Tuesday, December 1, 2020
Many thanks to everyone who participated in the call for recent scholarship. Members of our community have produced a number of truly interesting articles. They are divided into broad categories below for easy perusal. Congrats to all the authors!
Asylum & Immigration
Liz Keyes, Duress in Immigration Law, Seattle L. Rev. (forthcoming), A look at the disparate ways immigration law treats duress--providing exculpation in some settings (including, counter-intuitively, terrorism) but not in others, like the more sympathetic realm of asylum.
Jennifer Lee Koh, Executive Defiance and the Deportation State, 130 Yale L.J. __ (forthcoming 2021), This essay examines executive defiance in the deportation and detention contexts: situations where the agency refuses to obey a federal court order, as well as instances in which government lawyers transgress litigation norms, thereby defying judicial authority.
Jennifer Lee Koh, Barricading the Immigration Courts, 69 Duke L.J. Online 48 (2020), Examines recent executive-level actions that preclude access to the immigration courts, with emphasis on asylum.
Ingrid Eagly & Steven Shafer, Measuring In Absentia Removal in Immigration Court, 168 Univ. Pa. L. Rev. 817 (2020), No academic study has empirically analyzed decisions by United State immigration judges to deport judges to deport noncitizens without first providing them a day in court, a procedure known as in absentia removal. Yet bold assertions by members of the current presidential administration that immigrants “never” appear in court drive central policy decisions on immigration enforcement, including growing the immigration detention system, limiting access to asylum, and building a border wall. By reviewing immigration court data from 2008 to 2018 made publicly available by the Executive Office of Immigration Review, this Article provides the first-ever independent analysis of in absentia removal orders. Contrary to claims that all immigrants abscond, our data-driven analysis reveals that 88% of all immigrants in immigration court with completed or pending removal cases over the past eleven years attended all of their court hearings. If we limit our analysis to only nondetained cases, we still find a high compliance rate: 83% of all respondents in completed or pending removal cases attended all of their hearings since 2008. Moreover, we reveal that 15% of those who were ordered deported in absentia since 2008 successfully reopened their cases and had their in absentia orders rescinded. Digging deeper, we identify three factors associated with in absentia removal: having a lawyer, applying for relief from removal (such as asylum), and court jurisdiction. These and other important findings have immediate implications for key immigration policy questions.
Jason Cade, 'Water is Life!' (and Speech!): Death, Dissent and Democracy in the Borderlands, 96 Ind. L.J. (forthcoming 2020), Decades of stringent immigration enforcement along the Southwest border have pushed migrants into perilous desert corridors. Thousands have died in border regions, out of the general public view, yet migrants continue to attempt the dangerous crossings. In response to what they see as a growing humanitarian crisis, activists from organizations such as No More Deaths seek to expand migrant access to water, to honor the human remains of those who did not survive the journey, and to influence public opinion about border enforcement policies. Government officials, however, have employed a range of tactics to repress this border-policy “dissent,” including blacklists, water destruction, and aggressive arrests and prosecutions. This Article argues that the context around No More Deaths’ work necessitates First Amendment scrutiny of government attempts to suppress or punish it. No More Deaths’ expressive conduct, carried out in the lethal areas where migrants have been funneled, aims not only to save lives but also to convey the message that all lives—including those of unauthorized migrants—are worth saving. After carefully untangling the complex constitutional sub-doctrines, the Article explains the argument’s broader implications for democratic knowledge and debate about the ethics of border policies. As increased border fortification and militarization lead migrants to attempt even more dangerous land and water crossings, Americans will increasingly be asked to consider whether humanitarian aid should be a crime. This debate-generating function of No More Deaths’ non-violent, symbolic dissent regarding an area of inchoate but intense public concern aligns it with classical values that lie at the core of the First Amendment.
Jeffrey R. Baker & Allyson McKinney Timm, Zero-Tolerance: The Trump Administration's Human Rights Violations Against Migrants on the Southern Border, 13 Drexel L. Rev. (forthcoming 2021), This article analyzes the Trump Administration's zero-tolerance immigration and asylum policies through the lens of international human rights laws, especially including the treaties and conventions to which the US is a party. These policies resulted in the forcible separation of families and the detention of children in violation of US law and international human rights law. The paper assesses the Trump Administration's practices and demonstrates clear human rights abuses on the southern border.
Lindsay M. Harris, Asylum Under Attack, 62 Loy. L. Rev (forthcoming Fall 2020), This article traces the sustained series of policies, regulations, and other actions taken by the Trump Administration against asylum seekers. Taking into account public commitments made by the Biden campaign, this article outlines the actions a future democratic Administration will need to take to not only right the wrongs committed by the Trump Administration, but to provide truly meaningful asylum protection and to reassume the United States’ role as the global leader in refugee protection.
Danielle Kalil, Certified Disaster: A Failure at the Intersection of the U Visa and the Child Welfare System, 35 Geo. Immigr. L.J. (forthcoming Winter 2021), Other scholars agree that state and local agencies’ resistance to collaborating around federal immigration policy has derailed the U visa’s goals and rendered the certification requirement a barrier to the very protection it was meant to facilitate. This article is the first to explore the certification practices of child welfare agencies and analyze the U visa certification process through the lens of an agency’s duties to children in its care.
Sabrineh Ardalan, Asymmetries in Immigration Protection, 85 Brook. L. Rev. 319 (2020), This article addresses a major asymmetry in immigration procedures. Individuals who are deported from the U.S. and attempt to reenter have the opportunity to prove their fears of return to their home countries, whereas those with prior deportation orders who remain in the U.S. are not. This article proposes adoption of a pre-removal screening process to safeguard all immigrants from return to persecution or torture, in accordance with U.S. obligations under domestic and international law.
