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Jason Bent, Hope for Zimmerism: Overcoming the Empathy Problem in Antidiscrimination Law, 20 Em. Rts. & Emp. Pol'y J. 277 (2016)Clicking on the button will copy the full recommended citation.
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Luz Estella Nagle and Bolaji Owasonoye, Fearing the Dark: The Use of Witchcraft to Control Human Trafficking Victims and Sustain Vulnerability, 45 Sw. L. Rev. 561 (2016)Clicking on the button will copy the full recommended citation.
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Will Bunting, Resolving Conflicts over Scarce Resources: Private versus Shared Ownership, 99 Marq. L. Rev. 893 (2016)Clicking on the button will copy the full recommended citation.
This Article models private ownership as a conflict resolution mechanism and contends that for the Coase Theorem (as defined here) to be consistent, private ownership must yield the Pareto-optimal use of scarce resources among all feasible conflict resolution mechanisms. Conflict over a scarce resource may be better resolved, however, by eliminating the possibility of private ownership and “forcing” parties to share ownership of a contested scarce resource. A corollary to the Coase Theorem is introduced which states: In the absence of transaction costs, the distribution of private and shared ownership is efficient. Provided transaction costs are high and shared ownership is socially-optimal, a role for the courts is suggested wherein de facto shared ownership is established by rendering private property rights random or unclear — judicial behavior that stands in contrast to the normative implications of the Coase Theorem.
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Ellen S. Podgor and Darnesha K. Carter, Miranda at 50, 40 Champion 16 (2016)Clicking on the button will copy the full recommended citation.
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Robyn Powell and Michael Ashley Stein, Persons with Disabilities and their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis Focus: Disability Rights in China and in the World, 11 Frontiers of Law in China 53 (2016)Clicking on the button will copy the full recommended citation.
Despite important gains in human rights, persons with disabilities — and in particular women and girls with disabilities — continue to experience significant inequalities in the areas of sexual, reproductive, and parenting rights. Persons with disabilities are sterilized at alarming rates; have decreased access to reproductive health care services and information; and experience denial of parenthood. Precipitating these inequities are substantial and instantiated stereotypes of persons with disabilities as either asexual or unable to engage in sexual or reproductive activities, and as incapable of performing parental duties. The article begins with an overview of sexual, reproductive, and parenting rights regarding persons with disabilities. Because most formal adjudications of these related rights have centered on the issue of sterilization, the article analyzes commonly presented rationales used to justify these procedures over time and across jurisdictions. Next, the article examines the Convention on the Rights of Persons with Disabilities and the attendant obligations of States Parties regarding rights to personal integrity, access to reproductive health care services and information, parenting, and the exercise of legal capacity. Finally, the article highlights fundamental and complex issues requiring future research and consideration.
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Grant Christensen, Personal Jurisdiction and Tribal Courts After Walden and Bauman: The Inadvertent Impact of Supreme Court Jurisdictional Decisions on Indian Country, 68 Rutgers U. L. Rev. 1367 (2016)Clicking on the button will copy the full recommended citation.
In 2014 the United States Supreme Court added two new cases to the canon on the meaning of due process in the context of personal jurisdiction. These cases clarified the metes and bounds of specific and general personal jurisdiction. However, decisions that fit within the state and federal court system do not always easily have cross applications to tribal courts – which nonetheless are obliged to extend due process rights via the Indian Civil Rights Act. This article takes the Supreme Court’s 2014 decisions and discusses their potential application to tribal courts and their use within Indian Country.
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Paul Boudreaux, Lotting Large: Reconsidering Large Lot Zoning, 68 Me. L. Rev. 1 (2016)Clicking on the button will copy the full recommended citation.
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Louis J. Virelli, Administrative Abstention, 67 Ala. L. Rev. 1019 (2016)Clicking on the button will copy the full recommended citation.
