Digital Commons Network^™

Subordination And Separation Of Powers, Matthew B. Lawrence

Faculty Articles

This Article calls for the incorporation of antisubordination into separation-ofpowers analysis. Scholars analyzing separation-of-powers tools—laws and norms that divide power among government actors—consider a long list of values ranging from protecting liberty to promoting efficiency. Absent from this list are questions of equity: questions of racism, sexism, and classism. This Article problematizes this omission and begins to rectify it. For the first time, this Article applies critical-race and feminist theorists’ subordination question—are marginalized groups disproportionately burdened?—to three important separation-of-powers tools: legislative appropriations, executive conditions, and constitutional entrenchment. In doing so, it reveals that each tool entails subordination by creating generalized …

Debunking “De Minimis” Violations Of Prisoners’ Religious Rights: Further Problems With The Supreme Court’S “Hands Off” Approach, Samantha Sparacino

Touro Law Review

Circuits are split as there continues to be an inconsistent application of Supreme Court doctrine stemming from the notion of the separation of church and the state. Imprisonment does not strip a wrongdoer of his constitutionally guaranteed rights and protections. Some Circuits have held that a minor, or de minimis, interpretation of an inmate’s religious rights can constitute a substantial burden under the Religious Land Use and Institutionalized Persons Act. In the absence of clear direction from the Supreme Court, I propose that courts should refrain from determining the value of a religious belief or practice as it relates …

On Period Poverty, Victoria J. Haneman

Journal of Race, Gender, and Ethnicity

No abstract provided.

Should Human Rights Practice Be Rights-Based?, Sarah Knuckey, Margaret Satterthwaite

Faculty Scholarship

Human rights scholars and organizations often call on governments to adopt ‘human rights-based approaches’ (HRBAs) to many policy areas, from climate change to health policy. HRBAs identify rights and obligations, and advance the principles of participation, accountability, equality, and non-discrimination. This chapter argues that HRBAs have been exported to many fields without ever being sufficiently integrated within human rights advocacy. We find that NGOs often fail to adhere to foundational human rights principles in their own work, reproducing unjust power hierarchies, objectifying victims, and disempowering rights-holders. Were HRBAs adopted by more human rights organizations, the face of human rights advocacy …

Pandemic Schooling And The Politics Of Safety, Lisa M. Kelly, Deniz Kilinc, Sonia Lawrence, Cosimo Morin

Articles & Book Chapters

In this paper, the authors consider how pandemic schooling is increasing educational inequalities that may have generational effects. Reviewing emerging evidence on rates of return to in-person schooling and disparities in remote learning in Ontario, the authors argue that the pandemic is accelerating existing trends of privatization and choice. Emerging data suggests that students from more affluent and whiter households have returned to in-person learning at higher rates than their lower-income and racialized peers. When families with more resources have opted for remote learning, they have been better able to supplement online lessons. For numerous reasons, including higher rates of …

Distributional Arguments, In Reverse, Alex Raskolnikov

Faculty Scholarship

This Article contends that the government should consider – rather than ignore – distributional consequences both in the design of legal rules and during legal transitions. This does not mean that the distributional effect of every legal rule should be measured and taken into account in the rule’s design. But if the likely distributional effects are unintended, large, and objectionable, if the efficiency of the legal rule is doubtful, if the compensating tax-and-transfer adjustment is not forthcoming (or has not occurred), policymakers should take distribution into account. One way of doing so is to choose among several alternative legal rules …

Preemption: The Continuing Challenge, Richard Briffault

Faculty Scholarship

The decade of the 2010s witnessed the emergence and rapid spread of aggressive state preemption of local government actions. This “new preemption” consists of intentional, extensive, and sometimes punitive state efforts to block local action across a wide range of domains—from firearms regulation to the treatment of immigrants, workplace equity to environmental protection, the scope of anti-discrimination laws to the regulation of the sharing economy. This new preemption has roots going back to the turn of this century, and began to build decades ago, but it took off most dramatically after the Republican takeover of many state governments in 2010, …

American Exceptionalism At Its Finest: “Soft On Crime” Now A Vote-Winner In The World’S Largest Incarcerator, Mirko Bagaric, Gabrielle Wolf, Daniel Mccord, Brienna Bagaric, Nick Fischer

