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Dealing with Disappointing Results: Appeals and Other Post-Trial Practice
No full textOften justice for abuse victims is obtained through the appellate process. During litigation, wise trial attorneys prepare their clients for any combination of possible outcomes. Protective mothers and other domestic abuse survivors must be advised early in the process that results can range from acceptable to what they consider disastrous. Judges view cases from a perspective that may not align with the protective parent’s view. For the reasons discussed in other chapters of this book, children with an abusive parent may not be protected by the trial courts. Indeed, the children, as well as the mother, may be at an even higher level of risk post-judgment. This is particularly so if the abusive parent is awarded unrestricted access to the children, without the presence of a protective adult. As with all domestic violence practice, safety of the clients and their children must be considered during every step of the decision-making process. Clients will know best whether appeal places them or their children at greater risk, and whether that risk is acceptable given the consequences of the lower court outcome
Recommendations for Improving Firearms Vetting in Massachusetts
Full text linkThe United States is in a state of conflict over the ability to obtain firearms as well as their use in highly publicized mass shootings. On December 14, 2012, Adam Lanza obtained several firearms that were lawfully owned by his mother, but were improperly secured. Lanza killed his mother that morning and then drove a short distance to the Sandy Hook Elementary School in Newtown, Connecticut where he murdered twenty-six people, many of whom were small children. Lanza eventually turned a gun on himself before being confronted by responding officers. Though mass shootings are often headlines in this country, the vast majority of misused firearms by the mentally ill are tragically used in suicide. The lessons of these examples must be used to augment current firearms policy in an effort to reduce the availability of firearms to those suffering with afflictions that make them ill equipped to have access to them. Though the Commonwealth of Massachusetts asks pointed questions in these areas regarding the fitness of the potential license holder, it collects no data whatsoever regarding other full-time household members where a firearm may be kept, nor what measures the licensee takes to ensure its security. This Article illustrates a policy, grounded in facilitative principles, designed to reduce access to firearms by those mentally incapable of handling them or those with current substance addictions. Key components to the solution’s success should rely on increased vetting of the licensee’s environment and where lawfully owned firearms will be stored, in combination with assessing the risk factors of having been hospitalized for mental health, drug dependence, or alcohol dependence. This recommendation is merely an expansion of questions already used in the current Massachusetts firearms licensing application and would produce additional factors that a licensing official may consider when determining the suitability of an applicant. It is important to note that this would not be an outright prohibition for a licensee, which would likely be constitutionally impermissible. This Article concludes by reemphasizing the importance of giving licensing officials more information to consider in an effort to lower the risk of lawfully owned firearms ending up in the hands of the mentally ill or violent
Access to Information in the Private Sector: African Inspiration for U.S. FOIA Reform
No full textThe Freedom of Information Act of 1966 (FOIA) was a landmark global example of transparency, or access to information (ATI), to ensure democratically accountable governance. Government had grown in the twentieth century, especially in the new administrative state, and FOIA re-balanced the distribution of power between people and public authority. Today in the twenty-first century, much power in American society has migrated from the public sector to the private sector, specifically into the hands of corporations. Even insofar as it works well, FOIA operates only against the conventional state by enabling an individual’s capacity to realize civil and political rights. FOIA simply was not designed to enable the attainment of human necessities such as education and housing, much less environmental protection and healthcare, especially when the greatest threat to those rights is not government deprivation, but the commercial marketplace.
ATI in Africa is a different story. Three decades after FOIA, planted among the unprecedented ambitions of the South African constitution was a right to ATI. And within that right lay an extraordinary new provision. As guaranteed by the South African constitution and enabling law, a person may request records from a nongovernmental respondent, a private body, if the person can show that the records are “required for the exercise or protection of any rights.” In other words, South African ATI law jettisoned the historic barrier between public and private sectors. South African lawmakers were informed by the experience of apartheid, in which the private sector’s complicity had been a vital and brutal partner in state-sanctioned human rights abuse.
Blossoming beyond even the visioning of an apartheid remedy, ATI in the private sector has been construed by the courts in a wide range of applications, from intrafamilial business disputes to environmental conservation. South African courts have struggled to define “required” and “rights” in applying the ATI law. But South Africa has demonstrated that ATI in the private sector can work. The public-private division justifies a change in the terms of access, but not an absolute barrier. In the last five years, the South African approach has been reiterated in the domestic law of at least five other African countries and in pan-African human rights instruments meant to inspire more domestic adoptions.
