Law and Society Commons^™

The Supreme Court And The Future Of Affirmative Action, Vinay Harpalani

Faculty Scholarship

On October 1, the U.S. District Court for the District of Massachusetts issued its much anticipated ruling in Students for Fair Admissions (SFFA) v. Harvard. The big question is whether the U.S. Supreme Court will grant certiorari, since SFFA is sure to appeal subsequently to the High Court. However, there are a few reasons why the Justices might deny certiorari.

The Social Costs Of Dividends And Share Repurchases, J.B. Heaton

The Journal of Business, Entrepreneurship & the Law

A long-held view in the academy is that shareholders are "residual claimants” in the sense that shareholders are paid in full only after the corporation pays its creditors. The reality on the ground is far different. Corporations give assets away to their shareholders long before they have satisfied creditors, both voluntary contract creditors and involuntary tort creditors. In particular, existing U.S. corporate and voidable transfer laws allow corporations to pay dividends and make share repurchases up to the point where the corporation is insolvent or nearly so. Voluntary creditors can limit dividends and share repurchases by contract, but involuntary creditors …

Perpetual Affordability Covenants: Can These Land Use Tools Solve The Affordable Housing Crisis?, Elizabeth Elia

Faculty Scholarship

Approximately 3.8 million privately-owned residential housing units in America today contain affordability covenants recorded in their chains of title. State and local agencies and the District of Columbia use these covenants to ensure that publicly-subsidized properties are actually used to provide affordable housing. With rents at all-time highs and stagnant wages, the affordable housing crisis has reached a fever pitch. House Democrats are proposing billions more in housing subsidy. To the extent those funds subsidize privately-owned housing development they, too, will be secured by affordability covenants. In response to this crisis, a new trend in high cost markets is to …

Brief Of Amici Curiae 116 Law Librarians And 5 Law Library Organizations In Support Of Respondent, Georgia V. Public.Resource.Org, Inc., No. 18-1150 (U.S. Oct. 16, 2019), Michelle M. Wu

U.S. Supreme Court Briefs

Due process and the rule of law require that the public has meaningful access to “the law.” Every major modern society since the Greeks has recognized the importance of this principle. Roscoe Pound, Theories of the Law, 22 Yale L.J. 114, 117 (1912).

In the United States, “the law” largely comes from appellate courts, legislatures, and administrative agencies who have been granted rule-making authority. As every first year law student learns, those law-making bodies have developed highly specific methods for communicating their pronouncements of law through official publications, such as the Official Code of Georgia Annotated (“OCGA”).

Those specific methods …

The Noisy "Silent Witness": The Misperception And Misuse Of Criminal Video Evidence, Aaron M. Williams

Indiana Law Journal

This Note examines recent developments in the research of situational video evidence biases. Part I examines the current and growing body of psychological research into the various situational biases that can affect the reliability of video evidence and the gaps in this research that require further attention from researchers and legal academics. Because these biases do not “operate in a vacuum,” Part I also examines some of the recent and exciting research into the interaction between situational and dispositional biases. Part II examines the development of camera and video processing technology and its limitations as a means of mitigating such …

Back To The Future: The Revival Of Pennoyer In Personal Jurisdiction Doctrine And The Demise Of International Shoe, Robert M. Bloom, Janine A. Hanrahan

San Diego Law Review

This Article argues that the Court’s recent decisions have effectively revived Pennoyer’s focus on physical presence and status, at the expense of the fairness and contact considerations set forth in International Shoe, as the bases for asserting personal jurisdiction. Part II details the jurisdictional analysis under both Pennoyer and International Shoe. Part III discusses the evolution of personal jurisdiction doctrine under International Shoe. Part IV demonstrates that the Court’s recent decisions have revitalized Pennoyer’s territorially based regime, and consequently diminished the thrust of International Shoe.

