Law Commons^™

Understanding Urban Renewal: History Forgotten, Daniel R. Mandelker

Scholarship@WashULaw

Urban renewal is an important feature of urban life, but judicial, statutory, and constitutional backlash followed a U.S. Supreme Court decision that held constitutional the use of eminent domain to acquire land for redevelopment in an urban renewal project. Urban renewal got its start in the federal urban renewal program, which influenced state legislation but had a weak planning requirement and did not include blight as a requirement for urban renewal. This weakness was a factor in the problems that occurred in urban renewal and that created the backlash to the Supreme Court decision.

Reforming Reimbursement For The Us Food And Drug Administration’S Accelerated Approval Program To Support State Medicaid Programs, Rachel Sachs, Julie M. Donohue, Stacie B. Dusetzina

Scholarship@WashULaw

Importance The US Food and Drug Administration (FDA) has an accelerated approval program that has become the subject of scholarly attention and criticism, not only for the FDA’s oversight of the program but also for its implications for payers.

Observations State Medicaid programs’ legal obligations to provide reimbursement for accelerated approval products have created fiscal challenges for Medicaid that have been exacerbated by industry’s changing use of the accelerated approval program over time. Although strategies for accelerated approval reforms have been proposed, most focus on reforming the FDA’s accelerated approval pathway and product regulation without taking into account the implications …

The Changing Landscape For Billboard Regulation, Daniel R. Mandelker

Scholarship@WashULaw

Expectation turns to the Supreme Court as it once more takes up a free speech dispute about billboard regulation. On June 28, 2021, the Court granted the City of Austin’s Petition for Writ of Certiorari in Reagan National Advertising of Austin, Inc. v. City of Austin, 972 F.3d 696 (5th Cir. 2020), in which the Fifth Circuit struck down the city’s ban on digitizing off-premises signs. Billboards have a long history of legal contention, and billboard intolerance is historic. Billboards have their place, but they can overpower the aesthetic environment and threaten traffic safety. Before they were regulated at the …

Centering Noncitizens’ Free Speech, Gregory P. Magarian

Scholarship@WashULaw

First Amendment law pays little attention to noncitizens’ free speech interests. Perhaps noncitizens simply enjoy the same First Amendment rights as citizens. However, ambivalent and sometimes hostile Supreme Court precedents create serious cause for concern. This Essay advocates moving noncitizens’ free speech from the far periphery to the center of First Amendment law. Professor Magarian posits that noncitizens epitomize a condition of speech inequality, in which social conditions and legal doctrines combine to create distinctive, unwarranted barriers to full participation in public discourse. First Amendment law can ameliorate speech inequality by promoting an ethos of free speech obligation, amplifying the …

Assessing Affirmative Action's Diversity Rationale, Kyle Rozema, Adam Chilton, Justin Driver, Jonathan S. Masur

Scholarship@WashULaw

Ever since Justice Lewis Powell’s opinion in Regents of the University of California v. Bakke made diversity in higher education a constitutionally acceptable rationale for affirmative action programs, the diversity rationale has received vehement criticism from across the ideological spectrum. Critics on the right argue that diversity efforts lead to “less meritorious” applicants being selected. Critics on the left charge that diversity is mere “subterfuge.” On the diversity rationale’s legitimacy, then, there is precious little diversity of thought. In particular, prominent scholars and jurists have cast doubt on the diversity rationale’s empirical foundations, claiming that it rests on an implausible …

The Promise Of Radical Crime Policy, Trevor George Gardner

Scholarship@WashULaw

To the surprise of no one, the Defund the Police campaign has been subject to attack on several fronts—by political conservatives, police unions, and any number of Democratic Party politicians. How did Defund proponents respond to this high leverage moment? As the national debate about police budgets reached its apex, the Defund campaign seemed to scatter in several policy directions while clinging to the Defund mantra.

In To “Defund” the Police, Jessica Eaglin tracks these directions and draws a conceptual map of the various ongoing political projects designed to stem the flow of public money to police departments. To …

Covid-19, Churches, And Culture Wars, John D. Inazu

Scholarship@WashULaw

The First Amendment’s Free Exercise Clause often requires courts to balance competing interests of the highest order. On the one hand, the Constitution recognizes the free exercise of religion as a fundamental right. On the other hand, the government sometimes has compelling reasons for limiting free exercise, especially in situations involving dangers to health and safety. The shutdown and social distancing orders issued during the early phases of the COVID-19 pandemic not only restricted free exercise but also limited what many people consider to be the core of that exercise: religious worship. But the orders did so in order to …

The Informed Jury, Daniel Epps, William Ortman

Scholarship@WashULaw

The right to a criminal jury trial is a constitutional disappointment. Cases almost never make it to a jury because of plea bargaining. In the few cases that do, the jury is relegated to a narrow factfinding role that denies it normative voice or the ability to serve as a meaningful check on excessive punishment.

