Wednesday, February 26, 2014
From Derek W. Black posted his article "The Constitutional Limit of Zero Tolerance in Schools" on SSRN. Here is the abstract:
With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application of zero tolerance policies. Indeed, courts have been so dismissive of constitutional challenges that most scholars all but concede the constitutionality of zero tolerance, arguing instead that schools should voluntarily adopt policy changes. This is incorrect. Although the constitution confers significant discretion on schools to regulate student behavior, that discretion does not include the authority to entirely strip students of their constitutional rights and punish them for any reason a school deems fit. This Article argues that fundamental principles of substantive due process limit zero tolerance. In particular, substantive due process prohibits state actors from (1) treating substantially dissimilarly situated students as though they are the same; (2) disregarding a student’s good-faith mistakes or innocence; and (3) presupposing the answers to due process inquiries so as to render hearings meaningless. Zero tolerance policies breach each of these principles and represent a broad overreach of state power, akin to the sort of state overreaching that the Supreme Court has struck down in related areas of juvenile justice. To comply with due process, the state must consider students’ intent and culpability, along with the potential harm posed by the behavior at issue. Contrary to conventional wisdom, courts can strike down zero tolerance policies that fail to take these steps without re-crafting constitutional doctrine.
Monday, February 24, 2014
Wednesday, January 29, 2014
Yuvraj Joshi has posted his article The Trouble with Inclusion, Virginia Journal of Social Policy and the Law, Vol. 21, No. 2, 2014, on SSRN. Here is the abstract:
Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.
Wednesday, October 23, 2013
LaVigne & Van Rybroek: "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships"
Michele LaVigne (University of Wisconsin Law School) & Gregory Van Rybroek (Mendota Mental Health Institute) have posted on SSRN "'He Got in My Face so I Shot Him': How Defendants' Language Impairments Impair Attorney-Client Relationships," 17 CUNY Law Review (2014). Here is the abstract:
Language impairments -- deficits in language and the ability to use it -- occur at starkly elevated rates among adolescents and adults charged with and convicted of crimes. These impairments have serious ramifications for the quality of justice. In this article, we focus specifically on the effects of a client's language impairment on the attorney-client relationship, the constitutional realm that suffers most when a client lacks essential communication skills. The effects of language impairment can be seen in a client's ability to work with a lawyer in the first place, tell a story, comprehend legal information, and make a rational and informed decision. This article shows how these effects play themselves out within the attorney-client relationship, and the impact on the lawyer's ability to meet her constitutional and ethical obligations. We also propose concrete steps for improving the quality of communication within the attorney-client relationship. While attorneys will obviously shoulder much of the responsibility, judges and prosecutors are not exempt. A client's poor communication skills are not simply be "the lawyer's problem," but a matter of great concern for all stakeholders in the justice system.
Thursday, October 10, 2013
Daniel L. Hatcher ( University of Baltimore - School of Law) has posted "Forgotten Fathers," 93 Boston University Law Review 897 (2013). Here is the abstract:
Poor fathers like John are largely forgotten, written off as a subset of the unworthy poor. These fathers struggle with poverty – often with near hopelessness – within multiple systems in which they are either entangled or overlooked, such as child-support and welfare programs, family courts, the criminal justice system, housing programs, and the healthcare, education, and foster-care systems. For these impoverished fathers, the “end of men” is often not simply a question for purposes of discussion but a fact that is all too real. In the instances in which poor fathers are not forgotten, they are targeted as causes of poverty rather than as possible victims themselves – or more accurately they fall somewhere along the false dichotomy between pure blame and pure sympathy. The poor fathers are lumped together in monolithic descriptions that become constants in equations attempting to understand and solve societal ills.
