Law and Society Commons^™

I'Ve Got My Mind Made Up: How Judicial Teleology In Cases Involving Biologically Based Evidence Violates Therapeutic Jurisprudence, Michael L. Perlin

Articles & Chapters

Courts are, and have always been, teleological in cases involving litigants with mental disabilities. By “teleological,” I refer to outcome-determinative reasoning; social science that enables judges to satisfy predetermined positions is privileged, while data that would require judges to question such ends are rejected. In this context, judges treat biologically-based evidence in criminal cases involving questions of mental disability law so as to conform to their pre-existing positions. This applies to cases involving questions of the death penalty, the insanity defense, civil competency, incompetency to stand trial, questions related to malingering, and criminal sentencing, and more.

In this paper, I …

The Post-Production Costs Issue In Texas And Louisiana: Implications For The Fate Of Implied Covenants And Pro-Lessor Clauses In The Shale Era Oil And Gas Lease., Laura H. Burney

St. Mary's Law Journal

This Article discusses the implications of Heritage Resources, Hyder, and several Louisiana cases on the “post-production costs” issue in gas royalty clauses, as well as the fate of implied covenants in the shale era. To better understand that issue, this Article first provides a background on the interaction of express lease clauses and the doctrine of implied covenants. This discussion reveals that implied covenants are relegated to a minor role in light of extensive express clauses in Shale Era leases because courts frequently view express or “plain” terms as barring implied covenants. The problem, however, as commentators have noted—particularly regarding …

The Executive Right To Lease After Kcm Financial Llc V. Bradshaw And A Louisiana Solution To A Texas Problem., Christopher S. Kulander

St. Mary's Law Journal

Abstract Forthcoming.

Navigating The Post-Shelby Landscape: Using Universalism To Augment The Remaining Power Of The Voting Rights Act, Jesús N. Joslin

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

¡Que Viva The Scholar!, Bill Piatt

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Network Investigation Techniques: Government Hacking And The Need For Adjustment In The Third-Party Doctrine, Eduardo R. Mendoza

St. Mary's Law Journal

Modern society is largely dependent on technology, and legal discovery is no longer limited to hard-copy, tangible documents. The clash of technology and the law is an exciting, yet dangerous phenomena; dangerous because our justice system desperately needs technological progress. The clash between scientific advancement and the search for truth has recently taken an interesting form—government hacking. The United States Government has increasingly used Network Investigation Techniques (NITs) to target suspects in criminal investigations. NITs operate by identifying suspects who have taken affirmative steps to conceal their identity while browsing the Internet. The hacking technique has become especially useful to …

First They Came For The Child Pornographers: The Fbi's International Search Warrant To Hack The Dark Web, Zoe Russell

St. Mary's Law Journal

Abstract forthcoming.

Brazil's Olympic-Era Anti-Corruption Reforms, Andrew B. Spalding

Law Faculty Publications

A country once renowned for glorifying corruption now leads what may be the furthest-reaching anti-corruption investigation in history. Brazil, once typified by its "Brazilian jeitinho" way of creatively navigating social problems,' now executes "Operation Car Wash," bringing down political and business leaders by the dozens. So too has Brazil's Congress adopted a series of dramatic, and effective, new anti-corruption laws, in response to public outcries for reform. It is deeply ironic, but not at all coincidental, that Brazil concurrently hosted the Summer Olympics. This paper chronicles the extraordinary series of events that connect - in a line that is straight …

Cracking The Code: An Empirical Analysis Of Consumer Bankruptcy Outcomes, Sara Sternberg Greene, Parina Patel, Katherine M. Porter

Faculty Scholarship

Chapter 13 is a cornerstone of the bankruptcy system. Its legal requirements strike a balance between the rehabilitation of debtors through keeping assets and reducing debt, and the repayment of creditors over a period of years. Despite the accolades from policymakers, the hard truth is that the majority of the half-million families each year that seek refuge in chapter 13 bankruptcy will not achieve the debt relief of a discharge. Prior research found that those who drop out of bankruptcy quickly endure the serious financial struggles that they had before bankruptcy—now even worse off for having spent thousands of dollars …

Fostering Legal Cynicism Through Immigration Detention, Emily Ryo

Faculty Scholarship

Every year, tens of thousands of noncitizens in removal proceedings are held and processed through an expanding web of immigration detention facilities across the United States. The use of immigration detention is expected to dramatically increase under the Trump administration’s mass deportation policy. I argue that this civil confinement system may serve a critical socio-legal function that has escaped the attention of policymakers, scholars, and the public alike. Using extensive original data on long-term immigrant detainees, I explore how immigration detention might function as a site of legal socialization that helps to promote or reinforce widespread legal cynicism among immigrant …

A Different Class Of Care: The Benefits Crisis And Low-Wage Workers, Trina Jones

Faculty Scholarship

When compared to other developed nations, the United States fares poorly with regard to benefits for workers. While the situation is grim for most U.S. workers, it is worse for low-wage workers. Data show a significant benefits gap between low-wage and high-wage in terms of flexible work arrangements (FWAs), paid leave, pensions, and employer-sponsored health-care insurance, among other things. This gap exists notwithstanding the fact that FWAs and employment benefits produce positive returns for employees, employers, and society in general. Despite these returns, this Article contends that employers will be loath to extend FWAs and greater employment benefits to low-wage …

Repugnance Management And Transactions In The Body, Kieran Healy, Kimberly D. Krawiec

Faculty Scholarship

Researchers have made progress in understanding the role of repugnance in transactions involving the human body. Yet, often, the focus remains on exchange between individuals and how they mentally cope (or not) with repugnance. But these exchanges also entail a “vertical” dimension in which organizational and state actors both directly manage repugnance and also limit the repugnance management tools available to the marketplace. Analyzing repugnance and its management as an organizational and regulatory problem, in addition to an individual one, suggests that a single, harmonized system of exchange in bodily goods is unlikely to emerge with the passage of time.