In this article, I suggest that the African example inspire U.S. FOIA reform. In its time, FOIA shone a light into the darkest corners of American politics. Now America deserves a new approach to restore power to the people in the age of the corporation
Chapter 10: Torts Through the Looking Glass
No full textStudents today view the world relative to its representations in digital media. This digital looking glass, or mirror, of reality incorporates fact and fiction and has itself come to define our popular culture. Accordingly, today’s students benefit from the examination and analysis of challenging subject matter in the real world relative to its digital imaginings. Instructors in torts can promote learning by bringing into the classroom popular cultural expressions extracted from the vast audiovisual libraries of the Internet. These demonstrative exhibits can be used to support problem analysis, to explore policy and theory, to bridge study and practice, and to raise issues in professionalism. This chapter demonstrates the range of multimedia material available in popular culture today with relevance to torts. My aim is to encourage instructors to build their own libraries of materials and to enhance student learning by holding up torts to the looking glass
Criminalizing Work and Non-Work: The Disciplining of Immigrant and African American Workers
Full text linkThe realities of low-wage work in the United States challenge our basic notions of freedom and equality. Many low-wage workers share the condition of being stuck in jobs toiling excessive hours against their will for less than poverty wages in autocratic workplaces. Yet the racial politics of immigration and labor are often used to stir hostility between low-income United States citizens—especially African Americans—and undocumented immigrants. Perceived competition for jobs and racist stereotypes are exploited by opportunistic politicians and employers as well to produce frictions between workers who face similar conditions. Still, there is a strong basis for undocumented and African American low-wage workers to unify. Both communities have experienced a deeply fraught relationship to freedom and coercion in which criminalization has figured prominently. This Article examines the similar attributes between two regimes of criminalization. The first regime is the Immigration Reform and Control Act of 1986 (“IRCA”), which has resulted in the criminalization of work for undocumented immigrants. IRCA, enacted more than thirty years ago, was the first time that Congress prohibited employers from hiring workers who are unauthorized to work in the United States. The second regime is the criminalization of non-work (i.e., the condition of being unemployed or of quitting one’s job to search for better employment elsewhere) for black workers in the post-Civil War South through the enforcement of vagrancy laws. A crucial feature of the Black Codes enacted after the Civil War to comprehensively restrict freed black men and women were vagrancy statutes that provided the coercive apparatus for pushing freed black men and women into forced labor. This Article juxtaposes the two enforcement regimes and brings together two areas of literature to draw attention to intersecting features of criminalization. Foremost, the criminalization of work and non-work become instruments of employer control in which state power is placed into private hands to fracture worker unity, to terrorize workers, and to discipline workers. Further, both regimes of criminalization have depended on racialized narratives and stereotypes to rationalize criminalization. This Article draws these historical parallels with the hope that such a perspective can help build meaningful alliances between undocumented immigrants and African Americans to take apart systems of criminalization that advance exploitation, immobility, and inequality
A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws
Full text linkThere is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so is the subject of this article. I leave for another occasion the legal and practical questions of how to implement such a unanimity requirement.
[1] Dred Scott v. Sandford, 60 U.S. 393 (1856).
[2] Lochner v. New York, 198 U.S. 45 (1905).
[3] Roe v. Wade, 410 U.S. 113 (1973).
[4] Citizens United v. Fed. Election Comm\u27n, 558 U.S. 310 (2010).
[5] D.C. v. Heller, 554 U.S. 570 (2008).