Christine Cimini & Doug Smith, An Innovative Approach to Movement Lawyering: The Immigrant Rights Case Study, 35 Geo. Immigr. L.J. (forthcoming 2020), The role of lawyers in social change movements is more critical than ever as communities mobilize around systemic racism, police killings, xenophobia, rising unemployment, and widening economic inequality. The immigrant rights movement is a critical part of these efforts to foment change. This Article leverages an in-depth case study – the rise and fall of the controversial immigration enforcement program known as Secure Communities - to explore how lawyers work as part of a community to challenge power and effectuate change. The dismantling of Secure Communities was widely credited to a relentless campaign to thwart the government’s then-expanding deportation strategy. The authors reviewed over 23,000 internal DHS documents, media accounts, court transcripts, and interviewed 30 administrative officials, congressional actors, organizers, clients, activists, and lawyers involved in the Secure Communities campaigns. This Article draws on extensive evidence to identify an innovative approach to movement lawyering that involved coordinated efforts of movement actors on the micro level (achieving immediate goals), the meso level (effecting broader policy change), and the macro level (organizing communities around narrative identities). The Article concludes that efforts at change were optimized when lawyers, organizers, and activists together built a nimble, adaptive, and modular strategy to enhance concerted power from the ground up. Within this new construct, lawyers can develop new ways of working with communities that synergistically exploit the advantages of various social change strategies at any given time, producing strengthened relationships and lasting investments in organized resistance.
Anne Choike, A New Urban Front for Shareholder Primacy, 9 Mich. Bus. & Entrepreneurial L. Rev. 79 (2019), In this Article, I analyze CBOs and other new local laws and ordinances that promote stakeholder governance and engagement, and argue that such local laws meaningfully differ from traditional stakeholder protections, most significantly in the way that they weaken managerial accountability to the shareholders of organizations to which such local laws apply. I identify practical implications for the community benefits movement as well as theoretical implications for our understanding of corporate law.
Anne Choike, Usha Rodrigues, & Kelli Alces Williams (eds.), Feminist Judgements: Rewritten Corporate Law, Cambridge Univ. Press (under contract as of October 2020 and forthcoming 2021), The goal of the Volume is to re-envision corporate law as it is practiced and interpreted today, using feminist methods and feminist legal theory, in order to: raise the profile of women in business; engage explicitly with gender issues in corporate law; and extend the work of feminists, feminist legal theorists, corporate lawyers and corporate law scholars to creatively imagine possibilities for corporate law to advance more equitable, ethical, and effective outcomes, while supporting transactions and relationships in our society, culture and economy.
Jennifer Fan, Employees as Regulators: The New Private Ordering in High Technology Companies, 2019 Utah L. Rev. 973 (2019), This Article analyzes how employees in high technology companies have redefined the contours of private ordering and, in the process, have also reimagined what collective action looks like. Because these workers are in high demand and short supply, they are able to affect private ordering in a way that we have not seen before. As a result, they have the potential to be an important check on the high technology sector.
Jennifer Fan, Innovating Inclusion: The Impact of Women on Private Company Boards, 46 Fla. State Univ. L. Rev. 345 (2019), This Article documents the exclusion of women from the boards of nearly all the major private high technology companies currently influencing American business, and it explains why this male-only hegemony matters. It then offers a new paradigm, the innovation imperative, for creating a business culture in which people of all genders can make valued contributions. This Article analyzes two potential arenas for change: the legal and business realms.
Jennifer Fan, Woke Capital: The Role of Corporations in Social Movements, 9 Harv. Bus. L. Rev. 441 (2019), The contribution of this Article is three-fold: it discusses how court cases and changing norms about the role of the corporation in society led to the rise of the modern business corporation; provides an original descriptive account of the role of corporations in social movements using three case studies; and tackles the underlying normative question about the appropriateness of the involvement of corporations in social movements in light of the legal framework in which it resides.
Julie Dahlstrom, Trafficking to the Rescue?, 54 U.C. Davis L. Rev. __ (forthcoming Nov. 2020), Since before the dawn of the #MeToo Movement, civil litigators have been confronted with imperfect legal responses to gender-based harms. Some have sought to envision and develop innovative legal strategies. One new, increasingly successful tactic has been the deployment of federal anti-trafficking law in certain cases of domestic violence and sexual assault. This Article traces federal human trafficking law from its origins to these recent innovative cases. It then considers how civil litigators are turning to human trafficking statutes to overcome decades-old systemic problems with legal responses to gender-based violence.
Rachel Moran, Law Enforcement Perspectives on Public Access to Misconduct Records, 2 Cardozo L. Rev. _____ (forthcoming 2021), This article summarizes the results of an empirical research project studying how public access to law enforcement misconduct records harms or benefits law enforcement agencies and the communities they police.
Margaret E. Johnson, Menstrual Justice, 53 U.C. Davis L. Rev. 1 (2019), Menstrual injustice is the oppression of menstruators, women, girls, transgender men and boys, and nonbinary persons, simply because they menstruate. Menstrual injustice includes essentializing, harassing, penalizing, and controlling menstruators resulting in economic, health and dignity harms. Menstrual injustice is the operation of structural intersectionality, the overlapping forms of domination such as patriarchy, white supremacy, transphobia, classism, and ableism. This Article argues that the structural intersectionality frame helps to identify menstrual injustices and build towards menstrual justice.
Margaret E. Johnson, Emily Gold Waldman & Bridget J. Crawford, Title IX and Menstruation, 43 Harv. J.L. & Gender 225 (2020), Students face impediments at school due to the intersection of menstruation and education. This Article argues that because menstruation is uniquely associated with female biology, a school’s failure to address the needs of menstruating students amounts to a denial of educational opportunities on the basis of sex under Title IX. The Article examines multiple theoretical frameworks to support its conclusion that the law must take into account menstruation to permit menstruators full participation in educational opportunities.
Jamie Langowski, William Berman, Grace Brittan, Catherine LaRaia, Jee-Yeon Lehmann & Judson Woods, Qualified Renters Need Not Apply: Race and Voucher Discrimination in the Metro Boston Rental Housing Market, 27 Geo. J. Poverty L. & Pol’y (forthcoming Dec. 2020), In this empirical study we used matched-pair testing to measure the level of discrimination based on race and income level in the Greater Boston rental housing market. We found high levels of discrimination against Black people and individuals using housing vouchers throughout the pre-rental application process, with evidence of race-based discrimination in 71% of tests and voucher-based discrimination in 86% of the tests.
