Digital Commons Network^™

The Underground Rulification Of The Ordinary Business Operations Exclusion, Reilly S. Steel

Faculty Scholarship

In its landmark Cracker Barrel no-action letter, the SEC staff an­nounced a bright-line rule permitting exclusion of any shareholder pro­posal pertaining to a company’s management of its general workforce, even if focused on a significant social policy issue such as employment discrimination, under the “ordinary business operations” exclusion. The SEC reversed Cracker Barrel in 1998, returning to a case-specific approach to determining whether proposals fall under the exclusion. This Note examines 250 no-action letters from the 2015 proxy season and finds evidence indicating that the staff has, contrary to official SEC policy, returned to a rule-like approach to the ordinary …

Disciplinary Regulation Of Prosecutors As A Remedy For Abuses Of Prosecutorial Discretion: A Descriptive And Normative Analysis, Bruce A. Green, Samuel J. Levine

Faculty Scholarship

No abstract provided.

Guardians Of Municipal Public Trees: Commonwealth Of Massachusetts Tree Wardens’ Authority And Accountability, Julie E. Steiner

Faculty Scholarship

Today’s tree wardens are continually called upon to strike a balance between preservation of public trees and protection of the public from hazardous tree conditions. The Commonwealth of Massachusetts has been a pioneer in tree protection legislation, including the enactment of the first state legislation requiring a municipal tree warden. As guardians of the municipal landscape, tree wardens decide whether and when to plant new public shade trees, or to permit those that already exist to be cut, trimmed, or removed. This Article describes the important historical role the Commonwealth of Massachusetts has played in protecting public trees, the legal …

Symposium: Environmental Accountability In An Age Of Consequences: Foreword, Julie E. Steiner

Faculty Scholarship

The five articles in this Symposium issue each take a different approach to addressing environmental accountability. There is unequivocal evidence that the climate system is warming, caused mainly by the measurable increase in anthropogenic greenhouse gas emissions. The Symposium authors include Denis Binder, Susan Stark, Julie E. Steiner, Chris Erchull, Laura Fisher, and Daniel DePasquale. These Authors challenge all to think broadly about utilization of different accountability mechanisms to ensure more efficient environmental outcomes.

Heien'S Mistake Of Law, Kit Kinports

Faculty Scholarship

The Supreme Court has been whittling away at the Fourth Amendment for decades. The Court's 2014 ruling in Heien v. North Carolina allowing the police to make a traffic stop based on a reasonable mistake of law generated little controversy among the Justices and escaped largely unnoticed by the press-perhaps because yet another Supreme Court decision reading the Fourth Amendment narrowly is not especially noteworthy or because the opinion's cursory and overly simplistic analysis equating law enforcement's reasonable mistakes of fact and law minimized the significance of the Court's decision. But the temptation to dismiss Heien as just another small …

Reconsidering Criminal Background Checks: Race, Gender, And Redemption, Kimani Paul-Emile

Faculty Scholarship

No abstract provided.

The New Public, Sarah Seo

Faculty Scholarship

By exploring the intertwined histories of the automobile, policing, criminal procedure, and the administrative state in the twentieth-century United States, this Essay argues that the growth of the police’s discretionary authority had its roots in the governance of an automotive society. To tell this history and the proliferation of procedural rights that developed as a solution to abuses of police discretion, this Essay examines the life and oeuvre of Charles Reich, an administrative-law expert in the 1960s who wrote about his own encounters with the police, particularly in his car. The Essay concludes that, in light of this regulatory history …

Lethality, Public Carry, And Adequate Alternatives, Joseph Blocher, Darrell A. H. Miller

Faculty Scholarship

This Article explores the relationship between lethality and the right to bear arms, and considers how that relationship might be shaped by the availability of non-lethal alternative weapons. Prior scholarship has asked whether the Second Amendment includes a right to carry non-lethal “Arms.” An important set of related questions remains: does the Second Amendment necessarily include a right to arm oneself publicly with lethal force, if non-lethal alternatives are available? And how should one evaluate the adequacy of those alternatives?

Young Adulthood As A Transitional Legal Category: Science, Social Change, And Justice Policy, Elizabeth S. Scott, Richard J. Bonnie, Laurence Steinberg

Faculty Scholarship

In the past decade, much attention has focused on developmental brain research and its implications for the regulation of crime. Public and policy interest has been directed primarily toward juveniles. In light of recent research, courts and legislatures increasingly have rejected the punitive response of the 1990s and embraced a developmental approach to young offenders. Of particular importance in propelling this trend has been the framework offered by the U.S. Supreme Court in a series of Eighth Amendment opinions that have rejected harsh adult sentences for juveniles. These decisions, supported by adolescent brain research, rested on two empirically based principles: …

Juvenile Sentencing Reform In A Constitutional Framework, Elizabeth S. Scott, Thomas Grisso, Marsha Levick, Laurence Steinberg

