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A Flawed Case Against Black Self-Defense, Nicholas J. Johnson Jan 2022

A Flawed Case Against Black Self-Defense, Nicholas J. Johnson

Faculty Scholarship

No abstract provided.

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Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown Jan 2022

Housing The Decarcerated: Covid-19, Abolition & The Right To Housing, Norrinda Brown

Faculty Scholarship

The coronavirus pandemic revealed the need to advance the right to housing and abolition movements. The need for advancements in both spaces was no more painfully apparent than among the recently decarcerated population. Securing housing for the recently decarcerated is particularly difficult due to the “culture of exclusion” that has long pervaded subsidized housing policy, enabled by a patchwork of federal laws, including the Anti-Drug Abuse Act (ADA) of 1988 and the Supreme Court’s ruling in HUD v. Rucker. The culture of exclusion is arbitrated by local housing authorities and works on three levels: eligibility, enforcement, and set asides. As …

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Justice Ginsburg’S Cautious Legacy For The Equal Rights Amendment, Julie Suk Jan 2022

Justice Ginsburg’S Cautious Legacy For The Equal Rights Amendment, Julie Suk

Faculty Scholarship

History will remember the late Justice Ruth Bader Ginsburg (RBG) as the “founding mother” of constitutional gender equality in the United States. This Article unpacks her legacy for inclusive constitutional change, unearthing her lifelong commitment to the Equal Rights Amendment (ERA), which was adopted fifty years ago by Congress in 1972. It took nearly half a century for the Amendment to be ratified by the thirty-eight states required by Article V, with Virginia becoming the last state to ratify it in 2020—the year of Justice Ginsburg’s death. Because the last three ratifications occurred decades after congressionally imposed time limits, RBG …

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Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Pollution, “Ecologists,” Regulations, And Renewables, 1945-1981, Adam D. Orford Jan 2022

Nation’S Business And The Environment: The U.S. Chamber’S Changing Relationships With Pollution, “Ecologists,” Regulations, And Renewables, 1945-1981, Adam D. Orford

Faculty Scholarship

Nation’s Business was a monthly business magazine published by the U.S. Chamber of Commerce, with a subscription list larger than Business Week, Forbes, or Fortune. This study explores how the magazine responded and adapted to the rise of environmentalism, and environmental regulation of business, by exploring its treatment of four topics: DDT, environmentalists, government regulation, and renewable energy. It is built on a full-text review of all issues of Nation’s Business published between 1945 and 1981. It reveals the development of a variety of anti-environmental logics and discourses, including the delegitimization of environmentalism as emotional and irrational, the undermining of …

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Predicting Cybersecurity Incidents Through Mandatory Disclosure Regulation, Aniket Kesari Jan 2022

Predicting Cybersecurity Incidents Through Mandatory Disclosure Regulation, Aniket Kesari

Faculty Scholarship

Cybersecurity risk is an increasingly common concern for organizations
that collect and maintain vast troves of data. In 2011, the United States
Securities and Exchange Commission (SEC) provided guidelines for how
publicly traded companies should convey these risks to potential investors. But
does this mandatory disclosure regime effectively serve this purpose in the
cybersecurity context? This Article uses machine learning and natural language
processing techniques to analyze firms’ mandatory risk disclosure statements,
predict which firms are at the greatest risk of suffering cybersecurity incidents,
and evaluate how well disclosure meets the goals of the broad regulatory
regime. More broadly, this …

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The Center Cannot Hold: Zoom As A Potemkin Village, Hadar Aviram Jan 2022

The Center Cannot Hold: Zoom As A Potemkin Village, Hadar Aviram

Faculty Scholarship

No abstract provided.

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Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser Jan 2022

Using Burdens Of Proof To Allocate The Risk Of Error When Assessing Developmental Maturity Of Youthful Offenders, David L. Faigman, Kelsey Geiser

Faculty Scholarship

Behavioral and neuroscientific research provides a relatively clear window into the timing of developmental maturity from adolescence to early adulthood. We know with considerable confidence that, on average, sixteen-year-olds are less developmentally mature than nineteen-year-olds, who are less developmentally mature than twenty-three-year-olds, who are less developmentally mature than twenty-six-year-olds. However, in the context of a given case, the question presented might be whether a particular seventeen-year-old defendant convicted of murder is “developmentally mature enough” that a sentence of life without parole can be constitutionally imposed on him or her. While developmental maturity can be accurately measured in group data, it …

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The Price Tag Of "Pay-For-Delay", Robin C. Feldman Jan 2022

