The Common Law

4 posts

Searching for Judges Who Hear: Analyzing the Effects of Colorado’s Abolition of Qualified Immunity on Civil Rights Litigation

The Common Law Volume 57, Issue 1

By Colin Cowperthwaite

“Section 1983 was born out of the failures of state courts.  Over a hundred years later, [Colorado’s Enhance Law Enforcement Integrity Act (ELEIA)] was born out of the failures of federal courts to protect individuals from civil rights violations committed by local law enforcement.  By removing qualified immunity as a defense, ELEIA challenged federal courts’ continued relevance in addressing police violence in Colorado.  But as this Comment shows, Colorado’s federal district court remains an active scene for litigating against officers who violate constitutional rights.  While there are many possible explanations for this result, ELEIA should not be taken as a failure.  On the contrary, eighty-two claims that might otherwise have gone unheard in federal courts now can be heard in state courts.  For victims of police violence, ELEIA provides a meaningful source of “ears to hear” their appeals for accountability, remedy, and justice.”

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State Constitutions and Systemic Gaps in Music Education Access

The Common Law Volume 57, Issue 1

By Corey Whitt

“The proliferation of music education in schools throughout the United States is an apparent success.  However, its application is not evenly spread across the country.  Students living in poverty are most often those who are left unable to enjoy its advantages.  Further, the disparities increase along racial lines.  The reality is that low-income students of color are more likely to forgo a music education than their affluent, white peers.

As demonstrated in cases leading into the twenty-first century, state courts can play a role in bridging the socio-economic divide of music education access.  Where state courts chose to define the minimum quality of education prescribed by their state constitutions, music experiences were acknowledged.  A modern, successful advocacy strategy, however, will likely deviate from litigation in favor of ballot measure proposals to secure a music education for all students given the inherent risk of establishing harmful legal precedent.  Through the patchwork of state ballot measures, the American electorate can promote meaningful music education experiences for all students—not only the wealthy, white children.”

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Access to Justice in “Lawyerless” Housing Courts: A Discussion of Potential Systemic and Judicial Reforms

The Common Law Volume 57, Issue 1

By Gabe Siegel

“Housing courts—and lawyerless courts more broadly—are broken.  Only one side has access to lawyers.  And given the institutional expertise, strategic knowledge, and unfair use of procedure that housing court lawyers bring, only one side has genuine access to justice.  By changing the ways in which judges interact with pro se and represented litigants, reform can provide access to justice to all parties in housing court.  Judicial reforms would decrease delay, elicit more facts, inject due process and procedural fairness into proceedings, and minimize bias.  The most important of these reforms is active judging, including procedural reform, evidentiary reform, and easier access to hearings.  As the effects of the active reforms taken by Alaska District Court Judge Washington indicate, the reforms are simple to implement and quickly make a tangible impact.  More broadly, reforms would benefit pro se litigants and the judicial system as a whole: it is ‘more effective to train one judge on how to assist a self-represented litigant than to teach hundreds of [litigants] how to be lawyers.’  It is an ‘essential democratic goal’ that the court system work fairly for all.  Reforming judging in lawyerless housing courts helps it do just that.”

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The International Legal ‘Regime’ Against Child Marriage: A Haphazard Patchwork

The Common Law Volume 57, Issue 1

By Linny Kit Tong Ng

“The existing international legal architecture designed to address child marriage is markedly deficient, representing a haphazard patchwork of provisions with varying degrees of relevance strewn throughout numerous international and regional conventions.  This framework fails to articulate a cohesive strategy for the eradication of child marriage; the language used is frequently ambiguous, resulting in standards that offer little specific or useful guidance for implementation, and lack enforcement mechanisms.  These deficiencies have precluded the establishment of a robust and enforceable global norm against child marriage.  Regional African instruments have demonstrated that linguistic precision in themselves does not guarantee compliance, as enforcement often falters due to exceptions carved out by the law for customary and religious unions, a lack of political will, or resources.

Combating child marriage requires a comprehensive and nuanced approach that extends beyond international agreements to include local collaboration.  To avoid the pitfalls of paternalism and cultural imperialism, sufficient time and effort must be invested in identifying the appropriate standards to be enshrined in a hypothetical, dedicated anti-child marriage convention.  Additionally, states must reconsider conventional approaches of imposing sanctions and dispensing incentives.  This Comment advocates for a deeper exploration of reversible rewards as a novel strategy to enhance compliance with anti-child marriage measures.

Given its intersection with private law and human rights, child marriage presents an exceptionally intricate challenge.  Efforts to eradicate the practice are further complicated by its widespread occurrence, the influences of globalization, sociocultural mores, religious beliefs, and economic conditions.  Addressing the issue effectively calls for not just legal interventions, but also a commitment to education and cultural engagement that empowers children, families, and entire communities.  Such transformational efforts are gradual and are part of broader societal movements that address gender equality and environmental sustainability.  Consequently, while the elimination of child marriage is a global imperative, it is a goal that must be pursued with careful deliberation and respect for the complex tapestry of societal dynamics.”

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