Search

The history of Voting Rights Act litigation is usually told as a tale of transformation. The transformation divides voting rights litigation into two periods separated by the 1982 Amendments to Section 2 of the Act and the Supreme Court's articulation of a post-Amendment doctrinal framework in Thornburg v. Gingles. This Article argues that this standard history is importantly incomplete. Using a dataset that includes every decision in a Section 2 case since 1982, we show that voting rights jurisprudence underwent a second transformation less than a decade after the first. This second change, which took place in the early 1990s, was unlike the first because it was not embodied in any amendments to the statute or changes to the formal doctrinal structure of voting rights litigation. But it was serious change nonetheless. During the second transformation, courts substantially altered the way in which they evaluated claims brought under Section 2. The Gingles framework's central role in the first transformation was significantly undermined by the second: immediately after Gingles was handed down, liability almost always followed from a finding that the Gingles test was satisfied; but within a decade, liability become much less closely connected to the satisfaction of that test. Moreover, there is some evidence that this shifting pattern of judicial decisionmaking was driven principally by changes in the behavior of Democratic appointees. These findings raise important questions about the changing politics of minority districting, as well as questions about the strategic use of doctrine by judges. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the wake of the horrific terrorist attacks on Mumbai in November 2008, there is growing pressure for the enactment of a new anti-terrorism law. In 2004, the Congress Government repealed the Prevention of Terrorism Act ("POTA"), due to widespread criticism that the act's draconian preventive provisions had been badly manipulated and abused by state and local elites against the lower classes or religious minorities.This paper examines the failures of the POTA regime in order to understand how future anti-terrorism regimes can be made more effective and less subject to abuse. I start by analyzing the role of the Indian judiciary in the implementation of past anti-terror laws such as the National Security Act (the A.K. Roy case (1982), the Terrorist and Disruptive Activities Act (the Kartar Singh case (1994), and POTA (2003). In each case, the Court has upheld deeply flawed laws on the grounds that anti-terror legislation lies within the realm of "extraordinary law." In this paper, I revisit these decisions and argue that the Court in the future should adopt a more assertive and proactive role in scrutinizing future anti-terror legislation, in order to ensure that future regimes are effective and not abused by state elites. Indian leaders must learn from the mistakes of POTA in designing a new law that centralizes power and control over anti-terrorism policy, and provides for strong judicial review and oversight of its implementation. I conclude by contrasting Indian case law with U.S. Supreme Court and federal court decisions in this area. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The last two decades have seen the emergence of a "new governance" that seeks to re-direct the efforts of judicial, administrative and legislative bodies to create more de-centered, participatory, collaborative models of dispute resolution . In this paper, we focus on the rise of problem-solving justice represented, for example, by the proliferation of problem-solving courts in the U.S. and internationally. We ask two sets of questions. First, how do we theoretically characterize problem-solving justice, what are its key features and how does it fit in with related forms and antecedents? Proponents point to affinities with restorative justice, therapeutic jurisprudence, democratic experimentalism, yet problem-solving justice diverges in significant ways from each of these approaches. Second, how is problem-solving justice related to larger trends toward de-regulation, de-constitutionalization, de-legalization? While on the one hand, it incorporates many aspects of what Heydebrand calls "process rationality" or the "logic of negotiated process," an emphasis on loosening legal formalism in striving toward pragmatic and utilitarian problem-solving and the use of informal, flexible and expedient strategies, it also emphasizes substantive values in its specific problem-solving goals as well as an emphasis on participation and a quest for equality. Additionally, then, we ask about the implications of problem-solving justice for social and economic equality; in particular what does it contribute to how we understand the importance of respect or moral recognition versus material redistribution in conflict resolution? While legal positivism simply distinguishes between legal and illegal solutions to problems, the vexing question of who defines what a "problem" is in the first place suggests how close legal policy tends to come to social policy. Overall, we seek to scrutinize problem-solving justice, the social context that summons it, and its continuities and differences with new and ongoing reform movements. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Transportation equity has been inextricably intertwined with the evolution of civil rights for more than 100 years. From Plessy v. Ferguson, the U.S. Supreme Court's 1896 opinion legitimizing 'separate but equal,' to the Freedom Rides and the Montgomery bus boycott, public transportation is a crucible in which significant developments in civil rights have been forged. As Martin Luther King, Jr. wrote: When you go beyond a relatively simple though serious problem such as police racism . . . you begin to get into all the complexities of the modern American economy. Urban transit systems in most American cities, for example, have become a genuine civil rights issue-and a valid one-because the layout of rapid-transit systems determines the accessibility of jobs to the black community. If transportation systems in American cities could be laid out so as to provide an opportunity for poor people to get meaningful employment, then they could begin to move in to the mainstream of American life. What was true when Rev. King wrote these words remains true today, as the story of mass transit in Los Angeles demonstrates. In 1992, the Labor/Community Strategy Center ('LCSC') — a self-described Leftist 'think tank/act tank' — formed a Transportation Policy Group to study the Los Angeles transportation system, which the LCSC perceived to be discriminating against poor people and people of color. In 1993, the LCSC formed the Bus Riders Union ('BRU'), and the BRU began its 'Billions for Buses' campaign. Under the campaign, the BRU demanded the replacement of 2,000 dilapidated diesel buses with 2,000 new clean-fuel buses, the expansion of the bus fleet by an additional 500 buses to reduce overcrowding, and the addition of yet another 500 buses for new service to medical, employment, and educational centers. In 1994, on the eve of a an impending bus fare increase, the LCSC and the BRU, along with several other individual and institutional plaintiffs, filed a federal class action lawsuit on behalf of 350,000 Los Angeles County transit riders against the Los Angeles Metropolitan Transit Authority ('MTA'). The plaintiffs' complaint alleged that the MTA had violated Title VI of the 1964 Civil Rights Act ('Title VI'). The LCSC based it's Title VI claims on allegations that the MTA had established a 'racially-discriminatory, separate and unequal, two-tiered' public transit system: 'An expensive, boondoggle rail system for only 6 percent of transit consumers who are more than 50 percent white, significantly affluent and suburban, and a dilapidated, deteriorated bus system for 94 percent of the riders, 81 percent of whom are people of color . . . .' In addition, the LCSC brought an intentional discrimination claim against the MTA for the perceived animosity of its Board of Directors towards bus riders of color. The plaintiffs won a temporary restraining order to halt the fare increase and, in their complaint, prayed for further injunctive relief, essentially asking for a court order to force the MTA to institute the BRU's 'Billions for Buses' demands. In 1996, the parties agreed to settle the litigation by entering into a Consent Decree, under which the MTA is required to maintain bus fares, improve existing bus service and implement new service programs. Instead of ending the litigation, however, the parties' differing interpretations of compliance under the Consent Decree have led to myriad legal disputes between the parties. Throughout, the LCSC has continued to place political pressure on the MTA - as well as on local, state and federal politicians - through the BRU. The LCSC's critics have charged that the LCSC is not a legitimate representative for L.A. bus riders, and that the organization has pursued a Leftist political agenda at the expense of the true needs of the bus riders. This paper will critique this critique, exploring the tension between the roles of the LCSC as a class representative and as a social movement organization with a broad Leftist agenda. This paper also discusses the role chance played in this civil rights drama-that is, whether there is a clear causal chain between the LCSC's actions and its 'success' as measured by the Consent Decree. Moreover, what lessons truly should be taken away from the LCSC's campaign and repeated in other campaigns? This paper benefits from a behind-the-scenes perspective on the LCSC, the BRU and the MTA. The authors have attended numerous LCSC/BRU and MTA meetings and events, they have talked with key players in the arena of L.A. transit policy, and they have interviewed legal counsel on both sides in order to gain a better understanding of the latest chapter in the continuing story of transportation equity. [ABSTRACT FROM AUTHOR]

