Authors:Jessie Rubini Abstract: Voter suppression and anti-abortion, anti-reproductive care efforts are mutually reinforcing, working together to diminish political participation, especially for women of color. I argue that politicians could use the Dobbs decision to further suppress Black voters, specifically Black women voters, by prosecuting abortions as felonies. The effect would be disenfranchisement of thousands of people. This Comment covers the connected histories of voting rights and abortion rights in America. The first section of this Comment will briefly cover the history of voting rights in America with a focus on racial discrimination. The second section will cover one voter suppression, felony disenfranchisement. Finally, in the third section I argue that Dobbs gives politicians and lawmakers a new way to increase felony disenfranchisement and decrease Black women’s voting power, and that without further advocacy against felony disenfranchisement, more women will lose the right to vote. PubDate: Sat, 06 Apr 2024 11:44:52 PDT
Authors:Samuel Richter Abstract: This Comment posits that incarcerated workers possess an inherent right to unionize pursuant to human dignity. Centering dignity in this discussion highlights the ways in which prisoners’ unions secure the economic and political conditions needed to express their autonomy and foster rehabilitation. By reviewing the historical successes and missteps of the incarcerated workers’ labor movement in the United States, this Comment demonstrates that an appreciation for dignity is crucial to prevent factional violence between incarcerated people on the one hand and the over-professionalization of prisoner organization on the other. Recognizing that unionization is a matter of dignity, not free speech or existing labor law statutes, also provides a more cohesive legal framework for extending the right to unionize to incarcerated workers. The right to dignity structures foundational constitutional principles and appeals to the benefits unionization offers to both incarcerated and nonincarcerated workers. In this way, the right to dignity provides a workable legal structure for understanding incarcerated workers’ right to unionize. PubDate: Sat, 06 Apr 2024 11:44:51 PDT
Authors:Ariel Liberman et al. Abstract: A principal objective of the public school system in a democracy is to promote societal cohesion by way of preparing students for civic engagement. There exists a founding belief that a democratic nation ought to be composed of educated activists, run by innovators, and kept in check by involved citizens. For, indisputably, the democratic experiment—our values, our institutions—can only be upheld anew with each generation on the backs of critique, reinvention, and reinvigoration. But, as so many have mentioned when discussing the civics education paradigm, the increase in educational opportunities and the marked expansion of our school system has not translated into higher numbers of “citizens”—higher levels of civic knowledge and youth participation. Here, we offer a partial solution addressing substantive improvements to the civics paradigm. We argue for augmenting the current learning structure with a push towards learning law young, or else endowing children with a working knowledge of law and its methodologies. To learn law young is to approach and understand the values, rights, duties, obligations, and American questions of citizenship from a different perspective than that currently held in civics classroom, one that is at once more complex and functional. One learns by interrogating constitutional questions underpinning our civic institutions, considering reasoning behind ideological arguments, all while garnering critical analytical skills now exclusively at the disposal of the law student. This is about teaching a new way of thinking, a way of thinking necessary for every citizen today, a way that is currently not routine. The objective of this paper is to obviate the need—and extoll the benefits—of integrating law learning into childhood civics education. PubDate: Sat, 06 Apr 2024 11:44:50 PDT
Authors:Lavanya Prabhakar Abstract: Despite national attention to unfair congressional district maps, efforts to make maps more representative through litigation have felt futile. However, despite unfavorable Supreme Court rulings, organizing around redistricting has seen wins on the state level, through the creation of independent redistricting commissions and map redraws. First, this Note reviews the history of race-based and partisan gerrymandering and the volatile swings of redistricting litigation. Then, it considers the role of organizing in redistricting, focusing on case studies from Ohio and North Carolina. Finally, relying on firsthand interviews and available data, this Note argues that organizing and litigation must work together under the principles of movement lawyering to inform and guide the direction of redistricting action. Lawyers must take the lead from community organizers to determine how to fight unfair maps, be it through legislative advocacy, political advocacy, or traditional litigation. PubDate: Sat, 06 Apr 2024 11:44:50 PDT
