Now showing items 1-20 of 18413

    • ‘New Parents’ and the Best Interests Principle

      Agarwal, Akshat (Yale Journal of Law and Feminism, 2024)
      Parenthood law in the U.S. has traditionally been based on gestation, marital status, and genetics. The best interests of the child principle, which is pervasive in the law of parental rights and responsibilities, has conventionally not played any role in parentage law. In contrast, foreign law, especially, international human rights law, stresses on the interests of the child as a universal standard in all decisions concerning children. This conventional view of American law is no longer true. With the rise of ‘new parents’ in non-traditional families, the American law of parenthood has been undergoing an expansion to include intentional and functional principles to treat non-traditional families equally. This new law of parenthood has been accompanied by the creeping application of the best interests principle to a new range of situations that are not merely disputes over custody and visitation but raise the first order question of parenthood. This application of the best interests principle is surprising given that it has extensively been critiqued for being discretionary and indeterminate in custody law. This Article argues that the creeping application of the best interests principle in parentage law is a development that should be avoided. First, the Article suggests that the best interests principle rarely does independent work in parentage law. Second, and more importantly, as a conceptual matter, it is incompatible with parentage determinations. To understand the work that the best interests principle is beginning to do, the Article analyzes emerging case law on de facto parenthood in the United States. These developments are brought in conversation with the more pervasive use of best interests reasoning in the jurisprudence of the European Court of Human Rights. Based on a comparative case law analysis, the Article shows that the best interests principle is used inconsistently, does no independent work, and obscures what is truly at stake in parenthood determinations. While existing literature has extensively critiqued the best interests principle for being discretionary, this Article makes four novel normative arguments against the use of best interests in parentage law, focusing on the permanency and relationality of parenthood and the temporality and the dignitary harms of best interests. Ultimately, the Article endorses equality-based approaches to parenthood, which center principles of intent and function, compared to the more discretionary best interests standard.
    • The SCALES project: Making federal court records free

      Sanga, Sarath (Northwestern University Law Review, 2024)
      Federal court records have been available online for nearly a quarter century, yet they remain frustratingly inaccessible to the public. This is due to two primary barriers: (1) the federal government’s prohibitively high fees to access the records at scale and (2) the unwieldy state of the records themselves, which are mostly text documents scattered across numerous systems. Official datasets produced by the judiciary, as well as third-party data collection efforts, are incomplete, inaccurate, and similarly inaccessible to the public. The result is a de facto data blackout that leaves an entire branch of the federal government shielded from empirical scrutiny. In this Essay, we introduce the SCALES project: a new data-gathering and data-organizing initiative to right this wrong. SCALES is an online platform that we built to assemble federal court records, systematically organize them and extract key information, and—most importantly—make them freely available to the public. The database currently covers all federal cases initiated in 2016 and 2017, and we intend to expand this coverage to all years. This Essay explains the shortcomings of existing systems (such as the federal government’s PACER platform), how we built SCALES to overcome these inadequacies, and how anyone can use SCALES to empirically analyze the operations of the federal courts. We offer a series of exploratory findings to showcase the depth and breadth of the SCALES platform. Our goal is for SCALES to serve as a public resource where practitioners, policymakers, and scholars can conduct empirical legal research and improve the operations of the federal courts. For more information, visit www.scales-okn.org.
    • Lawyerless litigants, filing fees, transaction costs, and the federal courts: Learning from scales

      Resnik, Judith (Northwestern University Law Review, 2024)
      Two Latin phrases describing litigants—pro se (for oneself) and in forma pauperis (IFP, as a poor person)—prompt this inquiry into the relationship between self-representation and requests for filing fee waivers. We sketch the governing legal principles for people seeking relief in the federal courts, the sources of income of the federal judiciary, the differing regimes to which Congress has subjected incarcerated and nonincarcerated people filing civil lawsuits, and analyses enabled by SCALES, a newly available database that coded 2016 and 2017 federal court docket sheets. This Essay’s account of what can be learned and of the data gaps demonstrates the challenges of capturing activities in federal lawsuits and the burdens, unfairness, and inefficiencies of current federal court waiver practices.
    • Multiparenthood

