Law Commons^™

Black Boarding Academies As A Prudential Reparation: Finis Origine Pendet, Roy L. Brooks

Faculty Scholarship

With billions of dollars pledged and trillions of dollars demanded to redress slavery and Jim Crow (“Black Reparations”) the question of how best to use these funds has moved into the forefront of the ongoing campaign for racial justice in our post-civil rights society. Reparatory strategies typically target the norms and structures that sustain racial disadvantage wrought by slavery and Jim Crow. The goal of such transitional reparations is to extinguish the menace of white supremacy and systemic racism across the board. Restructuring in housing, education, employment, voting, law enforcement, health care, and the environment—social transformation—is absolutely needed in the …

Responsibility, Lawyering, Justice, David Mcgowan

Responsibility, Lawyering, Justice

Between 1942 and 1946, approximately 112,000 persons of Japanese ancestry were ordered to leave their homes and were transported to internment camps where they were held under armed guard. Four cases litigated before the United States Supreme Court dealt with orders related to this policy: Hirabayishi v. United States, Yasui v. United States, Korematsu v. United States, and ex parte Endo. Property deprivation related to internment was at issue in Oyama v. California. This note discusses whether the Solicitor General of the United States violated a duty of candor in Hirabayashi and Yasui or in Korematsu. That question requires analysis …

Responsibility, Lawyering, Justice, David Mcgowan

Faculty Scholarship

Between 1942 and 1946, approximately 112,000 persons of Japanese ancestry were ordered to leave their homes and were transported to internment camps where they were held under armed guard. Four cases litigated before the United States Supreme Court dealt with orders related to this policy: Hirabayishi v. United States, Yasui v. United States, Korematsu v. United States, and ex parte Endo. Property deprivation related to internment was at issue in Oyama v. California. This note discusses whether the Solicitor General of the United States violated a duty of candor in Hirabayashi and Yasui or in Korematsu. That question requires analysis …

Historical Disproportional Placement Of Students In Special Education Based On Race And Ethnicity, Margaret A. Dalton

Faculty Scholarship

This commentary, presented at the Practicing Law Institute in San Francisco on September 12, 2022, takes a look back at the 1970s, when the 9th Circuit Court of Appeals attempted to remedy the disproportionate placement of black students into isolated special education classrooms. As a result of legal challenges, the 9th Circuit granted an injunction to halt the practice of placing students in classrooms for the "educable mentally retarded" based solely on IQ tests. The challenge since that time has been how to identify and use culturally sensitive testing to determine ability levels, when some states, including California, forbid the …

Reimagining Reentry: A Vision For Transformative Justice Beyond The Carceral State, Kemiya Nutter

Ethnic Studies Senior Capstone Papers

Throughout the past decade, mass incarceration has emerged as a buzzword within academic scholarship and public policy discourse that seeks to examine the unparalleled expansion of the contemporary carceral state. With 2.2 million Americans imprisoned and over 7 million under various forms of penal control, the United States maintains the highest rate of incarceration in the world. The unprecedented inflation in the nation’s incarceration rate is a direct manifestation of the 1970’s War on Drugs, which enabled the legislative transformations that permeate modern sentencing policy and procedure. Institutions of policing, surveillance, and incarceration are constitutive features of the carceral system’s …

The Covid-19 Safety And Health Accreditation Program: How Food Safety Inspectors And Building Inspectors Can Incentivize Osha Compliance To Protect Workers During The Coronavirus Pandemic, Lindsey Tanita

Center for Health Law Policy and Bioethics

The coronavirus pandemic exposed the Occupational Safety and Health Administration’s (OSHA) severe lack of commitment and resources to enforce standards aimed at providing a safe and healthful workplace for millions of workers who are at an increased risk of exposure to COVID-19 every time they step foot into the workplace. We’ve seen nurses treating COVID-19 patients pleading for personal protective equipment all across the county,1 a bus driver in Detroit dying of COVID-19 after complaining about lack of protections from a coughing passenger,2 and more than three hundred workers testing positive for COVID-19 in one Los Angeles factory, even after …