In 1996 Elouise Cobell of the Blackfeet Nation and her co-plaintiffs filed a class action lawsuit against the Secretary of the Interior, Assistant Secretary of the Interior, and Secretary of the Treasury on behalf of more than 300,000 Native Americans. The suit alleged breach of fiduciary obligations on the part of the government that has resulted in the loss, misdirection, and unaccountability of several billion dollars of monies held in trust by the United States for Native American beneficiaries. The suit was filed following a Congressional mandate for Interior and Treasury to reform the trust system, and their subsequent failure to do so. This paper looks at the case as it has progressed thus far, and analyzes Court rulings, defendants' claims and actions, and the initiative of the plaintiffs in the context of 'federal Indian law' and 'federal Indian policy' as historical constructs which serve as guideposts for subsequent law making, both judicial and legislative. The paper will examine the existence and impact of structural inequality among Native Americans, and offer a critique of this particular example of racial/ethnic legal and political subordination. [ABSTRACT FROM AUTHOR]

This paper uses the recent spread of same-sex marriage litigation as a case study for several interesting questions on the relationship between constitutional interpretation, social issues, and non-judicial actors. Past research investigates whether court decisions encourage or limit constitutional interpretation by non-judicial actors. This paper suggests that courts are aware of their impact on constitutional deliberation outside the courtroom, and the courts may orient their decisions towards encouraging or discouraging such deliberation. Within this interactive model, the outcome of a court's decision may be less important than the issues the court chooses to decide. These issues become the basis for strategic action by non-judicial actors (particularly social movements), who respond to and propel the diffusion of further litigation. Through this iterative approach, these different actors contribute to meaning on a social issue.This paper focuses on cases from Minnesota (1971), Kentucky (1973), Hawaii, Vermont, Massachusetts, New Jersey, Califonia, and Connecticut, but also considers other states that have addressed same-sex marriage. The paper uses court decisions, amici curiae briefs, newspapers, and other sources to compare how judicial and non-judicial actors treat the same decisions. The paper also draws on previous interviews and participant observation of the same-sex marriage movement in Massachusetts for further insight into how activists use these decisions. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper suggests that using the concept of 'good faith', as is used in Israeli class action proceedings, could resolve some of the shortcomings in U.S. class action proceedings. There is a vast literature about the abuse of the class action procedure in the United States. Among other problems, scholars lament the extensive filing of meritless class actions in order to extort unwarranted settlements and the so-called "sweetheart settlements", in which class counsel colludes with the defendant to settle meritorious claims for far less than they are worth, in exchange for fees in excess of those he would have expected had the parties proceeded to trial. Yet, there are no satisfactory solutions to the abuse of this procedure. This paper addresses this gap by describing and evaluating a solution that originates outside the United States. Unlike Rule 23, the recently enacted Israeli Class Actions Law includes a good faith requirement as one of the prerequisites to certification. This requirement is used to scrutinize the motives of the representative plaintiff and the class counsel. Israeli Courts will not certify class actions which have been instituted for collateral or illegitimate purposes such as extortion or harming a competitor. The paper suggests that the application of good faith in the U.S. could resolve some of the more significant flaws in the Federal system. In making this argument, the paper also considers both the larger legal and socio-political contexts-specifically the role that litigation plays in the American and Israeli societies. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper revisits Chief Justice John Marshall's opinion in the 1833 U.S. Supreme Court case Barron v. Baltimore. There, Justice Marshall struck down a claim by two Baltimore wharf owners demanding compensation for a state governmental taking of their property pursuant to the Fifth Amendment. However, Marshall used the case as an opportunity to declare that the entire Bill of Rights did not apply to the states, a decision seemingly contrary to Marshall's own pro-Federal jurisprudence. This paper views Barron as representing an evolution in the idea of the location and applicability of individual rights. For example, the proposition that the sovereign could not take private property, except in accord with some form of legal due process, traced its roots to the Magna Charta and had been a fundamental principle recognized by the English common law for centuries. While Marshall could have easily avoided the issue by ruling that no actual physical taking occurred, he instead ruled that this right did not exist for the Plaintiffs because of its inclusion in the Bill of Rights, which was only meant to apply to the Federal government. Thus, Barron comports with a larger shift occurring at the time regarding the conceptual location of rights, from one where a written constitution simply declared pre-existing fundamental rights to the vision of a constitution as a form of law which granted those rights like any other rule or statute. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores various ways in which lay people participate as decision-makers in criminal cases, including juries, lay assessors in mixed tribunals, lay magistrates, and lay courts. Based on a worldwide survey of lay participation, the paper analyzes the extent and nature of lay participation. It not only examines whether countries that rely on lay participation utilize only one or more than one form of lay participation, but also explores each of the forms of lay participation in detail. Furthermore, the analyses of lay participation incorporate legalistic variables (e.g., legal tradition), economic indicators (e.g., GDP), and other socio-political variables (e.g., quality of governance). ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines how plaintiffs perceive the fairness of the legal process of employment discrimination litigation and the outcomes of such litigation. The paper draws on interviews with 41 randomly selected plaintiffs who filed employment discrimination cases in U.S. federal court between 1988 and 2003. The paper identifies and describes the specific factors that plaintiffs consider most relevant when assessing the fairness of their cases. These factors include plaintiffs' perceptions of favoritism in the legal system, the opportunity to tell their story and to have an authority figure fully consider their case, their perceptions of their lawyers' skills and integrity, and the perceived bases upon which judges and juries seem to make decisions. Plaintiffs' satisfaction with their case outcomes varies depending upon the case's consequences for their careers, their personal health and happiness, and the employers as well as the award and any broader legal impacts of their cases. The paper engages the procedural justice literature by examining how people construct the meaning of fairness in real legal cases and in the specific context of employment civil rights. Our study provides greater granularity and nuance to the measures used in studies of procedural justice. Our findings also challenge research results that show that as long as plaintiffs feel they have been treated fairly, then the outcomes of their cases do not matter for their future legal engagement. We find that most plaintiffs feel strongly that they have not been treated fairly yet they would pursue the same lawsuit again. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The dilemmas posed by intellectual property claims to valuable traditional medical knowledge are increasingly debated in the commercialized global arena. Developing countries, indigenous communities, and special-interest groups are concerned that legal and market actions in dominant states will unethically and inequitably impact cultural practices they claim as their own. Thus, social movements linking the preservation of indigenous knowledge with human and cultural rights have become increasingly coherent and are coalescing, to some degree, to develop effective strategies to protect cultural practices from private proprietary claims. This paper traces one such strategy involving traditional medical knowledge, beginning with the two US-based lawsuits arising from private copyright claims to a specific yoga choreography. I then examine how these disputes parallel other instances of what Indian officials have termed the "piracy of national cultural heritage". In doing this, the discussion focuses on the novel policy developed by the Indian government to prevent future private intellectual property claims - the Traditional Knowledge Digital Library (TKDL). In tracing the trajectory from yoga copyrights, to patents on the tumeric plant, to the Traditional Knowledge Digital Library, issues of authorship and translation processes are highlighted in the domains of traditional medicine, intellectual property law, and information and communication technologies. Specifically, this paper will focus on how, through these processes of translation, traditional knowledge moves from an endangered cultural object requiring national protection to a valuable market commodity controlled by the Indian government in its capacity as a development state. