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Full-Text Articles in Law

Does Crime Pay? Cartel Penalties And Profits, John M. Connor, Robert H. Lande Apr 2019

Does Crime Pay? Cartel Penalties And Profits, John M. Connor, Robert H. Lande

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This article seeks to answer a fundamental antitrust question: does crime pay? Do the current overall levels of U.S. cartel sanctions adequately discourage firms from engaging in illegal collusion? Seven years ago our research showed that the unfortunate answer was clearly that, yes, criminal collusion usually is profitable! The expected costs (in terms of criminal fines and prison time, civil damages, etc.) was significantly less than expected gains to the price fixers. Sadly, the most recent data re-affirm this conclusion.

The great majority of companies participating in illegal cartels make a profit even after they pay all the penalties ...


State Report Cards: Grading Criminal Record Relief Laws For Survivors Of Human Trafficking, Jessica Emerson Mar 2019

State Report Cards: Grading Criminal Record Relief Laws For Survivors Of Human Trafficking, Jessica Emerson

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Many survivors of human trafficking exploited in the commercial sex industry or other labor sectors have been arrested for offenses stemming from their victimization. Resulting criminal records – both arrest and court documents – then follow survivors and create barriers that impact their independence, stability, and safety. In 2010, New York became the first state to allow trafficking survivors to clear certain charges from their criminal records. In the years since, almost every state has enacted some form of criminal record relief for trafficking survivors. However, these laws vary greatly. Many are too limited to offer meaningful relief. Others include conditions that ...


[Dis]Integration: Second-Order Diversity And Schools, Anders Walker Mar 2019

[Dis]Integration: Second-Order Diversity And Schools, Anders Walker

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This article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions.


An Examination Of The Lethality Assessment Program (Lap): Perspectives On Implementation, Helpseeking, And Victim Empowerment, Margaret E. Johnson Jan 2019

An Examination Of The Lethality Assessment Program (Lap): Perspectives On Implementation, Helpseeking, And Victim Empowerment, Margaret E. Johnson

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The Lethality Assessment Program (LAP) aims to empower law enforcement officers to screen victims of domestic violence for potential lethality and connect them to service providers. This research surveyed domestic violence victims seeking legal services (n = 141) to assess whether LAP receipt is associated with greater rates of self-protective measures, service use, or empowerment, and to examine victims’ perspectives on the LAP process. Findings indicate no relationship between receipt of the LAP and use of self-protective measures or victim empowerment, mixed evidence between receipt of the LAP and service utilization, and room for improvement regarding how law enforcement officers explain ...


Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler Jan 2019

Taking Psychological Torture Seriously: The Torturous Nature Of Credible Death Threats And The Collateral Consequences For Capital Punishment, John Bessler

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This article explores how the death penalty and the indefinite nature of death row in the United States creates a constant threat of death, which can violate the United Nations Convention Against Torture’s prohibitions on death threats.


Environmental Refugees? Rethinking What’S In A Name, Elizabeth Keyes Jan 2019

Environmental Refugees? Rethinking What’S In A Name, Elizabeth Keyes

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The phrase “environmental refugee” summons a compelling image of someone forced to relocate due to climate change. The phrase has been used effectively to raise awareness of such diverse problems as the rising sea levels that are submerging some Pacific islands, as well as the increased impact of natural disasters like hurricanes and earthquakes which cause a mixture of temporary and permanent migration. As climate change accelerates, and its human costs become ever clearer, it is completely appropriate and necessary to respond to these migrations, and a number of international initiatives are underway to do so.

As these initiatives go ...