The Criminalization Of Walking, Michael Lewyn

Scholarly Works

The simple act of walking is sometimes criminalized in the United States. Anti-jaywalking statutes and ordinances—originally motivated by auto-industry lobbyists in the 1920s—call for fines and, sometimes, imprisonment for crossing the street. Additionally, some localities have interpreted statutes against “child neglect” to encompass a parent’s decision to let their kid walk outside alone. The result of this criminalization? Such policies have reduced pedestrian liberty, increased automobile traffic and pollution, and created a disincentive for physical activity in the midst of an obesity and diabetes epidemic. In addition to discussing these effects, this Article argues that the purported safety benefits of …

Reproductive Selection Bias, Lauren R. Roth

Scholarly Works

Decades after the advent of assisted reproductive technology (ART) that allows prospective parents to deselect embryos with grave genetic illnesses – a procedure called preimplantation genetic diagnosis (PGD) – it remains a tool largely of upper class whites. In the wake of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, I argue that the time has come to focus on access in this area of reproductive rights. The next logical step is to rebut the presumption that reproductive liberty is only a negative right that prevents government interference with decisions about whether and how to procreate or not …

Human-Centered Civil Justice Design, Victor D. Quintanilla

Articles by Maurer Faculty

This Article introduces a novel approach to improving the civil justice system, referred to as human-centered civil justice design. The approach synthesizes insights and practices from two interdisciplinary strands: human-centered design thinking and dispute system design. The approach is rooted in human experiences with the processes, systems, people, and environments that members of the public encounter when navigating the civil justice system and how these experiences interact with the entangled web of hardships and legal adversities they face in the everyday.

Human-centered civil justice designers empathize with the intended beneficiaries and stakeholders of the civil justice system, seeking to deeply …

Does The Threat Of Gentrification Justify Restrictive Zoning?, Michael Lewyn

Scholarly Works

Historically, progressives have opposed restrictive zoning, arguing that by restricting the housing supply to high-end housing, zoning reduces the supply of housing available to lower-income Americans. But recently, some progressives have suggested that new market-rate housing facilitates gentrification and displacement of lower-income renters. This article critically examines that theory.

Every Dollar Counts: In Defense Of The Obama Department Of Education's "Supplement Not Supplant" Proposal, James S. Liebman, Michael Mbikiwa

Faculty Scholarship

Evidence compellingly demonstrates – as Congress famously recognized in Title I of the Elementary and Secondary Education Act of 1965 (ESEA) – that children from economically disadvantaged backgrounds require more educational resources than other students. Yet, a half century later, many school districts still spend less money on high-poverty schools than on more privileged schools. In 2011, a study by the U.S. Department of Education discovered that nationwide, more than forty percent of schools eligible for Title I funding based on their high-poverty status receive less state and local funding for instructional and other personnel costs than non-Title I schools …

Adjudicating Death: Professionals Or Politicians?, Stephen J. Choi, Mitu Gulati

Faculty Scholarship

Variation exists in how death examinations take place in the United States. In some counties and states decisions about autopsies and the issuance of death certificates are made by a local coroner who often needs nothing more than a high school diploma to run for election to the job of coroner. In other counties and states, an appointed medical professional performs the death examination. We provide preliminary tests of the difference in performance between death examination offices run by appointed medical professionals compared with elected coroners. We find that death examiner offices in elected coroner states are less likely to …

From Territorial To Monetary Sovereignty, Katharina Pistor

Faculty Scholarship

State sovereignty is closely intertwined with, but not limited to, control over territory and people. It has long been recognized that control over monetary affairs is a critical part of genuine sovereignty. In this Article, I go a step further and argue that the relevance and importance of territorial versus monetary sovereignty has shifted in favor of the latter. This shift goes hand in hand with the rise of credit-based financial systems. Such systems depend, in the last instance, on backstopping by an entity with control over its own money supply and no binding survival constraints. Only states with monetary …

Pressing Charges, Zohra Ahmed

Scholarly Works

There is a prosecutor in Manhattan Criminal Court who wears a Black Lives Matter button on the job. One day, a group of public defenders, myself included, found him alone in a courtroom where only quality of life offenses are heard, authorizing plea bargains more lenient than the standard recommendations of the New York County District Attorney’s office: reducing fines, reducing community service, even avoiding convictions. The button seemed a puzzling appropriation for a prosecutor. At the height of the Black Lives Matter movement in 2015, after all, public defenders had worn the same pins in court only to face …