Reproductive Objectification

The American system of rights is individualized - premised on the concept of singular, physically separate, and autonomous people. The rise of the fetal personhood movement complicates this basic understanding. If rights attach to singular, autonomous people, and fetuses are legally people, then the body of a pregnant person becomes conceptually unintelligible as it contains potentially two, interrelated people. Such a circumstance is fundamentally a contradiction within a framework that insists that rights attach to people who are, by definition, singular, separate, and autonomous. This Article argues that, as a result of this apparent contradiction, fetal personhood laws make the humanity of the pregnant person precarious. If the law has no framework for two rights holders in one body, then the pregnant person must be something else entirely. She becomes less of a subject and more of an object - a reproductive vessel, merely the container for another individual rights-holder. Reproductive justice scholars and advocates have long argued that laws purporting to endow the fetus with personhood exacerbate the maternal-fetal conflict and undermine pregnant people\u27s rights. This Article argues, relying on both decades of feminist legal theory and original empirical evidence, that granting full personhood to a fetus has an even more insidious outcome-undermining the legal personhood of women entirely and recategorizing them in the eyes of the law as non-person objects. Looking across cultures and eras, it is unfortunately not difficult to ascertain what might happen when human beings are treated as objects. Such objectification results in almost certain abuse, sometimes of the most horrifying variety

Reimagining First Amendment Remedies

Since the Warren Court\u27s landmark First Amendment decisions of the I 9 6os, the Supreme Court has aggressively deployed the Free Speech Clause to provide broad substantive protections for expressive freedoms. These rules, in theory, should effectively safeguard the marketplace of political ideas and facilitate both speaker and audience autonomy. No matter haw broadly fashioned, however, a constitutional rule is only as strong as the remedies available to enforce it–and far too often, First Amendment remedies are either woefully weak or effectively nonexistent. When a would-be First Amendment plaintiff cannot obtain a meaningful remedy for a proven constitutional violation, the substantive rule will not effectively safeguard expressive activities against government censorship. In several important areas of First Amendment law, available remedies are inadequate. Government employees who want to blow the whistle on unlawful, or even patently unconstitutional, government conduct must risk discharge and face obstacles in securing future employment. So too, pretextual arrests of journalists engaged in newsgathering activities significantly chill such activity going forward–yet no effective remedy currently exists for this kind of targeted government effort to suppress reporting on matters of public concern. Finally, local zoning ordinances often silence disfavored would-be speakers based on the content of their message through highly selective signage bans-there&y preventing the intended audience from receiving messages they would like to see. The Supreme Court and all courts must fashion and enforce effective First Amendment remedies. This Article argues that the Supreme Court\u27s entire theory of First Amendment remedies requires both reimagining and reinvigoration. Existing law only imperfectly redresses harms to a would-be speaker and often Jails to remedy harms to the audience at all. The interest of We the People in hearing, seeing, or reading a message needs to be an important part of the remedial analysis-but today just isn\u27t. When the government censors speech, it harms not only the would-be speaker, but also the would-be audience. This Article recalibrates the relationship between harm and remedy via a theoretical framework: (I) enduring equity; ( 2) bounded discretion; (3) proportional relief; ( 4) correlative function; and (5) tangible remedies. First Amendment remedies law must redress effectively both personal and collective expressive injuries. This Article proposes pathways and equitable remedies that will safeguard First Amendment rights comprehensively and effectively–thereby facilitating the process of democratic deliberation

Free Speech as Civic Structure

Free Speech as Civic Structure: A Comparative Analysis of How Courts and Culture Shape the Freedom of Speech examines and explains the limited relevance of constitutional text to the scope and vibrancy of free speech rights within a particular national legal system. Across jurisdictions, text or its absence will serve merely as a starting point for judicial efforts to protect speech activity. These judicial efforts, involving an ongoing and dynamic process of common law constitutionalism, will set the precise metes and bounds of expressive freedom within a particular polity.In the United States, the contemporary Supreme Court largely ignores the actual text of the First Amendment in First Amendment cases. Moreover, this pattern repeats elsewhere - including Australia, Israel, South Africa, and the United Kingdom. Judges in systems with relevant constitutional text (the United States and South Africa), as well as relevant statutory text (the United Kingdom), will often disregard the precise articulation of the right in favor of deploying a dynamic common law approach to protect speech from self-interested politicians who seek to distort the process of democratic deliberation. Judges also take the laboring oar in countries that lack a written free speech guarantee (Australia) or even a formal constitution as such (Israel).The strength or weakness of free speech protections depends critically on the willingness and ability of judges to police government efforts to censor speech - in conjunction with the salience of speech as a socio-legal value within the body politic. Thus, a legal system featuring independent courts, ideally vested with a power of judicial review, but that lacks a written free speech guarantee will likely feature broader protection of the freedom of expression than a legal system with a written guarantee that lacks independent courts. Across jurisdictions, text or its absence invariably serves as, at best, as a starting point for judicial efforts to protect speech. Judges, engaged in a common law enterprise, matter far more than text and common law constitutionalism constitutes the global rule rather than the exception.https://scholarship.law.ua.edu/fac_books/1066/thumbnail.jp

