public good remain available even in our age of political polarization, hostility, fragmentation, and distrust.

Where such important opportunities exist, and where it is otherwise constitutionally permissible and generally prudent to do so, courts should feel …

State-Sanctioned Displacement: An Interstate Examination Of Felon Disenfranchisement, Claudia Leonor

Richmond Public Interest Law Review

In his dissent of New State Ice Co. v. Liebmann, Justice Louis Brandeis referred to the constituent states of the country as “laboratories for democracy.” He noted that, as sovereign entities within the United States, states are empowered to “try novel social and economic experiments without risk to the rest of the country.” In postbellum American society, states have grappled with Reconstruction and the concomitant dismantlement of a caste system hinging on racism. In convening constitutional assemblies, the states experimented with racism and succeeded. In Southern jurisdictions, racial animus enabled the creation of constitutional frameworks and legislation that would have …

Python Patrol: Combatting The Problem Of Evasive Non-Native Snakes In Florida, Jessica Rooke

Richmond Public Interest Law Review

The Florida hotspot of non-native invasive species has long been recognized as a fascinating, yet perplexing environmental issue since the late 1900s. After decades of patchwork efforts by the federal and state government, it has become clear that a more holistic approach must be taken to help eradicate the Burmese Pythons that have overtaken Southern Florida. This article highlights the prior efforts taken federally and state-wide to combat this issue and assesses the current gaps in these efforts and what must be done to achieve a more holistic approach. Other states are used as points of comparison in regard to …

How California's Racial Justice Act Of 2020 Protects Criminal Defendants From Racial Discrimination And Why The Equal Protection Clause Is Not Enough, Hannah Laub

Richmond Public Interest Law Review

The Equal Protection Clause should prevent racial discrimination in the criminal legal system, yet Black people and people of color are disproportionately arrested, prosecuted, and incarcerated in the United States. This is partially due to the heavy evidentiary burden required to demonstrate an Equal Protection violation and the failure of the Supreme Court to ease that burden in McCleskey v. Kemp. With federal law largely ineffective, states such as California have passed legislation to provide more robust civil rights protections. This article explores how the Equal Protection Clause fails to provide a remedy for criminal defendants who experience racial discrimination …

Spendthrift Trusts: The Tension Between Testamentary Freedom And Public Policy Concerns, Hailey Dobin Reichel

Cardozo Journal of Equal Rights and Social Justice (ERSJ) Blog

In 1875, Supreme Court Justice Samuel Miller delivered the opinion of the court in a case pertaining to the construction of a woman’s trust created for her children. The matter focused on a provision in the testamentary trust that stated that the trust would terminate with respect to a son’s interest if he were to go bankrupt or insolvent, and that the resulting funds were to be collected by the trustees. Despite arguments presented to the court about how this inclusion acted as an attempt to evade notions of bankruptcy law, Justice Miller upheld the provision of the trust.

This …