The Price Tag Of "Pay-For-Delay", Robin C. Feldman

Faculty Scholarship

In a landmark decision nearly a decade ago, the U.S. Supreme Court opened the door for antitrust suits against brand and generic pharmaceutical companies who engage in collusive settlements to delay the time for the generic to come to market. With these “pay-for-delay” agreements, brand-name companies offer prospective generics some form of compensation in exchange for the generic’s promise not to enter the market until an agreed-upon date. Laying the groundwork for the lawsuit that would eventually lead to the Actavis decision, the Federal Trade Commission (“FTC”) published a study estimating that pay-for-delay agreements cost American consumers $3.5 billion annually, …

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Punitive Surveillance, Kate Weisburd Jan 2022

Punitive Surveillance, Kate Weisburd

Faculty Scholarship

Budget constraints, bipartisan desire to address mass incarceration, and the COVID-19 crisis in prisons have triggered state and federal officials to seek alternatives to incarceration. As a result, invasive electronic surveillance—such as GPS-equipped ankle monitors, smartphone tracking, and suspicionless searches of electronic devices—is often touted as a humane substitute for incarceration. This type of monitoring, which I term “punitive surveillance,” allows government officials, law enforcement, and for-profit companies to track, record, search, and analyze the location, biometric data, and other meta-data of thousands of people on probation and parole. With virtually no legal oversight or restraint, punitive surveillance deprives people …

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Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain Jan 2022

Death By Dehumanization: Prosecutorial Narratives Of Death-Sentenced Women And Lgbtq Prisoners, Jessica Sutton, John Mills, Jennifer Merrigan, Kristin Swain

Faculty Scholarship

No abstract provided.

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Cop Tracing, Jonathan Abel Jan 2022

Cop Tracing, Jonathan Abel

Faculty Scholarship

What happens to an officer’s old cases when that officer is exposed as corrupt? Often, the answer is nothing. This Article calls for “cop tracing”: an effort to identify and investigate the past cases handled by dishonest cops. The Article first describes the existing action and inaction with respect to such tracing. Next, it examines the logistical and legal barriers to cop tracing. Finally, the Article considers the implications of cop tracing’s absence. The failure to engage in cop tracing is symptomatic of the failure to see the misconduct of even a single bad officer in systemic terms.

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Challenges With Defining Pharmaceutical Markets And Potential Remedies To Screen For Industry Consolidation, Robin Feldman, Brent D. Fulton, Jamie R. Godwin, Richard M. Scheffler Jan 2022

Challenges With Defining Pharmaceutical Markets And Potential Remedies To Screen For Industry Consolidation, Robin Feldman, Brent D. Fulton, Jamie R. Godwin, Richard M. Scheffler

Faculty Scholarship

Context: Dramatic increases in pharmaceutical merger and acquisition (M&A) activity since 2010 suggest we are in the midst of a third wave of industry consolidation. Methods: The authors reviewed 168 economic, legal, medical, industry, and government sources to examine the effects of consolidation on competition and innovation and to explore how industry attributes complicate M&A regulation in a pharmaceutical context. Findings: The authors find that, in spite of certain metrics that might argue otherwise, con- solidation consistently reduces innovation and harms the public good. They also find that several factors within the pharmaceutical industry impede proper evaluation of proposed mergers. …

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A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Thalia Gonzalez, Donna Coker Jan 2022

A Call For An Intersectional Feminist Restorative Justice Approach To Addressing The Criminalization Of Black Girls, Thalia Gonzalez, Donna Coker

Faculty Scholarship

No abstract provided.

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The Death Of Law, Ugo Mattei Jan 2022

The Death Of Law, Ugo Mattei

Faculty Scholarship

This is a talk about the decline and fall of constitutional law, an over-arching characteristic of the new millennium. I focus on the period from the end of the Cold War—once described as the end of history—to what I call the “Second Cold War” beginning in the second decade of this century and having escalated in the proxy war in Ukraine. The Second Cold War is also characterized by an aborted cooptation of China through the World Trade Organization (to tame China’s seemingly unstoppable ascension to global supremacy) as well as a state of per-manent emergency.

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Brains Without Money: Poverty As Disabling, Emily R. Murphy Jan 2022

Brains Without Money: Poverty As Disabling, Emily R. Murphy

Faculty Scholarship

e United States has long treated poverty and disability as separate legal and social categories, a division grounded in widespread assumptions about the “deserving” and “undeserving” poor. In the case of disability, individuals generally are not thought to be morally responsible for their disadvantage, whereas in the case of poverty, individuals are assumed to be at fault for their disadvantage and are therefore less deserving of aid. This Article argues that recent advances in brain and behavioral science undermine the factual basis for those assumptions. Poverty inhibits brain development during childhood and, later in life, adversely affects cognitive capacities that …

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Toward A Broader Vision Of Lawyering, Ascanio Piomelli Jan 2022

Toward A Broader Vision Of Lawyering, Ascanio Piomelli

Faculty Scholarship

No abstract provided.