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Numerous federal statutes purport to regulate conduct in foreign countries, but actual prosecutions are rare. Nonetheless, the United States is surprisingly effective at regulating foreign activity. Through a combination of occasional high-profile indictments and more numerous, informal enforcement actions, the U.S. federal government uses laws in areas such as antitrust, securities, and tax to affect primary behavior abroad.However, there is a substantial disconnect between this effective enforcement action and extraterritoriality jurisprudence. Recent U.S. Supreme Court extraterritoriality decisions arise from private civil litigation and turn on doctrines of comity and reasonableness. These conflict-of-laws doctrines require the judiciary to make a discretionary determination as to whether it is appropriate to apply U.S. law to the foreign activity in a particular case. While these doctrines may be appropriate in litigation between private parties, they risk infringing on executive foreign policy authority when applied to public law enforcement actions. Moreover, they appear to be based on notions of exclusive territorial sovereignty inconsistent with the behavior of modern states.This paper seeks to bridge the gap between extraterritoriality theory and actual enforcement practice. As changes in transportation, communications, and surveillance technology make it progressively easier for governments to regulate foreign activity, legal precedents based on a non-representative subset of fact situations are an increasing cause for concern. Accordingly, this paper explores alternative theoretical approaches that might better explain the broader range of extraterritorial enforcement actions that take place outside the courtroom. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In Ash v. Tyson Foods, Inc., a Tyson Foods plant manager called two Tyson Foods employees "boy." The employees, who were both Black, claimed that this appellation was probative of unlawful race discrimination under Title VII of the Civil Rights Act of 1964. Significantly, the United States Supreme Court acknowledged that in Title VII race cases, courts must analyze a word's intended or conveyed meaning within social, historical, or contextual circumstances to ascertain whether adverse employment actions were based on an employee's race. Furthermore, the court maintained that a racial modifier is not necessary for a word, like boy, to be deemed probative of an employer's racial animus. This paper will discuss individual disparate treatment cases like Ash v. Tyson Foods, Inc. in which Title VII plaintiffs have offered supervisors' wordsâ??words whose meanings are contingent to historical and contemporary constructs and relational hierarchies based on race, color, or national originâ??as direct or circumstantial evidence of unlawful race, color, or national origin discrimination. This paper examines the restrictive analyses courts employ in such race, color, and national origin cases. Additionally, this paper delineates how words implicating racial, color, and ethnic dynamics, if placed within their proper socio-historical or contemporary context as well as relational context, are quite probative of unlawful employment discrimination. This paper also calls for the recognition of individual and group histories of oppression and subordination; the incorporation of these histories in jurisprudential examinations of discrimination claims; and the dismantlement of racially and ethnically subordinating workplaces. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Courts experience constitutional law largely as a series of discrete questions about particular constitutional provisions. Individuals, however, experience the consequences of constitutional decisions holistically. The disjunction between how courts address constitutional questions and how individuals experience them creates potential anomalies: a set of decisions that appear sensible, just, and well-reasoned individually may nevertheless produce consequences that violate basic constitutional norms.This paper addresses the question of how Courts are supposed to behave in such circumstances. Its premise is that fidelity to the Constitution requires strategies for correcting the course of constitutional interpretation. Its goal is to come up with principled approaches for identifying situations where this constitutional anomaly exists and for enforcing essential constitutional norms without undoing doctrinal structures that operate effectively in the bulk of constitutional cases.To analyze these issues, the paper identifies and surveys a series of Supreme Court cases that present these difficulties, cataloging and critiquing the different strategies the Court employs. In an effort to develop a coherent approach to the problem, the Article then deals in detail with the equal protection concerns raised by the racial and class disparities endemic in urban American public schools. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the interest of protecting the public space, lawmakers have high incentives to be tough on crime. This is true for both the American legal system with man-made laws and the Islamic legal system with ostensibly God-made laws. But judges have developed doctrines for thwarting criminal sanctions. In American law, this occurs through invoking legal maxim called "the rule of lenity," which requires that that doubts or ambiguities as to the culpability of a criminal defendant should be construed in favor of the defendant. In Islamic law, there is a parallel maxim with respect ḥudūd, or fixed criminal punishments, specifying that doubts in evidence or culpability mitigate fixed criminal punishments (the "ḥudūd maxim"). This paper examines how these maxims function in juristic conceptions and in practice in both the American and Islamic legal systems. It will focus on the rationales behind the maxim. If tough criminal laws are political and policy goods, then why do judges thwart them? Legislative supremacy is one rationale shared in both contexts. The paper looks to select cases from the Burger Court and from Islamic Spain, examining when lenity or ḥudūd maxims were actually invoked in criminal trials. In serving the judicial and juristic goals of legislative supremacy, do jurists contravene the legislative policy? Is this a regular feature of criminal jurisprudence because of the power of the state to impose criminal sanctions and the threat of displacing people and depriving them of life or liberty through false convictions? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The social movements literature, in its increasing attention to framing, often emphasizes a movement's purposive communications (such as writing, statements, or speeches) without considering how these communications are actually interpreted. This limited scope of observation neglects the possibility that a movement's message will be reconfigured through various mediating "publics" (Turner 1969:817), including opponents, dominant ideologies, and the media. This paper shows that, after the lesbian, gay, bisexual, and transgender (LGBT) movement secured a pivotal Supreme Court victory in Lawrence v. Texas, mainstream news media sources began to portray organizations in the legal wing of the LGBT movement as narrowly focused on same-sex marriage. By comparing the three leading LGBT legal organizations' dockets with the news coverage they received, I show that the message that these organizations put forth through their tactics was confounded by the media's overreporting of their marriage litigation. Although the LGBT legal organizations were involved in a variety of cases, and although they took on many more employment and family law cases than marriage cases, the media depicted these organizations as narrowly focused on the controversial goal of same-sex marriage. I show that the media's construction of these LGBT legal organizations comported with the "counterframing" (Benford 1987:75) of same-sex marriage opponents, who harnessed prevalent cultural conceptions of litigiousness and democratic legitimacy to depict LGBT people as elites, aligned with "activist judges" to push same-sex marriage through the courts. This paper thus demonstrates how mediating "publics" can distort the general perception of the tactics, and even the very identity, of a social movement. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper compares two efforts by human rights activists and lawyers to use transnational legal mechanisms to target "extraordinary rendition" by officials of the United States. The first focuses on the effort to hold U.S. officials accountable for torture at Abu Ghraib and Guantanamo under the German Code of Crimes against International Law. In 2004, the German Federal Prosecutor refused to prosecute the case on the grounds that the United States would likely investigate the matter. After the United States passed the Military Commissions Act (2006), which prevents any high-ranking U.S. official from being prosecuted for war crimes, the victims of torture refiled a request for investigation into whether prosecution is warranted. The second case focuses on Khaled El-Masri v. George J. Tenet et al, filed in the United States under the U.S. Alien Tort Claims Act. Although El-Masri is a German citizen and was allegedly tortured and detained outside of the United States, this statute provides U.S. Federal Court jurisdiction over torts (including jus cogens violations) committed outside the United States. The paper also examines the extent to which these movement activists have transnationally organized and strategically linked their legal campaigns in an effort to forge a transnational grassroots movement against extraordinary rendition, and abusive human rights practices associated with it, including torture, war crimes, and prolonged arbitrary detention. The paper identifies theoretical implications for the study of transnational social movements, particularly with regard to understanding the legal dimensions of opportunity structures that facilitate their emergence. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In this paper, I analyze the development in the U.S. of a network of lawyers and advocacy organizations supporting lawsuits over police misconduct. Although the origins of police misconduct litigation in the U.S. can be traced to the early decades of the 20th century, organized networks among police misconduct litigators began to grow only with the efforts of the NAACP-LDF in the 1940s, remained relatively moribund through the1960s, and then grew exponentially after the early 1970s. The paper documents the development of such networks and analyzes the conditions for their significant growth in the 1970s and 1980s. Finally, the paper discusses the impact of these networks and the liability threats generated by them on police policy and administrative processes. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In October 2003, attorneys general from twelve U.S. states filed suit against the federal government in an attempt to compel the Environmental Protection Agency to regulate so-called "greenhouse gases." This lawsuit appears to be part of a growing trend in which state attorneys general are attempting to shape national environmental policy through the courts. This practice, dubbed "legislation through litigation," is the focus of this paper. My paper examines all state-initiated lawsuits against the U.S. federal government and private parties in federal courts from 1970 to the present. Over 300 cases are examined, with the goal of tracing litigation patterns and trends. The second part of the paper analyzes the political and policy consequences of these lawsuits, focusing in particular on recent multi-state lawsuits that address national environmental problems. The analysis examines how the courts, Congress, government agencies, and the media have responded to the litigation. This research will expand our understanding of the role of litigation and "judicial entrepreneurs" in environmental politics and policymaking. On the one hand, proponents of state environmental litigation praise activist state attorneys generals on the grounds that they are effective policy entrepreneurs in an otherwise moribund federal regulatory environment. But critics of such litigation claim that the judicial arena is not the proper place to settle conflicts over national regulatory standards. They argue, among other things, that these lawsuits forward an adversarial model of policymaking that is inefficient and ineffective. While the debates over these lawsuits continue, very little empirical research exists in which to evaluate them. This paper attempts to fill this gap. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper explores the role played by expert witnesses in the legally-mediated construction of American Indian histories in the United State Federal Courts. In 1975, the US Department of the Interior sued approximately 140 landowners along the Williamson River in southern Oregon. At issue was the seniority of the government's water rights in the region. For reasons of US water law, the distribution of water rights in the 1970s depended on the historical ecology of the river and the past uses of the river by the Klamath Tribes of American Indians in the mid 1800s. As a result, each side hired experts in anthropology and ecology to construct competing and conflicting versions of the tribes' past. This paper examines the process by which certain expert opinions about the tribes' histories were authorized as true, while others were discarded as false. I suggest that the version of the past that was ultimately validated conformed to and reinforced popular conceptions of authentic American Indian historical activities and relationships between American Indians and the environment. Because the reproduction of these visions of authenticity had direct impacts on the Klamath Tribes' sovereign status, I suggest that the activities of expert witnesses in this case (and in American Indian litigation more generally) were extensions of colonial violence. By privileging expert modes of knowledge production over experiential ones, the court became a site of exclusion, in which only certain (generally non-native) actors were allowed to participate in the construction of tribal histories. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper is part of a broad research agenda on the democratic potentialities of the institutionalization of participatory proceedings through law and is also part of a specific research agenda on the legitimacy and the contributions of non-state actors at international forums. The Inter-American Court of Human Rights (IACHR) is the international forum chosen for this analysis and its participatory proceedings are public audiences and amici curiae at contentious and consultative cases. The main questions that this paper will raise are: Which is the purpose that leads non-state actors to take part in IACHR's proceedings? Are there implications of this participation on the IACHR's manner of action? The related hypothesis that will be developed on this paper are: (i) the non-state actors are using the potentialities of the IACHR's participatory proceedings to influence the decision making process of the court and are reflecting on the IACHR as an efficient space for recognition of rights or more favorable interpretations of international law; moreover (ii) the participation of non-state actors on the IACHR brings a new approach to this court, making its manner of action similar to an international forum ("court-forum") or, according to the theoretical approach adopted on this research, resembling to a public sphere (Habermas), a space of interests justification, in which new demands are able to emerge. Therefore this paper is divided in two parts: the empirical analysis of the institutional participatory settings of IACHR and the theoretical approach, the IACHR as a public sphere. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Can relatively disadvantaged groups use constitutional litigation to win rights to greater equality? This paper investigates the question with a detailed examination of U.S. litigation for same-sex marriage. Over the past dozen or so years proponents of same-sex marriage in the U.S. have turned to litigation as a strategy to advance their cause. In this paper I examine the results of this choice. I examine how litigators fared in court and whether any victories produced the change they hoped for. Further, I investigate indirect effects of litigation including whether and how litigation affected legislative action, mobilization (pro and con), media coverage, and public opinion. I conclude by asking what explains the results and what it tells us about courts, social movements, and change. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper proposes to trace and problematize the ascendancy of the content and viewpoint neutrality principle as the core of free speech doctrine in American constitutional law. The paper scrutinizes the Supreme Court's decision in Brandenburg v. Ohio (1969) where the majority opinion equated the discriminatory expression of the Klan to communist speech without deliberating about the different conceptual issues raised by the racial dimensions of the case. Specifically, the paper advances a critique of the content and viewpoint neutral approach, arguing that an ahistorical and acontextual approach to free speech doctrine is non-neutral. It leads to an untenable form of ethical relativism anathema to fundamental constitutional principles and the liberal ideals of maximizing liberty and promoting tolerance. The current understanding of free speech doctrine hinders distinctions between dissident speech and harmful hate speech or pornography. In an age when the Pentagon monitors dissenters and employers fire employees for their political beliefs, a clear conceptual distinction between dissident speech and hate speech or pornography is crucial. At the same time that the threat to government regulation of dissent has increased, the harm from hate speech and pornography has not dissipated. Without a clear line delineating dissent from hate speech or pornography, law augments the power of government to silence critique or defends the harmful speech of those seeking to marginalize historically oppressed groups. The paper maps where the conflation between racist speech and dissident speech occurs and provides criteria to distinguish between the two. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will explore the intersection of geography and culture in the gender discrimination class action suit brought against Wal-Mart. The national span of the Wal-Mart class makes the case a particularly suitable vehicle for exploring the tension between class action doctrine's distrust of geographic dispersion and the reach of cultural norms that shape employment practices in ways that affect women similarly throughout the nation. The paper will consider how culture - both the corporate employment culture within Wal-Mart stores and the cultural power that Wal-Mart exercises as both a commercial entity and an employer -- pushes the class across state lines. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In an attempt to move beyond the notion that race is only apparent as a mode of exclusion or discrimination, this paper takes as its point of departure the racial as a mode of the application of power that produces il/legal subjects along a differential axis. I argue that the racial, as it operates as a signifier of violent social spaces in producing whiteness as always the marker of morality and legality, does not always play out in a zero-sum game. Racial subaltern subjects indeed stand before the law differently, but they do so differentially - not only in relation to the (institution of whiteness as the marker of the) "I," but also in relation to the "I"'s other Others. I analyze the 1991 People v. Soon Ja Du sentencing and appellate court decisions as moments in which the differential and relational production of blackness as a marker of illegality, and whiteness of legality, provides for the conditions of possibility for the institution of the not-quite-legal, not-quite-illegal Asian American "probationary" legal subject. [ABSTRACT FROM AUTHOR]

