Law and Society Commons^™

Infrastructural (Dis)Entitlement: Tactics Of Dispossession On The Critical Minerals Frontier, Dayna Nadine Scott

Articles & Book Chapters

In Ontario’s far north, settler state authorities and extractive firms are engaged in coordinated tactics to gain ground amid a polarization in the positions of Indigenous leadership. Alongside a surging resistance, we also witness a resigned acceptance of critical minerals mining by some First Nations. Drawing on years of community engaged research, I detail here the contemporary tactics of “infrastructural (dis)entitlement:” in this dynamic, infrastructural needs are both denied and fulfilled to differential effect. Infrastructural disentitlement is passive; it is not necessarily deliberate, nor is it politically or institutionally organized. But infrastructural entitlement is strategic and aggressive: Indigenous prosperity and …

Antisemitic Terrorism, J. Richard Broughton

Lewis & Clark Law Review

Recent surges in antisemitic activity—and antisemitic violence, in particular—have led increasingly to conversations about the connections between antisemitism and domestic terrorism. While the nexus between antisemitic violence and domestic terrorism has long been expressed in rhetorical terms, its connection in legal terms—notably, federal criminal law—has been more attenuated. This Article explores that connection and finds that existing federal criminal law requires rethinking: it is underinclusive and thus inadequate to fully capture and punish the threats posed by today’s domestic violent extremism, and particularly antisemitic violence. The Article surveys recent federal prosecution in cases involving actual or threatened antisemitic violence, and …

Voices Of The Denied, Heather Spencer

Lewis & Clark Law Review

This Note explores the impact of lengthy prison sentences on rehabilitation and the need for second chances. While incarceration serves purposes such as retribution and incapacitation, it fails to promote rehabilitation and deterrence. Oregon should do more in providing opportunities for early release and rehabilitation for individuals serving lengthy sentences. The Note features interviews with incarcerated individuals who share their thoughts and experiences. Overall, this Note sheds light on the importance of second chances and on the need for reform in the criminal justice system to ensure that prisoners are not denied the chance to lead productive and fulfilling lives.

Reflections On Race, The Constitution, And Growing Up In The Segregated South, Walter Dellinger

Faculty Scholarship

The following passages are excerpted from the manuscript entitled Balcony Reserved for White Spectators that Walter Dellinger was writing at the time of his death in February 2022. These particular excerpts were chosen first and foremost because they demonstrate Dellinger’s unwavering and lifelong commitment to the pursuit of racial justice. But they were also chosen because they illustrate the array of talents that Dellinger brought to his work—his encyclopedic knowledge of constitutional history, his powers of legal analysis and persuasion, his attunement to the latent meanings in popular culture, and last, but certainly not least, his spellbinding storytelling.

Note: The …

Balancing Interests: Ai, Business & Human Rights, And The Legal Landscape In An Era Of Disruption, Jena Martin, Ritu Narula

Faculty Articles

On October 30, 2023, the Biden Administration issued a sweeping executive order espousing a policy to advance the development and use of artificial intelligence ("Al") while also establishing safeguards across the federal government. The Executive Order marked the U.S. government's largest move forward related to the regulation of Al. The Order also represents the government's latest effort to advance equity, privacy, and national security in the use of AI systems. Moreover, the Order comes at a time when governments around the world are wrestling with the impact of AI and its disruptive effect, not just on markets, but on society …

The Unequal Distribution Of Social Risk For Black Men Across The Life-Span. A Novel Framework., Waleed Y. Sami

Adultspan Journal

This conceptual overview offers a comprehensive overview of systemic pathways that negatively impact the mental health of Black Men throughout their lives. Our argument highlights the importance for counselors and mental health professionals to utilize a thorough social risk assessment that considers these pathways in order to effectively address the mental health needs of Black Men while fostering positive working relationships. This overview strongly advocates for the use of context and structural determinants when evaluating mental health symptoms. Without an appropriate understanding of social risk and determinants, counselors may inadvertently perpetuate disparities by decontextualizing symptomology, and reproducing racist discourse.

Upstream Lawyering: A Framework For Poverty Law, Kate Mitchell

Faculty Publications & Other Works

This Article introduces an upstream lawyering framework within the context of the history of poverty law and impact lawyering. While there have been several theories promoting systems change work, the upstream framework, stemming from public health theories and championed by medical-legal partnerships, offers a model for promoting and informing systemic policy. Using the public health concept of upstreaming, this Article explores lawyering practices that can be utilized to address the root causes of social and legal drivers of health inequity, poverty, and oppression. Part I of this Article provides a refreshed overview of the history of poverty law and civil …

The Importance Of Policing, Stephen Rushin

Faculty Publications & Other Works

This Article argues that, if effectively regulated, policing represents a fundamentally important social institution that advances the community interest in public safety, justice, equality, and the rule of law.

In recent years, a significant and growing body of legal scholarship has called for the shrinking of police responsibilities, the defunding of police budgets, or the complete abolition of local police departments. A countervailing body of scholarly literature has questioned the wisdom of some of these proposals, arguing that they could unintentionally make policing worse or have unintended public safety effects.

