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Contract Customization, Sex, and Islamic Law
Get PDFCommon law has historically deemed marriage and sex outside the right to contract. Yet, couples increasingly use contracts to provide legal rights to the unmarried in a variety of contexts ranging from same-sex relationships to surrogacy. Islamic law, on the other hand, has always conceived of marriage and sexual relationships as exclusively under the realm of contract law governed by private actors. This Article brings Islamic law into the larger conversation on the use of contracts for sexual and relationship agreements. It further proposes that Islamic law has something to offer Muslims and non-Muslims alike by empowering individuals to use contracts to develop romantic, sexual relationships. Islamic law requires formalized consent to sexual relationships by way of contracts that include duties, rights, and termination provisions. This Article examines the contract options under Islamic law that allow for licit sex between parties, such as urfi (customary), misyar (pleasure), and mut\u27a (temporary) contracts. This Article then explores the options couples have in customizing contracts, such as adding specific termination provisions, to best meet their relationship needs. Islamic law allows for the private termination of a marriage without a governmental actor. Rather than requiring a governmental actor to terminate the relationship or presuming marriage to be a nearly or completely irrevocable commitment, spouses can contract to allow both parties to unilaterally end the relationship. Finally, this Article discusses the ways contemporary reform proposals could reshape the way couples use contracts. Specifically, couples may want to structure their contracts as a partnership agreement, and in doing so, they may more easily capture the type of relationship they want to create rather than modifying default provisions to traditional contracts. In short, options exist in Islamic law for individuals to create legally binding contracts that reflect the relationships they intend to co-create in accordance with their moral and legal commitments
Police-Made Law
Get PDFThis Article presents evidence that police are writing laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level-- identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed through an anti-vaping ordinance because of news articles he read about the dangers of e-nicotine. Contextualizing police-made law within policing theory and local government structure makes it less surprising, but we should be critical of it in many cases. Democratic political theory sets requirements for when bureaucratic interest groups may legitimately influence legislative deliberation, and police often fail to meet these. Basic expectations of neutrality and expertise, derived from administrative law, are often lacking. Moreover, the power of police to use violence makes them more analogous to military officials than to administrative agencies. This should trigger a strong norm of civilian control and a presumption against advocacy in policymaking. Police-made law changes how we understand the role of police in governance. Rather than being the downstream recipients of extraneously conferred authority, they are active participants in the expansion of their own power. Police are not mere agents of the mass misdemeanor system--they are also its architects
Making Sense of 303 Creative: A Free Speech Solution in Search of a Problem
Get PDFIn 303 Creative v. Elenis, the Supreme Court held that a website designer had a First Amendment right to refuse to create wedding websites for same-sex couples, even though she would create such websites for opposite-sex couples and despite the fact that her refusal violated a Colorado antidiscrimination law. 303 Creative purports to resolve a tension between freedom of speech and public accommodations laws as applied to “creative professionals” whose products or services are expressive. But this problem is largely theoretical. It did not really exist outside a small handful of ginned-up controversies between purportedly creative wedding-related businesses run by religious conservatives and their largely hypothetical same-sex couple clients. The Court’s doctrinal “solution” to this supposed problem distorts free speech doctrine and needlessly threatens the foundations of antidiscrimination law by characterizing public accommodations laws as not content-neutral. The case may be better understood as a political gesture, operationalizing the “promise” made in Obergefell v. Hodges, that the Court would treat continued, private resistance to same-sex marriage as legitimate and worthy of protection. In delivering on this “promise,” the Court has made the tension between free speech and public accommodations laws worse
Two Is Not Always Better than One: Concurrent Jurisdiction in Indian Country and the Withering of Tribal Sovereignty Following McGirt and Castro-Huerta
Get PDFThere is a violence epidemic plaguing the Native American population across the country. Native women are disproportionality victimized by both sexual and non-sexual violence--over eighty-five percent of Native women are expected to be victims of intimate partner violence, stalking, or sexual violence at some point in their life. Most often, the perpetrators are non-Native, which creates jurisdictional issues. In most states, the only sovereign with the authority to prosecute non-Indian-on-Indian crimes is the federal government. Yet, federal law enforcement often does not investigate these crimes, and federal prosecutors ultimately decline to prosecute many sexual assault and domestic violence crimes in Indian Country. The 2013 and 2022 reauthorizations of the Violence Against Women Act (VAWA) allow Tribal governments to exercise “special Tribal criminal jurisdiction” if they satisfy a laundry list of requirements. But, in practice, many Tribes are unable to satisfy the requirements, leaving the federal government as the sole prosecutorial authority. However, in 2020, the Supreme Court set the stage for criminal jurisdiction in Indian Country to take a major shift. After deciding in McGirt v. Oklahoma that parts of northeastern Oklahoma are actually the Muscogee (Creek) Reservation and thus part of Indian Country, defendants convicted by state courts seized the opportunity to challenge the validity of their convictions. Victor Manuel Castro-Huerta, a non-Indian convicted by an Oklahoma state court for neglecting his five-year-old Indian stepdaughter, challenged his conviction on the ground that the crime was committed in Indian Country. Thus, the federal government