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  Subjects -> SOCIAL SERVICES AND WELFARE (Total: 224 journals)
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Northwestern Journal of Law & Social Policy
Number of Followers: 6  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1557-2447
Published by Northwestern University Homepage  [6 journals]
  • One-Way Ticket to Mars: The Privatization of the Space Industry and its
           Environmental Impact on Earth and Beyond

    • 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
  • Third Coast Housing Solutions: The Case for Bringing YIMBY Legal Activist
           Strategies to Chicago

    • 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
  • The DOJ OLC Transparency Act: Is Transparency Enough to Combat Problematic
           Norms in the Office of Legal Counsel'

    • 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
  • Belonging Matters: One School’s Strategy for Fostering Community and
           Confidence Among Students from Historically Excluded Groups

    • 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
  • Name Takings

    • 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
  • Hocus Pocus: Modern-Day Manifestations of Witch Hunts

    • 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
  • Put Your Money Where Their Mouths Are: A Case for State-Based Investment
           in Anti-Shaming Policies for School Lunch Programs

    • 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
  • The Limits of Wrongfulness: What Exactly is Prohibited by Hobbs Act

    • 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
  • America’s Healthcare Inequities and Beyond Are Taking Black
           Women’s Lives

    • 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
  • Human Rights, Trans Rights, Prisoners’ Rights: An International

    • 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
  • Legally Alone: The Redeemability of Guardianship and Recommendations
           Toward Equitable Access

    • 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
  • #MeToo’s Landmark, Yet Flawed, Impact on Dispute Resolution: The Ending
           Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021

    • 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
  • Towards an Equitable Review of Pre-Embryo and Divorce Disputes for Women

    • 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
  • Law in the Service of Misinformation: How Anti-Vaccine Groups Use the Law
           to Help Spin a False Narrative

    • 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
  • An Avenue for Corruption: Super PACs and the Common Vendor Loophole

    • Authors: Matt Choi
      Abstract: In their campaign efforts, Super PACs and political candidates often engage professional media agencies or political consulting firms to aid them in production and placement of advertisements on media outlets, planning of advertising efforts, and planning campaign strategy. But an increasing number of Super PACs have taken to hiring the same media agencies and consulting firms as the candidates they support. Through the use of a so-called “common vendor,” Super PACs and their supported candidates can coordinate advertising strategies with each other without triggering the federal limits on spending and fundraising.The Federal Election Commission (FEC) and the public must recognize the threat that the unregulated use of common vendors poses to our electoral democracy. Because the FEC has adopted regulations that make bringing complaints regarding common vendors nearly impossible, Super PACs and political candidates continue to evade accountability. The FEC should therefore reconsider adopting a rule presuming coordination whenever a Super PAC and a political candidate use a common vendor. By doing so, the FEC can require candidates and their Super PACs to truly ensure and document that no coordination takes place by performing due diligence prior to engagement and documenting their communications with the media agency. In addition, a more detailed firewall provision can serve to prophylactically stop actual coordination from taking place. Addressing the common vendor rule alone will not diminish the ever-increasing amount of funds poured into political campaigns by wealthy donors, but closing off this loophole is essential to an overall campaign regime of full disclosure from political actors.
      PubDate: Wed, 23 Nov 2022 18:52:37 PST
  • Do Prison Conditions Change How Much Punishment A Sentence Carries Out'
           Lessons From Federal Sentence Reduction Rulings During the COVID-19

    • Authors: Skylar Albertson
      Abstract: A set of motions filed during the COVID-19 pandemic challenged federal judges to consider whether they should always view the duration of imprisonment—as contrasted with prison conditions—as the sole determinant of how much punishment a sentence carries out. Under 18 U.S.C § 3582(c)(1)(A)(i), federal judges may “reduce” already imposed terms of imprisonment upon finding that “extraordinary and compelling reasons” warrant reductions. Prior to 2019, the Bureau of Prisons (BOP) effectively controlled the scope of a catch-all subcategory of “Other Reasons” justifying sentence reductions. The BOP used this authority almost exclusively for people who were in the final stages of terminal illness. The First Step Act of 2018 (FSA) amended § 3582(c) in a manner that freed federal judges to decide for themselves what types of circumstances meet the “extraordinary and compelling reasons” standard. The FSA also authorized people in federal custody to file motions on their own behalf, instead of permitting only the Director of the BOP to do so. Roughly a year later, the COVID-19 pandemic prompted the increased use of lockdowns and other restrictions inside U.S. prisons. Among the many thousands of people who moved for sentence reductions, several hundred argued that imprisonment with these new restrictions amounted to a greater punishment than pre-pandemic imprisonment. This Article explores the lessons that the decisions adjudicating these motions offer for the design of sentencing laws—including second looks—as well as efforts to increase transparency surrounding life inside prisons.
      PubDate: Wed, 23 Nov 2022 18:52:36 PST
  • Outside Tinker’s Reach: An Examination of Mahanoy Area School District
           v. B. L. and its Implications