Empowering The Minority Healthcare Worker Amidst Racial Patient Bias & Covid-19, Rachel Tran

Center for Health Law Policy and Bioethics

While the discussion surrounding implicit physician bias has become more prevalent, patient bias is often overlooked. For decades, the United States’ healthcare system has normalized accommodation of patients’ racially biased requests, providing little to no support for minority healthcare workers. This paper presents social, ethical, and legal arguments for the creation of effective patient bias policies while challenging traditional barriers to implementation. It also advances a guideline of recommendations for healthcare institutions, civil rights organizations, and governments to draw from. These recommendations include the right to turn away patients who repeatedly discriminate against healthcare professionals.

Covid-19 Should Not Create A New Class Of Criminals, Alaina Lynch

Center for Health Law Policy and Bioethics

This paper offers a critique of the punitive response to COVID-19 in the United States and argues that punitive resources must be redistributed. Specifically, this paper suggests that no criminal charges be brought related to the novel disease transmission because policing and arrests related to COVID-19 exposure crimes are counterproductive. Defunding these punitive efforts and reallocating funds towards virus containment, the spread of factual information about disease transmission, vaccine research, the delivery of resources to communities in need, and support for victims of crimes in alternative ways is a more effective strategy to support public health and safety. To make …

Mail-Voting During Covid-19: Protecting Public Health And Expanding Voting Accessibility, Emily Kawahara

Center for Health Law Policy and Bioethics

The 2020 presidential election will be held during the COVID-19 public health crisis. In response to the COVID-19 situation, there is an immediate need to universalize mail-voting. However, President Donald Trump consistently downplays COVID-19 and asserts that mail- voting causes voter fraud and favors the Democratic Party. This Article examines modifications made in prior elections held during or in the wake of crises. Though these modifications are not applicable for the COVID-19 pandemic, they provide two important distinctions: crisis-specific measures should prioritize protecting public health and, if there is an opportunity to preserve the right to vote through election modification, …

Death By Virus: Why The Prison Litigation Reform Act Should Be Suspended, Divya Sriharan

Center for Health Law Policy and Bioethics

In order to save the lives of inmates, as well as redress some of the harms the prison system and the pandemic have caused them, Congress must pass a bill to temporarily suspend the Prison Litigation Reform Act. As of August 13, 2020, 95,398 inmates have contracted COVID-19. Prisons refuse to adapt or implement measures to save lives. Because of the Prison Litigation Reform Act, it is near impossible for inmates to take their cases to court. The Prison Litigation Reform Act’s requirements include: exhausting all internal administrative remedies before filing in court, not allowing suits based on mental or …

Humanity For Asylum Seekers: How Migrant Protection Protocols And The March 20th Cdc Order Violate The Constitutional Rights Of Asylum Seekers During The Covid-19 Pandemic, Madison Beck

Center for Health Law Policy and Bioethics

In late 2018, the Trump Administration introduced Migrant Protection Protocols (MPP), also known as the Remain in Mexico Policy, to curb illegal immigration. The protocols allow the U.S. to remove immigrants, including asylum seekers, to Mexico while their claims are processed. This is problematic on its own, but even more so during the COVID-19 pandemic; makeshift asylum tent-camps are home to thousands of vulnerable individuals where viral spread would be devastating. Additionally, in March 2020, the Centers for Disease Control and Prevention (CDC) issued an “order suspending introduction of certain persons from countries where a communicable disease exists” further worsening …

The Right To Health In Immigration Detention During The Covid-19 Pandemic: An Examination Of Federal And International Law, Alaina Dye

Center for Health Law Policy and Bioethics

This article examines the United States’ response to the severe impact of the coronavirus (COVID-19) in immigration detention centers and considers the United States’ obligations to the vulnerable population of immigrant detainees. This article argues that the COVID-19 pandemic further demonstrates the United States’ lack of guaranteed health care for immigrant detainees and deportees despite international recognition of the human rights to health and life. The United States violates international law when immigrant detainees’ human rights are disregarded by lack of appropriate access to health care during a global pandemic. This article recognizes that discrimination against immigrants under the Trump …