Colleen F. Shanahan, Alyx Mark, Jessica Steinberg, Anna E. Carpenter, COVID, Crisis and Courts, 99 Tex. L. Rev. Online 10 (2020), Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of this crisis, one thing is certain: one part of our government grapples with the individual consequences of inequality and oppression every day and will continue to do so with even more urgency in the future: state civil courts. Even before the pandemic, as other branches of government failed to address inequality, state civil courts became the government actor of last resort for the tens of millions of Americans each year who suffer the consequences of these failures. Now, these same courts—for the first time in history—have quickly and nimbly changed the way they provide justice. Courts’ improvisation in the face of a global public health crisis present an opportunity for social change. In contrast to burgeoning attention to state criminal courts, this role for state civil courts was hidden from those not directly involved and largely ignored by scholars. Now it is unavoidable. This essay lays out a framework for change that state civil courts should embrace as they reopen to the tidal wave of litigants.
Clinical Education and Legal Education
Michele E. Gilman, The Future of Clinical Legal Scholarship, 26 Clinical L. Rev. 189 (2019), The legal academy is questioning the future of legal scholarship given its costs and perceived disconnect from law practice. However, the future of clinical legal scholarship is typically left out of these debates, although it offers a powerful rejoinder to these recurring critiques – it is deeply engaged with real-world problems, and it has demonstrable impacts. In addition, clinical scholars are an overlooked conduit for disseminating scholarship outside the ivory tower. Doctrinal faculty are unaware how much clinical faculty can ensure their work has an impact beyond SSRN citation counts. As law schools consider how to implement the new accreditation requirement that students take at least six credits of experiential education, scholarship should be part of the calculus. This Essay argues that at this inflection point for legal education, choosing to promote, rather than to further degrade, structures to support clinical scholarship allows the academy not only to ensure quality legal education that graduates practice ready lawyers, but also to support engaged scholarship and enhance the scholarly mission of law schools. In short, the future of legal scholarship and the goals of experiential education are intertwined and hinge on a robust commitment to clinical faculty with security of position who write pursuant to an expansive definition of scholarship.
Jaime Lee, From Socrates to Selfies: Legal Education and the Metacognitive Revolution, 12 Drexel L. Rev. 227 (2020), Metacognitive thinking empowers people to increase their mental capabilities by examining and correcting flaws in their thinking processes. While experiential legal education has employed metacognitive approaches for decades, these concepts are only now being adopted in other areas of the legal curriculum, from podium classes and to accreditation requirements. This Article explains the parallels between metacognitive theory and practice as they have developed in experiential and non-experiential legal education, and proposes how the latter can learn from the successes of the former.
Jeff Selbin, Deborah N. Archer, Caitlin Barry, Gautum Hans, Derrick Howard, Alexis Karteron & Shobha Mahadev, The Diversity Imperative Revisited: Racial and Gender Inclusion in Clinical Law Faculty, 26 Clinical L. Rev. 127 (2019), Interrogating decades-long trends in the racial and gender composition of clinical faculty, this essay assesses progress since Professor Jon Dubin argued twenty years ago that faculty diversity was a clinical legal education imperative. Although women now outnumber men in clinical faculty positions by nearly 2 to 1, we found limited progress on racial and ethnic inclusion on clinical law faculties, where white faculty continue to hold nearly 8 out of 10 positions.
Stephen Rosenbaum, The Myanmar Shwe: Empowering Law Students, Teachers and the Community through Clinical Education and the Rule of Law, 28 Ind. J. Glob. Legal Stud. _ (forthcoming 2020), Myanmar is emerging from the isolated world it inhabited after decades of military authoritarianism. The authors draw on their experience in piloting clinical legal education curricula, with an emphasis on the rule of law and access to justice. Along with receptiveness for new approaches to teaching and mentoring by internationals, they faced centralized decision-making, no culture of collegiality or autonomy, risk aversion, frequent teacher transfers, inadequate research skills, rote learning, reliance on “distance education” and limited English proficiency.
Stephen A. Rosenbaum, The Global Path of Myanmar University Community Teaching Programmes: Strategies, Models and Influences, Street Law and Public Legal Education: A Collection of Best Practices from Around the World in Honour of Ed O’Brien (David McQuoid-Mason, ed.) (Juta & Co., 2019), This chapter focuses on recent community legal education initiatives in Myanmar (Burma). BABSEACLE's co-founders, together with International Team Leader and Clinician Stephen Rosenbaum, lay out the Myanmar program, its history, future and sample lesson plan. Seizing on the newfound interest in clinical legal education, this NGO drew on its successful experience in other countries throughout Asia and the methodology that had worked in diverse settings.
Alexi Freeman & Lindsey Webb, Yes, You Can Learn Movement Lawyering in Law School: Highlights from the Movement Lawyering Lab at Denver Law, How. Hum. & C.R. L. Rev. (forthcoming), This Article describes the Movement Lawyering Lab at the University of Denver Sturm College of Law. The Movement Lawyering Lab is an experiential course that exposes students to the philosophy of movement lawyering and provides an opportunity for students to partner directly with national and grassroots organizations. The Movement Lawyering Lab draws from some of the key tenets of clinical legal education and adapts that framework for movement work. Through this model, law students learn how they can meaningfully contribute to national, state and local campaigns dedicated to social, racial, and economic justice. This Article is intended to serve as a guide and support for other legal educators with a commitment to introducing a course about race, movements, and power into their law school curriculum.
Laila L. Hlass & Lindsay M. Harris, Critical Interviewing, Utah L. Rev. (forthcoming Spring 2021), This article seeks to expand critical lawyering theory, and in doing so provide an example of a pedagogical approach to teaching what we term “critical interviewing.” Critical interviewing means using an intersectional lens to collaborate with clients, communities, interviewing partners, and interpreters in a legal interview. Critical interviewers identify and take into account historical and structural biases, privileges, and the role they play in the attorney-client relationship.
