Discourse publishes shorter articles that are timely, interdisciplinary, and novel. Discourse strives to serve as a platform for scholars, ideas, and discussions that have often been overlooked in traditional law review settings. Because we seek to publish pieces that are accessible to legal and non-legal audiences alike, Discourse articles are generally between 3,000 and 10,000 words. Like our print journal, Discourse articles are published on Westlaw, Lexis, and in other legal databases, as well as our own website. Beginning with Volume 68, Discourse began publishing special issues of Law Meets World.
Abstract Jeffrey Epstein’s death in the federal jail in downtown Manhattan was the result of a conspiracy. But the conspirators were not the Clintons, President Trump, or Prince Andrew. Instead, his death, like too many others, was the result of a longtime conspiracy of lawmakers and actors within the criminal legal system itself. Several features of our legal system seem almost designed to...
Abstract As litigation regarding the civil rights of transgender persons blossoms, a curious trend has emerged: In briefs, pleadings, and motions advocating anti-trans positions, attorneys have addressed trans parties with language at odds with their gender. Through a close review of the language in briefs for three recent Supreme Court cases, this Article exposes the extent to which intentional...
Abstract The right to abortion was established in Roe v. Wade in 1973. Abortions have nevertheless been systemically inaccessible to vulnerable individuals and communities for generations, and anti-abortion state legislatures and the United States federal judiciary have continued to further obstruct abortion access. This effort to undercut reproductive rights has taken on a new sense of...
A death row inmate who challenges either his conviction or sentence in postconviction proceedings can be said to succeed if he obtains either a new guilt-phase trial, a new sentencing-phase trial, or a commutation of his death sentence. This Article reports on the success rates of death row inmates in Texas for those who arrived on death row on or after January 1, 2000, up until December 31, 2019...
Regents Professor of Law, University of Arizona; Visiting Professor of Law and American Indian
Introduction The law masks as natural what is chosen; it obscures the consequences of social selection as inevitable. The result is that the distortions in social relations are immunized from truly effective intervention, because the existing inequities are obscured and rendered nearly invisible. The existing state of affairs is considered neutral and fair, however unequal and unjust it is in...
Kānāwai: Using Ancient Hawaiian Law to Prepare for the Future Introduction The Kingdom of Hawaiʻi and its people have been wrought with turmoil since their first contact with Western civilization. From systematic land taking to the overthrow of the Kingdom, Kanaka Maoli[1] have encountered colonization, militarism, and imperialism at almost every turn. However, with ea (life) and aloha (love)...
Sacchi v. Argentina: Fighting for Indigenous Children’s Climate Rights Introduction On September 23, 2019, a group of sixteen children from twelve countries, ages ranging eight to eighteen, filed an official petition against five countries[1] under the United Nations Convention on the Rights of the Child (UNCRC). [2] Sacchi v. Argentina[3] represents the first time in history where children have...
Introduction Canadian legal precedent dictates that First Nations with a prima facie claim to Aboriginal title are owed a duty of consultation and accommodation by the government. Moreover, the fulfillment of Aboriginal rights generally is motivated, in the view of the courts, by the desire for reconciliation between Indigenous groups and the colonial government. Co-management of lands and...
Punjab is the land of the five rivers: An agriculturally rich and fertile region in South Asia divided by the modern-day international border of India and Pakistan. It was among the last regions in South Asia to succumb to colonization by the British Empire in the mid-1800s. Sikhs are a religious minority community who follow the religious and spiritual tradition of Sikhi, which originated in...
California Legislature amended Prop. 57 with California Senate Bill 1391, which prohibited the transfer of fourteen- and fifteen-year-olds beyond narrow exceptions. In response, the California courts have faced a series of cases brought by district attorneys challenging the constitutionality of SB 1391. This Article describes the sources of disagreement throughout this litigation and makes the...
For the last forty years the U.S. Supreme Court has been engaged in a measured attack on the sovereignty of Indian tribes when it comes to tribal court jurisdiction over people who are not members of the tribe asserting that jurisdiction. This Article proposes to legislatively reconfirm the civil jurisdiction of tribal courts over such nonmembers.
Discussions of automation in the workplace typically omit policing. This is a mistake. The increasing combination of artificial intelligence and robotics will provide us with social benefits, but it will also create new problems as automation replaces human labor. Mass unemployment may be one consequence. Another is deskilling, the loss of the skills and knowledge needed to perform a job when...
Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy. Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.