There Is No Such Thing As A “Legal Name”

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Austin A. Baker is a Postdoctoral Assistant Professor at the Rutgers Center for Cognitive Science (RuCCS) and holds a Ph.D. in Philosophy from Rutgers University, New Brunswick.

J. Remy Green teaches at Boston University School of Law and Baruch College at the City University of New York. They are a founding partner at Cohen & Green P.L.L.C. They hold a J.D. from the University of Chicago Law School.

The phrase “legal name” appears everywhere. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear no.

This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal” name is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality. To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities.

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The Time Trap: Addressing the Stereotypes that Undermine Tribal Sovereignty

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Adam Crepelle, Assistant Professor, Antonin Scalia Law School, George Mason University; Director, Tribal Law & Economics Program, at the Law & Economics Center; Associate Professor and Managing Fellow, Native American Law and Policy Institute, Southern University Law Center; Campbell Fellow, The Hoover Institution at Stanford University; Associate Justice, Pascua Yaqui Tribe.

History is deeply embedded in federal Indian law. According to jurisprudence, Indians were nonagricultural “savages” prior to 1492. Indians’ supposed lack of sophistication played a vital role in foundational cases determining Indian rights and the extent of tribal sovereignty. The process of stare decisis has resulted in repetition of the principles formulated on the belief in Indian simplicity; consequently, historic ideas of Indians continue to impact present-day Indian rights—often for the worse. This is the time trap.

The time trap is the popular belief that Indian cultures were simple, non-commercial, hunter-gatherers prior to European arrival. Encapsulated within this belief is the idea that indigenous cultures are static and erode as they merge with mainstream society. However, this perception is incorrect: the indigenous peoples of North America had complex societies prior to 1492, including agriculture and expansive trade networks. Indian tribes organically incorporated previously unknown items from Europe, such as the horse and gun, into their cultures. This Article asserts that reexamining how society and the law view Indian history is the key to unlocking the time trap.

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Hard Drive Heritage: Digital Cultural Property in the Law of Armed Conflict

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Richard Ong, JD Candidate 2022, Columbia Law School; B.A. 2019, The University of North Carolina at Chapel Hill.

This Note considers the question of how to protect cultural property in an era of rising cyberwarfare. The Note argues that the law of armed conflict (LOAC)—also referred to as international humanitarian law (IHL)— should apply to protect the three categories of cultural property which cyberwarfare could affect: real-word cultural property, digitized cultural property (cultural property which has been converted into digital form), and digital cultural property (cultural property which has always existed in digital form). Lastly, this Note argues for a novel interpretation of the 1954 Hague Convention for the Protection for Cultural Property that would encompass digital and digitized cultural property.

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More H.R.L.R.

There Is No Such Thing As A “Legal Name”

Austin A. Baker and J. Remy Green

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Dead Right: A Cautionary Capital Punishment Tale

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Joseph Margulies, Professor of the Practice of Law and Government, Cornell University;

John Blume, Samuel F. Leibowitz Professor of Trial Techniques and Director, Cornell Death Penalty Project, Cornell Law School;

Sheri Johnson, James and Mark Flanagan Professor of Law, Cornell Law School.

At least 228 people executed in the modern era—or more than one in every seven—were right too soon. That is, they had claims in their case that today would render their execution unconstitutional, but were killed because of a legal regime that arrived too late. Roughly 30% of our total include the children and persons with intellectual disability who were executed prior to Roper v. Simmons and Atkins v. Virginia, respectively. But the great majority of the people identified in our study raised claims based on doctrine that had already been clearly established by the Supreme Court. If the lower courts had applied Supreme Court caselaw correctly, these people would have gotten relief. Yet the lower courts resisted the doctrine and for years the Supreme Court did nothing to correct them. This resistance was particularly egregious in Texas and Florida. In Texas, at least 108 people were executed after the Supreme Court had already established the relevant basis for relief, and in Florida, the total is at least 36. At least when it comes to the death penalty, the lower courts seem especially unwilling to follow Supreme Court doctrine that would save a person from execution. The result is a system that routinely kills people even when they are right.

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Scorched Border Litigation

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Briana Beltran, Lecturer, Farmworker Legal Assistance Clinic, Cornell Law School;

Beth Lyon, Clinical Professor of Law, Cornell Law School;

Nan Schivone, Legal Director, Justice in Motion.

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from rural communities in other countries. During litigation, the employers and the employers’ lawyers regularly use the fact that the workers are no longer present in the United States to gain a procedural or substantive advantage in litigation. This strategy, which we call “scorched border” tactics, is a standard litigation practice and is enabled by the very design of temporary foreign work programs, themselves rooted in the United States’ long history of low-wage foreign labor exploitation. Scorched border litigation drives up costs for a deeply under-resourced public interest bar and can chill lawyers’ case selection, shutting down access to justice for some of the most vulnerable of the working poor. However, to date, there exists no study documenting or analyzing this undeniable phenomenon.

This Article documents and critiques scorched border litigation tactics, drawing on a broad range of sources including a survey of practitioners who represent temporary foreign worker (“TFW”) plaintiffs, a collection of case histories, and a review of court rulings. We find that federal court litigation has already adapted to handle the complexities presented by these TFW cases, such as modifying the manner and location of a TFW plaintiff’s deposition. These types of adaptations are not new to experienced lawyers representing TFW plaintiffs and are regularly permitted by courts. However, these adaptations are often so far out of the litigation norm that defense lawyers seek to gain an advantage by creating costly and unnecessary disputes in a case.

The forced adaptation of the civil justice system to the COVID-19 pandemic, however, may open new opportunities for countering scorched border tactics. With courts now experienced in remote proceedings, what was the subject of ridicule or pushback by defense lawyers in TFW cases is suddenly the norm. A review of new pandemic-era federal court rules offers concrete prescriptions for federal district courts on how to proceed when an individual litigant does not reside in the United States. In so doing, we aim to ensure that the return of TFW plaintiffs to their communities of origin after their employment in the United States is over—as is required by the very programs that allow them to work here—can no longer be used by employers to block their access to justice.

Download the PDF

More H.R.L.R.

There Is No Such Thing As A “Legal Name”

Austin A. Baker and J. Remy Green

The Time Trap: Addressing the Stereotypes that Undermine Tribal Sovereignty

Adam Crepelle

Hard Drive Heritage: Digital Cultural Property in the Law of Armed Conflict

Richard Ong
See all