Law and Society Commons^™

Tax Enforcement At The Intersection Of Social Welfare And Vulnerable Populations, Michelle Lyon Drumbl

Scholarly Articles

This Essay engages with Professor Bernadette Atuahene’s theory of stategraft in the context of tax administration and the role that the Internal Revenue Service (IRS) plays in implementing certain social welfare benefits, including the Earned Income Tax Credit (EITC). Specifically, it considers whether the IRS’s denials of the EITC to those who might otherwise be eligible and entitled to it constitutes a wrongful taking by the state or a violation of basic human rights. While this Essay concludes that denials of the EITC generally do not fit within Atuahene’s definition of stategraft, it highlights two particularly problematic concerns with modern …

The Futures Of Law, Lawyers, And Law Schools: A Dialogue, Benjamin H. Barton, Sameer M. Ashar, Michael J. Madison, Rachel F. Moran

Scholarly Works

On April 19 and 20, 2023, Professors Bernard Hibbitts and Richard Weisberg convened a conference at the University of Pittsburgh School of Law titled “Disarmed, Distracted, Disconnected, and Distressed: Modern Legal Education and the Unmaking of American Lawyers.” Four speakers concluded the event with a spirited conversation about themes expressed during the proceedings. Distilling a lively two days, they asked: what are the most critical challenges now facing US legal education and, by extension, lawyers and the communities they serve? Their agreements and disagreements were striking, so much so that Professors Hibbitts and Weisberg invited those four to extend their …

‘Resisting’ While Collaboratively Informing In Communist Czechoslovakia, Mark A. Drumbl, Barbora Holá

Scholarly Articles

Informers in the service of state secret police collaborate with authorities and thus contribute to the power of repressive regimes. Through a case-study of Communist Czechoslovakia (1945–1989)—and drawing from secret police archives– this article presents selected stories of informers who in one way or another also ‘resisted’ collaboration with the Czechoslovak State Security (StB). By doing so, we try to further complexify the notions of ’everyday resistance’, on the one hand, and ‘collaboration’ on the other. We demonstrate that resistant acts, similar to collaborative acts, can be apolitically devoid of ideology, highly idiosyncratic, and motivated by private drivers. Informing can …

The Automated Fourth Amendment, Maneka Sinha

Faculty Scholarship

Courts routinely defer to police officer judgments in reasonable suspicion and probable cause determinations. Increasingly, though, police officers outsource these threshold judgments to new forms of technology that purport to predict and detect crime and identify those responsible. These policing technologies automate core police determinations about whether crime is occurring and who is responsible. Criminal procedure doctrine has failed to insist on some level of scrutiny of—or skepticism about—the reliability of this technology. Through an original study analyzing numerous state and federal court opinions, this Article exposes the implications of law enforcement’s reliance on these practices given the weighty interests …

Building A Strong And Diverse Workforce? Consider Indian Preference, In The Private Sector, Carol Mayo Cochran

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

Teaching Critical Use Of Legal Research Technology, Jennifer E. Chapman

Faculty Scholarship

No abstract provided.

Dystopian Dreams, Utopian Nightmares: Ai And The Permanence Of Racism, Chaz Arnett

Faculty Scholarship

This Essay draws connections between Octavia Butler’s Parable series (Parable of the Sower and Parable of the Talents), HBO’s Westworld, and Derrick Bell’s Faces at the Bottom of the Well: The Permanence of Racism to highlight how the reconfiguration and transmutation of race through technological change is facilitated by corresponding shifts in legal doctrine, theory, policy, and practice. It takes the overlapping threads from these three sources, which struggle with the idea of change within larger systems of unavoidable, repetitive destruction, and ties them to the law’s role in helping to shield race through the storms of change …

Dobbs Demands Education: Education As A Fundamental Right Through Substantive Due Process, Wendy Salazar Galvan

Duquesne Law Review

The importance of education cannot be overstated.

Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In …

On Traditionalism In Free Speech Law, R. George Wright

Journal of Legislation

No abstract provided.