This Essay seeks to step back, to de-simplify the incorrect math and begin drawing the interconnections between the legal and policy systems impacting low-income fathers, including the linkages to impoverished women and families. The contexts of race, gender, and class are engaged within the numerous systems and legal structures that impoverished fathers encounter. These systems and their impact must each be considered individually while simultaneously understanding the broader view of the system interactions. The appropriate discussion point for fathers like John is not found in the narrative of the “end of men” and the purported competition between men and women as struggling for the mantel of the dominant sex. Nor is the issue best illustrated by a Super Bowl commercial for a Dodge Charger muscle car “vrooming toward the camera punctuated by bold all caps: MAN’S LAST STAND,” with the lingering question of who should be “steering the beast.” John does not even have a driver’s license. Rather, the discussion for impoverished fathers should be directed toward whether there is an opportunity to turn back from their gradual acquiescence to failure, and whether at-risk boys can veer away from a seemingly pre- determined path.
Friday, October 4, 2013
Beth A. Burkstrand-Reid (University of Nebraska at Lincoln - College of Law) recently posted "From Sex for Pleasure to Sex for Parenthood: How the Law Manufactures Mothers," Hastings Law Journal (2013). Here is the abstract:
As soon as sperm enter a woman, so do law and politics, or so the decades-long disputes surrounding abortion suggest. Now, however, renewed debates surrounding contraceptives show legal and political interference with women’s sexual and reproductive autonomy may actually precede the sperm. This Article argues that, increasingly, women even thinking about having sex are defined socially and legally as “mothers.” Via this broad definition of who is a “mother," the State extends its reach into women’s decision-making throughout their reproductive lifetime.
This Article argues that the State simultaneously devalues women’s choices to have sex for pleasure, which this Article calls desexualization, and uses medical rituals associated with motherhood, which this Article calls ritualization, to persuade women to accept the role of mother. Desexualization and ritualization signal the State’s attempt to influence women’s sexual and reproductive decision-making not only in the context of abortion but also in the areas of contraception, pregnancy, and childbirth.
Wednesday, October 2, 2013
February 7-8, 2014
Fri. 8:30 a.m. - 5:30 p.m. | Sat., 8:30 a.m. - 4 p.m.
Hosted by University of Miami School of Law, University of Miami School of Law Race & Social Justice Law Review, Miami Worker's Center Sisterhood of Survivors, and Center on Applied Feminism-University of Baltimore School of Law.
Register<http://www.law.miami.edu/academics/converge/index.php?op=0> | Call for Papers & Presentations<http://www.law.miami.edu/academics/converge/presentations.php?op=4>
For more than 40 years, gender violence has been the focus of U.S. feminist activism.
Where are we headed now?
The CONVERGE! conference will bring together survivors, activists, lawyers, service providers, and academics to reconsider the dominant U.S. responses to gender violence, to build capacity for political mobilization and reform, to share innovative approaches to gender violence, and to promote cross-fertilization and collaboration. Join the CONVERGE! conversation to build a transformative political agenda to refocus U.S. priorities in ways that better address the intersecting inequalities that create and maintain gender violence.
Tuesday, October 1, 2013
Elizabeth Chika Tippett has posted "Gatekeepers of Last Resort: The Role of Employers in Mitigating Child Abuse" on SSRN. Here is the abstract:
This article examines the fraught but potentially useful role that employers could play in the prevention and mitigation of child abuse in the workplace. Common law tort liability already places a gatekeeping duty on employers to exclude employees from the workplace when they pose a threat to third parties. In theory, this allows employers to fill a problematic regulatory gap that tends to arise when an employee is accused of abuse but where the police and child welfare authorities decline to take official action. In practice, however, employers face considerable countervailing liability to the employee accused of abuse, which tends to reward inaction or insufficient action to address the particular threat posed by the employee.
Using the Penn State scandal as a reference point, this article provides an overview of existing law regarding child abuse in the workplace and their limitations. Drawing from dozens of cases and labor arbitrations it then provides a detailed examination of the types of liabilities employers face to employees accused of abuse. The article concludes by discussing legislative reforms that would reduce employer liability to those accused of abuse, enabling employers to better serve as gatekeepers of last resort where law enforcement mechanisms fail.