Measles And Misrepresentation In Minnesota: Can There Be Liability For Anti-Vaccine Misinformation That Causes Bodily Harm?, Dorit Rubinstein Reiss, John Diamond

San Diego Law Review

Balancing protecting and compensating victims of harmful fake news and protecting freedom of speech and the information flow is both important and challenging. Vaccines are one area where misinformation can directly cause harm. When misrepresentation leads people to refuse vaccines, disease outbreaks can happen, causing harm, even deaths, and imposing costs on the community. The tort of negligent misrepresentation that causes physical harm appears a custom-made remedy for those affected. However, courts—appropriately— narrowed the tort to protect freedom of speech and the flow of information. This Article uses an especially egregious example of anti-vaccine misrepresentation to examine the boundaries of …

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

Law School News: Rwu Law Marine Programs Included In $1.2m Aquaculture Research Grant 10-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Supreme Court And Refugees At The Southern Border: 5 Questions Answered, Karla M. Mckanders

Vanderbilt Law School Faculty Publications

I sat in a small room in Tijuana, Mexico with a 13-year-old indigenous Mayan Guatemalan girl.

She left Guatemala after a cartel murdered her friend and threatened to rape her. Her mother wanted her to live and believed the only way for her to survive was to send her daughter alone to the U.S., to apply for asylum Now she was alone and stuck in Mexico. Every morning, the Guatemalan girl, along with other asylum seekers, would frantically gather at the Tijuana-U.S. border where they waited to hear their name or their number called so the Mexican government could escort …

Professional Resistance Of Lawyers: Defending Human Rights And The Rule Of Law In Hong Kong After Umbrella Movement, Yan-Ho Lai

Biennial Conference: The Social Practice of Human Rights

Purpose: Against the backdrops of deteriorating human rights protections and the rule of law after the unprecedented Umbrella Movement in Hong Kong, this paper investigates the roles and impacts of mobilised legal profession in resisting China’s authoritarian rule over and defending domestic human rights regime in Hong Kong. This paper argues that, despite the legal profession of Hong Kong becomes further divided under the political and economic statecraft, lawyer activism as a professional resistance becomes a new force to resist the political intervention of the rule of law as well as deepening the cultural and institutional foundations of the rule …

Innovative Collaboration To Further Community Self-Determination, Matthew Currie, Amaha Sellassie

Biennial Conference: The Social Practice of Human Rights

The built urban environment is the product of more than a century of policy decisions that have both intentionally discriminated and have had the effect of discriminating, against African Americas, immigrants, the work class, low income individuals and other undesirables. While more than fifty years have passed since the passage of civil rights legislation in the United States, individuals in today’s cities are living out our discriminatory legacy.

In Dayton, Ohio, a new movement has risen from the community to disrupt the legacy of de jure and de facto discrimination by the collaborative efforts of the impactive individuals, neighborhood leaders, …

Law School News: Meet Rwu Laws New Director Of Diversity, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Deep Fakes: Preserving Truth & Human Rights In An Era Of Truth Decay, Virginia Kozemczak

Biennial Conference: The Social Practice of Human Rights

Lawmakers, technology companies, and the general public are increasingly concerned about the prevalence of “deep fake” videos. Often shared on social media platforms, these digitally altered videos are made possible with recent advances in machine learning and artificial intelligence.

Although altered and faked media content is not necessarily a new issue, images and videos can now be altered quickly, cheaply, and more convincingly than ever before. An underlying concern is that platforms will be overwhelmed with believable deep fakes, leaving Internet users struggling to discern fact from fiction. Yet a future in which no one call tell what is real …

The Campaign To Impeach Justice William O. Douglas; Nixon, Vietnam, And The Conservative Attack On Judicial Independence, Joshua E. Kastenberg

Faculty Book Display Case

The politics of division and distraction, conservatives’ claims of liberalism’s dangers, the wisdom of amoral foreign policy, a partisan challenge to a Supreme Court justice, and threats to the constitutionally mandated balance between the three branches of government: however of the moment these matters might seem, they are clearly presaged in events chronicled by Joshua E. Kastenberg in this book, the first in-depth account of a campaign to impeach Supreme Court justice William O. Douglas nearly fifty years ago.