Rpl, Crt, & Latcrit: "Finding The 'Me' In The Legal Academy", Roberto L. Corrada

Sturm College of Law: Faculty Scholarship

The idea of a colorblind society and constitution is a dream, not reality. Importantly, the idea of colorblindness has been used to hijack laws and constitutional provisions specifically created to right societal wrongs against minoritized persons, especially Black persons. Take for example, the recent controversy surrounding affirmative action in higher education.The Fourteenth Amendment of the United States Constitution and Title VI of the Civil Rights Act of 1964, both created to secure the rights of Black citizens, have been co-opted to instead deprive them of opportunities. The latest example of this is a Supreme Court case decided this past summer—Students …

Colonial Genocide In Intercultural And Interdisciplinary Perspective / Génocide Colonial Dans Une Perspective Interculturelle Et Interdisciplinaire, John Doyle-Raso, Christophe Davis, Veronica Lockyer, Didar Shwan

Reports

Scholars from diverse cultural and disciplinary backgrounds have made recent contributions to debates about colonial genocide, conceptualizing this issue in widely divergent ways. Yet, most research syntheses regarding colonial genocide are over a decade old and therefore exclude influential research such as prominent government reports. This synthesis focuses on two themes: forms of genocide, and accountability mechanisms. Adopting a transnational approach, it incorporates three case studies – Canada, Namibia, and Rwanda – each differing in terms of its temporal relationships with colonial governments, forms of genocide, and accountability mechanisms.

This project compares debates about multiple forms of genocide in the …

Existential Advocacy: Lawyering For Ai Safety And The Future Of Humanity, John Bliss

Sturm College of Law: Faculty Scholarship

Lawyers have played a central role in a wide range of social movements aiming to provide legal voice to marginalized communities. How might this tradition of social-change lawyering apply to the protection of future generations— a population that cannot advocate for themselves? This is a pressing question in the movement to mitigate “existential risk,” which refers to events that would foreclose a meaningful existence for future generations either through human extinction or irreversible trajectories of human suffering. Over the past two decades, an Oxford-based academic community has been researching existential threats that could arise from emerging technology, such as advanced …

The Theories Of Corporate Pershonhood And Their Three False Choices: Developing A Framework For Corporate Rights, Katharine Jackson

Faculty Articles and Other Publications

Scholars often use the theories of corporate personhood—aggregation theory, concession theory, and real entity theory—to justify corporate rights through analogy. That is, theories of corporate personhood attempt to explain what rights corporations ought to have based on what kind of person the corporation is like. If corporations are like individual human beings, then corporations should enjoy all the same rights that human beings do. If corporations are like states, then corporations should owe the same obligations that a state owes its citizens. Of course, many scholars have addressed the weaknesses of this kind of analogical reasoning. As Dewey argued long …

Dignity Deferred: Supriyo V. Union Of India And Lgbtq Rights, Ryan Thoreson

Faculty Articles and Other Publications

In Supriyo v. Union of India, a five-judge bench of the Supreme Court declined to find that same-sex couples have a right to marry under India’s Constitution. The various opinions in the case repeatedly recognised and affirmed the dignity of lesbian, gay, bisexual, transgender, and queer (LGBTQ) people, but ultimately found that exclusion from civil marriage did not run afoul of constitutional guarantees. In this Essay, I examine the limited understanding of dignity employed by the bench in Supriyo, juxtaposing this with both domestic and comparative LGBTQ rights decisions that embraced a more substantive understanding of dignity. I argue that …

Behind Bars: An Analysis Of The Incarceration Of Black Americans, Tommy A. Valente

Tenor of Our Times

In this study, I attempt to explain the disproportionate incarceration rates which exist in the United States. The black American are incarcerated at a significantly higher rate than any other ethnic group in the country. I hypothesize single parent households and poor public education systems will have significant influences on incarceration rates. For this study I run an OLS regression and use data from all fifty states between 2019-2020. I use seven independent variables in this study: ACGR score, GDP per capita, unemployment rate, percent of births to unmarried women, homicide rate, population, and political party affiliation of a state. …

Christian Domination, Ruth Colker

American University Law Review

It is hard to deny that the United States is a Christian nation despite the First Amendment’s promise that the legislature will not establish a religion. The United States is not a Christian nation merely because of the religious beliefs that many people privately hold. It is a Christian nation, in part, because the courts and legislatures have facilitated that development. Moreover, as this Article will argue, Christian favoritism within the political and legal system has developed in sharp contrast to the treatment of Black people, women, the LGBTQ+ community, and disabled people.

This Article explores the development of Christian …

Charter Schools And Emos: Who's In Charge, Brendan Glynn

American University Business Law Review

Charter schools are a popular sight in the educational field today. For the IRS to consider a charter school a 501(c)(3) organization, nonprofit charter schools must be organized and operated exclusively for educational purposes, meaning purposes relating to the instruction of individuals to improve their capabilities. To be organized for educational purposes, the articles of the organization must limit the entity to educational purposes while also preventing the organization from engaging in substantial noneducational activities. To operate exclusively for educational purposes, an organization’s activities must be substantially in furtherance of educational purposes while also not substantially benefitting a private individual. …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …