Recent UW Law Faculty Scholarship: The Role of Clinical Education to Advance Social Justice, Absence or Misuse of Statistics as Contributor to Wrongful Convictions, Judges as Common-law Thinkers, Title VII is Not an Anti-Discrimination Law, Comparative Election Administration, and Overseas NGOs, Foundations and Covid in China

Here is the latest faculty scholarship appearing in the University of Wisconsin Law School Legal Studies Research Papers series found on SSRN.

  • “Lift as ‘The Fourth Moment’ in Wisconsin Clinical Legal Education for Social Justice” 2021 Wisconsin Law Review 417 (2021) by SARAH DAVIS, MARSHA MANSFIELDMITCH, KELSEY MULLINS, SACHIN GUPTE (UW Law)

    Legal Interventions for Transforming Dane County (LIFT) represents the “fourth moment” for clinical legal education for social justice at UW Law. LIFT is a collaboration between EJI, CPP, and community organizations to develop a technology application that streamlines legal services, facilitates self-help, and addresses lawyer workload. In concert, the initiative engages in evaluation efforts and system change to transform the civil legal justice system, so people who have been marginalized are able to address legal problems that often are insurmountable. It aspires to prevent civil legal injustice and keeps the education of future leaders core to its mission.  This Essay demonstrates how LIFT represents the start of this fourth moment by democratizing law through collaboration and entrepreneurial approaches. Building on Trubek’s scholarship that highlights and applies historical learnings about experimentation, national networks, and the unique role of clinical education to advance social justice, this Essay relates how LIFT builds upon CPR’s history.

  • “The Absence or Misuse of Statistics in Forensic Science as a Contributor to Wrongful Convictions: From Pattern Matching to Medical Opinions About Child Abuse” 125 Dickinson L. Rev. 615 (2021) by KEITH A. FINDLEY (UW Law)

    The new scrutiny that has been applied to the forensic sciences since the emergence of DNA profiling as the gold standard three decades ago has identified numerous concerns about the absence of a solid scientific footing for most disciplines. This article examines one of the lesser-considered problems that afflicts virtually all of the pattern-matching (or “individualization”) disciplines (largely apart from DNA), and even undermines the validity of other forensic disciplines like forensic pathology and medical determinations about child abuse, particularly Shaken Baby Syndrome/Abusive Head Trauma (SBS/AHT). That problem is the absence or misuse of statistics. This article begins by applying basic statistical principles to pattern-matching disciplines to demonstrate how those disciplines have historically hidden or failed to reckon with the probabilistic nature of their judgments, and how, when they have acknowledged the probabilistic nature of their claims, they have often botched the statistical analyses. The article then does a deeper dive into showing how those same deficiencies apply to medical opinions about child abuse, particularly SBS/AHT.

  • “Text is Not Enough” 93 University of Colorado Law Review (2021, Forthcoming) by ANUJ C. DESAI (UW Law)

    In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act protects gay and lesbian individuals from employment discrimination. The three opinions in the case also provided a feast for Court watchers who study statutory interpretation. Commentators across the ideological spectrum have described the opinions as dueling examples of textualism. The conventional wisdom is thus that Bostock shows the triumph of textualism. The conventional wisdom is wrong. Instead, Bostock shows what those who have studied statutory interpretation have known for decades: judges are multi-modalists, drawing from a panoply of forms of legal argumentation. In particular, Bostock shows that judges are inevitably common-law thinkers, even when interpreting statutes.

  • “Is Title VII an “Anti-Discrimination” Law?” 93 University of Colorado Law Review Forum (Forthcoming 2021) by ANUJ C. DESAI (UW Law)

    Title VII of the Civil Rights Act of 1964 is commonly referred to as an “anti-discrimination” statute. At its core, we are told, it prohibits something we call “discrimination.” But does it? Startlingly, the answer is, no, not really. Instead, Title VII prohibits certain acts done for certain reasons. True, the prohibited reasons are precisely what everyone has long understood them to be: “because of … race, color, religion, sex, [or] national origin.” But, the prohibited acts do not require “discrimination” and in those cases where the term “discrimination” is relevant, “discrimination” simply means “make a distinction.” It does not connote any wrongfulness on the employer’s part and therefore does not mean “make an unjust distinction.” In short, Title VII is not an anti-discrimination statute, at least not as we ordinarily conceive the concept of “discrimination.”

  • “Comparative Election Administration: A Legal Perspective on Electoral Institutions” Forthcoming, Comparative Election Law, Edward Elgar Publishing, 2021 by DANIEL P. TOKAJI (UW Law)

    This chapter examines the institutions responsible for administering elections around the world and considers what election lawyers might do to strengthen democracy through their improvement. A now-substantial body of literature examines election management bodies in both emerging and established democracies. The consensus is that independent election administration is essential to electoral integrity. This chapter departs from the conventional wisdom in two respects. First, it argues that the formal independence of election management bodies is less important than their functional impartiality. Interactions between election institutions and political parties often promote evenhanded administration better than hermetic insulation from politics. Second, this chapter challenges the narrow focus on election management bodies and attendant disregard for other institutions involved in elections, especially judicial and quasi-judicial actors. It advances an interactional perspective on election administration, focusing on the relationship among the various entities that collectively comprise the electoral system, including administrators, courts, and political parties. The chapter concludes by considering how election lawyers might engage more deeply in the improvement of electoral institutions.

  • “Overseas NGOs and Foundations and Covid in China” EURICS, no. 14, July-Aug. 2021, at 3 by MARK SIDEL (UW Law)

    The COVID crisis that enveloped Wuhan, Hubei Province and some other parts of China in late 2019 and early 2020 might, in another era, have encouraged China to temporarily relax constraints on international aid and engagement. In the current Chinese political environment, such relaxation of constraints wasn’t going to happen. China accepted some overseas aid at the beginning of the COVID crisis, but almost entirely on the restrictive political and legal terms laid down in the Overseas NGO Law and framework enacted in 2016.

 

To access all the papers in the University of Wisconsin Law School Legal Studies Research Paper Series, please use the following URL: http://www.ssrn.com/link/u-wisconsin-legal-studies.html