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The Federal Eviction Moratoria Following COVID-19 and its Effects on Landlords, Renters, and the Economy
Get PDFA Taxonomy of Professional Identity Formation
No full textFollowing the ABA’s mandate requiring law schools provide students with opportunities for “professional identity formation,” this article seeks to clarify and loosely taxonomize the field of professional identity formation as it is being advanced by scholars and employed in U.S. law schools. By organizing this varied and somewhat muddled field into three dominant types or approaches and examining the primary and sometimes hidden goals of each, this article raises for review the potential pitfalls in this project, including the possibility of coercion, impotence, or waste. Ultimately, this article aims to pave the way for more constructive, transparent, and fruitful dialogue and debate as law schools strategically plan how best to engage in the professional identity formation of future lawyers
Constraining Criminal Laws
Get PDFThis Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the pathologies of the modern criminal justice system and protect important constitutional principles. Specifically, if modern courts were to use the historic rules of constraint, they would better protect important constitutional principles such as the separation of powers and democratic accountability. In making these points, the Article does not claim that courts are obliged to take a more active role in interpreting statutes; rather, it claims that courts are allowed to take this more active role and that there are good reasons to do so. In other words, while we do not argue that judges must use their interpretive powers to narrowly construe criminal statutes, we argue that they should.
The Article proceeds in three parts. Part I begins by providing an overview of the dominant theories of statutory interpretation, both of which are premised on the idea that courts should act as faithful agents of the legislature when interpreting statutes. It then explains how, with only small exceptions that have little practical consequence, those theories of interpretation treat criminal laws the same as non-criminal laws. Part II demonstrates how these modern theories depart from historical practice in failing to distinguish between criminal and other statutes and by assuming that judges’ main interpretive task is to carry out the will of the legislature. It traces the development of the rules of statutory construction that judges used to constrain the reach of criminal laws, and it describes how these rules were widely accepted by early state and federal courts. Part III explains how, in abandoning their role as an institution that independently constrains the criminal law, modern courts have countenanced a disastrous expansion of the criminal justice system. If courts were to once again embrace their role as an institutional constraint on the scope of criminal law, rather than merely seeking to effectuate legislative will by enforcing the purpose or the text of a criminal statute, they could help curtail some of that expansion and better protect important constitutional values, such as the separation of powers and democratic accountability
Nonmarriage and Choice in South Africa and the United States
Get PDFIn this Article, we examine three insights about free choice that emerge from studying the development of South Africa’s law of nonmarriage. First, South African jurisprudence advances understandings of nonmarriage as a valid choice. Unlike U.S. jurisprudence, which has been accused of overprivileging marriage and demeaning nonmarriage, South African jurisprudence draws attention to people’s legitimate reasons for choosing not to marry and the dignity interests attached to that choice. South African law helps to broaden the imagination of what is possible when nonmarriage is respected as a valid choice.
Second, South African jurisprudence illuminates the fact that the choice whether to marry can be severely constrained and even illusory. When couples desire marriage and have de jure legal capacity to marry, de facto conditions may well place marriage out of reach. For example, a gay couple in a homophobic small town may remain closeted for their safety and see marriage as an unrealistic option. Marriage may also be an unrealistic choice due to intra-couple power dynamics, such as when a financially dependent woman wishes to marry but her partner, who has financial leverage, opposes marrying. A couple that jointly wishes to marry may also find marriage out of reach if they face pressures to delay marriage or if one partner dies before wedding plans are realized. South African law prompts us to contemplate how law should respond to the fact that the choice to marry is sometimes severely constrained.
Third, the trajectory of South African law sheds light on how the principle of free choice can help shape the criteria that unmarried couples must satisfy to receive legal recognition. As we will explain, South African law regarding recognition criteria requires elaboration and refinement. Yet, it also contains the nascent idea that criteria for recognition should vary by context. For example, the criteria for legally recognizing an unmarried couple for adoption or workplace leave need not — and should not — be the same as criteria for legally recognizing an unmarried couple for intestate succession. We contend that this contextual approach to recognition criteria serves a variety of salutary goals, including the enhancement of autonomy.
The remainder of this Article will proceed in four steps. Part I provides a brief overview of legal developments in South Africa. Afterwards, we delve into the three abovementioned dimensions of choice: Part II examines nonmarriage as a valid choice; Part III addresses marriage as a constrained choice; and Part IV discusses choice as a factor in designing recognition criteria. We will examine how studying South Africa enriches our understandings of these dimensions of choice. To be sure, choice is not the only principle that should inform the law of nonmarriage. Equality, human vulnerability, and administrative feasibility are some of the other considerations that should play a role in shaping family law. This Article, however, focuses on enriching our understandings of choice
Racialized Religious School Segregation
Get PDFCarson v. Makin has several implications for the future of school-choice programs. This Essay explores one possibility: an increase in sectarian schools participating in state-funded school-choice programs, causing new forms of school segregation based on race and religion and impairing the democracy-enhancing functions of public education
Other Judges\u27 Cases
Get PDFAfter documenting the role of mediating judges in today’s federal courts, Part I considers both reform narratives and power narratives explaining their use. To add context and specificity, Part I presents case studies based on original research. While these examples have unusual features, they illustrate the breadth of potential mediating judge activities and offer more of a citable record than can be found for other cases. The first involves the largest municipal bankruptcy in American history. 10 The second starts with the bankruptcy of a founder of a nationwide assisted living facility enterprise, who also solicited retirees to make “can’t miss” financial investments. Part I expressly disaggregates the cases’ routine and exceptional elements. Finally, Part I highlights the separation-of-powers considerations that the case studies invite. It also shows how the Supreme Court’s vague guidance on separation of powers yields conflicting messages about how mediating judges should go about their business.
Part II considers the impact of prominent judicial accountability measures on mediating judge practices. The discussion illustrates why these systems do not operate effectively with respect to mediating judge practices. One of the biggest reasons is foundational to the mediation task: lack of a record of what transpired in behind-the-scenes negotiations. Another reason is an unduly restrictive definition of what constitutes extrajudicial activity.
Part III prescribes an agenda to preserve the virtues of the mediating judge model while managing the risks. It directs the work to institutions that make rules and policy for the federal judiciary, particularly within the powerful Judicial Conference of the United States. In addition to targeted queries arising from the research this article reflects, the agenda should address big questions, including the application of separation-of-powers principles and whether judges act in a judicial capacity when they mediate
Developing the WHO\u27s Pandemic Treaty To Facilitate Global Solidarity and International Accountability
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