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  Subjects -> LAW (Total: 1269 journals)
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LAW (726 journals)                  1 2 3 4 | Last

Showing 1 - 200 of 354 Journals sorted alphabetically
ABA Journal Magazine     Full-text available via subscription   (Followers: 20)
Acta Juridica     Full-text available via subscription   (Followers: 9)
Acta Politica     Hybrid Journal   (Followers: 13)
Acta Universitatis Danubius. Juridica     Open Access  
Actualidad Jurídica Ambiental     Open Access   (Followers: 1)
Adelaide Law Review     Full-text available via subscription   (Followers: 20)
Administrative Law Review     Open Access   (Followers: 43)
Aegean Review of the Law of the Sea and Maritime Law     Hybrid Journal   (Followers: 7)
African Journal of Legal Studies     Hybrid Journal   (Followers: 8)
African Journal on Conflict Resolution     Open Access   (Followers: 18)
Afrilex     Open Access   (Followers: 5)
Air and Space Law     Full-text available via subscription   (Followers: 20)
Akron Law Review     Open Access   (Followers: 4)
Al-Ahkam     Open Access   (Followers: 1)
Alaska Law Review     Open Access   (Followers: 10)
Albany Law Review     Free   (Followers: 6)
Alberta Law Review     Full-text available via subscription   (Followers: 15)
Alternative Law Journal     Hybrid Journal   (Followers: 3)
Alternatives : Global, Local, Political     Hybrid Journal   (Followers: 16)
Amazon's Research and Environmental Law     Open Access   (Followers: 4)
American Journal of Comparative Law     Full-text available via subscription   (Followers: 57)
American Journal of Jurisprudence     Hybrid Journal   (Followers: 18)
American Journal of Law & Medicine     Full-text available via subscription   (Followers: 12)
American Journal of Legal History     Full-text available via subscription   (Followers: 7)
American Journal of Trial Advocacy     Full-text available via subscription   (Followers: 8)
American University Law Review     Open Access   (Followers: 16)
American University National Security Law Brief     Open Access   (Followers: 8)
Amicus Curiae     Open Access   (Followers: 5)
Amsterdam Law Forum     Open Access   (Followers: 9)
Anales de la Cátedra Francisco Suárez     Open Access  
Annales Canonici     Open Access  
Annual Survey of South African Law     Full-text available via subscription   (Followers: 5)
Anuario da Facultade de Dereito da Universidade da Coruña     Open Access  
Anuario de Psicología Jurídica     Open Access   (Followers: 1)
ANZSLA Commentator, The     Full-text available via subscription   (Followers: 4)
Appeal : Review of Current Law and Law Reform     Open Access   (Followers: 1)
Arbitration Law Monthly     Full-text available via subscription   (Followers: 2)
Arbitration Law Reports and Review     Hybrid Journal   (Followers: 13)
Arctic Review on Law and Politics     Open Access   (Followers: 1)
Arena Hukum     Open Access  
Argumenta Journal Law     Open Access   (Followers: 1)
Arizona Law Review     Open Access   (Followers: 4)
Arizona State Law Journal     Free   (Followers: 2)
Arkansas Law Review     Free   (Followers: 6)
Ars Aequi Maandblad     Full-text available via subscription   (Followers: 3)
Art + Law     Full-text available via subscription   (Followers: 12)
Article 40     Open Access   (Followers: 2)
Artificial Intelligence and Law     Hybrid Journal   (Followers: 11)
Asian American Law Journal     Open Access   (Followers: 3)
Asian Journal of Legal Education     Full-text available via subscription   (Followers: 5)
AStA Wirtschafts- und Sozialstatistisches Archiv     Hybrid Journal   (Followers: 5)
Asy-Syir'ah : Jurnal Ilmu Syari'ah dan Hukum     Open Access  
Australasian Law Management Journal     Full-text available via subscription   (Followers: 8)
Australian and New Zealand Sports Law Journal     Full-text available via subscription   (Followers: 8)
Australian Feminist Law Journal     Hybrid Journal   (Followers: 10)
Australian Indigenous Law Review     Full-text available via subscription   (Followers: 17)
Australian Journal of Legal History     Full-text available via subscription   (Followers: 18)
Ave Maria Law Review     Free   (Followers: 3)
Badamai Law Journal     Open Access  
Ballot     Open Access  
Baltic Journal of Law & Politics     Open Access   (Followers: 7)
Bar News: The Journal of the NSW Bar Association     Full-text available via subscription   (Followers: 5)
Behavioral Sciences & the Law     Hybrid Journal   (Followers: 24)
Beijing Law Review     Open Access   (Followers: 7)
Berkeley Journal of Entertainment and Sports Law     Open Access   (Followers: 6)
Berkeley Technology Law Journal     Free   (Followers: 11)
Bioethics Research Notes     Full-text available via subscription   (Followers: 14)
Bond Law Review     Open Access   (Followers: 18)
Boston College Environmental Affairs Law Review     Open Access   (Followers: 8)
Boston College Journal of Law & Social Justice     Open Access   (Followers: 10)
Boston College Law Review     Open Access   (Followers: 18)
Boston University Law Review     Free   (Followers: 11)
BRICS Law Journal     Open Access   (Followers: 1)
Brigham Young University Journal of Public Law     Open Access   (Followers: 8)
Brigham Young University Law Review     Full-text available via subscription   (Followers: 8)
British Journal of American Legal Studies     Open Access   (Followers: 1)
Brooklyn Law Review     Open Access   (Followers: 2)
Bulletin of Legal Medicine     Open Access  
Bulletin of Medieval Canon Law     Full-text available via subscription   (Followers: 3)
C@hiers du CRHIDI     Open Access  
Cadernos de Dereito Actual     Open Access   (Followers: 1)
Cadernos de Informação Jurídica     Open Access  
Cadernos do Programa de Pós-Graduação em Direito - PPGDir./UFRGS     Open Access   (Followers: 1)
Cadernos Ibero-Americanos de Direito Sanitário     Open Access  
Cahiers, Droit, Sciences et Technologies     Open Access  
California Law Review     Open Access   (Followers: 21)
California Lawyer     Free  
California Western Law Review     Open Access   (Followers: 3)
Cambridge Law Journal     Hybrid Journal   (Followers: 162)
Campbell Law Review     Open Access   (Followers: 5)
Campus Legal Advisor     Hybrid Journal   (Followers: 2)
Case Western Reserve Law Review     Open Access   (Followers: 2)
Časopis pro právní vědu a praxi     Open Access  
Časopis zdravotnického práva a bioetiky     Open Access  
Catalyst : A Social Justice Forum     Open Access   (Followers: 9)
Catholic University Law Review     Open Access   (Followers: 3)
Chicago-Kent Law Review     Full-text available via subscription   (Followers: 4)
China : An International Journal     Full-text available via subscription   (Followers: 18)
