Law Commons^™

Transgender Tropes & Constitutional Review, Jennifer Levi, Kevin M. Barry

Faculty Scholarship

The Trump administration is aggressively and systematically rolling back policies that protect transgender people. History teaches that these governmental attacks are not new, but instead represent the latest salvo in a long but losing battle to disparage transgender people, who have been ruthlessly depicted as criminals, deviants, and selfish iconoclasts. Notwithstanding the current administration's open hostility toward transgender people, constitutional protections endure. This Article discusses the evolution of government discrimination against transgender people-from laws that criminalized the violation of gender norms in the late twentieth century to the present-day exclusion of transgender people from the U.S. military-and transgender people's continued …

The Inclusion Of Pregnant Women In Clinical Research, Barbara A. Noah

Faculty Scholarship

In the past three decades, there has been unprecedented growth in medical research utilizing human subjects, with much promise for new treatments that extend life, improve quality of life, and prevent disease and disability. Safe prescribing of drug therapies requires that researchers design clinical trials to test products for the benefit of all persons who are likely to utilize them, not just a limited population. For this reason, it is essential that clinical trials include women, pregnant women, children, and racial minorities, as appropriate, because these populations sometimes exhibit different patterns of response or adverse reactions.

Despite some significant progress …

A Hen In The Parlor: Municipal Control And Enforcement Of Residential Chicken Coops, Chris Erchull

Student Competition Writings

The locavore movement and similar trends in sustainable agriculture and health are renewing interest in backyard residential chicken coops. This Article analyzes some of the regulatory approaches cities and towns have taken to address backyard residential chicken coops. The Article focuses on how regulation can support and encourage the beneficial aspects of keeping backyard chickens while mitigating the potential harmful impact of excessive or irresponsibly managed residential chicken coops. In particular, the Article examines common trends in local regulation, like limits on the number and sex of birds allowed in each residential yard, setback and structural requirements, and animal welfare …

Visiting Room: A Response To Prison Visitation Policies: A Fifty-State Survey, Giovanna Shay

Faculty Scholarship

This Essay responds to Boudin, Stutz & Littman, Prison Visitation Policies: A Fifty State Survey, by placing American visitation policies in a global context. American prison visitation polices are unique among advanced democracies. Other nations, particularly in Western Europe, have far more liberal policies. Prisons in the United Kingdom, Canada, and Finland feature mother/baby units and family visitation centers. In Denmark and Norway, prisoners are granted passes to visit family. These policies encourage visitation. Increased visitation is linked to lower recidivism, so adopting such policies would potentially lower prison populations in the United States. The Essay acknowledges that following …

Exhausted, Giovanna Shay

Faculty Scholarship

The Prison Litigation Reform Act (PLRA) contains an administrative exhaustion provision that was interpreted by the Supreme Court in Woodford v. Ngo in 2006 to impose a procedural default component. This piece argues that we should take seriously Justice Breyer’s Woodford concurrence, in which he noted that administrative law doctrine contains well-established exceptions to exhaustion. Although this point might at first seem inconsistent with other Supreme Court cases interpreting the PLRA, this Article argues that Justice Breyer’s concurrence can be reconciled with those opinions. PLRA exhaustion invokes regular administrative law exhaustion doctrine so long as it is not inconsistent with …

Ad Law Incarcerated, Giovanna Shay

Faculty Scholarship

This Article examines one part of the legal regime administering "mass incarceration" that has not been a focus of legal scholarship: prison and jail policies and regulation. Prison and jail regulation is the administrative law of the "carceral state," governing an incarcerated population of millions, a majority of whom are people of color. The result is an extremely regressive form of policy-making, affecting poor communities and communities of color most directly. This Article proceeds in three parts. Part I first sketches the history of court involvement in prison reform, explaining that prison litigation made institutions more bureaucratic and increased the …

When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs

Faculty Scholarship

Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …

A Drug By Any Other Name ... ? Paradoxes In Dietary Supplement Risk Regulation, Lars Noah, Barbara A. Noah

Faculty Scholarship

Dietary supplements present vexing regulatory challenges for the Food and Drug Administration (FDA). Although several observers have called for reform or repeal of Dietary Supplement Health and Education Act (DSHEA), and the FDA often has lamented its lack of meaningful authority over dietary supplements, this Author suggests that the agency actually possesses the regulatory muscle to adopt a more aggressive risk identification and risk management strategy within the confines of DSHEA, and that it need not ask Congress to amend the statute.

Shareholder Enforced Market Discipline: How Much Is Too Much?, Eric J. Gouvin

Faculty Scholarship

This Article considers the federal banking regulation regime implemented in response to the widespread bank failures of the 1980s and early 1990s. The first section of the Article examines the moral hazard problem created by the presence of the deposit insurance scheme and the market discipline debate that has attempted to correct the moral hazard problem. The Author argues that the law has evolved to make bank holding companies the primary enforcers of market discipline. The Article’s second section examines the specific regulatory changes that have been designed to create an incentive for bank holding companies to impose discipline on …

Nicotine Withdrawal: Assessing The Fda's Effort To Regulate Tobacco Products, Lars Noah, Barbara A. Noah

Faculty Scholarship

At a press conference held on August 23, 1996, just one year after initially revealing his plans, President Clinton announced sweeping federal regulations to combat the underage use of tobacco products. The Food and Drug Administration (FDA) subsequently published a lengthy preamble to accompany the final regulations, detailing the Agency's assessment of the problem and responding to numerous public comments to its notice of proposed rulemaking (NPRM). Characterizing the growing use of tobacco products as a "pediatric disease," FDA Commissioner David Kessler previously had vowed to alter the smoking habits of the newest generation of tobacco users in order to …

Liberating Commercial Speech: Product Labeling Controls And The First Amendment, Lars Noah, Barbara A. Noah

Faculty Scholarship

As federal regulators impose increasing limits on what manufacturers may say about their products, constitutional protections for commercial speech become ever more important. Indeed, the United States Supreme Court's most recent First Amendment decisions suggest meaningful regard for the value of advertising and labeling as types of protected expression. At the same time, however, federal lawmakers are imposing ever more onerous restrictions on promotional activities and product labeling. The Authors discuss federal law relating to regulation of product labeling.

A Square Peg In A Vicious Circle: Stephen Breyer's Optimistic Prescription For The Regulatory Mess, Eric J. Gouvin

Faculty Scholarship

This Article reviews the book by Supreme Court Justice, Steven G. Breyer, "Breaking The Vicious Circle: Toward Effective Risk Regulation. " The Author discusses this book's most significant contribution that draws attention to the current regulatory regime's systemic problems, thereby encouraging serious discussion about how to "reinvent" the regulatory process. Breyer courageously points out that the political legitimacy of the process rests to some degree on the effectiveness of its product. This Review outlines the systemic problems and the "vicious circle" identified by Justice Breyer and then proceeds to review his proposed solution. The final part presents several criticisms of …