Tuesday, September 3, 2013
The Feminist Legal Theory CRN's Call for Papers for the 2014 Law and Society Association Annual Meeting available for Download Here.
Law & Society, the Feminist Legal Theory CRN seeks to bring together
scholars across a range of fields who are interested
in feminist legal theory. There is no pre-set theme to which papers must
would be especially happy to see proposals that fit in with the LSA conference
theme, which is the role of law and legal institutions in sustaining, creating,
interrogating, and ameliorating inequalities.
We welcome proposals that would permit us to collaborate with other
CRNs, such as the Critical Research on Race and the Law CRN or the Gender,
Sexuality and the Law CRN. Also, because the LSA meeting attracts scholars from
other disciplines, we welcome multidisciplinary proposals.
Proposals are due September 18th, with specific submissions details included in the above document.
Friday, May 17, 2013
Elizabeth N. Jones (Western State College of Law) has posted her article Judges, Family Law, Cultural Sociology of Divorce: An Encyclopedia, pp. 626-629, Robert E. Emery, ed., 2013, on SSRN. Here is the abstract:
This is a chapter in an encyclopedia put forth by Sage Publications. I am the sole author of this particular chapter; there are several hundred contributing authors to the encyclopedia as a whole. It is a multi-disciplinary work which details subjects related to divorce: legal, social, anthropological, religious, psychological, and historical.
In this chapter, I describe the role of the family law judge in divorce proceedings.
The role of the family law judge is a varied one. At its core, the position is one of authority. The lawyers, parties, and court staff all give the judge great deference in the courtroom, referring to the judge as “your honor.” This is further affirmed in the judge’s raised bench overlooking the entire courtroom, in the judge’s traditional gavel used to silence the courtroom and maintain order, and in the judge’s distinct formal clothing, usually consisting of long judicial robes. These formalities are designed to instill respect for the legal institution as a whole.
Thursday, May 9, 2013
Govind Persad (University of Pennsylvania) posted "What Marriage Law Can Learn from Citizenship Law (and Vice Versa)," 22 Law & Sexuality (2013), on SSRN. Here is the abstract:
Citizenship and marriage are legal statuses that generate numerous privileges and responsibilities. Legal doctrine and argument have analogized these statuses in passing: consider, for example, Ted Olson’s statement in the Hollingsworth v. Perry oral argument that denying the label “marriage” to gay unions “is like you were to say you can vote, you can travel, but you may not be a citizen.” However, the parallel between citizenship and marriage has rarely been investigated in depth. This paper investigates the marriage-citizenship parallel with a particular focus on three questions prompted by recent developments in law and policy:
1) Should we provide second-best statuses? Some couples — in particular gay and lesbian couples—have been offered permanent statuses, like civil unions, that bear legal privileges but fall short of full marriage equality. In contrast, similar differentiations within citizenship are generally resisted. The history of citizenship may presage the increasing unacceptability of differentiations within status in the gay marriage context. Meanwhile, the history of marriage equality efforts may help present-day citizenship advocates choose legal strategies.
2) Should statuses be a gateway to rights? Some early gay rights advocates unsuccessfully argued that advocates should challenge the primacy of marriage, rather than seek access to the institution. Advocates attempting to expand the rights of current noncitizens face similar choices: should they seek to give current noncitizens greater access to citizenship, or challenge the reservation of important rights to citizens?
3) Can status relationships be plural? Many critics of dual and multiple citizenship argued that allegiance to multiple states was immoral, unadministrable, or both. More recently, polygamous marriage has become a topic of legal and political discourse, first as a foil in anti-gay marriage arguments and later as a political possibility in its own right. I will consider whether polygamous marriage advocates can profitably draw on arguments for multiple citizenship, and how multiple-citizenship advocates should responsibly respond to the analogy with polygamy.