Michael Murphy, The Search for Clarity in Attorney's Duty to Google, Faculty Scholarship at Penn Law (2020), This article explores an attorney’s duty of investigation, which has been forever changed (and ever changing) by technology. It examines the potential sources of a Duty to Google and argues that this responsibility is poorly defined. Accordingly, this article argues for a better-defined duty of investigation, codified in a rule of professional conduct. The article concludes by suggesting industry-wide changes to better prepare attorneys to meet their obligations of technological competency.
Anahid Gharakhanian, Carolyn Young Larmore & Chelsea Parlett-Pelleriti, Achieving Externship Success: An Empirical Study of the All-Important Law School Externship Experience, S. Ill. Univ. L. J. (forthcoming), The authors analyzed data from hundreds of law students and their externship supervisors. The results reveal a high level of externship success and the contributing factors to that success. Neither law school entering credentials nor the academic component of the externship contribute to externship success. Instead, the most important factor that leads to extern success is the students’ relationships with supervisors, feedback from supervisors, and nature of assignments.
Community Economic Development
Edward W. De Barbieri, Opportunism Zones, 39 Yale L. & Pol’y Rev. __ (forthcoming 2020), This Article analyzes and critiques the Opportunity Zone, and argues that compared to other place-based economic development tools implemented through law it is an extreme and potentially frightening approach. I identify three key aspects—use, transparency, and participation—which focus my analysis on the extent to which Opportunity Zones may in fact harm the areas they are supposed to benefit.
Michael Haber, COVID-19 Mutual Aid, Anti-Authoritarian Activism, and the Law, Loy. L. Rev. (Forthcoming), This article looks at the history of mutual aid and argues that recent COVID-19 mutual aid projects are influenced by both this history and by more recent trends in twenty-first century activism. It presents an overview of legal issues faced by mutual aid groups, discussing questions around risk and liability, incorporation, raising and spending funds, and taxation. It concludes for a call to confederate mutual aid projects to build grassroots power.
Kate Sablosky Elengold & Jonathan D. Glater, The Sovereign Shield, 73 Stan. L. Rev. (forthcoming 2021), This Article untangles the doctrines that extend the sovereign shield (preemption, sovereign immunity, and intergovernmental immunity) to protect private actors, particularly federal contractors. And it exposes the alliance that such extension enables between the executive branch of the federal government and for-profit businesses.
Kate Sablosky Elengold & Jonathan D. Glater, The Sovereign in Commerce, 73 Stan. L. Rev. (forthcoming 2021), This Article argues that the solution to the problem of the expanding sovereign shield lies in redefining the question. In determining whether an actor may enjoy protection from liability and regulation under the sovereign shield, this Article proposes that the analysis should turn on the nature of the activity performed, not the identity of the actor performing it.
Shanta Trivedi, My Family Belongs to Me: A Child's Constitutional Right to Family Integrity, 56 Harv. C.R.-C.L. L. Rev. __ (forthcoming 2021), This paper analyzes a child's constitutional right to family integrity and how this right can be wielded more forcefully in the child welfare, immigration and child welfare systems to prevent family separation.
Lisa Martin, Litigation as Parenting, 95 N.Y.U. L. Rev. 442 (2020), This Article proposes for the first time that constitutional doctrine establishing parents’ protected decision-making authority should make parents the default representatives for their children in federal civil litigation.
Lisa Martin, Modernizing Capacity Doctrine, Fla. L. Rev. (forthcoming 2021), Capacity doctrine, or the rules establishing whether and how children’s litigation proceeds, largely remains as it was initially set forth in federal procedural rules more than a century ago. This article contends that it is well beyond time to modernize capacity doctrine to better account for the capabilities of adolescents and support their transition to adulthood.
Ingrid Eagly, The Movement to Decriminalize Border Crossing, 61 B.C. L. Rev. 1967 (2020), Should it be a crime to cross the border into the United States? This Article explores the growing resistance to the politics and practices of mass border criminalization. In doing so, it makes three central contributions. First, it dis-sects the varied strands of the punitive practices of the U.S. Department of Justice, including policies of zero-tolerance prosecution for first-time unauthorized border crossers and enhanced punishments for those who reenter after deportation. Second, it traces how growing public awareness of the previously hidden practices occurring in Border Patrol holding cells and federal criminal courts along the Southwest border have sparked new and outspoken criticism of the illegal entry and reentry laws. These laws have resulted in the forced separation of families, interfered with the rights of asylum seekers, and fostered a racially segregated and substandard court process. Third, this Article analyzes the nascent movement by immigrant rights groups, prominent politicians, and grassroots coalitions of community members to decriminalize border crossing by repealing Sections 1325 and 1326 of the immigration law that have punished unauthorized border crossing since 1929. Although critics maintain that such a legislative change would create so-called open borders, irregular entry would remain a civil violation of the immigration law and be handled by the civil deportation system. As this Article argues, the call to decriminalize border crossing exposes the racialized harm imposed by current policing practices and inspires discussion of additional reforms that would make the civil side of immigration law more humane and equitable.
Jeff Selbin, Fee Abolition and the Promise of Debt-Free Justice for Young People and Their Families in California, Berkeley L. Pol’y Advoc. Clinic, In 2017, Governor Jerry Brown signed landmark legislation making California the first state to abolish entire categories of monetary sanctions. Starting January 1, 2018, Senate Bill 190 prohibits counties from charging all administrative fees in the juvenile legal system. SB 190 also repealed county authority to charge certain fees to young people ages 18 to 21 in the adult system. This study presents key findings and recommendations about the implementation of SB 190.
Jeff Selbin, Juvenile Fee Abolition in California: Early Lessons and Challenges for the Debt Free Justice Movement, 98 N.C. L. Rev. 401 (2020), Fees in the criminal and juvenile legal systems are a key driver of racial and economic injustice. This essay draws on years of primary research to describe fees charged to families with youth in California's juvenile delinquency system, the successful campaign to abolish the fees effective January 1, 2018, an emerging movement for fee reform ("debt free justice") nationally, and early lessons and challenges for ending state-sanctioned racialized wealth extraction.
