Law and Society Commons^™

The Euclid Proviso, Ezra Rosser

Washington Law Review

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning’s second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market responsive. But, given the ways in which zoning is a foundational part of the racial …

Revocation And Retribution, Jacob Schuman

Washington Law Review

Revocation of community supervision is a defining feature of American criminal law. Nearly 4.5 million people in the United States are on parole, probation, or supervised release, and 1/3 eventually have their supervision revoked, sending 350,000 to prison each year. Academics, activists, and attorneys warn that “mass supervision” has become a powerful engine of mass incarceration.

This is the first Article to study theories of punishment in revocation of community supervision, focusing on the federal system of supervised release. Federal courts apply a primarily retributive theory of revocation, aiming to sanction defendants for their “breach of trust.” However, the structure, …

"Send Freedom House!": A Study In Police Abolition, Tiffany Yang

Washington Law Review

Sparked by the police killings of George Floyd and Breonna Taylor, the 2020 uprisings accelerated a momentum of abolitionist organizing that demands the defunding and dismantling of policing infrastructures. Although a growing body of legal scholarship recognizes abolitionist frameworks when examining conventional proposals for reform, critics mistakenly continue to disregard police abolition as an unrealistic solution. This Essay helps dispel this myth of “impracticality” and illustrates the pragmatism of abolition by identifying a community-driven effort that achieved a meaningful reduction in policing we now take for granted. I detail the history of the Freedom House Ambulance Service, a Black civilian …

Copyrighting Tiktok Dances: Choreography In The Internet Age, Ali Johnson

Washington Law Review

TikTok is a video-sharing social media application that launched in 2018 and has grown wildly since its inception. Many users are drawn to the platform by “dance challenges”—short dance routines of varying complexity set to popular songs that are recreated by other users, eventually going “viral” (i.e., recreated on a massive scale by other users) on the app. Going viral can provide young dancers and choreographers an opportunity to break into the highly competitive entertainment industry. However, there is a problem: due to TikTok’s interface and community practices, the original creators of a dance (who, significantly, are often young women …

Getting Comfortable With Discomfort, Diversity & Repair, Luz E. Herrera

Faculty Scholarship

The topic of this year's conference, diversity, pluralism, and repair, gives us so much to talk about, that for me, it was hard to know where we were to begin. Dean Angela Onwuachi-Willig focused on judicial appointments and the importance of a diverse bench for the legal profession, and in our society. She also discussed becoming comfortable with discomfort and I wanted to pick up on that thread. When I think about discomfort, I think about my own journey in the legal profession.

Equal Justice Under Law: Navigating The Delicate Balance Between Religious Liberty And Marriage Equality, Meg Penrose

Faculty Scholarship

This Article discusses the current state of the law and offers thoughts on its future. Part Il provides a brief overview of the legal landscape involved in the clash between religious liberty and same-sex marriage From Justice Scalia's seminal religious liberty test to the evolution of same- sex marriage, Part Il describes the current law. Part III introduces the reader to public accommodations laws. After providing this brief history, Part Ill discusses three Supreme Court cases that could have resolved the religious liberty versus marriage equality question. Part IV looks ahead and draws analogies to the 1960s religious liberty objections …

Amplified Speech, Erin L. Miller

Cardozo Law Review

This Article introduces the concept of amplification into First Amendment law. Amplification, or the size of the audience reached by speech, lies at the heart of many contemporary free speech struggles. Yet the concept is surprisingly absent as a category of analysis from constitutional doctrine and virtually undiscussed in legal scholarship. Amplification deserves its own set of legal rules and doctrines, because the right to amplify one’s speech serves the two core types of First Amendment interests—those of audiences and those of speakers—differently than the right to choose the content of one’s speech. The higher the degree of amplification, the …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Standing By To Protect Child Abuse Victims: Utilizing Standby Counsel In Lieu Of Personal Cross-Examination, Claire Murtha

Dickinson Law Review (2017-Present)

Child abuse is a pervasive problem in the United States. Often, the abused child’s word is the only evidence to prove the abuse in court. For this reason, the child’s testimony is critical. Testifying can pose a challenge for the abused child who must face her abuser in the courtroom, especially if that abuser personally questions her.

The United States Supreme Court has recognized the legitimate and strong interest the state has in protecting the psychological and physical well-being of children. When a child will face significant trauma and cannot reasonably communicate in the courtroom, the child can be questioned …

Removing Roadblocks: Alternatives To Lawful Status And Social Security Number Requirements For Pennsylvania Driver’S Licenses, Miranda Sasinovic

Dickinson Law Review (2017-Present)

As part of their traditional state police powers, states determine the eligibility requirements for their driver’s licenses. Standard eligibility requirements include proof of age, residency, identity, and knowledge. In the 1990s, some states amended their vehicle codes to require proof of lawful status, effectively barring undocumented immigrants from obtaining driver’s licenses.