Tuesday, April 30, 2013
Marcia Anne Yablon-Zug (University of South Carolina School of Law) has posted her article "Adoptive Couple v. Baby Girl: Two and a Half Ways to Destroy Indian Law" (forthcoming Michigan Law Review) on SSRN. Here is the abstract:
On April 16th, the US Supreme court will hear arguments in the case Adoptive Couple v. Baby Girl. This case involves an Indian child whose attempted adoption by a non-Indian couple in South Carolina violated the provisions of the Indian Child Welfare Act (ICWA). Because of this violation, the family court ordered her return to her biological father. The case has received extensive media attention and has resulted in the vilification of ICWA. Nevertheless, the Court’s decision to hear the case was surprising. The issues in the case are straightforward and the lower courts’ decisions were clearly correct. Consequently, the Supreme Court’s interest likely indicates that this case will be used to address broader issues than those delineated in the questions presented. This essay explores the legal issues raised by the Baby Girl case and examine the ways in which the Court is likely to use this decision to redefine current understanding of ICWA and maybe all of Indian law.
Saturday, March 23, 2013
Friday, March 22, 2013
ISFL REGIONAL CONFERENCE IN ISRAEL, DECEMBER 29TH – 31ST, 2013
Theme: International Family Law with Emphasis on the Work of the Hague Conference on Private International Law.
The conference marks the 30th anniversary of the entry into force of the Hague Convention on the Civil Aspects of International Child Abduction (in December 1983) and the publication of Dr. Rhona Schuz's book, "The Hague Child Abduction Convention – A Critical Analysis" (to be published in summer 2013 by Hart Publishing).
Download Conference flyer for further details.
Thursday, March 21, 2013
The statistics tell the story of the American family: According to the U.S. Census Bureau, 2010 marked the milestone when blended families or stepfamilies became the most common form of family in America; 2,100 new blended families are formed every day in this country; 41 percent of unmarried couples living together have children living in the home; over 65 percent of Americans are now a stepparent, a stepchild, a stepsibling, a step-grandparent, or touched directly by a stepfamily scenario. Moreover, the Pew Research Center reports interracial marriages are on the rise in America--in 1980, 3 percent of married couples were mixed race; today 1 in 12 couples are interracial couples.
We will produce a carefully balanced academic work that chronicles the social, cultural, economic, and political aspects of American families from the colonial period to the present. Key themes will include families and culture (including mass media), families and religion, families and the economy, families and social issues, families and social stratification and conflict, family structures (including marriage and divorce, gender roles, parenting and children, and mixed and non-modal family forms), and family law and policy. Approximately 600 articles, richly illustrated with historical photographs and video clips in the online edition, will provide the historical context for students to examine political and social debates about the importance of the family and the evolving constructions of the American family. The work will also include a collection of primary source documents demonstrating these themes across time. The signed articles, with cross-references and Further Readings are accompanied by pedagogical
elements, including the Reader's Guide, Chronology of American Families, Resource Guide, Glossary, and thorough index.
This comprehensive project will be published by SAGE Reference and will be marketed to academic and public libraries as a print and digital product available to students via the library's electronic services. The General Editors, who will be reviewing each submission to the project, are Drs. Lawrence Ganong and Marilyn Coleman, University of Missouri.
We are currently making assignment with a deadline of June 7, 2013.
If you are interested in contributing to this cutting-edge reference, it is a unique opportunity to contribute to the contemporary literature, redefining sociological issues in today's terms. SAGE Publications offers an honorarium ranging from SAGE book credits for smaller articles up to a free set of the printed product for contributions totaling 10,000 words or more.
The list of available articles is already prepared, and as a next step we will e-mail you the Article List (Excel file) from which you can select topics that best fit your expertise and interests. Additionally, Style and Submission Guidelines will be provided that detail article specifications. If you would like to contribute to building a truly outstanding reference with Social History of American Families, please contact me by the e-mail information below. Please provide your CV or a brief summary of your academic/publishing credentials in related disciplines.