Jeff Selbin, Anna VanCleave, Brian Highsmith, Judith Resnik, Lisa Foster, Hannah Duncan, Stephanie Garlock & Molly Petchenik, Money and Punishment, Circa 2020 (2020), This is the fourth in a series of co-edited monographs focused on money as punishment published by Yale Law’s School Liman Center, the Fines and Fees Justice Center, and UC Berkeley School of Law’s Policy Advocacy Clinic. This volume surveys the literature on the many misuses and negative consequences of money as punishment and efforts underway to dismantle various forms of state-sanctioned racialized wealth extraction.
Zina Makar, Unnecessary Incarceration, 98 Or. L. Rev. 607 (2020), The reliance of pretrial detention in the US is growing at an alarming rate. This Article proposes monetary pretrial compensation as a check on the criminal bail system analogizing the concept to the compensatory aspects of plea bargaining and time-served.
Eve Rips, A Fresh Start: The Evolving Use of Juvenile Records in College Admissions, 54 Univ. Mich. J.L. Reform __, The growing movement to restrict use of criminal history in the college admissions process presents a critical opportunity to reconsider the role that postsecondary systems should play in supporting the rehabilitative goals of juvenile justice systems. This article analyzes the impact of this new movement, and provides recommendations for legislative and institutional language that can more effectively ensure that individuals with juvenile records are given a meaningful opportunity to earn postsecondary degrees.
Amy F. Kimpel, Violent Videos: Criminal Defense in a Digital Age, 36 Ga. St. U. L. Rev. ___ (2020) (forthcoming), Public defenders now receive police body-worn camera footage, surveillance video, and cell phone video in discovery in even the most routine criminal cases. This Article explores the of reviewing this avalanche of digital evidence. The Article includes results of a survey of public defenders, discussion of secondary trauma and burnout, and suggested strategies to address the added toll of digital content on defense attorneys to ensure that defendants receive effective representation in the digital age.
Josh Gupta-Kagan, Beyond "Children Are Different": The Revolution in Juvenile Intake and Sentencing, Wash. L. Rev. (forthcoming 2021), This article identifies and analyzes the trend in multiple states to impose offense-specific limits on when the state may prosecute children and when judges may order them incarcerated, limiting the wide discretion that has existed for these decisions since the juvenile court's founding.
J.D. King, The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence, 54 Ga. L. Rev. 927 (2020).
J.D. King, Gamesmanship and Criminal Process, 58 Am. Crim. L. Rev. ___ (forthcoming 2021).
Jenny Roberts, The Shadow Bargainers, Cardozo Law Review (forthcoming, 2021) (co-authors Ronald F. Wright and Betina Wilkinson)
Jenny Roberts, Prosecuting Misdemeanors, in OXFORD HANDBOOK OF PROSECUTORS AND PROSECUTION (forthcoming 2021)
Brenda Smith, Promise Amid Peril: PREA's Efforts to Regulate an End to Prison Rape, 57 Am. Crim. L. Rev. 1599 (2020).
Critical Race Theory; Race & Law
Julia Hernandez, Lawyering Close to Home, 27 Clinical L. Rev. 401 (2020), This essay incorporates ethnographic insights and narrative technique, rooted in part in Critical Race Theory and critical geography studies, to ground conversations about transformative pedagogy and praxis in the lived experiences of our students. Increasingly, students are uniquely situated and motivated to engage in rebellious law practice, yet, fault lines in legal education create heightened challenges for some students with negative formative experiences with the state. Drawing from the work of Lani Guinier and Gerald Torres, this essay introduces the idea of authoritative interpretive communities in the law school classroom while addressing the unique world of legal practice for students working in areas in which they have personal experience.
Disability and Health Law
Stephen A. Rosenbaum, Invisibility, Inclusivity & Fraternity: ‘Was Yosef on the Spectrum? Understanding Joseph through Torah, Midrash and Classical Jewish Sources, 36 Touro L. Rev. 101 (2020), To date, no one has tried to explain the enigmatic behaviors of the Hebrew Bible’s Joseph (Yosef), his interpersonal relationships and his personal journey through a disability lens. The Bible is fraught with conflicting views of disability and the disabled body. A few disability themes stand out in Samuel Levine’s chronicles of Yosef that draw the reader to reflect on this autistic young man’s social or community inclusivity, fraternal relations and his sexuality.
Stephen A. Rosenbaum, Hammerin’ Hank, (Dis)ablism, Homophobia, Racism and Hate Speech, in Disability Hate Speech: Social, Cultural and Political Contexts (Terje Olsen, Mark Sherry et al., eds.) (Routledge, 2020), Some countries have legal provisions regulating hate speech in the form of “artistic expression.” In contrast, the US has long cherished constitutional protections on freedom of expression, effectively shielding those who would promulgate hate, such as the producers and hosts of shock jock radio. The treatment of Hammerin’ Hank, a disabled man in the Doghouse radio broadcast of the early 2000s, is the focus of this chapter.
Tamar Ezer, Megan S. Wright & Joseph J. Fins, The Neglect of Persons with Severe Brain Injury in the United States: An International Human Rights Analysis, 22 Health & Hum. Rts J. 265 (2020), Brain injury contributes more to death and disability globally than any other traumatic incident. While the past decade has seen significant medical advances, laws and policies remain stumbling blocks to treatment and care. The quality of life of persons with severe brain injury often declines with unnecessary institutionalization and inadequate access to rehabilitation and assistive technologies. This raises a host of rights violations that are hidden, given that persons with severe brain injury are generally invisible and marginalized. This article highlights the current neglect and experiences of persons with severe brain injury in the United States, analyzing the rights to life, health, benefit from scientific progress, education, freedom of expression, community, family, and equality.
Alison R. Ohringer, Tamar Ezer & David P. Serota, Prison-Based Harm Reduction Services Are Needed to Address the Dual Substance Use Disorder and Infectious Disease Epidemics in US Prisons, 22 Eclinical Med. (May 2020), There is a human rights imperative to implement SEPs and harm reduction services in US prisons. People in prison are dying because HIV and HCV are spreading at an alarming rate, fueled by current failures. Denying the standard of care for HIV/HCV prevention and treatment violates the international human rights to life (International Covenant on Civil and Political Rights, Art. 6), highest attainable standard of health (International Covenant on Economic, Social and Cultural Rights, Art. 12), and freedom from cruel, inhuman and degrading treatment and punishment (International Covenant on Civil and Political Rights, Art. 7). It is also contrary to the U.N. Basic Principles for the Treatment of Prisoners, WHO Guidelines on HIV/AIDS in Prisons, and International Guidelines on HIV/AIDS and Human Rights. Moreover, at a domestic level, this failure may violate the Constitution’s 8th amendment, which forbids the infliction of cruel and unusual punishment.