China-EU Law Journal     Hybrid Journal   (Followers: 4)
Chinese Journal of Comparative Law     Hybrid Journal   (Followers: 3)
Chinese Law & Government     Full-text available via subscription   (Followers: 6)
Cleveland State Law Review     Free   (Followers: 2)
College Athletics and The Law     Hybrid Journal   (Followers: 1)
Colombia Forense     Open Access  
Columbia Journal of Environmental Law     Free   (Followers: 10)
Columbia Journal of Law and Social Problems     Full-text available via subscription   (Followers: 16)
Columbia Law Review (Sidebar)     Open Access   (Followers: 16)
Commercial Law Quarterly: The Journal of the Commercial Law Association of Australia     Full-text available via subscription   (Followers: 5)
Comparative Law Review     Open Access   (Followers: 42)
Comparative Legal History     Full-text available via subscription   (Followers: 7)
Con-texto     Open Access  
Conflict Resolution Quarterly     Hybrid Journal   (Followers: 26)
Conflict Trends     Full-text available via subscription   (Followers: 11)
Cornell Law Review     Open Access   (Followers: 8)
Criterio Jurídico     Open Access  
Critical Analysis of Law : An International & Interdisciplinary Law Review     Open Access   (Followers: 4)
Cuadernos de Historia del Derecho     Open Access   (Followers: 7)
Cuestiones Juridicas     Open Access   (Followers: 2)
Current Legal Problems     Hybrid Journal   (Followers: 26)
Danube : The Journal of European Association Comenius - EACO     Open Access   (Followers: 2)
De Jure     Open Access   (Followers: 1)
De Rebus     Full-text available via subscription   (Followers: 1)
Deakin Law Review     Full-text available via subscription   (Followers: 14)
Defense Counsel Journal     Full-text available via subscription   (Followers: 1)
Democrazia e diritto     Full-text available via subscription   (Followers: 2)
Denning Law Journal     Full-text available via subscription   (Followers: 8)
DePaul Journal of Women, Gender and the Law     Open Access   (Followers: 3)
DePaul Law Review     Open Access   (Followers: 3)
Der Staat     Full-text available via subscription   (Followers: 14)
Derecho PUCP     Open Access   (Followers: 4)
Derecho y Ciencias Sociales     Open Access   (Followers: 1)
Die Verwaltung     Full-text available via subscription   (Followers: 11)
Dikaion     Open Access   (Followers: 1)
Dike     Open Access  
Diké : Revista Jurídica     Open Access  
Direito e Desenvolvimento     Open Access   (Followers: 1)
Direito e Liberdade     Open Access  
Diritto penale contemporaneo     Free   (Followers: 2)
Diritto, immigrazione e cittadinanza     Open Access   (Followers: 4)
Dixi     Open Access  
Droit et Cultures     Open Access   (Followers: 7)
Droit et Médecine Bucco-Dentaire     Full-text available via subscription   (Followers: 1)
Droit, Déontologie & Soin     Full-text available via subscription   (Followers: 2)
Drug Science, Policy and Law     Full-text available via subscription  
Duke Environmental Law & Policy Forum     Open Access   (Followers: 7)
Duke Forum for Law & Social Change     Open Access   (Followers: 8)
Duke Journal of Gender Law & Policy     Open Access   (Followers: 17)
Duke Law & Technology Review     Open Access   (Followers: 10)
Duke Law Journal     Open Access   (Followers: 26)
DULR Online     Open Access   (Followers: 1)
East Asia Law Review     Open Access   (Followers: 2)
ECI Interdisciplinary Journal for Legal and Social Policy     Open Access   (Followers: 2)
Ecology Law Quarterly     Free   (Followers: 3)
Edinburgh Law Review     Hybrid Journal   (Followers: 21)
Education and the Law     Hybrid Journal   (Followers: 12)
El Cotidiano     Open Access   (Followers: 1)
Election Law Journal     Hybrid Journal   (Followers: 24)
Energy Law Journal     Full-text available via subscription   (Followers: 4)
Environmental Justice     Hybrid Journal   (Followers: 11)
Environmental Law Review     Full-text available via subscription   (Followers: 22)
Environmental Policy and Law     Hybrid Journal   (Followers: 15)
ERA-Forum     Hybrid Journal   (Followers: 5)
Espaço Jurídico : Journal of Law     Open Access   (Followers: 1)
ESR Review : Economic and Social Rights in South Africa     Open Access   (Followers: 4)
Ethnopolitics     Hybrid Journal   (Followers: 4)
Ethos: Official Publication of the Law Society of the Australian Capital Territory     Full-text available via subscription   (Followers: 4)
EU agrarian Law     Open Access   (Followers: 4)
Europaisches Journal fur Minderheitenfragen     Hybrid Journal   (Followers: 2)
European Energy and Environmental Law Review     Full-text available via subscription   (Followers: 16)
European Journal for Education Law and Policy     Hybrid Journal   (Followers: 9)
European Journal of Comparative Law and Governance     Hybrid Journal   (Followers: 6)
European Journal of Law and Technology     Open Access   (Followers: 15)
European Journal of Psychology Applied to Legal Context     Open Access   (Followers: 5)
European Law Journal     Hybrid Journal   (Followers: 152)
European Public Law     Full-text available via subscription   (Followers: 37)
European Review of Contract Law     Hybrid Journal   (Followers: 23)
European Review of Private Law     Full-text available via subscription   (Followers: 32)
European Yearbook of Minority Issues Online     Hybrid Journal   (Followers: 5)
Evaluation Review     Hybrid Journal   (Followers: 12)
Evidence & Policy : A Journal of Research, Debate and Practice     Full-text available via subscription   (Followers: 10)
Faulkner Law Review     Full-text available via subscription   (Followers: 1)
Federal Communication Law Journal     Full-text available via subscription   (Followers: 1)
Federal Law Review     Full-text available via subscription   (Followers: 22)
Federal Probation     Full-text available via subscription   (Followers: 2)
Feminist Legal Studies     Hybrid Journal   (Followers: 16)
feminists@law     Open Access   (Followers: 5)
Fiat Justisia     Open Access  
First Amendment Studies     Hybrid Journal  
Florida Bar News     Free  
Florida Law Review     Open Access   (Followers: 4)
Florida State University Law Review     Open Access   (Followers: 4)
Fordham Environmental Law Review     Open Access   (Followers: 5)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 19)
Fordham Law Review     Open Access   (Followers: 15)
FORO. Revista de Ciencias Jurídicas y Sociales, Nueva Época     Open Access   (Followers: 2)
Fundamina : A Journal of Legal History     Open Access   (Followers: 7)
Geoforum     Hybrid Journal   (Followers: 23)
George Washington Law Review     Free   (Followers: 8)
Georgia Law Review     Open Access   (Followers: 2)
Georgia State University Law Review     Open Access   (Followers: 2)