Abstention — a federal court’s decision to avoid interfering with an ongoing state proceeding — offers a snapshot into the foundations of our constitutional arrangement. In addition to notions of equity and comity, abstention conjures issues of federalism, the separation of powers, and democratic legitimacy. When abstention intersects with state administrative law, these issues take on new force and, in some instances, new meaning. Unlike state courts, administrative agencies occupy a tenuous position in a tripartite democracy and are tasked with making often difficult and controversial policy decisions. A federal court’s decision to interfere with that policymaking process has consequences for state government far beyond the interruption of a purely judicial proceeding. Yet despite the different stakes raised by administrative abstention, the Supreme Court and the academic literature have largely overlooked the unique interplay between abstention and administrative law. This Article recasts administrative abstention as a distinct species of abstention and evaluates it in terms of the principles of democratic legitimacy and good government that provide the foundation for the administrative state. Only by thinking of abstention in distinctly administrative terms can we fashion a relationship between federal courts and state agencies that protects the legitimacy of state administrative governance while maintaining a robust forum for the vindication of federal rights.
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Marco Jimenez, Distributive Justice and Contract Law: A Hohfeldian Analysis, 43 Fla. St. U. L. Rev. 1265 (2016)Clicking on the button will copy the full recommended citation.
According to Aristotle, justice consists of giving each person his due: equal members of society should be treated equally, and unequal members, unequally. This justice, in turn, comes in two flavors: distributive and corrective. Distributive justice — which has as its purview society at large — is concerned with distributing society’s shares to individuals according to merit. Whereas, the purview of corrective justice concerns voluntary (e.g., contracts) and involuntary (e.g., torts) transactions, and it seeks to rectify unjust alterations in the distributive scheme by returning the parties to the position they occupied before the distributive scheme was altered, which is to say, before a particular harm occurred.
Even today, Aristotle’s classification of these two types of justice holds a firm grip on the judicial imagination, and perhaps nowhere is this truer than in contract law. There, it is taken for granted that the distributive shares held by members of society are determined both prior to, and outside of, contract law. The distributive question having been settled, it is believed that the proper role of contract law is merely to (a) facilitate the just exchange of these distributive shares by allowing parties to bargain and form agreements with one another and (b) rectify any unjust alteration to these previously established distributive shares. To couch this in Aristotelian terms, contract law should be concerned with enforcing the rules of corrective justice — which will facilitate and rectify the just exchange of previously allocated distributive shares — but should not be concerned with the initial distribution of those shares.
This Article challenges that view, and argues that the seemingly value-neutral rules of contract law are fundamentally distributive in nature, and that to ignore these distributive considerations is more than just bad policy — it is to misunderstand how the fundamental building blocks of the law are arranged to form contract law in the first place. Indeed, given the distributive nature of contract law, even the most non-activist judge imaginable, who sees it as his or her role to simply apply the law as written, and who views it as entirely improper to consider notions of distributive justice for the purpose of achieving a fairer distribution of wealth among members of society, nevertheless cannot help but make distributive decisions whenever he or she selects among or administers the rules of contract law, which have embedded within their very structure a deeply entrenched view of distributive justice.
This is because every determination of law, including the determination of which rights ought or ought not to exist, or ought to be applied in a particular contractual setting, is the product (intentional or otherwise) of a policy decision regarding not whether the legal relationship in question ought or ought not to be regulated, but how that relationship should be regulated. And this regulation, in turn, requires that judges — even judges who adamantly view themselves as non-activist judges — make an ex ante distributive decision regarding which rights ought and ought not to exist, which rules ought and ought not to apply, and how those rights and rules ought and ought not be protected. These decisions, in turn, must all be made as a matter of policy rather than law.
Teasing out the implications of these insights can fundamentally alter the way we view and understand contract law. For instance, once we realize that the various legal rules that govern contract law are made up of a conglomeration of policy decisions regarding how to regulate (rather than whether to regulate) the relationship between the contracting parties, one of the largest obstacles to regulation — that of the perceived judicial interference with the rights of the parties — is removed as the need for regulation is now seen as mandatory rather than permissive. And because regulation is mandatory, the real question ought to be how we should understand, if not change, the manner in which the selection, application, and interpretation of contract rules affects the distributive arrangements between the parties to a contract.
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Ashley Krenelka Chase, Leading with (Next to) Nothing: A Blueprint for Active Library Leadership When Times Are Tough, 24 Strategic Library 1 (2016)Clicking on the button will copy the full recommended citation.