Jessica Miles, Straight Outta SCOTUS: Domestic Violence, True Threats, and Free Speech, 74 Univ. Mia. L. Rev. 711 (2020), The article seeks to facilitate continued broad access to civil protection orders for domestic violence victims while simultaneously respecting the First Amendment rights of persons accused of abuse and allowing for vigorous debate on matters of public concern. Specifically, it discusses the question of the constitutionally requisite mens rea for a “true threat” of violence left unaddressed by the United States Supreme Court in the 2015 case of Elonis v. United States.
Margaret B. Drew, Feminist Perspectives on Disaster, Pandemics, and IPV, and IPV, Intimate Partner Violence Across the Lifespan (Springer, 2020), The chapter addresses increased violence that women experience during disasters such as this pandemic. The chapter argues that failure to include women and sexually different people in disaster planning continues this exposure to gender violence. Despite extensive knowledge that women experience increased violence during disaster, governments have not addressed this dilemma during planning. Consequently, most disaster planning looks to restore the status quo, which typically re-creates unfavorable conditions for women and other non-male genders.
Deborah Epstein, From Isolation to Connection: The Practices and Promise of Open Domestic Violence Shelters, J. Interpersonal Violence (forthcoming, 2020), Advocates have begun to question two policies that have long defined DV shelters—strict secrecy regarding shelter location and strict prohibitions on shelter access. Both practices increase survivors’ social isolation and entail coercive rules reflective of broader, oppressive cultural dynamics. A handful of communities have experimented with open shelters, which break from tradition with public locations, and permissive visitor policies. This qualitative study explores the philosophical underpinnings, benefits, and challenges of the open shelter approach.
Jane K. Stoever, Firearms and Domestic Violence Fatalities: Preventable Deaths, 53 Fam. L. Q. 183 (2019), This Article addresses the highly gendered nature of victimization within intimate relationships, firearm ownership, and intimate partner firearm fatalities. Research shows that racial prejudice, political moments, and societal images of “frontier masculinity” produce higher rates of firearm ownership by white men than by other demographics; furthermore, firearm possession correlates with high rates of perpetrating domestic violence and intimate fatalities, making restricting abuse perpetrators’ access to firearms important. Practitioners and courts face hard realities when seeking to prevent intimate fatalities, including the gendered knowledge gap as to whether there are guns in the home, the ease of access to firearms in the United States, and implementation gaps that must be closed for laws to be effective. In proposing reforms, the Article posits legislative reforms and public health and pragmatic community solutions.
Jane K. Stoever, Access to Safety and Justice: Service of Process in Domestic Violence Cases, 94 Wash. L. Rev. 333 (2019), Every day, in courthouses across America, numerous domestic violence protection order cases are dismissed for lack of personal service, even though law enforcement is tasked under federal law with effectuating service. Service of process presents substantial access to justice and access to safety issues for domestic violence survivors who seek legal protection, as nearly 40% of petitioners for civil protection orders are unable to achieve personal service on those against whom they seek protection. In seeking to understand the law’s differential treatment of domestic violence, this Article explores the historic origins of the heightened notice and service requirements for domestic violence remedies and the ongoing race, class, and gender implications. In proposing expanded service methods that satisfy due process rights and address procedural justice, the Article examines both the respondent’s interests and the petitioner’s constitutionally protected right to a hearing on the merits.
Deborah Epstein, Loneliness and the COVID-19 Pandemic: Implications for Intimate Partner Violence Survivors, J. Fam. Violence (forthcoming, 2020), The covid-19 pandemic has highlighted the domestic violence survivor isolation trapping victims in their homes where they face the greatest danger. But survivors’ intensified loneliness has received far less attention. Although loneliness can be catalyzed by isolation, it is a distinct psychological phenomenon that is internal and subjective. Loneliness is acutely painful, inflicts health-related harms, and heightens vulnerability to violence. We suggest reforms to alleviate loneliness, and how these might be expanded after the pandemic.
Deborah Epstein, From Isolation to Connection: The Practices and Promise of Open Domestic Violence Shelter, 20 J. Interpersonal Violence 1 (2020), Advocates have begun to question two policies that define DV shelters: secret location and visitor access. Some are experimenting with the radical alternative of open shelter. We conducted a study finding that open shelters: promote physical safety; adopt a range of policies regarding location disclosure and visitor accessibility; face challenges, including the need to gain buy-in from multiple constituents; and improve survivor outcomes, including: decreased shame, improved advocacy relationships, increased service access, and deepened networks.
Michele E. Gilman, Chapter, The Difference in Being Poor in Red States versus Blue States, in Holes in the Safety Net: Federalism and Poverty (Ezra Rosser, ed., Cambridge Univ. Press, 2019), A person’s experience at the bottom of the economic ladder differs widely depending on where they live, and red state versus blue state policy differences are driving part of that geographic divergence. Red states generally have more punitive public benefits policies than blue states. This division is likely to widen in coming years as Republican politicians at the federal and state levels increasingly attach “behavior modification” requirements to governmental assistance, using federalism tools such as waivers to do so. This threatens to worsen poverty overall, but its impacts will likely be harsher in red states. This chapter traces the expansion of behavioral modification requirements, identifies its causes, and examines its geographical impacts.
Joseph Pileri, Essential but Excluded: Vending in the Time of Corona, Nw. Univ. L. Rev. Online Blog: NULR of Note (May 1, 2020), Street vending without a license is treated as a criminal offense in cities around the country. By criminalizing street vending, cities raise barriers to entry for vulnerable entrepreneurs, unduly burden those entrepreneurs most at risk, and detract from the vibrancy of communities. The COVID-19 pandemic necessitates rethinking these laws.