Thanks very much.
Wednesday, March 6, 2013
This article offers the only empirical analysis to date of national data evaluating the claim that defense of marriage acts (DOMAs) preserve and stabilize the family. The article examines marriage and divorce changes in trends for every state over the last ten years for which data is available comparing changes, if any, before and after a DOMA was enacted or same sex marriage was permitted. After concluding that DOMA does not play a role in either divorce or marriage changes in trends or rates, the article explores what variables are, in fact, correlated with family stability. Given that poverty, religiosity, education, income, age of marriage all play a key role in family stability, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs’ continued attraction for achieving family stability. Finally, the article offers pragmatic recommendations for achieving family stability. The article asserts that rather than advocate for one decreasingly relevant model of family formation, steps should be taken to mirror the characteristics and outcomes that are associated with stable families. Substance over form will lead to the goals that misguided legislatures thought DOMAs would achieve.
Friday, February 22, 2013
Jones: "Questioning a Juvenile's Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North Carolina"
Elizabeth N. Jones (Western State College of Law) has posted "Questioning a Juvenile's Capacity for Criminal Liability in Street Gangs Post-J.D.B. v. North Carolina," 32 Children's Legal Rights Journal (Winter 2012) on SSRN. Here is the abstract:
This article explores how the recent groundswell of acceptance of adolescent neuroscience has manifested in United States Supreme Court cases involving juveniles, and the resultant implications for children accused of gang-related crimes and enhancements. Juvenile gang convictions proliferate, but the foundation of such prosecutions is precariously – and improperly – based. Though varied in title, predicate offenses, and penalties, most state gang legislation contains language requiring offenders to have at least a tacit understanding, or knowledge, that the group’s common purpose is to commit crimes to benefit the gang. However, this mens rea required for anti-gang statutes, combined with the inability to know, without closer analysis, whether juveniles in fact possess such mens rea, creates a conundrum: children make up a significant proportion of gang membership, but yet lack the capacity to be prosecuted under current anti-gang legislation, especially given the new parameters set forth by the United States Supreme Court.
Thursday, February 21, 2013
Katie R. Eyer (Rutgers School of Law -- Camden) has posted her paper "Constitutional Colorblindness and the Family" (forthcoming, University of Pennsylvania Law Review) on SSRN. Here is the abstract:
Family law has escaped the colorblindness revolution. During the same time frame that the Supreme Court has adopted increasingly stringent constitutional standards for even “benign” uses of race (including most notably affirmative action), the lower courts have continued to take a loose and permissive approach to many government uses of race in the family. Thus, courts have continued to regularly affirm (and to apply minimal constitutional scrutiny to) the use of race to determine foster care and adoptive placements, as well as the use of race as a factor in custody disputes between interracial parents.
This paper, drawing on heretofore unexplored historical sources, examines the Supreme Court’s role in the development of these divergent approaches to the use of race in the affirmative action and family law contexts. As those sources demonstrate, the Court has — over the last 40 years — had numerous opportunities to address the growing divide. Nevertheless the Court (and particularly its most strident affirmative action detractors) have been reluctant to do so, at least in part because of a normative endorsement of the race-based practices at issue in the family law context. Thus, the Court has avoided taking up cases involving the use of race in family law — and taken other steps to limit the reach of its doctrine in the family law arena — based on a normative perception that remaining instantiations of race in family law are, at their core, benign.
This history has profound implications for the Court’s broader race law jurisprudence. Supreme Court doctrine has — on its face — rejected the possibility of a role for normative judgments about the “benign” or “invidious” nature of particular race-based classifications in its Equal Protection doctrine. But the history of the Court’s approach to family law suggests strongly that the Court itself does in fact weigh such factors sub rosa in its approach to taking up and adjudicating race law claims. This article suggests that there are serious process, legitimacy and substantive concerns raised by such a divergence, and discusses alternatives for bringing the Court’s doctrine into greater alignment with its practice.
