18512 research outputs found
Sort by
Teaching at the Intersection of Federal Indian Law and Environmental Law Courses
No full textA discussion of the important role of Federal Indian Law in the practice of environmental and natural resources law and guidance on incorporating this intersection into traditional environmental law courses and curricula
Removing the Bias of Criminal Convictions from Family Law
No full textVol. 35:1What happens when a legal system reduces a person to a record of
arrests and prosecutions and prioritizes that information in family court? And
what are the implications when this legal system is rooted in racism;
disproportionately arrests, charges, and sentences people of color; and
increasingly criminalizes domestic violence survivors?
The Black Lives Matter movement brought attention to the need to expose
racial injustice in areas that scholars often overlook. This Article is the first
legal scholarship to examine judicial reliance on convictions in family law and
domestic violence proceedings. Judges are currently provided with entire
criminal histories, and statutes explicitly allow for or require family court
judges to consider past criminal convictions and the probation and parole status
of litigants seeking to secure custody or visitation of their children, form a
family through adoption, or receive protection from domestic violence, as
revealed by the research and fifty-state survey conducted for this Article.
Given the stark racial disparities that pervade the criminal legal system, the
convergence of heuristics and bias profoundly impacts litigants' lives,
relationships, families, and communities. Judges' implicit biases coupled with
structural hurdles, such as the high-volume dockets of criminal
and family courts, further affect adjudication and pressure parties to accept plea
offers or settlements. This Article also addresses survivors' advocates'
potential objections to decreasing judicial reliance on criminal convictions and
the imperative to avoid minimizing harms experienced by people of color. The
Article concludes by offering a statutory framework to reform the role of
criminal convictions in domestic violence and family court proceedings. The
recommended statutory reforms are positioned alongside emerging
expungement and vacatur laws. Without the remedy recommended in this
Article, racial bias and the stigma of criminality will continue infecting family
law cases, protection from domestic abuse, and caretaking relationships
Local Legislatures and Delegation
No full textThe law governing local legislatures' delegations to local executives is a mess. Nondelegation doctrine, as applied to the state legislatures' delegations, has at least a coherent (if empirically dubious) formal logic in classic ideas about separation of powers. When applied to local governments, however, the logic underlying this doctrine disintegrates. In the context of state legislatures' delegations, the doctrine rests on the notion that the state constitution intended the state legislature, as the most democratically accountable representative of the state people, to take direct and inalienable responsibility for major policy decisions, leaving only the "details" of "implementation" to be decided by executive officials. This reasoning is incoherent in the local government context. Many of local governments' most important legislative powers are derived from statutory delegations enacted by the state legislature, refuting any prohibition on that body's delegating "legislative powers. " Further, that delegated power is carried out by unicameral local legislatures exercising a mix of both legislative and executive powers in defiance of state constitutional rules requiring bicameral legislatures to turn over implementation to executive officials. Ignoring these realities, state courts routinely enforce some version of the nondelegation doctrine against local governments without differentiating between local and state delegations, sometimes even senselessly relying on separation-of-powers logic that makes little sense at the local level. This Article attempts to bring some coherence to the law governing local delegations by recognizing that limits on local delegation have nothing to do with state constitutional separation of powers. Instead, those limits rest on statutory presumptions that ought to be crafted in light of the peculiarities of local legislatures. Unlike some state legislatures or Congress, local governments regularly lack the partisan competition necessary to support jurisdiction-wide policy platforms. Local legislators, therefore, tend to adopt parochial policies that ignore jurisdiction-wide costs and benefits, including mutual deference to each legislator's exclusion of locally costly infrastructure or land uses from their district and excessive deference to incumbent entitlement holders like vendors, contractors, public employees, and neighborhood associations. This Article argues that state courts should recognize that, in contrast to local legislators, mayors, county executives, and city managers have broader name recognition and greater capacity to mobilize the voting public on behalf of jurisdiction-wide considerations. Nondelegation canons that impede local legislative bodies from delegating broad policy-making power to such unitary executives, therefore, undermine rather than strengthen democratic accountability. Rather than try to clone state-level nondelegation doctrine at the local level, judge-made local government doctrines ought to strengthen the hand of these jurisdiction-wide executives, not undermine them with gratuitous impediments like local nondelegation doctrines
"Natural Hierarchies"
No full textVol. 35:3This essay examines the socioeconomics of status hierarchies: how they
respond to external demands, and how, in terms of institutional structure,
