Law

This article presents findings from a study on the implementation of California’s new Youth Offender Parole Hearing law, which aims to provide juvenile offenders with meaningful opportunities to obtain release from adult prison. It contributes to the debate surrounding how to apply the “meaningful opportunity to obtain release” standard that the Supreme Court deliberately left open to interpretation in Graham v. Florida and, to some extent, in Miller v. Alabama. The Supreme Court’s recent opinion in Montgomery v. Louisiana reinforces the idea that juveniles who demonstrate that they are capable of change are entitled to release. The data contained in this Article was obtained by reviewing the transcripts of the first 107 Youth Offender Parole Hearings; this sample represents all but two of the Youth Offender Parole Hearings that took place between January 2014 and June 2014. In the first six months of the law’s implementation, juvenile offenders were found suitable for parole at younger ages than the general population. Further, youth offenders appeared to have a more realistic chance of being released under the new law. This reform is, at the very least, an important step towards offering juvenile offenders more meaningful opportunities to earn their release from prison. At the same time, it does not go far enough. After discussing some limitations of the law, this Article concludes by recommending guidelines that would provide youth offenders more meaningful opportunities for release in parole hearings.

As the Loving v. Virginia case barring prohibitions against interracial marriages reaches its fiftieth anniversary, marriages between people of different national origins continue to be undermined by the law. The Constitution does not protect the marital rights of citizens who marry noncitizens in the same way that it protects all other marriages. Courts have consistently held that spousal deportation does not implicate the rights of American citizens, and the Constitution does not protect the substantive due process rights of noncitizens facing deportation — including the right to marriage. Given the spike in deportations over the past decade, hundreds of thousands of American citizens face a dilemma the Supreme Court has referred to as “intolerable” in other contexts: they must choose between the fundamental right to marriage and the right to live in the United States. This article draws upon the experiences of women whose husbands have been deported to challenge the foundational assumptions underlying many of the cases that have held that spousal deportation does not implicate the rights of citizen spouses, arguing that the Constitution should protect the marriages of binational couples in the same way it protects all other marriages, and that strict scrutiny should apply to assess the constitutional validity of deportations that involve the husbands and wives of U.S. citizens.

... 207 The experiences of Christy exemplify how the enforcement of a gang injunction can impede a young person's efforts to mature out of a gang. Christy was a twenty-one year old mother of two who had been a peripheral member of the local gang since she was fourteen. ...

The question of a constitutional property regime governing eminent domain gave rise to nuanced and principled debates in the Constituent Assembly (the body which framed the Indian Constitution between 1947 and 1950) and in subsequent Parliament meetings regarding Constitutional amendments. However, these extensive deliberations resulted in a clause which only addressed the most superficial aspects of property rights in India. Similarly, the statutory frameworks which govern government acquisition of land, in particular the Land Acquisition Act of 1894, are important to understand, but they provide only another part of the puzzle. This paper starts earlier in history – at the inception of eminent domain in India – in order provide the colonial context on which my argument rests. I argue that this concept of compulsory land acquisition by the government, as inherited from the British and encapsulated in the Constitution, the statutory law, and in practice, is inappropriate for the reality of how property rights are held and exercised in India and incapable of being reformed toward the socially inclusive purposes for which property rights were included in the Constitution. Because of this discord, efforts to re-formulate the law which hold current forms of eminent domain as their focal point continue to fall short of real transformation of the property rights regimes in India.

In a few short years, the American Dream has dried up like a raisin in the sun. Massive foreclosures of the mid-to-late 2000s have left the status of the American Dream of homeownership in serious question. In this paper, I argue that in order to formulate new federal housing and homeownership policy goals, the underlying vision of property rights that informs such policy needs to be examined and reoriented to one that recognizes the nature of property (specifically with regards to residences) as an interconnected and contextualized regime. In the decades following World War II, the federal government supported homeownership and egalitarian access to such ownership through legal regimes and rhetoric. The form this promotion took-the push for detached single-family houses-maps a model of property rights that values ownership, separation, autonomy, and a particular legitimate version of the "home." Despite this promotion, just before and during the Foreclosure Crisis of the mid-2000s, the federal government surprisingly abandoned this rhetoric and paradigm by moving towards a different model of property rights that treated the house as a commodity, evaluated like an investment and bound by the four corners of its mortgage contract. From this model, it could comfortably limit people's rights to their homes, especially for the 'irresponsible borrowers' amongst them. The use of both of these models has shifted the operation of property as a regime in the United States, and, as I argue, not for the better.