This Article enters this debate by affirmatively defending the importance …

Expecting Medication Surveillance, Jennifer D. Oliva

Fordham Law Review

In response to federal financial incentives and mandates, all fifty states, the District of Columbia, and three U.S. territories administer electronic prescription drug monitoring programs (PDMPs). Federal and state policymakers justified the implementation and enhancement of ubiquitous prescription drug monitoring by contending that expansive state drug surveillance was a necessary weapon in the war against the American drug overdose crisis. As is often the case with tools designed for law enforcement surveillance, however, PDMPs have proven susceptible to mission creep. Although pioneer PDMPs were paper-based systems that limited their surveillance to a narrow class of heavily regulated controlled substances, modern …

The Violence Of Free Speech And Press Metaphors, Erin C. Carroll

Washington and Lee Law Review

Today, our free speech marketplace is often overwhelming, confusing, and even dangerous. Threats, misdirection, and lies abound. Online firestorms lead to offline violence. This Article argues that the way we conceptualize free speech and the free press are partly to blame: our metaphors are hurting us.

The primary metaphor courts have used for a century to describe free speech—the marketplace of ideas—has been linked to violence since its inception. Originating in a case about espionage and revolution, in a dissent written by Oliver Wendell Holmes, a thrice-injured Civil War veteran, the marketplace has been described as a space where competition …

Comment: Protecting Childhood Independence And The Families Who Embrace It, David Pimentel

Washington and Lee Law Review

The legal problem of how to give parents flexibility and how to give children independence cuts to the core of some of our most sacred values: (1) how we raise our kids in this society, (2) the degree to which parents are free to raise their children as they see fit, and (3) the extent to which the state gets to substitute its own judgment for that of parents. Incursions into the family, and disruptions of family security and integrity, should be the exception rather than the rule. Schick-Malone joins a small group of legal scholars who are not content …

Institutional Investors As Climate Activists: Curb Your Enthusiasm, Markus Lieberknecht

American University Business Law Review

Institutional investors control a sizable portion of all votes in major public corporations. In contrast to their traditional deference to management, some institutional investors have begun to lobby portfolio companies for reductions in greenhouse gas (“GHG”) emissions because even broadly diversified portfolios are vulnerable to the systemic risks associated with climate change. In theory, this logic could align the interests of diversified investors and those of society at large, resulting in welfare-enhancing climate activism. However, because of the chasm between the portfolio-level goal of GHG reduction and the company-level goal of value maximization, climate activism by institutional investors is bound …

Cultural Property: “Progressive Property In Action”, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Cultural property law fulfills many of the normative and jurisprudential goals of progressive property theory. Cultural property limits the normal prerogatives of owners in order to give legal substance to the interests of the public or of specially protected non-owners. It recognizes that preservation of and access to heritage resources advance public values such as cultural enrichment and community identity. The proliferation of cultural property laws and their acceptance by courts has occurred despite a resurgent property fundamentalism embraced by the Supreme Court. Thus, this Article seeks to explicate the category of cultural property, its fulfillment of progressive theory, and …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

The Necessity Of Restorative Justice Within Prisons, Sarah J. Pietrowski

Law Student Publications

In the era of mass incarceration, it is vital to reexamine the prison system to identify not only its weaknesses, but its successes. Successes in correctional systems are often measured by a reduction in recidivism rates, and in states where restorative justice practices have been implemented in prisons, recidivism rates have exhibited a significant decrease, affirming the necessity of restorative justice practices in prisons. Additionally, restorative justice not only helps victims of crime feel that their voices are heard and that the one who harmed them will experience personal growth, but it is preferred by the majority of victims as …

American Star Chamber: Online Misinformation, Government Intervention, And The Intellectual Matrix Of The First Amendment, Emily E. Burton

Catholic University Journal of Law and Technology

Just as monarchs and clerical authorities struggled to respond to seditious and heretical writings enabled by the invention of the printing press, twenty-first century governments are experiencing a similar information revolution as a result of the digital age and a rising tide of what the United States has labeled online misinformation. Like the printing press, the Internet has enabled the spread of information at an exponentially lower cost and an exponentially higher speed as it extends the ability to publish thoughts and opinions to an increasingly diverse array of individuals. Although this was largely celebrated during the first two decades …

Steps Toward Equality, Gayatri Buchta

Roger Williams University Law Review

No abstract provided.

Corporate Human Trafficking, Carliss Chatman

Faculty Journal Articles and Book Chapters

The utilization of the internet for human trafficking and sexual exploitation is not an issue that can be tackled one corporation, one country, or one market sector at a time. It is an international problem that requires broader solutions that can protect and provide remedy to victims without chilling the freedom of speech and freedom of contract of consensual parties engaged in sex work. Recent changes to laws related to human trafficking have strengthened the power of litigation, authorizing civil lawsuits against perpetrators of human trafficking that may include third-parties who knowingly benefit from trafficking conduct—such as internet providers, business …

Defiance, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Mass public defiance of legal authority has a lengthy history in America, extending back to the nation’s founding. Indeed, the very existence of the United States is the result of the ultimate act of defiance against legal authority—the revolution against Great Britain. It hardly stopped there, however. Defiance of legal authority has persisted from the outset to the present. Examples include Shays’ Rebellion, defiance of the Supreme Court’s decisions in M’Culloch v. Maryland and the Cherokee territory cases; the Nullification Crisis; slave revolts; defiance of the fugitive slave laws; resistance to the Supreme Court’s decision in the Dred Scott case; …