Authors:Michael Perlin et al. Abstract: In this Article, we offer—we believe for the first time in the scholarly literature—a potentially (at least partially) ameliorative solution to the problems faced by persons with autism (ASD) and fetal alcohol disorder (FASD) in the criminal justice system: the creation of (separate sets of) problem-solving juvenile mental health courts specifically to deal with cases of juveniles in the criminal justice system with ASD, and with FASD. There is currently at least one juvenile mental health court that explicitly accepts juveniles with autism, but there are, to the best of our knowledge, no courts set up specifically for these two discrete sets of populations.If mental health courts (or any other sort of problem-solving courts) are to work effectively, they must operate in accordance with therapeutic jurisprudence principles, concluding that law should value psychological health, should strive to avoid imposing anti-therapeutic consequences whenever possible, and when consistent with other values served by law should attempt to bring about healing and wellness.If such courts are created, we believe this will (1) make it less likely that sanism and other forms of bias affect legal decision-making; (2) make it more likely that those aspects of the defendants’ underlying conditions that may have precipitated (or contributed to) their criminal behavior be placed in a context that understands such conditions, and (3) best ensure that therapeutic jurisprudence principles be employed in the dispositions of all cases. PubDate: Sat, 06 Apr 2024 11:44:49 PDT
Authors:Laura Cohen Abstract: In 2019, a widely disseminated video of the arrest of a six-year-old girl in her Florida elementary school provoked outrage across the country. The footage shows the girl sobbing as an armed police officer in full uniform and bullet-proof vest handcuffs and leads her from the principal’s office to a waiting patrol car. Her crime was having a temper tantrum in class after a sleepless night. When it was revealed that another six-year-old was arrested at the same school by the same officer on the same day and for similar reasons, media pundits and the general public debated questions of school discipline and the role of law enforcement in educational settings. The far more important issue, however, is why, and for what purpose, should a six-year-old be arrested at all' This is not an academic question; twenty-four of the fifty states currently set no minimum jurisdictional age for the arrest and prosecution of children, and eighteen others set jurisdictional boundary of ten years old. As a result, between 2013 and 2018, over 30,000 children under the age of ten were arrested in the United States, and, in 2019, more than fifteen percent of incarcerated youth were age fourteen or younger. Such criminalization of childhood is contrary to the teachings of developmental science; drives the gross racial disparities that have defined the juvenile legal system since its inception; and inflicts myriad harms on children, their families, and their communities, including school push-out, negative health and mental health outcomes, the threat of incarceration, and the trauma and stigma that attach to any interaction with police, among others. It also runs afoul of international human rights standards, which require adoption of a minimum age of criminal responsibility of at least fourteen. This Article stakes out new ground by arguing that the only redress for these deep and continuing harms is the categorical exclusion of developmentally immature children from juvenile court jurisdiction and, with it, the abolition of the juvenile court in its current iteration. Part I charts the harms of legal system involvement, focusing on the immediate and long-term effects of arrest and prosecution of young children. Part II provides a history of the juvenile legal system, focusing on its deep-rooted racial inequities. Part III explores some of the causes of those injustices, including discretionary decision-making, adultification bias, and police in schools. Part IV considers the large body of developmental science establishing children’s lesser culpability, lack of adjudicative competency, and capacity for change. Part V considers and ultimately rejects revival of the common law defense of infancy within juvenile court proceedings and proposes a new doctrine of infancy rooted in the categorical exclusion of young children from arrest and prosecution, rather than case-by-case determinations. The Article concludes by providing examples of effective alternatives to prosecution and positioning age-based jurisdictional boundaries as a pathway to abolition of the structurally biased and discriminatory juvenile legal system. PubDate: Sat, 06 Apr 2024 11:44:48 PDT
Authors:Yuree Nam Abstract: In the 21st century, the space industry has changed from a government-focused practice to a rapidly growing private sector. Billionaires like Elon Musk and Jeff Bezos operate private companies for the advance of space travel and exploration. Other companies like Lunar Outpost, ispace, and Masten Space Systems were selected by NASA to collect lunar resources back in 2020. The concern is that current international space law is insufficient to regulate private actors who play a significant role in exacerbating environmental problems. Whether it be rocket emissions and environmental justice concerns on Earth, or commercial resource extraction in outer space, private actors need to be regulated to protect the environment, create a sustainable long-term process for space exploration, and maintain international relations. The 1967 Outer Space Treaty and the 1979 Moon Agreement that were created for the purpose of banning weapons of mass destruction in outer space, do not address or regulate the environmental issues caused by private actors today. With the addition of new international agreements, like the U.S.-led Artemis Accords which encourage commercial activity by private actors, regulation is even more difficult and raises international relations concerns. This Note proposes regulating U.S. rocket emissions and facilities under the Clean Air Act and regulating commercial resource extraction through an international licensing system. PubDate: Sat, 18 Nov 2023 13:49:46 PST