Not Everyone Is Safer At Home: The Harsh Reality That Many Domestic Violence Victims Face In Light Of Covid-19 “Stay At Home” Orders, Megan Divine

Center for Health Law Policy and Bioethics

Domestic violence victims are disproportionately affected by the COVID-19 pandemic. Home is not a safe place for everyone. Abuse thrives in silence and isolation. Isolation exacerbates the types of violence and abuse that victims experience. The coronavirus pandemic presents a perfect opportunity for abusers to exercise increased levels of coercive control. This includes not only physical abuse, but also emotional, financial, and psychological abuse. Survivors too, are impacted by many of these concerns. Limited finances and decreased access to housing, support, and affordable childcare increases the potential for survivors to return to their abusers. Many have considered the coronavirus crisis …

Child Maltreatment Reporting Statistics During The Covid-19 Pandemic: A Cursory Analysis, Alison L. Hansen

Center for Health Law Policy and Bioethics

This goal of this research is to provide a cursory analysis of publicly available child maltreatment data collected during the COVID-19 pandemic. The number of total allegations of child maltreatment between the months of March and June—a span of time representative of the COVID-19 pandemic thus far—were analyzed in five different states in the years 2017, 2018, 2019, and 2020. An analysis of total numbers of allegations and the percentage change in allegations per year revealed a disproportionate decline in child maltreatment reports during the COVID-19 pandemic. This data corroborates nationwide reports of decreases in child maltreatment allegations in the …

U.S. Border Expulsions Further Jeopardize Asylum Seekers And Unaccompanied Minors In The Time Of Covid-19, Evan Harris

Center for Health Law Policy and Bioethics

The Centers for Disease Control and Prevention (CDC) issued a public health order on March 20, 2020, restricting people seeking asylum in the United States, as well as unaccompanied non-citizen children attempting to cross into the United States, from accessing legal protections guaranteed to them under U.S. and international law.1 Under the order, such individuals are instead immediately expelled from the country in an effort to protect border facilities and the citizenry of the United States from COVID-19.

2 As the order reasons, these immediate expulsions minimize the introduction of persons into “congregate settings” at border facilities and thereby reduce …

Housing The Homeless Population During The Covid-19 Pandemic: Governments’ Ethical Responsibility, Amy Holmes

Center for Health Law Policy and Bioethics

COVID-19 took the world by storm in late 2019. Governments acted to ensure that their populations were as protected as possible through stay-at-home orders and the closure of stores, restaurants, and public spaces around the world. Stay-at-home orders work well when citizens have somewhere to stay, but those experiencing homelessness face the almost insurmountable challenge of staying safe and healthy without access to a safe place to stay. COVID-19 has spread rapidly through the homeless population, and as such poses a risk to the population as a whole as the world begins to reopen. Without access to adequate sanitation supplies …

Best Training Practices For Probation Officers And Staff Toward Building A More Sophisticated, Fair, And Effective System Of Juvenile Justice In San Diego County, Carissa Carrasquillo

Ethnic Studies Senior Capstone Papers

This report illustrates how probation leadership, officers, and staff in San Diego County can adopt best training practices to address and alleviate incidents in juvenile detention facilities and build a sophisticated, fair, and effective system of juvenile justice. The goal of implementing best training practices for probation officers and staff is to build a knowledgeable workforce to better serve youth and families and reduce racial and ethnic disparities in the juvenile justice system. This report analyzes how innovations in management and the introduction of new programs has proven effective through research- and evidence-based practices and direct community involvement. In particular, …

Challenges In Navigating Disability Discrimination And Privacy Laws In Addressing Physician Health, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

Restorative Justice And Responsive Regulation In Higher Education: The Complex Web Of Campus Sexual Assault Policy In The United States And A Restorative Alternative, David R. Karp Phd