Between 1898 and the 1920s, the Five Civilized Tribes of Indian Territory (and then Oklahoma) were transformed by the administrative process of enrollment, individual allotment of land, and becoming U.S. citizens. The territory itself became part of the new state of Oklahoma, and with statehood came strict Jim Crow regulations. Black Seminoles and Cherokee, who had been citizens of their Nations, and especially people of mixed Black and Indian identities, found themselves increasingly under pressure as native identity and citizenship were racialized. At the tail end of the allotment era, in 1921, the Hawai'ian Homes Commission Act was passed, individually alloting land to native Hawai'ians, also defined by law for the first time in terms of "blood." This paper will examine legislative debates about native identity, as well as administrative proceedings and litigation, to demonstrate the interaction of law and culture in creating the meaning of race and citizenship during the Progressive Era. [ABSTRACT FROM AUTHOR]

The United States Supreme Court gave a nod to the co-constitutive relationship between liberty and equality in its recent decision invalidating the criminal prohibition of sodomy, Lawrence v. Texas. Such co-constitution of liberty and equality has been under-theorized, both within constitutional doctrine and theory and within law and society scholarship. This paper tracks the increasing recognition of such co-constitution by American courts. It also seeks to advance the theorization and application of this co-constitution. [ABSTRACT FROM AUTHOR]

Nontraditional families have grown in number and complexity over the past few decades. This is representative of a particular kind of social change, one in which there is greater and greater deviation from the traditional model of family. Many nontraditional families involve an adult willfully acting and serving as a parent to a child not genetically related to the adult, often with the encouragement of the biological parent. The nonbiologically related child-rearer has traditionally been legally classified as a ?third party? who has few to no legal rights to maintain the relationship s/he has formed with the child. In many recent state court cases these ?third party? individuals have tried to obtain legal parental status even though they do not fit the traditional legal model of a parent. Legal status as a parent is crucial in strengthening one?s claim to custody/visitation with a child and therefore maintaining one?s relationship with that child. Some states are resistent to expanding the legal definition of parenthood while other states are receptive. California in particular has judicially established a special legal status for these ?third party? individuals — de facto parenthood. In this paper I will examine the major California state court cases which discuss the meaning and limits of de facto parenthood. Who may acquire this status? How is this status acquired? And what does this new doctrine tell us about law?s reaction to the social change that we see evident in the rise of nontraditional families? [ABSTRACT FROM AUTHOR]

It is widely recognized that the U.S. Patent & Trademark Office (PTO) is poorly informed about the prior art and, as a result, grants overbroad patents in many high-tech arenas which also happen to be the most dynamic areas for patenting activities. In emerging fields such as business method patents, software patents and the like, many commentators note that the issuance of 'bad' (i.e., partially or wholly invalid) patents has actually increased. In this paper, I examine patent granting and patent enforcing institutions, and using a game theoretic model, I formally show how partially or completely invalid patents are not likely to be corrected by the market or the courts. There are three possible outcomes once a bad patent has been granted by the PTO - it survives as if it were a good patent; it survives as a result of a private agreement with potential challengers or alleged infringers; or it gets invalidated in whole or in part by a court. Given the very high transactions costs attendant to litigation, our patent system cannot rely on just the judicial system as the only safeguard against low quality patents. In short, judicial process or market forces do not necessarily drive out bad patents. Rather, these patents survive in the market and continue to impose significant social costs and create inefficient outcomes for society. Second, I analyze how changes in judicial costs, quality of court performance, and private transaction costs affect the probability of survival of a bad patent. As expected, higher litigation costs induce private parties not to resort to the courts and try to solve their patent problems by themselves through private agreement or re-designing their technology. Litigation costs and the quality of court performance are crucial in determining whether a bad patent is likely to be subject to a court challenge. Better efficiency in determining and invalidating bad patents induce firms to employ the court system to a greater degree to resolve their differences. Finally, an increase in private transaction costs also increases the possibility that parties will use the courts to resolve patent disputes. Third, I present a modified model to include a third-party opposition system within the PTO. This opposition system is intended to provide fast and low cost review of patents that are currently being reviewed or have been recently granted. The existence of such a system greatly improves the performance of the patent system by drawing the patentee's competitors and improvers into the administrative review process by offering an alternative, low-cost, efficient mechanism to reduce the number of bad patents that persist without challenge. I also discuss how different characteristics of the opposition system will determine how successful this reform is likely to be. The design of the opposition system should be aimed at providing a low-cost and effective procedure for patent challenges. The characteristics of the opposition system-pre-grant vs. post-grant oppositions; the scope of estoppel in subsequent oppositions; the types of evidentiary procedures employed in the opposition; and implementation of a one-way, fee-shifting procedure-are all key factors that will determine the efficiency of any opposition system. Based on my model, I show that an opposition system with an effective level of estoppel concentrated around the issues brought up in the opposition panel; a rapid proceeding that permits only written submissions; and a one-way, pro-challenger/infringer, fee-shifting system will provide the basis for an effective and low-cost opposition regime. Finally, I will present some recent data from Japan on dual patent invalidation processes-administrative invalidation process co-existing with a court invalidation process-and what we can learn from their experience in the last three years. [ABSTRACT FROM AUTHOR]