One simple change could situate the jury where it belongs, at the center of the criminal process. The most important thing juries do in criminal cases is authorize state punishment. But today, when a jury returns a guilty verdict, it authorizes punishment without any idea …

Carceral Progressivism And Animal Victims, Benjamin Levin

Scholarship@WashULaw

This chapter places the criminalization of harm to non-human animals within a larger context of left and progressive efforts to use criminal law to address social problems. This chapter treats the animal welfare movement’s turn to criminal legal solutions as a case study of the broader phenomenon of “carceral progressivism.” Specifically, the chapter identifies this case study as reflecting two particularly common features of left or progressive criminalization projects: (1) the presence of a particularly vulnerable class of victims; and (2) the claim that criminal law can send a message about society’s respect for that class of victims and condemnation …

Comments On Proposed Rules For Special Purpose Acquisition Companies, Shell Companies, And Projections, Andrew F. Tuch

Scholarship@WashULaw

In March 2022, the Securities and Exchange Commission released proposed rules for special purpose acquisition companies (SPACs), shell companies, and projections. In this comment letter, filed with the SEC, I provide a critical assessment of this proposal.

The SEC proposed far-reaching changes intended to enhance investor protections and align disclosure and liability rules in de-SPACs more closely with those in traditional IPOs. An under-appreciated feature of the proposed reforms is that they would subject de-SPACs to provisions closely modeled on Rule 13e-3 of the Exchange Act, which applies to going-private transactions, including management buyouts. Intended to tackle potential conflicts of …

Deregulated Redistricting, Travis Crum

Scholarship@WashULaw

From the civil rights movement through the Obama administration, each successive redistricting cycle involved ever-greater regulation of the mapmaking process. But in the past decade, the Supreme Court has re-written the ground rules for redistricting. For the first time in fifty years, Southern States will redistrict free of the preclearance process that long protected minorities from having their political power diminished. Political parties can now openly engage in egregious partisan gerrymandering.

The Court has withdrawn from the political thicket on every front except race. In so doing, the Court has engaged in decision-making that is both activist and restrained, but …

Torture In Our Schools?, Leila Nadya Sadat

Scholarship@WashULaw

America’s kids are not okay. As gun violence surges and politicians dither, school shootings are traumatizing a generation of youth. While only one manifestation of America’s gun violence crisis, school shootings are shocking in their ferocity, the senseless and random nature of the violence, and their impact upon millions of young, captive, and vulnerable individuals. This Essay makes the claim that the suffering of America’s school children from uncontrolled gun violence may be significant enough in scale and kind to rise to the level of ill-treatment under international law, violating U.S. treaty obligations and customary international law. If so, their …

The New Bailments, Danielle D'Onfro

Scholarship@WashULaw

The rise of cloud computing has dramatically changed how consumers and firms store their belongings. Property that owners once managed directly now exists primarily on infrastructure maintained by intermediaries. Consumers entrust their photos to Apple instead of scrapbooks; businesses put their documents on Amazon’s servers instead of in file cabinets; seemingly everything runs in the cloud. Were these belongings tangible, the relationship between owner and intermediary would be governed by the common-law doctrine of bailment. Bailments are mandatory relationships formed when one party entrusts their property to another. Within this relationship, the bailees owe the bailors a duty of care …

Regulating Police Chokeholds, Trevor George Gardner, Esam Al-Shareffi

Scholarship@WashULaw

This Article presents findings from an analysis of police chokehold policies enacted at the federal, state, and municipal levels of government. In addition to identifying the jurisdictions that restricted police chokeholds in the wake of George Floyd’s death on May 25, 2020, the Article conveys (via analysis of an original dataset) the considerable variance in the quality of police chokehold regulation. While many jurisdictions regulate the police chokehold, the strength of such regulations should not be taken for granted. Police chokehold policies vary by the type of chokehold barred (“air choke” and/or carotid choke), the degree of the chokehold restriction, …

