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 A famous novel by Gabriel García Márquez describes a love story among three actors that took place in a city in Colombia during the time of cholera. The interpersonal dynamics that unfold in this work by a Nobel Prize-winning writer offer insight into events taking place today. We show how the urge to romanticize emotions during a time of great social stress, as well as the desire to...
Abstract In March 2020, Jump, Uber’s e-scooter subsidiary, sued the Los Angeles Department of Transportation over a rule that requires the company to share real-time location data about its e-scooters with the city government. Jump argues that the rule operates in practice as a warrantless administrative search. It also argues that all the data it collects from its users are part of its...
Abstract In the wake of the COVID-19 pandemic, all levels of government are considering how to protect public health by keeping people in their homes, even if they can no longer afford their monthly mortgage or rent payments. The protections that have emerged thus far have been far more protective of homeowners than renters. This essay exposes how the disparity in legal protections for these two...
Abstract Within weeks of the coronavirus pandemic appearing in the United States, the American economy came to a grinding halt. The unprecedented modern health crisis and the collapsing economy forced Congress to make a critical choice about how to help families survive financially. Congress had two basic options. It could enact policies that provided direct and meaningful financial support to...
Abstract When President Trump announced that he was diverting funds from other items in the federal budget to satisfy a campaign promise to build a wall on the U.S.–Mexico border, a range of litigants lined up to challenge this action in the courts, including nonprofit organizations; state governments; the border county of El Paso, Texas; and the U.S. House of Representatives. At the heart of...
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...