Volume 2015, No. 6

 

Table of Contents

Articles

Bystander Interventions

Sarah L. Swan

Bystander intervention strategies are emerging as a popular proposed solution to complex social problems like bullying in schools and online, sexual misconduct on college campuses, and harassment in the workplace. As the name suggests, bystander intervention initiatives encourage individuals who witness such harms to adopt an active, interventionist approach in stopping them. For example, a teenager who sees another student being bullied on a website, a college student who observes a heavily intoxicated female student being led into a bedroom by a male companion, and a work colleague who overhears a sexist or racist joke are encouraged to either intervene to prevent a situation from escalating or report an incident after it has occurred. The belief that bystander interventions can combat these harms is so strong that, in some instances, the implementation of bystander intervention initiatives is becoming legally required.

Ironically, at the same time as law is starting to require the implementation of bystander intervention initiatives, law also functions as an impediment to successful bystander intervention. First, while bystander intervention programs try to create a norm of intervention, most legal norms support non-intervention, giving rise to a “competing norms” problem most commonly resolved with inaction. Second, a lack of legal accountability for the surrounding institutions and organizations indirectly discourages bystander intervention. Finally, a perceived risk of liability associated with intervention immobilizes many bystanders. Unless these legal impediments are minimized, bystander intervention is unlikely to be a successful solution to social problems.

Blood In, Buyout: A Property & Economic Approach to Street Gangs

Lua Kamál Yuille

This article offers a fresh analysis of and solution to problems modern American street gangs present. Common wisdom dictates that, since they commit crimes, gangs should be understood and combatted through criminal sanctions. Popular interventions, like gang injunctions, expand that punitive orientation into civil strategies. But, gang criminality is merely a manifestation of a broader property-based disease. Therefore, those strategies will be ineffective and inefficient, as evidenced by the continuing rise in gang membership across the United States.

The consensus in gang research is that gangs are not crime syndicates; they are capitalist social institutions creating and operating in alternative markets. Violence and criminality are secondary or tertiary facets of gangs, resulting from the inaccessibility of mainstream markets. Integrating these findings into a unique synthesis of disparate threads of property theory— from Charles A. Reich’s The New Property and Margaret Jane Radin’s Property and Personhood to Cheryl I. Harris’ Whiteness as Property—it is clear that gangs’ primary purpose is to pursue the forms of property central to human identity. That insight frees anti-gang strategies from the strictures imposed by criminal law, but it also complicates the equation by revealing social justice considerations not normally associated with gangs.

From that foundation, this article presents a novel idea: Gangs are recreating a traditional market-based property system, so the approach to the problems associated with them should be market-inspired. In the market, actors are paid to induce desired behavior. Therefore, local governments should compensate gang members for nonparticipation in legal (but undesirable) gang activity. The article tests this proposal using Guido Calabresi and A. Douglas Melamed’s framework for allocating and protecting entitlements advanced in Property Rules, Liability Rules, and Inalienability: One View of the Cathedral. That analysis shows that the so-called “paid injunction” is a more effective and efficient approach to curbing the non-criminal activities of gangs that simultaneously advances the social justice concerns revealed by the property law analysis.


Commentary

Wisconsin’s Public Trust Doctrine: A New Framework for Understanding the Judiciary’s Role in Protecting Water Resources

Paul Schinner

No matter how you slice it, development and conservation struggle to coexist. Some people want large buildings and others want public parks. This familiar pattern recently repeated itself in Milwaukee, Wisconsin. The city wanted a new, economy-boosting skyscraper where an advocacy group would have preferred a beautiful public park. But this was no ordinary spat between developers and environmentalists. Rather, the advocacy group Preserve Our Parks (POP) uncovered early nineteenth century maps and objected to the proposed skyscraper on the grounds that the project was sited on the former bed of Lake Michigan. “Nonsense!” cried the skyscraper proponents. “The law is clear!” asserted POP, citing the state constitution.

To the contrary, this peculiar local controversy raised critical and complicated issues regarding natural resource and separation of powers jurisprudence. Wisconsin’s constitution, like the constitutions of many states, contains a provision requiring the waters of the state (and the land thereunder) to be held in trust by the state for the public. These provisions date back to ancient Rome, and their interpretation by courts constitutes the amorphous “public trust doctrine.” Currently, the Wisconsin public trust doctrine is confusing—there is no clear framework to guide its application.

This Comment creates such a framework and applies it to the Milwaukee skyscraper controversy. By focusing on objective, physical criteria; the critical distinction between the legislature’s power and its obligations; and a public-interest balancing test, this framework brings both clarity and flexibility to the public trust doctrine. Finally, this Comment urges the Wisconsin Supreme Court to adopt some version of this framework in order to prevent the legislature from shirking its constitutional duties as trustee of the public trust.


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Author Index