The Poverty Defense

Michele Estrin Gilman *


Is stealing a loaf of bread to feed a starving family of eight a crime? Or, is poverty a defense? In Victor Hugo’s classic, Les Misérables, the protagonist, Jean Valjean, commits this crime and is sentenced to five years of hard labor. Hugo clearly intends the reader to sympathize with Valjean. The punishment not only seems grossly disproportionate to the crime, but Valjean also seemingly had no other choice. While Valjean’s crime may inspire sympathy among readers (and musical theater aficionados alike), it is widely assumed and accepted in our American criminal justice system that poverty is not a defense to crime. In 1971, Judge David Bazelon of the United States Court of Appeals for the District of Columbia famously challenged this assumption, arguing, in dissent to a decision upholding a murder conviction, that juries should be allowed to consider a defendant’s “rotten social background”—that is, how growing up under circumstances of severe environmental deprivation can subsequently influence a criminal defendant’s mental state and actions.

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*Professor of Law; Director, Civil Advocacy Clinic; Co-Director, Center on Applied Feminism, University of Baltimore School of Law; B.A., Duke University; J.D., University of Michigan Law School. I would like to thank Matthew Fraidin, Leigh Goodmark, Dan Hatcher, David Jaros, Margaret Johnson, Katie Loncarich, Libba Patterson, Lisa Pruitt, and Robert Rubinson for their thoughtful comments on this article, as well as participants at the Feminist Legal Theory Collaborative at George Washington University Law School and the Class Crits IV conference at American University Washington College of Law.

Roadblocks to Remedies: Recently Developed Barriers to Relief for Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent

Gwynne L. Skinner *


The founders of the United States, especially those who wrote the Constitution and the subsequent First Judiciary Act, wanted to ensure that aliens who were victims of torts in violation of the law of nations (now commonly referred to as customary international law) had the ability to seek redress in federal court for the injuries they suffered. Providing remedies for violations of the law of nations to aliens was important in order to demonstrate that the young country took the law of nations seriously and to prevent foreign conflicts, some of which might lead to war. At the time of the nation’s founding, just as it does now, international law required that nations provide remedies to foreign citizens who were wrongfully injured while under the protection of the host nation, an obligation the founders took seriously.

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*Assistant Professor, Willamette University College of Law. M.St. (LL.M. equivalent), International Human Rights Law, Oxford University; J.D., University of Iowa; M.A., University of Iowa; B.A., Political Science, University of Northern Iowa. The author wishes to thank Professors Beth Stephens and Chimène Keitner for their helpful comments and input regarding this article. However, all opinions and any errors are the author’s. It is important to also disclose that the author is counsel for plaintiffs in two civil cases brought on behalf of former Guantanamo Bay detainees Hamad v. Gates and Ameur v. Gates, and was plaintiff’s counsel in the case of Corrie v. Caterpillar. These cases are mentioned in this article.

Leasing Sovereignty: On State Infrastructure Contracts

Matthew Titolo *


Infrastructure privatization is in the news. In the past ten years, Pennsylvania, California, Colorado, Indiana, and many other states and municipalities have privatized—or attempted to privatize—toll roads, parking meters and other public infrastructure. State and federal policies have encouraged these public-private partnerships and infrastructure privatizations.  Private development of public infrastructure was common in states and municipalities during the nineteenth century. This was typically done through granting corporate charters and franchises. Disenchantment with this model led to a public finance counterrevolution in the twentieth century. Privatization re-emerged in the 1980s and 1990s. Headlines such as “Why Does Abu Dhabi Own All of Chicago’s Parking Meters?” and “Cities for Sale” attest to the continuing controversy surrounding these arrangements.

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*Associate Professor, West Virginia University College of Law. J.D., University of California, Berkeley; Ph.D, University of California, Los Angeles. I am grateful for the feedback I received on this article by faculty at the Ohio Legal Scholarship Workshop, at the Seventh Annual Conference on Contracts at the Thomas Jefferson School of Law, and in faculty colloquia at West Virginia University College of Law. Brittany Vascik and Bill Bogard provided excellent and timely editorial assistance. This article was completed with the support of a West Virginia University Bloom Summer Research Grant.

A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet

R. George Wright *


The worst forms of religious persecution are unfathomably horrific. American law has extinguished the most severe forms of classical and modern public religious persecution. Whether other forms of public religious persecution have been reduced, or are instead on the increase, is controversial and undoubtedly important. This particular question, as briefly illustrated below, is unfortunately not subject to any reasoned, consensual resolution. It should come as no surprise when commentators raise largely unresolvable claims as to the existence of public persecution or of the burdening of religious rights of conscience, doctrine, and practice.


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* Lawrence A. Jegen Professor of Law, Indiana University Robert H. McKinney School of Law; J.D., 1982, Indiana University School of Law-Indianapolis; Ph.D., 1976, Indiana University; A.B., 1972, University of Virginia. The author’s thanks are hereby extended to Samantha Everett and Angela Stackhouse. The subtitle of this article is adapted from Prime Minister Winston Churchill, Speech to the House of Commons: Their Finest Hour (June 18, 1940), in THE INTERNET HISTORY SOURCEBOOK (Paul Halsall ed., 1998), [hereinafter Their Finest Hour].