        1 2 3 4 | Last

Journal Cover California Law Review
  [SJR: 1.351]   [H-I: 39]   [21 followers]  Follow
    
  This is an Open Access Journal Open Access journal
   ISSN (Print) 0008-1221
   Published by U of California, Berkeley Homepage  [4 journals]
  • A Crime at Any Age: Intimate Partner Abuse in Later Life

    • Authors: Taylor Jillian Altman
      Abstract: Intimate partner abuse (IPA) is a problem that affects millions of women across the United States every year. Traditionally, strategies designed to help victims and reduce IPA have tended to focus on women of childbearing age. However, older women who experience abuse at the hands of male partners are often left out of the conversation. Usually grouped with family violence (which may involve abuse by adult children or other caregivers), elder IPA has received short shrift in the social science and legal literature. This Note explores in depth the unique problem of IPA among older women, which is often a continuation of the cycle of abuse begun much earlier in the couples’ lives, and proposes solutions that include restorative justice, elder-ready domestic violence shelters, and expanded protection under California’s Welfare and Institutions Code.
      PubDate: Thu, 16 Nov 2017 14:35:30 PST
       
  • Transborder Data Privacy as Trade

    • Authors: Margaret Byrne Sedgewick
      Abstract: Data flows continuously across national boundaries. The current model of regulation for data privacy, an essential component for safe data flow, relies impractically on jurisdiction-specific rules. This practice impedes the benefits of data, which are increasingly a necessary and integral part of day-to-day life. A look at the history of data privacy reveals that this practice is rooted in an ill-fitting adoption of privacy standards set in the period after World War II. Europe was reeling from the Nazi regime and intent on keeping the government out of the home and personal communication. Analogies between these traditional protected areas and the contemporary transmissions and use of personal data are unsatisfying—and lead to unsatisfying policy. Traditional privacy jurisprudence must be better reconciled with rapidly advancing technology and globalization.This Note proposes reframing transborder data privacy as trade. This step would transition the regulatory model away from a jurisdiction-specific set of rules to an internationally shared set of standards that better reflects the immediate mobility of data in the cloud. The U.S. and European systems, while formally divergent enough to cause these problems, are in fact grounded in common principles that would serve as a base for an international agreement on transborder data privacy. Though political opposition to shared standards may be currently insurmountable, this Note nonetheless concludes that an international trade framework would more effectively harness the benefits and mitigate the risks of transborder data flow.
      PubDate: Thu, 16 Nov 2017 14:35:26 PST
       