The Marquis Beccaria: An Italian Penal Reformer’S Meteoric Rise In The British Isles In The Transatlantic Republic Of Letters, John Bessler Jan 2019

The Marquis Beccaria: An Italian Penal Reformer’S Meteoric Rise In The British Isles In The Transatlantic Republic Of Letters, John Bessler

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This article traces the reception of Cesare Beccaria’s book, Dei delitti e delle pene (1764), in Britain and in colonial and early America. That book, first translated into English as An Essay on Crimes and Punishments (1767), catalyzed penal reform and the anti-gallows movement on both sides of the Atlantic. As the first Enlightenment text to make a comprehensive case against capital punishment, On Crimes and Punishments became a bestseller, appearing in multiple English-language editions and attracting much public attention. Widely read by an array of British and American lawmakers and other civic-minded penal reformers, On Crimes and Punishments ...


A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler Jan 2019

A Century In The Making: The Glorious Revolution, The American Revolution, And The Origins Of The U.S. Constitution’S Eighth Amendment, John Bessler

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The sixteen words in the U.S. Constitution’s Eighth Amendment have their roots in England’s Glorious Revolution of 1688–89. This Article traces the historical events that initially gave rise to the prohibitions against excessive bail, excessive fines, and cruel and unusual punishments. Those three proscriptions can be found in the English Declaration of Rights and in its statutory counterpart, the English Bill of Rights. In particular, the Article describes the legal cases and draconian punishments during the Stuart dynasty that led English and Scottish parliamentarians to insist on protections against cruelty and excessive governmental actions. In describing ...


The Future Of Clinical Legal Scholarship, Michele E. Gilman Jan 2019

The Future Of Clinical Legal Scholarship, Michele E. Gilman

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The legal academy is questioning the future of legal scholarship given its costs and perceived disconnect from law practice. However, the future of clinical legal scholarship is typically left out of these debates, although it offers a powerful rejoinder to these recurring critiques – it is deeply engaged with real-world problems, and it has demonstrable impacts. In addition, clinical scholars are an overlooked conduit for disseminating scholarship outside the ivory tower. Doctrinal faculty are unaware how much clinical faculty can ensure their work has an impact beyond SSRN citation counts. As law schools consider how to implement the new accreditation requirement ...


Menstrual Justice, Margaret E. Johnson Jan 2019

Menstrual Justice, Margaret E. Johnson

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Menstrual injustice is the oppression of menstruators, women, girls, transgender men and boys, and nonbinary persons, simply because they menstruate. Acts of menstrual injustice occur every day in the United States. The narrative of menstruation is that it is a taboo, shameful, and that menstruators are dirty, impure, even dangerous. Menstruation has been shunned generally from public discourse as a result. This narrative negatively impacts menstruators. Menstruators are essentialized as women, often of means, excluding transgender men and nonbinary persons, and menstruators who experience poverty or are young. Menstruating workers, especially low-wage workers, are harassed, penalized, or fired for heavy ...


The Properties Of Integration: Mixed-Income Housing As Discrimination Management, Audrey Mcfarlane Jan 2019

The Properties Of Integration: Mixed-Income Housing As Discrimination Management, Audrey Mcfarlane

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Mixed-income housing is an increasingly popular approach to providing affordable housing. The technique largely went unnoticed until developers of mixed-income housing constructed buildings containing separate entrances for rich and poor residents. The ensuing “poor door” controversy illustrated that mixed-income housing, as both a method of affordable housing production and an integration strategy, is in unacknowledged tension with itself. This Article argues that, mixedincome housing is implemented as a surreptitious form of racial and economic integration that accommodates and replicates prevailing race and class assumptions detrimental to the needs and interests of low to moderate-income individuals in need of housing. The ...


Amateur Regulation And The Unmoored United States Olympic And Paralympic Committee, Dionne L. Koller Jan 2019

Amateur Regulation And The Unmoored United States Olympic And Paralympic Committee, Dionne L. Koller

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n the wake of the USA Gymnastics sexual abuse scandal and Women’s National Soccer Team’s claim for pay equity, members of Congress have proposed legislation that would reform the United States Olympic and Paralympic Committee (USOPC) through amendments to its governing statute, the Ted Stevens Olympic and Amateur Sports Act. While an important step in the right direction, the proposed reforms fail to address deeper, more urgent questions about the USOPC, the sport National Governing Bodies (NGBs) it recognizes, and the meaning of the Olympic and Amateur Sports Act. This Article explores those issues by explaining that the ...