Faculty Scholarship

In the past decade, the Supreme Court has transformed the constitutional landscape of juvenile crime regulation. In three strongly worded opinions, the Court held that imposing harsh criminal sentences on juvenile offenders violates the Eighth Amendment prohibition against cruel and unusual punishment. Roper v Simmons in 2005 prohibited the imposition of the death penalty for a crime committed by a juvenile. Five years later, Graham v. Florida held that no juvenile could be sentenced to life without the possibility of parole (LWOP) for a nonhomicide offense. Then in 2012, Miller v. Alabama struck down statutes that required courts to sentence …

Stops And Stares: Street Stops, Surveillance, And Race In The New Policing, Jeffrey Fagan, Anthony A. Braga, Rod K. Brunson, April Pattavina

Faculty Scholarship

The use of proactive tactics to disrupt criminal activities, such as Terry street stops and concentrated misdemeanor arrests, are essential to the "new policing." This model applies complex metrics, strong management, and aggressive enforcement and surveillance to focus policing on high crime risk persons and places. The tactics endemic to the "newpolicing"gave rise in the 1990s to popular, legal, political, and social science concerns about disparate treatment of minority groups in their everyday encounters with law enforcement. Empirical evidence showed that minorities were indeed stopped and arrested more frequently than similarly situated Whites, even when controlling for local social and …

The Internet Of Heirlooms And Disposable Things, Woodrow Hartzog, Evan Selinger

Faculty Scholarship

The Internet of Things (“IoT”) is here, and we seem to be going all in. We are trying to put a microchip in nearly every object that is not nailed down and even a few that are. Soon, your cars, toasters, toys, and even your underwear will be wired up to make your lives better. The general thought seems to be that “Internet connectivity makes good objects great.” While the IoT might be incredibly useful, we should proceed carefully. Objects are not necessarily better simply because they are connected to the Internet. Often, the Internet can make objects worse and …

Inefficiently Automated Law Enforcement, Woodrow Hartzog, Gregory Conti, John Nelson, Lisa A. Shay

Faculty Scholarship

For some crimes the entire law enforcement process can now be automated. No humans are needed to detect the crime, identify the perpetrator, or impose punishment. While automated systems are cheap and efficient, governments and citizens must look beyond these obvious savings as manual labor is replaced by robots and computers. Inefficiency and indeterminacy have significant value in automated law enforcement systems and should be preserved. Humans are inefficient, yet more capable of ethical and contextualized decision-making than automated systems. Inefficiency is also an effective safeguard against perfectly enforcing laws that were created with implicit assumptions of leniency and discretion. …

Anonymization And Risk, Ira S. Rubinstein, Woodrow Hartzog

Faculty Scholarship

Perfect anonymization of data sets that contain personal information has failed. But the process of protecting data subjects in shared information remains integral to privacy practice and policy. While the deidentification debate has been vigorous and productive, there is no clear direction for policy. As a result, the law has been slow to adapt a holistic approach to protecting data subjects when data sets are released to others. Currently, the law is focused on whether an individual can be identified within a given set. We argue that the best way to move data release policy past the alleged failures of …

A Study On Immigrant Activism, Secure Communities, And Rawlsian Civil Disobedience, Karen Pita Loor

Faculty Scholarship

This Article explores the immigrant acts of protest during the Obama presidency in opposition to the Secure Communities (SCOMM) immigration enforcement program through the lens of philosopher John Rawls’ theory of civil disobedience and posits that this immigrant resistance contributed to that administration’s dismantling the federal program by progressively moving localities, and eventually whole states, to cease cooperation with SCOMM. The controversial SCOMM program is one of the most powerful tools of immigration enforcement in the new millennium because it transforms any contact with state and local law enforcement into a potential immigration investigation. SCOMM has now been revived through …

Law And Politics, An Emerging Epidemic: A Call For Evidence-Based Public Health Law, Michael Ulrich

Faculty Scholarship

As Jacobson v. Massachusetts recognized in 1905, the basis of public health law, and its ability to limit constitutional rights, is the use of scientific data and empirical evidence. Far too often, this important fact is lost. Fear, misinformation, and politics frequently take center stage and drive the implementation of public health law. In the recent Ebola scare, political leaders passed unnecessary and unconstitutional quarantine measures that defied scientific understanding of the disease and caused many to have their rights needlessly constrained. Looking at HIV criminalization and exemptions to childhood vaccine requirements, it becomes clear that the blame cannot be …

The Multiplication Effect Of Legal Insurance, Ben Depoorter, Jef De Mot, Michael G. Faure

Faculty Scholarship

No abstract provided.