  • Aquifers and Democracy: Enforcing Voter Equal Protection to Save
           California’s Imperiled Groundwater and Redeem Local Government

    • Authors: Louise Nelson Dyble
      Abstract: California’s Sustainable Groundwater Management Act (“SGMA”) allows local entities that represent landowners, government agencies, or private companies, rather than the public, to take on exclusive power to regulate and manage imperiled groundwater resources. In at least some cases, under SGMA these entities are governed and controlled in ways that violate the one person, one vote requirement of the Equal Protection Clause, and even the rational basis requirement for local government representational structures. By establishing the state’s first comprehensive requirements for monitoring and managing groundwater, SGMA attempts to fill a critical gap in California water regulation, the consequences of which have culminated in a statewide crisis. This Note examines the ways in which SGMA implicates the Fourteenth Amendment, and, specifically, the requirements for proportional representation in local government that Avery v. Midland County and Board of Estimate v. Morris established. It argues that voter accountability and proportional representation in groundwater governance are important to actually achieving the ultimate goal of the legislation: effective management and regulation of imperiled common pool resources in California. It also contributes to solving a bigger problem. Special districts are the most numerous type of local government in the United States, with policy-making and administrative responsibility for vital environmental resources, infrastructure, and services. Enforcement of the one person, one vote requirement for the special districts responsible for California groundwater under SGMA would provide a powerful legal precedent for citizens seeking to promote democracy and equality in local government throughout the United States.
      PubDate: Thu, 16 Nov 2017 14:35:22 PST
       
  • Agencies as Adversaries

    • Authors: Daniel A. Farber et al.
      Abstract: Conflict between agencies and outsiders—whether private stakeholders, state governments, or Congress—is the primary focus of administrative law. But battles also rage within the administrative state: federal agencies, or actors within them, are the adversaries. Recent examples abound. In President Obama’s administration, there was the battle between the Federal Bureau of Investigation and the Department of Defense over hacking the iPhone of one of the San Bernardino shooters, the conflict between the State Department and the Central Intelligence Agency over classifying some aspects of Secretary Hillary Clinton’s emails, and the sharp division between the Republican and Democratic members of the Federal Communications Commission on net neutrality. President Trump’s administration has begun with intense internal conflict. After President Trump issued his first immigration executive order, fights started—largely between holdover appointees (as well as career bureaucrats) and the new boss. Battles have also erupted among President Trump’s chosen lieutenants in the White House and in the cabinet. While the President has denounced his opponents, he is also fostering conflict by choosing cabinet secretaries with whom he knows he has policy disagreements, placing loyalists in key agency staff positions as monitors, and selecting adversaries for top White House slots.This Article draws on rich institutional accounts to illuminate and classify the plethora of agency conflicts and dispute resolution mechanisms. Then, by applying social scientific work on agency and firm design, as well as constitutional theory, we aim to explain the creation of such conflict––largely by Congress and the White House but sometimes by the courts––and to evaluate its desirability. We assess the characteristics of conflict against economic, political, and philosophical criteria to suggest lessons for institutional design in the modern administrative state. In contrast to much of the existing literature, we focus on the potentially positive contribution of agency conflict to effective democratic governance.Finally, we use our descriptive, positive, and normative work on agency conflict to contribute to longstanding legal debates and to flag important legal issues that have generated little attention. For instance, we investigate the constitutional limits of congressionally or judicially created conflict within the executive branch, the application of deference doctrines in the face of agency disagreement, and the ability of agencies to take conflicting positions directly or indirectly in the courts themselves.
      PubDate: Thu, 16 Nov 2017 14:35:18 PST
       