[6] McDonald v. City of Chicago, 561 U.S. 742 (2010)
Reflections at the Silver Anniversary of the First Trans-Inclusive Gay Rights Statute: Ruminations on the Law and its History -- and Why Both Should be Defended in an Era of Anti-Trans \u27Bathroom Bills\u27
Full text linkIn 1993, Minnesota became the first state to enact a sexual orientation civil rights statute that also provides protections for transgender people. At the twenty-fifth anniversary of that achievement, the intricate history underlying the statute remains underappreciated. The pioneering status of the 1993 state statute, as well as that of the 1975 Minneapolis trans-inclusive ordinance upon which it was based, now typically are recognized. The degree to which radical agitation against politically moderate interests did not sabotage trans-exclusive gay rights but, instead, gave birth to trans-inclusive gay rights is still largely misunderstood. The degree to which that earliest trans rights ordinance almost disappeared in a comedy of errors and the degree to which it actually was disappeared by much scholarly writing is an overlooked historical issue. I argue that trans people in every jurisdiction in the United States and in every profession still suffer from the omissions of those who had platforms in decades past from which at least to acknowledge the existence of trans-inclusive civil rights but, at every opportunity, painted only images of transabsence. I further argue that a renewed focus on appreciating the fragility both of trans civil rights protections and of their place in civil rights history is essential to understanding how and why trans rights have become diminished in some places and, in others, never appeared at all
A Conspiracy of Life: A Posthumanist Critique of Appoaches to Animal Rights in the Law
Full text linkNear the end of his life, Jacques Derrida, one of the most influential philosophers of the twentieth century, turned his attention from the traditional focus of philosophy, humans and humanity, to an emerging field of philosophical concern, animals. Interestingly, Derrida claimed in an address entitled The Animal That Therefore I Am that,
since I began writing, in fact, I believe I have dedicated [my work] to the question of the living and of the living animal. For me that will always have been the most important and decisive question. I have addressed it a thousand times, either directly or obliquely, by means of readings of all the philosophers I have taken an interest in. . . .
Derrida’s insistence that the question of the animal has always been the focus of his work reflects an interesting turn in philosophy at the end of the twentieth century, where the primacy of the human was rightfully being challenged, and the lives of animals were being considered on their own terms. Increasingly, the shift in focus from the primacy of the human to a more thoughtful consideration of animals has moved outside of just philosophy into other academic fields. These developments have been reflected in the emerging interdisciplinary field of posthumanism. Posthumanism, inclusive of all disciplines, seeks to shed the legacy of liberal humanism and the primacy of the human and instead consider all the interests of those that the human shares the world with (including animals, plants, technology, et cetera). Curiously however, while posthumanism has had an impact in most disciplines, outside of a few scholars, it is absent in the legal field (both in academia and in practice). Where the status of animals in the law has been challenged, it has largely been done through arguments derived from the legacy of liberal humanism. The two most significant challenges to the status of animals in the law have been mounted by the Nonhuman Rights Project in the United States, and the Great Ape Project, which has primarily been successful in New Zealand and Spain. Both projects have sought to expand legal rights to hominids, though each has adopted different strategies. The Nonhuman Rights Project has sought to use arguments within existing legal paradigms to force the courts to recognize chimpanzees as “persons,” whereas the Great Ape project has intentionally avoided court (for fear of setting unfavorable precedents) and favored pressing change through legislation. Ultimately however, both projects are thoroughly rooted in liberal humanism and advance their arguments through proximity claims—the idea that certain animals, in these cases, apes, deserve legal consideration because of their similarity to humans.
This paper is an interdisciplinary comparative analysis of the Nonhuman Rights Project’s failures in the United States and the Great Ape Project’s success in New Zealand. The success of the legislative approach of the Great Ape Project demonstrates the need to approach these arguments outside of the courtroom to avoid hostile judges, philosophical legacies, and archaic precedents. However, the Great Ape Project does not go far enough in expanding the rights of other beings as it relies on emphasizing similarities with humans as the sole reason for extending rights, leaving other beings, even higher order mammals like dolphins, without inclusion— and a real possibility that any such inclusion would forever be cut off. Therefore, this paper proposes the need for a posthumanist foundation for pursuing the rights of other beings through legislative means
Queer Sacrifice in Masterpiece Cakeshop
Full text linkThis Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission , as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead
Massachusetts Attorney\u27s Oath: History That Should Not Be Repeated
Full text linkMassachusetts proudly boasts that it has one of the oldest versions of the Attorney’s Oath in the United States. However, the Oath contains phrases that reflect both gender and religious biases. The use of the masculine form within the text, as well as the reference to God, reflect the nation’s history of intolerance and ignorance. These phrases exclude a large portion of the legal community and act as a distraction from the true purpose of an attorney’s oath, which is to remind incoming lawyers of their ethical obligations. This Article focuses primarily on the need for Massachusetts to adopt a newer version of the Attorney’s Oath. Additionally, this Article proposes a new Oath to adopt, reflecting modern society’s ethical beliefs by utilizing language that is progressive and inclusive of all attorneys