Juvenile Life Without Parole In Law And Practice: Chronicling The Rapid Change Underway, John Mills, Anna M. Dorn, Amelia Courtney Hritz

Faculty Scholarship

This Article provides a comprehensive examination of juvenile life without parole ('"LWOP") both as a policy and in practice. Beginning in 2010, the U.S. Supreme Court has repeatedly held that the Eighth Amendment of the U.S. Constitution restricts the reach of JLWOP sentences, first prohibiting it for non-homicide offenses, then proscribing its mandatory application for any offense, and, in 2016, clarifying that it may only be imposed in the rare instance in which a juvenile's homicide demonstrates his or her "irreparable corruption. " The legislative responses to these cases have been to either abandon or restrict JLWOP's application. These legislative …

Beyond Legality: Understanding The Legitimacy Of Executive Action In Immigration Law, Ming Hsu Chen

Faculty Scholarship

No abstract provided.

Asylum And Terrorism: The Death Of Human Rights Law?, Moria Paz

Faculty Scholarship

No abstract provided.

Emergency Takings, Brian Lee

Faculty Scholarship

No abstract provided.

Faced With Crisis: The Importance Of Establishing A Comprehensive Crisis Management Plan, David E. Matchen Jr., Jason Hawkins

Faculty Scholarship

No abstract provided.

An Overlooked Key To Reversing Mass Incarceration: Reforming The Law To Reduce Prosecutorial Power In Plea Bargaining, Cynthia Alkon

Faculty Scholarship

The need to “do something” about mass incarceration is now widely recognized. When President Obama announced plans to reform federal criminal legislation, he focused on the need to change how we handle non-violent drug offenders and parole violators. Previously, former Attorney General Eric Holder announced policies to make federal prosecutors “smart on crime.” These changes reflect, as President Obama noted, the increasing bipartisan consensus on the need for reform and the need to reduce our incarceration rates. However, proposals about what to reform, such as President Obama’s, tend to focus on some parts of criminal sentencing and on prosecutorial behavior …

Lessons Learned From Ferguson: Ending Abusive Collection Of Criminal Justice Debt, Neil L. Sobol

Faculty Scholarship

On March 4, 2015, the Department of Justice released its scathing report of the Ferguson Police Department calling for “an entire reorientation of law enforcement in Ferguson” and demanding that Ferguson “replace revenue-driven policing with a system grounded in the principles of community policing and police legitimacy, in which people are equally protected and treated with compassion, regardless of race.” Unfortunately, abusive collection of criminal justice debt is not limited to Ferguson. This Article, prepared for a discussion group at the Southeastern Association of Law Schools conference in July 2015, identifies the key findings in the Department of Justice’s report …

End The Popularity Contest: A Proposal For Second Amendment 'Type Of Weapon' Analysis, Cody Jacobs

Faculty Scholarship

The Supreme Court’s recognition of an individual Second Amendment right to bear arms for self-defense raised many questions about the scope and content of that right. One issue that will become increasingly important in the years ahead, but that has received relatively little attention from scholars and courts, is the question of which “arms” are protected by that right. The Supreme Court’s decision in District of Columbia v. Heller purports to lay out a test that asks whether the weapon at issue is in “common use” at the time the case is decided. This article critiques that test, arguing that …

Civil Disabilities In An Era Of Diminishing Privacy: A Disability Approach For The Use Of Criminal Records In Hiring, Andrew Elmore

Faculty Scholarship

An evaluation of normative and legal frameworks to encourage the employment of people with criminal convictions is in order. While current approaches are likely to eliminate overbroad initial hiring screens, there remains the unfinished project of reintegrating persons with criminal convictions into the workforce. For this, policy tools are needed to discourage the misuse of irrelevant criminal convictions and to encourage a contextualized evaluation of criminal convictions and the fair consideration of applicants’ qualifications separate from them.

This Article proposes a disability normative and legal framework as a useful approach to guide this analysis. Disability laws first consider the privacy …

Michael Brown, Eric Garner, And Law Librarianship, Ronald E. Wheeler

Faculty Scholarship

Professor Wheeler discusses the police killings of Michael Brown and Eric Garner. He posits that racialized fear is part of what fuels such violence and discusses examples of how racialized fear have impacted his personal life. Wheeler then discusses how and why law librarians can and should be prepared to discuss such events with their law library patrons.

Punishment As Protection, Cynthia Godsoe

Faculty Scholarship

No abstract provided.

Convergeing Around The Study Of Gender Violence: The Gender Violence Clinic At The University Of Maryland Carey School Of Law, Leigh S. Goodmark

Faculty Scholarship

Domestic violence clinics have been a staple of law school clinical programs since the 1980s. The University of Maryland Francis King Carey School of Law recently created the nation’s first Gender Violence Clinic, however. This article describes the motivation for taking a broader approach to gender based violence, the types of cases handled by the clinic, the challenges posed by the clinic structure, and the pedagogical goals for the clinic.

Post-Katrina Suppression Of Black Working-Class Political Expression, Taunya L. Banks

Faculty Scholarship

No abstract provided.