  • Abandoning the Federal Role in Education: The Every Student Succeeds Act

    • Authors: Derek W. Black
      Abstract: In December 2015, Congress passed the Every Student Succeeds Act (ESSA), which redefined the role of the federal government in education. The ESSA attempted to appease popular sentiment against the No Child Left Behind Act’s (NCLB) overreliance on standardized testing and punitive sanctions. But in overturning those aspects of the NCLB, Congress failed to devise a system that was any better. Congress simply stripped the federal government of regulatory power and vastly expanded state discretion. For the first time in fifty years, the federal government lacks the ability to prompt improvements in student achievement and to demand equal resources for low-income students. Thus, the ESSA boldly presumes that states will voluntarily improve educational opportunities for low-income students despite their historical tendency to do the contrary.This Article is the first to offer a comprehensive analysis and critique of the ESSA. It demonstrates that although the ESSA commits to equality on its face, it does the opposite in practice. First, the ESSA affords states wide latitude on student performance, accountability, and school reform. Broad state discretion opens the door to fifty disparate state systems, none of which ensure equality. Second, the ESSA directly weakens two existing equity standards and ignores a loophole that exempts 80 percent of school expenditures from equity analysis. Third, the ESSA leaves federal funding flat, eliminating the possibility that additional resources will offset the inequalities that the foregoing provisions permit. These changes to federal education law are so out of character that they beg the question of why the federal government is even involved in education.Although Congress is unlikely to repeal the ESSA, the Act is set to expire by its own terms in an unusually short time period. Thus, preparations to either reauthorize or alter the Act will start soon. By then, the inequalities that the ESSA permits will be evident. This Article proposes that Congress cure the ESSA’s flaws by increasing the federal investment in education to: (1) create the leverage needed for states to accept federal prohibitions on unequal funding practices; (2) meet the outstanding needs of low-income students; and (3) expand preschool education, which would close achievement gaps and, through cost savings, make state compliance with equity provisions more feasible.
      PubDate: Thu, 16 Nov 2017 14:35:14 PST
       
  • The Information-Forcing Role of the Judge in Multidistrict Litigation

    • Authors: Andrew D. Bradt et al.
      Abstract: In this Article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL' Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, more than one third of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates—and in many ways complicates—the principal-agent problems that have plagued the class action. Like class actions, nearly all MDL cases are resolved by a comprehensive global settlement agreement. But, unlike class actions, in MDL cases the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary.” The judge should reserve the right to offer a nonbinding opinion about the fairness of the settlement to send an easy to understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this Article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.
      PubDate: Thu, 16 Nov 2017 14:35:10 PST
       
  • Under the Cloak of Brain Science: Risk Assessments, Parole, and the
           Powerful Guise of Objectivity

    • Authors: Jeremy Isard
      Abstract: This Note examines the adoption of two psychological risk assessment protocols used on “lifers” by the California Board of Parole Hearings in preparation for parole suitability hearings. Probation and parole agencies employ risk assessment protocols across state and federal jurisdictions to measure the likelihood that an individual will pose a danger to society if released from prison. By examining the adoption and recent reformulation of risk assessment protocols in California, this Note considers some of the myriad demands that courts and administrative agencies place on brain science. Applying the California parole process as a parable of such pressures, this Note argues that brain science has a unique capacity to supersede legal inquiry itself, and thus should only be used in legal and administrative settings with extreme caution.
      PubDate: Thu, 31 Aug 2017 17:26:41 PDT
       
  • Towards an International Right to Claim Innocence

    • Authors: Brandon L. Garrett
      Abstract: In the past, wrongful convictions were seen as a local problem largely undeserving of national or international attention. Very different legal systems have shared a common approach of emphasizing the finality of criminal convictions, thereby making it very difficult to claim innocence by relying on new evidence uncovered post-trial. While international law guarantees a right to a fair trial, a presumption of innocence, and a right to appeal, no international human rights norms clearly obligate countries to allow defendants to meaningfully assert post-trial claims of innocence. Today, the procedures and attitudes toward claims of innocence that rely on newly discovered evidence are in flux as more countries have adopted broader remedies for convicts to claim innocence.In this Essay, I describe the remarkable changes that have taken place in the past few decades, driven by a mounting number of exonerations, the development of DNA technology, the work of innocence projects, and a new international dialogue on research and legal methods to address wrongful convictions. Large and small countries, civil and common law countries, and countries with very different attitudes towards criminal justice have increasingly developed mechanisms to permit convicted individuals to assert factual innocence. Countries draw from each other’s legal standards, strategies, and responses to wrongful convictions. Countries now permit innocence-based challenges under various procedural labels, ranging from the writ of habeas corpus, amparo de libertad, revision, or other statutory or administrative remedies. In turn, international bodies have relaxed concerns with finality and opened the door to the broader use of innocence claims, if not recognizing a freestanding right to make use of them.In a time of growing convergence and comparison of criminal procedure approaches between countries, the movement towards permitting claims of innocence may lead to recognition of an international right to claim innocence or, more plausibly, a customary international law right to claim innocence in domestic courts. This could further incentivize the international development of claims of innocence and the adoption of remedies for wrongful convictions around the world.
      PubDate: Thu, 31 Aug 2017 17:26:38 PDT
       
  • Technoheritage

    • Authors: Sonia K. Katyal
      Abstract: This Article explores the legal revolution that is swiftly unfolding regarding the relationship between technology, user interactivity, and cultural institutions, both inside and outside of the law. At the same time that cultural properties are facing destruction from war and environmental change, we are also living in an age of unprecedented interactivity and reproduction—everywhere, museums are offering their collections for open access, 3-D printing, and new projects involving virtual and augmented reality. With the advent of other sophisticated forms of digital technology, the preservation and replication of antiquities have never been easier.Today’s archaeological moment demonstrates both the possibilities and limitations behind “technoheritage”—the marriage of technology and cultural heritage. Toward that end, this Article argues that, in order to understand the relationship between technology and cultural heritage, it might be helpful to study the theoretical dimensions behind interactivity itself. Just as technology has the power to preserve and protect ancient artifacts, it also invites a dizzying array of legal conflicts over their digitization and replication, particularly with regards to the intersection of copyright law with cultural identity. Unpacking this further, this Article offers a tripartite taxonomy of interactivity: the first, described as extractive (drawing upon the accumulation and selection of data); the second, immersive (drawing upon new forms of user participation through virtual and augmented reality); and the third, derivative (drawing upon new possibilities of user creation). Normatively, I argue that these models of interactivity provide us with an important framework with which to examine the importance of copyright protection for cultural heritage. In the concluding section, I suggest a potential way of rethinking the museum by drawing on the logic and legal protection extended to databases and archives in an age of unprecedented user interactivity.
      PubDate: Thu, 31 Aug 2017 17:26:35 PDT
       