There is an emerging notion of 'citizenship by fate' in recent discourse over the status of undocumented immigrants. The traditionally strong liberal notion of citizenship in the United States was one in which citizenship was recognized by contract. If one matched a series of criteria established by existing citizens, one was eligible to be admitted to citizenship. A contrasting notion is communitarian citizenship, where citizenship is generally not 'tradable'- it is acquired only through long-standing ties with the community. However, the massive number of undocumented immigrants in the United States has pushed accepted notions of citizenship to its limits. The American society has particularly struggled with the question, 'are undocumented immigrants who were brought here when they were only young, still illegal and deportable?' Increasingly there are signs that people are unwilling to treat individuals, who by no choice of their own had come to live in the United States since their youth, simply as 'illegal aliens'. For example, recent debate over the DREAM Act, granting in-state tuition to high school graduates who are undocumented, shows that this notion has become significant enough to influence national policy. Even the Supreme Court cases, analyzed under this light, seem to reflect this emerging notion. For example, in Plyler v. Doe, the Court held that the exclusion of undocumented children from support for public education was unconstitutional. In its opinion, the Court expressed the notion that children could not be held responsible for the decision of their parents to come to the United States. In this paper, I will examine the development of this discourse through primary sources including legislative and judicial transcripts, and consider the implication of the emerging notion on existing immigration law and policy. [ABSTRACT FROM AUTHOR]

Laws mandating the civil commitment of sex offenders have been enacted in a majority of states - most often with strong public support. Proponents of the laws argued for their necessity based on research studies done with small groups of compulsive pedophiles. In practice, the men who are committed under these statutes include persons convicted of a wide range of offenses, who now face indefinite confinement. Studies done in the late 1980s and 1990s, after the moral panic about the abuse of children in day care centers, found that roughly one in three girls and one in six boys experience sexual abuse before the age of eighteen. The United States Supreme Court has ruled that civilly confined sex offenders are not prisoners, thus the Eighth Amendment protections are not available to them. The legal processes used in civil commitment and the conditions in which these men live are the subject of litigation in many states. The study of the scope of sexual abuse of minor children by Roman Catholic clerics is the first-ever analysis of a universe of allegations by victims of sexual abuse in a specific domain. The results of this study, public in late February 2004, provide a unique lens through which to evaluate the legal justifications for the civil commitment of sex offenders. The author of this paper is a long-time advocate for prisoners through the Prisoners Self Help Legal Clinic at Seton Hall Law School as well the Data Analyst for the Catholic Bishops' Study now being carried out at John Jay College of Criminal Justice. [ABSTRACT FROM AUTHOR]

In recent years, a number of state supreme courts have explicitly declined to follow decisions of the United States Supreme Court. In a 1998 opinion, the Supreme Court of Georgia struck down a state law criminalizing sodomy and expressly rejected the Supreme Court's decision in Bowers v. Hardwick. Likewise, several states have rebuffed a major free exercise decision of the Court's, while a number of its criminal rights rulings have met with outright defiance from state supreme courts. These examples illustrate a poorly understood phenomenon in American politics - the extent to which state supreme courts comply with Supreme Court decisions. The likelihood of review by the Supreme Court of any lower court decision is quite small, allowing for the very real possibility of unchecked deviation from precedent. This implies that these lower courts have substantial discretion to decide cases as they wish, with little fear of Supreme Court reprisal. This in turn raises very important issues about how legal standards evolve and spread in the United States. In addition, there is little evidence about the validity of the measures employed to establish how much compliance exists (but see Spriggs and Hansford 2000). In this paper, we add to this dialogue by assessing the validity of three measures of compliance - those provided by Shepard's and Westlaw, as well as a more refined measure we develop. Toward that end, we take the following steps: Refine the existing conceptual definition of compliance. • Assess content validity by comparing the coding rules for each measure to the conceptual definition of compliance. • Assess construct validity by testing basic hypotheses about lower court compliance with data on state supreme court progeny for Supreme Court search and seizure cases. • Examine the level of overlap between the three measures in order to provide practical suggestions to other researchers for whom all three measures are not accessible (mainly due to resource constraints). Such an examination will provide a more solid footing for empirical studies of compliance, in particular linking quantitative measurements with qualitative and conceptual arguments regarding compliance. [ABSTRACT FROM AUTHOR]

This paper will examine the plans for the distribution of the settlement monies received in litigation concerning Swiss actions during and after the Holocaust. Among the issues to be addressed are: (1) Jewish law and tradition forbids constructing memorials to oneself. Why, then, does the court - acting for the dead or unfound owners of the settlement funds - approve spending funds for construction of memorials to these owners? (2) Strong Jewish traditions resist comparing the Holocaust to any other mass crimes, even genocides, such as in Cambodia or Rwanda. Why, then, does the [post-cold War, U.S.] court construct the recipient class as principally including survivors of the 'double victimization' of fascism and communism? [ABSTRACT FROM AUTHOR]

Smoking has been identified as the single most preventable cause of death and disease in the United States. Approximately 50 million Americans smoke. Nearly 3 million United States teenagers smoke. Approximately 3,000 teenagers a day become regular smokers and one-third of them will die prematurely of a smoking-related disease (USDHHS 1990). Adolescent tobacco use and the subsequent health problems are a major concern in American society. The Institute of Medicine has declared tobacco use a pediatric epidemic. Ninety percent of regular smokers begin before the age of 19 and 60 percent begin before the age of 14 (USDHHS 1989). Public health officials agree that abstinence from using tobacco products is the best policy. Given the prevalence of tobacco use by adolescents how does cessation or reduction programs measure up against prevention programs? This paper examines the current philosophies behind adolescent tobacco cessation and reduction programs versus prevention programs. In addition it examines how the recent tobacco litigation settlement focuses attention on the role of law in abetting the cessation vs. prevention debate. [ABSTRACT FROM AUTHOR]