would possess the sole prosecutorial power. However, the Supreme Court remarkably held in Oklahoma v. Castro-Huerta that the federal government and states now have concurrent jurisdiction to prosecute crimes committed by non-Indians in Indian Country. The Castro-Huerta decision, viewed in conjunction with the 2022 reauthorization of VAWA and additional measures granting states criminal jurisdiction, further complicates criminal jurisdiction in Indian Country over non-Indian abusers. Now, there are three prosecutorial authorities: the state, federal, and Tribal governments. But past experiences indicate that expanding the number of agencies with prosecutorial power in Indian Country is not always better. Generally, the consensus from tribal leaders is that Castro-Huerta is an unwarranted attack on tribal sovereignty that will inhibit the effective prosecution of crime in Indian Country. This Note explores potential solutions to address the ongoing injustice following McGirt and Castro-Huerta. Congress needs to restore Tribal governments\u27 authority to promote public safety and provide justice for victims in Indian Country. A simple amendment to the Indian Civil Rights Act can reaffirm that Tribes have criminal jurisdiction to punish non-Indian offenders by recognizing that Tribes can exercise jurisdiction over all persons located on or within Indian Country. Another amendment can remove all Tribal sentencing limitations and empower Tribes to adequately protect victims. These amendments will be most effective when Congress also increases appropriations to better fund Tribal criminal justice systems and their fight against the domestic and sexual violence crisis. While the aforementioned solutions would be politically challenging to achieve, there is also an opportunity to improve relationships under the current post-Castro-Huerta scheme. Tribes should be the primary gatherers of evidence to address the cultural barriers between Native victims and non-Tribal law enforcement personnel. Additionally, Tribes should collaborate openly with federal and state law enforcement agencies. This Note emphasizes that any path forward needs to center Tribal voices and focus on restoring Tribal sovereignty to effectively address the violence epidemic faced by Native women in Indian Country
Modern Statutory Interpretation: Correcting Court-Made Deficiencies in Title VII Law
Get PDFTitle VII of the Civil Rights Act of 1964 is a monumentally important piece of legislation that ensures all Americans can enjoy a fair workplace, free of discrimination. Even so, the federal circuits remain split on a significant aspect of Title VII\u27s interpretation. Notably, in some circuits, employees can still be scheduled or transferred based on their protected class, with minimal redress under Title VII. In Hamilton v. Dallas County, the Fifth Circuit upheld an employer\u27s explicitly sex-discriminated schedule as unactionable under the court\u27s standard. In doing so, the Fifth Circuit temporarily validated explicit discrimination in a key aspect of employment: the hours that an employee works. This Note argues that Hamilton does not exist in a vacuum and that the very possibility for the court to rule as it did in Hamilton is indicative of broader deficiencies in Title VII\u27s case law and statutory interpretation. This Note reviews circuit courts\u27 interpretations of Title VII and showcases how those courts ingrained bad precedent into longstanding law through questionable interpretations. While this Note gives particular attention to Hamilton and the specific issue of discriminatory scheduling and transfers, it more broadly criticizes courts\u27 general willingness to introduce arbitrary limitations to Title VII that prevent genuinely harmed individuals from seeking recovery. In questioning courts\u27 interpretive consistency, this Note also highlights the methodological and practical shortcomings of applying a textualist interpretive methodology to Title VII. This Note concludes by proposing a uniquely broad and purposive interpretation of Title VII. Through this, this Note builds off of other scholars\u27 acknowledgements of the Civil Rights Act as a uniquely influential statute, as well as William Eskridge\u27s particular advocacy for broad interpretations of culturally ingrained statutes
Reproductive Objectification
Get PDFThe American system of rights is individualized--premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous. This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object--a reproductive vessel, merely the container for another individual rights-holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the “maternal-fetal conflict” and undermine pregnant people\u27s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome--undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety
Scientific Context, Suicide Prevention, and the Second Amendment after Bruen
Get PDFThe Supreme Court declared in New York State Rifle & Pistol Ass\u27n v. Bruen that modern gun laws must be “consistent with this Nation\u27s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide-prevention laws, and, in doing so, illuminates another form of change that complicates Bruen\u27s implementation: scientific progress. As this Article shows, early generations of Americans fundamentally misunderstood mental illness and suicide, and that misunderstanding influenced societal approaches to suicide prevention. Theories about the causes of suicide and mental illness ranged from the supernatural to the pseudo-scientific; from demonic possession to erroneous views about blood-borne disease. Americans pursued policies and prevention measures consistent with those explanations, such as posthumous criminal punishment and intentional bleeding. Such approaches are far afield from the more effective ways to prevent suicide that we have developed through modern science like psychotherapy, medication, and, importantly for gun policy, restricting access to firearms--the most lethal method commonly used in U.S. suicides. The state of mental health science at the Founding renders comparisons of past and present suicide-prevention measures pursuant to Bruen\u27s doctrinal mandate fraught from the get-go. The Article concludes by discussing implications, including suggesting other ways that scientific context informs gun policy that warrant further consideration
Metals Derivatives Markets and the Energy Transition
No full textDespite their escalating importance, thus far, there has been minimal legal scholarship on metals derivatives markets. Given the key role of these markets in the transition to a clean energy future, increased focus on them is imperative.