Comparative legal research in property and urban planning law has taken an increasing interest in the policy patterns and legal arguments that municipal bodies and courts employ in the implementation of often radical urban reconfiguration. Aided by geographers, sociologists, and political economists, comparative property law scholars have begun to unearth the justificatory frameworks that underlie and shape these changes in metropolitan urban landscapes and that reveal an interplay between tangible and immediate modes of political constituencies’ interest navigation on the one hand, and deep-seated cultural-historical motivations as well as commitments to transnational strategic and political loyalties, on the other. These modes of research have worked to show how urban ‘local’ decision-making is embedded in complex and entangled policy considerations, which are expressed through the use of economically minded categories such as progress, modernization, growth, and development.

The Article focuses on the case of urban modernization policies pursued and implemented in one of the world’s largest metropolitan centers — India’s capital, Delhi — which is also one of the world’s global cities currently undergoing a radical and breathtaking transformation. Embarking on a micro-analysis of the justifications offered in the pursuit of a ‘cleaner,’ more ‘modern,’ and ‘competitive’ metropolis, this Article examines a series of judgments regarding the rights of urban slum residents. Particularly, the Article applies two analytical and conceptual lenses in studying the regulatory policies and the courts’ engagement with them, namely the political economy of development and the ideational and ideological concepts of ‘modernity’ and ‘neoliberalism.’ The role of the judiciary in the allocation of property and urban space functions hereby as the site of engagement, the place where the regulatory fiat is approved or rejected, reinterpreted and reshaped, endorsed and concretized. Through this analysis, the Article seeks to provide a richer context for the way in which a number of key Indian courts, including the Indian Supreme Court, have become actively involved in regulatory municipal policies. The Article highlights and analyzes the devastating effects of the recent judicial pronouncements for those constituencies who have long been at the margins and whose legal protection threatens to be further besieged and mitigated in a large scale shift towards economic liberalization in the name of urban modernization and the city’s competitive enhancement.

This Article investigates connections between the extensive New Deal law and regulation that led to the proliferation of single-family detached houses and the continuing racial disparities in housing security and ownership in the United States. Too often, the pervasiveness of the single-family house as the ideal form of ownership and racial inequalities in accessing it have been treated as merely results of free market forces or social preferences. This Article complicates that narrative by bringing to the forefront the extensive federal and local governance that profoundly shaped the US. housing market and social preferences as well as the physical landscape of residences in America. Drawing on the work of urban historians, architects, and geographers as its foundation, this analysis studies the physical landscape of the single-family house (its form, intended occupants, and location) against the myriad of case law, zoning ordinances, and federal regulation that built it across America. This historical account of government intervention and ideology enables us to understand the current crises in housing, from municipal bankruptcies to the disparate racial impacts of the Foreclosure Crisis, in the much larger context of the creation of suburbia and single-family houses at the expense of cities and racial minorities in them. Against this historical backdrop, these current crises appear not as distinct phenomena, but rather as closely intertwined events. Their disparate racial impacts also appear less accidental or unexpected. This Article argues that these phenomena-depleted cities, the Foreclosure Crisis, and racial disparities in housing-are not the "natural" results of a free market. They are the inevitable results of a century's worth of deliberate policy choices, all of them aimed at inscribing a particular societal structure-the white nuclear family-into the physical landscape of American housing.