Lewis & Clark Law Review

Anyone with even a remote interest in criminal justice was stunned by the “soft on crime” Republican Party advertisement at Super Bowl LIV in 2020, especially during a presidential election year. The United States of America has pursued an unrelenting, merciless “tough on crime” approach for half a century, resulting in it being the world’s largest incarcerator by a massive margin. It was an unshakable political ideology that “tough on crime” was a vote winner. This resulted in incarceration levels increasing fourfold in four decades, with more than two million Americans ultimately behind bars. Legal and criminology scholars had argued …

J Mich Dent Assoc January 2021

The Journal of the Michigan Dental Association

Every month, The Journal of the Michigan Dental Association brings news, information, and features about Michigan dentistry to our state's oral health community and the MDA's 6,200+ members. No publication reaches more Michigan dentists!

In this issue, the reader will find the following original content:

• A cover story on “The Dentist’s Role in Recognizing Sleep-Disordered Breathing in Children”.
• A feature article, “Dental Sleep Medicine Education: Do You Want a Nap or a Full Night’s Sleep?”.
• The feature article, “In-office Plans: Where Are We Now? What Have We Learned?”
• News you need, Editorial and regular department articles on MDA Foundation activities, …

Stealing (Identity) From The Poor, Sara S. Greene

Faculty Scholarship

The law of data breaches is new, dynamic, and evolving. The number and complexity of breaches increases each year and legal scholars, courts, and policymakers scramble to respond. In 2019, 14.4 million consumers became victims of identity theft, the most problematic consequence of data breaches for consumers. Indeed, one-third of all Americans have experienced identity theft at some point in their lives. Yet despite low-income groups comprising at least thirty percent of all identity theft victims, existing discourse and debate on the regulatory regime governing data breaches and identity theft primarily reflects the experiences and concerns of middle- and high-income …

Right To Food Gone In A Snap? Evaluating Section 12-4.13c Of The Illinois Public Aid Code And Whether It Adequately Addresses Citizens’ “Right” To Food, 53 Uic J. Marshall L. Rev. 1125 (2021), Katelyn Healy

UIC Law Review

No abstract provided.

In Search Of The Presumption Of Regularity, Aram A. Gavoor, Steven Platt

GW Law Faculty Publications & Other Works

The presumption of regularity is an imprecise quasi-deference principle that federal courts apply in varying ways to presume federal officers and employees lawfully and consistently discharge their official duties. The presumption gained national significance during the Trump Administration in several key cases in which it was implicated, but never described by the Supreme Court. While the literature and judicial opinions have invoked the presumption, there has been sparse scholarly accounting for its contours, value, and legitimacy. This Article is the first to trace the contemporary domain of the presumption and its applications from its pre-Founding Era source and normatively-recognized 1926 …

Pregnant And Detained: Constitutional Rights And Remedies For Pregnant Detainees, Natalie Avery Barnaby

Journal of Criminal Law and Criminology

Over the last thirty years, the United States has increasingly expanded what is already the largest immigration detention system in the world. On a daily basis, the U.S. government holds more than 50,000 people in detention as they wait for their immigration hearings or their removal back to their home country. During the past two decades, presidential administrations have enacted regulations to deter immigrants from entering the United States and narrow their ability to stay in the country, leading to an overall increase in detentions.

There is wide documentation of poor detention conditions, inadequate medical care, and overcrowding in immigration …

Social Services And Mutual Aid In Times Of Covid-19 And Beyond: A Brief Critique, Dana Neacsu

Law Faculty Publications

May 19, 2021, marked a crucial point in the United States’ fight against the COVID-19 pandemic: sixty percent of U.S. adults had been vaccinated. Since then, Americans have witnessed the beginning of the end of the COVID-19 pandemic, but its long-term effects are here to stay. Ironically, some are unexpectedly welcome. Among the lasting positive changes is an augmented sense of individual involvement in community well-being. This multifaceted phenomenon has given rise to #BLM allyship and heightened interest in mutual aid networks. In the legal realm, it has manifested with law students, their educators, lawyers, and the American Bar Association …

Pandemic Politics, Public Health, And The Fda, Jordan Paradise, Becky Bavlsik

Faculty Publications & Other Works

No abstract provided.

Forgotten On The Frontlines: The Plight Of Direct Care Workers During Covid-19, John D. Blum, Shawn R. Mathis

Faculty Publications & Other Works

No abstract provided.

Playing God: Faulty Decision-Making In Medical Futility Disputes, C. Scott Sergeant

Mitchell Hamline Law Review

No abstract provided.

