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No full textGermany operates a double track system of punishment and preventive detention. Traditionally, this system included fixed-term prison sentences, which were limited by the safeguards of legality, proportionality, double jeopardy, etc., followed by preventative detention of indefinite length, which was not limited by those safeguards. In 2010, the European Court of Human Rights determined that the preventive period had to count as punitive and, thus, should be subject to the safeguards that surround punishment. This decision affects many other European countries that share a version of the double track system. While Europe is retreating under the tutelage of the ECHR on this matter, the United States has been developing its own system of preventive detention, both within the criminal law (for sexual predators) and without (for suspected terrorists). The essays in this volume bring together the best of European and American comparative writing on these issues.https://scholarship.law.ua.edu/fac_bookchapter/1060/thumbnail.jp
Critical race theory: the cutting edge
No full textCritical Race Theory has become a dynamic, eclectic, and growing movement in the study of law. With this third edition of Critical Race Theory, editors Richard Delgado and Jean Stefancic have created a reader for the twenty-first century—one that shakes up the legal academy, questions comfortable liberal premises, and leads the search for new ways of thinking about our nation\u27s most intractable, and insoluble, problem—race. The contributions, from a stellar roster of established and emerging scholars, address new topics, such as intersectionality and black men on the down low. Essays also confront much-discussed issues of discrimination, workplace dynamics, affirmative action, and sexual politics. Also new to this volume are updated section introductions, author notes, questions for discussion, and reading lists for each unit. The volume also covers the spread of the movement to other disciplines such as education. Offering a comprehensive and stimulating snapshot of current race jurisprudence and thought, this new edition of Critical Race Theory is essential for those interested in law, the multiculturalism movement, political science, education, and critical thought.https://scholarship.law.ua.edu/fac_books/1013/thumbnail.jp
Discerning Critical Moments: Lessons from the Life of Derrick Bell Title Challenging Authority: A Symposium Honoring Derrick Bell
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The Separation of Legislative and Executive Powers
No full texthis landmark volume of specially commissioned, original contributions by top international scholars organizes the issues and controversies of the rich and rapidly maturing field of comparative constitutional law.Divided into sections on constitutional design and redesign, identity, structure, individual rights and state duties, courts and constitutional interpretation, this comprehensive volume covers dozens of countries as well as a range of approaches to the boundaries of constitutional law. While some chapters reference the text of legal instruments expressly labeled constitutional, others focus on the idea of entrenchment or take a more functional approach.Challenging the current boundaries of the field, the contributors offer diverse perspectives – cultural, historical and institutional – as well as suggestions for future research. A unique and enlightening volume, Comparative Constitutional Law is an essential resource for students and scholars of the subject.https://scholarship.law.ua.edu/fac_bookchapter/1019/thumbnail.jp
Fisher, Academic Freedom, and Distrust
Get PDFIn Fisher v University of Texas at Austin the United States Supreme Court remanded to the Fifth Circuit a challenge to the University of Texass postGrutter use of raceconscious admissions in selecting a student body concluding that the Fifth Circuit had not engaged in the proper level of strict scrutiny review such policies require From the moment Fisher was handed down it has been the subject of discussion and debate over whether Fisher represents a speedbump for raceconscious university admissions policies or a major barrier to such policies In this paper I focus specifically on what Fisher means as a First Amendment andor academic freedom case and what it says more generally about the relationship between courts and universities particularly with respect to academic freedom I offer two basic conclusionsFirst one thing that is both striking and emblematic with respect to the Fisher litigation and especially the opinions in the Fifth Circuit in this case is that it shows that there are various competing judicial conceptions of the university itself its purpose and mission its authority and expertise and the role of courts in policing its boundaries Those competing visions are on display not only in Fisher but in other opinions such as Justice Alitos dissenting opinion in CLS v Hastings And they may have a longterm impact on the continuing vitality of constitutional academic freedomSecond the Fisher litigation and other cases also demonstrate a growing judicial mistrust of universities That mistrust is accompanied by an increasing judicial unwillingness to defer to universities on questions of academic policy and functioning This