The Harm Of Child Removal, Shanta Trivedi Jan 2019

The Harm Of Child Removal, Shanta Trivedi

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When the state proves or even merely alleges that a parent has abused or neglected a child, family courts may remove the child from the parent’s care. However, research shows separating a child from her parent(s) has detrimental, long-term emotional and psychological consequences that may be worse than leaving the child at home. This is due to the trauma of removal itself, as well as the unstable nature of, and high rates of abuse in, foster care. Nevertheless, the child welfare system errs on the side of removal and almost uniformly fails to consider the harms associated with ...


Braiding The Strands Of Narrative And Critical Reflection With Critical Theory And Lawyering Practice, Carolyn Grose, Margaret E. Johnson Jan 2019

Braiding The Strands Of Narrative And Critical Reflection With Critical Theory And Lawyering Practice, Carolyn Grose, Margaret E. Johnson

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No abstract provided.


A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry Jan 2019

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

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On-demand platforms are changing and reshaping our conceptions of both the firm and the work relationship in far-reaching and critical ways, allowing companies to hire workers and to seek customers across national boundaries. Confronted with low pay, wage theft, and other problematic working conditions, gig workers around the world have turned to the courts, attempting to invoke the protections of traditional labor and employment law. While some commentators believe existing forms of labor and employment regulations can stretch to cover on-demand work, others have called for new legal initiatives specifically crafted for online platforms. The goal of this paper is ...


The Vaccine Race In The 21st Century, Ana Santos Rutschman Jan 2019

The Vaccine Race In The 21st Century, Ana Santos Rutschman

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In a world in which infectious diseases are spreading increasingly faster, the development of new human vaccines remains a priority in biopharmaceutical innovation. Legal scholars have addressed different aspects of vaccine regulation and administration, but less attention has been paid to the role of laws governing innovation during the stages of research and development (R&D) of vaccines.

This Article explores the race to develop new vaccines from its beginnings through the early 21st century, with a particular focus on the progressively pervasive role of intellectual property in governing vaccine innovation. It describes the insufficiencies of current innovation regimes in ...


Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker Jan 2019

Freedom And Prison: Putting Structuralism Back Into Structural Inequality, Anders Walker

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Critics of structural racism frequently miss structuralism as a field of historical inquiry. This essay reviews the rise of structuralism as a mode of historical analysis and applies it to the mass incarceration debate in the United States, arguing that it enriches the work of prevailing scholars in the field.


Reconstructing The Corporation: A Mutual-Control Model Of Corporate Governance, Grant M. Hayden, Matthew T. Bodie Jan 2019

Reconstructing The Corporation: A Mutual-Control Model Of Corporate Governance, Grant M. Hayden, Matthew T. Bodie

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The consensus around shareholder primacy is crumbling. Investors, long assumed to be uncomplicated profit-maximizers, are looking for ways to express a wider range of values in allocating their funds. Workers are agitating for greater voice at their workplaces. And prominent legislators have recently proposed corporate law reforms that would put a sizable number of employee representatives on the boards of directors of large public companies. These rumblings of public discontent are echoed in recent corporate law scholarship, which has cataloged the costs of shareholder control, touted the advantages of nonvoting stock, and questioned whether activist holders of various stripes are ...


Promoting Permanency And Human Rights, Lauren Bartlett Jan 2019

Promoting Permanency And Human Rights, Lauren Bartlett

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An increasing number of children are being cared for exclusively by grandparents or extended family. The majority of these caregivers are raising children outside of the foster care system without a formal legal status. In fact, kinship diversion, placing children whose parents cannot or will not care for them with family or friends outside of the foster care system, is encouraged by state and federal law. Informal kinship caregivers face many obstacles to providing care for children and they are more likely to be unemployed, receive government benefits, and be less educated, as compared with parents raising their own children ...