Hence, it is not surprising that the agendas for the last four meetings of the Commodity Futures Trading Commission’s Energy and Environmental Markets Advisory Committee each dedicated a significant portion of the meeting to metals derivatives markets and their role in the transition to a clean energy future.Fundamentally, the United States and the world are moving from their long-term dependence on the fossil fuels that built the modern world, to dependence on new commodities such as copper and lithium. Coal and then natural gas made the modern economy possible by providing heat, power, and electricity to growing industries and populations in the world’s growing urban centers. Then oil made globalization possible by powering international sea and air travel as well as overland vehicles. As electric vehicles increasingly displace fossil fuel vehicles and renewable energy sources increasingly replace fuels in heating and industry, the economic and geopolitical stakes of metals markets will grow higher and higher.
The criticality of metals derivatives markets, such as the dysfunctional market for nickel, will also escalate as governments, businesses, and others seek to hedge risks related to the increasing global dependency on metals.Our article makes at least two contributions. First, it expands the minimal analysis of metals derivatives markets in the legal scholarship. Indeed, to the best of the authors’ knowledge, this is the first law review article to focus primarily on these markets. Second, it explores the role of metals derivatives in preparing for the transition to a clean energy future. We provide a brief overview of metals derivatives, including new markets in development, and their regulation in Parts I and II, respectively. In Part III, we explore the central role of metals derivatives markets in securing a clean energy future
Permitting the Energy Transition
No full textThe United States now has a landmark climate and clean energy law: the Inflation Reduction Act. The Act may provide more than a trillion dollars in spending on new clean-energy technology—over $8,000 for every household in the United States. What will Americans receive for this titanic investment? The answer largely turns on how quickly new clean-energy projects will receive permission to build.
As this Article explains, a fundamental irony of the energy system is that the cleaner energy sources we are now funding are more dependent on building far-flung infrastructure than our traditional energy sources. Coal and oil built the modern world because they could be easily transported by existing methods such as rail, ship, and vehicle to growing urban areas with a voracious appetite for energy. By contrast, solar and wind development must wait on new power lines to bring them to market. Likewise, nearly all the cleaner options for backing up these intermittent sources, including hydrogen and natural gas with carbon capture are equally dependent on new, linear infrastructure.
Rather than place a price on carbon emissions, the federal government has chosen to fund zero-carbon-energy alternatives in the hope that, once they are deployed, they will displace carbon-emitting alternatives. But there is a danger that, as with the U.S.’ historic investments in high-speed rail, launched over a decade ago— American taxpayers spend billions but have little to show for it because of how long it takes infrastructure projects to win permission to build. This Article explains the challenge of permitting the new energy projects that we are now funding, explains why some initial efforts at permitting reform fall far short of what is needed for a green energy build out, and proposes solutions fit for the purpose of building a clean energy system
Ethical, Legal, and Policy Challenges in Field-based Neuroimaging Research Using Emerging Portable MRI Technologies: Guidance for Investigators and for Oversight
No full textResearchers are rapidly developing and deploying highly portable MRI technology to conduct field-based research. The new technology will widen access to include new investigators in remote and unconventional settings and will facilitate greater inclusion of rural, economically disadvantaged, and historically underrepresented populations. To address the ethical, legal, and societal issues raised by highly accessible and portable MRI, an interdisciplinary Working Group (WG) engaged in a multi-year structured process of analysis and consensus building, informed by empirical research on the perspectives of experts and the general public. This article presents the WG’s consensus recommendations. These recommendations address technology quality control, design and oversight of research, including safety of research participants and others in the scanning environment, engagement of diverse participants, therapeutic misconception, use of artificial intelligence algorithms to acquire and analyze MRI data, data privacy and security, return of results and managing incidental findings, and research participant data access and control