distrust too may cast a shadow not only over affirmative action cases involving universities but over cases involving academic freedom itself I argue that these trends are disturbing and ought to be arrested Courts should defer substantially to universities in these and other cases In doing so they should also leave space open for institutional pluralism for the possibility that different but equally legitimate and constitutionally protected conceptions of the university can and should coexist within the broader academic sphere Much of the increasing judicial distrust of universities is of a piece with a larger prevailing distrust for institutions But I argue also that a good portion of the fault lies with the universities themselves If they want to retain or revive meaningful legal autonomy and ensure continued judicial deference for core academic decisions the universities must do a better job of making sure that judges and others understand them and above all trust the
Optimal Asylum
Get PDFThe U.S. asylum system is noble but flawed. Scholars have long recognized that asylum is a “scarce” political resource, but U.S. law persists in distributing access to asylum based on an asylum seeker’s ability to circumvent migration controls rather than the strength of the asylum seeker’s claim for protection. To apply for asylum, an asylum seeker must either arrange to be smuggled into the United States or lie to the consulate while abroad to obtain a nonimmigrant visa. Nonimmigrant visa requirements effectively filter the pool of asylum applicants according to wealth, educational attainment, and intent not to remain in the United States indefinitely—criteria completely unrelated to or at odds with the purposes of refugee law. The system as currently designed, therefore, selects asylum seekers based entirely on their ability to satisfy irrelevant criteria and without regard to their relative need for protection from persecution. Such a system fails to maximize the humanitarian benefits of scarce U.S. asylum resources.
To better protect individuals facing serious persecution, this Article contends, Congress should consider reforming the immigration laws to provide for an “asylum visa” to be made available to certain foreign nationals. U.S. consulates abroad, under proper and limited circumstances, might issue this visa to foreign nationals who demonstrate a credible fear of persecution on a ground enumerated in the United Nations Convention Relating to the Status of Refugees (Refugee Convention). Applicants would then lawfully enter the United States and apply for asylum. Successful applicants would remain, and unsuccessful applicants would face removal. Drawing on the extant literature on “protected entry procedures” (PEPs) that once existed in Europe, this Article considers the costs and benefits of the practice of issuing asylum visas. This Article concludes that, despite serious and uncertain costs and the impracticability of issuing asylum visas in some countries, this practice would likely create substantial benefits. In particular, it would likely decrease asylum seekers’ reliance on human smugglers, clear a path to protection for bona fide asylum seekers, and increase the accuracy of information possessed by both asylum seekers and the U.S. government. Thus, the asylum visa would assist asylum seekers in making better-informed decisions ex ante and help to achieve a better allocation of asylum resources ex post. For these reasons, the creation of an asylum visa and the potential details of such a proposal merit further study
The Law of the Body
Get PDFThis Article posits that a law of the body is overdue. In the absence of clarity about the legal status of the human body, courts have constructed a collection of circumstantially defined categories for resolving the question of human body ownership and use. This patchwork approach is awkward, unwieldy, incoherent, and, by many lights, ultimately unjust. Many able minds have been applied to critiquing the distributive consequences of a regime in which we cannot-at any point in our lives- own our own bodies (or its constituent parts), but other people can and do. But what has been missing from these conversations is a conceptual foundation for understanding the living human body as property. This Article supplies that piece of this byzantine puzzle. Specifically, the thesis presented here holds that by employing a property framework to understanding the legal status of the human body we can explain with coherence and consilience our existing legal commitments concerning the treatment of the human body.
Moreover, this Article addresses the standard objections to explicitly acknowledging the human body as an object of property and demonstrates that they are predicated on a series of misunderstandings. These misunderstandings generally fall into three categories: misunderstandings about the nature of property ; conceptual misunderstandings about bodies and selves and the capacity to own oneself and misunderstandings about the necessary consequences of adopting a property framework with respect to the human body. Once these misapprehensions are clarified, the intellectual path will be cleared for a law of the body to emerge, and legislators, courts, and scholars can begin the important work of shaping it into a doctrine that is consistent with our normative ends