Authors:Abigail Kuchnir Abstract: An insufficient supply of suitable housing stock is the root cause of issues like homelessness, overcrowding, and a cost burden on renters throughout the United States. A loose collective of activists and stakeholders comprise the YIMBY movement, an acronym for Yes In My Backyard. YIMBY advocates advance the perspective that additional housing stock is a necessary stratagem to improve housing availability and affordability, and they have used litigation as a tool towards developing new and diverse housing. This Comment examines the strategies currently used by legal activists in California, where impact litigation on this issue has been most prevalent. It also investigates whether these strategies could serve to improve the housing landscape in Chicago and, if so, how they could be most effectively adapted to the unique political and legal circumstances of the Chicago region. PubDate: Sat, 18 Nov 2023 13:49:45 PST
Authors:Sarah Patrick Abstract: Over the last two decades, the Office of Legal Counsel has come under scrutiny for controversial opinions that have advised the President on the constitutionality of his actions, from interrogation and detention of military detainees to presidential immunity from congressional investigation and subpoenas to testify. Its opinions tend to conform with the unitary executive theory and defer to the executive’s position—and that’s only the opinions the public knows about. The Office of Legal Counsel is not required to disclose its opinions, and often does not, citing concerns about national security and the need for confidentiality. A recent legislative effort, the DOJ OLC Transparency Act, introduced in 2022, has attempted to address secrecy and deference to the executive in the Office of Legal Counsel. Although the bill has yet to be re-introduced in the 118th Congress, this Comment addresses whether the DOJ OLC Transparency Act is enough to combat OLC secrecy and deference to the executive, with the hope that future legislative efforts would take the criticisms in the Comment into consideration.The Act would require the OLC to publish all opinions on the DOJ website and allow free access to the public. However, transparency alone is not enough to combat problematic norms in the Office of Legal Counsel. This Comment addresses concerns with the Act’s scope, its class classification measures, and its enforcement mechanism. PubDate: Sat, 18 Nov 2023 13:49:45 PST
Authors:Alexi Freeman et al. Abstract: For generations, law students from historically excluded and underrepresented groups—including but not limited to students of color, students with disabilities, gender diverse and gender non-conforming students, and students who identify as LGBTQIA+—have been expected to navigate their legal educations “successfully” despite the many challenges they encounter. This article describes Denver Law Ascent, a program at the University of Denver Sturm College of Law that is designed to provide critical supports to such students and cultivate a sense of belonging early on as well as throughout students’ educational journeys. Drawing from evidence-based research and best practices, Denver Law Ascent is one school’s intentional approach to fostering belonging and preparing students for academic success. PubDate: Sat, 18 Nov 2023 13:49:44 PST
Authors:Gregory S. Alexander Abstract: Personal names are an integral part of our identity. Names belong to us; they are ours. Names are a form of personal property and should be treated as such. Nevertheless, the state, both historically and still today, has perpetrated various forms of abuse of personal names, ranging from outright takings of personal names to official denials of preferred names. This Article surveys the variety of ways in which the state has committed these name-takings, as I call them. It includes historical examples of name denials such as African slaves and Canadian Indigenous school children. It then considers various forms of name discrimination still practiced today. It then briefly surveys the various ways in which the state continues practices that discriminate against people of color, LGBTQ couples and others on the basis of their names. Treating their names as property may be a means of dealing with such abuses. PubDate: Sat, 18 Nov 2023 13:49:43 PST
Authors:Brie D. Sherwin Abstract: Witch hunts have never been about facts or evidence; rather they are about beliefs often fueled by fear. Witch hunts of the past persecuted the powerless – typically women or those who did not fit into “societal norms.” More recently, the term “witch hunt” has reappeared with great fervor in the political arena, used by the powerful to generate fear that serves a distinct political narrative that those in power are the true victims. Tweets, sound bites, and political speeches rife with accusations of a “witch hunt” reflect a modern usage which has served to delegitimize the historical context of the term. This Article argues that this modern use of the term “witch hunt” is a misappropriation of what has long been used to describe illegitimate hunts of marginalized groups of people, implicating roles of gender, race, and power. This misuse is happening all while subversive, carefully veiled witch hunts are occurring in cleverly disguised legislation and litigation, supported by anecdotes and “spectral” evidence, and aimed at affecting the rights of historically oppressed groups of people based on their gender and race. This Article aims to remind the reader of what a “witch hunt” looked like in colonial New England and to propose that witch hunts are still alive today – not in the political arena, but in the legal one. Law cannot stand on conspiracy theories or perversions of truth shaped to fit a narrative, fueling fear, and resulting in the need to find a scapegoat. For as we’ve seen in the Salem witch trials, without a legal system rooted in reliable evidence and based on verifiable facts, a society can crumble. PubDate: Sat, 18 Nov 2023 13:49:42 PST
