Monthly Archives: May 2023
May 5, 2023 Kaiponanea MatsumuraFamily Law
I have sometimes wondered whether it matters that the experiences of Asian Americans are nowhere to be found in the family law canon. This omission should be surprising. People from Asia have been skirting the shores of the Americas since the 17th Century. Within two decades of California becoming a state, people from Asia, mostly men from China, made up 25% of the entire work force and played a crucial role in developing the state’s infrastructure. These men, and others in western states, soon faced anti-miscegenation and immigration laws designed to prevent them from marrying and producing American-born children—laws concerning the bread and butter of family law. People from Asia or of Asian descent, some 22.4 million of them, are now the fastest growing minority group in the United States, largely because of family preferences in immigration law. Surely, I have told myself in passing, these and other developments should fit into the story we teach about family regulation. Surely, too, there are legal interventions that could strengthen Asian families or validate their shared experiences. But soon after I begin considering the possibilities, I am waylaid with doubts: What, if anything, are those shared experiences and values, and are they worth preserving, here? And would anyone, even Asian Americans themselves, really care about these stories?
The Loneliest Americans, by New York Times staff writer Jay Caspian Kang, is an epistemology of these ambivalences. Asia, Kang explains, means nothing to the immigrant from Korea, who finds little in common with people from countries like the Philippines or China. (P. 59.) Additionally, the highly skilled workers and their descendants who arrived after the Hart-Celler Act of 1965 (which replaced national origin-based immigration with a preference system favoring family reunification and skilled workers) have at best a tenuous, mostly imagined connection to the exclusion, lynchings, discrimination, and interment experienced by earlier Asian laborers and their descendants. (P. 57.) Above all, Kang provocatively argues, the upwardly mobile contingent of post-Hart-Celler Asian Americans are not invested in an Asian American identity because they hold onto the belief that it is possible on some level to assimilate into whiteness: thus, they hollow out Asian Americanness from the inside. Continue reading "Nothing, Nowhere, Not Right Now"
May 4, 2023 Trudo LemmensHealth Law
Determining what is reliable evidence seems particularly politicized and contentious in the context of physician-assisted-suicide [PAS] and euthanasia. In jurisdictions where its legalization is debated, opponents often illustrate critical interpretations of official, largely self-reported data with media-reported cases, which legalization advocates tend to trivialize as “anecdotes.”
Prior to Canada’s rapidly expanded euthanasia practice, data and media reports in Belgium and the Netherlands, which have euthanasia laws going back to 2002, used to be at the center of this debate. Official review committees in those countries rarely if ever identify serious problems with a practice that now involves around 3% (Belgium) to 5% (Netherlands) of overall deaths. Some legalization advocates see this as a confirmation of the practice’s safety. The “not-guilty” jury-verdict in the only Belgian criminal trial ever launched against doctors for their involvement in a reported euthanasia case could be seen as a vindication of the claim that even in the contentious context of mental illness, the system works. In Improving Control over Euthanasia of Persons with Psychiatric Illness: Lessons from the first Belgian Criminal Case Concerning Euthanasia, Belgian scholars Marc De Hert, Sien Loos, Sigrid Sterckx, Eric Thys and Kristoff Van Assche convincingly show us why this is wrong. Continue reading "What Counts as Evidence? A Uniquely Valuable Analysis of a Belgian Criminal Case Involving Euthanasia"
May 3, 2023 Doron DorfmanEquality
Andrew Gilden,
The Queer Limits of Revenge Porn, 64
B.C. L. Rev. __ (forthcoming, 2023), available at
SSRN (Sept. 21, 2022 draft).