Generative Interpretation

We introduce generative interpretation, a new approach to estimating contractual meaning using large language models. As AI triumphalism is the order of the day, we proceed by way of grounded case studies, each illustrating the capabilities of these novel tools in distinct ways. Taking well-known contracts opinions, and sourcing the actual agreements that they adjudicated, we show that AI models can help factfinders ascertain ordinary meaning in context, quantify ambiguity, and fill gaps in parties\u27 agreements. We also illustrate how models can calculate the probative value of individual pieces of extrinsic evidence. After offering best practices for the use of these models given their limitations, we consider their implications for judicial practice and contract theory. Using large language models permits courts to estimate what the parties intended cheaply and accurately, and as such generative interpretation unsettles the current interpretative stalemate. Their use responds to efficiency-minded textualists and justice-oriented contextualists, who argue about whether parties will prefer cost and certainty or accuracy and fairness. Parties-and courts-would prefer a middle path, in which adjudicators strive to predict what the contract really meant, admitting just enough context to approximate reality while avoiding unguided and biased assimilation of evidence. As generative interpretation offers this possibility, we argue it can become the new workhorse of contractual interpretation

Religious Liberty in the Thirteenth Colony

Across four decades, John Witte, Jr. has advanced the study of law and religion by retrieving religious sources of law, renewing timeless teachings of religion for today, and reengaging with the difficult issues confronting society. Interdisciplinary, international, and interfaith in scope, Witte’s work has generated an enormous body of scholarship. This collection of essays by leading scholars examines his impact and maps new directions for future exploration.https://scholarship.law.ua.edu/fac_bookchapter/1071/thumbnail.jp

The Price of Criminal Law

Should tax dollars pay for more criminal law, better public schools, or a new community center? Different counties will answer the question differently, but facing these tradeoffs is profoundly important to democratic governance. Nonetheless, because the criminal legal system diffuses power and hides and offioads costs, officials and voters do not have to honestly consider that question. These structural features place a hidden thumb on the scale that gives counties more criminal enforcement than they pay for. That is a problem. Too much enforcement is particularly pernicious in criminal law: Incarceration inflicts tremendous suffering, especially in poor communities of color. Suburban voters who do not live in or look like residents of overpoliced communities have no incentive to account for others\u27 suffering. But if their tax dollars had to pay for the entire criminal law apparatus in their community, their financial stake might urge restraint. Accountability poses a central challenge in criminal law. Because power and funding are diffuse no one knows who to blame. This Article argues that budget constraints provide an important accountability measure for criminal law and that counties should be empowered to make-and be burdened with making-the hard choices. It then articulates the goals to which a democratically accountable budget in criminal law should strive. Such a budget would require government officials to be transparent in setting priorities and respect basic rights such as the right to counsel, the right against being caged in dangerous conditions, and the right to a speedy trial. To protect these rights and respect budgetary balance, budget allocations for indigent defense, carceral facilities, and courts should limit the number of cases prosecutors can bring. Ultimately, this Article aims toward a system in which criminal law is used only to the extent that a local community views its benefits as greater than the suffering it inflicts. It is animated by the instinct that some communities would spend differently if they saw the full financial costs of criminal law

Whalen v Roe (1977)

This new addition to Hart\u27s acclaimed Landmark Cases series is a diverse and engaging edited collection bringing together eminent commentators from the United Kingdom, the United States, Australia, Canada, and New Zealand, to analyse cases of enduring significance to privacy law.The book tackles the conceptual nature of privacy in its various guises, from data protection, to misuse of private information, and intrusion into seclusion. It explores the practical issues arising from questions about the threshold of actionability, the function of remedies, and the nature of damages.The cases selected are predominantly English but include cases from the United States (because of the formative influence of United States\u27 privacy jurisprudence on the development of privacy law), Australia, Canada, the Court of Justice of the European Union, and the European Court of Human Rights. Each chapter considers the reception and application (and, in some instances, rejection) outside of the jurisdiction where the case was decided.https://scholarship.law.ua.edu/fac_bookchapter/1005/thumbnail.jp

Trial by Fire: Lessons Learned from Teaching Race and Evidence in a Hostile Environment

This companion volume to Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom features new essays, case studies, and bibliographies for law faculty seeking to bring critical perspectives on equity, inclusion, and social justice into their teaching in upper-level courses. Chapters focus on subjects traditionally tested on the bar exam, including evidence, criminal procedure, and family law, as well as professional responsibility. Additionally, this volume includes guidance for teaching a range of other advanced law school topics and can be used in experiential courses, including advanced legal writing, legal research, counseling, and negotiations. It also features guidance and reflections from faculty who have created new courses specifically focused on race and social justice in the legal system. With submissions from over 40 authors, the collection is intended to spur valuable conversations within the classroom and across the legal academy.https://scholarship.law.ua.edu/fac_bookchapter/1070/thumbnail.jp

Truth Bounties: A Market Solution to Fake News

False information poses a threat to individuals, groups, and society. Many people struggle to judge the veracity of the information around them, whether that information travels through newspapers, talk radio, TV, or social media. Concerned with the spread of misinformation and harmful falsehoods, much of the policy, popular, and scholarly conversation today revolves around proposals to expand the regulation of individuals, platforms, and the media. While more regulation may seem inevitable, it faces constitutional and political hurdles. Furthermore, regulation can have undesirable side effects and be ripe for abuse by powerful actors, public and private. This Article presents an alternative for fighting misinformation that avoids many pitfalls of regulation: truth bounties. We develop a contractual mechanism that would enable individuals, media, and others to pledge money to support the credibility of their communications. Any person could claim the bounty by presenting evidence of the falsity of the communication before a dedicated body of private arbitrators. Under the system we envision, anyone consuming information on the internet would know immediately ifa given communication had a bounty attached, whether the communication had been challenged, and whether the challenge succeeded orfailed. As John Stuart Mill recognized, we can trust our grasp of the truth only by putting it to the fire of challenge. Truth bounties open the challenge to all