An Incomplete Masterpiece, Chad Flanders, Sean Oliveira Jan 2019

An Incomplete Masterpiece, Chad Flanders, Sean Oliveira

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The recent wave of popular and academic commentary on Masterpiece Cakeshop sounded a common theme: disappointment, even frustration. Masterpiece was held out as a case that was finally going to explain and resolve the conflicts between free expression, free exercise, and discrimination that were coming up again and again in the lower courts. But Justice Kennedy, the critical consensus went, avoided reaching many of the main First Amendment issues in the case and had instead ruled narrowly, giving us a prime example of"judicial minimalism:•

This assessment may be far too generous. In our short Article, we make the case ...


Jury Trial Disparities Between Class Actions And Shareholder Derivative Actions In State Courts, Ann M. Scarlett Jan 2019

Jury Trial Disparities Between Class Actions And Shareholder Derivative Actions In State Courts, Ann M. Scarlett

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Class actions and shareholder derivative lawsuits are both forms of representative litigation that historically had to be brought in the equity courts to be decided by a judge, rather than in the common-law courts to be decided by a jury. In 1938, the federal courts merged law and equity by passing the Federal Rules of Civil Procedure, which allowed both legal and equitable claims to be heard within the same civil action. After law and equity merged, the Supreme Court interpreted the Seventh Amendment’s preservation of the right to jury trial as including not just actions recognized at common ...


Crowdfunding Capital In The Age Of Blockchain Based Tokens, Patricia H. Lee Jan 2019

Crowdfunding Capital In The Age Of Blockchain Based Tokens, Patricia H. Lee

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Less than three years ago, the Securities and Exchange Commission (“SEC”) adopted investment crowdfunding regulations (“Reg. CF”) to facilitate small companies’ efforts to raise capital and jumpstart employment, providing companies potentially one of the most disruptive transformations in capital markets.

As the lion share of securities are offered under public offerings or Reg. D safe harbor exemptions, outcomes and impacts of Reg. CF offerings are not studied or monitored to the same extent. One line of inquiry is the scope of Reg. CF, including questions about the level of company participation, the types of businesses seeking capital formation, and the ...


Criminal Doctrines Of Faith, David Jaros Oct 2018

Criminal Doctrines Of Faith, David Jaros

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Decisions like Miranda v. Arizona helped popularize a conception of the courts as a protector of criminal defendants and a bulwark against overly aggressive law enforcement. But from arrest through trial, the Court has fashioned criminal constitutional procedure with a deep and abiding faith in the motivations of criminal justice system actors. Even decisions that vindicate individual constitutional rights at the expense of police and prosecutorial power are shaped by the Court’s fundamental trust in those same actors. They establish, in essence, “Criminal Doctrines of Faith.”

Criminal Doctrines of Faith pervade each stage of the criminal process — from cases ...


Are Universities Schools? The Case For Continuity In The Regulation Of Student Speech, Chad Flanders Oct 2018

Are Universities Schools? The Case For Continuity In The Regulation Of Student Speech, Chad Flanders

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Are universities schools? The question seems almost silly to ask: o f course universities are schools. They have teachers and students, like schools. They have grades, like schools. There are classes and extracurricular activities, also like schools. But recent writings on the issue of 04 free speech on campus" have raised the improbable specter that universities are less educational institutions than they are public forums like parks and sidewalks, where a free-wheeling exchange o f ideas and opinions takes place, unrestricted by any sense of academic mission or school disciplinc.1 Some of this rhetoric is of course exaggerated, and ...