In response to inconsistent issuance and verification standards, Congress passed the REAL ID Act of 2005. The Act prohibits federal agencies from accepting state driver’s licenses for official purposes unless states comply with minimum issuance and verification standards. These standards include requirements to verify Social Security numbers and lawful …

Red Flag Laws And Procedural Due Process: Analyzing Proposed Utah Legislation, John R. Richardson

Utah Law Review

In this Note, I analyze the validity of criticism against red flag laws based on procedural due process. I proceed as follows: In Part I, I discuss the background of red flag laws, the different versions passed among states, and the few constitutional challenges brought thus far. In Part II, I analyze the statutes’ validity under federal due process standards. I then specifically examine proposed Utah bills that failed to pass in previous legislative sessions. While providing recommendations, I argue that the legislation would likely pass constitutional muster. In Part III, I conclude that red flag laws are generally constitutional …

Fiscal Decolonization-Indigenous Fiscal Autonomy And Tax Jurisdiction, Riad Kherallah

LLM Theses

This thesis focuses on the relationship between Indigenous fiscal autonomy and self-determination. Indigenous nations’ ability to achieve self-determination is dependent upon their ability to autonomously finance self-government. Unfortunately, Canada’s colonial policies have weakened Indigenous economies and rendered them dependent upon the Crown. Due to Indigenous nations’ lack of fiscal autonomy, Crown policies designed to promote Indigenous self-government have proven inadequate. This thesis argues for using the United Nations Declaration on the Rights of Indigenous Peoples as a blueprint for developing more equitable economic relations. While there are various elements to Crown-Indigenous economic relations, this thesis focuses on the distribution of …

Pushing The First Domino: Freeing The Whales In Canada, Luc Paul Bourgeois

LLM Theses

In 2019, the Canadian Parliament adopted Bill S-203, titled the Ending the Captivity of Whales and Dolphins Act [Whales Act], to phase-out the captivity of cetaceans – that is, whales, dolphins, and porpoises – mainly for entertainment purposes. This new law reflected scientific knowledge and signaled a shift in public attitudes relating to cetacean captivity. Undeniably, this piece of legislation raises many legal and normative questions. Drawing on the capabilities approach, espoused by Martha C. Nussbaum, this paper will explore the nature and impact of the Whales Act in the Canadian political and legal landscape, as well as the newly …

Protecting The Child Bride: Following Texas' Middle Ground Approach, Wendy Tolson Ross

Faculty Works

Child marriages historically affect girls more so than boys. In fact, in 2010, the Center for Disease Control reported that for the preceding five-year period, 4% of teen girls and 1% of teen boys married before age eighteen. As a result, feminists have traditionally fought to police girls' chastity throughout time. However, further discussion of this is outside of the discussion of this paper. This paper will focus on the concern of "child brides," or minors under the age of eighteen.

At the heart of this child marriage problem are two concerns: 1) protection of the underage and immature minor …

#Blacklivesmatter: From Protest To Policy, Jamillah Bowman Williams, Naomi Mezey, Lisa O. Singh

Georgetown Law Faculty Publications and Other Works

In summer 2020, mass protests spread across the globe challenging police brutality and racial injustice and demanding change. Fueled by the Black Lives Matter (BLM) movement in the wake of the police murder of George Floyd, these protests drew 15 million to 26 million participants in the United States alone to participate in late May and June of 2020. The sheer scale of these protests made them the largest movement in U.S. history. While there has been some consensus that this unprecedented protest movement pushed social awareness and changed the national conversation around race, existing research has yet to clearly …

Transforming Affirmative Action Jurisprudence: Applying Eidelson's Theory On The Supreme Court Of India, Sawinder Singh

Cardozo International & Comparative Law Review

This paper compares the affirmative action jurisprudence developed by the Indian Supreme Court with United States affirmative action jurisprudence in the context of the philosophy of equality developed by Harvard Law School Professor Benjamin Eidelson. It evaluates the potential of Eidelson's claim that if the U.S. Supreme Court accepts his philosophy, it may incrementally allow the Court to adopt a more favorable attitude towards the affirmative action policies. The question raised here is whether Eidelson's approach can provide a constitutionalfoundation capable of giving us a consistently benevolent interpretation of affirmative action policies, as he hoped. This article concludes that, at …

Praxis And Paradox: Inside The Black Box Of Eviction Court, Lauren Sudeall, Daniel Pasciuti

Vanderbilt Law Review

In the American legal system, we typically conceive of legal disputes as governed by specific rules and procedures, resolved in a formalized court setting, with lawyers shepherding both parties through an adversarial process involving the introduction of evidence and burdens of proof. The often-highlighted exception to this understanding is the mass, assembly-line processing of cases, whether civil or criminal, in large, urban, lower-level courts. The gap left unfilled by either of these two narratives is how “court” functions for the average unrepresented litigant in smaller and nonurban jurisdictions across the United States.

For many tenants facing eviction, elements of the …

Disrespect As The Essence Of Constitutional Right Violations, R. George Wright

Cardozo Journal of Equal Rights & Social Justice

The article posits that disrespect is a fundamental concept in understanding constitutional rights violations. It argues that the underlying logic and limits of constitutional rights are rooted in considerations of respect and disrespect, particularly respect for persons. The author contends that both intentional and unintentional disrespect can lead to constitutional violations, affecting various rights such as equal protection, free speech, and due process. The analysis draws on philosophical frameworks, including those of Kant and Rawls, to emphasize the centrality of respect in constitutional jurisprudence.

Two Steps Forward, One Step Back: How New York’S Bail Reform Saga Tiptoes Around Addressing Economic Inequality, Daniel Chasin

Cardozo Law Review

No abstract provided.

Fica: What Checks & Balances Are Needed Against Powers Being Used Inappropriately?, Tan K. B. Eugene, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

COMMENTARY: "The key question is not whether the state should have powers to take countermeasures, but rather whether there are adequate checks against the risk of those powers being inappropriately used."