Law and Society Commons^™

A New Compact For Sexual Privacy, Danielle Keats Citron

William & Mary Law Review

Intimate life is under constant surveillance. Firms track people’s periods, hot flashes, abortions, sexual assaults, sex toy use, sexual fantasies, and nude photos. Individuals hardly appreciate the extent of the monitoring, and even if they did, little could be done to curtail it. What is big business for firms is a big risk for individuals. Corporate intimate surveillance undermines sexual privacy—the social norms that manage access to, and information about, human bodies, sex, sexuality, gender, and sexual and reproductive health. At stake is sexual autonomy, self-expression, dignity, intimacy, and equality. So are people’s jobs, housing, insurance, and other life opportunities. …

Iowa Land And Landowners: Fear Or Opportunity, Neil D. Hamilton

Journal of Food Law & Policy

Our relation to the land changed as modern agriculture changed. Today many issues involving the land seem to focus on fear and conflict, revealing a fragility of agriculture surprising for how it confounds the expected image of strength and stability. In many ways, our fragile relation to the land contrasts to the optimism of the relation in the past, in the years of settlement and expansion. Part of the change reflects the adverse impacts of modern agriculture catching up with us, and part stems from a society more willing to focus on issues of equity, inclusion, and inequality. The good …

“Lawyers’ Work”: Does The Court Have A Legitimacy Crisis?, Lackland Bloom

St. Mary's Law Journal

Talk of the Supreme Court’s legitimacy is pervasive. It can’t be avoided by anyone paying attention. The question this article addresses is does the Supreme Court have a legitimacy crisis. The title “Lawyers’ Work” is taken from Justice Scalia’s dissenting opinion in Planned Parenthood v. Casey in which he declared that as long as the Court decides cases by engaging in “Lawyers’ Work” the public will leave it alone. This article concludes that Justice Scalia was partially though not entirely correct.

The article begins by considering the concept of judicial legitimacy as developed and studied by political scientists. Next it …

Addressing Food Insecurity In The United States During And After The Covid-19 Pandemic: The Role Of The Federal Nutrition Safety Net, Sheila Fleischhacker, Sara N. Bleich

Journal of Food Law & Policy

Food insecurity has been a direct and almost immediate consequence of the coronavirus disease 2019 (COVID-19) pandemic and its associated ramifications on unemployment, poverty and food supply disruptions. As a social determinant of health, food insecurity is associated with poor health outcomes including diet related chronic diseases, which are associated with worst COVID-19 outcomes (e.g., COVID-19 patients of all ages with obesity face higher risk of complications, death). In the United States (US), the federal nutrition safety net is predominantly made up of the suite of 15 federal nutrition assistance programs that the US Department of Agriculture (USDA) administers and …

Reframing Law's Domain: Narrative, Rhetoric, And The Forms Of Legal Rules, Stephen Paskey

Journal Articles

Legal scholars typically understand law as a system of determinate rules grounded in logic. And in the public sphere, textualist judges and others often claim that judges should not "make" law, arguing instead that a judge's role is simply to find the meaning inherent in law's language. This essay offers a different understanding of both the structure of legal rules and the role of judges. Building on Caroline Levine's claim that texts have multiple ordering principles, the essay argues that legal rules simultaneously have three overlapping forms, none of which is dominant: not only the form of conditional, "if-then" logic, …

Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison

St. Mary's Law Journal

Abstract forthcoming.

Profiling Beyond Race: Characteristics Associated With Traffic Stop Outcomes, Megan Anderson

Electronic Theses and Dissertations

Research related to profiling and the outcome of traffic stops has generally focused on the race of the individuals involved. Little research has examined other characteristics, such as age and socioeconomic status, that may also play a role in traffic stop outcomes. The current study sought to address this limitation in two ways: (1) determine whether the characteristics of age, sex, race, social class, and demeanor are profiled during traffic stops and (2) whether these characteristics influenced the outcome of the traffic stops with regard to tickets and vehicle searches. Secondary data were utilized from the 2015 Police-Public Contact Survey. …

‘Con Los Brazos Abiertos’: Venezuelan Migration And The Humanitarian State Under Ecuador's Moreno Administration, Madeline Cook

Honors Theses

In its 2008 Constitution, Ecuador enshrined radically inclusive principles of universal citizenship and legal protections for migrants, written in a moment of historic Ecuadorian emigration. Yet in the wake of the Venezuelan migrant crisis and President Lenin Moreno’s shift towards austerity, how has his administration (2017-2021) responded to the Venezuelan migration in policy and in political discourse? Through an analysis of legal documents including ministerial agreements, legislation, executive decrees, and the VERHU visa, this paper outlines a pattern of legal restrictions levied on Venezuelan migrants. Additionally, this paper employs a qualitative content analysis of the Moreno administration’s political discourse, including …

