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After All These Years, \u3cem\u3eLochner\u3c/em\u3e Was Not Crazy—It Was Good
Get PDFFor this year’s Rosenkranz Debate, we have been asked to debate the question: Lochner v. New York: Still Crazy After All These Years? It is my job to defend the “negative” position. My burden is not to establish that Lochner was correctly decided, but merely that it was not “crazy.” I intend to meet that burden and exceed it. I intend to show how Lochner v. New York was not at all crazy; in fact, it was a reasonable and good decision
A Game of \u3cem\u3eKatso\u3c/em\u3e and Mouse: Current Theories for Getting Forensic Analysis Evidence Past the Confrontation Clause
Get PDFThe Sixth Amendment’s Confrontation Clause ensures that an “accused” in a “criminal prosecution[]” has the right “to be confronted with the witnesses against him [.]” Although perhaps a simple concept, defining the scope of confrontation rights has proved extremely difficult. The law has had particular difficulty scoping confrontation rights in forensic analysis cases, such as those where the prosecution seeks to utilize a laboratory report of DNA, blood alcohol content, narcotics, or other “CSI” type analysis. In this connection, Justice Gorsuch recently authored an opinion dissenting from denial of certiorari in Stuart v. Alabama, in which he recognized the “decisive role” of forensic evidence in modern criminal trials, but decried the lack of clarity in this area of law. The purpose of this Article is to analyze modern Confrontation Clause and forensic analysis jurisprudence, and to present six theories or gateways through which to argue that forensic analysis evidence is admissible consistent with the Clause. The theories presented in this Article are not intended to be employed individually, but rather combined to diminish the possibility that the Confrontation Clause will necessitate exclusion. To aid in the presentation of these theories, the Article will discuss the recent illustrative cases of U.S. v. Katso and Stuart v. Alabama, and explore how local stakeholders might utilize Katso-like reasoning to support their positions
Women in the Legal Academy: A Brief History of Feminist Legal Theory
Get PDFWomen’s entry into the legal academy in significant numbers—first as students, then as faculty—was a 1970s and 1980s phenomenon. During those decades, women in law schools struggled: first, for admission and inclusion as individual students on a formally equal footing with male students; then for parity in their numbers in classes and on faculties; and, eventually, for some measure of substantive equality across various parameters, including their performance and evaluation both in and in front of the classroom, as well as in the quality of their experiences as students and faculty members and in the benefits to be reaped from their tenure. This part of the story of women’s entry into the legal academy in the 1970s and 1980s—a story of attempted admission, then inclusion, then integration and assimilation, and then, finally, equality—is now a familiar one, at least in broad outline. It is not, in its entirety, an uplifting story. According to a raft of articles produced by women law students in the 1980s, 1990s, and 2000s, women law students during those decades participated less in the classroom, were called on and responded to differently when they did participate, suffered from more law-school-induced anxiety disorders and other mental health issues, graduated with lower GPAs and less law review experience, published fewer notes and filled fewer editorial positions on those journals, held fewer leadership positions overall while in law school, and had far more difficulties connecting with mentors, teachers, and would-be recommenders among the faculty than male students. Women law professors during those decades were tenured at significantly lower rates than men and, particularly at high prestige schools and at schools with fewer female faculty among the tenured ranks, were hired at lower rates that did not reflect their number in the pool of qualified applicants, had trouble asserting or maintaining authority in the classroom or being perceived as having authority, taught lower-prestige courses and received low teaching evaluations, and, like their students, were published far less frequently in the major and most prestigious law reviews.
Much of this, albeit not all, has not changed much for either students or faculty. As women in law schools enter the posttenure and midcareer phase, many of the old problems persist while new ones appear: women faculty are invited to participate on panels less often than men, and both women students and faculty are underrepresented as authors in law reviews. Although gender-neutral parental leave is now available to faculty at most law schools, many such policies are still ad hoc. There is considerable worry, although no hard evidence, over whether men disproportionately use the time off to write rather than care for children. Women are still disproportionately overrepresented in some fields and underrepresented or unrepresented in others, and those fields correlate in unsurprising ways with levels of prestige: the more women in a field, the less prestigious. As elsewhere in the workforce, women faculty in legal education suffer from sexual harassment, most of which is unremedied. Women still suffer a pay gap in law schools that remains unaddressed at most universities, as it does elsewhere in academia. There is a sizeable literature on these depressing phenomena that stubbornly do not seem to abate.