This chapter appears in an edited collection that revisits the various political, economic, legal, and social legacies of the Bandung Conference – the 1955 meeting of twenty-nine Asian and African countries in Bandung, Indonesia.* The chapter analyzes three modes of development expertise and agency at work since Bandung against the political and economic ideals espoused at the conference and argues for the relevance of the current rise of finance and its forms of expertise in this genealogy. It traces three sets of actors who—drawing on different sets of values, practices, and forms of knowledge— successively advanced and complicated Bandung's political, economic, and social legacy from 1955 to the present. The interplay between them is best understood as a series of transformations of development expertise reflecting the ascendancy of three types of agents of development: statesmen, technocrats, and financiers. These transformations— and the foregrounding of particular agents in particular moments—reflect the emergence of new forms of knowledge, ideas, and practices regarding development, as embodied in new sites of expertise and new directions for resource allocation. The transition between the first two of these agents, well documented elsewhere, resembles to some degree a kind of " routinization of charisma, " to borrow Weber's formulation: a movement from charismatic statesmen to bureaucratic technocrats. The second transformation—from technocracy to the dominance of finance and from technocrats to financiers—is still unfolding and being understood today. A central claim of this chapter is that this move, however, was not external to the project of the third world, but was in large part a consequence of its trajectory.

This essay analyzes New York’s 2018 proposal to Amazon to locate their second headquarters (HQ2) in New York City. It provides the context of Amazon’s city competition for the headquarters and reviews New York’s proposal. Several observations are offered: In addition to the massive resources and infrastructure offered by the city to Amazon, the proposal itself provides a significant amount of valuable due diligence on the city to Amazon, it bypasses or side-steps several governance processes, it does not address the disruptions that Amazon has had and will likely have on city life, and it leaves open the question of future smart city, technological, and data-related collaborations.

General jurisprudence rests on five interrelated myths. The first three misconceptions are epistemological, while the final two are ontological. First, the domains of human knowledge — specifically, the natural sciences, the social sciences, and the humanities — are essentially independent and incompatible. Second, law is an exceptional phenomenon decipherable only through certain knowledge domains (especially the humanities and “soft” social sciences) and not others (especially the natural sciences). Third, because the methodologies for understanding law vary by knowledge domain (compare the internalism of analytic philosophy with the externalism of science), they cannot be integrated or synthesized but instead must be distinguished and prioritized. Fourth, given this (false) balkanization of knowledge, theories about law inevitably yield dualistic accounts, like essentialism-antiessentialism, monism-pluralism, positivism-naturalism, and conceptualism-empiricism. Fifth, and finally, these legal theories need not consider or reflect human nature, but rather must seek truths that either transcend humanity (through conceptual analysis) or fixate on its singularities (through biological or sociological research).

The current project explodes these myths. Moving beyond jurisprudence, it proposes a new type of descriptive legal theory called jurisilience. Jurisilience is grounded in the epistemology of consilience, the interdisciplinary movement to unite the sciences and humanities. Proliferating outside of law, consilience’s cross-fertilization trend runs in both directions, with new specialties like sociobiology and evolutionary psychology growing up from the roots of the knowledge tree, and hybrids like experimental philosophy and the philosophies of mind and science extending down from its loftiest branches. Because these fusions are reciprocally transformative, knowledge from across the academic spectrum can be productively integrated to enlighten any human subject, including law.

Jurisilience is the first attempt at such a comprehensive legal ontology. Combining research from physics, evolutionary biology, neuroscience, complex systems theory, moral and developmental psychology, sociology, and anthropology, jurisilience argues that the essential nature of law is human nature itself. That nature is holistic and synergistic, not dyadic and antagonistic. Human beings are complex biological systems propagating complex socio-cultural systems to complete and continue the circle of life. Although these systems possess contradictory tendencies — like competition and cooperation — they are harmonized by complementarity and coordination dynamics. Working in tandem, these universal forces turn antimonies into spectral boundaries that facilitate pragmatic, medial solutions to recurring survival problems. This dynamical process is not contextual or contingent, but operates at every level of human existence. While genes coordinate egoism and altruism, and brains coordinate impulse and reason, societies and cultures coordinate individuals and groups. Together, these reconciliatory systems beget a remarkably potent “law instinct.” As jurisilience now shows, mankind’s coordinative nature is not just implemented by law; it also is embedded in law, shaping the history, structure, substance, procedure, and yes, even the interpretation of this quintessential human institution.

The current piece is a modified version of a substantially longer paper. While this revision eliminates discussion of a proposed interdisciplinary standard of reliability — a standard jurisilience eventually must meet — it also adds empirical depth in several areas. Notwithstanding its still considerable length, this introductory entry is offered as a general outline of a working hypothesis and not as definitive proof of its truth.