Recent criminal cases and Supreme Court jurisprudence have confirmed the argument (advanced by David Garland, Jonathan Simon, and Malcolm Feeley, among others) that a good deal of law enforcement and other crime prevention measures can also be understood as forms of social control. Events ranging from the prosecution of John Walker Lindh to ever-increasing Supreme Court encroachments on the Fourth Amendment suggest that crime has long since lost its status as a deviation from the common good to be redressed by application of the law. Instead, crime and the law have become elements in the maintenance of social relations and the production of American identity. This circumstance has become all the more salient in the two-plus years since the attacks of September 11th, 2001 as criminal activity is increasingly scrutinized for possible connections to international terrorism. Accordingly, this paper offers an historical and analytical account of the incremental redefinition of crime in the United States. It addresses not simply the increased opportunity for governmental intervention in the lives of citizens, but the ways in which a generalized regime of external threats is put to productive use for purposes of governance. In addition, the essay seeks to indicate the extent to which these dynamics are derived from the increasing austerity of American crime control measures over the past two decades. Articulated as a deviation from personal responsibility rather than a phenomenon caused by particular social relations, crime is more easily portrayed as something that requires new and unique forms of governance. [ABSTRACT FROM AUTHOR]

The U.S. Supreme Court has held, in Dallas v. Stanglin, that social dancing has no protection under the 1st Amendment, as part of a general argument that "social associations" have no such protection. This paper explores the social assumptions underlying the exclusion of social associations from protection under the law. The exclusion of social dancing from such protection will be examined as one example among a number of others. [ABSTRACT FROM AUTHOR]

The briefs for Lawrence v. Texas (2004) the case that eventually overturned state criminalization of sodomy evinced a sea change in American conservative commitments to the jurisprudence of privacy. This case overturned Bowers v. Hardwick (1986) that had preserved the constitutionality of sodomy statutes, a precedent central to the conservative opposition to Romer v. Evans (1996) that relaxed political opposition to gay rights and other attempts, political and legal, designed to augment civil rights. The Lawrence briefs from institutions and individuals who have long derided civil rights for lesbians and gays signaled a willingness to reject the Bowers language and embrace privacy rights for gay sexuality. This paper seeks to thematize the meaning of this shift in the politics of lesbian and gay rights for contemporary governmentality. I argue that recent challenges to antidiscrimination law suggest a strategic shift in governance over gay and lesbian political demands, one that is increasingly willing to regulate these demands as matters of speech rights rather than as matters of equal protection. In tracing this shift, I pay particular attention to the evolving grammars of citizenship, truth and security evoked in legal contests over gay and lesbian civil rights. [ABSTRACT FROM AUTHOR]

The new federal death penalty is two decades old, yet little empirical assessment has been done of the cost, quality, and availability of defense representation in federal capital cases. This paper caps a two-year investigation into federal death penalty representation, in this piece examining the effect of case cost on outcomes. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The American political economic model has powerfully influenced legal and regulatory reforms around the world during the last thirty years. This has prompted a scholarly debate over the spread of what Kagan has called "adversarial legalism." This paper looks at legal developments in the United States and Germany to determine whether litigation as a mechanism of legal enforcement and/or economic governance has become more prominent in the areas of company and securities law, as argued by Kelemen and Sibbitt. I conclude that legal reforms reveal the increasing marketization and legalistic regulation of corporate and financial affairs, but that litigation is peripheral to this process. In the United States, far-reaching litigation reform legislation during the 1990s has curbed securities law suitsâ??and sweeping corporate governance reforms left these laws intact. In Germany, securities market and company law reforms since the early 1990s transformed the regulatory landscape and substantially increased legal protection of shareholders. However, modest liberalizations of litigation rules retain much of the established structural bias against private litigation. The era of marketization in finance and increasing shareholder protection in corporate governance is also the age of regulatory expansion and deepening. Juridification, legalism, and regulation thus trump adversarialism. This analysis is significant in informing and anticipating the design of regulatory reforms that will almost inevitably follow the current global financial crisis. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Since his confirmation to the U.S. Supreme Court, Justice Kennedy has played a pivotal role in some of the Court's most controversial cases, and with the retirement of Justice O'Connor some legal scholars have made the case that Justice Kennedy is the pivotal vote on the Roberts Court. This paper will examine Justice Kennedy's decision making in cases involving particularly contentious issues including abortion, gay rights, and euthanasia/right to die cases. These cases are of particular interest because they implicate conflicting rights regimesâ??federalism versus individual rightsâ??that may send conflicting signals and require Justice Kennedy to choose among competing legal doctrines and principles. Keeping in mind that Justice Kennedy was a member of the "pro-state bloc" of the Rehnquist Court one would expect his votes and opinions in these cases to reflect a strong commitment to federalist principles. At the same time, however, Justice Kennedy is identified as a moderate-conservative Justice and this may lead him to be more amenable to legal arguments predicated on individual rights claims than some of his more conservative brethren on the Court. An examination of how Justice Kennedy navigates conflicting rights regimes in these highly contentious cases will contribute to our understanding of how the rule of law and Supreme Court precedents influence his judicial decisions. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Racial inequality in jury selection has become a topic of rising interest. Two recent Supreme Court decisions, Miller-el v. Dretke and Snyder v. Louisiana, have reaffirmed the unconstitutionality of race-based exclusions during jury selection, underscoring a prominent issue of contemporary racial inequality in the American trial system. Unconscious, automatic racial bias represents perhaps the most invidious form of bias in this context, as its effect goes undetected, yet nonetheless is capable of contributing to race-based exclusions. The social dynamic of voir dire mirrors conditions under which theory suggests perception and decision making processes are highly susceptible to the influence of implicit racial bias.This paper presents the results of the first systematic empirical research to directly examine the role of implicit racial bias in the exercise of peremptory challenges. Findings from this experimental work provide evidence that implicit bias is associated with negative perceptions and evaluations of Black (compared with White) prospective jurors, and are related to greater tendencies to exclude Black individuals. In addition, an important mediating relationship was also discovered. More specifically, while the general form of implicit racial stereotyping (e.g., Black individuals as uneducated, poor) was related to greater tendency to exclude Black jurors, racial stereotyping specific to Black individuals within the context of a legal trial (e.g., Blacks as acquittal prone; racial minority jurors as lenient toward same-race defendants) was found to be the primary driving force behind this effect, and it served to mediate the aforementioned relationship. Implications of the new findings are discussed. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In an era of sea rise, climate change (an era which began many decades ago), and intensifying hurricanes, states have moved to regulate their coasts in order to maintain not only possibilities for economic development, but also public safety and state sovereignty (i.e., when the coast erodes, there is less of the state to govern). Unfortunately, some of these regulations have been promulgated for self-interested reasons at the local level, creating openings for claims of unjust regulation. Coastal takings cases, such as Nollan v. California Coastal Commission, Lucas v. South Carolina Coastal Council, and Palazzolo v. Rhode Island have been among the most important regulatory takings cases in U.S. law. However, in many ways these cases are most significant because they were early indicators of changing property rights practices along coasts where devastating hurricanes and coastal erosion prompted states to move quickly to regulate land development along them. This paper presents a study of the way in which the notion of "wetlands" entered into the coastal regulatory practices of Rhode Island, and became the basis for unsettling property expectations along the coast. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Congress's latest effort to protect children from on-line predators banned the pandering or soliciting of child pornography regardless of whether the images were actual or virtual. My paper discusses last term's Supreme Court decision in United States v. Williams that upheld the prohibition and ruled that an offer to engage in illegal activity is unprotected speech. I place Williams within the larger context of the classic impossibility defense that differentiates between factually and legally frustrated attempts, and show how the majority and dissenting opinions fall into these two camps. I propose that the revival of the impossibility debate sparked by Internet cases is misguided and that, in fact, the Internet provides the best reason for rejecting impossibility as a bar to prosecuting predators. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will link together spatial theory from the discipline of geography with the law of immigration and citizenship. In particular, I will examine some of the legal fictions of immigration law and the law of citizenship, which rely upon disjunctures between territoriality, sovereignty, and jurisdiction. I plan to look simultaneously at local regulation of immigration - the current subject of much controversy and litigation in the United States, the peculiar legal status of Guantanamo, and arguments about "postnational" citizenship. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper considers the limitation of federal court jurisdiction over immigration claims from the perspective of a similar jurisdiction-stripping trend observed in the context of other disadvantaged federal litigants. It begins from the specific example of 28 U.S.C. § 2680(c), which excepts from the Federal Tort Claims Act's broad waiver of sovereign immunity claims arising out of the collection of tax or customs duties and the detention of property by "any officer of customs or excise or any other law enforcement officer." This exception is often invoked by the United States against federal inmates seeking damages for property lost by Bureau of Prisons officers; in six circuits, those claims are barred by a narrow interpretation of the statute which maintains sovereign immunity. That split in authority may be seen as part of a trend of increasing willingness among the federal courts to limit their own jurisdiction over claims perceived as not meriting Article III consideration. This theme of "nuisance immunity" relieves the government of the obligation to defend against claims brought by unpopular plaintiffs and provides the courts with the ability to dispose of those claims with only glancing judicial inquiry. The narrow construction of § 2680(c), like the federal in forma pauperis statute and the PLRA and the immigration provisions considered in this panel, may be seen as an incarnation of the "litigation hostility" fostered in the Rehnquist Court, allowing courts broad authority to dismiss civil claims by "unpopular" litigants outside the adversarial process and upon minimal substantive review. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