  • Reckless Discrimination

    • Authors: Stephanie Bornstein
      Abstract: If there are known, easily adopted ways to reduce bias in employment decisions, should an employer be held liable for discriminatory results when it fails to adopt such measures' Given the vast amount we now know about implicit bias and the ways to reduce it, to what extent is an employer who knowingly fails to do so engaging in intentional discrimination' This Article theorizes a “recklessness” model of discrimination under Title VII, arguing for liability where an employer acts with reckless disregard for the consequences of implicit bias and stereotyping in employment decisions. Legal scholars have argued that Title VII should, and in some ways does, reflect a negligence model under which an employer may be held liable for failing to meet a duty of care to prevent discrimination at work. Yet the law of Title VII disparate treatment requires “intentional” discrimination—a term that courts have interpreted more broadly than a conscious purpose to discriminate, but more narrowly than a mere failure to prevent “societal” discrimination. This Article is the first to propose recklessness as the bridge between the theory of negligence and the requirement of intent as defined by Title VII jurisprudence.In doing so, the Article seeks to revive the importance of social science research on bias—research that was limited in its evidentiary role by the U.S. Supreme Court’s 2011 decision in Wal-Mart v. Dukes. Decades of scientific research have documented how implicit bias and automatic stereotyping affect decision making in discriminatory ways. Years of efforts by employers to reduce bias and increase diversity in their workforces have demonstrated what interventions work. Most recently, technology has allowed some employers to easily and dramatically reduce the biasing effects of subjectivity from their hiring decisions by, for example, using algorithms instead of people to screen applicants. This vast body of research and experience developed over a half-century has shifted the baseline knowledge about the risks of bias infecting employment decisions, this Article contends. Today, an employer who continues to rely on unchecked subjective decision making that leads to disproportionate employment outcomes by race or gender is acting so recklessly that its behavior amounts to intentional disparate treatment under Title VII.
      PubDate: Thu, 31 Aug 2017 17:26:31 PDT
       
  • Regulating Arbitration

    • Authors: David L. Noll
      Abstract: Enabled by Supreme Court decisions that grant contract drafters broad authority over the procedures used to resolve legal claims, agreements to arbitrate have proliferated in consumer and employment contracts. As arbitration has spread, so have demands for Congress and federal administrative agencies to regulate it. But when does arbitration warrant regulation through new legislation and administrative action' The most prominent policy arguments for regulating arbitration focus on its effects on consumer welfare and democratic governance. By and large, the standard policy arguments for regulating arbitration do not grapple with arbitration’s effects on specific regulatory statutes.This Article explains arbitration’s effects on the implementation and enforcement of federal regulatory statutes and argues that controlling these effects should be a central focus of efforts to regulate arbitration through new legislation and agency action. In hundreds of statutes, Congress has created financial incentives for private litigants to enforce its laws. The enactment of incentives for private civil litigation allows litigants to assert claims that would be too expensive to prosecute under ordinary procedural rules, and, more importantly, allows Congress to calibrate enforcement of federal law. By establishing stronger incentives for private enforcement of a statute—e.g., provisions that shift attorneys’ fees to successful plaintiffs and provide enhanced damages—Congress drives enforcement of the statute. By providing weaker incentives, Congress directs enforcement elsewhere.Arbitration can dramatically alter the returns from enforcement of statutes with incentives for private civil litigation. In doing so, it may subvert or completely undermine congressional efforts to mobilize and calibrate private enforcement of federal law. These “enforcement effects” threaten Congress’s ability to accomplish substantive regulatory objectives through private civil litigation but have received only passing attention in discussions about the policy response to arbitration. To illustrate how greater attention to them would impact efforts to regulate arbitration, the Article analyzes the Consumer Financial Protection Bureau’s proposed arbitration regulation under § 1028 of the Dodd-Frank Act and shows how it falls short of ensuring that certain consumer financial protection laws administered by the agency are enforced in the manner and to the extent contemplated by Congress.
      PubDate: Thu, 31 Aug 2017 17:26:28 PDT
       
  • Odd Man Out: A Comparative Critique of the Federal Arbitration Act’s
           Article III Shortcomings

    • Authors: Matthew J. Stanford
      PubDate: Tue, 29 Aug 2017 16:05:25 PDT
       
  • “The Mellow Pot-Smoker”: White Individualism in Marijuana
           Legalization Campaigns