Saturday, February 16, 2013
Beyond Roe: Reproductive Justice in a Changing World
Throughout 2013, five law schools in the Delaware Valley will hold events exploring various aspects of reproductive justice in the 40 years post-Roe v. Wade. The final event in this series is a conference sponsored by the Rutgers School of Law – Camden that will take place on Friday, October 11 on the Rutgers campus in Camden, New Jersey.* You can find more information about the conference here: http://camlaw.rutgers.edu/beyond-roe-conference.
We are now pleased to invite proposals for papers and panels. The conference theme is Beyond Roe: Reproductive Justice in a Changing World. We welcome submissions on any topic related to the law, policy and reproduction, including avoiding reproduction, public policy related to reproduction, and reproductive regulation post-Roe.
Paper abstracts should be no more than 500 words, accompanied by a descriptive title for the paper proposed. Proposed panels should include a description of the overall topic, as well as a panel title and the titles of all the papers and panelists to be included in the panel. Panels should include no less than 4 proposed panelists. Panel proposals should also be no more than 500 words. All submissions must include the names, e-mail addresses, and full affiliations of all authors. In the case of panels and co-authored papers, please identify a corresponding author and provide sufficient detail in your abstract or proposal so that reviewers can fully assess your proposal and determine how it will fit with other proposals being reviewed.
There will be two plenary sessions at the conference and some submitted papers might be selected for plenary presentations. If you wish for us to consider your paper for a plenary session, please indicate that desire on your submission.
Please e-mail submissions (in .doc, .docx, or .pdf format) to email@example.com by April 1, 2013. If you have any questions about the conference, please direct them to Kimberly Mutcherson at firstname.lastname@example.org.
Though the conference will have a primary focus on law, we also invite submissions from other disciplines including philosophy, the social sciences, critical cultural studies (gender and sexuality studies, disability studies, critical race studies, etc.), public health, and others.
We urge you to interpret the conference theme broadly. While this conference emerges from the Roe anniversary, we seek to initiate and support discussion across a wide range of reproductive justice topics and want to build a conference program that looks forward to the world created in the wake of Roe rather than focusing narrowly on the Roe decision itself or on issues related to abortion. Possible topics for inclusion on the program include:
- Burgeoning markets in reproduction fueled by assisted reproductive technology (“ART”), including cross border fertility care (“reproductive tourism”), the market in gametes, creating of kinship ties without biological or genetic links, and informed consent in the fertility industry;
- Public health approaches to abortion, contraception, assisted reproduction, pregnancy and childbirth;
- Race, class, sexual orientation and access to childbearing and the economics of reproduction;
- The medical market and insurance issues related to abortion/contraception, prenatal care, childbirth and fertility services;
- Reproductive justice in the courts, including the future of the Supreme Court’s evolution on abortion access, treatment of pregnant prisoners, access to contraception, reproductive health services for undocumented immigrants, prenatal testing, etc.;
- Issues of abortion access, including training for a new generation of abortion providers, harassment of providers, and TRAP laws;
- Racialized and woman protective arguments against abortion and their impact on abortion access and reproductive health;
- Familial privacy and the state, including the relationship between access to reproduction and parenting and the power wielded by child protective services;
- Intimate partner violence and reproduction;
- Affordable Care Act implications for reproductive health services;
- Pregnancy and the workplace; and
- Human rights discourse and access to reproductive health services.
There may be a publishing opportunity for interested conference participants. We will share more information about that possibility with panelists whose work is selected for inclusion in the conference program.
* For those unfamiliar with our campus, we are located a few short minutes from Philadelphia, Pennsylvania. Amtrak’s 30th street station is a 10-minute cab ride from campus and the Philadelphia International Airport is approximately 20 minutes from campus by cab. Philadelphia offers a wealth of cultural opportunities, including world-class museums, fine dining, theater, and an extensive public park system that can be enjoyed while away from the conference (http://www.visitphilly.com/).
Friday, February 15, 2013