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Environmentalism Isn’t New: Lessons from Indigenous Law
Get PDFThe much-overlooked laws and lifeways of Indigenous people show that concepts of environmental sustainability have long been a part of the human tradition. By studying the Indigenous jurisprudence of societies that maintained these traditions into the modern era, much can be learned. Rather than making laws in regards to the land, the land itself was the source of the law, for the environmental laws were built around a relationship with the land.
Through most of human history, the western world had a similar relationship. However, the Holy Roman Empire’s interpretation of Biblical scripture, which at that time was law, forever changed that relationship. After the beginning of the Westphalian Nation State which is the global model for a nation based on the Treaty of Westphalia, and the spread of this model via colonization, every state has a mindset and legal system largely at odds with the natural world.
Through both allowing the remaining Indigenous societies to continue their traditions and incorporating some of their principles into the law of states such as New Zealand’s granting of legal personhood to the Whanganui River, the effects of this history and the threat to the global environment can be overcome
Understanding the Gap Between Law and Practice: Barriers and Alternatives to Tailoring Adult Guardianship Orders
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The Impact of \u3cem\u3eEpic Systems\u3c/em\u3e in the Labor and Employment Context
Get PDFIn Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court ruled that an employer did not violate the National Labor Relations Act (NLRA) when it required employees to agree to arbitrate all claims against the employer and also waive their rights to bring a class or collective action against the employer. The Court reasoned that class or collective actions were not the type of concerted activities for the purpose of collective bargaining or other mutual aid or protection” that Section 7 of the NLRA protects. This comment, part of a three-part discussion on the impact of Epic Systems, discusses the impact of the decision on federal labor and employment policy. The Epic Systems case, like many of the Supreme Court’s recent arbitration decisions, highlights the sometimes dissonant interplay between two previously separate bodies of law that have converged in the last 27 years: 1) the legal doctrine developed under the Federal Arbitration Act (FAA), which Congress passed in 1925 to allow for federal court enforcement of arbitration agreements; and 2) legal doctrines arising from federal labor, employment discrimination, and worker protection laws that include the National Labor Relations Act (NLRA), the Labor Management Relations Act (LMRA), Title VII of the Civil Rights Act of 1964, and the Fair Labor Standards Act.
The comment concludes that the most immediate and direct impact of the Epic Systems ruling falls largely on non-unionized non-transportation workers who have been required to waive their right to bring a class or collective action against their employers. It is now clear that those workers cannot rely on NLRA § 7 to void their waivers. The ruling also narrowed the breadth of the rights protected by the NLRA. In addition, because it is based on the FAA, Epic Systems carries forward the differing treatment of transportation workers and all other workers under the FAA that the Supreme Court announced in the Circuit City case. Since Circuit City established that contracts of employment of transportation workers were exempt from the FAA, Epic Systems and all the other Supreme Court decisions concerning the enforceability of arbitration agreements and class action waivers under the FAA do not apply to them. However, all other workers are subject to the FAA jurisprudence that allows for enforcement of almost any agreement having to do with arbitration. This is not consistent with federal labor and employment policy embodied in anti-discrimination, worker protection, and collective bargaining laws, which do not treat transportation workers differently from non-transportation workers. The Epic Systems case only heightens that inconsistency
Legal Consciousness Reconsidered
Get PDFLegal consciousness is a vibrant research field attracting growing numbers of scholars worldwide. Yet differing assumptions about aims and methods have generated vigorous debate, typically resulting from a failure to recognize that three different clusters of scholars—identified here as the Identity, Hegemony, and Mobilization schools—are pursuing different goals and deploying the concept of legal consciousness in different ways. Scholarship associated with these three schools demonstrates that legal consciousness is actually a flexible paradigm with multiple applications rather than a monolithic approach.Furthermore, a new generation of scholars has energized the field in recent years, focusing on marginalized peoples and non-Western settings. Through their findings, and as a result of broader trends across the social sciences, relational legal consciousness has taken on greater importance. Legal consciousness research should be imagined on a continuum ranging from individualistic conceptualizations of thought and action to interactive, co-constitutive approaches
The Urgent Need for Legal Scholarship on Firearm Policy
Get PDFRestrictions on federal funding for research pertaining to firearm policy have stymied academic inquiry by social science and public health researchers for over two decades. As a result, most researchers agree that our public discourse about this urgent issue is woefully under-informed, or even ill-informed, on both sides of the debate. Legal academia, which does not operate under the same grant-writing regime as most other disciplines, can and should help fill this gap in researching and theorizing the unresolved questions related to firearm policy. In fact, theoretical development and clarification from the legal academy is often a necessary antecedent for empirical researchers in other fields to frame and develop their own studies properly, especially about the real-world effects of competing policy approaches to firearms. This Essay sets forth a plea to law professors to undertake much-needed research in this area and offers suggestions of understudied topics with low entry barriers for legal commentators. Recommendations for interdisciplinary collaborative efforts round out this discussion. A brief conclusion reaches the endgame issue: ensuring access to the work we produce