In these comments, however, I want to focus on another, less appreciated, part of the story of women’s entry into the legal academy in the 1970s and 1980s: the emergence of a body of scholarship—sometimes called feminist legal theory—produced by some of these women legal scholars over the same time period. The story I want to focus on, in other words, is not that of second- or third-wave women’s struggles within the academy, either for admission, acceptance, assimilation, or equality in law schools. Rather, this Article focuses on the story of the scholarship some of those second-wave assimilated women produced once they got there. Feminist jurisprudence, understood largely as scholarship on issues pertaining to gender equality, was launched in the 1970s, endures today, and continues to shape debates. Feminist legal theory, however, was in effect a subfield within feminist jurisprudence and, as its name implies, was an attempt to fashion a broad- based theoretical account of the relationship of law in liberal legal regimes to women’s subordination, patriarchy, and gender and sexual inequality— particularly in a post–civil rights era, when women enjoyed broad access to rights of formal equality, reproductive liberty, and liberal antidiscrimination law. Feminist legal theory so understood—a body of scholarship in search of a theoretical understanding of the relation of law to women’s subordination or, more simply, of law and patriarchy—was birthed in the 1970s, nurtured in the 1980s, and matured in the 1990s. I suggest in this Article that it is now seemingly in decline, and may soon disappear altogether.
The reasons for this trajectory, I believe, are to date unexplored. Some reasons are fairly self-evident. Feminist legal theory was a product of three time-specific factors peculiar to the 1970s and 1980s: it reflected the political and the legal struggles of second-wave feminism. The critical theory schools were, to varying degrees, present or thriving in the academy in the 1970s and 1980s, within which feminist legal theory was birthed, grew, and then coexisted with critical theory, albeit at times very uneasily; and this feminist theory reflected second-wave women faculty and students’ mixed experiences of assimilation, success, and alienation in law schools themselves, as briefly recited above. Those three factors—the background politics, the presence of critical theory in law schools, and the differences in women’s experience of those schools—are all themselves either disappearing or dissipating in felt urgency, albeit in different ways and at different speeds, and that dissipation clearly is a part of the story of feminist legal theory’s decline. There are other reasons for its decline as well, however. Some are internal to feminism and feminist theory, and some pertain to the changing nature of legal scholarship from the 1980s to the present. I explore these reasons in Part II below.
The story of the development of a distinctively feminist legal theory during the 1970s through the 1990s, and the story of its decline in the 2000s, is of obvious relevance to the history of second- and third-wave feminism. It should also be of interest for what it reveals about the nature of legal scholarship as it was understood, received, and produced in those decades. Its decline likewise reveals something about the changing nature of legal scholarship and the legal academy today. Thus, one conclusion I draw is that the feminist legal theory of the 1970s through the 1990s—regardless of the truth or lasting power of its claims—stands as an example of a type of legal scholarship that was somewhat distinctive to those decades. That form of legal scholarship, furthermore, likely can only emanate from the legal academy. For a host of reasons, we are currently in danger of losing this entire genre of intellectual work, which would be the polity’s loss, not just feminism’s or the legal academy’s
The Public Trust in Public Art: Property Law\u27s Case Against Private Hoarding of “Public” Art
Get PDFPrivate hoarding of important works of art is a phenomenon that has caused their disappearance from public view. The loss of this art undermines republican values like education, community, and citizenship, and therefore should be resisted. This Article explores various legal tools to prevent this from happening, including doctrines and laws that protect artists’ rights in their work, but which offer the public little relief. Turning to two well-known common-law doctrines—public dedication and public trust—to see whether they might provide a solution, the author favors the latter because it is nimbler and better suited to the public nature of important works of art. But she recognizes that making viable use of the public trust doctrine requires enhancement with incentives, such as those offered by listing the art on a register, the tax code, and external norms of social behavior. The Article is a tribute to Professor Joseph L. Sax’s public trust scholarship, which has inspired so many of us who follow in his footsteps
70 Years of Human Rights in Global Health: Drawing on a Contentious Past to Secure a Hopeful Future