Sexual Agreements, Susan Frelich Appleton, Albertina Antognini

Scholarship@WashULaw

Few would find it surprising that an agreement for sex falls outside the bounds of contract law. Prostitution—defined as an exchange of sex for money—has long been a crime, a point that courts often make in declining to enforce agreements between unmarried partners. In fact, courts routinely invalidate contracts when sex forms the basis of a couple’s bargain, whether married or not, and whether the sex is explicit or inferred from the relationship itself. A closer look at the legal treatment of sexual agreements, however, tells a more complicated story. Although courts reject sex as consideration for being “meretricious” or …

Criminal Law Exceptionalism, Benjamin Levin

Scholarship@WashULaw

For over half a century, U.S. prison populations have ballooned and criminal codes have expanded. In recent years, a growing awareness of mass incarceration and the harms of criminal law across lines of race and class has led to a backlash of anti-carceral commentary and social movement energy. Academics and activists have adopted a critical posture, offering not only small-bore reforms, but full-fledged arguments for the abolition of prisons, police, and criminal legal institutions. Where criminal law was once embraced by commentators as a catchall solution to social problems, increasingly it is being rejected, or at least questioned. Instead of …

Little Progress In The Sixth Committee On Crimes Against Humanity, Leila Nadya Sadat

Scholarship@WashULaw

This essay takes up the work of the UN Sixth Committee to date on crimes against humanity. It offers the first comprehensive tabulation of States’ positions, an analysis of the work accomplished thus far, and suggests a potential roadmap for advancing the adoption of a new global treaty on crimes against humanity. The essay notes the substantial progress made by the International Law Commission in the development and shaping of the proposed draft treaty as well as the substantial support the ILC’s work has attracted from States. At the same time, it underscores the disappointing outcome of this year’s negotiations, …

Nonpartisan Supreme Court Reform And The Biden Commission, Daniel Epps

Scholarship@WashULaw

Prior to his election to the Presidency, Joe Biden promised to create a bipartisan commission that would consider and evaluate reforms to the Supreme Court of the United States. Shortly after his inauguration, he did just that, announcing a thirty-six-member Commission on the Supreme Court. Made up of distinguished scholars and lawyers, the Commission was charged with drafting a report that would describe and analyze historical and current debates about reforming the Court. The eventual report seemed to make few observers happy. It reached few firm conclusions on the legality of any reform proposals and even fewer conclusions on any …

Criminal Justice Expertise, Benjamin Levin

Scholarship@WashULaw

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions; and (2) the democratic, which treats criminal policy as insufficiently responsive …

Race-Aware Algorithms: Fairness, Nondiscrimination And Affirmative Action, Pauline T. Kim

Scholarship@WashULaw

The growing use of predictive algorithms is increasing concerns that they may discriminate, but mitigating or removing bias requires designers to be aware of protected characteristics and take them into account. If they do so, however, will those efforts be considered a form of discrimination? Put concretely, if model-builders take race into account to prevent racial bias against Black people, have they then engaged in discrimination against white people? Some scholars assume so and seek to justify those practices under existing affirmative action doctrine. By invoking the Court’s affirmative action jurisprudence, however, they implicitly assume that these practices entail discrimination …

The Further Erosion Of Investor Protection: Expanded Exemptions, Spac Mergers, And Direct Listings, Andrew F. Tuch, Joel Seligman

Scholarship@WashULaw

This Article examines the decades-long decline of investor protections enshrined in the Securities Act of 1933, most notably Section 11, which imposes near strict liability on corporate insiders and certain secondary actors, primarily underwriters. The provision, the most potent in the federal securities regulatory arsenal, popularized the concept of outside gatekeepers and transformed practices in securities offerings, making due diligence a byword for careful investigation of facts whether required by legal process or otherwise. The measures required by Section 11 restored confidence in US capital markets in the wake of the Great Depression and have been instrumental in these markets’ …

Victims’ Rights Revisited, Benjamin Levin

Scholarship@WashULaw

This Essay responds to Bennett Capers's article, "Against Prosecutors." I offer four critiques of Capers’s proposal to bring back private prosecutions: (A) that shifting power to victims still involves shifting power to the carceral state and away from defendants; (B) that defining the class of victims will pose numerous problems; C) that privatizing prosecution reinforces a troubling impulse to treat social problems at the individual level; and (D) broadly, that these critiques suggest that Capers has traded the pathologies of “public” law for the pathologies of “private” law. Further, I argue that the article reflects a new, left-leaning vision of …

Political Ideology And Judicial Administration: Evidence From The Covid-19 Pandemic, Kyle Rozema, Adam Chilton, Christopher Anthony Cotropia, David L. Schwartz