      NeJaime, Douglas (New York University Law Review, 2024)
      Family law conventionally treats parenthood as binary: A child has two, and only two, parents. These two parents possess all parental rights and responsibilities, which cannot be shared with others. Their status as parents remains fixed throughout the child’s life. Today, legislatures are explicitly challenging this view. Ten jurisdictions now have multiparent statutes, i.e., laws that authorize courts to recognize more than two legal parents. Commentators tend to view this development as a radical change in the law intended to accommodate radical new family forms produced by assisted reproduction, LGBTQ family formation, and polyamory. But the accuracy of these assumptions—about the ways in which these statutes represent a break from the past and the types of families they capture—has remained unexamined. This Article is the first to do so through an empirical study. Analyzing all publicly available judicial decisions issued pursuant to multiparent statutes, we show that the families they accommodate are not novel and rare family arrangements involving planned and well-resourced LGBTQ parents, but instead more familiar and common ones, emerging out of re-partnering and caregiving by extended family members and often resulting from challenges related to poverty. We also show that extending parental rights to more than two people is a longstanding practice in family law. Drawing on a second dataset consisting of all publicly available judicial decisions applying a functional parent doctrine over four decades, we find that courts long have accommodated multiparent families. For decades, courts have authorized the sharing of parental rights and responsibilities across more than two individuals, often recognizing people who come into children’s lives long after their birth. Our empirical study of multiparent recognition challenges conventional assumptions about the life and law of parenthood itself. Families commonly construct parent-child relationships in ways that are nonbinary—sharing parental rights with more than one other person and altering a child’s parental unit over time. For their part, courts too have resisted a view of parenthood as binary. They have recognized that many children have more than two parents; that parental rights and responsibilities can be unbundled and shared; and that a child’s parents may change over time. Our empirical account also suggests that many of the concerns raised about multiparent recognition are inapposite or overstated. Imagining a planned multiparent amily with three involved parents, commentators worry that laws allowing multiparent recognition will produce bitter custody litigation, complicated tri-custody orders, and ongoing conflict with three parents sharing legal rights and responsibilities. Yet, across both datasets, the children rarely have three parents assuming parental responsibilities. Legal recognition of more than two parents typically promotes security and stability for children, not by protecting relationships with multiple involved parents, but instead—and counterintuitively—by protecting children’s primary parental relationship. Accordingly, our study leads us to be less concerned with too much multiparent recognition and instead to be more concerned with too little multiparent recognition.
    • The Multicultural State: Progress or Tragedy?

      Kahn, Paul W. (Legal History / Rechtsgeschichte, 2024)
      This essay is a short response to Daniel Bonilla Maldonado's contribution, »Beyond the State: Can State Law Survive in the Twenty-First Century?« to the recently published Cambridge History of Latin American Law in Global Perspective. While Bonilla sees progress in the movement from the centralized nation-state to the multicultural state, my essay argues for an appreciation of the values that motivated the creation of the unified state as a single constitutional order in the post-colonial period. This effort may have failed, but with that failure went a distinct and valuable idea of freedom.
    • Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794.

      Parrillo, Nicholas R. (University of Pennsylvania Law Review, 2024)
      Originalist proponents of a tougher nondelegation doctrine confront the many broad delegations that Congress enacted in the 1790s by claiming that each fell into some exceptional category to which the original nondelegation doctrine was inapplicable or weakly applicable, one being foreign affairs. There is lively debate on whether the founding generation actually recognized an exception to nondelegation principles for foreign affairs. This Article, commissioned for a symposium on “The Statutory Foreign Affairs Presidency,” intervenes in the debate by examining the Embargo Authorization Act of 1794, which empowered the President to lay an embargo on all ships in U.S. ports (and/or other classes of ships) if “the public safety shall so require,” for the upcoming five-month congressional recess. This was a delegation of remarkable power over the U.S. economy, which at the time depended heavily on maritime transport. An examination of the Act undermines the idea that there existed a foreign-affairs exception to cover it. Originalist proponents of a tougher nondelegation doctrine claim the doctrine was meant to protect private individual rights of liberty and property, yet Americans in the late 1700s lived in an economy that was more dependent on foreign commerce than it has ever been since, in which a five-month international embargo could be disastrous for private business nationwide. In this context, an “exception” for foreign affairs would be strange, turning economic reality on its head. Furthermore, the Act itself flouted any objective or even workable distinction between the foreign and the domestic. The Act’s unqualified use of the term “embargo” authorized the President to prohibit the departure of all ships, not only those sailing to foreign ports but also to other U.S. ports in the coastwise trade, which was then the main channel of U.S. domestic commerce. And even if the President were to impose an embargo aimed mainly at international maritime trade, preventing evasion of such a restriction required regulation of the coastwise trade—regulation that contemporaries apparently understood the Act to authorize.
    • On Academic Lawyers in the U.S. Government: Walter's Wisdom

      Koh, Harold Hongju (North Carolina Law Review, 2024)
      Walter Dellinger was one of the most effective lawyers ever to work in the United States government. He was also a natural mentor, which made him a source of joy and wisdom for generations. In remembering Walter, we should recall his wisdom regarding the difference between academic and government lawyers, the government lawyer's duty to explain, and the human qualities that, over a storied career, earn lawyers genuine affection and respect.
    • Major Questions About International Agreements.