Get PDFThe Universal Declaration of Human Rights, adopted on Dec 10, 1948, established a modern human rights foundation that has become a cornerstone of global health, central to public health policies, programmes, and practices. To commemorate the 70th anniversary of this seminal declaration, we trace the evolution of human rights in global health, linking the past, present, and future of health as a human right. This future remains uncertain. As contemporary challenges imperil continuing advancements, threatening both human rights protections and global health governance, the future will depend, as it has in the past, on sustained political engagement to realise human rights in global health
Oral Health Convening Focusing on Children with Special Health Care Needs
Get PDFBarriers to good oral health care pose a significant health threat to low-income individuals and families, which in extreme cases can result in fatal consequences. Lack of good oral health may also negatively impact social function and interaction, limiting verbal and nonverbal communication, and interfering with intimacy, nutrition, and sleep. Often ignored, oral care is the most prevalent unmet health care need among children and adolescents, and tooth decay is the most chronic illness in school-age children. Within this already vulnerable group, children with special health care needs (CSHCN) are especially at risk for a variety of economic, social, environmental, and other reasons that contribute to overall poor oral health care and negative health outcomes
The Strained Marriage of Public Debts and Private Contracts
Get PDF“[S]overeign debt is a complex political institution, which cannot be reduced to creditor coordination or any other contract problem.
Uncharted Waters? Legal Ethics and the Benefit Corporation
Get PDFCorporate law norms are reflected in lawyers’ ethical duties. The enactment of benefit corporation legislation across the country signals a legislative acknowledgment that corporate law can serve as a public, rather than a merely private, ordering mechanism. Benefit corporations expressly adopt a public benefit as a legal purpose of the enterprise. While many have written about this important development with respect to corporate fiduciary law, this essay is the first to explore the professional and ethical responsibility of lawyers representing benefit corporations. In the last century, as scholars and courts drove an understanding of corporate law that elevated the interests of shareholders above all other corporate constituents, the legal profession moved away from a model of public professionalism and embraced the ideal of the zealous advocate as a response. As a result of benefit corporation legislation, I suggest a return to an ethical model in which attorneys representing these entities explicitly acknowledge that they owe duties that extend to non-shareholder stakeholders and the public
Against Life Without Parole
Get PDFOver 40,000 people in the United States today are serving life without parole sentences (LWOP)—more than triple the number in 1992. This figure understates the case, since parole has become increasingly rare for the 140,000 prisoners serving life sentences that ostensibly permit parole. I argue that LWOP sentences should be abolished.
After reviewing the facts about LWOP, I show that of the standard reasons for punishment only retributivism can hope to justify it. I investigate the varieties of retributivism and argue that plausible versions do not entail or even recommend it. So we can reject LWOP without abandoning retributivism—an important point, strategically and perhaps morally as well. I then make the positive case for abolition, on three main grounds. First, few (if any) people are fully culpable for their criminal acts; we should mitigate their punishment accordingly. Second, abolishing life without parole—and indeed all life sentences—is likely to bring many benefits: to prisoners, their loved ones, the community in general, and to those who decide for abolition and who carry it out. Among these is the promotion of certain attitudes it is good for people to have, including faith in humanity. Finally, there’s a certain pointlessness in continuing to punish a person who has undergone changes of character that distance them greatly from the person who committed the crime many decades earlier
Triangulating Public Meaning: Corpus Linguistics, Immersion, and the Constitutional Record
Get PDFThis Article contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows:
1. The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice.
2. The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of the authors and readers of the constitutional provision being studied.
3. The Method of Studying the Constitutional Record: The method of studying the record framing, ratification, and implementation requires the researcher to examine the drafting process, including sources upon which the drafters relied, debates during the drafting and ratification process, and the early history of implementation of the constitutional provision.
These three methods each provide different inputs into the process of constitutional interpretation and construction. Because each method can be checked against the others, the combination of the three methods results in what can be called “triangulation.