Scholarship@WashULaw

We study the effect of political ideology on the administration of the judiciary by investigating how the chief judges of federal district courts set courthouse policies in response to the COVID-19 pandemic. To do so, we use novel data on the geographic boundaries of federal courts and on the contents of pandemic orders. We account for state and local conditions and policies by leveraging district courts in states that have multiple judicial districts and that have courthouses in multiple counties, and we isolate the effect of chief ideology by using simulations that difference out unobserved district-level effects. We find no …

Lemonade: A Racial Justice Reframing Of The Roberts Court’S Criminal Jurisprudence, Daniel S. Harawa

Scholarship@WashULaw

The saying goes, when life gives you lemons, make lemonade. When it comes to the Supreme Court’s criminal jurisprudence and its relationship to racial (in)equity, progressive scholars often focus on the tartness of the lemons. In particular, they have studied how the Court often ignores race in its criminal decisions, a move that in turn reifies a racially subordinating criminalization system.

However, the Court has recently issued a series of decisions addressing racism in the criminal legal system: Buck v. Davis, Peña-Rodriguez v. Colorado, Timbs v. Indiana, Flowers v. Mississippi, and
Ramos v. Louisiana. On their face, the cases teach …

The Apa And The Assault On Deference, Ronald Levin

Scholarship@WashULaw

Recently, in Kisor v. Wilkie, a concurring opinion by Justice Gorsuch argued at length that § 706 of the Administrative Procedure Act prohibits judicial deference to administrative interpretations of law. That section states that “the reviewing court shall decide all relevant questions of law.” This issue remained unresolved in Kisor, but the Supreme Court may well return to it soon as a potential argument against the validity of Chevron deference. Although a substantial academic literature has supported Gorsuch’s position on the APA question, this article disagrees with it. It argues that the text of § 706, surrounding statutory provisions, the …

By Any Means: A Philosophical Frame For Rulemaking Reform In Criminal Law, Trevor George Gardner

Scholarship@WashULaw

Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance. Crime-policy reform should be considered the first-order principle of the crime-policy reform movement. Fairness in the crime-policymaking process, while key to the pursuit of democratic ideals, is best understood as a secondary consideration. Put simply, the prioritization of fair process risks stifling the crime-policy reform movement by tethering the policy ends of the movement (namely, minimalism in criminal administration) to a pre-ordained means.

Racialized Bankruptcy Federalism, Rafael I. Pardo

Scholarship@WashULaw

Notwithstanding the robust national power conferred by the U.S. Constitution’s Bankruptcy Clause, the design and administration of federal bankruptcy law entails choices about the extent to which non-bankruptcy-law entitlements will remain un-displaced. When such entitlements sound in domestic nonfederal law (i.e., state or local law), displacing them triggers federalism concerns. Considerations regarding the relationship between the federal government and the nation’s smaller political subdivisions might warrant preserving nonfederal-law entitlements even though their displacement would be authorized pursuant to the bankruptcy power. But such considerations might also suggest replacing those entitlements with bankruptcy-specific ones. Some scholarship has theorized about the principles …

Federalizing The Voting Rights Act, Travis Crum

Scholarship@WashULaw

In Presidential Control of Elections, Professor Lisa Marshall Manheim masterfully canvasses how “a president can affect the rules of elections that purport to hold him accountable” and thereby “undermine the democratic will and delegitimize the executive branch.” Bringing together insights from administrative law and election law, she categorizes how presidents exercise control over elections: priority setting through executive agencies, encouraging gridlock in independent agencies, and idiosyncratic exercise of their narrow grants of unilateral authority.

Manheim’s principal concern is an executive influencing elections to entrench themselves and their allies in power. Her prognosis for the future is steely-eyed, and she recognizes …

The Market As Negotiation, Rebecca E. Hollander-Blumoff, Matthew T. Bodie

Scholarship@WashULaw

Our economic system counts on markets to allocate most of our societal resources. The law often treats markets as discrete entities, with a native intelligence and structure that provides clear answers to questions about prices and terms. In reality, of course, markets are much messier—they are agglomerations of negotiations by individual parties. Despite theoretical and empirical work on markets and on negotiation, legal scholars have largely overlooked the connection between the two areas in considering how markets are constructed and regulated.

This Article brings together scholarship in law, economics, sociology, and psychology to better understand the role that negotiation plays …

Law & Leviathan: The Best Defense?, Ronald Levin

Scholarship@WashULaw

In their recent book Law & Leviathan, Cass Sunstein and Adrian Vermeule unveil a novel and provocative approach to legitimating the modern administrative state. Their starting point is a set of procedural principles that the legal philosopher Lon Fuller described as fundamental premises of the law’s “internal morality.”