Wisconsin’S 3/5 Compromise: Prison Gerrymandering In Wisconsin Dilutes Minority Votes To Inflate White Districts’ Population, Adam Johnson

Mitchell Hamline Law Review

No abstract provided.

Channel Your Inner Kindergartner: Fostering A Culture Conducive To Creativity In Legal Practice, Samantha A. Moppett

Mitchell Hamline Law Review

No abstract provided.

Fixing Esg: Are Mandatory Esg Disclosures The Solution To Misleading Ratings?, Javier El-Hage

Fordham Journal of Corporate & Financial Law

This Note provides an overview of the debate around the current state of ESG disclosure practices, and the perceived need for the SEC to establish a system of mandatory ESG disclosures. Part I explores the inherent difficulty of defining ESG, the problematic nature of quantifying and measuring ESG factors, and the tools currently being used by market-leading ratings firms and investment vehicles. In particular, this part addresses the inconsistencies of ESG self-reporting, the influence of this practice on the ensuing ratings, and the potential for investors to be misled as a result.

Part II of the Note explores the possible …

The Reality Behind The Forced Mass Sterilizations Of Indigenous Peruvian Women And Its Impact On The Society It Left Behind, Zoila Terrones

Student Works

No abstract provided.

Food Allergy Bullying As Disability Harassment: Holding Schools Accountable, D'Andra Millsap Shu

University of Colorado Law Review

Millions of American schoolchildren of all ages suffer from food allergies, and increasingly, bullies target these children because of their allergies. If a bully exposes a victim to an allergen, food allergy bullying can sicken or kill within minutes. Food allergy bullying is already responsible for many hospitalizations and at least one death. Most food allergy bullying happens at school, and schools play a crucial part in addressing and preventing bullying. All too often, though, schools fail to take appropriate action. Sovereign immunity and other obstacles insulate public schools from liability in many instances, but federal disability law may provide …

The Fda’S Power Over Non-Therapeutic Uses Of Drugs And Devices, Patricia J. Zettler

Washington and Lee Law Review

Although we often—and rightly—think of the U.S. Food and Drug Administration (FDA) as regulating important therapies for patients, the agency also can regulate non-therapeutic uses of drugs and devices. The Federal Food, Drug, and Cosmetic Act defines drugs and devices as including not only products intended to address disease but also those intended to affect the structure or function of the body, such as cognitive enhancements, wrinkle removers, and recreational drugs. Indeed, if these broad definitions were read literally, many everyday consumer products—such as winter jackets intended to keep wearers’ warm—may be drugs or devices. Accordingly, Congress, courts, and the …

Adding New Ingredients To An Old Recipe: Do Isds Reforms And New Investment Treaties Support Human Rights?, Nicholas J. Diamond, Kabir A.N. Duggal

Case Western Reserve Journal of International Law

No abstract provided.

Prosecuting Bride Kidnapping: The Law Isn't Enough; Aligning Cultural Norms With The Law, Alexandria Mckenna Lundberg

Case Western Reserve Journal of International Law

No abstract provided.

2020 Domestic Legislative Review, Tara Cooley

Animal Law Review

The 116th Congress, second session, began January 3, 2020, and ended January 3, 2021. While Congress voted on key animal-related legislation, such as the Big Cat Public Safety Act, the COVID-19 pandemic slowed -- or even halted -- proposed legislation at the federal and state levels. Despite the slowdown, local voters proposed and enacted several key initiatives, including the California Ecosystems Protection Act and Orange County, Florida's Right to Clean Water initiative.9 In addition, federally enacted COVID-19-related legislation, such as the Coronavirus Aid, Relief, and Economic Security (CARES) Act, also addressed animalrelated issues. The World Health Organization (WHO) labeled COVID-19 …

Ain’T No Laws When You’Re Producing Claws: How Inadequate Labeling Of Alcoholic Beverages Puts Consumers With Allergies At Risk, Audrey Quinn

Health Matrix: The Journal of Law-Medicine

No abstract provided.

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Rethinking The Role Of Ngos In An Era Of Extreme Wealth Inequality: The Example Of The Bill & Melinda Gates Foundation, John J. Chung

Law Faculty Scholarship

No abstract provided.

Rethinking The Role Of Ngos In An Era Of Extreme Wealth Inequality: The Example Of The Bill & Melinda Gates Foundation, John J. Chung

Roger Williams University Law Review

No abstract provided.