      Hathaway, Oona; EICHENSEHR, KRISTEN E (University of Pennsylvania Law Review, 2024)
      The Supreme Court’s recent expansion of the major questions doctrine has rocked administrative law, throwing into doubt executive agencies’ statutory authority for numerous regulations. Some Justices have suggested that they want to go further and reinvigorate the nondelegation doctrine as a constitutional limit on Congress’s authority to delegate power to the executive branch. This Article is the first to consider how these developments might put at risk the United States’ international commitments. The Article first identifies the role of congressional delegations to the executive branch with respect to the formation and implementation of ex ante congressional–executive agreements, executive agreements pursuant to treaties, sole executive agreements, and nonbinding agreements. It then explains how the Supreme Court’s recent decisions might spark challenges to the agreements themselves or to the executive’s authority to implement them. Turning from the diagnostic to the prescriptive, the Article takes the Supreme Court’s recent cases as a given (problematic though they are) and argues that delegations involving international agreements differ from purely domestically focused delegations in material ways that counsel against applying the major questions doctrine or nondelegation doctrines to them. In particular, the existence of foreign state counterparties with whom the executive must negotiate means that Congress cannot simply direct the executive branch on international agreements with the same specificity that it can in domestically focused legislation. Moreover, declaring an existing international agreement or its implementing legislation invalid based on a domestic statutory interpretation doctrine risks causing the United States to violate international law, as well as harming its reputation as a reliable agreement partner. Treating international agreement-related delegations identically to domestically focused ones would also run counter to long-standing historical gloss from the Supreme Court itself that treats foreign-relations-related issues in exceptional ways. After arguing against using the major questions and nondelegation doctrines to police delegations related to international agreements, the Article proposes steps that the courts, Congress, and the executive branch can each take to ensure that existing and future international agreements are well-grounded in constitutional and statutory law.
    • International Law goes to War in Ukraine

      Hathaway, Oona (Emory International Law Review, 2024)
      The article examines the impact of Russia's war of aggression in Ukraine on global legal order and international law. It discusses the historical transition of the Old World Order to the New World Order. It outlines the world's response to the war through condemnation, outcasting, military aid and financial assistance and prosecution of crimes against humanity and war crimes. Challenges include the use of sanctions as an international law enforcement tool and split of global economy.
    • The Promise and Peril of "Law and..."

      Calabresi, Guido (Columbia Law Review, 2024)
      The Columbia Law Review launched its Karl Llewellyn Lecture series on March 19, 2024, celebrating pioneers in the law who have innovated and challenged legal theory. The inaugural Lecture was delivered by Judge Guido Calabresi who spoke on the promise and peril of "Law and . . ." disciplines, such as Law and Economics, Law and Philosophy, and Law and History. A transcript of Judge Calabresi's Lecture is published in this Issue.
    • Legal Reimaginations – Notes from the North on engaging with Indigenous Legal Orders

      Johnson, Rebecca (Yale Journal of Law & the Humanities, 2024)
      James Boyd White’s The Legal Imagination sits within reaching distance on my bookshelf. It is the original 1973 yellow hardcover version. The spine is a bit ripped, the binding loose in places, there are scribbles in the margins, and post-it notes are liberally scattered throughout the book. Some pages (oh, the horror!) even bear witness to an inappropriately close encounter with a coffee cup. It has the look of a book that has spent time in the hands of a student. And that is exactly what it is.
    • Reencountering texts: James Boyd White, legal reading, and bringing back the human

      Kenny, David (Yale Journal of Law & the Humanities, 2024)
      James Boyd White’s work is ultimately about language, in its many forms and multifarious instantiations. Given the breadth of his writing – from Augustine,1 to George Herbert,2 to the power of speech3 and the limits of language4 – his work and its impact extends far beyond the law. As lawyers and legal scholars, however, we should pay homage to his particular contribution to legal education, which is probably the most meaningful to our field, and in many cases to us personally.5 In this paper, I therefore wish to highlight one of White’s most important contributions to legal thought—that learning the language of the law has distinct costs for us—and consider some of its implications. I argue that perhaps the greatest and most significant loss we experience in learning the language of the law is the ability to encounter text simply as a reader. Instead, lawyers learn a reading style that is utilitarian, extractive, narrow, and entirely purpose driven. It is useful in legal argument and practice to read this way, but it is limiting—so limiting, indeed, that it risks us losing touch entirely with the open, curiosity-based, humanistic reading of texts that we did before our lives in the law. I argue that White’s scholarship lets us see and diagnose this problem, and—in its creative, broad, and humanistic engagement with a variety of texts—helps us reengage with text as a reader rather than only as a lawyer. In other words, White brings the human back, and shows us how to live as lawyers who are still deeply connected to the human world we practice in, and that is shaped by our practice.
    • The Legal Imagination and The Protestant (Dis) Establishment