The law has a strange relationship with gay sex. Courts and legislators often manage simultaneously to ignore the realities of gay sexual expression, on the one hand, yet treat it differently from heterosexual sex on the other. Even when striking down the Texas sodomy law and expanding constitutional protection to same-sex, nonmarital sexual relations in Lawrence v. Texas, the Supreme Court constructed a narrative of a deep emotional bond between the couple at the heart of the case when in reality, the couple was not in a longstanding romantic relationship. As a few scholars pointed out, the Court seems to ignore the possibility that it was simply a hook-up, which nevertheless deserves as much protection as consensual sex in a committed relationship does. When presenting the court with the marriage equality cases, United States v. Windsor and Obergefell v. Hodges, lawyers went to great lengths to desexualize same sex relationships, making them easier for the court to swallow. And as I have recently showed empirically, in both the law and the public’s eye, gay sex with preventive measures against HIV is still deemed more dangerous than unprotected heterosexual sex is.
In his fabulously queer and highly significant article The Queer Limits of Revenge Porn, Andrew Gilden provides yet another example of such gay sex exceptionalism in the legal realm. Gilden exposes how even the feminist project to legally protect sexual privacy misses the mark when it comes to sexual norms in the LGBTQ community. Revenge porn, referring to the nonconsensual distribution of sexual images, has become a household term in the age of social media. Twenty-nine states now have criminal legislation prohibiting revenge porn. These laws, however, explicitly exclude images of voluntary nudity or sexual expression in “public” and “commercial” settings. (P. 21.) Continue reading "Revenge Porn Laws and Gay Sex Exceptionalism"
May 2, 2023 Jonathan SimonCriminal Law
In the age of mass incarceration, the prison has cast a shadow not only on our nation and many of its most vulnerable communities, but quite literally on our legal imagination. In her forthcoming Cal Law Review article, Rights Violations as Punishment, Professor Kate Weisburd of George Washington University Law takes a big step toward dispelling some of that shadow by confronting us with the shockingly thin jurisprudential basis on which courts have accepted a virtual constitutional geo-fence around not only prisons but the communities where people on electronic devices are monitored.
So what is punishment today? Yes, you will say, imprisonment, jail, some very few executions, and a great many community supervision sanctions. But this is an incomplete view. As Weisburd’s title indicates, those forms surround a vast stripping of some of the most valued rights defining citizenship. Not just the right to liberty and political participation which have some constitutional textual basis (in the 5th and 14th Amendments), but 1st Amendment rights to expression, association, and religious freedom, 4th and 5th Amendment rights to domestic privacy, freedom from coerced testimony, and access to counsel, and perhaps most strikingly 14th Amendment substantive due process rights to personal autonomy (or what’s left of it) and parenting. Nor is this only for those actually locked up, a major part of this article’s value is in documenting just how thoroughly these non-incarcerative sanctions are laced with rights cancellations. Continue reading "Punishment as Rights Violation"
May 1, 2023 Adam N. SteinmanCourts Law
For every right, there is a remedy. This venerable principle is found both in ancient languages (“ubi jus, ibi remedium”) and on pages of our own judicial canon so foundational that they call to us from a bygone typographical era (“it is a general and indifputable rule, that where there is a legal right, there is alfo a legal remedy by fuit or action at law, whenever that right is invaded.”). When federal constitutional rights are violated, however, the path to a meaningful remedy is often impassible. Criminal defendants whose state court convictions were tainted by constitutional violations must navigate myriad obstacles to federal habeas relief, particularly those that Congress imposed in the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). For those who suffer constitutional violations in other contexts and seek relief in federal court under § 1983, qualified immunity, the Eleventh Amendment, limits on municipal liability, and various procedural restrictions can block relief regardless of their claims’ substantive merit.
Two excellent articles offer ways to fix the current state of affairs. Brandon Garrett and Kaitlin Phillips propose changes to AEDPA and other doctrines governing habeas corpus petitions in federal court. Alex Reinert, Joanna Schwartz, and Jim Pfander examine how state and local laws can improve the enforcement of federal civil rights. In both pieces, the authors deploy their deep scholarly expertise to provide concrete, practical, thoughtful, well-crafted proposals that deserve careful attention from academics, advocates, lawmakers, and anyone else interested in these important issues. Continue reading "Fix It"