    • Authors: David Schlussel
      Abstract: Recreational marijuana is now legal in several states as a result of ballot initiative campaigns. A number of campaigns have framed marijuana legalization using what this Note calls “white individualism.” They have put forth messages and images to implicitly suggest that white, hardworking, middle-class marijuana consumers are deserving beneficiaries of legalized marijuana. This Note examines the appearance of white individualism in the Colorado, Washington, Oregon, and Alaska campaigns. It also explores the appearance of racial justice appeals in the California, Ohio, Washington, D.C., and Massachusetts campaigns.Recreational marijuana is now legal in several states as a result of ballot initiative campaigns. A number of campaigns have framed marijuana legalization using what this Note calls “white individualism.” They have put forth messages and images to implicitly suggest that white, hardworking, middle-class marijuana consumers are deserving beneficiaries of legalized marijuana. This Note examines the appearance of white individualism in the Colorado, Washington, Oregon, and Alaska campaigns. It also explores the appearance of racial justice appeals in the California, Ohio, Washington, D.C., and Massachusetts campaigns.White individualist framing has tended to correlate with post-legalization policies that favor white marijuana entrepreneurs, such as those prohibiting people with marijuana convictions from receiving business licenses, rather than policies that redress harms from prohibition, such as the expungement of criminal records. As many people continue to experience criminalization and racial myths go relatively unchallenged, largely white marijuana entrepreneurs reap legal marijuana’s profits. Marijuana policy should address past harms, this Note argues, because marijuana prohibition was founded and implemented on an unjust basis.
      PubDate: Tue, 29 Aug 2017 16:05:21 PDT
       
  • Gendering Disability to Enable Disability Rights Law

    • Authors: Michelle A. Travis
      Abstract: his Essay enriches the social model of disability by analyzing the interaction between disability and gender. The modern disability rights movement is built upon the social model, which understands disability not as an inherent personal deficiency but as the result of the environment with which an impairment interacts. The social model is reflected in the accommodation mandate of the Americans with Disabilities Act of 1990 (ADA), which holds employers responsible for the limiting aspects of their workplace designs. This Essay shows that the environmental limitations imposed upon impairments result not only from the physical aspects of a workplace but also from identity-based stereotypes, biases, and oppressions that affect how disability is experienced and perceived. Specifically, this Essay furthers the social model by challenging the existing genderneutral view of the causes and consequences of disability. The analysis reveals how ignoring gender has enabled masculine norms to become embedded in the ADA’s substantive and procedural approaches to defining and remedying disability discrimination in the workplace. As a result of this inattention to gender, women with disabilities have suffered serious social and economic consequences. This Essay demonstrates, more generally, how ignoring other social identities renders nonprototypic members of the disabled community legally invisible, and it reveals how attending to other social identities may advance the social model of disability, deepen our understanding of disability discrimination, and empower disability rights law to serve a more diverse group of individuals.
      PubDate: Tue, 29 Aug 2017 16:05:17 PDT
       
  • Leadership Crimes

    • Authors: Saira Mohamed
      Abstract: The law of mass atrocity readily recognizes that responsibility and punishment for the world’s worst horrors—campaigns of displacement, rape, torture, and killing—ought to fall primarily on the political, military, or community leaders who bring about these systematic crimes. But the international criminal courts that try and punish these individuals tell a narrow story about the harms perpetrated by leaders of mass crime. It is a story of leaders who abuse the power that derives from the coercive structures of government and governance—from hierarchy, from the capacity to order and punish subordinates, from the ability to force bureaucracies and institutions into service of violence. This account is not inaccurate, but it is grossly incomplete. The law ought to ascribe responsibility to leaders not only for these abuses of coercive power, but also for their acts of moral persuasion—using their positions of influence to guide, persuade, and convince others of the necessity, or even the rightness, of wrongdoing.Moral persuasion is a familiar and destructive phenomenon; it is Hitler convincing Germans of the “Jewish peril” and Rwandan politicians warning Hutus that Tutsis cannot be trusted. It forms a crucial component of many situations of mass atrocity, for it transforms ordinary citizens into willing executioners, ready to carry out leaders’ devastating plans. And yet, the idea of moral persuasion is largely missing from both legal scholarship and judicial practice. This Article presents a broad new understanding of leadership and crime by undertaking the first deep investigation of the topic. It offers three contributions: (1) a novel descriptive account of how the law of mass atrocity addresses the culpability of leaders; (2) a theoretical understanding of why this body of law overlooks leaders’ crimes of moral persuasion; and (3) a normative claim for why moral persuasion crimes should be recognized as a source of culpability for leaders.Attending to the full harms of mass atrocity crime—including the moral, psychic, and societal wounds it leaves behind—requires a complete understanding of its formula. Accordingly, this Article argues for the recognition of moral persuasion as a critical repair to a system that is preoccupied with formal power, anxious about the perverse ordinariness of extraordinary crime, and in need of deeper connection with the reality of the horrors it addresses.
      PubDate: Tue, 29 Aug 2017 16:05:13 PDT
       