they make themselves socially usable and durable. It asks whether there are,
in some sense, "natural hierarchies"-hierarchies that will almost always
emerge in sophisticated societies, regardless of sociopolitical or economic
conditions. It highlights adaptability as the central functional feature that
makes status rankings durable, and employs this measure to identify two
kinds of "natural hierarchies": wealth and seniority. Between the two, the
former has drawn the lion's share of political and intellectual attention, but
the latter possesses similar functional advantages, and is likely just as
pervasive across human societies, historical and modem. Like wealth
hierarchies, seniority hierarchies also serve as generally useful proxies for
most attributes that societies commonly value, are also relatively easy to
use, and avoid direct normative conflict with most sociopolitical value
systems even more adeptly than wealth hierarchies do. The term "natural
hierarchy" is employed here in a purely descriptive sense, without any
normative connotations whatsoever
McMarriage Equality
No full textThe article provides a detailed account of the marriage equality debates in California from 2004 to 2008, highlighting key events such as the Winter of Love in 2004 and the Marriage Cases of 2005-08. It discusses legal battles, including the California Supreme Court's ruling that invalidated the exclusion of same-sex couples from marriage. Various legal arguments were presented, with Attorney General Lockyer and Proposition 22 defenders taking different approaches. The article also mentions the launch of ProtectMarriage.com in 2005 to support a constitutional Super-DOMA ballot initiative and the successful campaign for Proposition 8 in 2008, which defined marriage as between a man and a woman
A New Tool for Enforcing Human Rights: Erga Omnes Partes Standing
No full textIn 2019, The Gambia brought suit against Myanmar in the International Court of Justice to hold it accountable for its alleged genocidal acts against the Rohingya, an ethnic Muslim minority group that has long been subjected to systemic abuse by the Myanmar government. As a State party to the Genocide Convention, The Gambia claimed that it had a common interest in preventing genocide by Myanmar. In a landmark decision issued in 2022, the Court accepted that The Gambia had standing and ordered Myanmar to prevent the commission of genocidal acts against the Rohingya. This Article argues that this decision offers the promise of a revolution in the enforcement of international law, especially international human rights law. It transforms what has long been the Achilles heel of international human rights law--the protection of legal rights shared by all--into an asset through the recognition of erga omnes partes standing, which allows a State party to a treaty that protects common legal rights to enforce those rights even if that State is not specially affected by the violation. As a result, whereas it was once too often the case that no State possessed the capacity to enforce the law, now every State that is party to the relevant treaty may have that capacity. This Article places these recent developments in context, tracing the evolution of the case law on erga omnes and erga omnes partes obligations over the course of more than a half century. It considers the extent to which the recent recognition of erga omnes partes standing as an enforcement mechanism might be expanded to other treaties. This Article considers, too, the potential drawbacks of this new mechanism for international law enforcement and the new questions the Court will inevitably face as this revolutionary development continues to unfold
Introduction to Yale Journal on Regulation Symposium on Financial Regulation.
No full textAn introduction to the journal is presented which discusses various reports within the issue about regulatory environment of banks, including how the Federal Home Loan Bank system works, public banking, and deposit insurance
International Law goes to War in Ukraine
No full textThe article examines the impact of Russia's war of aggression in Ukraine on global legal order and international law. It discusses the historical transition of the Old World Order to the New World Order. It outlines the world's response to the war through condemnation, outcasting, military aid and financial assistance and prosecution of crimes against humanity and war crimes. Challenges include the use of sanctions as an international law enforcement tool and split of global economy
On Academic Lawyers in the U.S. Government: Walter's Wisdom
No full textWalter Dellinger was one of the most effective lawyers ever to work in the United States government. He was also a natural mentor, which made him a source of joy and wisdom for generations. In remembering Walter, we should recall his wisdom regarding the difference between academic and government lawyers, the government lawyer's duty to explain, and the human qualities that, over a storied career, earn lawyers genuine affection and respect
THE DUTY OF CLIMATE CARE
No full textThis article provides a historical context of climate change and the failure of political and international efforts to address greenhouse gas emissions. It discusses the rise of climate change litigation worldwide and explores conceptual issues related to a duty of climate care. The article highlights landmark cases that have resulted in court orders requiring governments to take stronger action on climate change. It also discusses lawsuits that aim to hold major fossil fuel companies accountable for their contribution to climate change. The challenges faced by plaintiffs in attributing emissions and establishing responsibility for climate change are also discussed. The article concludes by emphasizing the importance of legally enforceable duties of climate care in addressing the global climate crisis