On April 15, 1970, at President Richard Nixon’s behest, Republican House Minority Leader Gerald Ford brazenly called for the impeachment of …

Systems Of Crime And Castigation: A Reevaluation Of The Punishment Bureaucracy, Lia Pikus

Independent Study Project (ISP) Collection

Models of reform within the criminal justice system often operate from a top-down perspective, affecting change on surface levels to attempt to better the system. One example of such a reform is Scotland’s Presumption Against Short Sentences. These kinds of changes, as I will illustrate in this paper, both fall short of achieving genuine change and often produce negative side effects. However, a few countries have made deeper changes to the ways their systems both view and handle crime and punishment; one such system is Norway. Through rehabilitation and restorative justice, Norway has greatly decreased rates of recidivism, increased social …

Law Versus Action: How Five Cape Town Organizations Are Combating High Rates Of Sexual Assault And The Failure Of Progressive Sexual Offences Legislation, Anna Tinker

Independent Study Project (ISP) Collection

This Independent Study Project (ISP) seeks to understand the work various Cape Town organizations are doing to help survivors of sexual assault gain access to justice. Previous research finds that social norms defining masculinity as well as rape myths and stereotypes lead to the high levels of gender-based violence (GBV) in South Africa. This research led to my hypothesis that organizations fighting GBV would target these norms to help survivors access the justice system that so frequently ignores them. Eight organizations were contacted requesting an interview to discuss their work and two agreed to participate. Participants were asked to discuss …

10th Annual Pegalis Law Group Health Law Colloquium, New York Law School

Health Law Society Publications

Federalism, ERISA, and State Single-Payer Health Care. How to Make Sense of Future Legislation and the Impact on Population Health

(CLE Presentation on Oct. 24th 2019)

Moderator:

Adam S. Herbst, Esq., Senior Vice President, Chief Legal and Strategic Planning Officer of Blythedale’s Children Hospital; Adjunct Professor at New York Law School teaching Health Law and Policy; Co-director of the NYLS Health Law and Patient Safety Project; Lecturer, Mailman School of Public Health at Columbia University

Panelists:

Honorable Richard N. Gottfried, New York State Assembly (District 75) & Chairman of the Assembly's Committee on Health and Sponsor of …

Talking About Black Lives Matter And #Metoo, Bridget J. Crawford, Linda S. Greene, Lolita Buckner Inniss, Mehrsa Baradaran, Noa Ben-Asher, I. Bennett Capers, Osamudia R. James, Keisha Lindsay

Elisabeth Haub School of Law Faculty Publications

This essay explores the apparent differences and similarities between the Black Lives Matter and the #MeToo movements. In April 2019, the Wisconsin Journal of Gender, Law and Society hosted a symposium entitled “Race-Ing Justice, En-Gendering Power: Black Lives Matter and the Role of Intersectional Legal Analysis in the Twenty-First Century.” That program facilitated examination of the historical antecedents, cultural contexts, methods, and goals of these linked equality movements. Conversations continued among the symposium participants long after the end of the official program. In this essay, the symposium’s speakers memorialize their robust conversations and also dive more deeply into the phenomena, …

The Post-Truth First Amendment, Sarah Haan

Indiana Law Journal

Post-truthism is widely viewed as a political problem. This Article explores posttruthism as a constitutional law problem, and argues that, because post-truthism offers a normative framework for regulating information, we should take it seriously as a basis for law.

In its exploration of the influence of post-truth ideas on law, the Article focuses on the compelled speech doctrine. When the State mandates disclosure, it pits the interests of unwilling speakers against the interests of listeners. In the twenty-first century, speakers who are targeted by mandatory disclosure laws are often organizational actors with informational advantages, such as corporations. Listeners who stand …