    • Authors: Michelle Hunt
      Abstract: In the 1969 landmark case Tinker v. Des Moines Independent Community School District, the Supreme Court reassured students that they do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Ever since then, the exact scope of students’ free speech rights has been unclear, but the high court has used Tinker’s substantial disruption test to clarify its scope in successive legal challenges. In 2017, B. L., a Mahanoy Area School District student, was suspended from her cheerleading team after using vulgar language off-campus that made its way back to her coaches. She challenged the decision in the courts, and when her case reached the Court of Appeals, the Third Circuit declined to use Tinker’s test in its decision, instead ruling that Tinker categorically does not apply to any off-campus speech. The Third Circuit’s argument that courts should use a bright-line rule in applying Tinker to off-campus speech is a compelling one. This Comment evaluates the substance of the Third Circuit’s decision, describes the Supreme Court’s eventual retort, and discusses why the Supreme Court’s ruling fails millions of public school students and their families. While the Supreme Court vindicated B. L., students suffer without clear guidance regarding student free speech rights.
      PubDate: Tue, 19 Apr 2022 10:23:00 PDT
  • Medical Necessity of Residential Treatment for Anorexia: Can Parity be

    • Authors: Abbey Derechin
      Abstract: This Note examines the statutory landscape of mental health parity in the United States. The lens of this Note is through the mental illness of anorexia. Parity laws mandate analogous limitations between mental and physical illness. Therefore, because anorexia has many physical manifestations, it serves as a nice juxtaposition to physical illnesses. This Note will argue for broad interpretation of the Mental Health Parity and Addiction Equity Act (MHPAEA) through comparative analysis of counterpart statute, the California Mental Health Parity Act (CMHPA). It will explore how courts have interpreted the CMHPA broadly to suggest that the MHPAEA should be interpreted the same way.
      PubDate: Tue, 19 Apr 2022 10:23:00 PDT
  • How Judicial Accounting Law Fails Occupying Cotenants

    • Authors: Phil Rich
      Abstract: Few law students remember judicial accounting law from their property law course, and it’s hard to blame them. This little-discussed body of law is formulaic and rarely addressed by appellate courts. Judicial accounting law, however, should not be ignored. The law, which allocates equity to cotenants (or, more colloquially, co-owners) of residential property upon partition of that property, guides homeowners’ behavior and shifts wealth between them. This Note argues that state legislatures should reform judicial accounting law to better protect those cotenants living in their homes from partitions brought by cotenants living elsewhere.The problem with judicial accounting law lies in its rigid approach to distributing property among cotenants. Current judicial accounting law considers only six monetary factors when allocating equity to cotenants, including housing payments and the fair market value of rent (credited to cotenants who are not living in the home). As this Note explains, this inflexible process ignores the unique nature of residential property, improperly pushing occupying cotenants—those who live on the property—away from their home. To prevent harm to occupying cotenants, judicial accounting law should incorporate some additional non-monetary factors to enable judges to shift more equity to the occupying cotenant in cases where (1) that cotenant has an established connection to their home and community, and (2) the non-occupying cotenant has induced the occupying cotenant to rely on stable housing. This modest change in law promotes utility while remaining grounded in analogous areas of law, such as the marital distribution of property.
      PubDate: Tue, 19 Apr 2022 10:22:59 PDT
  • Insuring Contraceptive Equity

    • Authors: Jennifer Hickey
      Abstract: The United States is in the midst of a family planning crisis. Approximately half of all pregnancies nationwide are unintended. In recognition of the social importance of family planning, the Affordable Care Act (ACA) includes a “contraceptive mandate” that requires insurers to cover contraception at no cost. Yet, a decade after its enactment, the ACA’s promise of universal contraceptive access for insured women remains unfulfilled, with as many as one-third of U.S. women unable to access their preferred contraceptive without cost.While much attention has been focused on religious exemptions granted to employers, the primary barrier to no-cost contraception is the profit motivation of private insurance companies. This Article fills a crucial gap by providing an in-depth examination of the insurance practices that burden contraceptive access for the vast majority of reproductive-aged women on both public and private insurance. Private insurers are afforded substantial discretion in the products they choose to cover and the costs they set, and this causes significant disparities in the availability and affordability of various contraceptive methods. Arguments for equitable and enhanced contraceptive access are traditionally grounded in claims of constitutional rights to reproductive freedom. Unfortunately, this rhetoric of individual rights, rooted in privacy jurisprudence, focuses only on restraining the state from interfering with a woman’s reproductive decisions. This absolves the state of responsibility for family planning and allows women to shoulder the burden of unintended pregnancy as a matter of individual choice and responsibility.This Article instead applies vulnerability theory to establish state responsibility for just and fair distribution of contraception. A vulnerability approach imposes positive obligations on the state to provide contraception as a form of resilience, rather than allowing the state to abdicate responsibility to the private insurance market and individual women under a limited “consumer protection” role. This approach requires the state to monitor and regulate the discretion afforded to insurance companies in making public decisions regarding coverage of various contraceptive methods. This includes examining inequitable insurance practices and policies and assessing power imbalances between insurers, providers, and pharmaceutical companies and patients. In this manner, the United States can move beyond its narrow consumer-oriented approach to contraception and recognize that contraception is vital to fulfillment of important social obligations, not an individual choice made by empowered consumers.
      PubDate: Tue, 19 Apr 2022 10:22:58 PDT
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