Edward W. De Barbieri, Excluding Disadvantaged Businesses, 28 Geo. Mason L. Rev. __ (forthcoming 2021), Laws that subsidize small businesses frequently fail to reach owners most in need of governmental support. Lawmakers considering preferences for disadvantaged businesses ought to focus on the way the law excludes certain business owners.
Education and Schools
Emily Suski, The Title IX Paradox; Subverting Title IX, 108 Calif. L. Rev. 1147 (2020); 105 Minn. L. Rev. -- (forthcoming 2021), The Title IX Paradox critiques the federal courts' assessments of the actual notice standard in Title IX claims as creating an impossible paradox for survivors of sexual harassment and assault in school, particularly K-12 students. Subverting Title IX critiques the federal courts' assessments of the deliberate indifference standard as lacking in fidelity to the Supreme Court's explanation of the standard. Both articles argue the courts' evaluations undermine Title IX's central purpose.
Jane K. Stoever, Title IX, Esports, and #EToo, 89 Geo. Wash. L. Rev. (forthcoming 2021), Our lives are largely online during COVID-19 and beyond, and gaming and esports—and corresponding technology-enabled abuse, sexual cyberviolence, and harassment—raise significant Title IX issues that colleges are not anticipating as they increasingly fund and sponsor esports and gaming. I address how colleges—motivated by Title IX mandates and inclusion principles—can affirmatively create responsible gaming initiatives with goals of violence prevention, player protection, and harm minimization.
Claire Raj, The Lost Promise of Disability Rights, 119 Mich. L. Rev. ___ (forthcoming 2021), This paper discusses how recent Supreme Court interpretation of the Individuals with Disabilities Education Act (IDEA) may have unjustly narrowed access to other important disability rights laws, namely Section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act.
Lauren E. Bartlett, Human Rights Guidance for Environmental Justice Attorneys, 98 Univ. Detroit Mercy L. Rev. 373 (2020), This article focuses on recent developments in environmental human rights law and provides practical guidance for environmental justice attorneys looking for additional advocacy tools. The article highlights examples of human rights language that can be used in briefs or in drafting legislation, human rights documents that can be used as evidence of ongoing harm and widespread problems, and human rights law that can be cited as persuasive authority, and more.
Ann Eisenberg, Transitions in Energy Communities, 12 Geo. Wash. J. Energy & Env’t L. __ (forthcoming 2021).
Christine E. Cerniglia, The Civil Self-Representation Crisis: The Need for More Data and Less Complacency, 3 Geo. J. Poverty L. & Pol'y 27 (Spring 2020), This Article analyzes self-represented litigants (SRLs) in the civil justice system. The increased number of filings by SRLs is often referred to as a crisis. There are several challenges that SRLs pose in individual courtrooms and to our civil justice system as a whole. Even with the recent trend of standardized self-help forms, SRLs have difficulty with procedural matters, articulating their cases sufficiently, and other formalities of the legal process. This in turn affects the overall efficiency of the system and deprives SRLs of their right to equal access to justice. The legal profession has not caught up with the rising numbers of SRLs, and very few procedures for uniform reporting exist in order to study and monitor the effect of SRLs nationwide. The civil justice system is especially lacking a national reporting mechanism to study the increase of SRLs; however, many continue to refer to this significant increase as a crisis while not having concrete numbers to understand the complexity of issues. This Article advocates for a systems approach to study the SRL crisis with all stakeholders at the table in order to effectuate much needed change.
Josh Gupta-Kagan, America's Hidden Foster Care System, 72 Stan. L. Rev. 841 (2020), This paper identifies and critiques the practice of child protection agencies causing changes in physical custody by demanding parents agree to let another adult care for their children under threat of a family court child abuse or neglect case. The article establishes how widespread the practice is, when it may be appropriate and when not, and offers a range of solutions to better regulate it.
Housing, Land-use, and Property
Judith Fox, The High Cost of Eviction: Struggling to Contain a Growing Social Problem, 41 Mitchell Hamlin L.J. Pub. Pol'y and Prac. (2020), Eviction, Matthew Desmond’s Pulitzer Prize winning book, has been remarkable in the way it has focused public attention on the issue. As important as the book has been –and it has been quite important-- Desmond’s tales were not new to those of us who have been working with low income tenants for years. This paper examines some of the suggested causes of our current, high eviction numbers and explores one alternative dispute intervention, coalition building with stakeholders to address deplorable rental conditions. Finally, it addresses a topic that was central to the symposium in which it was presented: the role of courts in the eviction crisis.
Michelle D. Layser, Edward W. De Barbieri, Andrew J. Greenlee, Tracy A. Kaye, & Blaine G. Saito, Mitigating Housing Instability During a Pandemic, __ Or. L. Rev. __ (forthcoming 202_), Housing instability threatens to impair the United States’ policy response to the COVID-19 pandemic by undermining public health strategies such as social distancing. Additional rental assistance and mortgage payment assistance will be necessary to prevent the loss of housing that will ultimately exacerbate the public health crisis. We also recommend a new civil right to counsel in eviction cases and targeted place-based interventions to promote affordable housing development where it is needed most.
Linda Fisher & Judy Fox, Foreclosure Echo: How the Hardest Hit We’re Left Out of the Economic Recovery, (Cambridge Univ. Press 2019), Book analyzing the foreclosure crisis and what it portends for the future. We illustrate our points with many client stories.
Susan D. Bennett, Making the Second Pandemic: The Eviction Tsunami, Small Landlords, and the Preservation of "Naturally Occurring" Affordable Housing, 29 J. Affordable Housing & Cmty. Dev. L. 157 (2020), The “small landlord” is an actor in the affordable housing crisis, to which the predicted “tsunami” of pandemic-related evictions has brought fresh attention. “Mom and pop” owners of two to four-unit buildings constitute some 30% of below-market rental housing, the only housing stock available to the 75% of low-income renters who qualify for but cannot receive rental subsidies. I examine the expanding literature investigating the small landlord; and suggest localized interventions that might prop up this critical housing stock for the future.