      Stolzenberg, Nomi Maya (Yale Journal of Law & the Humanities, 2024)
      Let me begin with the contention that The Legal Imagination is a quintessentially liberal imagination—or, to borrow Trilling’s term, The Liberal Imagination. As such it is intimately related to what once was widely referred to as the Liberal Establishment, otherwise known as the Eastern or Northeast Establishment4—or, more significantly, the Protestant Establishment.5 What I propose to do here is to take seriously the Protestant dimension of the so-called Establishment and its intellectual culture that I think is reflected, with great nuance, in Jim’s remarkable book.
    • All the Law and the Prophets: The Legal Imagination as Prophetic Imagination

      Kaveny, Cathleen (Yale Journal of Law & the Humanities, 2024)
      Legal speech and prophetic speech are commonly configured as diametrically opposed to each other. A lawyer stands graceful and impeccably groomed, calmly proffering measured arguments. A prophet stands unkempt and askew, spewing wild denunciations. Prophets hotly condemn the law and the legal system, while lawyers coldly dismiss prophetic accusations as unhinged and impractical. This view of the respective roles of law and prophetic discourse is entrenched in Anglo-American social criticism. The great nineteenth-century British critic Matthew Arnold distinguished between the rhetorical styles of Hellenism and Hebraism, the language of “sweetness and light” and the language of “fire and strength,” respectively.1 The former is the objective and precise language of rational analysis, the language of the courtroom; the latter is the ardent articulation of protest and resistance, the language of the soapbox.
    • The (Still) Unexplored Possibilities of a Poetics of Law

      Mezey, Naomi Jewel (Yale Journal of Law & the Humanities, 2024)
      In this contribution to the symposium celebrating the Fiftieth Anniversary of James Boyd White’s The Legal Imagination, I have accepted White’s invitation in the last chapter of his magisterial book to think about poems and judicial opinions as compatible acts of imagination and meaning making. White asks brilliant questions, and his book is full of them, each a nugget of insight and also a prod that asks the reader to think harder, think deeper, revisit her first thoughts, to perhaps change her mind, and above all, with guidance, to educate herself. In this chapter of the book, White is chiefly interested in “how the legal imagination expresses itself in the judicial opinion,” and he frames that interest around a set of provocative questions about the form of the judicial opinion, what it demands, how it tells its story, how it manages its structural tensions, its constraints and possibilities, and the complex expectations that are brought to it.
    • Sparking The Legal Imagination in Theory and Practice: a Humanistic Approach to Law

      Gaakeer, Jeanne (Yale Journal of Law & the Humanities, 2024)
      James Boyd White’s The Legal Imagination has been with me since I first read it when I was working on my dissertation in the early 1990s. Perhaps this opening sentence does not augur well for an impartial reflection on the impact of The Legal Imagination on the study and practice of law that the editors of this special issue envisage. To justify it, I add that while I then thought that as an academic I understood the book theoretically, it wasn’t until I became a judge that I understood its lessons for legal, and more specifically judicial practice. That is why, by way of introduction, I indulge in a small archeological and archival exercise, privileged as I have been to have had many conversations with the man himself when writing my dissertation. For one trained in a continental European civil law jurisdiction with an emphasis in legal education on codified law, The Legal Imagination seemed odd to say the least. As one Dutch reviewer remarked, “This is the most unusual book in our field that I have ever had in my hands . . . The title does not explain anything, the subtitle not much more, and the rather detailed ‘Preface’ and ‘Introduction to the Student’ do not provide a clear presentation.”3 To me, The Legal Imagination seemed to me a rich but daunting Pandora’s Box of suggestions for making a life for oneself in and with law.
    • Death and Discretion: Some Thoughts on Living