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Law In The Service Of Misinformation: How Anti-Vaccine Groups Use The Law To Help Spin A False Narrative, Dorit R. Reiss, Viridiana Ordonez Jan 2022

Law In The Service Of Misinformation: How Anti-Vaccine Groups Use The Law To Help Spin A False Narrative, Dorit R. Reiss, Viridiana Ordonez

Faculty Scholarship

Social movements use legal tools to create narratives. Those narratives support social agendas which certain movements leverage to mislead their followers and potential followers. In this Article, we examine one influential anti-vaccine organization, the Informed Consent Action Network (ICAN), that uses its far-reaching platform to create false narratives around legal action. Again and again, this anti-vaccine group misrepresented both the legal and the factual meanings of court decisions, settlements, and other legal actions to create a narrative to galvanize its followers and influence newcomers. ICAN filed lawsuits that make anti-vaccine arguments—even when the legal framework did not fit doing so—and …

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Drafting Agricultural Legislation, Jessica Vapnek Jan 2022

Drafting Agricultural Legislation, Jessica Vapnek

Faculty Scholarship

"Agricultural legislation” is an umbrella term that covers a broad range of topics, including food, veterinary matters, plant protection, seeds, forestry, fisheries, water, and land. Agricultural legislation also intersects with other discrete subject areas, including environment, health, and trade. Because of these interconnections the borderlines – where agriculture begins and these related topics end – are debatable. How different countries view agriculture varies significantly. In the developed world, agriculture is mostly a commercial enterprise, and “agricultural law” is considered largely to apply to the business of agriculture, including agricultural finance, supply chains, marketing, insurance (crop, drought, pest), real estate, intellectual …

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The New Normal: Regulatory Dysfunction As Policymaking, Ming Hsu Chen, Daimeon Shanks Jan 2022

The New Normal: Regulatory Dysfunction As Policymaking, Ming Hsu Chen, Daimeon Shanks

Faculty Scholarship

Scholars often presume that administrative dysfunction is a deviation from the norm of regularity in administrative law. This presumption is reinforced by courts who defer to agencies on the basis of a legal fiction of idealized regularity. In reality, irregularities are common in policymaking and they make agencies vulnerable to dysfunction. Irregularities are not bugs, but features of the administrative state. Sometimes, a national emergency makes political influence unavoidable and urges departures from usual regulatory processes. At other times, however, the framing of a problem as a national emergency is a pretextual justification to pursue a pre- determined political goal …

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Teaching Interdisciplinary Perspectives On Citizenship And Immigration, Ming Hsu Chen Jan 2022

Teaching Interdisciplinary Perspectives On Citizenship And Immigration, Ming Hsu Chen

Faculty Scholarship

This essay reflects on the use of interdisciplinary perspectives in teaching survey and seminar classes on immigration and citizenship. It focuses on three benefits. First, empirical research gives the doctrine a reality check. Second, normative inquiry evaluates the doctrine against desired values. Third, policy analysis opens up possibilities for reforming and improving on doctrine.

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The New Racial Wage Code, Veena Dubal Jan 2022

The New Racial Wage Code, Veena Dubal

Faculty Scholarship

The legal identity of on-demand platform workers has become a central site of conflict between labor and industry. Amidst growing economic inequality, labor representatives and workers have demanded that platform workers be afforded em­ ployee benefits and protections, including minimum wage and overtime rights. Plat­ form industrialists, meanwhile, have proffered a new regulatory category of worker­ neither employee nor independent contractor-that limits the protections available to the workforce, legalizes unpredictable, digitally-personalized piece-pay, and con­ stricts a worker's right to negotiate different terms. To date, legal and socio-legal scholars have primarily analyzed this third category of worker, codified by Proposi­ tion …

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Advertising Medicine: Selling The Cure, Robin Feldman Jan 2022

Advertising Medicine: Selling The Cure, Robin Feldman

Faculty Scholarship

Although most countries forbid advertising medicine to patients, “direct-to- consumer advertising” has flourished in the United States over the past century. Research shows that the practice prompts inappropriate prescriptions and disadvantages generic competitors, leading to adverse drug reactions and increased prescription drug spending. Nevertheless, a comprehensive regulatory system for direct-to-consumer advertising continues to escape the grasp of policymakers. Regulatory authority has bounced between the Federal Trade Commission (FTC) and the Food and Drug Administration (FDA), where primary jurisdiction now resides. Since the FDA assumed responsibility, the agency’s only major regulatory initiative has been to minimize disclosure requirements for advertisements. Enforcement …

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Police Secrecy Exceptionalism, Christina Koningisor Jan 2022

Police Secrecy Exceptionalism, Christina Koningisor

Faculty Scholarship

Every state has a set of transparency statutes that bind state and local governments. In theory, these statutes apply with equal force to every agency. Yet, in practice, law enforcement agencies enjoy a wide variety of unique secrecy protections denied to other government entities. Legislators write police-specific exemptions into public records laws. Judges develop procedural approaches that they apply exclusively to police and prosecutorial records. Police departments claim special secrecy protections from the bottom up. This Article maps the legal infrastructure of police-records secrecy. It draws upon the text of the public records statutes in all fifty states, along with …

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Public Undersight, Christina Koningisor Jan 2022

Public Undersight, Christina Koningisor

Faculty Scholarship

No abstract provided.