Authors:Shayna Roth Abstract: Despite its goals for feeding hungry students, the federal government’s National School Lunch Program falls short due to a lack of guidance and resources. One consequence of these circumstances is shaming practices where schools use fear, punishment, and socioeconomic segregation tactics to mitigate meal price deficits. The federal government and several state governments attempt, and sometimes succeed, to enact legislation to improve school lunch programs, but efforts are few and far between. This Note draws on effective state laws to advocate for increased legislative action on school meals across all states, specifically addressing and prohibiting shaming practices. Eliminating this barrier to school meals will mitigate socioeconomic stratification in learning environments and better prepare students to engage intellectually with educational opportunities. PubDate: Thu, 13 Apr 2023 18:23:07 PDT
Authors:Duncan Weinstein Abstract: The Hobbs Act, 18 U.S.C. § 1951, prohibits, in interstate commerce, “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear.” This Note addresses what makes an act “wrongful.” First, this Note reviews the academic literature on what makes extortion morally and legally wrong and the Hobbs Act’s legislative history. Then, it argues that there are four distinct types of threats under the Hobbs Act: violent threats, litigation threats, reputational threats, and economic threats. Each of these threats are judged by distinct standards for wrongfulness, with two circuit splits complicating the doctrine. This Note evaluates ways that these wrongfulness standards could be unified and finds them unsatisfactory. Instead, this Note suggests that prosecutors should be required to allege specific theories of threat in their indictments as a component of procedural due process. PubDate: Thu, 13 Apr 2023 18:23:07 PDT
Authors:Alichia McIntosh Abstract: Black women have been dying at devastating rates due to health complications at the hands of the United States’ healthcare and legal systems. This Note explores these distressing rates and how they compare to White women while analyzing the fatalities and diagnoses among several health complications and diseases. These fatalities persist due to the United States’ history of racism—such as the institution of slavery and over 100 years of Black bodies experiencing Jim Crow laws—and the socioeconomic disadvantages Black women disproportionally face. This Note emphasizes that these disparities continue because the United States has failed to implement treaties—which it is has ratified—and to ratify treaties that recognize health care as a human right and prohibit de facto and de jure discrimination. Instead, the United States’ legal system ignores the de facto discrimination that Black women face since the Supreme Court has held that the United States Constitution prohibits only de jure discrimination. Still, the question remains: how can the United States navigate out of the horrific disparities resulting from de facto discrimination and provide Black women a more equitable medical experience in U.S. society' This Note recommends the United States combat these disparities by investing in Black communities, recruiting and training more Black doctors, providing proper medical bias training, performing its obligations under the international treaties it has ratified, and ratifying the treaties is has enacted. PubDate: Thu, 13 Apr 2023 18:23:06 PDT
Authors:Tom Butcher Abstract: In this Note, I conduct an international comparison of the state of trans prisoners’ rights to explore how different national legal contexts impact the likelihood of achieving further liberation through appeals to human rights ideals. I examine the United States, Canada, the United Kingdom, Australia, India, Argentina, and Costa Rica and show the degree to which a human rights framework has been successful thus far in advancing trans prisoners’ rights. My analysis also indicates that the degree to which a human rights framework is likely to be successful in the future varies greatly between countries. In countries that are hesitant to adopt a legally internationalist orientation, a human rights framework is unlikely to see much success. Additionally, even countries with robust human rights traditions may be unlikely to apply that framework if the needs and identities of imprisoned trans people are not sufficiently visible in the national public consciousness. However, in countries with significant human rights or international law traditions, as well as a high degree of trans visibility, appeals to a human rights framework will likely lead to success in advocating for further protections for trans prisoners’ rights. PubDate: Thu, 13 Apr 2023 18:23:05 PDT