School of Leadership and Education Sciences: Faculty Scholarship

Sexual assault policy on college campuses in the United States is a complex system guided by federal policy, state policy, and local mandates. When students violate sexual misconduct policies, campuses primarily rely on suspensions and expulsions, paralleling the criminal justice system’s reliance on incarceration as a solution based on stigmatization and separation. Since the 1990s, restorative justice has made inroads as an alternative response to student misconduct, but application to sexual misconduct is rare. The Campus PRISM Project (Promoting Restorative Initiatives on Sexual Misconduct) is a network of academics and practitioners exploring a restorative approach within a responsive regulatory framework. …

2018 Legal Update: Npdb Reporting, Retaliation, Physician Well Being, And Medical Staff Litigation, Preparing For A Successful Judicial Review Hearing, Rick D. Barton, Natalie V. Mueller

Center for Health Law Policy and Bioethics

No abstract provided.

Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act Of 2016, Herbert I. Lazerow

Faculty Scholarship

The Holocaust Expropriated Recovery Act of 2016 (HEAR) purports to extend the statute of limitations for actions to recover art and certain other items stolen during the Holocaust. The new statute of limitations would be either the old statute or a six-years-from-actual-discovery statute, whichever is longer. This article analyzes the likely results of that law. It sets forth the problems leading to HEAR’s enactment, including the typical parties to these controversies, the informational difficulties confronting both claimants and purchasers of art, and the elements of recovery suits, and discusses the functions of statutes of limitations and adverse possession and prescription. …

Bylaws: How To Solve And Minimize Difficult Staff Solutions, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

Patient Safety, Peer Review, And Credentialing: Navigating Sovereign Immunity And Balancing State And Federal Law In Your Quality Department, Rick D. Barton, Natalie V. Mueller

Center for Health Law Policy and Bioethics

No abstract provided.

Like Snow To The Eskimos And Trump To The Republican Party: The Ali's Many Words For, And Shifting Pronouncements About, "Affirmative Consent", Kevin Cole

Faculty Scholarship

This short piece examines changes from prior drafts in the most recent draft (Preliminary Draft No. 6) of the American Law Institute's project on sexual assault law.

The Law Of The Platform, Orly Lobel

Faculty Scholarship

New digital platform companies are turning everything into an available resource: services, products, spaces, connections, and knowledge, all of which would otherwise be collecting dust. Unsurprisingly then, the platform economy defies conventional regulatory theory. Millions of people are becoming part-time entrepreneurs, disrupting established business models and entrenched market interests, challenging regulated industries, and turning ideas about consumption, work, risk, and ownership on their head. Paradoxically, as the digital platform economy becomes more established, we are also at an all-time high in regulatory permitting, licensing, and protection. The battle over law in the platform is therefore both conceptual and highly practical. …

The Good, The Bad, The Ugly: Human Rights Violators In Comparative Perspective, Austin Choi-Fitzpatrick

School of Peace Studies: Faculty Scholarship

A large and growing wave of scholarship has focused attention on a variety of contemporary forms of slavery. Early attention went to victims of sexual exploitation, though this is starting to slowly change with a growing body of work on labor exploitation. Previous studies focused exclusively on international trafficking and on the Global South whereas newer studies emphasize domestic trafficking and exploitation in the Global North. This article, and the special issue it introduces, suggests that it is high time scholars and advocates broaden their scope to more clearly focus on perpetrators and on the emancipation process. Perpetrators are too …

Regulatory Entrepreneurship, Jordan M. Barry, Elizabeth Pollman

Faculty Scholarship

Numerous corporations, ranging from Airbnb to Tesla, and from DraftKings to Uber, have built huge businesses that reside in legal gray areas. Instead of taking the law as a given, these companies have become agents of legal change, focusing major parts of their business plans on changing the law. To achieve their political goals, these companies employ conventional lobbying techniques, but also more innovative tactics. In particular, some attempt to enter markets quickly, then grow too big to ban before regulators can respond. If regulators do take aim at them, they respond by mobilizing their users for political support. This …

Retaliation And Healthcare Providers: Navigating Health And Safety Code Section 1278.5, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

New National Practitioner Data Bank Guidebook Impact On Bylaw Standards, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.

Legal Aspects Of Assessing The Aging Physician—An Update, Rick D. Barton

Center for Health Law Policy and Bioethics

No abstract provided.