— Yuvraj Joshi

Attempts are being made to include members of excluded groups in societal institutions. Inclusion has been proposed as the solution to the injustice caused by exclusion. Yet, inclusion does not always achieve justice and might sometimes perpetuate injustice. This Article provides a framework for understanding inclusion that may fail to achieve social justice and uses this framework to assess the inclusion of lesbians and gays within marriage (marriage equality) and of women and minorities within organizations (organizational diversity). The former case study examines the legal and social movement for recognizing same-sex marriage while the latter engages a range of contemporary debates, including workplace diversity, gays in the military, women in armed combat and gender mainstreaming at the UN. Each shows that inclusion is less likely to achieve social justice where it misconstrues injustice, maintains the status quo, decouples from justice, legitimizes the institution or rationalizes injustice.

Class Action Settlement Residue and Cy Pres Awards: Emerging Problems and Practical Solutions  

— Wilber H. Boies & Latonia Haney Keith

Class action settlements often present the court and parties with the practical problem of disposing of residual funds that remain after distributions to class members. The cy pres doctrine is a well-recognized device that permits the court to designate suitable organizations to receive such funds. Recently, academics, judges, practitioners, and professional objectors have mounted a multi-faceted attack on this device, ranging from constitutional and ethical concerns to appeals challenging specific awards. This Article first describes the use of cy pres awards in class action settlements and explains why the constitutional, statutory, and ethical objections are unfounded. This Article then addresses other concerns that have been raised about particular awards by suggesting a principled and practical approach to cy pres awards. Finally, this Article explains why public interest and legal services organizations—organizations focused on providing access to the justice system for disenfranchised individuals—are appropriate cy pres recipients and avoid many of the problems raised by other potential recipients.

Are Mothers Hazardous to Their Children’s Health?: Law, Culture, and the Framing of Risk  

— Linda C. Fentiman

This Article examines the psychosocial processes of risk construction and explores how these processes intersect with core principles of Anglo-American law. It does so by critiquing current cultural and legal perceptions that mothers, especially pregnant women, pose a risk to their children’s health. The Article’s core argument is that during the last four decades, both American society and American law have increasingly come to view mothers as a primary source of risk to children. This intense focus on the threat of maternal harm ignores significant environmental sources of injury, including fathers and other men, as well as exposure to toxic chemicals, dangerous social environments, poverty, and other multi-factorial contributors to childhood harm. The singular focus on mothers as a source of harm to children is scientifically unfounded and reflects persistent racial, gender, and class stereotypes. It also can lead to poor public policy. Risk that is misunderstood is likely to be met with measures that are both misguided and ineffective.
The Article first explicates the landscape of mothers and risk, contrasting common misperceptions with the hard data on children’s health. The Article then considers how and why this distorted view has arisen, relying on new social science research about risk perception and risk communication. Building on that research, the Article examines American legal history and theory, casting a wide net in criminal, environmental, and tort law to demonstrate how core legal doctrine both reflects and reinforces existing sociocultural norms, particularly in the areas of mothers’ responsibility for children’s health. The Article urges a reengagement with the precautionary principle, based on solid scientific evidence, to improve the health of all of America’s children.