Authors:Patrick Hecker Abstract: American adult guardianship needs reform. Thankfully, there is a small but dedicated reform movement that sheds helpful light on problems of underfunding, inattention, and abuse. While the movement’s efforts are needed, this Note argues it is a mistake to focus solely on the ways the guardianship system is sometimes harmful to people who already have access to guardianship. Few reformers consider the needs of people who would benefit from a guardian but do not have anyone to petition the court on their behalf.This Note first argues that guardianship, despite its detractors, is redeemable. It can be part of a beneficial legal response to the problems of mass-incapacity and loneliness in America. This is especially true for the unbefriended and incapacitated population living in long-term care facilities—a frequently mistreated population.Second, the Note describes how the current legal structure surrounding public guardianship creates a market failure that incentivizes long-term care facilities to petition the wrong residents—residents who would benefit from alternative arrangements. Medicaid billing regulations, expenses related to the petitioning process, and the state of many public guardianship programs all contribute to the market failure. This leaves the unbefriended and incapacitated population without the benefits of a reformed guardianship system and exposes residents who would benefit from alternatives to abuse. The Note closes with recommendations on how to reform the incentive structure to create a cost-neutral petitioning process and a more humane and caring public guardianship service. PubDate: Thu, 13 Apr 2023 18:23:05 PDT
Authors:Imre S. Szalai Abstract: On March 3, 2022, President Joe Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the Amendment) into law. This Amendment is the most significant change in the last several decades to the Federal Arbitration Act (the FAA), the main federal law governing arbitration since 1925. This landmark Amendment is also the most important federal legislation to arise thus far from the #MeToo movement. The Amendment invalidates predispute arbitration agreements in cases involving sexual harassment or sexual assault, thereby allowing survivors to proceed with their claims in public court with more robust procedural protections. With hundreds of millions of arbitration agreements in place covering consumers and workers, the Amendment can impact access to justice and shape how disputes are resolved.While the goals of the Amendment are laudable, the Amendment suffers from several problems, including poor drafting that leads to at least three different interpretations of its scope. These ambiguities particularly arise when a survivor asserts a sexual harassment claim in addition to other types of claims. Furthermore, it is uncertain whether the Amendment applies in a labor setting with a collective bargaining agreement. The Amendment may also be unconstitutional as applied in certain settings involving state courts and state tort claims. Additionally, the Amendment raises deeper questions about the regulation of arbitration and proper role of arbitration in society. This Article clarifies some of the confusion regarding the Amendment by proposing a particular interpretation of the Amendment’s scope: the Amendment should be construed to cover all claims that have a nexus with a sexual assault or sexual harassment claim. The justifications for the Amendment also suggest that future reforms of arbitration law should address discrimination and other forms of harassment. PubDate: Thu, 13 Apr 2023 18:23:03 PDT
Authors:Lilah Kleban Abstract: Pre-embryos, procured through in-vitro fertilization (IVF), become a source of dispute when couples divorce or separate before using them. Particularly, couples may fight over who has decision-making power to use or not use the frozen pre-embryos for pregnancy. State courts across jurisdictions typically apply one of three categorical approaches: disposition contracts, contemporaneous mutual consent, or a balancing interests test. Each approach fails to provide courts with structures to fully evaluate each party’s interests at the time of dispute and account for inherent sex and gender differences that impact their stakes in the dispute. This Note proposes a modified balancing test that accounts for couples’ changing interests over time and provides defined balancing factors to ensure commensurate weight for sex and gender differences between parties. PubDate: Wed, 23 Nov 2022 18:52:38 PST
Authors:Dorit R. Reiss et al. Abstract: Social movements use legal tools to create narratives. Those narratives support social agendas which certain movements leverage to mislead their followers and potential followers. In this Article, we examine one influential anti-vaccine organization, the Informed Consent Action Network (ICAN), that uses its far-reaching platform to create false narratives around legal action. Again and again, this anti-vaccine group misrepresented both the legal and the factual meanings of court decisions, settlements, and other legal actions to create a narrative to galvanize its followers and influence newcomers. ICAN filed lawsuits that make anti-vaccine arguments—even when the legal framework did not fit doing so—and misrepresented the results. Most commonly in this category, while FOIA requests can only ask for documents and cannot ask queries, ICAN framed its frequent FOIA requests and subsequent lawsuits as if they were asking the agency to answer questions, rather than provide records. The group then presented the results to support one of its narratives—that vaccines cause autism—when the results did not, in fact, support such a narrative. This Article shows how legal tools advance disinformation and misinformation, creating a misleading, alternative reality. PubDate: Wed, 23 Nov 2022 18:52:37 PST
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