      Sullivan, Barry (Yale Journal of Law & the Humanities, 2024)
      Fifty years ago, James Boyd White inspired a quiet revolution in the world of legal studies. He encouraged lawyers to think more deeply about questions of law and justice by drawing upon the humanities, which provided sources and methods well beyond those that the legal academy then recognized as legitimate ways of thinking and talking about law.1 Among other things, Professor White insisted that there was a morality to authentic legal argument and decision making that required a close and engaged reading of texts, an understanding of community, and an openness to being persuaded by others.2 It was a courageous move, particularly in the early 1970s, when many academic lawyers still thought that their job was simply to teach students to “think like a lawyer,” in the narrow and instrumental sense in which they understood it. Even those who took a slightly broader view – who recognized that the social sciences might add value to legal studies – found little to be said in favor of the humanities. At best, they thought that the unpacking of fuzzy concepts like “justice” or “fairness” might be appropriate (if ultimately pointless) work for a philosophy or political science department, but not for a law school. At worst, they thought that legal decision making was simply an exercise of power, that judges were effectively unconstrained by law, and that it made no sense to study closely the reasons that judges give for their decisions because those reasons are not the drivers of decisions, but merely post hoc justifications for outcomes reached for other reasons and on other grounds. Or they implicitly (and sometimes explicitly) invoked utilitarian concepts such as efficiency as if those concepts could provide an adequate substitute for “justice.”
    • Reading for Law in Barry Unsworth’s Sacred Hunger

      Rajah, Jothie (Yale Journal of Law & the Humanities, 2024)
      The contestation between a humanist, ethical law and a dehumanizing, profit-exalting law animates the plot and is dramatically embodied in the principal characters of Barry Unsworth’s Sacred Hunger.1 In the process, the novel illuminates the three intertwined concerns central to James Boyd White’s The Legal Imagination: how language constitutes cultures, communities, and selves; how politics and ethics are encoded in different ways of talking about other people (as objects or “means to an end” rather than “centers of autonomy and value”); and how forms of inherited speech and expression both constrain and enliven the imagination.2 The fact that Sacred Hunger is a historical novel about Britain’s role in the slave trade—a literature of realities—adds layers of complexity to its legal imaginations.
    • Law and Linguistic Moves: Refugee Law and The Displaced Person’s Commission, 1948-1950

      Batlan, Felice (Yale Journal of Law & the Humanities, 2024)
      White’s Legal Imagination is a magnificent work within the law and humanities canon. It has long been hailed for its interdisciplinarity and the penetrating questions it asks law students, lawyers, and scholars about the process of writing, reading, lawyering, and the legal profession. Even with its stunning interdisciplinarity, it has been less overtly influential in the field of legal history. Yet, the Legal Imagination has much to say to the legal historian in terms of the process of writing legal history and the questions that legal historians might bring to their work, especially for those writing about the legal profession. White emphasizes how lawyers, like all of us, use language and tell stories that are always incomplete and capable of multiple meanings. Such resounding incompleteness is especially true for legal historians who are continually analyzing archival documents which convey vastly incomplete, even false, stories. Such documents are often only fragments which can be pieced together by the historian in multiple ways, forming different stories. Using such documents, legal historians then attempt to create our own always incomplete and lacking narratives that often only gesture at the “truth.” Legal historians are always trying to capture what is the unexpressed story in our primary documents. Often, it is the silences of our documents through which our stories emerge. Such stories are often illusive – a shadow or a ghost like one of those photographs of the paranormal – visible depending upon the viewer’s perspective, open to interpretation, deeply ambiguous. In fact, for the legal historian who studies the history of the legal profession – what lawyers do, how they think, how they understand themselves, the myths that they tell, and who might even be considered part of the legal profession – constructing such narratives can feel Herculean. The legal historian is searching for the type of interiority and intentionality, with which the Legal Imagination asks its readers to engage, and which lawyers seem to fight at every turn.
    • The People of California vs. Juan de Dios Ramírez Villa

      Murray, Yxta Maya (Yale Journal of Law & the Humanities, 2024)
      James Boyd White’s 1972 book The Legal Imagination announced that law and literature are disciplines that share imaginative and intellectual commitments. He also presented them as good, if quarrelsome, partners in legal education and the development of a humane legal system. Inspired by White’s vision and audacity, I set forth an extended literary analysis of a 1997 California death penalty case. This exercise contemplates the relationship between the legal opinion and the essay, considering them not only cousins but also antagonists whose differences consist in their relative abilities to wander. The rules that limit the legal opinion do not fetter the essayist, and here I take that opportunity to more fully imagine the scenes and arrogations that led to the murder of a seventeen-year-old boy in the mid-1990s and to contemplate that killing’s presence in a larger political and ecological landscape. The most pressing and literally questing inquiries this essay divulges concern the roles that the oil and pesticide industries played in a young man’s death, another man’s life sentence, and the criminal justice system generally.