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Secrecy Creep, Christina Koningisor Jan 2022

Secrecy Creep, Christina Koningisor

Faculty Scholarship

Legal scholars have long been fascinated by the topic of government secrecy. Yet they have largely focused their attention on federal secrecy, rarely exploring secrecy in other contexts. This Article addresses this gap. It turns its attention to state and local government secrets, applying the lens of federal secrecy to the subfederal regime. In doing so, it identifies a troubling new development in state and local law: the migration of powerful federal secrecy protections, initially developed to shield the national security state, into the state and local context. I refer to this process as “secrecy creep.” By illuminating the architecture …

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Transparency Deserts, Christina Koningisor Jan 2022

Transparency Deserts, Christina Koningisor

Faculty Scholarship

Few contest the importance of a robust transparency regime in a democratic system of government. In the United States, the “crown jewel” of this regime is the Freedom of Information Act (FOIA). Yet despite widespread agreement about the importance of transparency in government, few are satisfied with FOIA. Since its enactment, the statute has engendered criticism from transparency advocates and critics alike for insufficiently serving the needs of both the public and the government. Legal scholars have widely documented these flaws in the federal public records law. In contrast, scholars have paid comparatively little attention to transparency laws at the …

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The De Facto Reporter's Privilege, Christina Koningisor Jan 2022

The De Facto Reporter's Privilege, Christina Koningisor

Faculty Scholarship

abstract. While the overwhelming majority of states have established constitutional, statu- tory, or common-law protections for reporters who shield the identity of a confidential source, there is no uniform, crosscutting federal reporter’s privilege. As a consequence, reporters subpoe- naed in federal cases often lack effective formal protections. This can have a chilling effect on news- gathering: sources—and reporters—may find little comfort in knowing that a source’s anonymity is preserved only at a judge’s or prosecutor’s discretion or by a reporter’s willingness to go to jail. For decades, both those in favor of a formal federal reporter’s privilege and those opposed …

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The Negotiable Implementation Of Environmental Law, Dave Owen Jan 2022

The Negotiable Implementation Of Environmental Law, Dave Owen

Faculty Scholarship

tional wisdom describes environmental law as a field filled with rigid mandates. ith that rigidity as a key premise, and they allege that inflexibility is a central failing or, alternatively, a squandered virtue. Influential reform proposals follow from both allegations. This Article demonstrates that these premises are often mistaken. Based on literature reviews and interviews with environmental-law practitioners, it shows that flexibility pervades environmental law, and regulators, regulated entities, and other interest groups routinely use negotiations to navigate that flexibility. Indeed, negotiation is so central to the field that one cannot understand environmental law, either in theory or practice, without …

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Supervision For Advocacy: Supporting Self-Care, Kathleen J. Farkas, Jaroslaw Richard Romaniuk Dec 2021

Supervision For Advocacy: Supporting Self-Care, Kathleen J. Farkas, Jaroslaw Richard Romaniuk

Faculty Scholarship

The objective is to examine the intersection of advocacy for social change, the individual’s emotional costs of advocacy, and the use of trauma informed care in supervisory practice to encourage and support advocates and their work. Supervision models exist, but none address the needs of advocates who might become targets for scorn and persecution. The literature on trauma informed care provides a direction to improve the support and supervision of advocates, especially those who use their personal experiences as examples in their work. We reviewed data bases and relevant literature regarding supervision and the principles of trauma informed care. Periodical …

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Classrooms Into Courtrooms, Naomi M. Mann Dec 2021

Classrooms Into Courtrooms, Naomi M. Mann

Faculty Scholarship

The federal Department of Education’s (DOE) 2020 Title IX Rule fundamentally transformed the relationship between postsecondary schools (schools) and students. While courts have long warned against turning classrooms into courtrooms, the 2020 Rule nonetheless imposed a mandatory quasi-criminal courtroom procedure for Title IX sexual harassment investigatory proceedings in schools. This transformation is a reflection of the larger trend of importing criminal law norms and due process protections into Title IX school proceedings. It is especially regressive at a time where calls for long-overdue criminal justice reform are reaching a boiling point across the nation. Its effects are especially troubling because …

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