Texas: A Weak Governor State, Or Is It?, Ron Beal

St. Mary's Law Journal

The current Texas Constitution was adopted in 1876 and was written after the Civil War and the Reconstruction Period when Federal troops occupied the State. The general perception is that the Federal troops used the Governor, in essence, to impose a form of dictatorship over the people. It was clearly the intent of the new constitution’s framers to create a very weak governor form of government in order to spread its powers to many independently elected officials. It provided that the state officers who were appointed by the Governor and approved by the Senate were semi-independent from the Governor by …

The Meaning Of Sex: Dynamic Words, Novel Applications, And Original Public Meaning, William N. Eskridge Jr., Brian G. Slocum, Stefan Th. Gries

Michigan Law Review

The meaning of sex matters. The interpretive methodology by which the meaning of sex is determined matters Both of these were at issue in the Supreme Court’s recent landmark decision in Bostock v. Clayton County, where the Court held that Title VII protects lesbians, gay men, transgender persons, and other sexual and gender minorities against workplace discrimination. Despite unanimously agreeing that Title VII should be interpreted in accordance with its original public meaning in 1964, the opinions in Bostock failed to properly define sex or offer a coherent theory of how long-standing statutes like Title VII should be interpreted over …

A Comparison Of Gender-Based Violence Laws In Canada: A Report For The National Action Plan On Gender-Based Violence Working Group On Responsive Legal And Justice Systems, Jennifer Koshan, Janet Mosher, Wanda Wiegers

Commissioned Reports, Studies and Public Policy Documents

This report undertakes a comparison of laws related to gender-based violence across Canada with a view to identifying promising practices. We use the definition of gender-based violence from the United Nations as our frame, analyzing laws relating to “any act of gender-based violence that results in, or is likely to result in, physical, sexual, or mental harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.” While the UN definition includes both intimate partner violence and sexual violence, our focus is largely on violence in the …

Intersectionality And Accessibility To Social Services, Nora Khuder

Thinking Matters Symposium

In times of a crisis the intersectionality of sex, class, and ability creates a vulnerable population. Many available “resources'' are exhausted, due to high demand. Intersectionality signifies the impact of multiple intersecting identities in society as a direct correlation to the specific and unique barriers of marginalized groups. Resources are currently limited due to the lack of representative data. Although many studies have been conducted, many researchers have failed to capture the need of social services in rural areas.

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

Deodand, Brian L. Frye

Seattle University Law Review Online

Deodands are a delightful example of a common law doctrine that caused something to happen: the Crown was enabled to tax tortfeasors. But not in a way anyone expected at the time or anyone understands today. Look on their logic and despair. You’ll never figure it out, no matter how hard you try. And that’s what makes them so lyrical. The concept of the deodand is beautiful even though we can’t understand it. Or rather, it’s beautiful because we can’t understand it. If we understood deodands, surely they would be as prosaic as life insurance and conceptual art.

In 1964, …

Death-By-Incarceration In Illinois, Joseph Dole

Northwestern Journal of Law & Social Policy

No abstract provided.

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Trade War, Ppe, And Race, Ernesto A. Hernandez-Lopez

Northwestern Journal of Law & Social Policy

Tariffs on Personal Protective Equipment (PPE), such as face masks and gloves, weaken the American response to COVID. The United States has exacerbated PPE shortages with Section 301 tariffs on these goods, part of a trade war with China. This has a disparate impact felt by minority communities because of a series of health inequity harms. COVID’s racial disparity appears in virus exposure, virus susceptibility, and COVID treatments. This Article makes legal, policy, and race-and-health arguments. Congress has delegated to the United States Trade Representative expansive authority to increase tariffs. This has made PPE supplies casualties of the trade war. …

Abandoning The Subjective And Objective Components Of A Well-Founded Fear Of Persecution, Grace Kim

Northwestern Journal of Law & Social Policy

Current asylum law requires that asylum seekers prove that they have a “well-founded fear of persecution.” However, a “well-founded fear”—the evidentiary standard in asylum cases—has remained ambiguous and difficult to apply in asylum cases. In Cardoza-Fonseca, the Supreme Court held that an asylum seeker can establish a well-founded fear with less than a 50% probability of future persecution. Although the Supreme Court sought to clarify the meaning of a well-founded fear, the decision has complicated the evidentiary standard by implying that it consists of two parts: the subjective component and objective component. The “subjective” component—the asylum seekers’ subjective fear …

Pandemic Emotions: The Good, The Bad, And The Unconscious —Implications For Public Health, Financial Economics, Law, And Leadership, Peter H. Huang

Northwestern Journal of Law & Social Policy

Pandemics lead to emotions that can be good, bad, and unconscious. This Article offers an interdisciplinary analysis of how emotions during pandemics affect people’s responses to pandemics, public health, financial economics, law, and leadership. Pandemics are heart-breaking health crises. Crises produce emotions that impact decision-making. This Article analyzes how fear and anger over COVID-19 fueled anti-Asian and anti-Asian American hatred and racism. COVID-19 caused massive tragic economic, emotional, mental, physical, and psychological suffering. These difficulties are interconnected and lead to vicious cycles. Fear distorts people’s decision readiness, deliberation, information acquisition, risk perception, and thinking. Distortions affect people’s financial, health, and …