International labor standards provide that workers have the right to form or join labor organizations "without distinction" -- that is, irrespective of their legal status, whether documented or not. In the United States, cases such as the Supreme Court's decision in Hoffman Plastic Compounds Inc. v. NLRB (2002) would seem to have seriously undermined this right. This paper will compare how the U.S. regime, including but not limited to Hoffman Plastics, is similar to and different from international standards. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the Daubert trilogy, the United States Supreme Court has adopted an approach to determining the admissibility of scientific evidence that relies on an a priori conception of good or valid science. Canadian courts have adopted a much looser set of criteria. In this paper, we will examine the limitations inherent in the Daubert approach in instead propose an approach to managing scientific evidence in the courtroom based upon an actor network theory-informed 'managed relationship' between science and the law. Finally, we will turn to the Canadian DNA jurisprudence to provide an example of how this sort of process can function. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the 1830s John Marshall handed down opinions in American Indian Cases that attempted (in vain) to safeguard the rights of native Americans against a hostile Georgia white population, legislature and governor. His opinions relied in considerable part on legal doctrines purporting to check state power as against federal power on the subject. In the 1840s Justice Story issued the Court opinion for Prigg v. Pennsylvania, an opinion that his son William later characterized as an attempt to sabotage the efficacy of the Fugitive Slave Act. The purportedly sabotaging section of this opinion, which would have helped prevent the recapture of fugitive slaves by reducing the number of judges available for the endeavor, relied on legal doctrines of states rights to exempt themselves from being "commandeered" by the federal government into such assistance. The constant between the two cases is that the Court is acting to help a racial minority against oppressive majority action. What changes between the two is the endorsement of states' rights. This paper will explore the possibility that the antebellum Court was manipulating legal doctrine for a desired policy outcome. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In Kimbrough v. United States, the latest in a string of recent landmark decisions that, in effect, have made the United States Sentencing Commission's Guidelines non-binding, the Supreme Court upheld a trial court judge's decision to address the 100-to-1 sentencing disparity between crack cocaine and powder by reducing Derrick Kimbrough's crack-related sentence by four and a half years. This paper argues that the rap music industry, whose defining story now revolves almost solely around a mythical merger of street crime and white collar crime, articulates in cultural form what the Sentencing Commission, legal activists, and now the Supreme Court suggest legalistically: that despite crack's decline as a profitable commodity, it fundamentally symbolizes the anger, pain, loss, and systemic unfairness at the heart of America's current sentencing crises. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

For a number of years now, judicial scholars have sought to document the systematic impact of litigant status in U.S. courts. These efforts have led to a rich understanding of status impact when cases reach the merits stage in the U.S. Courts of Appeals (Songer and Sheehan 1992; Songer, Sheehan, and Haire 1999), state supreme courts (Wheeler et al. 1987; Brace and Hall 2001), and the U.S. Supreme Court (Sheehan, Mishler, and Songer 1992). Less well known, however, is how litigant status impacts the often discretionary decision appellate courts make about "deciding to decide." Given the wealth of knowledge about agenda setting on, for example, the U.S. Supreme Court (Caldeira and Wright 1988; Caldeira, Wright, and Zorn 1999), this oversight is puzzling. If scholars are interested in understanding how inequality affects the responsiveness of government institutions (e.g. the APSA Report on Inequality), then a complete analytic picture—one that includes all stages of the process—is needed. We seek to advance this important literature by analyzing the impact of litigant status on the certiorari decisions made by the U.S. Supreme Court. Using the personal papers of Justice Harry A. Blackmun, we study a random sample of certiorari petitions before the Court. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]