Sarah Knuckey, Benjamin Hoffman, Jeremy Perelman, Gulika Reddy, Alejandra Ancheita & Meetali Jain, Power in Human Rights Advocate and Rightsholder Relationships: Critiques, Reforms, and Challenges, 33 Harv. Hum. Rts. J. 1 (2020), This article seeks to contribute to improved practice and to deeper understanding of both the potential and limits of human rights advocates’ responses to critiques of how they objectify, displace, or disempower rightsholders. It examines: first, how common advocacy practices risk rightsholder disempowerment, and second, the many tactics advocates are developing to promote rightsholders at the center of advocacy and as agents of change, and the key challenges faced in seeking to do so.
IP, Technology, and Privacy
Michele Gilman, Poverty Lawgorithms: A Poverty Lawyer's Guide to Fighting Automated Decision-Making Harms on Low-Income Communities, Data & Society Research Institute (2020), This report is designed to help poverty lawyers and their clients resist the adverse impacts of data-centric technologies and to engage as stakeholders in the adoption and implementation of algorithmic systems. The report is organized by major practice area and includes links to helpful resources for deeper dives into specific issues that may arise in legal services representation and policy advocacy. The practice areas covered are consumer, family law, housing, public benefits, schools and education, and workers’ rights, as well as a final section on how immigration surveillance intersects with these practice areas.
Michele E. Gilman, Five Privacy Principles (from the GDPR) the United States Should Adopt to Advance Economic Justice, 52 Ariz. St. L.J. 368 (2020), Algorithmic profiling technologies are impeding the economic security of low-income people in the United States. Based on their digital profiles, low-income people are targeted for predatory marketing campaigns and financial products. At the same time, algorithmic decision-making can result in their exclusion from mainstream employment, housing, financial, health care, and educational opportunities. Government agencies are turning to algorithms to apportion social services, yet these algorithms lack transparency, leaving thousands of people adrift without state support and not knowing why. marginalized communities are also subject to disproportionately high levels of surveillance, including facial recognition technology and the use of predictive policing software. American privacy law is no bulwark against these profiling harms, instead placing the onus of protecting personal data on individuals while leaving government and businesses largely free to collect, analyze, share, and sell personal data. By contrast, in the European Union, the General Data Protection Regulation (GDPR) gives EU residents numerous, enforceable rights to control their personal data. Spurred in part by the GDPR, Congress is debating whether to adopt comprehensive privacy legislation in the United States. This article contends that the GDPR contains several provisions that have the potential to limit digital discrimination against the poor, while enhancing their economic stability and mobility. It argues for the adoption of similar provisions in American law.
Vicki Phillips, Sea Change: The Rising Tide of Pro Bono Legal Services for the Creative Community, IP Theory: Vol. 9: Issue 1, Article 6 (2020), Despite the ubiquity of the internet economy and the increasing importance of the creative sector, pro bono legal services have not generally been available to those needing assistance in intellectual property, technology and related fields of the law. The creation of the earliest pro bono intellectual property law school clinics was revolutionary and the clinics were somewhat controversial in clinical legal education when they first arrived on the scene. Students interested in intellectual property, technology and related areas would finally enjoy an experiential opportunity long available to their classmates in other fields of law. Most importantly, the new clinics would be a resource for specialized pro bono legal advice to the many communities of creators and those hoping to enter the new internet economy but unable to access assistance in the traditional legal marketplace. This Article suggests that the rapid growth and success of the work taken on by the new IP clinic community and the community’s innovative collaboration with the U.S. Patent and Trademark Office is inspiring a rising tide in the availability of pro bono expert legal assistance for the creative community throughout the wider legal marketplace.
Labor and Employment
Annie Smith, The Underprosecution of Labor Trafficking, 72 S.C. L. Rev. (forthcoming 2021), Most law enforcement efforts concerning human trafficking focus on sex trafficking. Labor trafficking remains a devastating yet under-prosecuted crime. This Article identifies causes of the ongoing failure to prosecute labor trafficking, including workplace exceptionalism, the labor trafficking eclipse, and maladaptive law enforcement strategies. It considers critiques of a carceral approach and argues for thoughtfully increasing appropriate labor trafficking prosecutions. Informed by insights of scholars, anti-trafficking advocates, survivors, and prosecutors, the Article proposes reforms to strategically increase prosecutions.
Llezlie Green, Erasing Race, 73 SMU L. Rev. F. 63 (2020), this essay considers the narratives that have informed the detachment of racial justice from the worker exploitation narrative and the distancing of economic justice from the civil rights narrative. It then contends that social movements, like the Fight for $15, can disrupt narrow understandings of low-wage worker exploitation and proffer more nuanced narratives that connect race, economic justice, and civil rights to a broader anti-subordination campaign that can more effectively protect the most vulnerable workers.
Llezlie L. Green, Outsourcing Discrimination, 55 Harv. C.R.-C.L. L. Rev. 915 (2020), This article explores racial discrimination against Black temporary workers, the problematic narratives that drive this bias, and the challenges to addressing it.
Law & Economics; Political Economy
Ann Eisenberg, Economic Regulation and Rural America, __ Wash. Univ. L. Rev. __ (2021).
Politics, Voting Rights
Jaime Lee, Working Title: Turning Protest into Reform: Creating Structural Power for Public Voice, __ Geo. Mason L. Rev. __ (forthcoming Spring 2021), Public input is necessary for effective and responsive government, but current structures for incorporating public input into governmental policy are not robust and are highly susceptible to abuse. This article proposes mechanisms for creating more meaningful, sustained dialogue between a government and the people who are most affected by a problem, with the ultimate goal of making government more responsive to the public’s needs.
Women and the Law
Deborah Epstein, Discounting Credibility: Doubting the Stories of Women Survivors of Sexual Harassment, 51 Seton Hall L. Rev. 1 (2020), Although federal and state laws prohibit sexual harassment on the job, extraordinarily high rates of gender-based workplace harassment still permeate every sector of the workforce. One factor lies at the heart of the problem: our reflexive inclination to discount the credibility of women, especially those recounting experiences of abuse by powerful men. We will not succeed in ending gender-based workplace discrimination until we understand and resist this tendency and begin to appropriately credit survivors’ stories.