Vaccine Licensure In The Public Interest: Lessons From The Development Of The U.S. Army Zika Vaccine, Ana Santos Rutschman Jan 2018

Vaccine Licensure In The Public Interest: Lessons From The Development Of The U.S. Army Zika Vaccine, Ana Santos Rutschman

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Vaccines developed by the public sector are key to preventing future outbreaks of infectious diseases. However, the licensure of these vaccines to private-sector companies under terms that do not ensure both their availability and affordability compromises their development. This Essay analyzes the recent attempted licensing deal for a Zika vaccine between the U.S. Army and Sanofi, a French pharmaceutical company. The proposed grant of an exclusive license to Sanofi triggered widespread concern because none of its substantive terms were disclosed. While § 209 of the Patent Act imposes limitations on exclusive licensure, the Army released no information supporting its finding ...


An Immodest Proposal For Birth Registration In Donor-Assisted Reproduction, In The Interest Of Science And Human Rights, Elizabeth Samuels Jan 2018

An Immodest Proposal For Birth Registration In Donor-Assisted Reproduction, In The Interest Of Science And Human Rights, Elizabeth Samuels

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No abstract provided.


The Decline Of Free Speech On The Postmodern Campus: The Troubling Evolution Of The Heckler's Veto, Kenneth Lasson Jan 2018

The Decline Of Free Speech On The Postmodern Campus: The Troubling Evolution Of The Heckler's Veto, Kenneth Lasson

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The Twenty-First Century has presented new challenges to the traditional ways that free speech in America has been encouraged and protected. While the right to express one’s opinions has become increasingly problematic in society at large, it is particularly imperiled in the very places that pride themselves as being open marketplaces of ideas – on college and university campuses.
Today we’re faced with numerous campus speech codes that substantially limit First-Amendment rights. They are ubiquitous and often cavalierly invoked. For civil libertarians the good news is that not one of the few such codes that have been tested in ...


The Abolitionist Movement Comes Of Age: From Capital Punishment As A Lawful Sanction To A Peremptory, International Law Norm Barring Executions, John D. Bessler Jan 2018

The Abolitionist Movement Comes Of Age: From Capital Punishment As A Lawful Sanction To A Peremptory, International Law Norm Barring Executions, John D. Bessler

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The anti-death penalty movement is rooted in the Enlightenment, dating back to the publication of the Italian philosopher Cesare Beccaria’s treatise, Dei delitti e delle pene (1764). That book, later translated into English as An Essay on Crimes and Punishments (1767), has inspired anti-death penalty advocacy for more than 250 years. This Article traces the development of the abolitionist movement since Beccaria’s time. In particular, it highlights how the debate over capital punishment has shifted from one focused primarily on the severity of monarchical punishments, to deterrence, to one framed by the concept of universal human rights, including ...


The Surveillance Gap: The Harms Of Extreme Privacy And Data Marginalization, Michele E. Gilman, Rebecca Green Jan 2018

The Surveillance Gap: The Harms Of Extreme Privacy And Data Marginalization, Michele E. Gilman, Rebecca Green

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We live in an age of unprecedented surveillance, enhanced by modern technology, prompting some to suggest that privacy is dead. Previous scholarship suggests that no subset of the population feels this phenomenon more than marginalized communities. Those who rely on public benefits, for example, must turn over personal information and submit to government surveillance far more routinely than wealthier citizens who enjoy greater opportunity to protect their privacy and the ready funds to secure it. This article illuminates the other end of the spectrum, arguing that many individuals who may value government and nonprofit services and legal protections fail to ...


The Perpetual “Invasion”: Past As Prologue In Constitutional Immigration Law, Matthew Lindsay Jan 2018

The Perpetual “Invasion”: Past As Prologue In Constitutional Immigration Law, Matthew Lindsay

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Donald Trump ascended to the presidency largely on the promise to protect the American people—their physical and financial security, their culture and language, even the integrity of their electoral system—against an invading foreign menace. Only extraordinary defensive measures, including “extreme vetting” of would-be immigrants, a ban on Muslims entering the United States, and a 2,000-mile-long wall along the nation’s southern border could repel the encroaching hordes. If candidate Trump’s scapegoating of unauthorized migrants and refugees was disarmingly effective, it was also eerily familiar to those of us who study the history of immigration law and ...