  • Limitless Worker Surveillance

    • Authors: Ifeoma Ajunwa et al.
      Abstract: From the Pinkerton private detectives of the 1850s, to the closed-circuit cameras and email monitoring of the 1990s, to new apps that quantify the productivity of workers, and to the collection of health data as part of workplace wellness programs, American employers have increasingly sought to track the activities of their employees. Starting with Taylorism and Fordism, American workers have become accustomed to heightened levels of monitoring that have only been mitigated by the legal counterweight of organized unions and labor laws. Thus, along with economic and technological limits, the law has always been presumed as a constraint on these surveillance activities. Recently, technological advancements in several fields—big data analytics, communications capture, mobile device design, DNA testing, and biometrics—have dramatically expanded capacities for worker surveillance both on and off the job. While the cost of many forms of surveillance has dropped significantly, new technologies make the surveillance of workers even more convenient and accessible, and labor unions have become much less powerful in advocating for workers. The American worker must now contend with an all-seeing Argus Panoptes built from technology that allows for the trawling of employee data from the Internet and the employer collection of productivity data and health data, with the ostensible consent of the worker. This raises the question of whether the law still remains a a meaningful avenue to delineate boundaries for worker surveillance.In this Article, we start from the normative viewpoint that the right to privacy is not an economic good that may be exchanged for the opportunity for employment. We then examine the effectiveness of the law as a check on intrusive worker surveillance, given recent technological innovations. In particular, we focus on two popular trends in worker tracking—productivity apps and worker wellness programs—to argue that current legal constraints are insufficient and may leave American workers at the mercy of 24/7 employer monitoring. We consider three possible approaches to remedying this deficiency of the law: (1) a comprehensive omnibus federal information privacy law, similar to approaches taken in the European Union, which would protect all individual privacy to various degrees regardless of whether or not one is at work or elsewhere and without regard to the sensitivity of the data at issue; (2) a narrower, sector-specific Employee Privacy Protection Act (EPPA), which would focus on prohibiting specific workplace surveillance practices that extend outside of work-related locations or activities; and (3) an even narrower sector and sensitivity-specific Employee Health Information Privacy Act (EHIPA), which would protect the most sensitive type of employee data, especially those that could arguably fall outside of the Health Insurance Portability and Accountability Act’s (HIPAA) jurisdiction, such as wellness and other data related to health and one’s personhood.
      PubDate: Tue, 29 Aug 2017 16:05:10 PDT
       
  • LGBT Identity and Crime

    • Authors: Jordan Blair Woods
      Abstract: Recent studies report that LGBT adults and youth disproportionately face hardships that are risk factors for criminal offending and victimization. Some of these factors include higher rates of poverty, overrepresentation in the youth homeless population, and overrepresentation in the foster care system. Despite these risk factors, there is a lack of study and available data on LGBT people who come into contact with the criminal justice system as offenders or as victims.Through an original intellectual history of the treatment of LGBT identity and crime, this Article provides insight into how this problem in LGBT criminal justice developed and examines directions to move beyond it. The history shows that until the mid-1970s, the criminalization of homosexuality left little room to think of LGBT people in the criminal justice system as anything other than deviant sexual offenders. The trend to decriminalize sodomy in the mid-1970s opened a narrow space for scholars, advocates, and policymakers to use antidiscrimination principles to redefine LGBT people in the criminal justice system as innocent and nondeviant hate crime victims, as opposed to deviant sexual offenders.Although this paradigm shift has contributed to some important gains for LGBT people, this Article argues that it cannot be celebrated as an unequivocal triumph. This shift has left us with flat understandings of LGBT offenders as sexual offenders and flat understandings of LGBT victims as hate crime victims. These one dimensional narratives miss many criminal justice problems that especially fall on LGBT people who bear the brunt of inequality in the criminal justice system—including LGBT people of color, transgender people, undocumented LGBT people, LGBT people living with HIV, and low-income and homeless LGBT people. This Article concludes by showing how ideas and methods in criminology offer promise to enhance accounts of LGBT offending and LGBT victimization. In turn, these enhanced accounts can inform law, policy, and the design of criminal justice institutions to better respond to the needs and experiences of LGBT offenders and LGBT victims.
      PubDate: Tue, 29 Aug 2017 16:05:06 PDT
       
  • Tagmarks

    • Authors: Alexandra J. Roberts
      Abstract: Hashtags are trending, and not just on social media. By 2016, producers had federally registered hundreds of hashtags as trademarks and asserted exclusive rights in thousands of others. But by failing to pay close attention to context and consumer perception, the USPTO may have overlooked issues that render many hashtag trademarks (“tagmarks”) unregistrable. This article provides a history and taxonomy of hashtags and explores the protectability problems that plague tagmarks. Rather than sweeping generalizations about their status, tagmarks require nuanced analysis that takes into account their use, distinctiveness, and history in order to more accurately determine whether and when they merit protection as marks. To strike a better balance among the competing trademark concerns of consumer protection, producer reward, and speech, the USPTO should revise its examining procedures to mandate that every tagmark be categorized as “primarily merely a hashtag” until an applicant can establish that its mark actually functions as a source indicator.
      PubDate: Tue, 29 Aug 2017 16:05:03 PDT
       
  • An Excess of Discretion' “Thayer’s Triumph” and the Uncodified
           Exclusion of Speculative Evidence

    • Authors: David S. Schwartz
      PubDate: Thu, 04 May 2017 15:16:29 PDT
       
  • Eleanor Swift as Consummate Colleague

    • Authors: Anne Joseph O’Connell
      PubDate: Thu, 04 May 2017 15:16:25 PDT
       
 
 
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